Violence In The Church

Though they have historically been considered places of refuge, churches are more frequently becoming the target of violent crimes.  For example, in 2014, 176 deadly force incidents were documented at churches and faith-based organizations in the U.S., representing more than a 20% increase over similar numbers from 2012.^[1]  This trend only seems to have continued its upward trajectory, with 2015 bringing sad stories like the tragic shooting at Emanuel African Methodist Episcopal Church in Charleston, South Carolina that killed 9 people.  These stories, and others like them, are grim reminders that churches cannot afford to avoid addressing risk prevention for their congregations.  This article examines some of the legal and practical issues surrounding threats to a church’s security, including what steps can be taken to protect against premises liability, how to develop a security policy, and whether it is wise to encourage members to conceal and carry weapons.

Premises Liability – Is My Church Responsible When An Attacker Strikes?

As a general rule, churches are not liable for the criminal action of a third party who is acting outside their control, even if committed on church property.  An exception, however, applies if the church failed to use ordinary care to protect “invitees” from those criminal acts if the church knew or had reason to know of an unreasonable and foreseeable risk of harm.  An invitee can be anyone present on the church property to attend worship or any other church-hosted activity, regardless of whether they were explicitly or implicitly invited by the church.

Courts will look to the foreseeability of a criminal event when determining whether a property owner may be liable for failing to use ordinary care to protect their invitees.  Foreseeability almost always turns on several factors, including whether criminal activity previously occurred on or near the property; how recently and how often the activity occurred; how similar the conduct was to the conduct on the property; and what kind of publicity was given to the occurrence such that the landlord reasonably should have known about the activity.  While churches are not frequently sued in connection with violent shootings, the case-law from other cases involving property-owner liability is informative.

In the historic case of Lopez v. McDonald’s Corp., 193 Cal. App. 3d 495 (1987), a gunman entered a McDonalds store during the day and immediately opened fire, killing over twenty innocent people.  The court found that the McDonalds property owner did not have a duty to protect its business invitees because the likelihood of the assault was so remote and unexpected that it was not reasonably foreseeable.  The court specifically considered that in the “setting of modern life,” including the crimes committed in the vicinity of McDonalds, a “once-in-a-lifetime” massacre was not reasonably foreseeable.[2]

In sharp contrast, in the more recent case of the Aurora, Colorado movie theater shooting, the court used the same “setting of modern life” analysis, but reached an entirely different conclusion.[3]  After James Holmes killed a dozen people in the middle of a movie showing at the theater, the victims’ families sued the theater, claiming premises liability.  The theater of course raised the defense of foreseeability, arguing that it would have been nearly impossible to foresee that the perpetrator would leave through the side door of the theater, prop it open, and then return through that same door with guns and body armor.  Although the judge looked at the same Lopez standard from 1984, he reasoned that what was so unlikely given the setting of modern life in 1984 was not the same as what would be unlikely in 2012, specifically noting that mass shooting and killings had been on the rise recently and should have put the theater on notice of the possibility of this kind of event.[4]

For churches, the lesson from these and similar types of cases is that whether or not a church has liability for what a third party does on the premises turn on a variety of factors.  As the “setting of modern life” morphs and changes, so will the responsibility on property owners to assess the risks to those visiting their property and use ordinary care to protect against those risks.  Churches cannot wish for the best, or ignore what’s happening around them and assume it will never happen to them.  They must look to things like the information and warnings published by the government (Federal, state, and local), historical incidents of violence (the Charleston Church shooting this year), and the trends in their own neighborhood.

A significant part of that analysis includes forming a healthy security policy.

Security Policies – Where Do We Even Start?

Part of preparing wisely for an event that could create significant liability for the church is to develop a plan that addresses security concerns and establishes protocols and standards for responding.

An essential element of developing a workable policy is to engage the right people in the process.  The congregation needs to be engaged as part of making them aware of the threat and ready to implement and follow the plan.  The congregation must take responsibility for the church’s security.  They must be educated on what constitutes a suspicious activity or character and they should clearly know when to alert to a potential threat and who they should contact.  Local law enforcement, including those members who are part of your congregation, must be engaged as well.  Law enforcement personnel are vital to help you understand the nature of potential threats and develop a plan that adequately addresses those threats.

Any good security plan must first address the building and premises.  You should be intricately familiar with any location where you regularly host or sponsor events.  You should know the layout, the exit strategy during an emergency, and the best meeting locations during an emergency.  Be aware of any hazardous conditions on the premises and take steps to fix the hazard and alert any invitees to its presence.  Inspect high risk areas (kitchen, kid’s ministry areas, etc.) regularly to make sure they stay safe.  Know what equipment you have available to you (fire extinguishers, alarm systems, security systems, sprinkler systems, video cameras, etc.) and make sure it is functional and up to local and state code requirements (check with your local attorney, since requirements and regulations can vary drastically from county to county).  Ensure that you have proper access to adequate first aid kits and any AED units and that any emergency tools have proper batteries and are ready for use. Most of these requirements apply regardless of whether you own the building or are simply renting it.  If you are a tenant, check your lease agreement and the owner to make sure you are aware of any security issues and it is clear whether you or the landlord are responsible for things like maintaining security systems, paying for inspections, updating sprinkler systems, etc.

A second major area to address in any security policy is a chain of command.  Be clear as to who receives reports of suspicious situations and what action has to be taken each time a report is received.  Clearly identify which people on staff (or volunteers) are responsible for investigating, taking decisive action, or contacting authorities.  Have clear communication protocols and contacts, and ways for people to get in touch with the responsible personnel quickly and reliably.  If your church requires a team of hired or volunteer security guards, make sure you have adequate protection for the actions of the security guards themselves.  Generally, a property owner cannot contract away a duty to keep the premises safe, and the owner could potentially be liable for the negligent acts of a hired or volunteer security guard.  Make sure any services contract addresses this liability.  At the very least, check with your insurance company to make sure you have adequate coverage, particularly if you are using a team of armed and trained volunteers.

After any incident or report, make sure that you properly document all relevant details.  Get information from injured individuals as well as any witnesses.  Make sure to describe carefully any medical events that occurred and to document what the church provided in terms of responsive care.  These documents are not only vital to ensuring the church’s story remains consistent throughout the subsequent investigations, media releases, and potential lawsuits, but it helps create a body of information from which the church can learn for future events.  This is particularly true for incidents where no major damage is done, but a report is still made; these can operate as test-runs of your church’s policy and can be very valuable in determining where the weak spots are and where you need to re-visit and re-draft the policy.

Concealed Weapons in Church

As part of a security plan, your church may have members attending church with a concealed weapon.  Many church members may already conceal and carry in church as a means of personal or family protection.

As a church member, you should be aware of what the law says about carrying a weapon in church.[5]  Laws can change state by state, can change over time, and can also be fairly vague, so educating yourself can sometimes be a tricky and time-consuming task.  For example, Virginia has a law that makes it a class 4 misdemeanor for anyone to carry a gun (or other dangerous weapon) into a church worship service, unless they have a “good and sufficient reason.”[6]  On its face, this statute is ambiguous and could be interpreted a number of ways.  For example, one interpretation, as given by Virginia’s Attorney General in 2011, is that carrying a weapon for personal protection constitutes “good and sufficient reason” under Virginia’s law and would not violate the law, assuming that a church did not exercise its right to affirmatively ban firearms on their premises.[7]  Although the Virginia General Assembly is not necessarily bound by the AG’s interpretation,[8] it does give a pretty reliable guide for personal gun owners.

Church staff and pastors should also be familiar with their rights under law.  As a property owner, a church may ban firearms from their premises.  If the church allows, or even encourages, members to carry concealed firearms, it should be aware of how those weapons could be used in emergency situations.  If the church is utilizing a force of volunteer members who arm themselves with their conceal-and-carry permits, the policy should address training, use of firearms, emergency response procedures, and a chain of command.  Have a local attorney review any policy that implements use of firearms for the church’s protection to ensure it has adequate protections under local and state laws.  Also make sure that you speak with your church’s insurance agent before deploying any team of security guards to ensure that you have coverage available for any potentially negligent acts committed in the service of the church.

Conclusion

Thinking about a potentially lethal and violent attack on your church is not particularly pleasant, but preparing and implementing a well-crafted policy has the potential for a rewarding payout.  Preparing for potential threats can help reduce panic and prevent additional injuries if and when an incident does occur.  Encouraging the church around protecting the ministry can also help unite the members.  Preparing for the worst in people can help pastors move on and focus on improving and bringing out the best in their congregants.

Disclaimer: This memorandum is provided for general information purposes only and is not a substitute for legal advice particular to your situation. No recipients of this memo should act or refrain from acting solely on the basis of this memorandum without seeking professional legal counsel. Simms Showers LLP expressly disclaims all liability relating to actions taken or not taken based solely on the content of this memorandum.  Please contact Robert Showers or Daniel Hebda at djh@simmsshowerslaw.com for legal advice that will meet your specific needs.

[1] See http://www.churchlawandtax.com/blog/2015/june/violence-at-church.html.  Approximately 60 faith-based shooter deaths took place between 1999 and 2013, but over 70 faith-based violent deaths occurred in 2014 alone.

[2] 193 Cal. App. 3d at 509-10.  Motion for summary judgment was granted.

[3] Axelrod v. Cinemark Holdings, Inc., 65 F. Supp. 3d 1093, 1098–1100 (D. Colo. 2014).

[4]  Noting there were 31 mass shooting incidents between the Lopez and Axelrod incidents.

[5] In fact, just as a concealing-and-carrying citizen, you should already be familiar with all relevant laws on conceal-and-carry.

[6] Va. Code § 18.2-283.

[7] See opinion of Attorney General to The Honorable Mark L. Cole, Member, House of Delegates, 11-043, 2011 Va. AG LEXIS 23 (4/8/11).

[8] See Forest Hills Early Learning Ctr., Inc. v. Lukhard, 540 F. Supp. 1046 (E.D. Va. 1982), aff’d in part, vacated in part and remanded, 728 F.2d 230 (4th Cir. 1984) (decided under prior law).