August 3, 2018

New Idea for Active Shooter Incidents


It's time to consider whether crime victim compensation funds should be used to provide compensation to victims of mass shootings.

Photo Courtesy of Pixabay

Active shooter events in the U.S., unfortunately, are becoming more frequent — so much so that the Wall Street Journal reported this week that school districts are stepping up purchases of insurance against such events. The incidents raise many questions, and a persistent one in a legal context is, “Should anyone besides the shooter be held liable?”

According to the Federal Bureau of Investigation, between 2000 and 2017 there were 250 active shooter incidents. They resulted in 799 victim deaths and 1,418 wounded. Often, victims and their families understandably seek to hold someone other than the shooter accountable for failing to prevent these acts of criminality or terrorism. Although this type of litigation is always emotionally charged, the legal concepts of foreseeability, duty and reasonable care are the key factors used to determine liability.

In litigation, the concepts generally mean that allegations of liability must be supported by “expert” testimony. Such opinions are formed by using post-event knowledge to reverse engineer some preventative measure that would have allegedly prevented a particular incident.

Of course, the entity alleged to be liable is being judged for its pre-event actions and “failing to act reasonably” in the context of a threat environment that includes countless potential risks. Unlike a government, private entities must assess these risks without access to the intelligence that only governments possess and without a government’s resources and legal authority to implement an unlimited number of countermeasures. Governments are frequently held to be immune from similar lawsuits, so one can reasonably ask whether it is fair and just for private entities to be subject to a disparate legal standard.

See also: Active Shooter Scenarios

While there may be some cases where liability may properly attach, perhaps it’s time to consider whether concepts of crime victim compensation funds and victim compensation funds similar to that enacted after the 9/11 attacks should be used to provide compensation to victims of mass shootings.

Creating a similar fund for individual victims of active shooting incidents could address multiple challenges. Victims could gain compensation quickly and without the financial and emotional expense of litigation. Defendants who had no involvement in the shooting could be spared the costs of defending lawsuits. By authorizing a fund to accept claims over several years, individuals with latent physical injuries or illnesses that take time to develop also could be compensated.

Risk cannot be eliminated

Thinking about long-term solutions to address the issue of compensation for persons injured or killed by acts of mass violence is important. The real world is not like a post-event lawsuit that focuses only on whether a particular location could have been made “safer.” In the real world, the question is really whether the world itself can be made safer.

FBI data shows that the vast majority of active shootings 2000-2017 happened in locations that are open to public access:

  • Commerce (businesses, shopping malls), 42% of active shooting events
  • Schools (pre-K to 12, institutions of higher education), 21%
  • Open space, 14%
  • Government, 10%
  • Residences, 4.8%
  • Houses of worship, 4%
  • Healthcare facilities, 4%

If active shooter litigation continues to propagate, more and more security measures are bound to be imposed by either governmental or private entities. The risk will never be completely eliminated, but the way we live and interact with each other necessarily will. And the cost for doing so will have additional ripple effects that may have profound effects on all our daily and heretofore routine activities.

See also: The New Face of Preparedness  

There are no perfect solutions for the societal problem of shootings, but we ought to fix what we can. Sparing victims the burden of litigation and providing fund-based compensation seems to be a logical approach to consider.


About the Author

Jeffrey J. Ellis is a partner with Clyde & Co U.S. in New York. He focuses his practice on aviation, insurance, products liability, commercial, litigation and appellate matters.

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