When a shooting resulting in injuries occurs on your property, time is of the essence. You must assume the injuries will be significant, if not deadly. The time to start planning your defense is before the shooting even takes place.
Like any good civil defense attorney, I believe you always need to be prepared. Don’t wait until a catastrophic incident takes place to figure out a plan – do it now. That means know how you will respond to an incident ahead of time. After an incident takes place is not the time to figure out how you are going to respond.
Since it’s the holidays and I’m in the giving mood, here are my top 10 tips for how to respond to a shooting at your store, restaurant or hotel. Use these tips to develop your own action plan.
#10 Immediate notification to legal/risk management: Shootings can occur at any hour of the day. Have an internal system in place that ensures immediate notification to the legal/risk management department when any serious security event takes place, especially a shooting. It is not enough that the head of security is contacted, be sure the legal/risk management department is as well.
#9 Immediate scene inspection: Once a shooting occurs, the sooner the scene is inspected the better. Someone from the in-house security department can handle this investigation but the person should know what information is important. Be sure the person performing the immediate inspection gets the names of all employees working at the time of the shooting, the employees who had any interaction with the shooters or victims before or after the shooting, the names of any vendors on the scene and their involvement and the names of all police officers who were at the scene after the incident.
#8 Secure and preserve surveillance footage: If your property had any type of video surveillance system, preserve the footage and then make copies. It does not matter if the actual shooting was not caught by a camera, preserve the footage. After it is preserved, watch it. If there are any problems with the recording or footage, figure out why quickly and see if a better recording can be made. How much footage should be preserved is subjective but considering the type of incident, it would be good to have at least one hour before and one hour after the incident (more if possible). As a side note, document the type of surveillance equipment used, including number of screens, DVRs, etc. This is important information and something people can easily forget within a few years.
#7 Interview employees: Interviews of employees who were working at the time of the shooting do not need to be immediate, but they should be within at least a few days of the shooting. The biggest concern with this step is preserving the privilege. Within days of the shooting, there is no way to know where the case will take you, or if there will even be a case. You can’t make assumptions about what is and is not important and you do not know what information is potentially harmful. Chances are most, if not all, of the employee witnesses will not be within the control group so if statements are taken or summaries of statements are prepared, those are likely discoverable. One way to try and prevent this is to have an attorney do the interviews because attorneys will be more careful with questions and more careful with how summaries are prepared. Another alternative is to have an attorney advise the investigator on what questions to ask. This will not keep the information privileged but it will help ensure better questions are asked of the witnesses.
#6 Photograph and videotape the area: It is a known fact that memories fade over time. We may not be able to prevent this from happening, but we can collect information that will refresh memories in the future. Chances are that by the time company employees are deposed, it will be years since the shooting – especially if the case is stayed due to criminal charges against the shooter. Despite the years passing, company employees will be asked specific questions about the surveillance system, the property layout and where specific events took place. Taking photographs and video of the relevant areas can be used to refresh a witnesses’ memory and help get more accurate testimony. Warning – be sure to look closely at what will be in view of the camera. Do not photograph other customers.
#5 Collect policies and procedures: One of the most difficult things to do during written discovery is find copies of policies, procedures and manuals that were in effect years before. While you are at the property, take some time to collect and copy all of the written policies, procedures and manuals that could be relevant to future litigation. Speak with the manager to be sure you have everything.
#4 Read the relevant policies and procedures: Once you have a copy of the relevant policies, procedures and manuals, be sure to read them. Check for any sections that could create a problem. It is better to know about problems with your defense as early as possible.
#3 Speak with the police and get their reports: Some of the most important documents in a shooting case are the police reports. These reports will provide detailed information about witnesses, the scene and the ongoing investigation. There could be photographs, witness statements, evidence lists, forensic evidence, arrest reports, autopsy reports, rap sheets, and contact information for many potential witnesses. The police reports will be the foundation of your own investigation and should be obtained as quickly as possible. Once you have the reports, see if counsel can speak with the investigating officers because those witnesses will be key in the future and not everything they know is in the reports.
#2 Perform a criminal analysis of the property and neighborhood: In every state in the country, the key to liability for the criminal act of a third party on commercial property is reasonable foreseeability. This can be shown with a formal criminal analysis of the neighborhood obtained from the local police department. However, do not forget to perform your own internal analysis as well. Review what internal reports you have regarding crime and find out what store management knew about crime on the property and in the neighborhood.
#1 Retain counsel immediately!: A shooting with injured customers is not the time to save money on defense costs. The quicker you have defense counsel retained, the quicker you have protection over the evidence. The early retention of counsel also helps provide a stronger defense for the future, especially when the victim retains counsel quickly.
All you have to do now is print this out, tack it to your wall, and hope it is never needed. Good luck! If you have any suggestions or recommendations of other helpful hints, please leave a comment.