Shortly after last December’s shooting at Clackamas Town Center in suburban Portland, I watched an interview of two people who were in the mall at the time of the attack. One was a female shopper, the other was a young male employee working behind the Lancome counter in Macy’s when the shots were fired.
During the interview, they described how they reacted to the gun shots. First came the “bangs” or “loud pops.” Then all hell broke loose. Both immediately recognized the sounds as gunshot, coming from inside the mall, outside the Macy’s entrance and within sight of the counter. The shopper tried to hide but there was nowhere nearby. She tried to climb over the counter, but was unable to. Quick to react, and on previously unrecognized instinct, the employee helped the woman over the counter and the two of them hid there until it was safe.
The reporter asked the employee what he was thinking when he heard the shots. Apparently, all this salesman could think about was helping customers hide. Impressed with the young man’s focus and quick reaction, the reporter asked if he had received training. To my surprise, the employee said no. Consider the implications of his response. Macy’s doesn’t train their employees for events like this? Shouldn’t there be some sort of training of employees for this type of occurrence? Doesn’t Macy’s have potential liability for failing to train their employees? Finally, what potential liability would Macy’s face by taking on the responsibility of training their employees, and failing to do so competently.
When I start asking questions, I usually do a radio show…
On January 25, 2013 we first aired our Guns, Guards and Alarms (click to listen) show to a very large audience. My panel of guests included Brian Cescolini (Co-CEO of Universal Protection Services, the fifth largest private security firm in the U.S.), David Mistick (President of Circumspex and a noted author and expert on disaster preparedness), and James Lauria (noted educator, author, and speaker on military and police training and public safety). Intervening events between the Oregon shooting and the radio show prompted me to incorporate a broader range of topics including prohibition of firearms in malls, training of mall security and tenants, and the use of armed guards in malls.
The day before the show, I received a comment on LinkedIn requesting that we discuss the advisability of posting a “No Guns” sign at mall entrances. What surprised me about this discussion were the numerous things mall owners should consider before deciding whether or not to post a sign.
My knee-jerk reaction was, “of course!” I don’t want people walking around a mall with guns strapped to their hips like the Wild West, then I’d never walk into a mall unless I had a gun strapped to my own hip. I see myself walking into the Mission Viejo Apple Store, wearing black with a knight chess piece emblazoned on my calling card, singing “Paladin, Paladin, where do you roam…” (Google it!) Fortunately, with the aid of my guests I saw the error of my ways. Wake up, Howard! Why would you advertise to a criminal that no one else would be carrying a gun in the mall but the criminal?
Jim pointed out that the theater in Aurora, Colorado had a “no guns” policy and the only one in the theater with a gun was James Homes, the shooter. Then Brian mentioned a situation a week earlier, where a student pulled a gun on another student at a college which banned guns on campus. He suggested a landlord might consider posting a “no guns” sign, though as nothing more than a disclaimer and notice of the landlord’s policy on them. It’s not unusual for liquor stores or offices to post similar signs, he noted.
What about the liability?
Being an attorney, I just can’t ignore the issue of liability. Are landlords more likely to be liable for death or injuries from gun violence if they post a “no guns” sign? What if they failed to post a “no guns” sign? This really poses a no win situation for the landlord. The only thing the landlord can be assured of is that they’ll be sued no matter what.
While liability is a major concern, it is clear the landlord’s focus must be on the practical safety of tenants, the tenant’s customers and employees, as well as the employees of the landlord and their agents. The landlord should investigate and consider the latest research, up-to-date training and strategies on mall safety techniques. Coordination and consultation with the local police and their insurance carrier should be a starting point. Fully documenting the landlord’s efforts to reach its best informed decision is crucial. Other than insurance, this is the best way that I can think of to minimize the landlord’s liability.
Remember, you can’t always prevent a lawsuit, but you certainly can do your best to avoid liability.
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