The Illinois Shooter, David A. Lombardo, Fall 2023
Two men are sharing an indoor range shooting booth. The first finishes shooting, steps back and the second starts shooting. The first shooter attempts to unload his pistol but he has moved far enough away from the shooting line that he’s beyond the bulletproof side wall plates. He accidentally discharges the pistol, the bullet goes through three dry walls and shoots an instructor in both thighs severing arteries. The range had no Range Safety Officers, video surveillance or any other oversight.
A concealed carry instructor is doing one-on-one pistol malfunction exercises using snap caps. The student questions the instructor several times, “You’re sure the gun is unloaded?” The instructor just tells the student it’s fine, pull the trigger. The gun fires, the round goes through the wall and kills the facility owner on the other side of the wall. The facility provides no oversight and had positioned the table against the wall that separates the owner from the training.
An employee working a gun counter accidentally shoots himself in the hand while trying to sell the pistol to a customer. Seems cut-and-dry, he’s responsible for shooting himself. The jury did not see it that way. No protocols, no oversight and no emergency plan in place to get medical attention. He sued that store and the jury awarded him $1.1 million.
Over the past two years, as an expert witness and consultant, I have been associated with about 40 firearm and range cases all over the country. Eighteen were range-related, with fifteen the direct result of not having a safety management system (SMS) in place. Juries tend to be very critical of facilities that are prepared to deal with emergencies.
The objective of an SMS is to provide a structured management approach to control safety risks in operations. Effective safety management must consider the organization’s specific structure and processes related to safe operations. Clearly every gun store and indoor or outdoor shooting range should have an SMS but it also applies to individuals such as firearm instructors and range safety officers.
The concept of an SMS is based upon Palsgraf v. Long Island Railroad (1928) which is a fundamental of tort law. It means that a negligent conduct resulting in injury will result in a liability only if the company/individual could have reasonably foreseen that the conduct could result in an injury. Essentially you must look closely at what you do and ask what could potentially go wrong. Once you determine the issues then you have to decide what you can do to prevent it from happening and ultimately how will you deal with it when it does happen.
There are four fundamental elements of a negligence claim:
- The existence of a legal duty to the plaintiff;
- The defendant breached that duty;
- The plaintiff was injured; and,
- The defendant’s breach of duty caused the injury.
For instance, someone arrives at a gun store with a cased rifle that’s loaded. What can you do to prevent having it in the store loaded? Have a trained employee assigned to the door to inspect every firearm brought into the store to be assured it is unloaded.
How will you respond to a negligent shooting in the store that results in an injury? Employees have first responder training, there is an emergency medical bag located nearby, and there are prominent signs with 911 displayed, the local area emergency services telephone number and directions to the closest emergency room.
Some facilities will have Standard Operating Procedures, but they are commonly very limited and very specific about one or two issues. Gun store and gun range operators rarely have a comprehensive document that covers all the things that can go wrong and in court that does not play well with the jury.
Here are some issues I have encountered in the past two years. The lack of these have had an impact on jury awards.
When an accident does occur the immediate question that arises is, “What did you do to prepare for dealing with it?” All employees should have first responder training. There should be appropriate equipment readily available and employees should be trained to use it. Tourniquets, compresses, bandages, Automated External Defibrillator, first aid airway kit at a minimum. Emergency medical support contact telephone number with the facility’s address should be posted. Outdoor ranges, when available, should consider an agreement with a life flight helicopter service. They will come out and look at the property to determine if there is a safe landing spot. Setting up such an arrangement typically is free.
Every employee job category should have minimum hiring criteria, an outline of new employee post hire orientation and job specific specialized training for range safety officers, instructors, and firearm sales personnel. It is also important that employees receive periodic refresher training and training on changes pertaining to their area.
Gun Store Operating Procedures
The biggest issue is the handling of firearms that occur during the sales process. Firearms and ammunition should never be in close proximity to one another. There should be a posted sign where firearms for sale are located: No Ammunition in the Area.
There should be a clear policy when removing a firearm from a display rack the staff member must visibly check to assure it is unloaded. The policy should also include the staff member shows the customer the firearm is clear and the customer checks it again when it is handed over. The process reverses when returning the firearm.
One of the big concerns is where the customer points the firearm for dry firing purposes. There must be a designated area where no one can walk past and the wall itself is reinforced to stop a round should a negligent discharge occur.
Range Operating Procedures
This is one of the weakest areas of all. If you have people shooting, you must have oversight. It should start with assuring you are renting range time to someone who has sufficient experience to safely operate on a public range. Demonstrated firearm handling proficiency with a blue gun prior to going into the actual range is a good start as is questioning about experience.
I went undercover to a really nice indoor range and talked to two people behind the counter for half an hour. I never talked about shooting or my experience. After half an hour I said, “So I’d like to use your range.” We decided on a Glock 17, a Sig P320 and 100 rounds of ammo. They put it all in a traveling case, assigned me a shooting position on the range and pointed toward the range door. At no time did anyone even ask if I’d ever shot a gun. Worse, there was no range oversight at all. No RSOs, no video, nothing.
Ranges must have some form of surveillance – on duty Range Safety Officers or video surveillance provided someone is actually monitoring it. Renters must sign a waiver that your attorney has approved and it should list basic rules and protocols. Range floors must be regularly swept so there are no loose casings all over the floor.
I did a range inspection where management literally boasted they thoroughly sweep the floor twice a week. I walked in and it was like wearing roller blades; there were casings all over the floor. Finally, I’ve inspected a couple of ranges as a result of ricochet injuries. They had bullet divits in all the walls, ceiling, on the target carrier arms, floor and a few spots on the back wall.
An SMS would cover more information than these issues; it is designed to be a thorough operating handbook. These particular issues have resulted in accidents where people were injured and the facility has incurred substantial financial penalty as a result. Owners often discount the necessity for having an SMS saying it’s too complicated, too time consuming to write up and too expensive. If you think that is expensive and time-consuming try going to court as a defendant in a case where someone is injured at your facility.