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.

Emergency Response
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.

Employees
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.

SAFER USA Consulting Group
Tel: 815-741-3474 | Fax: 815-741-3479
Shorewood, IL 60404 USA
Email: david@guntestimony.com |  Net: www.guntestimony.com

Safety Management In A Retail Gun Store Environment

When training new Range Safety Officers I always ask the question, “What is the first priority of a shooting range?” The overwhelming majority of respondents say “Safety First” to which I respond I have a system that will guarantee no range will suffer a shooting accident: Cease all shooting activity!

Whether you’re operating a shooting range or a gun store with no live fire capability the first priority should be to conduct the daily operation in a manner as safe as possible that is conducive to running a business. It is that “running a business” part that makes things a bit more challenging.

Conventional wisdom tells us that safety is the responsibility of the operator. While that is in its essence true it is not that simple. Experience has shown operating in an environment that does not actively support an institutionalized safety doctrine can over time degrade the emphasis on individual safe practices. It is therefore essential that even a gun store without a live fire range still develop and strictly adhere to a safety management system (SMS) to protect its customers and staff.

System Approach to Safety Management

It is essential that a gun store develops, publishes and gives every employee a Standard Operating Procedures (SOP) manual that covers all aspects of the operation. This not only provides a blueprint for day-to-day operations but in the event of litigation it shows that management is serious about a safe, organized operation. An integral and critical component of the SOP should be an SMS.

An SMS consists of four components that must be addressed: Safety Policy, Safety Risk Management, Safety Assurance and Safety Promotion.

Safety Policy is a written statement by an employer stating the company’s commitment for the protection of the health and safety of employees and the public. Every facility that stores, uses or sells firearms should have an SOP that includes specific procedures for the safe handling of firearms and ammunition.

For instance, in a gun store it would include a policy with respect to keeping ammunition separated from the firearms on display. There is no justification for live ammunition to be in proximity to firearms in an environment where the firearms will never be live-fired but likely to be dry-fired as a matter of a routine sales operation. If a customer wants to feel how a firearm feeds ammunition there are high quality inert snap caps readily available for that purpose.

The primary issues that should be of concern when allowing a customer to handle a firearm are:

1. A policy that every customer who is going to handle a firearm should be given a safe handling briefing before passing the actual firearm.

2. The firearm must be unloaded with the action open prior to passing it to a customer.

3. The staff member must visually check it followed by the recipient visually checking it after handoff.

4. The staff member designates a safe zone where the firearm must remain pointed at all times. The zone should not be accessible to customers.

5. The finger must be kept off the trigger until ready to dry fire the firearm.

6. If snap caps or other inert rounds are being used the instructor must identify each round inserted in the firearm to avoid a negligent discharge.

Safety Risk Management is the second component. It is a key component of a successful safety management system which requires an assessment of the risks associated with identified hazards, and the development and implementation of effective mitigation. There is a significant difference in safety expectation when working with experienced nationally ranked competitive shooters and an unknown customer who walks into a gun store. Each situation must be evaluated and the level of oversight must reflect it.

Safety Assurance is the means to demonstrate that organizational arrangements and processes for safety achievement are properly applied and continue to achieve their intended objectives. Safety Assurance should be intrusive and enquiring and not simply an administrative box ticking exercise. In a gun store it may take the form of video surveillance that observes the way staff is dealing with safety on a daily basis. On a shooting range the better choice is likely to be a trained NRA certified Range Safety Officer.

Finally, Safety Promotion is a set of means, processes and procedures that are used to develop, sustain and improve safety through awareness raising and changing behaviors. All new hire staff members should be given a formal training program covering safety issues as well as other administrative issues. An integral part of a safety program would be recurrent training for all staff members.