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Neutralizing Force - How Far Can You Go?
By: Michael H Corcoran Ph.D
The Denver News reported on August 18, 2009, in Broomfield, CO, that, “Two college students who tackled a shoplifter at a Best Buy in Broomfield have been fired. (They) were fired Sunday, two weeks after they tried to stop a man fleeing the store at the FlatIron Marketplace.” "A gentleman came by us in a red shirt with a bunch of product in his hand. It was pretty obvious that he hadn't paid for it yet," (one of the students reported).
This employee/college student followed the thief out the door and without hesitation tackled him to the ground. As the struggle ensued, the other employee/college student ran over to help. Just when they thought they had the situation in hand, the thief pulled out a knife and began waving it wildly, actually cutting the store manager who had now run outside in an attempt to calm things down. The thief got away.
The San Francisco Chronicle reported on August 24, 2009, in San Mateo, CA, that “A former student at Hillsdale High School in San Mateo, armed with 10 pipe bombs, a chainsaw and a sword, planned to forge a path of destruction through his old campus Monday, authorities said. Authorities said the 17-year-old was able to detonate only two of the bombs - injuring no one - before teachers at the school tackled him and police arrived.
After the second blast, two teachers chased the youth into the arms of a third teacher, who tackled him in a bear hug and held him while other faculty members moved in, said the school's principal, Jeff Gilbert. Stevens, whose son attends Hillsdale High, pointed to the bravery of the school staffer who first tackled the suspect. ‘Thank God for that teacher,’ Stevens said.”
Now of course these are two different scenarios – one is obviously more potentially violent than the other. But the point to examine is, what should be the policy for neutralizing any kind of aggressive act, especially when the courts say, when looking at workplace violence, employers have a duty to protect others…which may include neutralizing force.
What does that mean? The Best Buy rule "...that employees who work in our stores are aware, and trained, on the standard operating procedures for dealing with shoplifting or theft -- which includes ceasing pursuit of a suspected shoplifter once they exit the store." is there to protect the safety of the employees and the patrons. But if such a rule is in place for shoplifting (and remember, he had a knife that he was not afraid to pull out and use) what would they do if someone threatened to harm someone? This is not an attack or a negative opinion about Best Buy, it is a question concerning what is the definition or what are the rules for businesses when it comes to trying to prevent workplace violence and they know the courts expect them to perhaps “neutralize force?” Is it the end result that determines the punishment? The teacher’s in Northern. California are hero’s as they stopped a real potential problem, but what if the suspect in that case would have got away and continued with his bombing spree and actually killed people? Or what if he had a “dead-man’s switch” and tackling him would have caused an immediate detonation? Would the teachers then be fired - if there was anything left of them – but certainly they or their families risk a lawsuit by others that were subsequently injured due to their action?
This is one of those areas that the only people who make out well are the attorneys – it’s just too convoluted and there is no really good, definitive answer. The points and merits of both sides of the issue in either example can be argued to ad nausea. But let’s examine what your options really are – and what is going to work best for your organization.
First and foremost, as always, what does your Workplace Violence Prevention policy say? Don’t have one you say – shame…it’s a must and you can just about be 100% guaranteed you will lose any lawsuit if you don’t have one in place. And the argument that it cannot be all inclusive doesn’t work either. It’s a simple reality that a workplace violence prevention policy is a plan and that plan is what gives everyone an idea of how to handle all incidents.
I have seen excellent policies written for companies on a single page, and others that are tremendous that fill a three ring binder. The key here is that it fits the concerns of a potentially violence incident occurring in your establishment. So it’s not the sample policy downloaded from the OSHA website, it’s the one you and your administrators argued and labored over for many hours – and it fits your needs.
It is based on the reality of a potentially violent act occurring to your people or others who may be visiting while engaging in any related business activity. It takes into account your demographics, what other similar businesses in the area are doing, what other similar businesses in the industry are doing, and most importantly, what is most practical and realistic for your business and your people. So it’s going to take a little research and a little time on your part to make sure it is what’s best for you (what would a reasonable person in like circumstances or environment expect), and it may not cover everything or be “perfect” but IT’S A PLAN. Hence, you didn’t ignore the possibilities and you did the best you could with the current knowledge available to you.
Okay, so now let’s get back to the “duty to protect others” issue. OSHA, since 1970, has had the rule that you must provide for a safe work environment, so this is nothing new…it’s just been more recently expanded to include all instances not just “accidents”. It’s obvious you are not going to be able to touch on every example or situation that might arise, especially if your employees have many points of contact with others (clients, customers, vendors, repair persons, etc.). And certainly no one expects you to act as I had to a lifetime ago when I was a young U.S. Secret Service Agent, jumping in front of guns or knifes to protect someone. So what is expected?
This is where we really have to depend on what the courts like to refer to as the “reasonable man test”. Just as I explained a couple of paragraphs before when answering the question of what you have to include in your policy, what you are to do in a potentially violent situation will be viewed similarly. Hence, the question to always ask yourself is what would a reasonable person be expected to do in this circumstance – taking in consideration the environment, others in the area, training, knowledge of the person(s) involved, known past history of similar events, etc., etc.?
A man comes into your business with a gun and says he wants to speak to the President…would a reasonable person tackle this person? On its face I am sure you immediately thought of course not and under almost all circumstances I am sure you would be right. But perhaps you have been trained in the skill of disarming someone like this – I know I have – and you not only feel very comfortable in disarming this person, have actually had occasion to do a very similar disarming and you know no one else is in the office right now. Would this change your opinion? Would you be held to a different expectation than someone with no such training? What if you elected to do nothing and the armed person shot someone leaving the office – could you have prevented this, hence, should you have attempted to disarm him?
Again, no easy answers. So fall back on what we know for sure. The four “duties” that the courts are constantly looking that the employers have met are:
- A duty to recognize problems
- A duty to act upon recognized problems
- A duty to educate others around you
- A duty to protect others – which may include neutralizing force.
So the key to success is to establish a good Workplace Violence Prevention policy, educate all your employees on what this thing called workplace violence is all about and their obligations to report potential problems, act upon a problem as soon as brought to your attention (remember the key here is did you know or should you have known and chose to do nothing) and then define how to protect others the best way possible for you and your organization. Should you have a response team, or simply make sure everyone knows how to dial 911? How can an employee get hold of a supervisor/manager 24/7? What safety/security features are you implementing or considering to help mitigate potential violence?
I know, it’s a bit more convoluted than you first thought – and I really didn’t give you a specific answer. But it boils down to you simply acting responsible, not ignoring the possibilities, doing a little homework, and using the “reasonable man” test. The important thing that the courts look at – you didn’t back away from this. You looked at it (or are in the process of looking at it) and you will deal with the issues in a reasonable way that is best for your organization both realistically and financially.
I help companies look at these issues all the time and it’s the old saying, “You can pay me now or pay me later.” It’s easier (and less expensive) to set up a policy and get in some training up front as opposed to waiting for a potential situation and then having to call someone like me to provide armed security while we sort out the details. Think about it – find an expert you believe in and can trust – and get started today. The life you save may be your own!
