Safety is increasingly on nonprofit leaders’ minds. It takes little imagination, unfortunately, to picture a scene of violence and turmoil at a religious assembly, public gatherings, or other program activity.
This article is third in our blog series addressing related safety considerations from a legal and practical perspective. Our first two blogs covered risks and related preventive measures: Keeping Church Safe and A Sanctuary Secured: 7 Essential Steps.
The following sections shift the focus to response and management of precipitating threats and disturbances – namely, how should leaders handle these situations proactively and effectively? What actions are legally permissible, reasonably appropriate, and mitigate liability? The answers range from self-reliance to formal court action (such as state-specific restraining orders), and they could include issuing no trespassing notices and calling the police too. For purposes of this risk management series, related references to churches encompass houses of worship broadly as including synagogues, mosques, and temples.
Precipitating Issues
Incidents of concern may involve the following: harassment of members, attendees, or leaders; interference or disruption of worship services or other program activities; vandalism; arson; assaults; or weapons-related attacks. Such serious problems may arise from individuals suffering from mental health difficulties, conflicts involving domestic violence, alcohol or drug influence, personal grudges that escalate into vendettas, and a myriad of other scenarios. Persons who pose threats may be disgruntled current employees, former employees, volunteers, worship participants, or even members of the general public who disagree with a religious organization’s teachings.
Problematic situations may involve relatively minimal disruptions that are hopefully resolvable without any personal harm or property damage, but they can certainly cause concern and perhaps even alarm. Incidents could also intensify quickly, with potentially devastating consequences. These types of threats and disturbances also may arise during secular nonprofit program activities, during conferences, charitable events, and other gatherings. Sometimes they are isolated situations, and other times they may involve continued problems – such as if a person makes repeated threats but doesn’t necessarily follow through. What should responsible nonprofit leaders do in the face of such potentially serious problems?
Danger! Call 911
If a serious risk of imminent harm arises, call the police! Do not wait, do not delay. 911 is for emergencies, and they do arise. Some potential situations could involve an active shooter who is spotted on the premises, someone who is wielding a knife or other dangerous weapon, or a person seeking to start a fistfight.
As a corollary principle, it may be advisable to call the police in advance of a potentially dangerous situation. Examples could include a phone call from a person threatening to come to the property and harm others, or a person who reports that someone else is threatening to do so. It is quite acceptable, and often extremely prudent, to contact local law enforcement and ask that the police come out to help maintain safety.
Issue a No Trespass Notice
Remember that church property is private property. The same principle applies to other nonprofit real estate. An organization may wish to open its doors wide and welcome people to its programs, but the organization still has the legal right to decline entry – especially if those refused access appear dangerous or otherwise threatening. Consequently, in addition or alternatively to other options explained here, a church or other nonprofit may decide unilaterally to issue a “no trespass” notice such as to a person threatening to cause problems or to a person who has caused problems in the past.
A “no trespass” notice should be in writing, issued unilaterally by the property owner (or its attorney or other representative) and provide clear instruction. Such instruction could identify that the recipient is never allowed on the property (such as if considered highly dangerous), not allowed during certain time period (e.g., while the recipient’s spouse is also on the property, such as in connection with domestic violence issues), or not allowed until after a specified date (e.g., not until after some event occurs). These prohibitions should be worded as clearly as possible.
A no trespass notice could be helpful when used in tandem with a request for help from local law enforcement. For example, a police officer called out to help maintain the peace can review the no trespass order’s specific information, assist with making sure that no harm results, and possibly even arrest the recipient for trespass if the notice is violated. Such notice thus provides specific boundaries for all to see and uphold.
On the other hand, a no trespass notice may aggravate the situation or otherwise stir up trouble. For example, consider a person who is frustrated with a conflict and considering whether and how to pursue it. The no trespass notice may remind the person of such trouble, deepen resentment or other negative feelings, and lead the person to take concrete steps to cause harm. Stated differently, a no trespass notice may fan the flames of a conflict that could otherwise possibly peter out.
Substantial discernment may be needed to decide whether to proceed with a no trespass notice. Additional legal requirements may apply too, depending on state law, for subsequent criminal prosecution or potential civil liability against any trespasser. Generally speaking, it is of utmost importance that the subject property be identified, along with any pertinent specific information (e.g., including a yard, parking lot, green space). It is also vital to identify the recipient accurately and to make sure that the no trespass order is actually delivered to such person.
Seek a Court Restraining Order
Similar to a no trespass notice, but potentially with greater protection and other benefits, a court-issued restraining order may become a critical option to consider – especially in situations involving ongoing threats or other tensions indicating that violence likely may result. In Illinois and many other states, such restraining orders are known as “workplace orders of protection”; they may also be called workplace violence restraining orders, harassment protection orders, or no-contact orders. And while many such laws include “workplace” in their names, they are often more broadly available such as for religious gatherings, other events, and situations far beyond only the “workplace.”
States with such laws include Arizona, Georgia, Indiana, Minnesota, and many more. More specific guidance should be sought for a particular location, and likely with local legal counsel to pursue such matter in the location’s court jurisdiction as a state law matter. Some of these laws are squarely aimed at helping religious organizations and other nonprofits to avoid tragically violent situations as have all too often occurred in recent years.
Seek Relief Illinois’ Workplace Order of Protection (or Other State) Law
Using Illinois’ workplace order of protection law as an example here, a plaintiff (i.e., a nonprofit organization) must initiate a court action and plead (i.e., allege) that the plaintiff faces a “credible threat” of violence, harassment, or other similar behavior at the plaintiff’s property from the identified defendant. Random threats that lack any indicia of physical harm against church staff, volunteers, or attenders are not sufficient. The pleading must give rise to an objectively reasonable belief that harmful violence will occur at the plaintiff’s property. Some examples of sufficient pleadings include prior acts of actual violence, a reported threat that a defendant will bomb the plaintiff’s property, or known awareness that the defendant has a gun and has expressed an intention to shoot it at one or more people while on the property. Supporting evidence may be quite important, such as social media postings describing the threatened violence or an affidavit from an individual describing prior acts of violence and why new acts of violence are likely – absent court intervention.
Notably, Illinois’ law applies only to organizations with at least fifteen “employees.” But the term “employees” is defined very expansively to include (a) paid workers, (b) directors of the board, (c) independent contractors, and even (d) volunteers. Many Illinois nonprofits therefore may qualify as an “employer” based on volunteers, board members, etc., even if they only have one or two paid staff.
Follow the Court Process
In Illinois and many other states, an organization must begin by filing a special emergency court petition in civil court. The petition may require a supporting affidavit reflecting essential information, such as (in Illinois) that (a) it is an “employer” (b) it has “employees,” and (c) it faces a “credible threat of violence” at the workplace. For any such petition, the described threats should be sufficiently specific that a judge (i.e., a stranger to the situation) could easily discern that people are realistically in danger of being seriously harmed.
Additionally, the petition should specifically identify the property where the alleged offender is not to be allowed access, such as by address and other description (e.g., “the worship facility located at ________”) The petition may include specific types if contact to be prohibited (e.g., no phone calls or emails) as well as the persons covered, such as the plaintiff’s staff members or board of directors.
In Illinois, the petition need not be sent to the person who allegedly may commit the serious harm, identified as the respondent. Instead, the plaintiff organization may take its petition and supporting affidavit straight to a county courthouse, for immediate hearing. The organization should be represented by an attorney, and it should have a witness available who can testify about such credible risk of harm.
Upon granting of relief, an Illinois court will issue an emergency order that is good temporarily (for 14 to 21 days) and provides for notification to the police department. That is a pivotal remedy, allowing the police to step up with attentiveness. Only then will the respondent be officially notified of the court order, with accompanying specific directions to stay away from the facility and to cease any violence or threats of violence. Also notably, a respondent who violates the court order is subject to arrest, contempt of court, and incarceration. Such potential consequences should provide strong incentive for a respondent to comply strictly with the order of protection.
The Illinois court will later convene a second hearing, at which the respondent may attend and present countervailing evidence and argument for why the order of protection should not continue. If the plaintiff organization is successful, the restraining order will be extended to up to one year as a “plenary” order (and with similar one-year extensions available thereafter). Similar criminal sanctions may be imposed against a respondent who is caught violating a plenary order of protection.
Self-Reliance?
The measures described above may be quite effective for handling threatened harm and other serious disruptions. But what if a religious organization or other nonprofit wants to handle such matters itself, instead of or in addition to such measures? Doing so is not necessarily unreasonable, since the police may or may not arrive at the scene in time, a recipient of a no trespassing order may or may not honor it, and a court-issued restraining order is (after all) only a piece of paper (albeit a compelling one, with the force of law squarely behind it). In such situations, the organization’s leaders should carefully consider associated legal considerations and related risks.
For example, how about using staff security personnel? That may be possible, but the organization may face liability for any resulting harm to others caused by such employees, as well as liability for any on-the-job employee injuries (although typically covered through workers compensation insurance). Checking with the organization’s insurance provider is thus essential, to make sure that sufficient coverage exists. Note too that many state laws impose professional regulatory rules on people who hold themselves as security professionals. Further steps may therefore be needed for related legal compliance.
What about volunteer security personnel? The organization likewise may face liability for any resulting harm caused by them, and it may not simply disclaim such liability. Rather, the law will generally hold an organization liable for volunteers who act under its oversight and at its direction, as its “agents.”
With both paid and volunteer personnel who cause harm to others (whether intended or unintended), related legal questions may arise with the context of “tort” (i.e., civil liability) legal analysis, involving issues of whether harm occurred, whether it was “foreseeable,” and whether the organizational agent’s actions (or inaction) “proximately caused” such harm. Questions of foreseeability and proximate cause generally raise the issue of what an “objectively reasonable person” would do in similar situations. Individual liability may result as well, especially for any criminal misconduct, tortious gross negligence, or tortious reckless misconduct.
What’s the difference between permissible actions, such as self-defense or defense of others, and impermissible actions giving rise to individual civil or criminal liability? This is an important question, no doubt! The answer depends in part on what is objectively “reasonable.” For example, in connection with self-defense, the Illinois Criminal Code makes the following distinction about justifiable force:
A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other's imminent use of unlawful force.
However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another, or the commission of a forcible felony.
As amply demonstrated by news stories about alleged police misconduct resulting in deaths, this legal standard is extremely challenging - even for trained law enforcement officers – when split-second decisions must be made. The question of whether an organization should authorize any staff to engage in potentially lethal acts is thus extremely serious. Based on these considerations, an organization’s risk management strategy may be best effectuated through an outside professional security company.
Remember Preventive Measures
Preventive measures should always remain paramount for any effective risk management strategy. Whether addressing these issues preventively or reactively, such as after an act of violence (or threat), a great starting point is for an organization’s leaders to identify, understand, and address its own risks – based on its programs, location, staffing, and other factors. An assessment through a safety and security professional may be helpful, followed by development (or modification) of an organizational safety policy and related protocols. One related protocol could be to install video cameras and use them for surveillance, with related safeguards as addressed in our law firm’s article addressing video camera footage. Additionally, and as noted above, review of an organization’s liability and other insurance may be beneficial, such as through a consultation with its insurance provider. Many insurance carriers are quite willing to provide related resources, to promote safety and to minimize risks. Some or all of these steps may prove quite important for effectively guarding a religious organization’s or other nonprofit’s activities, its staff, volunteers, members, and the general public.
