On June 27, 2023, Freeh Sporkin & Sullivan LLP (FSS) hosted an event entitled “Active Shooter Threat Mitigation; Policy, Planning, and Response for Corporate Executives and Public Safety Leaders.” FSS Partners Jennifer Arbittier Williams and Lew Schiliro drew from their many years of collective experience as the former U.S. Attorney for the Eastern District of Pennsylvania and the former Assistant Director of the Federal Bureau of Investigation’s (FBI) New York Field Office, respectively. FSS also welcomed Jin Kim, a retired FBI Special Agent and subject matter expert in Active Shooter Threat Mitigation.
Why would a law firm host an event about active shooter threat mitigation? The answer is simple – An active shooter incident, like any crisis in the workplace, not only has a devastating human toll; it can also destroy an organization if not managed effectively from a legal perspective.
Whenever a crisis occurs within an organization, people look to place blame. Such is the case whether the crisis takes the form of a cyber incident like a Ransomware attack, a legal development like a government investigation, an environmental event that shuts down an organization like a destructive hurricane, a reputational crisis from a high-profile scandal, or a physical incident like active shooter. All crises tend to cause organizational fall-out. Companies often fire top executives – fairly or not – in an effort to demonstrate that someone is being held accountable for the losses. And these days, almost every incident is followed by a lawsuit for millions if not billions of dollars.
Yet, all too often, security directors find that their requests for security improvements and assessments are declined because security is not profit-generating for a business. It is difficult for organizations to justify increased spending or even time devoted to risks that will bring in no money and seem far-fetched.
However, if an organization recognizes that crisis management is something that could prevent the death of the organization, the firing of its leaders, or a debilitating lawsuit, the cost-benefit analysis tends to shift.
Fortunately, as FSS demonstrated during its presentation, the actions an organization can take to protect itself from liability are the very same actions that will best protect its employees, clients, and customers. This is because organizational liability post-crisis will largely depend on whether the crisis could reasonably have been predicted and prevented, and whether the resulting harm could have been mitigated.
Put another way, effective crisis management requires action before, during, and after a crisis occurs. Before a crisis, an organization should perform a risk assessment and create (and practice) a crisis response plan. During a crisis, the organization must execute the crisis response plan, act quickly and effectively, work seamlessly with law enforcement, and manage messaging well. And after a crisis, effective crisis management requires a careful and credible internal investigation, followed by litigation management.
To those executives who might seek to avoid risk assessment and management for fear of signaling the presence of safety concerns, this organizational-head-in-the-sand approach is a dangerous one. First and foremost, an organization cannot keep its people safe if the leaders don’t know about the risks and vulnerabilities. In addition, liability post-crisis will depend on what the organization should have known about its risks and vulnerabilities; willful blindness won’t provide any protection whatsoever.
Further, executives can take comfort in the fact that a pre-crisis risk assessment won’t send an alarming message to the extent the documents are protected from disclosure by the Attorney Client and Work Product Privileges. In other words, if an organization retains a law firm like FSS to provide legal advice in the form of a risk assessment and crisis management, the organization can learn about and mitigate its risks and vulnerabilities before a crisis occurs, thereby protecting its people while still providing liability protection for the organization. Further, a law firm skilled in crisis management can guide an organization through the crisis itself and beyond, handling all aspects from public communications, to the post-event investigation, through any resulting litigation.
FSS is a boutique law firm uniquely situated and experienced in this arena. Its professionals all have high-level law enforcement backgrounds (including former U.S. Attorneys and Assistant U.S. Attorneys, a former federal judge, a former Deputy Director of the FBI and Delaware Secretary of Safety and Homeland Security, a former Director of the NJ Division of Criminal Justice, and former U.S. Military Special Operations Forces Veterans). And they use this expertise to advise organizations and executives about all aspects of crisis management, including:
• Performing an effective risk assessment;
• Creating and testing a crisis response plan;
• Internal and external messaging during a crisis;
• Interacting with law enforcement during and after a crisis;
• Conducting a post-incident investigation in an effort to mitigate liability; and
• Operating under the protection of the attorney-client privilege.
If you are interested in learning more about Crisis Management, Enterprise Risk Management, or Active Shooter Threat Mitigation, please reach out to Jennifer Williams at JAWilliams@FSSLaw.com or Lew Schiliro at Schiliro@FSSLaw.com.