Why active assailant indemnity coverage is a must

No organization can afford to go without active assailant insurance coverage these days. By mid-July 2023, there were more than 400 reported mass shootings in the United States, the earliest point in the calendar year this deadly milestone was reached since 2013.

In revealing just how widespread liability is and how far it can reach, following a 2022 bench trial, a district court judge ordered the United States government to pay $230 million in damages to the survivors and families of 26 people killed in the November 5, 2017, mass shooting at the First Baptist Church in Sutherland Springs, Texas. The gunman, a former member of the Air Force, died of a self-inflicted gunshot wound following the massacre.

In the case styled as Holcombe et al. v. United States of America, Judge Xavier Rodriguez of the U.S. District Court for the Western District of Texas found that the case was “unprecedented in kind and scope.” Judge Rodriguez ordered the federal government to compensate the victims and survivors of the attack for their “pain and suffering, mental anguish, disfigurement, impairment and loss of companionship.”

In rendering its verdict, the trial court found that the government had failed to exercise reasonable care in its undertaking to submit the shooter’s criminal history to the FBI. [Note: The Department of Justice appealed the ruling to the Fifth District Court of Appeal. In April 2023, it was announced the parties had reached a tentative settlement, parts of which needed to be approved by the appellate court.]

The FBI’s research on active shooters

According to the FBI: “An active shooter is an individual actively engaged in killing or attempting to kill people in a populated area, and recent active shooter incidents have underscored the need for a coordinated response by law enforcement and others to save lives.”

In their 2023 publication entitled “Active Shooter Incidents in the United States in 2022,” the FBI reports that the number of active shooter episodes increased by a whopping 66.7% during 2022 in comparison to their 2018 statistics.

The term “active shooter” is defined by the FBI as: one or more individuals actively engaged in killing or attempting to kill people in a populated area. Implicit in this definition is the shooter’s use of a firearm. The active aspect of the definition inherently implies the ongoing nature of an incident and thus the potential for a response to affect the outcome.

When are active shooter incidents most likely to occur?

According to the FBI, May 2022 was the month that had the most active shooter incidents, a total of nine. The summer months of June, July and August 2022 came in tied for second place with a total of six incidents during each month.

Conversely, the months of January and September 2022 saw the least number of active shooter episodes with one incident reported for each month. December 2022 was the second lowest month with only two active shooter incidents occurring.

Dispelling the myth that “It can’t happen here”

In conducting their study, the FBI evaluated 50 active shooter incidents that occurred across the United States in 2022. Almost one-third of these 50 active assailant episodes (a total of 13) met the federal definition for a “mass killing,” which is defined as three or more killings in a single incident.

The FBI reports that the “deadliest” mass shooting episodes occurred in different states, running afoul of the thought that an active shooter incident and even a mass shooting “can’t happen here.”

The most destructive mass shootings in 2022 occurred in the following states and locations:

-Illinois. Seven people were killed and 48 wounded along Central Avenue in Highland Park during a Fourth of July event.

-Texas. 21 people were killed at 17 wounded at Robb Elementary School in Uvalde.

-Colorado. Five people were killed and 28 wounded at Club Q in Colorado Springs.

-New York. 10 people were killed and three wounded at Tops Friendly Markets in Buffalo.

These statistics illustrate that virtually no state is safe from an active shooter episode, even a mass shooting, from erupting.

Whether at a school, a parade, a supermarket, a night club, or even a church, the myth that “it can’t happen here (or to me)” must be set aside. It lends a false sense of security that a particular location is or can be safe from destructive violence from erupting.

The increasing incidents of active shooters combined with the astronomical cost of these tragedies, including but not limited to litigation expenses necessary to defend these lawsuits through appeal, reveals that no organization can go without active assailant insurance coverage.

Kathleen M. Bonczyk, Esq. has represented insurers and insureds in various breach of contract, declaratory judgment and bad faith actions since 2004. She was named 2022’s pro bono attorney of the year by Community Legal Services of mid-Florida, and devotes her time to mitigating the risk of school and workplace violence through her organization, the Workplace Violence Prevention Institute. Contact her at bonczyklaw@gmail.com.

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