A New Technique In Negligent Security Cases: Violent Crime Analysis
By Peter A. Smerick, vice president, The Academy Group
Banks have responded to customer safety concerns and the risk of litigation associated with crimes at automated teller machines (ATMs), night depositories and within their institutions by making facilities safer.
However, violence has not gone away, and it probably won't in the foreseeable future. It continues to make headlines, and today, banks face lawsuits claiming inadequate security not only from crime victims, but from people remotely affected by violent crimes.
One weapon banks, as well as other affected organizations, can fight back with is Violent Crime Analysis - an investigation of why the criminal acted.
Inadequate Security Charges
In many cases involving bank facilities, charges of inadequate security have been unsuccessful because financial institutions learned years ago to deal with the three " L's" of security: location, lights and landscaping. Surveillance and transaction cameras now are the norm.
However, in cases when an ATM or the bank itself has to be located in or is adjacent to an area fraught with criminal activity, litigation problems still abound. Plaintiff's security experts often cite police statistics to prove that a crime was foreseeable because other crimes occurred in the area. They claim that the criminal could have been deterred if additional security measures had been employed.
When violence is involved, this simplistic claim can convince a jury that security was inadequate, and they should compensate the plaintiff for pain, suffering and post-incident trauma. Although crime statistics are meaningless for the vast majority of cases, they are useful in cases when a pattern of similar crimes can be pinpointed, such as purse snatchings from a particular parking lot, and when the crimes occur within a recognizable time period.
Many security consultants adhere to the "Barrier Concept" of security - the greater the layers of security, the greater the deterrence against the criminal. In reality, this type of thinking may be effective against a criminal unwilling to take risks or who needs the familiarity of a location close to work or home to act. But generally barriers are ineffective against a criminal who either acts impulsively or just the opposite - has a plan of action.
Security experts frequently talk about "the criminal" in general terms as if all criminals were alike. They are not. Rarely do experts examine the actual criminal's behavior. But before determining what may have deterred or prevented a crime, one must understand the nature of the crime itself, the victim and the criminal. By studying these three factors, one can form an opinion based on the motivation of the criminal, his experience level as a criminal and his degree of criminal sophistication.
For example, one type of offender may act impulsively without thinking about the consequences, while another may act in a careful and calculating manner. The motivation for the crime might be rape, robbery, revenge or something else. There could be several motives for one crime. And even though a person might have a lot of criminal experience, that doesn't mean the offender is good at what he or she does.
Criminal sophistication refers to an offender's skill at a particular crime. Indications of skill include how well the crime is planned, whether or not effort is made to conceal identity and whether an escape plan is developed. It also is important to determine what risks the offender was willing to take, because this factor has a direct impact on how well the crime could be deterred.
All of these points are considered and can be documented through a Violent Crime Analysis.
Also considered during such an analysis is the interaction between the victim and the offender during the crime. In cases where no one is arrested for the crime, the victim's testimony about the behavior of the offender offers insight as to what, if anything, may have prevented the crime. In cases where someone has been identified as the criminal, studying his or her previous crimes is important because past behavior is frequently an indicator of future behavior. Investigative reports, crime scene photographs and sketches, demographics, information about the victim and interview results are analyzed during the process of crime scene reconstruction for Violent Crime Analysis.
The following story illustrates the process of such an analysis:
Facts of the Case:
About 9:35 p.m., Nov. 15, 1996, a 35-year-old female decided to withdraw money from her account at an ATM. The ATM was attached to a four-story detached building located at the intersection of two, heavily traveled, well-illuminated intersections. The bank's parking lot was illuminated with mercury vapor lights.
The woman parked under a streetlight about 30 feet from the ATM. Before she could exit her vehicle, another car containing two young men pulled up alongside. (The car was observed entering the parking lot by two young boys who were roller blading).
The driver of the offenders' car ordered the woman out of her car and indicated he had a gun. He escorted the woman to the ATM and had her withdraw money while he stood off to the side. She repeatedly made errors while withdrawing currency, which enabled the surveillance camera to obtain excellent images of the offender. The offender made no effort to disguise his identity and wore a scarf on his head, which was later identified as the "colors" of a gang.
The offender escorted the woman back to her car. A struggle ensued, and the offender shot the woman. She managed to start her automobile and ram the offender's car as they were fleeing.
She died at the scene as a result of the gunshot. The offenders, two teenage gang members from a neighboring community, were later arrested and convicted for their crimes.
As a result of this incident, a civil lawsuit was filed against the bank.
Violent Crime Analysis:
The previously described crime would be >
It was determined that the type of these offenders was impulsive, strong-armed robber whose initial motivation was money. Investigation determined that they were experienced criminals who were involved in other robberies and drug use. Behaviorally, they displayed little if any criminal sophistication when committing these crimes and were indifferent to their own security.
The behavior of the offenders before the crime also was examined in this case. Investigation and interviews revealed that they were driving around that evening looking for a victim at shopping malls and fast food restaurants - not focusing on ATM customers. They disagreed with each other on who to attack and selected the woman at the ATM randomly. Originally, their targets were elderly customers. They attacked the woman out of frustration.
A claim frequently made in court is: "this was a crime of opportunity and wouldn't have happened if security had been adequate." There is, however, an important distinction between "a crime of opportunity" and "a victim of opportunity." One example of a crime of opportunity would be: A motorist is following an armored car. The armored car hits a pothole, causing a door to open and a bag of money to drop. The motorist stops the car and steals the money. A victim of opportunity is an individual, such as the woman in my example, who happens to be in the wrong place at the wrong time.
This case was not a crime of opportunity caused by inadequate security. These were determined offenders who were not deterred by:
- Two potential eyewitnesses in the bank's parking lot - the roller bladers.
- Potential eyewitnesses to the crime that were sitting in their cars waiting for the traffic light to change.
- A lighted parking lot.
- A well-illuminated ATM not concealed by shrubs.
- A bank surveillance camera.
Their post-crime activities indicated their criminal immaturity because they panicked after the shooting and drew attention to themselves by driving from the scene of the crime at a high rate of speed.
Results of Analysis:
Because of the type and motivation of the offenders, this crime could not have been deterred with any reasonable degree of certainty. The analysis, in this case, resulted in a decrease in requested compensation from over a million dollars to less than $100,000.
This technique of Violent Crime Analysis is appropriate not only for a negligent security challenge involving a financial institution such as the case I just gave, but for any case involving crimes committed at apartment houses, hotels, shopping centers, parking lots and other locations.
What is of primary importance in any negligent security case is that the jury must be shown the crime through the eyes of the criminal and not the security expert. In other words, they must be able to see what risk the offender was willing to take to commit the crime. A Violent Crime Analysis can provide the opportunity for that insight.
The Academy Group is a firm made up of former criminal profilers with the FBI and Secret Service who now serve as experts for law firms and other clients in need of information about how criminal minds work and how they result in violent crime. They serve as expert witnesses in law cases and work with corporations, including banks, to assess threats and train staff. They can be reached at (703) 330-0697.
Copyright © 1998 Bank Security & Fraud Prevention. Originally appeared in Bank Security & Fraud Prevention, Vol. 5, No. 4, 4/98
First published on 04/01/1998