Contextual Criteria in the Evaluation of Criminal Foreseeability
By J. R. Roberts, Security Strategies, LLC
For over 40 years Federal and State courts have accepted as black letter law that while owners, operators and managers of a property can in no way be guarantors of safety, there is an obligation and duty on their part to provide a reasonable standard of care to protect against foreseeable risk of harm.
Certainly, it is a given that in general some level or type of crime may be deemed as foreseeable.
The central and driving principle for public law enforcement and private security recognizes this fact and embraces the doctrine of crime prevention.
The challenge for security practitioners is to consistently evaluate criminal risk specific to the location they are tasked to protect and in a manner that acknowledges the nature of shifting landscapes.
While legal professionals haggle and courts argue about liability for third party criminal acts and whether to determine a greater likelihood of risk based on a totality of circumstances argument or evaluating crime based on substantive similarity security experts should be viewing vulnerability through the lens of context.
When we speak of a contextual framework in evaluating probability or likelihood of crime, we acknowledge that in order to fulfill the primary dictate of good security (i.e. the protection of people property and information) the practitioner must distinguish between Pure Risk and Dynamic Risk in a given environment.
Defined as that risk which exists where no impediments to criminal opportunity exist or where those measures are inadequate or not commensurate to existing risks.
Defined as that risk which remains after reasonable and appropriate measures are put in place commensurate to existing risks.
An obvious and critical component in evaluating the type, nature, and foreseeability of criminal activity at a given location is contingent upon the practitioners’ understanding of the shifting dynamics at play in the specific environment and its immediate surroundings.
Competent and responsible security and risk managers as well as those charged with maintaining a reasonable standard of care for the safety security and well being of legitimate users of the premise in question should understand that security is not static in nature, but rather fluid in application.
Security responds to internal needs and is driven and responsive to external events.
To that end, and in order to effectively anticipate and reduce the likelihood of criminal activity, properties should be evaluated in order to effectively weigh potential risk and so that appropriate and reasonable measures that are responsive to commensurate threats are in place.
This evaluation should consist of a review of the subject location in context of a number of critical criteria.
A review of these criteria will establish to a reasonable degree the level of extant threat of crime.
Undertaking such a contextual review and applying and maintaining reasonable measures as a consequence need not be an undue burden in either time, money, or resources to those who own, manage, or are otherwise responsible for a given property.
The resultant benefits should produce an environment which provides significantly diminished criminal opportunity as well as lowered liability exposure.
The cost/benefit ratios in providing good security and crime prevention measures (or providing a dynamic risk vs. a pure risk) are obvious and provide undeniable rewards to the conscientious.
The application of the Problem Oriented Policing Model can serve as a valuable formula for the private sector.
The POP methodology has proven itself highly effective since its introduction by Herman Goldstein over 30 years ago.
Individual property owners and managers can effectively utilize these tools in order to evaluate and respond to the risk of opportunistic criminal activity at the locale in question and in the context of the mode of operation and nature of the specific operation.
The POP model consists of 4 simple yet significant steps, often referred to as “The SARA” model comprising the following:
Scanning : The initial identification of the problem, where problems are defined as a group of related or recurring incidents or a particular concern
Analysis: An in-depth exploration of the problem and its underlying causes
Response: Implementation of an analysis driven strategy to address the problem focusing on the factors identified in the analysis phase
Assessment: Consisting of ongoing review and monitoring of the response in achieving its objectives.
While fulfilling the primary directive of Crime Prevention (i.e. The Anticipation Recognition and Appraisal of a Crime Risk and the Initiation of Action to Remove or Reduce that Risk) The SARA approach offers both a specific and quantifiable system of crime risk analysis while containing an additional and crucial component in the form of on-going assessment to evaluate the efficacy of strategies intended to practically remove and reduce the threat of crime.
Judicious application of the POP model at a given locale may go a long way towards meeting or exceeding a reasonable standard of care.
Evaluating the potential foreseeable risk of opportunistic criminal activity at a given location is also predicated on the thorough assessment of that environment by examining the following 4 criteria within the framework or context of the unique aspects of the subject.
These Criteria are as follows:
The straight-forward mechanism of threat assessment and response to commensurate risk can be accomplished by a systematic review as outlined here.
The results should provide a significant start to determining foreseeable risk of criminal harm and reducing the likelihood of same.
The initial component in evaluating probability of opportunistic criminal risk consists of a physical review of the specific address of the subject premise using the traditional “three lines of defense” approach in examining the perimeter, exterior and interior of the property in question.
Familiarity with and application of basic principles of C.P.T.E.D. (Crime Prevention Through Environmental Design) and Broken Windows Theory (an “order maintenance” CPTED concept) are invaluable in this process.
Just as “form follows function” in architecture, so too must the specific location that is to be evaluated be viewed through the contextual framework of its intended purpose and functionality.
Is the location residential in nature?
Is the property a business or commercial enterprise?
Is this address a retail establishment?
What is the size of the subject premise?
What are its hours of operation?
Are likely threats of criminal activity internal or external?
Are vulnerable at risk targets of criminal opportunity identified (e.g.: Residents? Patrons/Customers? Employees?)
Where on the subject premise might the potential risk be greatest?
Approaching the perimeter or outermost boundary, the practitioner should look for clear demarcations indicating transition from public to private space.
Properly posted signage establishing territoriality should be visible.
Ingress and egress should be well defined and accessible.
“Natural territoriality” indicating ownership and control can create barriers to opportunistic crime.
If deemed apropos the use of pavement modification to reduce speed through the use of speed ridges, humps, or bumps may help define the space and establish control and ownership.
The exterior of the space in question should afford maximum “natural surveillance” i.e.: the ability to see and be seen.
The area should maintain the aesthetics of good landscaping by insuring trees and foliage are well cared for and maintained to allow for clear visibility.
Lighting should conform to suggested IESNA (Illuminating Engineers Society of North America) guidelines. Emerging technologies to include LED instrumentation provide ample and increasingly cost effective alternatives to provide clean, clear, and uniform lighting avoiding light trespass, light pooling and light loss while creating well defined spaces that are inviting and suggest safety and security.
Care should be taken to send a strong signal that the subject environment is kept free of debris and litter and that graffiti is quickly identified, photographed (for the purposes of subsequent evaluation with a law enforcement agency in order to determine if markings are gang related) and removed.
Parking spaces should be clearly marked.
Special attention should be paid to observing foot traffic both at the perimeter and exterior of the property.
Do “legitimate” users of the space demonstrate “avoidance behavior?”
Is there a mechanism in place to identify and respond to “non-legitimate” users of the space to include loiterers, pan handlers, etc.?
E.G.: Large 24 hour truck stops can become crime magnets. A distinct sub culture flourishes at these locations at the perimeter and exterior of these properties.
“Lot lizards” (a term referring to prostitutes) and vagrants posing as “polishers” (a term referring to independent vehicle cleaners) along with drug dealers specializing in amphetamine sales can gravitate to these locations and these “illegitimate” users of the space can create a climate of escalating crime unless there is a mechanism in place to identify and displace these unwanted and inherently dangerous activities.
The disruption of opportunistic crime rests upon the perception by potential offender and victim alike that the subject property does NOT afford a location that could facilitate the “triangle of crime” i.e. providing a climate where a crime might be committed Easily, Quickly, and at little to no Risk to the offender.
Conversely, the legitimate patron, resident, or employee of the location in question should enjoy a climate suggesting safety and security via clearly defined boundaries and a clean well lit space that raises no alarms.
Both the potential offender and the potential target form strong opinions concerning the environment and its risk at the perimeter and exterior of the locale and base their subsequent decisions on initial perceptions.
It is equally imperative to understand that perception of the perimeter and exterior of any given property may also be impacted on a temporal basis.
E.G.: A large and busy grocery store may be viewed as reasonably safe during daylight hours when traffic may be at its peak, when shoppers are surrounded by others and when employees are seen retrieving shopping carts and are frequently visible in the parking lot.
The same store viewed at night and absent critical evaluation may present an entirely different picture.
Imagine this same location illuminated by low pressure sodium vapor lights (an older lighting source emitting a yellow, unfocused and heavily diffused beam) and where several of the lamps have burnt out creating an effect of a dim parking lot.
Imagine this same parking lot with abundant litter from the day that is evident- imagine there are few cars in the parking lot and several gatherings of people who appear to be loitering.
The perception has now changed to a place where a shopper must “run the gauntlet” through a parking lot that now presents the prospect of danger.
The result becomes a self-fulfilling prophecy as legitimate users scurry uncomfortably and illegitimate users are attracted to potential targets of opportunity that offer fewer impediments to the triangle of crime and the selection of a victim that is likely to be quick to hit, easy to hit, and affords little risk of detection, deterrence, or intervention.
Meaningful evaluation of place and at the perimeter and exterior of a property must then take into account functionality, purpose and perception as it relates to providing a reasonable standard of care concerning the safety and security of all legitimate users and at all hours of operation.
In the assessment of potential criminal risk at the interior of the subject property the basic principles of the establishment of natural territoriality (i.e. establishing and re-enforcing ownership and control) and natural surveillance apply.
Here it becomes even more essential to understand the dedicated purpose and function of the environment in the context of its population.
While the basic dictate of a clean and well lit facility is a given, just as with the perimeter and exterior of any subject, adjustments are made based on intelligent determinations of the probable type and nature of threat that might exist within the confines of the demised premises.
E.G.: One of the earliest landmark decisions establishing the civil liability of property owners revolved around a violent assault at a hotel.
Garzilli v. Howard Johnsons had some unintentional but laudable consequences including a heightened awareness by some (certainly not all) hotel owners and managers of their unique vulnerability to crime.
Resultant changes included the use of emerging technology to eliminate “hard” keys to rooms and the substitution of electronic keys which can be changed on a daily basis.
The Embassy Suites Hotel chain stands out as a model for “designing out crime”.
The interior of this hotel features a unique and functional layout that maximizes natural surveillance and minimizes the potential for opportunistic crime.
Instead of funneling guests down isolated and often ill-lit corridors at all hours, each and every room faces out onto an open atrium.
This configuration allows every employee to be able to see the entry way to all rooms at all times.
By scheduling breakfast and evening events for guests in the lobby, this sense of surveillance and territoriality is extended to all who might serve as additional eyes and ears creating a climate of safety and security and reducing significantly problems other hotels might experience with room burglaries, potential assaults on guests, prostitution and other challenges.
This design remains a good example of reducing foreseeable risk of crime to the interior of a space based on function and activity.
Doctor John Eck a prominent criminologist at the University of Cincinnati often refers to the concept of “capable management in place”.
The role of active management in the assessment and reduction of the potential or foreseeable risk of harm to patrons or employees is a crucial and integral element in meeting a reasonable standard of care.
The measures taken as a consequence of judicious assessment are again dictated by the nature or context of the operation being reviewed.
The overwhelming majority of Americans if asked would hardly associate serious, patterned opportunistic crime with a large health care facility like a hospital.
Yet, the reality is that hospitals have the potential to become the site of serious of criminal acts.
A hospital offers a number of attractors to criminal predators. These locations are open 24 hours a day. Many of those frequenting the facility may be experiencing physical or emotional trauma that would lead them to be less aware of their surrounding and thus present an easier target for the purposes of robberies assaults, car-jacking or car theft.
Doctors and nurses often park distances away and are also seen as lucrative targets.
The facility itself is a repository of drugs.
The Joint Commission for Hospital Accreditation recognizes these vulnerabilities and as a consequence, the overwhelming majority of hospitals have instituted systematic controls in the assessment, evaluation, and response to existing risks and the active management of same.
The exercise of control specific to the context of the subject property helps maintain a dynamic as opposed to pure risk through active and capable management in place.
Active administrative managerial control of a property can take many forms:
Written policies and procedures
An internal administrative system that regularly reviews criminal incidents at the subject property
Making sure staffing of employees is adequate and that all are properly trained in evaluating potential vulnerability to crime and in proper response to same
A mechanism to regularly inspect the perimeter, exterior and interior of the subject property
The posting and enforcement of rules of conduct
Implementation and proper use of “mechanistic” features where deemed appropriate (i.e. access control, CCTV, etc)
Regular inter-action with local law enforcement
E.G.: A nationally known budget hotel with a reputation as a crime magnet was acquired by a property management firm.
No effort was made to assess criminal activity, history, or vulnerability at the locations.
One particularly notorious site which had been troublesome to local law enforcement and which had a long record of serious drug related events, car thefts, burglaries, assaults, and armed robberies had recently hired a private security company which insisted on maintaining an armed officer at the dusk to dawn post.
Among the first actions taken by the new management was to discontinue security at the property.
A decision was also made to discontinue the presence of overnight management and desk personnel.
The result was one lone maid whose job it was to do laundry and who would later testify that she was terrified and locked herself in the laundry room.
Several months later a number of individuals who were not registered guests but who had obtained a key from someone else and had been living at the hotel for several weeks shot and killed a 15 year old boy in the lobby of the hotel.
Numerous other hotel residents had been concerned over noise and attempted to call the front desk- never receiving an answer.
The resultant Federal civil law suit over the wrongful and foreseeable murder yielded a significant settlement.
Cold comfort for a grieving family and little help to a community plagued by a facility presenting continuing risk of serious harm to the area at large.
The absolute failure to initiate reasonable standards of care in the reduction of the likelihood of criminal acts represents a “pure risk” environment which creates a “ripple effect” with negative consequences for both the specific location and its immediate geographic locale.
Conscientious and capable management in place both at the local level (often referred to as the “controller”) or where deemed appropriate and within the context of a larger entity (sometimes called the “super controller”) not only provides a “dynamic risk” environment which in most instances meets or exceeds a “reasonable standard of care” but can offer a number of significant ancillary benefits to the organization in question.
Active and capable management can yield increased positive public perception.
In the case of a retail facility this can result in increased “ATPV” (Average Time Per Visit) at the designated location translating to increased sales and profits.
A residential apartment complex might enjoy increased occupancy and revenues in direct proportion to active management that creates a meaningful “dynamic risk” environment that produces a climate meeting the very definition of Crime Prevention Through Environmental Design i.e. a community that “the proper design and effective use of the built environment to reduce crime and the fear of crime and enhance the quality of life.”
E.G.: Greg Parker, owner of the Parker convenience store chain embodies many of the correct and positive benefits of active and engaged management that exercises control at a specific place.
Rather than reject or ignore the very real risk of crime at convenience businesses, Parker has instituted a number “controls” over the various 24 hour premises that are part of his chain.
The perimeter of the facilities are clear, well-marked and delineated.
The parking lot/exteriors contain specific signage related to behavior and control and are free of graffiti and litter.
Lighting is bright, uniform and conforms to or exceeds IESNA suggested lumen levels.
The windows are kept clear of signage and facilitate natural surveillance.
The interior and exterior are monitored by quality digital CCTV.
Active management includes training of employees, use of controlled money drops to limit cash on hand and robbery prevention training.
Incidents of crime and disorder are maintained internally.
Management regularly interacts with and obtains advice and consultation from and with local law enforcement.
It is noteworthy to observe that the State of Florida has implemented the Business Convenience Security Act which mandates many of the above delineated protocols.
A significant number of states across America are following suit and requiring these measures be in place at 24 hour convenience stores.
Parkers’ independent initiation of the critical elements in creating a “dynamic risk” environment that meets a reasonable standard of care as concerns the safety and security of his employees and patrons while reducing the likelihood of opportunistic crime is refreshing.
“Those who don’t know History, are doomed to repeat it”
A review of public records reflecting prior calls for service is an essential tool in helping to evaluate risk.
A fundamental understanding of the type and nature of prior criminal events specific to the address in question enables those charged with providing for the safety and security of employees, residents, and patrons a measure of the type and nature of risk and the subsequent strategies and protocols that might be used in order for security to meet a reasonable standard at the perimeter, exterior and interior.
The overwhelming majority of local police departments maintain a statistics or analytics department that tracks crime by specific location.
The first step is to obtain a copy of CFS or Calls for Service which is a basic run sheet reflecting all 911 emergency police calls to a property. This is sometimes referred to as a CAD print out and can usually be provided by request and for a nominal fee by the police department.
Interpreting the call sheet may require some assistance as local jurisdictions use different designations or assign different codes reflecting the type or nature of the call (i.e. a signal 47 for a stolen car, or a signal 21 for an armed robbery, etc.).
General data should include the date of the call, the time of the call, and the type of crime being responded to.
It will also reflect whether or not a F.I.R. (or Field Incident Report) was issued.
The incident report will indicate in greater detail the nature of the crime, who was involved, where the event occurred and whether there was an arrest.
Individual reports can also be obtained for a charge and with sensitive victim information often redacted.
It is suggested that reports related to what are deemed Part One crimes be reviewed.
Part One crimes are a classification used by the Bureau of Justice Statistics in reviewing and compiling the Annual Report to the Nation on crime in America.
A Part One crime is classified as a Crime Against Persons and can range from homicide to simple assault.
Part Two crimes are deemed less serious and include theft by taking, burglary and other property related crimes.
Identifying type, time, frequency, and location of all criminal activities on a given and specific property are important factors in evaluating the foreseeability of opportunistic crime and reducing it.
The context of the specific environment in the face of risk and the use of strategies in maintaining a dynamic risk are of course, contingent upon and unique to the facility in question.
E.G.: A large, low-income apartment complex was the site of a particularly brutal homicide.
At a deposition for the resulting civil suit the property manager made the statement that “the property is safe. We don’t really have crime here.”
A review of prior police calls for service showed 1,360 emergency police responses in a single 12 month period.
The majority of these calls were for serious crimes happening on the property in the evening hours after the property manager had left and when no responsible managerial presence was in place.
When the maintenance manager was deposed, he brought a number of bags containing his “shell casing collection” a series of plastic bags filled with spent ammunition casings and separated by caliber ranging from .22 to .380 to.9 mm to .40 and .45 and filled every Monday morning after the weekend events at the apartment.
The eventual settlement in the litigation was so large that it could have easily underwritten and paid for security measures that would have significantly reduced crime and the likelihood of the foreseeable murder that gave rise to the action.
Less than two years later, this author was retained on behalf of plaintiff in another violent shooting at the very same location.
There had been zero steps initiated in the intervening time period to assess or attempt to reduce criminal activity.
Insanity has been defined in the popular vernacular as “doing the same thing over and over but expecting different results.”
The pure risk that existed at the property was and continues to be an unacceptable pure risk situation.
E.G.: In stark contrast, a similarly situated apartment complex was taken over by a national management firm.
Immediate changes were instituted based on a review of prior police calls.
Access control gates were installed at the two entry points.
Visitor and guests were shuttled to a designated visitor parking area and were asked to check in with the management office upon arrival.
Resident parking spaces were assigned.
Pole mount lights were installed to supplement existing light sources and to meet I.E.S.N.A. suggested levels.
Maintenance was required to use inspection sheets to report issues, while regularly “sweeping” the property to clear debris, litter, and graffiti.
Signage concerning enforced rules regarding behavior, visitors, loitering and noise were posted.
Regular memos were circulated to residents concerning property issues and periodic meeting held including security meeting where the local police department spoke on crime and safety issues.
Curfews were established.
Private security patrol was implemented from dusk to dawn.
Crime fell by 80% within a six month period as the property moved from a pure risk to a dynamic risk environment.
Resultant benefits included a significant jump in occupancy rates as the once shunned property began to acquire a justified reputation as a safe, clean, decent home for families and residents engaged in “extended eyes and ears” behavior based on a new found sense of territoriality, pride of ownership and shared community values.
Increasingly, advocates of Environmental Criminology (sometimes referred to as “Place Criminology”) have turned their focus to and placed emphasis on the specific address of a given property when it comes to evaluating the foreseeability of opportunistic crime.
It is no accident that the first three criteria evaluated in the body of this abstract rest on the “locus in quo” or the place in which the action occurred.
Place, Control and History taken in context are all important indicators of risk and play an essential part in evaluating pure vs. dynamic risk.
The impact of the immediate area surrounding the subject can also prove to be an important measure in evaluating foreseeable opportunistic crime.
Geography effects place.
“Crime Mapping” is a G.I.S. (or Geographic Information System) that reviews crime within a specific and established boundary.
Advanced computerization had allowed law enforcement agencies to move well beyond pins in maps.
With the assistance of software programs like Arc View and other like programs, police departments can review crimes in a given street, block, neighborhood or “zone” or “beat” and evaluate and identify crimes that may be clustered or “patterned”.
Patterned or repetitive crimes can be isolated by day of the week and time of the day.
This gathering of intelligence gives savvy police departments the ability to focus strategies and response on areas which might be considered “hot spots” and pro-actively initiate required measures.
Dealing with the reduction and response of “societal disorder””is a central doctrine in the Broken Windows Theory.
Simply put, the greater the problem of physical decay (i.e. a broken window left unrepaired, graffiti, litter and debris allowed to accumulate and remain) the more likely minor behavioral changes are likely to begin (i.e. pan handling, loitering, public intoxication, etc.).
This sends a signal that an area, block, neighborhood, or strip mall (by example) is neither monitored nor cared for.
The logical result is the escalation of decay ultimately providing an opportunistic environment that leads to increased burglaries, auto break-ins and thefts, muggings, and armed robberies.
Left unchecked, a collective geographic area can be significantly impacted by the cascading domino effect.
The collective involvement of traditional law enforcement together with responsible business owners, and involved citizens in displacing crime and the perception of criminal opportunity within a community leads to a “trifecta” in the fulfillment of the social contract.
The question of radius in reviewing crime and disorder as it may effect any given specific property is dictated by the nature of the facility in question and weighed against the proper context.
The majority of facilities need look no further than within the confines of their surrounding census tract
(a standard bounded geographical area generally comprising no more than 4,000 residents) typically in urban areas this would range from a quarter of a mile to a half of a mile.
Shifts of the demographics contained within the area to be assessed may produce variable or even major transformations. These can be generally perceived through the decline or improvement of the district in question.
Exceptions to the limited geographic terrain to be evaluated might be any major facility which could be an “end destination”, where people regularly travel considerable distances to visit the locale.
These could range from an amusement park, to a shopping mall, an entertainment district to a large 24 hour discount retail center.
E.G.: Impacted by an economic downturn, a large apartment complex suffering from low occupancy relaxes all security measures and reduces rents.
A decidedly different population consisting of younger, unemployed males “occupy” the complex and make it a staging area for serious crimes including distribution and sale of drugs.
As the conditions of the apartment complex deteriorate, the surrounding area suffers a significant jump in the commission of opportunistic criminal acts.
A large 24 hour discount retail center that attracts thousands of shoppers everyday is located in almost immediate proximity to the apartment complex.
In less than six months a distinctive path leading from the complex to the store becomes well-worn and a fence that divides the property sprouts numerous holes through which residents trespass onto the property.
Ignoring the problem, the store begins to experience an alarming increase in auto break ins and purse snatchings. These crimes escalate to include car- jacking armed robberies and an eventual abduction, sexual assault and murder from the store parking lot and in broad daylight.
Regular review of crime statistics and visual observation of a general area within one quarter of a mile to a full mile (again dependent upon size and nature of the subject premise) can reflect shifts in conditions.
Often referred to as a “Halo” effect (or diffusion of benefits) positive trends can significantly reverse criminogenic conditions.
Studies indicate that when significant stake holders in a given area undertake improvement and revision to their own properties that utilize good security strategies and reduce perception of criminal opportunity, the accrued benefits can create a positive ripple effect in the surrounding area.
Just as a “rising tide lifts all boats” so too does the presence of a climate of dynamic vs. pure risk.
In the course and scope of over 38 years in private security, I have been fortunate in my career to have had the benefit of a myriad of disciplines and approaches to the problem of crime and its prevention.
Having been retained as consultant and designated by defendant or plaintiff in excess of 300 civil cases in Federal jurisdictions as well as in 33 states, I have observed a strong need for a litmus test that would help courts and juries better understand how to evaluate and determine what constitutes a reasonable standard of care.
Recognizing that every crime is unique and that every environment in which that crime occurs is distinctive, a consistent approach in assessing and distinguishing between pure risk and dynamic risk utilizing the simple and pragmatic methodology as outlined in this abstract, should assist professionals and non-professionals alike in forming opinions.
It is in the best public interest that all citizens enjoy life in a climate that is safe, decent, and as crime free as possible.
To that end, it is incumbent upon individuals and business owners in the private sector as well as those in the public sector to take the responsibility to work collectively for the enrichment and betterment of us all.
J. R. Roberts
Security Strategies, LLC