According to data linked from the NOPD’s website, for the week of September 24 to 29, there were about 19 armed robberies in New Orleans. Crime is a fact of life in any city, and the recent armed robberies at PatoisAtchafalaya and Monkey Hill Bar are, in that sense, not exceptional. I have neither the expertise nor the time to fully analyze the data presented in that report or in the map associated with it, but my guess is that the number of armed robberies in New Orleans this week is not statistically unusual.

My point is not to downplay the robberies at local restaurants as just another aspect of life in the Big Easy. I’ve never been robbed, but I can imagine how terrifying it must be, and I suspect that for many victims the emotional distress caused by the crime lasts far longer than the act itself.

Again, having no direct experience with armed robbery, it’s hard for me to judge, but to me there’s a distinction between being mugged on the street and being robbed at a restaurant; in the latter case, as with a home invasion, you’re in a place where you feel more secure than when you’re in a public space. We should all be able to walk down the street or sit in our cars without the threat of being robbed at gunpoint, of course, but there’s a heightened expectation of privacy and safety in one’s home, and, I think, at a restaurant.

Years ago I worked on a few cases in which my firm represented businesses – restaurants, as it happens – that were sued because customers were injured during robberies. The issue then, as it is now, is whether a business owes its customers a duty to prevent them from being harmed by criminals.

Without going too deep into it, the crux of the issue turns on foreseeability – the Louisiana Supreme Court has ruled that under certain limited circumstances a business may owe a duty to protect its customers from the criminal acts of third parties. Here’s a quote from Posecai v. Wal-Mart Stores, Inc., 99-1222 (La. 11/3-/99), 752 So.2d 762:

The foreseeability of the crime risk on the defendant's property and the gravity of the risk determine the existence and the extent of the defendant's duty. The greater the foreseeability and gravity of the harm, the greater the duty of care that will be imposed on the business. A very high degree of foreseeability is required to give rise to a duty to post security guards, but a lower degree of foreseeability may support a duty to implement lesser security measures such as using surveillance cameras, installing improved lighting or fencing, or trimming shrubbery. The plaintiff has the burden of establishing the duty the defendant owed under the circumstances.

The Court in Posecai stressed that businesses are not the insurers of their customers’ safety, and that there is generally no duty to protect others from the criminal acts of third parties, but that sound you hear is the wind rushing through the barn door, because I can assure you that when a crime occurs at a business, and there is someone injured, the injured person is not likely to sue the criminal. Criminals, as it happens, tend to be impecunious.

I am sure there are circumstances in which a business deserves blame for allowing a criminal to cause harm to its customers. But one of the fundamental reasons for our social contract is to collectively protect ourselves from violence. We have a military to protect us from foreign threats and a police force to protect us from one another. At what point does it become the obligation of a restaurant or other business to act as law enforcement?

Philosophical issues aside, there are other things a restaurateur should consider to address the potential that two or three criminals may invade his or her business and harm his or her customers. Should restaurants hire security guards? That’s not just a question of the expense; there’s another Louisiana Supreme Court case that weighs on that question: Harris v. Pizza Hut of Louisiana, Inc., 455 So.2d 1364 (La.1984).

In Harris, customers were injured when a security guard hired by a Pizza Hut restaurant got into a gunfight with armed robbers. The court ruled that Pizza Hut was liable for those injuries because the security guard had negligently provoked gunfire from the robbers. That’s a gross simplification of the holding in Harris, and there are a number of changes to the law since 1984 that would likely mean a different result today, but the essential point – that a business can assume a duty to protect customers from the criminal acts of third parties by hiring a guard – is still valid.

This does not prevent a lot of businesses in New Orleans from hiring security guards, obviously, and I’m not suggesting it should. For one thing, the mere presence of a guard is likely a deterrent to the sort of assholes who robbed Patois, Atchafalaya and Monkey Hill. I’m only saying that a restaurant’s decision about hiring security is more complicated than it might seem at first glance.

But that leads to another question: When is it foreseeable that your restaurant might be robbed during business hours?

I will admit I was shocked when I heard that Patois was robbed. That’s in part because I have been there and like the place and its chef and owners – but also because the neighborhood in which it is located has never struck me as particularly unsafe. It also occurred to me that Patois is located near the river, and that there are few quick ways out of the area.

I’m not an armed robber, but I would have thought an easy getaway would factor into the decision about where to commit the crime. I based that assumption on the idea that NOPD would be alerted to a robbery at a restaurant during business hours very quickly, and that the response would be rapid. If there are few ways out, you’re more likely to get caught. My assumptions were wrong, obviously, because Atchafalaya and Monkey Hill are similarly situated geographically.

That doesn’t mean the restaurants should have foreseen the robberies. I stick by my position that a rational armed robber (!?) would not rob any of those places, and thus there was no way for the restaurants to foresee the crimes.

I also have no idea what the actual response time to 911 calls from any of the three robberies was, apart from what I’ve read in the press. I don’t know whether the current number of officers in the NOPD is sufficient to respond quickly to any reported crime, but I sure hope if I’m in the position where I need help, it will come in time.

What I fear most, though, is that if these robberies continue, at some point one or more of the customers in a restaurant will be carrying a firearm. As terrible as the crimes have been to this point, there’s a very real possibility that the outcomes could have been worse. This is absolutely not the place to discuss whether we have the right to private ownership of firearms, or under what circumstances, but I think we can probably all agree that someone opening fire in a restaurant being robbed by two or three armed men would likely not be pretty.

There are a lot of dedicated and hard-working folks in the NOPD, but they can’t be everywhere at once, and they need help from the community to solve crimes. I very much hope that help comes soon and that the assholes who are committing these robberies are caught and put in jail. I think we can all get behind that, too.






P.S. Generally speaking, anyone who would confuse what I wrote above as legal advice probably couldn’t read what I wrote in the first place, but I feel compelled as a professional paranoiac to point out that nothing I wrote above constitutes legal advice, and unless you are actually one of my clients, I am not your lawyer.