Court: Sheriff, School Board Had No Duty To Protect Students In Parkland Shooting
A Federal Judge has ruled that neither the Sheriff's Office nor the School Board had a specific duty to protect individual students during the shooting last February in Parkland, Florida.
A Federal Judge in Florida has dismissed a lawsuit filed by a group of students who were present during the shooting at Marjorie Stoneman Douglass High School in Parkland, Florida against the school district and police, finding that neither had a duty to the individual students to protect them:
The school district and sheriff’s office in the Florida county that is home to Marjory Stoneman Douglas High School had no constitutional duty to protect the students there during the deadly February massacre, a federal judge has said in a ruling.
The decision was made in a lawsuit filed by 15 students who said they suffered trauma during the Feb. 14 attack in Parkland, Fla. A total of 17 students and staff members lost their lives; 17 others were injured.
Prosecutors are seeking the death penalty for Nikolas Cruz, 20, the former Stoneman Douglas student who is accused of opening fire at the school on Valentine’s Day. He has pleaded not guilty, but his lawyers have said he would plead guilty in exchange for a life sentence.
The Dec. 12 ruling, by Judge Beth Bloom, came on the same day that a county judge, Patti Englander Henning, came to the opposite conclusion. Judge Henning found that Scot Peterson, the armed sheriff’s deputy who heard the gunfire but did not run in and try to stop the attack, did have an obligation to confront Mr. Cruz.
The two decisions in rapid succession highlight an assumption often made: the belief that the public has a right to receive protection from police officers.
But police officers, in fact, generally are not under any legal obligation to protect citizens who are not in their custody.
“Neither the Constitution, nor state law, impose a general duty upon police officers or other governmental officials to protect individual persons from harm — even when they know the harm will occur,” said Darren L. Hutchinson, a professor and associate dean at the University of Florida School of Law. “Police can watch someone attack you, refuse to intervene and not violate the Constitution.”
The Supreme Court has repeatedly held that the government has only a duty to protect persons who are “in custody,” he pointed out.
“Courts have rejected the argument that students are in custody of school officials while they are on campus,” Mr. Hutchinson said. “Custody is narrowly confined to situations where a person loses his or her freedom to move freely and seek assistance on their own — such as prisons, jails, or mental institutions.”
There are exceptions, Mr. Hutchinson said, as when a crossing guard who is specifically assigned to protect children traveling across a street allows a child to get run over while, say, the guard is being distracted by a smartphone. The crossing guard is in a “special relationship” with the children, in legal eyes.
When an officer has a “special relationship” with people, or acts to “enhance the risk” of harm, the officer can be liable for any resulting injury under state negligence laws, Mr. Hutchinson said.
This is likely how Judge Henning found that Mr. Peterson did have a duty to protect those inside the school and refused to dismiss the negligence lawsuit filed by Andrew Pollack, whose daughter Meadow was killed.
The county lawsuit argued that Mr. Peterson had a “special relationship” with students and staff members at the school because he was specifically assigned to offer them protection.
More from the Florida Sun-Sentinal:
A federal judge says Broward schools and the Sheriff’s Office had no legal duty to protect students during the shooting at Marjory Stoneman Douglas High School.
U.S. District Judge Beth Bloom dismissed a suit filed by 15 students who claimed they were traumatized by the crisis in February. The suit named six defendants, including the Broward school district and the Broward Sheriff’s Office, as well as school deputy Scot Peterson and campus monitor Andrew Medina.
Bloom ruled that the two agencies had no constitutional duty to protect students who were not in custody.
“The claim arises from the actions of [shooter Nikolas] Cruz, a third party, and not a state actor,” she wrote in a ruling Dec. 12. “Thus, the critical question the Court analyzes is whether defendants had a constitutional duty to protect plaintiffs from the actions of Cruz.
“As previously stated, for such a duty to exist on the part of defendants, plaintiffs would have to be considered to be in custody” — for example, as prisoners or patients of a mental hospital, she wrote.
Peterson was the only armed person at the school when Cruz showed up with an AR-15 rifle and murdered 17 people, in addition to wounding 17 more. Peterson has been widely vilified for taking refuge outside the school and not confronting Cruz.
“His arbitrary and conscience-shocking actions and inactions directly and predictably caused children to die, get injured, and get traumatized,” the lawsuit claimed.
“His arbitrary and conscience-shocking actions and inactions directly and predictably caused children to die, get injured, and get traumatized,” the lawsuit claimed.
Medina knew Cruz and saw him arrive on campus, but did not confront him.
The lawsuit argued that the Sheriff’s Office and School Board “either have a policy that allows killers to walk through a school killing people without being stopped. Alternatively, they have such inadequate training that the individuals tasked with carrying out the policies … lack the basic fundamental understandings of what those policies are such that they are incapable of carrying them out.”
Kristoffer R. Budhram of Jacksonville, who represented the students, said in an emailed statement: “We respectfully disagree with Judge Bloom’s decision to dismiss our clients’ case. This case is about protecting the Constitutional rights of individuals who were the victims of one of the worst mass shootings in this country’s history.
“We are exploring all of our options for ensuring that they get their day in court, including appealing Judge Bloom’s decision,” Budhram wrote.
This ruling contrasts with a ruling last week by a Florida state court Judge who refused to dismiss a lawsuit filed by one survivor against Scot Peterson, who was the Sheriff’s Deputy who also served as a school security guard and who failed to enter the building to stop Cruz while the shooting was going on:
The only armed deputy stationed at Marjory Stoneman Douglas High School the day of Nikolas Cruz’s deadly rampage asked a Broward judge on Wednesday to find he had “no legal duty” to protect the students and faculty from harm.
The judge rejected his argument.
Scot Peterson, who resigned from the Broward Sheriff’s Office in late February and is accused of shirking his responsibility by hiding instead of confronting Cruz, wanted Broward Circuit Judge Patti Englander Henning to dismiss a lawsuit filed by the family of Meadow Pollack, one of 17 people shot and killed in the Parkland school on Feb. 14.
“We want to say he had an obligation, but the law isn’t that,” said Peterson’s lawyer, Michael Piper. “From a legal standpoint, there was no duty.”
Englander Henning saw it differently, finding Peterson had a duty to the school community as someone whose job was security and who had an “obligation to act reasonably” under the circumstances of the shooting.
The judge also found Peterson was not protected from the lawsuit by “sovereign immunity,” a legal doctrine that shields public employees from legal action based on their official conduct.
Piper said he would appeal the ruling.
Peterson was not in court Wednesday for the hearing — in a separate motion he asked the judge to keep Pollack’s father, Andrew, from attending a formal interview as part of the lawsuit. Pollack, who is also suing Cruz, as well as the family that took him in two months before the shooting, and his mental health providers, sat at the plaintiff’s table during the hearing
One of the lawyers representing Pollack expressed shock that Peterson would try to get out of the lawsuit.
“It is inconceivable that anyone could advance the proposition that Scot Peterson had no duty to these people,” said attorney Joel Perwin. “That is an absurd proposition. … This was an abdication of responsibility when this [shooting] happened, and it is an abdication of responsibility now in this courtroom.”
While there does appear to be a conflict between the decision by the Federal Court and the decision by the state court in a similar case, but which does not appear to have been reduced to the form of a detailed order setting forth the Court’s reasoning, the difference is less significant that the headlines might suggest. In the Federal lawsuit, the claims that were dismissed were those against the Sheriff of Broward County, the School Board, and various individuals associated with those offices. In the state case, the lawsuit that was filed was filed primarily, if not exclusively against Scot Peterson, the school security officer who remained outside the building while Nickolas Cruz was on his shooting rampage. In the Federal Court case, Judge Beth Bloom, an Obama appointee who has been on the bench since 2014, dismissed the claims against the Defendants other than Peterson but allowed the majority of the individual claims against Peterson to go forward. Similarly, in the state court case Broward County Circuit Judge Patti Englander Henning ruled from the bench against Scot Peterson’s efforts to get the case against him dismissed on the ground that he did not have a duty to protect the students. For much the same reasons as those cited by Judge Bloom in her ruling, which is embedded below, Judge Henning appears to have ruled that because of his position Peterson had a duty to take action of some kind, even at the risk of his own life. In this sense, then, the rulings by Judge Bloom and Judge Henning are not as inconsistent as they might appear to be.
The other aspects of Judge Bloom’s decision, applying to the Sheriff’s Office and School Board and various individuals associated with those offices, are likely to be surprising or even shocking to members of the public but they are really just a restatement of long-standing law that has held that police and other government agencies do not have a legal duty of protection toward individual members of the public. Instead, such a duty toward individuals only comes into play when individuals are in the custody of the police. Additionally, the law has generally held that students are not deemed to be “in the custody” of school officials while school is in session in a context that would give rise to a duty to protect. Generally speaking, such custodial relationships only exist in connection with situations where someone is imprisoned, under arrest, or detained by law in a place like a mental health facility. While school attendance is in some sense mandatory, it has never been seen as the kind of custodial relationship that creates a duty of care on the part of school authorities.
With respect to the police, while it’s true that law enforcement agencies exist to combat crime it has long been held that there is no legal duty owed by those agencies to specific individuals in specific cases. Instead, as the District of Columbia Court of Appeals put it in Warren v. District of Columbia, “the duty to provide public services is owed to the public at large, and, absent a special relationship between the police and an individual, no specific legal duty exists”. While members of the general public are usually surprised when they learn of this legal principle, it does make sense and especially so in a mass shooting situation where there are multiple potential victims and the decision by an officer or officers to protect one victim could end up putting others at risk until a suspect is subdued. Additionally, unless there’s evidence of negligence or other inaction on the part of a law enforcement officer or agent that directly led to the death or injury of an individual, there is, therefore, no over-arching duty of care on the part of the police toward individual members of the public.
It’s likely that this decision will be appealed to the 11th Circuit Court of Appeals, but given that the law on this issue is clear it seems unlikely that appeal will be successful.
Here’s the opinion:
L.S. et al v. Peterson et a… by on Scribd
In these situations, if someone confronts the gunman and is killed themselves we hail them as a hero. But the opposite of hero is not necessarily coward. There is a big space between where it’s perfectly reasonable to assess the situation and weigh all the options before deciding to rush towards the gunfire.
https://twitter.com/TheColinSchmidt/status/1075111728462086144
@Todd:
But all Cops are heroes who resist their lives daily to protect you so you should give them
the appropriate degree of subservience which is complete, unquestioning obedience.
@Paul L.:
And yet if I hear the door being kicked in, I’ll call the cops and not my local gun nut. You know, because I live in reality.
@Todd:
It is cowardly. Why can’t we call things what they are? If I’d been standing there and done nothing I would consider my behavior cowardly, and I’m not a cop. Someone is shooting children, which means you have a choice: do you value the child’s life enough to risk your own? If the answer is yes, you’re brave. If it’s no, you’re not.
My memory of school was that I was most definitely NOT allowed to move freely. (no skipping class, no getting up and leaving in the middle of class, no coming to class in the middle of it, going to lunch only when I was scheduled to and not when I was hungry. etc etc etc ad nauseum)
@Michael Reynolds: The problem is, Americans tend to believe way too much of what they see on TV and in movies. The reality is, the most likely outcome of a single (even armed) security guard running towards a gunman with a semi-automatic rifle would be one additional dead security guard.
Of course if I personally were in that situation, I’d like to imagine that I would certainly run towards the gunfire anyway. But I will not condemn a retirement aged deputy, probably earning $20 an hour, for making the perfectly rational decision to wait for backup.
@Michael Reynolds: These situations are hard to reduce to black and white. A person can be very brave in some situations and not so much in others.
Many years ago I found myself in an active shooter situation. Without thinking I put myself between my family and the shooter (and watched him blow his brains out). On another occasion I saved my son’s life by tackling him after he ran into rush hour traffic chasing a ball he’d had in his pocket (I thought he was dead and prayed that I too would die, fortunately I was wrong about my son and God put my prayer on hold). Both those times I reacted in a way people would call “courageous”, but I can not say with any kind of certainty that I would react the same way if I found myself in similar situations today. There was no thought process informing what I did, I just reacted. There was 1 other occasion where I did the “brave and proper” thing so I like to think that I would do so again, but the fact is I don’t know. Nobody does until they do, or not.
Many police departments have adopted the phrase “To Serve And Protect.” I’m just sayin’.
@Todd:
I’m not blaming the guy, most people aren’t heroic, most people are cowardly most of the time – and I certainly include myself. But when I’ve been cowardly I should wear the label and not expect to get a pass.
@OzarkHillbilly:
Absolutely. I’m not saying the officer should hang himself, but he was not brave, he was cowardly. You were brave. As you say, that’s no guarantee you’ll be brave the next time, but you were brave, and we can’t call you that without accepting the possibility that you, I or anyone might be a coward the next time.
It’s a well-recognized fact in the cleverer armies that just because a guy throws down his weapon and flees today, doesn’t mean he won’t stand his ground and fight to the bitter end tomorrow. Looking back over my life I’d have to say that I could answer an ‘are you brave?’ question with both a yes and a no. Sometimes yes, sometimes no.
I think we’re too quick to give people a pass and especially to give ourselves a pass. I was thinking about #MeToo the other day and it occurred to me (obvious once you see it) that the entire problem comes down to male cowardice. Assuming there are more of us (decent men who don’t molest women) than there are Weinsteins and Cosbys, why didn’t we good guys stop the bad guys? How many times have you or I or most of us grinned nervously and said nothing when we listened to some wanna-be alpha male talk about mistreating women? Why didn’t we speak up? Why didn’t we solve the problem before it came to #MeToo?
Simple answer: we were cowards. We let ourselves me bullied by thugs and for all our notions of men as protectors of women we sure as hell didn’t protect them, did we? A bit more backbone, a bit more independence of thought, a bit more courage is needed. I’ve been a coward at times, so have you, so has everyone including the officer in this case, but we don’t make things better by giving him (or ourselves) a pat on the head. I suspect the officer knows, and feels on a daily basis, that he was cowardly. I pity him, but he still doesn’t get a gold star. .
@Michael Reynolds:
You’re a rich white man living in a rich white man’s neighborhood. Of course you’d call the cops.
This is what happens in my neighborhood.
@Michael Reynolds:
Because people don’t like negative social stigma terms being applied even when they engage in the named behavior. You are correct: most people would act in a way that could be described as cowardly or self-preservation depending on the speaker. We as a culture value bravery and valor (especially in males) but also acknowledge that fools rush in where angels fear to tread. We value bravery because it’s hard and rare and are continually disappointed in our fellows when it doesn’t manifest like magic.
He choose to save his own ass at the potential expense of others. It’s a choice many would make and I can’t really fault him for it…. except for the fact his freaking job was guard the place in case something like that would happen. Bravery and the willingness to place children’s lives above your own is kind of a prerequisite, at least in theory. What I find interesting is that the teachers and students were more willing to make the final sacrifice then the cop and I’ll bet it came down to one simple fact: they saw the kids as *kids*, precious human lives they were intimately acquainted with and this guy saw them as the annoyances he’s supposed to round up and keep in line, just a job not worth dying for. Decisions like this that ultimately validate that belief – that the individual isn’t entitled to your protection, your duty is to the greater good/crowd – mean cops look at kids like sheep to be herded. If the wolf gets one, oh well the flock moves on and there’s always going to be new lambs each year. Make sure they’re in their pens, nip at their heels if they stray but don’t risk your life for a single lamb if you don’t want to, the flock needs you more. Sheepdogs don’t get too attached to the sheep, you see….
@Michael Reynolds:
Odd are if I hear the door being kicked in, Odds are it is the cops serving a warrant on the wrong house or a warrant they lied about to get a judge to sign.
Or the Democrats have pass a law banning all guns in civilian hands and the police have come to confiscate mine.
@Paul L.: Or the Democrats have pass a law banning all guns in civilian hands and the police have come to confiscate mine.
Is every verbal engagement in your life one big straw man argument? Must be very tiring.
It seems to me that the job title “school security officer” colors the discussion, as does the phrase “in loco parentis” as related to the school district (but not the county sheriff’s office), but I can see how both decisions make sense in this situation.
@Paul L.: If it is the police serving a no-knock warrant on the wrong house, your gun is likely to just get you shot.
And then they will lie and claim that they identified themselves, and that they found drugs in your house.
Your gun won’t protect you, or your family.
@James Pearce:
From your link:
IOW you’ve made my case, not yours. If the homeowner wasn’t armed he’d have lived.
As for me being a rich white man, I’ve lived in more than 50 homes. 44 before I became ‘rich.’ Trailer parks and run down garden apartments in marginal neighborhoods. It was while living in one of those decidedly non-rich homes that I ran out into the street to stop a man abusing a woman. He was not happy with me and things might have gotten a whole lot more dangerous – domestic disputes frequently turn deadly – but for one fact: I was able to say, ‘My wife has called 911 and cops are on the way.’
The second time I did that was in a different non-rich apartment and that time I had to hide the woman in my apartment while her lunatic hubby tried to beat my door down. And what stopped him? Me saying, ‘The cops are on the way.’
Incidentally, I was still a fugitive from justice and the rescuing cops represented a real not imaginary danger to me.
@James Pearce: From the article you link:
This has very little to do with his neighborhood, or yours, or Michael Reynod’s, or anyone’s race, and is just a tragedy all around.
The only lesson that it gives us is that if you are holding your gun, and the police are pointing their guns at you, drop the gun, whether you hear an order or not. Earning when and how to safely drop the gun is almost as important as learning how to shoot the damned thing.
@Gustopher: Apparently it took me 7 minutes to type that on an iPad, and pet the cat. I see that Mr. Reynolds has made the same point.
@Gustopher:
I assume ‘pet the cat’ is a euphemism?
@Michael Reynolds:
He might have lived to bury his nephew.
What happened to Mr. Black is an argument for “Don’t call the cops,” which incidentally is a very persuasive argument in my neighborhood.
I love it when you talk about your “fugitive from justice” days. Who are you trying to impress? I missed a court date once too.
@Gustopher:
I want police to be more cautious in who they shoot, not even more reckless, just shooting everyone who scares them. If they have no “duty to protect,” then there is no need to be so hasty or heroic.
Tell me this doesn’t get us closer to reducing our “cops just shoot people” problem.
@Michael Reynolds: Euphemisms take longer than seven minutes, don’t they?
But, I was petting a 15 year old, one eyed cat, just to make the euphemism worse…
@James Pearce: Someone holding a gun represents an immediate threat. They hold in their hands a tool to kill someone instantly at a significant distance.
Gun owners need to take responsibility for that.
@James Pearce:
I’m not trying to impress anyone, Pearce, I don’t have to. But felony burglaries of businesses, acts which, regrettably were labeled ‘sophisticated’, ie: extra jail time, are not missed court dates. My bail at the time was $60,000 which adjusted for inflation would be a bit over $200 grand in today’s money. You don’t draw that kind of bail for an unpaid speeding ticket.
@James Pearce:
The point being that while you and gun nut @Paul L indulge your paranoid, self-aggrandizing martyr fantasies of cops kicking in your doors, I lived for 22 years in the very real expectation that at any moment of day or night a cop could lock me away for three years in some very unpleasant place. You’re a fantasist; I’m a veteran.
@Gustopher:
I would agree with that, but with the caveat that it matters who he is threatening. He was an immediate threat to the intruder he killed, not the cop who shot him.
Do you agree that with no “duty to protect” that police do not have to enter any situation guns blazing?
@Michael Reynolds:
Dude, you are bragging about your bail amount, even adjusting it for inflation for some reason*, but you’re not trying to impress anyone?
* To make it look more impressive, perhaps?
@James Pearce: A while back, in Seattle, the police shot a deaf man who was whittling on his front porch. He failed to respond to the officer’s orders, because he was deaf, and the officer decided to shoot him.
That was a gross failure in policing. The man was not an immediate danger, as he was far enough away from everyone that he could not stab them. Even had he not been whittling, even if he was holding the knife menacingly, he would not have been an immediate danger because of the distance.
The man in your story had a gun. There is no safe distance. Simply holding a gun, ready to shoot, is menacing.
I think the police officer in your story acted appropriately, if the incident played out as reported. The circumstances make it a tragedy, but the officer did no wrong.
If you are brandishing a weapon and other people are in range of that weapon, you are a threat. When the police came, he should have put down the gun.
Guns may be a right, but they are also a responsibility.
@Gustopher:
So I take it your answer to my question is a no.
FWIW. I think I may have misinterpreted some of the stuff in this lawsuit. It’s a little more complicated than I implied.
@Michael Reynolds:
I think that if cops wants to be treated as heroes(and they want to) they should be willing to risking their f* lives. But I don’t blame anyone here and frankly I don’t know what I would do If were there. Dealing against an attacker that has a semiautomatic rifle means that the attacker has a pretty big advantage.
A pretty big advantage. Maybe the problem is allowing these losers to buy semiautomatic rifles.
@Gustopher: Yeah. Seattle is also the place where a couple of years back an officer who was sent as an expert to a national conference on deescalating confrontations advised of a case where he said he “deescalated” a confrontation by ‘shoving my gun in the guy’s face and telling him to shut the fk up’ (IIR the quote C). “Abuse of authority” isn’t just a phrase there these days, it’s a lifestyle.
If they aren’t there to protect students or teachers, what exactly is the value in having armed officers in a school?
@Kari Q: For an answer to that question, look up-stream a couple of comments for the remark (I’ll paraphrase): ‘…if cops want to be treated as heroes (and they do want to be treated as heroes)…’
And as long as my obviously jaundiced eye is on this thread — a comment about ‘courage’ and ‘cowardice’ and such: What people do in a huge frigging crisis is what they have been trained to do. For the overwhelming majority of us, that is pretty much ‘do nothing then panic’. For cops, firemen, paramedics, lifeguards and such, they should train. They should train a LOT! And they should be pretty damn well paid for their training.
Give me a frightened but well-trained emergency responder EVERY time.
@James Pearce:
Just telling the truth, Pearce. It’s what I do. It’s why I piss you off.
Well, if the good guy with a gun is not going to use it when such use is needed, then neither he nor his gun is needed. Dismiss him (or her) and take away the gun.
Of course, the alternative is to make much stronger efforts to keep deadly weapons out of the hands of people who shouldn’t be armed with anything more lethal than a pocket knife.
@Andre Kenji de Sousa:
We’ve rendered the word ‘hero’ useless. Every person in a uniform is now routinely referred to as a hero. The phrase ‘everyday hero’ is a nonsense. That’s the thing about heroes, they are by definition, exceedingly rare. And by the way, not always what you want. 99.9% of the time I don’t want a hero, I just want someone who can do their job. You only need heroes when systems have failed.
@Michael Reynolds:
Nah, it’s mostly the braggadocio.
@James Pearce:
I was making an effort to love my fellow man, or at least be tolerant of his imbecilities. Seriously, I was. Life had been generous to me, I thought I should tone down the sardonic contempt. And then: November, 2016.
Now, I see the problem in nodding along distractedly while morons and lunatics rave on. The whole of the last two years has been a lesson in not keeping quiet, whether it’s about men who abuse women, or sanctimonious religious hypocrites, or the corrosive self-pity of white males.
I am all out of patience with stupid and dishonest and weak. And my motivation for the use of ego-salving qualifiers and soft soap is about zero. I’m tired of trying to indulge ignoramuses. It’s boring.
I’ve told you many times: you want respect? Do the work. If you’re too lazy to inform yourself and lack the capacity to respond rationally to new data, why should I or anyone take you seriously? The thing is I know more than you. A lot more. Most of the regulars here know a lot more than you do. That’s not braggadocio, it’s reality. It’s not my job to guard your fragile ego.
@Michael Reynolds:
Of course you do.
(Did you know that the Nuggets are in first place in the Western Conference?)
@Michael Reynolds: I think that if you are willing to sacrifice your own life to protect other people you can be called a hero. And anyone that entered alone that f* building to stop a killer using a semiautomatic rifle would deserve the title.
On the other hand cops want to be treated as hero, and very few of them are willing to risk their lives to save others.
@James Pearce:
No, which is why I don’t go on sports sites and display my ignorance. Rather making my point for me again, Pearce.
The opinion denied Peterson’s motion to dismiss, but it states that the claims involved Fourth Amendment and immunity issues – not duty to protect.