Failure to Protect: Potential Liability Factors in School Shootings
“To hear the ensuing debate about arming teachers and principals and security guards, I just want to go on the record with the board in saying I think that is one of the most irresponsible positions to take in this gun discussion.”
Federal Way School Superintendent Rob Neu at school board meeting after the Sandy Hook school shootings:
“I hate this conversation, I hate that it’s a necessary evil. What happened in Newtown…is just horrible. And having young children at home, and sitting and watching the TV, and seeing those photos with the names being called…with your children in the room, looking at the TV, and looking at you, and you’re fighting back the tears. You’re so thankful they’re sitting in that living room with you, and you’re not one of those parents. I can’t imagine what those parents feel like.”
” But the reality is, if a gunman wants to do what these gunmen want to do…there’s little that anyone can do to stop them. Putting guns in the hands of teachers and principals, who got in this business of educating kids, and not being armed forces…It’s just not a solution, in my mind, and will not be one that comes forward as a recommendation while I’m your superintendent.”
-FEDERAL WAY SCHOOL SUPERINTENDENT ROB Neu
ISSUE: Are proposals to arm teachers and/or administrators irresponsible? What are the potential liabilities faced by school boards that arm school personnel compared to a policy of employing only unarmed School Resource Officers.
FEDERAL LAW: The Gun-Free School Zones Act (GFSZA, codified at 18 U.S.C. § 922(q); federal United States law that prohibits any individual from knowingly possessing a firearm at a place that the individual knows, or has reasonable cause to believe, is a “school zone” as defined by 18 U.S.C. § 921(a)(25). The Gun-Free School Zones Act of 1990 states in part:
(A) It shall be unlawful for any individual knowingly to possess a firearm that has moved in or that otherwise affects interstate or foreign commerce at a place that the individual knows, or has reasonable cause to believe, is a school zone.
(Subparagraph (A) does not apply to the possession of a firearm—
(iv) by an individual for use in a program approved by a school in the school zone;
(v) by an individual in accordance with a contract entered into between a school in the school zone and the individual or an employer of the individual;
(vi) by a law enforcement officer acting in his or her official capacity; or…
WASHINGTON STATE LAW: Similar to federal statute. RCW 9.41.280. States the following in part:
Possessing dangerous weapons on school facilities — Penalty — Exceptions.
(1) It is unlawful for a person to carry onto, or to possess on, public or private elementary or secondary school premises, school-provided transportation, or areas of facilities while being used exclusively by public or private schools:
(a) Any firearm;….
(3) Subsection (1) of this section does not apply to:
(b) Any person engaged in military, law enforcement, or school district security activities. However, a person who is not a commissioned law enforcement officer and who provides school security services under the direction of a school administrator may not possess a device listed in subsection (1)(f) of this section unless he or she has successfully completed training in the use of such devices that is equivalent to the training received by commissioned law enforcement officers;
See Washington State Gun Free School statute.
Subsection (1)(f) includes:
(f)(i) Any portable device manufactured to function as a weapon and which is commonly known as a stun gun, including a projectile stun gun which projects wired probes that are attached to the device that emit an electrical charge designed to administer to a person or an animal an electric shock, charge, or impulse; or
(ii) Any device, object, or instrument which is used or intended to be used as a weapon with the intent to injure a person by an electric shock, charge, or impulse.
CONCLUSION: The legislature has already provided that non-law enforcement personnel armed with firearms need only be involved in school district security activities; i.e., authorized to carry a weapon for security purposes.
THEORIES OF NEGLIGENCE RELATED TO ARMED SCHOOL PERSONNEL
A PRUDENT PERSON FORESEES DANGER AND TAKES PRECAUTIONS. THE SIMPLETON GOES BLINDLY ON AND SUFFERS THE CONSEQUENCES. Prov. 22:3
Foreseeability issues: Teachers are the other major group in schools that face victimization. During similar periods of time, the reports of threats declined from 12% to 7% from 1993-94 to 2003-04. n33 However, the reported incidents of physical attack, at 4%, were not measurably different comparing 1993-94 and 2007-08. n34 Threats declined, but attacks upon teachers remained unchanged .(13 Conn. Pub. Ont. LJ. 275.)
1. Unauthorized individuals may access a firearm that is negligently stored. How will firearms in schools be stored safely and used safely?
2. Will the individual employee or the employing school district, or likely both, be liable for this increased foreseeable harm of bringing weapons to school with hundreds of adolescent students if a foreseeable injury occurs?
3. How many employees will be allowed to carry weapons at school?
4. Are there risks that are foreseeable from inadequate training. How should school boards ensure that personnel are properly trained if concealed weapons are allowed at school?
Currently, at least eleven states have adopted the “armed-teachers” approach in fighting the war against school violence.
PUBLIC DUTY DOCTRINE: Maintaining a GUN FREE ZONE is a policy decision involving discretion and not operational duties involving no discretion; i.e., Ministerial.
RCW 4.96.010 Tortious conduct of local governmental entities—Liability for damages.
(1) All local governmental entities, whether acting in a governmental or proprietary capacity, shall be liable for damages arising out of their tortious conduct, or the tortious conduct of their past or present officers, employees, or volunteers while performing or in good faith purporting to perform their official duties, to the same extent as if they were a private person or corporation.
Public Duty Doctrine - In General. Under the public duty doctrine, liability may not be imposed for a public official’s alleged negligent conduct unless it is shown that the duty breached was owed to the injured person as an individual and was not merely the breach of an obligation owed to the public in general (i.e., a duty to all is a duty to no one).
Exceptions to the PUBLIC DUTY DOCTRINE: (1) legislative intent, (2) failure to enforce, (3) the rescue doctrine, and (4) a special relationship. BABCOCK V. MASON COUNTY FIRE DIST. NO. 6 , 144 Wn.2d 774 , 784, 30 P.3d 1261 (2001).
In CUMMINS V LEWIS COUNTY, Mrs. Cummins brought a wrongful death action alleging that her husband’s death was the result of the negligence of the Lewis County 911 emergency dispatch unit as well as that of the Centralia police department which had responded to the call. The court determined that no assurances creating a special relationship had been provided by the 911 dispatcher. CUMMINS V LEWIS COUNTY, 156 Wn.2d 844 (2006).
ISSUES: a. Does a policy decision to maintain a so-called gun-free zone constitute a special relationship?
b. Where the law requires that children attend school, is there a special relationship existing such that there is a specific, individualized duty to protect?
In HALVORSON, a city defendant had been dismissed on the grounds that it did not have a tort duty to enforce fire codes. See HALVORSON , 89 Wn.2d 673. We reversed. The HALVORSON court considered the fact that the inspection and enforcement of building codes existed for the ” welfare of the occupants of such buildings.” HALVORSON n, 89 Wn.2d at 677 (quoting former SEATTLE HOUSING CODE 27.04.020). Therefore, the court found a duty was owed to those who lived in the buildings.
The court also noted that if the ordinance was enacted for purposes of public safety or the general welfare, the duty was not enforceable in tort by any one particular individual. HALVORSON, 89 Wn.2d at 676.
These later Washington cases are sometimes collectively referred to as the “public duty” cases because courts, in interpreting individual statutes or ordinances, often found that no particular person or class of persons was intended to be protected. See, e.g ., Michael Tardif & Rob McKenna, Washington State’s 45-Year Experiment in Government Liability , 29 SEATTLE U. L. REV . 1, 48 n.290 (2005).
See DESHANEY V WINNEBAGO COUNTY DEPT. OF SOCIAL SERVICES, 489 US 189 (1989); See also ESTELLE V GAMBLE, 42 US 97 (1976)(Deliberate indifference by prison personnel to a prisoner’s serious illness or injury constitutes cruel and unusual punishment contravening the Eighth Amendment but no indifference where simply medical malpractice and lacking magnitude of a Constitutional tort).
CONCLUSION: It is doubtful that school districts owe a special duty to keep students safe. Nevertheless, OSHA regulations and other administrative codes create a duty to keep school employees safe from foreseeable harm. Thus, a prisoner in custody of the DOC or any public employee has a better claim against the respective public entities than a student in custody of a public school! Child may be in custody of school authorities due to compulsory education law but building the body of case that will compel school authorities to protect children’s lives will take new statutes or a long line of case law precedent must be forthcoming, probably under 42 USC 1983.
42 USC 1983 LIABILITY
INSURANCE ISSUES: School Districts that determine that arming school personnel is more cost-effective than armed SCHOOL RESOURCE OFFICERS (RSOs) will find that liability insurance coverage is either not available or that actions of armed personnel are excluded from coverage. This is an unintended consequence of Washington’s PUBLIC DUTY DOCTRINE that excludes policy decisions but waives Sovereign Immunity for ministerial acts.
But the issue is whether the failure to protect meets the requisite element of 42 USC 1983 liability in that the facts present a policy, custom or practice of violating Constitutional rights under color of law.
NOTE WELL: The requisite disregard for Plaintiff’s to 14th Amendment Constitutional right to life will always raise the issue of whether a mere failure to protect rises to the level of a Constitutional tort.
Under 42 USC 1983, the problem is that a passive omission or failure to intervene normally does not rise to the level of a Constitutional Tort; i.e., one that shocks the conscience. Arming teachers, on the other hand, can be characterized as an affirmative act and arguably becomes a state-created danger in the event of an accidental discharge, unauthorized access to a negligently stored weapon or where a frightened and poorly trained volunteer shoots at a bad guy and hits an innocent 3rd party during a school shooting rampage.
The irony is that lawsuits for school districts that fail to stop garden variety of bullying have multiplied but a claim for a school district’s failure to protect may be easily dismissed on a Motion for Summary Judgment. Furthermore, a District is prone to be sued under 42 USC 1983 for negligent acts of its armed employees. See MONELL V DEPT. OF SOCIAL SERVICES NY, 436 US 658 (1978).
REQUISITE TRAINING: The best protection against such legal action pursuant to 42 USC 1983 is to require training that meets the same requirements expected of law enforcement under current case law.
FIREARMS AND USE OF FORCE TRAINING: Training must be tailored to specific needs and consequently becomes a compelling factor when the allegation arises that armed school personnel are not in compliance with the guidelines spelled out by the U.S Supreme Court in POPOW VS MARGATE, 476 F.Supp. 1237 (Dist. N.J. 1979) (Officer’s firearms training of going to a range twice a year; no training with respect to low light conditions, moving targets or firing in residential areas. Entirely foreseeable that an officer from the City of Margate, a largely residential area, would have to pursue a moving suspect at night under low-light conditions).
Note: Just as LEOs must be trained in the specific situations that an officer will foreseeably encounter, armed school personnel, (whether SROs or specially trained volunteers) must train for many foreseeable situations that are inherently different than situations presented to traditional uniformed LEOs. These situations would include, for example, a plain-clothes officer entering the scene under Active Shooter Protocols that encourage any officer that arrives first to enter the area and neutralize an active shooter. See YOUNG V. CITY OF PROVIDENCE, 2004 U.S. Dist. LEXIS 1847 (R.I. 2004).
1. Situations that may be de-escalated by non-deadly force responses;
2. Response to emotionally disturbed persons;
3. Response to off-duty LEO response situations;
4. Response to suicide situations;
5. Decision making with respect to good citizens who are in possession of firearms and try to intervene;
6. Crowd scenarios and hostage situations where missed shots may endanger innocent persons; and
7. Fleeing attackers that or other persons that turn with innocent objects in their hands that look like guns.
Liability cannot be absolutely eliminated unless the legislature immunizes armed volunteers who act in good faith. Such immunity should be enacted with specific criteria for state mandated certification that includes:
1. Psychological evaluations such as LEOs undergo;
2. Reality Based Training (RBT) exercises;
3. Shoot don’t shoot scenarios with simulators or simulated live-fire ammunition;
4. Stress-training with firearms in RBT scenarios.
All of the above are either mandated or strongly suggested in case law dealing with law enforcement training.
Such training protocols that provide authentic, innovative, and up to date training do not guarantee that mistakes will not be made under stress. Just as with LEOs, the emphasis on Realty Based Training diminishes liability for a school district. Active Shooter Protocols (ASP) with live-fire simunitions in conjunction with law enforcement ASP training must be required. Until the Washington State Legislature takes such action, each school board should consider establishing such criteria and begin a certification process that can be combined with armed SRO training.
A mix of uniformed and non-uniformed personnel is most effective at deterring and stopping armed school attacks; provided that there are RBT components for school personnel, LEOs and SROs to recognize each other.
All law enforcement officers (LEOs) should be getting such training under YOUNG V. CITY OF PROVIDENCE (plainclothes officers holding suspect at gunpoint shot responding uniformed officer in low-light situation). The court determined liability based on an admission of of very limited training in RBT scenarios and especially low-light situations.
STANDARD OF CARE: As more Districts take these steps, new industry standards will be established creating a new standard of care. At least 11 states already have approved some kind of concealed carry in public schools. Insurance companies once were averse to insuring armed anti-piracy units at for maritime shipping. In a few short years this has become an industry practice and insurance is getting less expensive.
Air Marshals and armed pilots were extremely controversial. Many years later and the programs have been a success despite all the arguments that were similar to the arguments against armed school personnel. Furthermore, the Law Enforcement Officers Safety Act of 2004 was opposed by many law enforcement associations, including the Washington Association of Sheriff’s and Police Chiefs because the federal law empowered retired officers to carry on all 50 states and Washington, DC and the islands. There has been no outcry since enactment that retired LEOs impaired by dementia have created a hazard across the land.
OSHA, STATE & LOCAL REGULATIONS AS BASIS FOR EMPLOYER LIABILITY: Administrative regulations provide a standard of care because they establish an industry practice standard. For example, Occupational Safety & Health Act (OSHA) has promulgated a regulation at 29 CFR 1910.157 requiring Emergency Action Plans (EAPs) if there are fire extinguishers required or provided in the workplace.
The OCCUPATIONAL SAFETY & HEALTH ACT states at Sec. 5(a)(1) that every employer in the United States shall furnish to each employee employment and a place of employment which are free from recognized hazards that are likely to cause death or serious physical harm to employees.
This is often called the General Duty Clause. Failure to so provide can result in fines and an investigation involving training and procedure, including EAPs. Local and state authorities having jurisdiction may be the Department of Labor and Industries and local fire departments which maintain variations of the International Fire Code. These get updated after major terrorist attacks like the Oklahoma City federal courthouse bombing and the World Trade Center attack in 2001.
These will not specifically deal with Use of Force scenarios in most cases but as terrorist attacks become more frequent, it will become more important for schools, other governmental entities and businesses to include Use of Deadly Force protocols into their EAPs. Although the basis for liability on mass shootings is not clear at this time, the Public Duty Doctrine and other bodies of law that shield public and private entities are in a state of transition.
The changes being driven by mass Active Shooter incidents will continue to bring about rapid change in industry standards. Management at apartment complexes has experienced increasing liability over many years for failing to protect tenants from violence. Stores have increased responsibilities in parking lots and other vulnerable areas. Statutory codes and case law precedent increasing the potential for 3rd party violence are in transition in convenience stores and many other workplace environments across the United States. LEOs are also held to higher standards of care when it comes to use of force and custodial situations.
Maybe the least well protected are the school children. Most American children are within the custody of public school administrators and employees; it is unacceptable for school authorities to put money and institutionalized politically correctness ahead of the most important Substantive Due Process right- preservation of a child’s Constitutionally protected interest in life and the child’s liberty interest in pursuing compulsory education without the anxiety now faced in our vulnerable schools.
Many school administrator’s actually think they don’t have the authority to protect children’s lives. And they don’t want to hear otherwise. Failure to participate in the discussion sets in place a perfect record for a good mass tort lawyer. Unfortunately, true change may only start when school district employees initiate legal action against their employers for failing in the employer duty to provide a safe workplace.
The State of Washington and the federal government have empowered school administrators to empower their employees. A school superintendent that hates the necessary conversation about armed force is not making a reasoned policy decision- he is abdicating responsibility to protect lives where he or she, the Administrator, has a general duty to protect lives.
That is also called paralysis or reckless indifference to Constitutional rights and we are seeing it throughout our institutions. It may take years of collecting data like it did in the litigation against Big Tobacco. That is the amazing thing about our profession. We will spend years in the discovery process with various legal actions until we have the means to bring about change in whole industries. A sea change is coming to security planning in Big Education and many other industries.