South Florida Sun-Sentinel (Sunday)
Did police have a legal duty to protect students at Stoneman Douglas school?
Obligations under state law are far different than federal law
First a Broward circuit judge found that an armed deputy on duty at Marjory Stoneman Douglas High School had a legal obligation to protect students and could be sued by victims of the Feb. 14 massacre there.
Then days later, a federal judge in a different case found that same deputy — as well as the sheriff’s department, Broward Schools, and two other defendants — had no legal obligation to protect students.
Both lawsuits are aimed in part at police inaction during the mass shooting. The only armed officer on campus, Deputy Scot Peterson, as well as other Broward deputies and commanding officers, were the first to respond
but took cover outside as students and faculty were being murdered within.
Coral Springs police officers rushed into the building shortly after they arrived on scene.
But the two lawsuits found disparate fates within days of each
other — one dismissed and a request to dismiss the other denied, leading to the question of just what is expected of police officers who face the dire threat of an active killer.
They are, after all, compensated for serving the public in life-and-death situations that put them in danger.
Officers should respond “immediately, with no delay” to an active shooting, regardless of the legal ramifications, said Florida Police Chiefs Association President David Perry, who also serves as chief of police at Florida State University.
“The expectation in today’s world is that law enforcement officers respond promptly,” Perry said. “And if that means responding in a one-man team, two-man team, three-man team, someone has to respond immediately to engage that threat.”
The federal case that was dismissed Dec. 17 was about constitutional law, not practical expectations of police officers, lawyers say.
That lawsuit was filed by 15 students against 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. It argued that under the U.S. Civil Rights Act, the victims had an expectation that they would be protected by police.
U.S. District Judge Beth Bloom found that the person who was culpable in the Parkland shooting was the shooter, not the law enforcement officers who responded — regardless of whether the response was adequate or proper.
But there’s a broader standard under state law, according to Joel Perwin, an attorney representing Andrew Pollack, who lost his daughter in the shooting and is now suing Peterson in the state case.
“You have to establish a couple of things. First, you have to establish that the government official being sued acted in a wanton, reckless and willful way. He can’t just be negligent,” Perwin said. “And you have to establish that the policeman or whatever government official had a special relationship with the plaintiff.”
According to Perwin, a long string of case law has established that children in schools have a relationship with school resource officers that is above and beyond the relationship those officers may have with the public at large.
Perwin, who is not involved in the federal lawsuit, said he disagreed with the judge’s opinion that police officers weren’t legally obligated to protect students.
“The problem I have in that is this: Even though the shooter is obviously acting wantonly and recklessly, other people can be too,” he said.
Peterson’s duty “was not to the public at large, his duty was to them,” Perwin said. Peterson asked a judge to dismiss the state suit because, his attorney argued, he had no legal duty to protect the children in his care.
But those legal obligations under state law are far different than federal law, where previous cases established that the victim must have been in police custody at the time of the incident.
“It’s not enough to just establish that somebody is guarding the school and has a special relationship with the students,” Perwin said of federal cases. “In this context, you only have a duty to people you have custody over. So there typically isn’t a constitutional duty.”
Perry, the FAU police chief, said that expecting officers to rush toward extreme danger also means they need ongoing training.
“It’s not just active-shooter drills. When we go to the range to qualify, other types of training, it should be integrated,” he said. “Training should be recurring on an ongoing basis. That’s our best practice. You have to continue to practice and train on things you want to be proficient at so when the action or time comes, you’ll respond proficiently.”
Coral Springs officers told a state commission investigating the shooting that they trained regularly and recently for active shooter situations, while most deputies told the commission they had last trained for active shooters in 2015 or 2016.
As part of our “Sound Off South Florida” initiative, we asked readers what they thought. Should police have a legal duty to protect citizens, and does that make them liable in lawsuits if they don’t?
Most readers felt law enforcement officers’ failure to act in situations like this should open them up to legal consequences.
“If police do not have a legal duty to protect their citizens what is the point of having police? If we do not hold them accountable when innocent lives are lost while they cower in fear from the sound of gunfire, when do we hold them responsible?” wrote Victor Hair. “Can they choose not to pursue a kidnapper because they might get shot? Do we let each individual officer decide in each individual circumstance what they will or will not do to protect the people that pay them to do just that?”
Several other readers pointed to the exact legalities involved in both the federal and state court cases, though they came to various conclusions.
“One judge is correct, the other with be overturned,” wrote Bill Murphy. “The Supreme Court has already ruled on this. Police do not have a constitutional duty to protect a person from harm.”
On the other hand, reader Shane Campbell was on the mark, writing that “There is no conflict in the two rulings. They are looking at two different sets of laws. One federal and one state.”