Legal recourse scant in Uvalde, experts say; action against police an uphill fight | #students | #parents


In the aftermath of the mass shooting at an elementary school in Uvalde, Texas, parents and community members have clamored for accountability, asking how officers allowed a gunman to remain inside a locked classroom with injured students for more than an hour.

But any legal remedy could be difficult to achieve. A lawsuit would have to overcome the legal immunity that protects police officers during the course of their duties. And while officers have occasionally been charged and convicted when their actions caused death, criminal charges against police who failed to protect the public are extremely rare.

Generally speaking, said Seth Stoughton, a former officer who now tracks police accountability as a professor of law and criminal justice at the University of South Carolina, actions are legally easier to punish than omissions.

“I think it would be difficult, but it’s possible,” he said. “We can only punish someone for failing to do something if they were legally required to do it.”

The law usually does not require people to put themselves in harm’s way even if training instructs them to do so, Stoughton said.

Officers with the Uvalde school district’s police force had gone through active shooter training as recently as two months ago, with guidelines that call for them to confront a gunman to halt the bloodshed.

“A first responder unwilling to place the lives of the innocent above their own safety should consider another career field,” the guidelines say.

While some of the first officers on the scene initially moved toward the door that the gunman was behind, they were grazed with bullets, and the district police chief decided to delay a confrontation, officials have said. A growing group of officers waited for more than an hour outside the classrooms where the gunman had opened fire, even as children inside the rooms called 911 and pleaded for help.

There is a precedent for bringing charges against law enforcement for its response to a mass casualty event. In the shooting that killed 17 people at a high school in Parkland, Fla., four years ago, prosecutors are pursuing a criminal case against Scot Peterson, arguing that as a school resource officer, the laws that apply to caregivers should apply to him. Peterson, who prosecutors say took cover behind a wall while a gunman moved through several floors of Marjory Stoneman Douglas High School, has been charged with seven felony counts of child neglect.

In Texas, prosecutors could potentially turn to the state’s statute on negligent homicide, said Laurie Levenson, a former federal prosecutor who is now a professor at Loyola Law School. She said officers could also face charges under federal civil-rights statutes, but they require proving an officer’s intent.

Experts said such a case would revolve around whether the officers had a duty to act in that moment and whether the failure to do so amounted to deliberate indifference. The Texas penal code says criminal negligence results when a person “ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur.”

“The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise,” it says.

Such a case would require a deep look at the decision-making and the many factors the officers considered in the moment. Authorities have said that the incident commander ordered officers not to confront the gunman, believing that the situation had transitioned from an active shooter scenario to a barricaded subject, which can call for a more deliberative approach.

“It’s a lot more complicated when the officers failed to act,” Levenson said. “It doesn’t mean that you don’t bring charges, but you have to look at why they failed to act.”

Kevin Lawrence, executive director of the Texas Municipal Police Association, said it would generally be hard to prove that an officer had such an extreme level of indifference that it rose to a criminal rather than a disciplinary level.

“You can’t criminalize failure,” Lawrence said. “As long as you are picking cops from the human race, they are still going to be subject to human failures.”

Nicole DeBorde Hochglaube, a defense lawyer in Houston who has represented numerous law enforcement officers, said that while charges for failing to act might encounter legal difficulties, investigators were probably also looking to see if officers could face other charges, given the numerous incorrect accounts of the shooting given by officials early on. Police reports that do not align with body camera footage, 911 calls or other records could open officers up to such charges, she said.

GUN LAWSUITS

Another legal tactic in recent years has been the targeting of gun manufacturers. The parents of a 10-year-old victim in the mass shooting and a staff member at Robb Elementary School are taking their first steps toward legal action against the gun-maker that made the semi-automatic rifle used by the gunman.

Gun-maker Daniel Defense has come under scrutiny in the days since Salvador Ramos, 18, used a DDM4 rifle to unload hundreds of rounds of ammunition in the worst shooting at an American school in nearly a decade. The company has only released a statement expressing “our thoughts and our prayers” for the victims.

On Friday, Alfred Garza III and Kimberly Garcia — the parents of Amerie Jo Garza, a student killed in the shooting — sent a letter to Daniel Defense seeking information about the Georgia-based company’s marketing to teens and children, according to their attorneys. The letter sent to the gun-maker, obtained by The Washington Post, also asks Daniel Defense to provide communications with the Uvalde shooter.

“My purpose for being now is to honor Amerie Jo’s memory,” Garza said. “She would want to me to do everything I can so this will never happen again to any other child.”

A lawsuit has not yet been filed, but the letter is among the first signals that litigation could be coming related to the shooting.

“Daniel Defense has said that they are praying for the Uvalde families. They should back up those prayers with meaningful action,” said Garza’s attorney, Josh Koskoff, in a statement. “If they really are sincere in their desire to support these families, they will provide the information.”

The action from the slain 10-year-old’s family came after a similar move Thursday from Emilia Marin, a Robb Elementary staffer who filed a petition to investigate Daniel Defense’s marketing to young people and for company officials to sit for a deposition. Marin, an after-school-program worker who has been employed by the district for about 25 years, had closed a door she had propped open after she saw Ramos heading toward the school, her attorney, Don Flanary, told the San Antonio Express-News. The door was supposed to lock, but it did not, he said — allowing the gunman to be able to enter the school.

Flanary told The Post that Marin is facing severe and lasting psychological trauma she has suffered since surviving the attack — and also experiencing hurt from initial remarks by state authorities saying the door had been left open. The Texas Department of Public Safety eventually corrected an initial explanation of what happened, saying Marin shut the door behind her, but it “did not lock as it should.”

“She’s not doing well because of the obvious effects of being in the center of the violence,” Flanary said. “If Daniel Defense specifically marketed to minors or unstable people or people they thought could be dangerous, that could be action that is so egregious that could cause them to have liability in the state of Texas.”

Marin’s filing, which could lead to a lawsuit, is asking for information on the company’s AR-15-style rifles, which were previously tied to another mass shooting — the 2017 attack at a country music festival in Las Vegas. Four of Daniel Defense’s rifles were found in the arsenal used by the gunman to kill 58 people and injure hundreds in the deadliest mass shooting in modern American history.

The petition is exploring whether Daniel Defense’s marketing changed at all in the years since.

A spokesperson for Daniel Defense did not immediately respond to a request for comment. On Daniel Defense’s website, a message appears on the homepage acknowledging the May 24 shooting and how the gun-maker is “deeply saddened by the recent tragic events in Texas.”

“We will cooperate with all federal, state, and local law enforcement authorities in their investigations,” the message reads. “We will keep the families of the victims and the entire Uvalde community in our thoughts and our prayers.”

CALL FOR ACCOUNTABILITY

Meanwhile, Rep. Carl Sherman Sr., D-Texas, said he would like to see more built-in accountability to investigate law enforcement failures, noting that other professions, such as nursing, have more robust systems in place.

“It is time that we have more systemic accountability in policing,” he said. “Apologizing for poor decisions is just not sufficient.”

But Sherman, whose son is a police officer, was unsure whether criminal accountability was the right path for handling officers who failed to protect others. He noted that officers initially responding to a scene with a basic service handgun on their hip may find themselves ill-equipped to confront the high-powered weaponry of a gunman.

Lawmakers have the responsibility to change those dynamics, he said, by banning assault weapons and high-capacity magazines. He also said legislative solutions such as stronger background checks, safe-storage laws, red-flag laws and more opportunity to hold gun manufacturers liable are options for protecting communities from the threat of mass shootings, short of putting so much responsibility in the hands of the police.

“The responsibility is primarily with lawmakers,” he said. “We are putting officers in these positions.”

EYES ON McCONNELL

Advocates seeking new restrictions on the ability to buy guns were inherently skeptical of Senate Minority Leader Mitch McConnell’s initial step to greenlight bipartisan brainstorming of solutions.

As they tracked the GOP leader’s comments in Kentucky last week, their skepticism swiftly morphed into deeper distrust and doubt.

McConnell did not place guns at the center of his legislative updates to Rotary clubs and business groups throughout the commonwealth. Rather, he notably appeared to narrow the conversation to “two broad categories that underscore the problem.”

“Mental illness and school safety are what we need to target,” he said Thursday, adding that it must be “something consistent with the Second Amendment.”

Noah Lumbantobing, a spokesman for March for Our Lives, a student-led gun control group planning nationwide protests over the issue, called McConnell’s comments “an absolute cop-out.”

“On Mitch McConnell, we’ve been here before. We’ve been disappointed before. We don’t trust him,” Lumbantobing said. “If there’s a pathway forward it’s not going to be through Mitch McConnell, it’s going to be a pathway through others.”

Activists such as Lumbantobing are looking to Texas Sen. John Cornyn, who hails from the state still reeling from the pain and loss at Uvalde.

Cornyn, who has a desire to succeed McConnell as GOP leader one day, is part of the small McConnell-blessed working group attempting to forge a compromise that could net 10 GOP votes in the Senate.

Cornyn looks to be warming to red-flag laws, which would allow police, family members or a school official to secure a court order that permits seizure of a weapon from someone exhibiting behavior that is threatening to oneself or others.

“We need to do a lot more than we’ve done in the past,” Cornyn said Wednesday. “First and foremost is to keep guns out of the hands of people who are mentally ill or criminals. To me, that should be a point of consensus.”

McConnell hasn’t mentioned red-flag laws during the Senate recess last week, but in 2019 he told a Kentucky radio program that such proposals and the expansion of background checks would be “front and center” after mass shootings in El Paso, Texas, and Dayton, Ohio.

The talks did not lead to legislation.

And also on Thursday, McConnell began to draw protesters as he continued his week of statewide stops, where he addressed the Mount Sterling-Montgomery County Chamber of Commerce.

“We cannot in good faith allow him to sit and enjoy a quiet lunch while children are fighting for their lives in schools, the elderly are praying for safety in grocery stores, and while worshippers are fighting to just be able to praise God among their peers,” said Kevin Fields, an organizer of the “Call to Action” in Mount Sterling.

March for Our Lives will hold nationwide protests on Saturday, with scheduled events in Frankfort and Lexington.

But protests aren’t likely to factor much in McConnell’s decision.

What McConnell’s opponents believe and ultimately fear is that he’ll appear cooperative of a deal and then find a reason to walk away.

For advocates, a new red flag law and universal background checks would be the floor of what is possible and should be passed.

If McConnell is serious about addressing mental health, Lumbantobing asks, “Why not expand Medicaid?”

But momentum for gun law is time sensitive, meaning the more days pass from Uvalde, the easier it will be to slip out of the public’s minds until the next mass shooting.

“It’s our hope that Mitch McConnell won’t be able to wait out the outrage of this as he has in the past,” Lumbantobing said.

Information for this article was contributed by Shaila Dewan and Mike Baker of The New York Times, Timothy Bella of The Washington Post, and David Catanese of McClatchy Washington Bureau (TNS).

    Law enforcement officials gather Friday outside Sacred Heart Catholic Church in Uvalde, Texas, during the funeral for Jacklyn Cazares, a fourth-grader who was among the mass shooting victims at her school. Police and fire vehicles were used to cut off access to the road outside the church. (AP/Eric Gay)
 
 



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