Pennsylvania Capital-Star
June 8, 2022
The first 911 call from Robb Elementary School in
Uvalde, Texas came at 12:03 pm. on May 24. Seventy-eight minutes later, a U.S.
Border Patrol tactical team killed the 18-year-old gunman, who had by that
time, killed 19 children and two adults.
According to The New York Times, a teacher, Eva
Mireles, spoke to her husband, an Uvalde School police officer, while she was
barricaded with her students in a classroom. Mireles was killed sometime after
that call.
As America collectively shook its head, the obvious
question was — why would law enforcement wait 78 minutes to enter the building?
The next question — as Americans reach for the proverbial torch and
pitchfork—can the police be held accountable criminally, or civilly, for their
inaction.
As the police department, police chief and school
district continue to revise, amend and disavow their original versions of what
happened outside of Robb Elementary School on that fateful day, we may never
truly know why the police did not immediately enter the building. We know that
Uvalde School District’s policy with regard to active shooters, and the state
of Texas policy, were very similar. Their training had units entitled “stop the
dying” and “stop the killing”—neither of which happened for 78 minutes.
That brings us to the second question,
accountability. The school police in Uvalde will not face criminal or civil
liability for failing to confront the shooter who killed 19 students and two
teachers. Most people would be surprised to know that the government is not
required to protect its citizens — the U.S. Supreme Court has said as much.
The lack of accountability is not unique to Texas.
The result would probably no different in Pennsylvania and probably every other
state in the union.
Criminal Charges
Experts who spoke to The New York Times said a
negligent homicide charge 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.”
Uvalde school district’s police force had recently
gone through active shooter training. The Texas Commission on Law Enforcement
training “Active Shooter Responses for School Base Law Enforcement” warns
participants that “first responders to the active shooter scene will usually be
required to place themselves in harm’s way and display uncommon acts of courage
to save the innocent.”
Initially, some law enforcement officers attempted
to confront the shooter but were wounded. At that point the chief of police
ordered down the officers on scene. Apparently, the police command
decided to pursue a different tactic. More than an hour passed before a second,
and successful, confrontation with the shooter occurred.
Civil Liability
Qualified immunity provides enormous protection from
civil liability for police officers when acting in the line of duty. Qualified
immunity grants law enforcement officers performing “discretionary functions”
immunity from civil liability unless the claimant can prove that the officer
violated “clearly established statutory or constitution rights of which a
reasonable person would have known”.
The U.S. Supreme Court has said that “Qualified
immunity balances two important interests — the need to hold public officials
accountable when they exercise power irresponsibly and the need to shield
officials from harassment, distraction, and liability when they perform their
duties reasonably.”
The discretionary function in the Uvalde shooting
was, “Is this an active shooter or a barricaded assailant?”
The U.S. Supreme Court has held that the government
has no duty to act to save innocent lives. In 1989, the Supreme Court reviewed
a case brought against a Wisconsin child welfare agency by the family of a
child beaten so severely he would remain institutionalized for the rest of his
life.
The suit was brought under Section 1983 of the Civil
Rights Act—the federal statute that allows a claimant to sue state and local
officials in federal court for violating federal constitutional rights—alleging
the child welfare agency failed to intervene to protect the child.
The lawsuit alleged that the failure to act deprived
the child of his liberty in violation of the 14th Amendment’s due process
clause. The Supreme Court disagreed.
“Nothing in the language of the due process clause
itself requires the state to protect the life, liberty and property of its
citizens against invasion by private actors,” the high court found.
Sixteen years later, the U.S. Supreme Court agreed
to hear the appeal of Jessica Gonzales against the Castle Rock, Colorado Police
Department. Gonzales had a restraining order against her ex-husband. He
kidnaped their children and Gonzales pleaded with the Castle Rock Police to
enforce the restraining order.
The officers made no effort to locate or arrest
Gonzales’ ex-husband. He later showed up at the police station and
engaged in a gun fight with police resulting in his death. Tragically,
the police found the three children murdered and thrown in the trunk of the
ex-husband’s car.
Gonzales also sued the police department under
Section 1983. She argued that the Colorado legislature had made enforcement of
the restraining orders mandatory and that, as a result, the police had violated
the Due Process Clause by not carrying it out.
Again, the Supreme Court disagreed. Justice Antonin
Scalia wrote “were a mandate for enforcement to exist, it would not create an individual
right to enforcement.”
The Uvalde School District itself will be insulated
from liability through the doctrine of sovereign immunity. Other than the
scrutiny of a U.S. Justice Department investigation and an investigation by the
Texas legislature, there does not appear to be any clear path to accountability
in Uvalde, Texas.
Opinion contributor Matthew T. Mangino is of counsel
with Luxenberg, Garbett, Kelly and George. P.C. and the former district
attorney of Lawrence County, Pa. His work appears frequently on the
Capital-Star’s Commentary Page. He is the author of The Executioner’s Toll, 2010. Readers may follow him
on twitter @MatthewTMangino or email him at mmangino@lgkg.com.
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