Our country is again dealing with the aftermath of yet another school shooting, this time in Uvalde, Texas where an 18-year old man shot and killed 19 elementary school students and two teachers. This is incident is so horrific and so disturbing that it is hard to read or speak about.
One of the many disturbing details to emerge is what appears to be the abject failure of law enforcement to respond appropriately to this shooting. It is becoming apparent that officers waited to enter the building or classroom where the shooter was located as children called 911 begging for help, for almost an hour.
Because civil liability is our wheelhouse, we ask the question: can anyone be held accountable for this failure? Your gut may be yes, but the answer may be closer to no.
Today, the ABA journal published an article concluding that under Supreme Court precedent (as well as Texas law), law enforcement officials had no duty to act to save lives. The Supreme Court has previously held that there is no constitutional right to have your life saved from the actions of a private individual, and cases asserting civil rights claims against municipalities (often referred to as a 1983 case) in this context have been dismissed. Texas attorneys also did not think liability would attach under state law unless there was a “policy” implicated.
What about in New York?
So, here is The Law: (If you don't want to read the whole quote, the gist is, you usually can't sue police and firefighters for negligence because of something called “governmental immunity” unless their actions created a “special relationship” with you – basically they did something to assure your protection, that you relied on, putting yourself in a worse position).
“Generally, a municipality may not be held liable for the negligent performance of a governmental function, such as police and fire protection, because the duty to provide such protection is owed to the public at large rather than to any particular individual…However, where a municipality voluntarily undertakes to act on behalf of a specific citizen, who relies on a promise of protection offered by the municipality to his or her detriment, liability will attach because the municipality will have created a special relationship with the citizen seeking protection. To establish a special relationship, [a plaintiff is] required to show: (1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality's agents that inaction could lead to harm; (3) some form of direct contact between the municipality's agents and the injured party; and (4) that party's justifiable reliance on the municipality's affirmative undertaking.”
Trimble v. City of Albany, 144 A.D.3d 1484 (3d Dep't 2016) (internal quotation marks and citations omitted).
If you have ever had occasion to research whether a government entity is liable for failing to protect victims of a crime, you will come across the case Kircher v. City of Jamestown, 74 N.Y.2d 251 (1989). This case is upsetting. In Kircher, the plaintiff was – in every woman's worst nightmare other than having your kids slaughtered in a school shooting – abducted from a parking lot, stuffed into a truck, and repeatedly raped and assaulted. The abduction was witnessed by two people who immediately reported it to a police officer who said he would call in the report. He did not. The Court of Appeals, applying the doctrine of governmental immunity, held that the police officer (and City) were not liable because there was no special relationship with the victim – meaning, the police officer never had direct contact with her, affirmatively assuring her of his protection, on which she relied, and then failed to act.
This case is from 1989 but it is the law in New York, and has been repeatedly applied in cases involving crimes, including shootings, where the victim did not put him or herself in a worse off position due to an officer's assurances, even where we might be thinking, someone clearly dropped the ball and there should be consequences.
While we can understand the reasoning behind these cases – it is always difficult to hold someone accountable for the actions of a third person – there are times when this can be a tough pill to swallow. Uvalde is that time to the extreme.
We acknowledge that most of the time law enforcement officers bravely put themselves in harm's way in these situations. We also acknowledge that the officers in Uvalde will have to live with this for the rest of their lives. But, we still think there is value in figuring out what went wrong and how to prevent it in the future - and one of those ways may be increasing the civil and criminal consequences for individuals who have a part in preventing gun violence.
If you are interested in learning more about other civil liability issues that come up in the gun violence context, you can read about those here, including when parents entrust guns to their children and the effect of the Protection of Lawful Commerce in Arms Act (PLCAA) in shielding gun manufacturers and dealers from liability.