The prosecutors are walking a fine line. This tact would not be available in 99% of police misconduct cases. It will be entertaining as hell to watch this play out but my gut says most of these charges may not stick.
The United States Supreme Court has already ruled that police officers have a duty to the Public at large, but not to individuals. This means that police failure to respond is not actionable. Once police do respond and engage, then their actions have to conform with accepted practice. The wrinkle, in this case, is that the Deputy was assigned as a “school resource officer.” The prosecutors seem to feel that school resource officer position puts the deputy into the same category as school administrators and teachers.
School personnel assume the status of in loco parentis. More from Wikipedia, the lazy man’s reference:
The term in loco parentis, Latin for “in the place of a parent” refers to the legal responsibility of a person or organization to take on some of the functions and responsibilities of a parent. Originally derived from English common law, it is applied in two separate areas of the law.First, it allows institutions such as colleges and schools to act in the best interests of the students as they see fit, although not allowing what would be considered violations of the students’ civil liberties.Second, this doctrine can provide a non-biological parent to be given the legal rights and responsibilities of a biological parent if they have held themselves out as the parent.Wikipedia
In this instance, the keyword is “RESPONSIBILITIES.” Parents, or people acting in place of a parent have an obligation to children in their charge. If one accepts that the deputy had an in loco parentis obligation, then refusing or failing to act is an omission, contrary to his responsibility.
The legal theory is that Peterson had an obligation to act. He had the training and equipment to intervene in the shooting and didn’t. Because he was obliged to act, that omission is considered to be negligence.
Let me put this into context. Police have no obligation to respond because your cat is stuck in a tree. If the police do respond and shoot the cat to remove it from the tree, then the cat owner may have cause to sue. The issue would be was shooting the cat an appropriate solution to the problem.
I am not crazy about the idea of police officers being assigned to schools or schools fielding their own police force. The actual performance of the duties winds up being not quite police, not quite counselor with nobody happy with the end product.
The nut cutting is going to be the policy governing the school resource officer’s role on campus. The deputy was not an employee of the school. He was subject to the Sheriff’s office rules and policies. That may be enough to undermine the in loco parentis determination. Take that away and the whole prosecution fails.
On the other hand, routine disregard of Sheriff’s office policies, in favor of school policy may put a different complexion on things. There seems to be a wholesale disregard of the criminal justice system in favor of some crackpot school policies. Some reports indicate that the deputy supported school policy at odds with Sheriff’s Office policy.
I understand where the prosecutors are coming from. I’m not sure that they are on the right path. What happened at that school was a systemic failure. There is more than enough blame to go around. Peterson is a disgrace and certainly contributed. However, the school district, superintendent, sheriff’s office, and juvenile authorities, all deserve a piece of the action.
Here is a copy of the indictment, arrest warrant and underlying complaint setting out the facts, prosecutors relied upon.
Peterson’s arrest warrant stated:Legal Insurrection
“Deputy Scot Peterson, while acting as a CAREGIVER (emphasis added), willfully neglected; [REDACTED] by failing to immediately take action, as he was trained and as is required of a caregiver, to stop the active shooter, Nikolas Cruz.”
The warrant went onto say Peterson “in failing to, or refusing to, address Nikolas Cruz’ actions, exhibited a reckless indifference to or grossly careless disregard for others.”