School shootings are on the rise and North Carolina is taking action.
Since the shootings at the Sandy Hook Elementary School in 2012, there have been at least 239 school shootings nationwide and 138 killings in those shootings. With 23 shootings in the first 21 weeks of 2018, it is safe to say that schools are certainly on notice that they should be implementing measures to prevent shootings.
According to Charlotte, NC civil litigation attorney Lori Keeton, North Carolina legislators are considering a variety of options to attempt to address the issue in NC schools.
In February 2018, North Carolina House Speaker Tim Moore formed a bi-partisan House Select Committee to take a closer look to improve school safety across the state. The Committee is made up of 41 lawmakers with backgrounds in education, law enforcement, and mental health. The Committee is looking for ways to identify threats, provide training and resources and hopefully, ways to improve school facilities.
In addition to the formation of the House Select Committee, Ms. Keeton says there are approximately eight bills pending in the NC House of Representatives that attempt to address this ever-growing problem. She says one bill in particular, known as the “Red Flag Bill”, would allow a family member, roommate or law enforcement officer to petition the court to bar someone from owning a gun if they are deemed dangerous. After the petition is filed, a hearing is held, and a judge determines whether or not there is enough evidence to force someone to temporarily surrender their firearms. Right now, nine states, Florida, Vermont, Maryland, Delaware, Connecticut, Indiana, California, Washington and Oregon, have Red Flag laws.
For NC School Safety updates: http://www.dpi.state.nc.us/cfss/school-safety/
So, from a legal standpoint, who is responsible for the shootings? Who is liable?
Well, we need to discuss two legal concepts: “IMMUNITY” & “FORESEEABILITY”
Ms. Keeton explains that families of the victims typically sue not only the shooter but also the school where the shooting took place, and everyone directly and indirectly involved in placing the weapon in the hands of the shooter, plus anyone who could have warned of what was going to happen but failed to do so. So, this list may include the weapon manufacturer, the distributor, the gun purchaser, the parents of the shooter, a mental health facility that might have treated the shooter, the teachers, the school board and any security guard who was on duty on the day of the shooting. You get the idea; the list is long.
But, Ms. Keeton warns that a BIG hurdle for a person (plaintiff) who wishes to sue a public school is the concept of IMMUNITY. Ms. Keeton, an experienced litigator, explains that “immunity is a doctrine whereby governmental entities are more or less protected from being sued because they are the government. Many counties in North Carolina have waived their immunity up to a certain point by purchasing liability insurance and so this does not prevent them from being sued all together but could limit the amount of potential recovery.”
Attorney Keeton also explained a second issue that plaintiffs…. must overcome:“In general, North Carolina and other states are reluctant to hold people or entities liable for the acts of third parties unless they have a special relationship with the person who committed the crime such that they had the ability and opportunity to control the third person at the time of the third person's criminal acts. This brings up the other big hurdle in these lawsuits: the concept of FORSEEABILITY.”
According to Ms. Keeton, FORSEEABILITY “is just a fancy way of saying should the person being sued have known this was likely to happen and did they have the ability to do anything about it?”
Here is a real life example….
The Marysville School District in Washington paid $18 million after a 15-year old student shot 5 students, resulting in 4 fatalities, 1 major injury and the death of the shooter. Why was the school liable? Because the shooter had told a substitute teacher of his plans and she allegedly failed to alert anyone prior to it happening.
But, the line between what is and is not foreseeable is not always clear.
What if a student draws a picture of someone with a gun and shows it to his friends who then reports it to a teacher and then a month later that student brings a gun to school and shoots his classmates? Was that foreseeable? Could they have prevented it?
What if a student is addicted to video games where the object is to shoot people and that student tells a teacher about his fascination with the game and then shoots several of his classmates the following day? Was that foreseeable? Could they have prevented it?
Civil litigator Keeton tells us that when she conducts a risk audit for a client, she likes to work backwards. She states, “if I were conducting an assessment for a school, I would encourage their leaders and policy makers to pretend they are in a courtroom where they are in the witness box with a grieving family and a jury of 12 people staring at them and listening to their every word when they are asked the following question: ‘What did your school do to prevent the shooting of John Doe?’”
We are glad Ms. Keeton is conducting risk audits for schools. We need to protect our children. And, we need to see more security in our schools, maybe metal detectors, armed employees or undercover officers. Maybe, just maybe, then, we can put an end to all of this.