On December 11, 2020, the Eleventh Circuit Court of Appeals decided L.S. ex rel. Hernandez v. Peterson[i], which is instructive regarding liability of schools and school resource officers for failing to protect students.  The relevant facts of Hernandez, taken directly from the case, are as follows:

On February 14, 2018, Nikolas Cruz shot and killed 17 people at Marjory Stoneman Douglas High School in Parkland, Florida. He also injured 17 others during his six-minute rampage. The shooting caused traumatic harm to many more bystanders, including the plaintiffs, 15 students who were present and allege psychological injuries…

The students allege that the Parkland tragedy was exacerbated by government blunders before and during the shooting. The Broward County Sheriff’s Office failed to act on the “many dozens of calls” it received that warned of Cruz’s dangerous propensities. Although Sheriff Scott Israel and Superintendent Robert Runcie knew that Cruz might be dangerous and Runcie was warned that the school had inadequate security, neither official attempted to improve school security. And Scot Peterson, the police officer in charge of school security, was nicknamed “Rod”—short for “retired on duty”—for his “lackadaisical . . . approach[].”

On the day of the shooting, Andrew Medina, a school security guard, recognized Cruz as a potential school shooter but permitted him to enter the school anyway. Medina radioed and texted other security officials that Cruz—a suspicious person—was present, and he drove a golf cart toward Cruz. But he did not directly approach Cruz or call in a code to put the school on lockdown. Medina later explained that he was ordered not to call in a code unless he saw a gun, so he did not call one in even after he heard gunshots.

Cruz began shooting less than a minute after entering the building. Peterson and three John Does stood outside the school with their guns drawn, but they did not enter the school or attempt to stop the shooting. Peterson later gave contradictory explanations for their failure to enter the building. Jan Jordan, a police captain and the commander at the scene, repeatedly barred emergency responders from entering the building to stop Cruz or to aid his victims. Jordan violated police policy and ordered police to “stage,” or gather outside of the school, instead of permitting officers to enter the building and pursue Cruz.[ii]

The plaintiffs filed suit in federal court against Broward County, the sheriff and several deputies.  The students alleged that the county, sheriff and deputies violated their substantive due process rights under the Fourteenth Amendment by what the plaintiff’s described as an incompetent response to the shooting such that it allowed students to be killed and injured.  The district court dismissed the case in favor of the county, sheriff and deputies holding that the plaintiffs failed to demonstrate a proper Fourteenth Amendment claim.

On appeal the court first examined the constitutional principles related to this type of substantive due process claim.  The court noted that they must carefully examine cases such as this because the Fourteenth Amendment is not intended to be an additional source of tort law for cases like this.  As the court stated

After all, “not every injury is an injury of constitutional magnitude.” Goodman v. Kimbrough, 718 F.3d 1325, 1333 (11th Cir. 2013).[iii]

The court then examined the bounds of a proper Fourteenth Amendment claim.  The court stated

The right to substantive due process depends on the relationship of the official and the individual his acts or omissions allegedly harmed. An official has a “duty to protect individuals from harm by third parties” only when the individuals are in the official’s custody. White v. Lemacks, 183 F.3d 1253, 1257 (11th Cir. 1999). And individuals who are not in an official’s custody must allege that his conduct was “arbitrary, or conscience shocking, in a constitutional sense.” Id. at 1258 (quoting Collins, 503 U.S. at 128). [iv]

Thus, there are two situations when a plaintiff may be able to allege a substantive due process claim under the Fourteenth Amendment for failing to protect the plaintiff.  The two situations are (1) when the plaintiff was in the government’s custody and (2) when a government official’s conduct is arbitrary or shocks the conscience, in a constitutional sense.

The court then set out to determine if the students were “in custody” for Fourteenth Amendment purposes.  The court discussed their precedent on this issue and stated

It is well-established that “schoolchildren are not in a custodial relationship with the state.” Nix v. Franklin Cnty. Sch. Dist., 311 F.3d 1373, 1378 (11th Cir. 2002). A custodial relationship exists only if the government places “limitations . . . upon an individual’s ability to act on his own behalf” that are similar in kind to incarceration or other forms of involuntary confinement. Wyke v. Polk Cnty. Sch. Bd., 129 F.3d 560, 569-70 (11th Cir. 1997). School attendance, even when compelled by truancy and compulsory attendance laws, is not similar in kind to incarceration or institutional confinement. Id. at 569; D.R. ex rel. L.R. v. Middle Bucks Area Vocational Tech. Sch., 972 F.2d 1364, 1370-72 (3d Cir. 1992) (en banc). Ordinarily there are no custodial relationships in the public-school system, even if officials are aware of potential dangers or have expressed an intent to provide aid on school grounds. Wyke, 129 F.3d at 569-70.[v]

Thus, the court stated that compulsory school attendance laws do not create a custodial environment such that would trigger a duty under the Fourteenth Amendment to protect students from third party harm.  The plaintiffs argued that the presence of armed security on the campus created such a duty but the court of appeals stated that the school police and school security are not comparable to incarceration in a jail or institutional confinement.

Thus, the court of appeals held that the students were not in custody at school and therefore there was no custodial relationship for the purposes of the Fourteenth Amendment.

The court of appeals then examined the second method for the Fourteenth Amendment to impose liability, particularly whether the government acted in an arbitrary or conscience shocking manner.  The court of appeals stated

To succeed on their theory of deliberate indifference, the students must allege both that the officials acted with deliberate indifference and that their indifference was “arbitrary” or “conscience shocking.” Waddell, 329 F.3d at 1305-06. “To act with deliberate indifference, a state actor must know of and disregard an excessive—that is, an extremely great—risk to the victim’s health or safety.” Id. at 1306..[vi]

The court then noted that

No case in the Supreme Court, or in this Circuit, . . . has held that . . . deliberate indifference is a sufficient level of culpability to state a claim of violation of substantive due process rights in a non-custodial context.” Waldron v. Spicher, 954 F.3d 1297, 1310 (11th Cir. 2020). Indeed, in the public-school setting, we have allowed substantive-due-process claims to proceed only when they involved intentional, obviously excessive corporal punishment. See Nix, 311 F.3d at 1378; see also, e.g., Kirkland ex rel. Jones v. Greene Cnty. Bd. of Educ., 347 F.3d 903, 904-05 (11th Cir. 2003); Neal, 229 F.3d at 1076.[vii]

The plaintiffs argued that the government official’s actions were “arbitrary” and conscience shocking” because (1) various deputies knew that Cruz (the shooter) was a danger and failed to intervene during the shooting, and (2) a deputy prevented lifesaving care by blocking EMS from entering the school during the shooting.

The court noted that one must consider the totality of the circumstances in a situation when determining culpability and when the situation is “tense, uncertain, and rapidly evolving,” such as a shooting, officials must make fast decisions and take quick actions.  The court stated

When split-second judgments are required, an official’s conduct will shock the conscience only when it stems from a “purpose to cause harm.” Id.[viii]

The court then explained the “purpose to cause harm” requirement and stated that government conduct “that is not intentionally harmful” can violate substantive due process only in contexts “when actual deliberation is practical.”[ix]

In other words, if a government official is making a split second decision in a shooting, the plaintiff must show that the official’s conduct was done with a purpose to cause harm.  However, if the government official’s conduct is not the conduct that intentionally inflicted harm on the plaintiff, the plaintiff can only prevail on the purpose to cause harm standard in situations where deliberation can take place; this means it cannot prevail in situations that require split second decisions.  The court stated

In Lewis, the Supreme Court distinguished, for example, between the day-to-day operations of a prison, where actual deliberation is practical, and a prison riot, where it is not. Id. at 851-53. In a school shooting, as with a prison riot, officials might be able to prepare in the abstract.  But when a violent and chaotic circumstance comes to pass, officials must make decisions “in haste, under pressure, and frequently without the luxury of a second chance.” Id. at 853 (internal quotation marks omitted). Absent intentional wrongdoing, we cannot review those split-second decisions under the Due Process Clause. Waldron, 954 F.3d at 1307, 1310-11.[x]

The court then held that the plaintiffs failed to show facts that demonstrated arbitrary or conscience shocking conduct.  As such, the plaintiffs failed to show a violation of their substantive due process rights under the Fourteenth Amendment.

Lastly, the court of appeals considered the plaintiff’s claim for “failure to train” their deputies how to handle school shootings.  In order to prevail on a “failure to train” claim, a plaintiff must show (1) there was a constitution violation that (2) was caused by a lack of training of which the final policy maker was aware yet the final policy maker was (3) deliberately indifferent to the known training needs.

The court noted that the first element of a “failure to train” was the existence of a constitutional violation.  In this case, the court noted

To state a viable failure-to-train claim, the students must first identify a violation of their constitutional rights caused by the failure to train. Rooney v. Watson, 101 F.3d 1378, 1381 n.2 (11th Cir. 1996); Greason v. Kemp, 891 F.2d 829, 836-37 (11th Cir. 1990). The students have not identified any violation, and they have alleged facts that preclude the possibility of a violation.[xi]

As such, the plaintiff’s failure to train claim also fails.

The court of appeals then affirmed the dismissal of the plaintiff’s complaint.



[i] No. 19-14414 (11th Cir. Decided December 11, 2020)

[ii] Id. at 4-6

[iii] Id. at 9

[iv] Id. at 9-10 (emphasis added)

[v] Id. at 10-11 (emphasis added)

[vi] Id. at 12-13 (emphasis added)

[vii] Id. at 14 (emphasis added)

[viii] Id. at 15 (emphasis added)

[ix] Id.

[x] Id. at 16 (emphasis added)

[xi] Id. at 19 (emphasis added)

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