In the aftermath of the mass shooting at an elementary school in Uvalde, Texas, parents and community members have clamored for accountability, asking how officers allowed a gunman to remain inside a locked classroom with injured students for more than an hour.
But any legal remedy could be difficult to achieve. A civil lawsuit would have to overcome the legal immunity that protects police officers during the course of their duties. And while police officers have occasionally been charged and convicted when their actions caused death, criminal charges against police officers who failed to protect the public are extremely rare.
Generally speaking, said Seth Stoughton, a former officer who now tracks police accountability as a professor of law and criminal justice at the University of South Carolina, actions are legally easier to punish than omissions.
“I think it would be difficult, but it’s possible,” he said, adding, “We can only punish someone for failing to do something if they were legally required to do it.” The law usually does not require people to put themselves in harm’s way even if training instructs them to do so, Professor Stoughton said.
Officers with the Uvalde school district’s police force had gone through active shooter training as recently as two months ago, with guidelines that call for them to confront a gunman to halt the bloodshed. “A first responder unwilling to place the lives of the innocent above their own safety should consider another career field,” the guidelines say.
While some of the first officers on the scene initially moved toward the door that the gunman was behind, they were grazed with bullets, and the district police chief decided to delay a confrontation, officials have said. A growing group of officers waited for more than an hour outside the classrooms where the gunman had opened fire, even as children inside the rooms called 911 and pleaded for help.
There is a precedent for bringing charges against law enforcement for its response to a mass casualty event. In the shooting that killed 17 people at a high school in Parkland, Fla., four years ago, prosecutors are pursuing a criminal case against Scot Peterson, arguing that as a school resource officer, the laws that apply to caregivers should apply to him. Mr. Peterson, who prosecutors say took cover behind a wall while a gunman moved through several floors of Marjory Stoneman Douglas High School, has been charged with seven felony counts of child neglect.
Mr. Peterson had been trained in how to deal with mass shootings several times and was an instructor for active killer training, according to a statement filed by prosecutors. The training prioritized the lives of deputies third, after hostages or victims and innocent bystanders, but before suspects. Officers in Uvalde were taught similar priorities in their active shooting training.
Mr. Peterson has defended his actions, saying he believed that the gunman was outside the school building. The trial is tentatively scheduled for September.
In Texas, prosecutors could potentially turn to the state’s statute on negligent homicide, said Laurie Levenson, a former federal prosecutor who is now a professor at Loyola Law School. She said officers could also face charges under federal civil rights statutes, but they require proving an officer’s intent.
Experts said such a case 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.”
“The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise,” it says.
Such a case would require a deep look at the decision-making and the many factors the officers considered in the moment. Authorities have said that the incident commander ordered officers not to confront the gunman, believing that the situation had transitioned from an active shooter scenario to a barricaded subject, which can call for a more deliberative approach.
“It’s a lot more complicated when the officers failed to act,” Professor Levenson said. “It doesn’t mean that you don’t bring charges, but you have to look at why they failed to act.”
Kevin Lawrence, the executive director of the Texas Municipal Police Association, said it would generally be hard to prove that an officer had such an extreme level of indifference that it rose to a criminal rather than a disciplinary level.
“You can’t criminalize failure,” Mr. Lawrence said. “As long as you are picking cops from the human race, they are still going to be subject to human failures.”
Nicole DeBorde Hochglaube, a defense lawyer in Houston who has represented numerous law enforcement officers, said that while charges for failing to act might encounter legal difficulties, investigators were probably also looking to see if officers could face other charges, given the numerous incorrect accounts of the shooting given by officials early on. Police reports that do not align with body camera footage, 911 calls or other records could open officers up to such charges, she said.
Unlike criminal charges, civil lawsuits in the case are a near certainty, even though Texas law makes it difficult to sue police departments, school districts and other government entities. The school district can be shielded by sovereign immunity — a doctrine protecting the government from litigation — while the police may be protected by qualified immunity doctrine that has long shielded officers from liability for mistakes they make on the job.
Erik Knockaert, a lawyer in Houston, said the state’s sovereign immunity does have an exemption for issues involving real property such as a building. He said families could potentially have a legal claim over how the doors were managed. The gunman was able to enter a side door at the school and a classroom door that were both supposed to be locked.
“It’s not a slam dunk case, but there could be something that could be explored,” he said.
Even if families did prove liability, Texas law divides damages based on who is most responsible, including the gunman himself. That could limit how much the families could get in damages, should they win a case.
Randall Kallinen, a civil rights lawyer in Houston, said that among other possible grounds, parents who were prevented from entering the school to rescue their children may have a claim that their right to be free from unreasonable search and seizure was violated. He pointed to a 1990 case, Ross v. United States, where a boy fell into a lake in Waukegan, Ill. Several would-be rescuers arrived within minutes, including two lifeguards and two scuba divers, but the sheriff prevented them from attempting to save the boy because of a policy that said only divers from the local Fire Department could rescue people from that lake.
Those divers took 20 minutes to arrive, and the boy died.
The U.S. Court of Appeals for the Seventh Circuit ruled that both the county and the sheriff could be sued on the grounds that they deprived the boy of his right to life. “When a state cuts off sources of private aid,” the judges said, “it must provide replacement protection.”
But such cases often turn on a distinction between direct action, such as actively preventing rescuers, and failure to act. In 2005 the Supreme Court ruled against a woman who sued the police for failing to enforce her order of protection against her estranged husband, despite numerous pleas to do so. He had taken her three children, in violation of the order, and killed them.
The court, in an opinion by Justice Antonin Scalia, said the woman was not entitled to enforcement of the protection order, and drew a contrast between government action that directly deprives someone of their rights and government action — or inaction — against a third party that affects the complaining citizen only “incidentally.”
Another legal tactic in recent years has been the targeting of gun manufacturers. This past week, lawyers for a family and also a school employee in Uvalde have signaled their intention to sue the manufacturer of the gun used in the attack, Daniel Defense. One of the lawyers petitioned in court to have company officials sit for a deposition focused on how the firm markets AR-15-style rifles and profits from them.
State Representative Carl Sherman Sr., a Democrat, said he would like to see more built-in accountability to investigate law enforcement failures, noting that other professions, such as nursing, have more robust systems in place.
“It is time that we have more systemic accountability in policing,” he said. “Apologizing for poor decisions is just not sufficient.”
But Mr. Sherman, whose son is a police officer, was unsure whether criminal accountability was the right path for handling officers who failed to protect others. He noted that officers initially responding to a scene with a basic service handgun on their hip may find themselves ill-equipped to confront the high-powered weaponry of a gunman.
Lawmakers have the responsibility to change those dynamics, he said, by banning assault weapons and high-capacity magazines. He also said legislative solutions such as stronger background checks, safe-storage laws, red-flag laws and more opportunity to hold gun manufacturers liable are options for protecting communities from the threat of mass shootings, short of putting so much responsibility in the hands of the police.
“The responsibility is primarily with lawmakers,” he said. “We are putting officers in these positions.”