Criminal verdict in Mich. school shooting suggests parent vulnerability to civil negligence claims

2018 National School Walkout
Public domain via Rawpixel

The criminal conviction of gun-owning parent Jennifer Crumbley yesterday in the 2021 school shooting in Oxford, Mich., (e.g., USA Today via Courier Journal) got me thinking about parents' exposure to civil liability.

There's no question that parents of a minor-age school shooter can be held liable indirectly for injuries and deaths upon a theory such as negligent storage or entrustment of a firearm. There have been many civil lawsuits arising from school shootings upon analogous negligence theories leveled against school officials, police, gun sellers, and gun manufacturers.

What I do not know is whether there ever has been a civil verdict against a parent. A civil liability theory follows naturally upon a criminal conviction. But criminal prosecution of parents in these cases has been exceedingly rare, Crumbley's being the first such conviction.

Without the beyond-a-reasonable-doubt standard having been proved already in a criminal case, the civil negligence case presents daunting hurdles in duty and proximate causation. It's never easy to hold an earlier-in-time actor liable in negligence for the intentional criminal conduct of a later actor, whom judge and jury are likely to regard as a superseding cause. Such claims are not infrequent, though, and plaintiffs keep bringing them, because intentional criminal actors tend to lack assets that would make a plaintiff whole.

Brendan Pierson for Reuters reported a rundown in 2022 of civil actions in major school shootings: Uvalde, Texas; Columbine, Colo.; Red Lake, Minn.; Blacksburg, Va.; Newtown, Conn.; Parkland, Fla.; and Santa Fe, Texas. Claims that have been resolved so far have ended with settlements or defense verdicts.

Among those cases, Pierson mentioned claims against parents only in the report on the 2018 shooting in Santa Fe, Texas. In 2023, plaintiffs in the Santa Fe case settled with ammunition retailer Luckygunner (AP). The latest report I can find on the case against the parents, from the Daily News of Galveston County, Texas, said in December 2023 that the negligence case against the parents of Dimitrios Pagourtzis remains on the trial court docket.

Please comment here if you know of a civil verdict or settlement against parents in a school shooting case. I would be curious to know also whether homeowner insurers have covered or not covered in such cases.

Wide-ranging social commentary in Peele's 'Wendell & Wild' pillories privatization, school-to-prison pipeline

Released by Netflix in October 2022, Wendell & Wild is a delightful stop-motion horror animation and none-too-subtle commentary on the school-to-prison pipeline.

Jordan Peele and Henry Selick co-produced and co-authored Wendell & Wild, which is based on an unpublished book by Selick and Clay McLeod Chapman. Comedic genius Peele was fresh off Nope (2022), which I thought was much better than the confused Get Out (2017), though the newer film won zero Academy nods to the earlier's screenplay win and three noms in 2018. Selick is a Hollywood legend, but doesn't perennially produce new work for our pleasure. He co-masterminded The Nightmare Before Christmas (1993) and James and the Giant Peach (1996) in the animation vein, and he did the visual effects for a favorite film of mine, the quirky and underrated Life Aquatic with Steve Zissou (2004).

Wendell & Wild follows teenager Kat (Lyric Ross, Déjà on This Is Us) as she battles demonic forces, including an eponymous demon pair (voiced by Peele and comedy partner Keegan-Michael Key), intent on evil works, including construction of a prison, in the down-on-its-luck earthly town of Rust Bank. Critics harshed on the film for jamming too much social commentary into one vehicle, and, admittedly, Wendell & Wild fires head-spinningly at innumerable targets.

To me, that's the fun of it. Race, education, employment, the institutional church, and the criminal justice system only outline the low-hanging fruit. Through subtleties such as plot device, semantics, and imagery, the film digs deep into nuances, even the socioeconomic layers of natural hair.

Whatever your pet peeve of social dysfunction, you can find it in Wendell & Wild, which is why I first saw the film as a commentary on transparency and accountability in urban development. The demons and their mortal allies are in the privatization-of-state-services game. They plan to build a prison that will do nothing in the way of rehabilitation alongside schools that will do little in the way of education, as building each institution to serve its purpose would be bad business for the other.

What I was inclined to see as a problem in freedom-of-information law, informed as I was by a former student's recent publication on private-prison abuse in Arizona for The Journal of Civil Information, to be fair, is just one angle on the broader problem of the school-to-prison pipeline. In this vein, I shared a scene from Wendell & Wild with my law students.

It happened that Jose Vazquez, communications director for the ACLU of Alabama, keyed in on the same scene and posted it to Twitter (embed below). In the scene, mean-girl ringleader Siobhan (Tamara Smart) starts to put together the evil plot of her parents, urban development power couple Lane and Irmgard Klaxon (David Harewood and Maxine Peake), owners and directors of Klax Corp. How sweet is that multiplicitous naming?

This clip is a spoiler but I really hope it can be used in classrooms and just generally shared because we all need to learn how prisons ruins people's lives, families, and entire towns! We can all imagine better futures and this film does a great job illustrating that. pic.twitter.com/Y2TS31lkAd

— jose bouquet (@josebouquets) October 29, 2022

Wendell & Wild is worth the watch. As Vazquez wrote of the above clip on Twitter, "I really hope it can be used in classrooms."

Events endeavor to empower student journalists

The Student Press Law Center and partner organizations are sponsoring Student Press Freedom Day on February 23, 2023.

A number of virtual educational events are open to the public:

• Public Records Workshop with the Foundation for Individual Rights in Education (FIRE);
• Roundtable: FIRE Defends The Commonwealth Times, a student newspaper at Virginia Commonwealth University, with FIRE;
• Fighting for Press Freedom: How To Be an Advocate for Student Journalism with the Student Press Law Center (SPLC) and the National Coalition Against Censorship;
• Agency in Student Literary Publications with the National Council of Teachers of English and National Scholastic Press Association;
• Student Press Trivia Night with FIRE, the Freedom Forum, and the SPLC;
• FOIA Workshop with the Electronic Frontier Foundation (EFF);
• Refusing Censorship: A High School Newspaper's Fight for Student Press Freedom, featuring adviser Adriana Chavira of the The Pearl Post at the Daniel Pearl Magnet High School in Los Angeles, with PEN America, the First Amendment Coalition, the National Association of Hispanic Journalists, and the SPLC;
• Student Press Briefing: Impacts of School Surveillance with the Center for Democracy & Technology;

There also are pre-recorded events on school media policies, op-ed writing, and student press freedom.

Many moons ago, I had the privilege of interning at the Student Press Law Center when I was a law student, and then of representing student journalists pro bono when I was in practice in Maryland. Censors never tire, so there is always opportunity for practicing attorneys to engage with this rewarding and challenging work.

HT @ the Free Expression Legal Network (FELN).

While Pope apologizes in Canada, U.S. reckons with legacy of federal Indian boarding schools

Children at Rehoboth Mission School, New Mexico
(from DOI report p. 39, credited: Hartog, C. (1910).
Rehoboth School [Photograph]. Indian mission sketches:
Descriptions and views of Navajo life, the Rehoboth Mission School
and the Stations Tohatchi and Zuni, 22. Gallup, N.M.: The Author.
Hathi Trust Digital Library)

The Pope's visit to Canada to ask forgiveness for the role of the Church has brought the tragedy of Indian boarding schools to light, but coverage has been thin on the U.S. legacy.

In the United States, Indian boarding schools were government policy and attempted a cultural genocide no less shamefully than the Church effort in Canada. This U.S. angle on the story hasn't been mentioned in my evening news the last few nights. But it was explicated by an Interior Department (DOI) report in May just this year and is being addressed in some media outlets (e.g., NPR).

The DOI report is just volume 1 in the ongoing investigation of the Federal Boarding School Initiative, "a comprehensive review of the troubled legacy of federal boarding school policies," launched in June 2021. A transmittal letter at the front of the report explained:

This report shows for the first time that between 1819 and 1969, the United States operated or supported 408 boarding schools across 37 states (or then-territories), including 21 schools in Alaska and 7 schools in Hawaii. This report identifies each of those schools by name and location, some of which operated across multiple sites.

This report confirms that the United States directly targeted American Indian, Alaska Native, and Native Hawaiian children in the pursuit of a policy of cultural assimilation that coincided with Indian territorial dispossession. It identifies the Federal Indian boarding schools that were used as a means for these ends, along with at least 53 burial sites for children across this system-with more site discoveries and data expected as we continue our research.

When I say "attempted cultural genocide," or "ethnocide," this isn't just me throwing around woke words. The DOI report detailed official policy dating to President Washington to "subdue[] the Indians" by assimilation, "helping the whites acquire desirable land." An 1803 memo by President Jefferson outlined a plan to relocate native Americans and push them into farming with the express aim that they would thereby fall into debt and have to cede their land. (And, I note, today still our corporate overlords are pushing all of us into asset ownership—homes, cars, cell phones—on the debt model rather than the capital model. You don't have to be native American for the strategy to make the rich richer and you poorer.)

Hundreds of thousands of children were taken from their families and sent to boarding schools often distant from their home communities. That generations of people were so traumatized explains a lot about the fragile social and economic state of reservation communities today.

In military school fashion, the children's every 24 hours in the boarding schools were regimented. Using quotes from contemporary accounts (notes and sources omitted here), the report recounted:

"The children are improved rather in their habits than in what they learn from books." For example, to teach them "obedience and cleanliness, and give[] them a better carriage," Department records detail examples of organizing Indian male children "into companies as soldiers, and the best material selected for sergeants and corporals." "They have been uniformed and drilled in many of the movements of army tactics."

The report explained the means and ends of the boarding schools with revealing perspective:

Systematic identity-alteration methodologies employed by Federal Indian boarding schools included renaming Indian children from Indian names to different English names; cutting the hair of Indian children; requiring the use of military or other standard uniforms as clothes; and discouraging or forbidding ... Indian languages, ... cultural practices, and ... religions. "When first brought in they are a hard-looking set. Their long tangled hair is shorn close, and then they are stripped of their Indian garb thoroughly washed, and clad, in civilized clothing. The metamorphosis is wonderful, and the little savage seems quite proud of his appearance."

"No Indian is spoken[:]" "There is not an Indian pupil whose tuition and maintenance is paid for by the United States Government who is permitted to study any other language than our own vernacular—the language of the greatest, most powerful, and enterprising nationalities beneath the sun."

Then there was enforcement for violating the rules, including the prohibitions on language and religious practice. Whipping was the preferred punishment for attempted runaways.

Indian boarding school rules were often enforced through punishment, including corporal punishment, such as solitary confinement, "flogging, withholding food, ... whipping[,]" and "slapping, or cuffing." At times, rule enforcement was a group experience: "for the first offense, unless a serious one, a reprimand before the school is far better than a dozen whippings, because one can teach the whole school that the offender has done something that is wrong, and they all know it and will remember it, while it is humiliating to the offender and answers better than whipping."

Conditions for even compliant children were less than optimal. Citing prior DOI investigations in 1928 and 1969, the 2022 report stated:

The Department has acknowledged "frankly and unequivocally that the provisions for the care of the Indian children in boarding schools are grossly inadequate." Rampant physical, sexual, and emotional abuse; disease; malnourishment; overcrowding; and lack of health care in Indian boarding schools are well-documented.

Moreover, the children's labor was used to operate the schools, for example, the children's clothes were made by female students as part of their vocational training.

Lest the severity of these conditions be confused with mere norms of less gentle times, we might consider that schools, even in the 19th century, rarely had their own graveyards. DOI found 53 burial sites at Indian boarding schools, at least six unmarked.

U.S. Indian boarding schools have been examined thoughtfully in media outlets: The Atlantic, National Geographic (limited free), NPR, N.Y. Times, and Time (paywall).

There are books, too, of course: Ward Churchill's well regarded Kill the Indian, Save the Man (2004); the first-person Pipestone (2010) by Adam Fortunate Eagle; and the documentary compilation Boarding School Seasons (2000) by Brenda J. Child.

There are online resource collections at The National Native American Boarding School Healing Coalition and the Library of Congress.

My favorite media treatment in this area is a 2015 Radiolab segment, rebroadcast in 2018, "Ghosts of Football Past." Follow it up with a compelling reflection by Professor Justin De Leon.

Brood X cicadas taste terrible, but teach life lessons

A Brood X cicada that emerged early, in 2017
(Flickr by Katja Schulz CC BY 2.0)

If you're like me, the emergence of Brood X cicadas on the mid-Atlantic American seaboard induces more anxiety than is healthy.

I met Brood X face to face only once, when I was a teenager in Baltimore, Md., in 1987.  Every 17 years, the big red-eyed bugs realize that heaven is a place on earth, not under it, and they rise up with a screeching rhythm that's gonna get you.  Unlike locusts, cicadas are clumsy fliers and seem oblivious to humans as a threat.  So simply going outside invites cicadas to crash into your nicest denim jacket.

This time, the cicadas have failed to anticipate a new human threat.  People are popping cicadas onto the grill for purportedly finger-licking-worthy indulgence.  

Fried cicadas in China, 2013
(Flickr by Sharon Hahn Darlin, who didn't eat them, CC BY 2.0)

The appeal escapes me.  Persons of ordinary sensibilities are horrified by cicadas.  CBS News aptly labeled a story on Brood X, "Warning: Graphic images."  Haley Weiss is a normal person.  She wrote for The Atlantic:

Nowhere was that shellfish flavor more evident than in the oven-roasted cicada, though I was quickly distracted from that thought by the realization that the bug had exploded in my mouth like a Gusher. My tongue awash in bug guts, I reconsidered all the choices I’d made in my life that had brought me to that moment.

Oh, heads up, the FDA warns not to eat cicadas if you're allergic to shrimp.  Because that makes sense.

Well, another voice in the inexplicable camp of cicada supporters is my uncle, Tom Peri, a Baltimore biology teacher with a new video series about Brood X.  In four short installments, Buggin' Out with Mr. Peri is now available on Facebook from Notre Dame Preparatory School (NDP).  Each short installment teaches us, as Mr. Peri puts it, that cicadas "aren't the monsters you think they're going to be."  In episode 1, Mr. Peri promises us life lessons to be learned from the humble cicada, such as, "you're at your best when you're rising from a low point." 

Give Buggin' Out a try (ep. 1, 2, 3, 4), and especially share it with kids.  Maybe we can condition young minds to think differently from mine.  Then, in 2038, our only anxiety will be over which cicada food truck to choose.

An NDP upper-level science teacher with decades of classroom experience, Tom Peri won a prestigious Lead. Learn. Proclaim. Award from the National Catholic Educational Association in 2018.  He is a former headmaster of St. John’s Prospect Hall and Towson Catholic High School.

City not liable for bullying that resulted in child's quadriplegia, Mass. supreme court holds (and note on infantilization of faculty in higher ed)

The Massachusetts Supreme Judicial Court (SJC) affirmed application of the Massachusetts Torts Claims Act (MTCA) to protect the City of Lynn, north of Boston, from liability in a tragic bullying incident that resulted in the permanent paralysis of the victim, a fourth grader.  The case is Corimer v. Lynn, No. SJC-12323 (Feb. 27, 2018).

The boy's mother had reported bullying and harassment of her son on "multiple occasions" in the 2007-08 school year.  Ultimately bullies pushed the boy down stairs, resulting in damage to his spinal cord and in quadriplegia.

The 1978 MTCA waives sovereign immunity, but a public actor may be held liable for the tort or violence of a third party only if the public actor "originally caused" the "harmful consequences."  Mass. G. L. c. 258, § 10 (j).  The courts have struggled to interpret that language, but have, as the SJC restated the rule, looked for "an affirmative act that materially contributed to creating a condition or situation that resulted in [plaintiff's] injuries."  A failure to act is distinguished.

The school left the bullies in class in proximity to the plaintiff, and we may assume arguendo that the school was negligent in failing to protect the plaintiff.  Even so, those failures were "'too remote as a matter of law'" to represent material contribution to the plaintiff's injuries.  In essence, then the "originally caused" standard seems to effect a causation-at-law analysis heightened above even the stringent inquiry invoked upon an intervening criminal actor.  On the same basis, the court rejected ancillary plaintiff theories predicated on negligent hiring, supervision, and retention of school staff.

The SJC acknowledged "that bullying is a serious issue" comprising "the emotional pain of day-to-day harassment" and sometimes, as here, "horrific physical consequences."  "[T]he elementary school could have and should have done more to protect [the plaintiff]."  Nevertheless, the operation of the MTCA is textbook, furthering the "public policy [of] some reasonable limits to governmental liability in order for taxpayers to avoid a potentially catastrophic financial burden."

Allow me a tangential observation about bullying policy:  

Many workplace entities, private and public, and including my own, are busily about the business of formulating "anti-bullying" policies.  At least in the academic context, I find these efforts nothing less than an end-run of contract, tenure, and academic freedom, calculated to suppress dissent and vigorous debate.  This SJC case indirectly illustrates the problem.  

Bullying is a concept derived from the K12 environment.  In the adult workplace—especially in the academic workplace, where the very job is the exercise of free expression—bullying is co-extensive with harassment, discrimination, tort, and crime.  All of those were present in Corimer, harassment even before the child was physically injured.  There is no need for a separate policy purportedly to enforce civility (as if such a thing even were possible) among adults.  Any effort to create such a policy is nothing more than an authoritarian perversion of modish terminology—on campus, the infantilization of the faculty—and a disservice to children who truly are bullied in school.