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.

Gunshots are the soundtrack of America

A shooting range features at Elvis's Graceland.
Adam Fagen via Flickr CC BY-NC-SA 2.0

'Tis the season for gunshots and sirens.

The last weekend in October, I spent the night at a Memphis hotel near the airport to catch a 5 a.m. flight homeward. I pulled up to the hotel on Elvis Presley Boulevard in the Whitehaven neighborhood to see people running and chaos at the restaurant across the street, Tha Table. Before long, police came streaming in, sirens blaring. A fire engine and an ambulance followed.

Two men were shot and killed. One was the owner of Tha Table; it looks like he came out into the parking lot to confront would-be car thieves, one of whom shot him with an automatic weapon. The other person killed was a bystander "in the wrong place at the wrong time," Fox 13 Memphis said, merely driving by with his three young children in the car on the way to a park.

A man arrested in the shooting, police say found with weapons including an AR-15 and a Glock with switch (converting the pistol into an automatic weapon), blames his companions for firing the fatal shots, Fox 13 reported.

When I left the hotel later that night, to go to a gym in West Memphis, I had to ask police to let me drive out and back under yellow tape that had cordoned off the block.

That shooting occurred as I arrived at the Red Roof Inn at about 3:30 p.m.  Just eight minutes later, two-and-a-half miles down the same road, a 15-year-old was shot at an Exxon station. According to WREG, he was selling water at the side of the road at the time. He was transported by a private car to the hospital and reported in critical condition.

When I came back from the gym, I fueled up at that Exxon, to return my rental car full the next morning. I didn't know about the second shooting until I got back to my room and checked the news about the first shooting.

About 60 hours later, a 19-year-old sitting in his car at a gas station in West Memphis was fatally shot multiple times by another customer, KARK reported. I was long gone, but that shooting took place 500 feet from the gym I had gone to, just around a corner. I learned of that third shooting when I checked the news to see if anyone had been arrested in the earlier two.

It happens that while I was in Memphis and Arkansas, I visited an old friend and mentor I had not seen in many years. He retired in recent years from work in Memphis and told me he wants to move away. He's tired, he said, of having to worry every day about being car-jacked.

I also visited my aunt and uncle at their home in south Little Rock. They've been renovating, and their place looks great, homey. They're very happy there, my uncle said, except only for the unwelcome ring of gunshots at night. Sometimes the shots ring so close to the house that they fear they're being targeted. My uncle, a Vietnam vet, lamented of the contemporary life of youth in the Little Rock neighborhood: "I'd rather be judged by twelve than carried by six."

When I boarded my plane home from Memphis, I overheard one flight attendant telling another that she's looking for a new apartment. She was working through the calculation of finding lower rent, but having to hear gunshots at night.

As I rejoined the world that Monday, I learned about the Lewiston, Maine, shootings, and that the suspect was found dead from a self-inflicted gunshot wound. He had killed 18 people and injured 13 just before I left home for Memphis. Ensconced as I was in my business away, I had not known the details. It was a kind of blessing, I figured, that I didn't know what was happening. While the suspect was at large, I did not know to worry about my wife in Rhode Island or a friend's son at university in Vermont.

I'm not a gun control advocate. I believe the Supreme Court got it right when it said that the Second Amendment protects an individual right to bear arms. I'm informed by the Second Amendment analysis of my constitutional law professor, William Van Alstyne. I believe that the Second Amendment anticipated the possibility that revolution might one day again be necessary.

At the same time, I don't want life cut short for me, my family, or my friends just because I drove to the park at the wrong time, or a stray bullet pierced the walls of my home. The price of the Second Amendment cannot be that gunshots and sirens are the soundtrack of American life.

Sorry, if you read this far thinking I'd have the answer; I don't. 

I want to be prepared to revolt when the time comes, because I think that corrupt politicians already have aggrandized an excess of power; that they now represent corporations, not constituents; and that the federal legislature has become perhaps irretrievably dysfunctional.

I also want the people I love to be safe against meaningless violence. I don't want to live in the Wild West of the movies.

I want my tres leches and to eat it too.

Google censors opinion condemning private censors

On December 31, Google blocked access to a Savory Tort post from 2019 on free speech and censorship in New Zealand.

I received this message from Google on New Year's Eve:

As you may know, our Community Guidelines (https://blogger.com/go/contentpolicy) describe the boundaries for what we allow--and don't allow--on Blogger. Your post titled "NZ prosecutions for sharing Christchurch vid would suppress news, free speech, but worse is empowerment of private censors" [my boldface] was flagged to us for review. This post was put behind a warning for readers because it contains sensitive content; the post is visible at http://www.thesavorytort.com/2019/03/nz-prosecutions-for-vid-sharing-would.html. Your blog readers must acknowledge the warning before being able to read the post/blog.

Why was your blog post put behind a warning for readers?

Your content has been evaluated according to our Adult Content policy. Please visit our Community Guidelines page linked in this email to learn more [link below]. We apply warning messages to posts that contain sensitive content. If you are interested in having the status reviewed, please update the content to adhere to Blogger's Community Guidelines. Once the content is updated, you may republish it at [URL omitted]. This will trigger a review of the post.

For more information, please review the following resources:
Terms of Service: https://www.blogger.com/go/terms
Blogger Community Guidelines: https://blogger.com/go/contentpolicy 

Sincerely,
The Blogger Team

Setting aside for a moment the irony of private censorship of a post about private censorship,* I wanted to understand what triggered the block. As the headline indicates, I fretted in the post about New Zealand criminal law being turned against online re-publishers of the horrifying video of mass shooting at a Christchurch mosque in 2019. I wrote that the lack of newsworthiness exception in New Zealand law would be problematic in U.S. First Amendment law, and the prosecution could not withstand analysis under Brandenburg v. Ohio (1969). And I wrote some about how the modern internet has posed a challenge to the dated First Amendment doctrine.

Willow Brugh via Wikimedia Commons and Flickr CC BY-SA 2.0

At first, I thought maybe I linked to the objectionable video itself; I had not. I did mention by "dot com" name a problematic website from earlier internet days that was infamous in freedom-of-information circles for hosting gruesome content. But I didn't hyperlink it, and the site no longer exists at that address anyway.

The message from Google referred to the "Adult Content policy."  Here's what the policy disallows:

We do allow adult content on Blogger, including images or videos that contain nudity or sexual activity. If your blog contains adult content, please mark it as 'adult' in your Blogger settings. We may also mark blogs with adult content where the owners have not. All blogs marked as 'adult' will be placed behind an 'adult content' warning interstitial. If your blog has a warning interstitial, please do not attempt to circumvent or disable the interstitial - it is for everyone’s protection.

There are some exceptions to our adult content policy:

• Do not use Blogger as a way to make money on adult content. For example, don't create blogs that contain ads for or links to commercial porn sites.
• We do not allow illegal sexual content, including image, video or textual content that depicts or encourages rape, incest, bestiality, or necrophilia.
• Do not post or distribute private nude, sexually explicit, or non-explicit intimate and sexual images or videos without the subject’s consent. If someone has posted a private nude, sexually explicit, or non-explicit intimate and sexual image or video of you, please report it to us here [hyperlink omitted].

There's nothing remotely sexual about the 2019 post. Nor is there any depiction or description of violence, other than a reference to the mere occurrence of the tragedy, which was well reported in news media with plenty more detail.

Links to The Savory Tort were once banned from Facebook, too, for more than a year. When I inquired, Facebook sent me a form message saying that The Savory Tort violated Facebook terms of service for content. I sent further inquiries, made appeals, etc., but Facebook never clarified how the terms were violated. Indeed, Facebook never responded with other than form messages confirming the ban. For all the hoopla about a "Facebook supreme court" and thoughtful, human review of content, those avenues apparently are not open to the little people such as me.

Ultimately, a former student and labor attorney complained about the ban to Facebook, after he was denied permission to share a link to my blog. He kindly let me know. Subsequently, consequently?, and suddenly, links could be posted. The ban vanished as mysteriously as it had appeared. Not a word from Facebook, then or since.

The Facebook ban came about upon a complaint from someone who didn't like something I wrote, I suspected. That happens. For example, I wrote once about a family law case in the Massachusetts Supreme Judicial Court, and I was threatened with legal action by the disappointed party. 

It's easy for someone to complain to Facebook or Google Blogger about online content. The complaint is not necessarily reviewed by a real person, or it is and the person is incompetent or indifferent. It's easier to block or take down content than arbitrate a dispute. That's why trolls and publishers have been able to abuse the notice-and-takedown system that has debilitated fair use of intellectual property.

Here, Google said that the post "was flagged to us for review" (my italics) and "has been evaluated." The choice of words, muddling passive voice notwithstanding, suggests that a third party triggered the review. How anyone, even a bot, at Google then could have found adult content, or anything in violation of the content terms, is a mystery to me. I can conclude only that the block was imposed automatically upon the complaint, with no review at all.

I would seek further explanation or ask for a human review, but that, it seems, is not an option. Google offers me the opportunity to have the block reviewed only after I "update the content to adhere to Blogger's Community Guidelines." I see no violation of the guidelines now, so I don't know what to update.

Now let's come back around to that irony, which might not be coincidental.  (Irony and coincidence are not necessarily the same thing, whatever Alanis Morissette would have you believe.)  The dangers of private online censorship was the theme of my post in 2019. The block on my post occurred in December 2022 only weeks after Elon Musk began to censor his critics on Twitter. Musk is still at it, by the way, seemingly having acceded this week to Indian government demands that Twitter censor critics of Prime Minister Narendra Modi. 

At the same time in December that Musk was making headlines with Twitter censorship, the Supreme Court scheduled (for Feb. 21) the oral argument in Gonzalez v. Google LLC (track at SCOTUSblog). The case asks whether internet service providers such as Google enjoy section 230 immunity from liability in the provision of targeted content, such as search results, apart from the conduct of traditional editorial functions, akin to newspaper editors choosing letters to the editor. David McGarry explained for Reason two weeks ago, "The plaintiff is Reynaldo Gonzalez, whose daughter was murdered in a 2015 terrorist attack. [He] argues that YouTube, a Google subsidiary, should face liability because its algorithms recommended terrorist content posted on the platform that Gonzalez says aided the Islamic State."

That's a potential liability exposure that might incline Google to censor first and review later.

Perhaps someone triggered the automatic censorship of a great many online articles about private censorship, hoping to make the very point that private censorship is dangerous. If that's what happened here, I would offer a grudging salute. But I would like to see the point actually made, not just fruitlessly attempted.

At the end of the day, I'm not so broken up about the block, as opposed to a ban like Facebook's, which frustrated me no end, as I could not share content at all with family and friends. A reader who encounters a sensitive content warning wall might be only more interested to know what lies beyond. And my target audience isn't children anyway. 

I figure there's a reasonably good chance that this post will wind up behind a warning wall for having referred to a warning wall. So be it. Anyone interested enough to be investigating a four-year old story of censorship probably will get the ironist's point, and mine.

* My journalism ethics professor at Washington and Lee University in the early 1990s, the late great Lou Hodges, railed against the word "censorship" to describe private action, so would have regarded the term "private censorship" as outrageously oxymoronic. Professor Hodges was steeped in classical learning and recognized that the word "censor" comes from the Ancient Roman word referring to a public magistrate whose responsibilities, on behalf of the state, included counting people and property—thus, "census"—and the enforcement of public morals through what we now call "censorship." To honor Professor Hodges, I long insisted on the same distinction. But in recent years, I have given in to the modern trend to employ the term regardless of the private or public nature of the actor. Professor Hodges could not then have anticipated that we would soon have an "Internet" that looks very much like a public commons, thus reviving the seemingly antiquated First Amendment problem of the company town. The term "censorship" seems to me apt for a world in which transnational corporations such as Google and Meta might as well be governments from the perspective of ordinary people.

Miami Beach looks like a police state; Ocean Avenue shootings happened anyway

In March, I visited Miami Beach and found it to have the feel of a police state.

Uvalde and the shortly subsequent widely reported shootings happened while I was away from the United States, which was something of a mercy. I didn't have to live through the immediate trauma of it all happening again. But thinking about what happened and what could or should be done, including John Oliver's apt skepticism of the perennial calls to harden school security, caused me to remember my experience in March.

I've always liked Miami Beach. The art deco aesthetic combines with Latin-flavored food, drink, and entertainment and incomparable people watching to provide a unique and memorable experience every time. I had not been there, though, in many years, and I was anxious to see how it emerged from the pandemic.

I had a good time revisiting old haunts, but I found the nighttime police presence downright oppressive. Countless cop cars sat with their blue and red lights illuminated all along Ocean Drive and in Lummus Park. Bright spotlights made artificial daylight in the park and on the beach inside the dunes; paths to the ocean were closed. Surveillance cameras were everywhere, perched upon lamppost after lamppost. It was a police state on steroids. (All photos RJ Peltz-Steele CC BY-NC-SA 4.0.)

I could not imagine what had happened that precipitated such security, and I was inclined to be critical. Then, shortly after I returned home and despite what I'd witnessed, news broke of five separate shootings during the main week of spring break. Authorities declared a state of emergency and imposed a midnight curfew to quell further violence, NPR reported.

I have no great insights as to what is going on at Miami Beach. I can only say that one of my favorite places, a vacation destination in the United States, looks more like a police state than actual police states I've visited abroad. And that didn't avert five shootings.

I don't have the answers, but making more places look like what Miami Beach has become doesn't seem to be one.

Sandy Hook father wins $450,000 in Wisconsin defamation case against conspiracy theorists

A Sandy Hook parent won a $450,000 defamation award in Wisconsin last week, when I was out of town.  The case is interesting not only as a collateral installment in the litigation aftermath of the 2012 Sandy Hook school shooting, but as an installment in the legal system's ongoing grappling with misinformation in mass media, so-called "fake news."

Lenny Pozner, father of decedent six-year-old Noah Pozner, won his defamation suit against Sandy Hook deniers James H. Fetzer and Mike Palecek in June, on summary judgment.  A jury trial was had only on the question of damages.  In the complaint, Pozner claimed severe mental distress, besides the requisite reputational harm.  Now This News has more about Pozner's ordeal, beyond the traumatic loss of his son:

The crux of the falsity in the defamation claim was defendants' assertion that Pozner was in possession of and distributing a falsified death certificate.  Attached to the complaint, Noah Pozner's death certificate reports the cause of death, "Multiple Gunshot Wounds."  Lenny Pozner alleged that the defendants' assertion appeared in a 2016 book, edited by Fetzer and Palecek, Nobody Died at Sandy Hook, and on Fetzer's conspiracy-theory blog.  The book publisher earlier settled and agreed to stop selling the book.

Fetzer, who resides in Wisconsin, is, amazingly, a distinguished professor emeritus of philosophy at the University of Minnesota Duluth.  His work included JFK conspiracy research.  Fetzer's university home page bears this disclaimer:

James Fetzer is a UMD Philosophy Professor Emeritus and conspiracy theorist. He retired from UMD in 2006. His theories are his own and are not endorsed by the University of Minnesota Duluth or the University of Minnesota System.  As faculty emeriti, Fetzer's work is protected by the University of Minnesota Regents Policy on Academic Freedom, which protects creative expression and the ability to speak or write on matters of public interest without institutional discipline or restraint. 

The university deserves a lot of credit for respecting academic freedom even in these challenging circumstances.  Fetzer meanwhile has cast the loss in Wisconsin as a book banning and offense to freedom of the press.

Fetzer and Palecek have books for all occasions.  One title, still for sale, is And Nobody Died in Boston Either, referring to the 2013 Boston Marathon bombing.  Three people were killed at the scene in Boston, and more than 200 were injured.

Meanwhile on the Sandy Hook litigation front, the Connecticut litigation against Remington Arms is still pending cert. petition in the U.S. Supreme Court.  Remington seeks to nullify the Connecticut Supreme Court ruling allowing victim-family plaintiffs a thin-reed theory to circumvent federal statutory immunity.  Plaintiffs filed their responsive brief on October 4, and Remington filed a reply on October 18.

[UPDATE, Nov. 13, 2019: The U.S. Supreme Court denied cert. in the Remington case, so it will go back to the trial court in Connecticut.]

Court dismisses prolonged suit against Government over 2009 Ft. Hood mass shooting

From the Defense Department: "Jeffrey and Sheryll Pearson look at the
portrait of their son, Army Pfc. Michael Pearson, before the Purple Heart
and Defense of Freedom award ceremony on Fort Hood, Texas, April 10,
2015. The event honored the 13 people killed and more than 30 injured in
a gunman’s 2009 shooting rampage on the base. U.S. Army photo by Daniel
Cernero."

The U.S. District Court for the District of Columbia, per the Hon. Colleen Kollar-Kotelly, dismissed service-member and family claims against the federal Government arising from the 2009 shooting at Ft. Hood, near Killeen, Texas, in which U.S. Army Major Nidal Hasan killed 13 and injured more than 30 other persons.  CourtListener has the ruling in Manning v. Esper, No. 12-CV-1802 (D.D.C. Jan. 22, 2019).

To the dismay and torment of those involved, this case has dragged on for nearly a decade.  Hasan admitted to the shootings in a 2013 court-martial and was sentenced to death.  He is presently awaiting execution, pending judicial review, at Fort Leavenworth.  The civil claims accuse the Government of negligence in the supervision of Hasan, who was permitted to work as a medical corps psychiatrist despite superior's concerns about his own mental fitness.  While Hasan's case was under way and then on appeal, the Army repeatedly asked the trial court to stay civil proceedings, provoking "anger, frustration and suspicion" on the part of the plaintiffs, in their words.

The dismissal was predicated principally on grounds of the Feres doctrine. Arising from the 1950 U.S. Supreme Court decision in Feres v. United States (Justia), the Feres doctrine bars tort claims arising from active-duty service when the claims otherwise might be authorized by the Federal Tort Claims Act (FTCA).  The Feres doctrine has made news in recent years in allowing the government to resist medical malpractice claims against healthcare providers of Veterans Affairs.  

Plaintiffs in the Ft. Hood case knew that Feres would be a problem, but hoped to work around it, as some victims were not on active duty at the time of the shooting, and some defendants were federal law enforcement officials rather than active-duty military.  The ambiguous status of some persons involved in the shooting, as well Hasan's motivations, was at issue in the intervening years in an ugly collateral dispute over victims' entitlements to military honors, which the Government for a time resisted.  In this same vein of ambiguity, the court did allow some plaintiffs' claims to proceed in administrative processes, dismissing them without prejudice for failure to exhaust remedies as the FTCA requires.

Information and privacy law aficionados might recollect the name of Judge Kollar-Kotelly.  For seven years after 9/11, she was the presiding judge of the Foreign Intelligence Surveillance Court.

Error that led to Texas mass murder recalls recent tort claim against police after Massachusetts shooting

The Air Force yesterday admitted that it failed to pass on information about the violent record of the Texas church shooter that might have stopped him from having ready access to firearms (WaPo).  Good on the USAF, by the way, for coming clean quickly, however tragic and futile the admission is now for the 26 people who lost their lives.  That angle of the Texas story caused me to pull back up a Massachusetts Appeals Court decision that last week I filed away as "unremarkable." 

After an escalating argument in Somerville, Mass., in 2012, Santano Dessin shot Carlos Andrade "in the neck, shattering Andrade's spine and leaving him paralyzed from the neck down," the court recounted (Boston.com).  It turned out that Dessin possessed three firearms, including the one he used to shoot Andrade, and he should not have had them because of a prior juvenile delinquency adjudication.  The Somerville Police Department at one point had confiscated the three firearms from Dessin, but then returned them erroneously.  Despite subsequent notice to the department by public safety authorities and the Superior Court that Dessin remained disqualified from possessing firearms, police failed to re-confiscate them.  Andrade and family sued police for negligence under the Massachusetts Tort Claims Act (MTCA).

The court rejected liability under the MTCA § 10(e), which, typically of state sovereign immunity laws, disallows tort claims predicated on "any claim based upon the issuance, denial, suspension or revocation or failure or refusal to issue, deny, suspend or revoke any permit, license, certificate, approval, order or similar authorization."  The court reasoned, "A local police department's duties to receive, store, and dispose of weapons when a person's firearms license is revoked or denied 'are central to the functions that are immunized from liability by § 10(e)'" and "'cannot be parsed from the remainder of the process'" (quoting Smith v. Registrar, 66 Mass. App. Ct. 31, 33 (2006)).

Guns and Somerville, Mass., share a revolutionary history.

However routine and appropriate a construction of statute the Mass. App. decision is, it points up a policy problem that played out with tragic consequences in Texas.  Gun control opponents including the NRA routinely contend that gun control proponents' job-one should be enforcing the laws that are already on the books, rather than lobbying for new ones.  On the enforcement question, we should all be on the same page.

The merits of our unusual cultural value in gun ownership, as expressed in the Second Amendment, and the appropriate scope of reasonable regulation, may be debated.  Nevertheless, at present, we hold gun ownership as a presumptive, fundamental right.  At the same time, declining to regulate gun ownership on the front end of the transaction means that, on the back end, we must vigorously enforce properly adjudicated deprivations of the right.  Public safety--the competing fundamental right to life--requires no less.

In the area of freedom of expression, we vigorously, presumptively, and even prophylactically protect free speech.  But after proper adjudication, we allow proscription of obscenity, criminal punishment of conspiracy, and enforcement of defamation liability.  Perhaps we ought exercise greater care with prophylactic protection of Second Amendment rights, because the potential consequences of error are grave.  But that wasn't the problem in Massachusetts or Texas, where the risk of error was real and known.

The case is Andrade v. City of Somerville, No. 16-P-1407 (Mass. App. Ct. Oct. 30, 2017).