The Law Enforcement Officers in Uvalde School. May Be Facing Criminal Charges

 There’s Likely Bodycam Footage of the Uvalde School Shooting. The Public May Never See It.

TESS OWEN  

Could law enforcement officers in Uvalde, Texas, face criminal charges for waiting too long to act after the 18-year-old shooter locked himself inside a classroom and killed 19 children and two teachers? 

It’s possible, but not likely, five lawyers and former prosecutors told VICE News, despite the public outcry over the actions of authorities that day, and the precedent of criminal charges against a school guard during the 2018 Parkland shooting.   

“Maybe it was a cowardly mistake” to delay storming the classroom in Uvalde, said Dick DeGuerin, a defense attorney in Houston. “But criminal charges are highly unlikely.” 

Officials have acknowledged that students and teachers begged authorities to intervene with repeated 911 calls from inside the school. Waiting to enter “was the wrong decision, period,” state police director Steven McCraw told reporters during a press conference last week.

McCraw said about 20 officers waited in the hallway of the school for more than 45 minutes, and that local police chief Pete Arredondo believed the shooter was contained inside the classroom and that students were no longer at risk. 

“He was convinced at the time that there was no more threat to the children and that the subject was barricaded and that they had time to organize,” McCraw told reporters. 

It remains unclear whether the 911 calls for help were relayed to the officers on the scene. 

Now, prosecutors will have to decide whether the delay was more than a tragic mistake and whether it could amount to a crime. 

Texas has a statute on the books covering criminally negligent homicide, but the standard is high, according to DeGuerin and others. 

The details of the investigations will be crucial for making a determination about whether any official’s actions might qualify as a potential crime, said Barbara McQuade, the former top federal prosecutor in Detroit. 

“Depending on the facts, criminal negligence is a possibility,” McQuade said. “I think it’s premature to say what the result will be.”

The embattled Arredondo has kept out of the public eye in recent days. But he told CNN that he’s talking to Texas’ Department of Public Safety “every day,” in apparent contradiction to statements by a spokesperson for the department, who told NPR on Wednesday that Arredondo hadn’t responded to a request for a follow-up interview.

Arredondo recently completed training courses in how to respond to an active shooter scenario, according to CBS News. That included an eight-hour school-based law enforcement training on active shooter situations at Southwest Texas Junior College, and eight hours of the same course in August 2020, the outlet reported, citing official records. 

Uvalde Mayor Don McLaughlin told the Washington Post a hostage negotiator was trying to get the shooter on the phone while the crucial minutes ticked by. The negotiator did not know about the phone calls that were placed to 911 by children from inside the classroom, the mayor said.  

Prosecutors face significant hurdles in making a criminal case for negligence, according to Rebecca Roiphe, a former New York prosecutor and an expert on prosecutorial ethics at New York Law School.  

“The standard for criminal negligence is quite high,” Roiphe wrote in an email to VICE News. “Civil negligence means that a person acted without using the level of care that an ordinary person would have used in similar circumstances. Criminal negligence, on the other hand, requires a greater degree of carelessness. The risk of harm must be substantial, and the failure to perceive the risk must be a gross deviation from the norm.” 

Suing law enforcement officials is also an uphill battle, thanks to strong protections granted to government agencies, which essentially make it very difficult to pursue a claim in civil court against government agents who were doing their jobs. 

The principle is rooted in British common law doctrine dating back to a time when, in the eyes of the court, the king could do no wrong, lawyers said.  

“The starting point is that if the government hurts you, they cannot be held liable,” said Robert Luke, managing partner of Luke Law Firm in Houston. “The king cannot be sued.”

Yet there are important exceptions, said Luke, including the Civil Rights Act of 1871, which is often commonly referred to as “Section 1983.”  

The statute allows people to sue the government for civil rights violations, including some actions by police. 

“Generally, you have to show that it’s a policy or procedure of the municipality or subdivision that led to the injury,” said Luke, who has handled civil cases against police and local governments over police conduct in Texas. “But because it’s an exception to the general rule, the path to meet the requirements is narrow.” 

There is an important recent precedent for criminal accountability over a school shooting. In Parkland, Florida, a sheriff’s deputy named Scot Peterson was formally charged after he allegedly failed to intervene against a gunman who shot and killed 17 people at Marjory Stoneman Douglas High School in 2018.  

Peterson is charged with seven counts of child neglect which resulted in bodily harm, three counts of culpable negligence, and one count of perjury in a non-official proceeding. He’s pleaded not guilty, and his lawyer called the case “nothing more than a thinly veiled attempt at politically motivated retribution against Mr. Peterson.” His trial’s due to start in September. 

In Uvalde, lawyers cautioned that the details still emerging will determine whether criminal or civil action may be warranted. 

“One obstacle would be establishing that this was the fault of an individual, rather than some kind of systemic failure,” said Roiphe. “In other words, if one official failed to communicate the 911 calls to an officer and so that officer acted without important knowledge, it would be hard to build a criminal case against either one. The negligence is divided among individuals such that it is possible that no one officer is responsible.”