The Do-Nothing Defense

The law protects police from being sued for ordinary blunders. But what about Columbine?

Gerash has a particular interest in arguing that the botched investigation prior to the attack is conscience-shocking. His clients, Lance Kirklin and Sean Graves, were injured outside the school in the early stages of the attack, a circumstance that makes it more difficult to hold the police somehow responsible for their injuries. Other attorneys, however, had no trouble blasting the police response to Columbine as even more outrageous than their previous inaction.

Phil Gordon called the promise that help was coming, when the first deputies were actually intent on staying outside, "a stunning abuse of governmental power." Miles Cortez described the perimeter tactics adopted by responding deputies as "a decision to stand by and let Harris and Klebold kill or wound for as long as their ammunition held out... The killing field turned out to be the Columbine library."

Defending the sheriff's office, Assistant County Attorney Bill Tuthill coolly shrugged off the rhetoric and focused on case law. Columbine doesn't meet any of the criteria for the exceptions to immunity, he insisted. Whatever the reason that the investigation of Harris's bombs and death threats was aborted, the case was "irrelevant" to what happened a year later, he argued. His clients had done nothing, and nothing is good. Such a position "may offend our common sense, but it doesn't offend the Constitution," he said.

So the 911 operators had told everyone to stay put. So they promised that help would be there in minutes, rather than three or four hours later. So what? Under the law, a police officer's promise of assistance is meaningless. "Promises do not create a special relationship," Tuthill claimed. "Police officers shouldn't be found constitutionally liable for the decisions they make, even if they later turn out to be mistakes."

School district attorney Stuart Stuller took a similar stance. No special relationship, no creation of danger. The existence of a school security plan that Columbine failed to follow, as reported on 60 Minutes II, didn't create any kind of duty to protect students. Maybe the school screwed up by doing little or nothing with previous complaints about Harris and Klebold, but nothing is good. "There is no evil in being hoodwinked by evil," Stuller argued.

Yet as the day wore on, Judge Babcock seemed to grow impatient with such arguments. Whatever their legal merits, they trifled with logic. "Your defense rests upon inaction," he told Tuthill. "Is the lesson to be learned from these cases that, when confronted with this type of expression, we close our eyes to it -- because by doing nothing, there is no liability?"

Tuthill argued that it was ridiculous to think that the sheriff's commanders had the "luxury" to think through their misguided rescue operation during the first two hours of the siege. Babcock growled back that they surely could have figured out how to reach Sanders by the third hour.

When the assistant county attorney suggested that the failure to investigate the prior bomb reports was due to "allocation of resources," the judge merely scoffed. When Tuthill went on to advance the notion that Dave Sanders wasn't in any kind of "special relationship" with the police because, after all, Sanders wasn't even in direct contact with the 911 operator, Babcock felt compelled to point out that the teacher was critically wounded and unconscious at the time.

Babcock has not yet issued a decision as to which lawsuits, if any, he will dismiss at this point. But there's little question which arguments he found to be more compelling on a common-sense level, if not in legal terms. Two years ago, Jefferson County officials were boasting that they did everything right at Columbine; now they're reduced to arguing that they did nothing so wrong that it amounts to a violation of constitutional rights -- that doing nothing is doing good.

Before Tuthill finished his final remarks, the judge stared at him with a mournful, deeply troubled look on his face.

"Maybe it's just late in the day," Babcock said, "but you're beginning to shock my conscience."

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