Shocking the Conscience

Last week's dismissal of most of the lawsuits against police and school officials stemming from the 1999 shootings at Columbine High School left frustrated victims' families contemplating a wide range of responses, from legal appeals and legislation to renewed calls for a grand jury to investigate possible police misconduct.

If nothing else, U.S. District Judge Lewis Babcock's rulings spotlighted the immense protection from liability that police officers and other government employees enjoy, regardless of their actions -- or inaction. Not even the Columbine debacle, in which gunmen Eric Harris and Dylan Klebold rampaged through the school, killing thirteen people and wounding two dozen more while Jefferson County sheriff's deputies set up a perimeter outside, will change that.

"It's not just what happened to my kid or anybody else's kid," says Dale Todd, a former Jeffco deputy whose son, Evan, was wounded in the school library. "It's more important than that. What [Babcock's decision] says is that we have no protection. The police don't have to respond to crime, they don't have to stop a crime in progress, they don't have to investigate. They have no duty -- none -- to serve and protect."


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Jefferson County's attorneys argued that, while the sheriff's office may have made "mistakes" in its response to the attack on Columbine, the agency is still protected by governmental-immunity laws ("The Do-Nothing Defense," May 3). In eight of the nine lawsuits filed against the county, Babcock agreed.

The failure of sheriff's deputies to investigate prior complaints about Eric Harris, including the death threats and bomb-making activities he wrote about on the Internet, may have been "grossly negligent," Babcock wrote, but it wasn't sufficiently "shocking to the conscience" to meet the elaborate criteria for holding law enforcement liable for Harris's subsequent actions. Similarly, the failure of school officials to take action in response to violent videos and essays prepared by Harris and Klebold may have been negligent, even reckless, but it wasn't the kind of "willful and wanton" conduct that would permit parents to sue the school district for endangering their kids.

As for the police failure to intervene during the shootings, Babcock ruled that the deputies were faced with a "rapidly evolving violent situation" and hadn't intended to harm anyone by their conservative response.

Only one case, the lawsuit filed by the family of slain teacher Dave Sanders, survived Babcock's exacting analysis. Wounded early in the attack, Sanders bled to death in a classroom three hours after Klebold and Harris committed suicide. In that instance, Babcock reasoned, the police had ample time and information to mount a rescue effort. Instead, a SWAT team refused to let teachers and students carry Sanders to a waiting ambulance and effectively hindered his access to medical aid. Sheriff John Stone's commanders "demonstrated a deliberate indifference towards Dave Sanders' plight shocking to the conscience of this federal court," Babcock concluded.

The judge also let stand two wounded students' claims of being mistreated by responding officers but dismissed the rest of their case.

Motions to dismiss are still pending for plaintiffs' claims involving several additional Columbine defendants, including various companies involved in marketing Doom and other violent video games and movies, as well as the Tanner Gun Show and two sellers at the show who sold weapons to Robyn Anderson, a classmate who purchased guns for Klebold and Harris. Another lawsuit targeting the manufacturer of Luvox, the mood-altering prescription drug Harris was taking, is still at an early stage.

Anderson and several other tangential defendants have already reached settlements with the Columbine families. The parents of Klebold and Harris have settled with some of the plaintiffs but not others.

But what police knew about the two teenagers prior to the attack and how they responded to the evolving crisis remain key questions about the tragedy. Although some of the families may appeal Babcock's ruling, several say their best hope of learning more about the police command decisions now rests with the Sanders case. Others say they may press Jefferson County District Attorney Dave Thomas to consider convening a grand jury.

Brian Rohrbough, whose lawsuit alleged that his son Dan was killed by a police officer, says his efforts to present a viable case to Babcock were severely hampered by official stonewalling. Because he didn't have enough specific information concerning the circumstances of his son's death, he says, he's been denied the opportunity to conduct the kind of legal discovery that could provide such information. "It's a catch-22," he says.

It's only in the last few months, Rohrbough notes, that the sheriff's office has released detailed ballistics data indicating that police cover fire may have endangered students; the reports also show an unidentified bullet in the backpack of Corey DePooter, one of the students killed in the library ("Back to School," October 25). In addition, as the Rocky Mountain News recently reported, three bullets fired by first responding officer Neil Gardner were found in the library -- despite Gardner's official statement that he did not fire in that direction.

Dale Todd says he discussed Gardner's shots into the library months ago with Kate Battan, the Jeffco investigator heading up the Columbine probe. Battan told him she'd questioned Gardner about it. "She expressly told me that he aimed above [the gunmen's] heads, which drove them away from the windows and back to killing kids inside," he says.

But no police interviews with Gardner other than the one that included his original statement have been released by the sheriff's office, despite court orders to produce all such materials. "There were evidently subsequent interviews that were not produced," Todd says. "We're not getting everything."

Todd is hopeful that state representative Don Lee of Littleton will introduce a bill in the legislature next month that could help prevent future Columbine standoffs. As envisioned by Todd, the bill would require Colorado law-enforcement agencies to revise their policies, doing away with language stating that "officer safety is paramount" in crisis situations.

"If we can't get any help from the courts," he says, "maybe we can through legislation. I don't know."

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