While it might have seemed that mass shootings subsided during the coronavirus pandemic, in truth the shootings never stopped. The Gun Violence Archive, a nonprofit organization that defines a mass shooting as one with four or more people injured or killed, not including the perpetrator, counted more than 600 such shootings in 2020, compared with 417 in 2019, and the carnage has continued into 2021, with hundreds of shootings so far this year. In an article from July, 2021, 370 people had already died in mass shootings. Whatever the exact number, it remains a persistent and uniquely American problem. In fact, there are so many shootings that people forget whether a report is old or new.

But some mass shootings remain unforgettable to the broader public because of the number of people killed, the randomness, or the vulnerability of the victims. Some even become known by a single place name like Newtown, Parkland, Columbine, and now Oxford.

Numerous gun restrictions known as red flag laws have passed nationwide and have become an increasingly popular tool to prevent mass shootings, suicides and deadly domestic violence. Nineteen states and the District of Columbia have adopted them, sometimes with bipartisan support. Fourteen such laws were passed in the aftermath of Parkland.

Connecticut was the first state to pass a red flag statute, in 1999, after an accountant at the headquarters of the state lottery, who had shown signs of emotional instability and was being treated for stress-related problems, killed four supervisors. At first, the law went almost unused, with only a few cases a year. But statistics show that the pace began to quicken after high-profile shootings began to occur more frequently in other states, starting in 2007 with the Virginia Tech killings.

Although a few red flag statutes are limited to only law enforcement, many such laws also allow family or household members to petition the courts to temporarily seize or prevent the purchase of firearms. Some states offer the option to medical professionals, school officials, coworkers and current or former partners. The length of the firearm "timeout" varies by state, generally lasting for up to a year. Extreme risk protection orders must meet specific legal standards, and petitioners must present evidence for the court to consider at a hearing.

In California, the state with the greatest number of mass shootings, two-thirds of those polled had never even heard of the state's red flag law, according to a recent study by the University of California Firearm Violence Research Center. After Parkland, Florida passed a red flag law, but that law did not include statewide funding to train officers, leaving the burden on local police departments. States certainly need to educate residents, nonprofit officials, health care providers and law enforcement about these laws, their availability, and the process of filing a petition to seize weapons.

The most recent mass shooting in Oxford, Michigan again begs the question: What could have been done to prevent this tragedy? The obvious answer is to blame the parents, and in the court of popular opinion, no one is likely to come to their defense, except maybe a few gun owners who reject any infringement on Second Amendment rights. While in my view the recent press conferences and interviews conducted by Karen McDonald, the prosecutor handling the case, are walking advertisements for why these positions should be appointed and not elected, she is wisely staying away from directly attacking Oxford High School.

Because the U.S. Supreme Court (New Jersey v. T.L.O.) has said that a school's obligation to teach and protect students within the school requires the "probable cause" standard to be diluted to one of "reasonable under the circumstances," schools may conduct searches of students and their belongings, the reasonableness of which depends on the need and purpose of the search, the degree of certainty that something will be found and the extent to which the search will infringe on the student's expectation of privacy. In assessing the legitimacy of that determination, an arbiter after the fact must consider all of the circumstances and the degree of intrusiveness of the search. This requires balancing the student's privacy interests against the school's interest. The greater the interest of the school, the greater the allowance for intrusion into a student's privacy.

But what the school actually knew or had reason to suspect based on all the facts and circumstances has not been fully revealed. We do not know what prompted the parent-teacher conference, what history of behaviors had been exhibited, what teachers had seen and shared, or what prompted the discussion about therapy, to identify just a few considerations. So I for one am not prepared to say whether a search of the student's backpack would have been reasonable under the circumstances.

Then of course there is the issue of whether the school will be sued for negligence by grieving parents. There is no greater loss nor tragedy that a parent can endure, and before any lawyer ventures down this path, I would hope that he or she provides the family with an exegesis of the law—specifically, elements of a cause of action for negligence by a municipal employee and what immunities exist. A municipal employee is generally liable for the misperformance of ministerial acts, but has a qualified immunity in the performance of governmental acts that are performed wholly for the direct benefit of the public and are supervisory or discretionary.

The hallmark of a discretionary act is that it requires the exercise of judgment, in contrast to a ministerial act that refers to a duty to be performed in a prescribed manner without the exercise of judgment or discretion. To demonstrate the existence of a ministerial duty on the part of a municipality and its agents, "a plaintiff must point to some statute, city charter provision, ordinance, regulation, rule, policy, or other directive that, by its clear language, compels a municipal employee to act in a prescribed manner, without the exercise of judgment or discretion."

There are ways by which a plaintiff can establish that a defendant should not be entitled to qualified immunity (e.g., the identifiable person-imminent harm exception to discretionary act immunity) but rather than get into the weeds, it is more relevant to turn to the essential elements of a negligence cause of action—the existence and scope of duty; breach of that duty; and causation of damages. Contained within the first element, duty, is the distinct consideration that gets the most attention by our courts—whether the specific harm alleged by the plaintiff was foreseeable; in other words, would the ordinary person in the defendant's position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result? In short, was there a recognizable danger, based upon some knowledge of the existing facts, and some reasonable belief that harm may possibly follow. Did the school know, or should it have known, that the shooter "would obviously and naturally, even though not necessarily, expose [the decedents] to probable injury unless preventive measures were taken."

A recent Connecticut Supreme Court (Osborn v. Waterbury) decision split 4 to 3 on whether the issue of appropriate supervision on playgrounds during recess required expert testimony factoring in such considerations as the size and visibility of the playground area, the playground equipment, the age and disability status of the students and a history of incidents, among other criteria. I think it's safe to say that what Oxford High School officials should or should not have done under all the circumstances of this tragedy is extremely complicated and fact-intensive and requires expert testimony well beyond my purview.

So rather than speculate or Monday-morning quarterback, I offer my deepest sympathies to the families of the victims of this latest nightmare and would rather devote my energy to how we can eliminate guns in the hands of youths and better support mental health services. Sadly, I have no illusions that this will be the last mass shooting at which to revisit these issues.

Originally Published by CT Law Tribune

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