Actions by school staff before Michigan shooting fuel questions about their liability

In the aftermath of last week's deadly shooting at a Michigan high school, prosecutors took the rare step of bringing criminal charges against the parents of the alleged gunman.

And they have not yet ruled out what would be an even more extraordinary step: a case against the school itself.

The prospect of legal action against Oxford High School, located, on the edge of suburban Detroit, comes as details continue to surface about the concerns raised by school staff in the hours before the shooting that left four students dead and six others wounded, along with a teacher.

Those concerns culminated in a meeting between guidance counselors, the suspect and his parents on the morning of the attack, after which the alleged shooter was allowed to return to class.

Now, questions have mounted about whether school officials could have taken additional steps to prevent the shooting, and whether the school or its employees could be facing civil or even criminal liability as a result.

Speculation has been driven, in part, by comments made by Oakland County Prosecutor Karen McDonald, who has declined to dismiss the possibility of charges for school officials, citing the ongoing investigation.

In a TV interview Monday, McDonald went further and suggested that school officials made critical mistakes before the shooting.

"We should all be looking at the events that led up to that horrific event, and as a community, as a school, as a nation, talk about what we could have done different so that didn't happen. And in this case, a lot could have been done different," McDonald said, speaking to Good Morning America.

Legal action against the school could prove a steep climb, though. Experts said that criminal liability for school employees in school shooting cases is essentially unheard of. And civil liability is often difficult to pursue due to sovereign immunity laws that shield governmental agencies, including school districts, from lawsuits.

"I don't think anybody in the school is going to be dragged down and put into the Oakland County Jail," said Mike Kelly, a defense lawyer based in Northville, Mich., who specializes in representing students during school disciplinary actions.

"But I think there's going to be an acknowledgement that these were things that should have been done or could have been done, and that the school knew that they had those remedies available, and they didn't use them," Kelly said.

The suspect, 15-year-old Ethan Crumbley, has been charged with 24 felonies, including terrorism and four counts of murder. His parents, James and Jennifer Crumbley — who purchased the gun for him four days before the shooting and are accused of storing it unlocked in a drawer at home — were charged with four counts each of involuntary manslaughter, one for each of the dead. All three have pleaded not guilty to all charges.

What happened at the school before the shooting

School staff had twice raised concerns about the suspect — once the day before the shooting, then again that morning — according to prosecutors, law enforcement and school officials.

The most detailed account comes from a letter sent to parents this past weekend by the school district superintendent, Tim Throne.

On Monday, Nov. 29, the day before the shooting, a teacher found Crumbley "viewing images of bullets" on his cell phone during class and sent him to see a guidance counselor. Crumbley told counselors that shooting sports were a family hobby, according to the letter.

The next day, a teacher discovered a disturbing, violent drawing described by law enforcement as depicting a gun, a bullet and a bleeding person, along with a handful of concerning phrases, among them: "The thoughts won't stop, help me."

School counselors apparently found the drawing alarming enough to call Crumbley's parents to a meeting, in which they asked them to seek counseling for their son within 48 hours, or else the school would contact Child Protective Services.

Crumbley told counselors that the drawing was "part of a video game he was designing," then asked to work on homework while counselors waited for his parents to arrive.

"At no time did counselors believe the student might harm others based on his behavior, responses and demeanor, which appeared calm," Throne wrote. The situation was never escalated to the school's principal or assistant principal, the letter said.

The district's letter underscored the role of Crumbley's parents, saying they "flatly refused" to take their son home from school that afternoon.

"The student's parents never advised the school district that he had direct access to a firearm or that they had recently purchased a firearm for him," Throne wrote.

School officials allowed him to return to class and did not search his backpack or locker, according to law enforcement.

Shortly afterward, authorities say, Crumbley took his new Sig Sauer 9mm pistol and almost 50 rounds of ammunition and shot and killed four people, all fellow students, injuring seven others.

"Given the fact that the child had no prior disciplinary infractions, the decision was made he would be returned to the classroom rather than sent home to an empty house," Throne wrote.

"While we understand this decision has caused anger, confusion and prompted understandable questioning, the counselors made a judgment based on their professional training and clinical experience and did not have all the facts we now know."

Experts say a successful criminal case is unlikely

Prosecutors say they have not made a decision about criminal charges against school officials. "We haven't ruled out charging anyone," said McDonald in an Monday interview on CNN.

Experts contacted by NPR agreed that any criminal charges, if filed at all, would seem unlikely to reach a trial, let alone hold up before a jury.

In decades of school shootings, criminal charges have essentially always been limited to the shooters themselves, and occasionally people who provided them with their guns — as with Mark Manes and Phil Duran, who pleaded guilty to illegally selling guns to the Columbine High School shooters, both of whom were minors.

"There's almost never a question of holding the schools legally liable in a criminal sense," said Catherine J. Ross, a law professor at George Washington University who specializes in school- and student-related law.

"They would have to find a criminal state of mind and intent to not protect people. And I find it unimaginable that such an intent existed," said Ross. "The negligence would have to have been so shocking that no remotely careful school administrator could have made those decisions.

There are barriers to civil litigation, but lawsuits are likely anyway

Even if prosecutors ultimately decline to bring criminal charges, school officials could still face civil litigation.

"There's several schools out there that have gone through similar processes following mass shootings and in many of them, the court has dismissed the lawsuits," said Kelly. "What happens in this case could be a little bit different, obviously, because I think the culture is just evolving with this."

Michigan is among many states in which governmental agencies and institutions — including schools — generally cannot be sued under sovereign immunity.

Individual employees may be sued, experts said. But to win a case, families of the victims would have to prove that the school employees were acting with gross negligence — defined by Michigan law as "conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results" — and that said negligence was the "proximate cause" of their injury or death.

That would be a difficult argument to make, Ross said. Employees could argue that they did, in fact, have concern for whether other students were injured, or that their decisions that day were not a direct enough cause of the shooting's consequences.

Qualified immunity, a legal defense for public employees that has most often been used to protect police officers, could also come into play, said Ross.

But, Ross and Kelly agreed, the facts of this case appear to be unique.

"When we look at civil cases, we ask first: Should it have been, or would it normally be, foreseeable that violence could follow what we've discovered? And I think the answer to that here is yes," Ross said.

"Then, could the school have done something or refrained from doing something that would have prevented the violence? And here, too, the answer is yes," she added. "And that is very unusual."

Courts generally allow officials the benefit of the doubt when dangerous situations require them to make split-second decisions. But experts said the Oxford case involved special circumstances, including the fact that school counselors had more than 90 minutes to evaluate the situation while they awaited the arrival of the suspect's parents.

Then, after the Crumbleys refused to take their son home, counselors chose to return him to class, rather than send him home alone or place him in in-school suspension.

Experts also questioned how a situation could be serious enough for the school to threaten a call to CPS, but not serious enough to search the suspect's backpack or locker.

Where other civil cases have been successful

Civil lawsuits against schools after school shootings are common, but rarely reach trial. Those that are successful typically end in settlements.

After the 2018 shooting at Marjory Stoneman Douglas High School in Parkland, Fla., for example, more than 50 negligence lawsuits accused the Broward County Public Schools of failing to act on previous troubling behavior by the shooter.

Ultimately, 52 of those lawsuits were rolled together into a single $25 million settlement for the families of the 17 people killed and the dozens of others who were injured or traumatized by the shooting. The final case was settled separately.

But cases against schools are frequently dismissed under sovereign immunity challenges, as was the case with a suit against the school district in Newtown, Conn., where 20 children were killed by a shooter in 2012.

Civil suits are more often successful when filed against the shooter or the shooter's family — in that regard, experts expect the Oxford case to be no different. [Copyright 2021 NPR]