Deputy Scot Peterson (of Marjory Stoneman Douglas HS Fame) Being Prosecuted for, Essentially, Cowardice in Battle

The formal charges are child neglect and criminal negligence.

|The Volokh Conspiracy |

You can see the arrest warrant, which lays out the government's theory.  Because Peterson "was assigned the duty and responsibility of protecting [the high school] and its occupants," the theory goes, he was obligated "to promptly address the active shooter" (rather than "retreating to a position of increased personal safety"). In particular, the arrest warrant alleges, he was criminally culpable in "refusing to seek out, confront, or engage the shooter." (There's also a separate perjury charge, but I'll set that aside here.

1. Now generally speaking, it's not a crime to decline to rescue or protect people in peril. That's true even when one could have rescued them with no risk or real cost to oneself.

2. It is a crime to fail to rescue or protect people when you have a special relationship with them, whether that comes from status (spouse, parent) or contract (lifeguard, doctor). But even when you do have such a duty, you aren't obligated to seriously risk death or serious injury; for instance, to quote the California jury instruction applicable when a parent is prosecuted for failing to protect a child (usually, when a mother is prosecuted for failing to stop her husband's or boyfriend's abuse of her child),

A parent has a legal duty to take every step reasonably possible under the then existing circumstances to protect [his] [or] [her] child from harm including physical attack. The parent however need not risk death or great bodily harm in doing so ….

My quick research has revealed precedents supporting this in Alabama, California, Michigan, Montana, and North Carolina, and no precedents imposing a more categorical protect-even-at-risk-of-death duty. Likewise, the few states that purport to impose a more general duty to help even strangers generally limit that duty to safe rescues.

3. Peterson, though, is being prosecuted for failing to confront an armed murderer, a confrontation that certainly would "risk death or great bodily harm" to Peterson. The question in this case, I think, is whether the legal duty is more stringent for police officers, firefighters, armed security guards, and the like than it is for others (like parents) who owe such a duty.

If the answer is "yes," I take it, the rationale would be that a duty to risk one's life is part of the job, and that this duty is enforceable through the threat of criminal punishment and not just the threat of being fired. (Plus if you aren't willing to run the risk, you should leave the job to someone who is willing.) If the answer is "no," the rationale might be the same used by a court discussing the parent's duty:

[W]e believe that to require a parent as a matter of law to take affirmative action to prevent harm to his or her child or be held criminally liable imposes a reasonable duty upon the parent. Further, we believe this duty is and has always been inherent in the duty of parents to provide for the safety and welfare of their children, which duty has long been recognized by the common law and by statute. This is not to say that parents have the legal duty to place themselves in danger of death or great bodily harm in coming to the aid of their children. To require such, would require every parent to exhibit courage and heroism which, although commendable in the extreme, cannot realistically be expected or required of all people.

But I don't know of any caselaw on the limits of the duty owed by police officers, firefighters, guards, and the like; indeed, I couldn't find any cases at all in which they were prosecuted for failing to confront criminals (of any degree of dangerousness). If any of you know of such cases, please do pass them along.

[UPDATE: Some readers brought up the cases holding that the police can't be sued by people whom they failed to protect for failing to protect them; that is indeed well-settled, but that simply reflects that the police don't have such a privately enforceable obligation to the public. This case raises a different question: whether the government, as the representative of the public, can prosecute police officers for failing to perform their duties to the public.

In a sense, this is similar to the issue raised in the title of the post (though I realize that the analogy between police officers and soldiers is necessarily highly imperfect): Though surely cowardly soldiers can't be sued by fellow soldiers or members of the public, the military can prosecute for this. The question is whether a criminal law obligation would apply to the police officers, not whether the police officers can be sued by particular individuals for breaching any such obligation.]

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  1. I thought in Lozito v. New York City it was ruled that the police aren’t liable for failing to act? This case wouldn’t seem to be significantly different.

    1. There’s a huge difference between saying the military can’t be sued for mistakes in military decisions (they can’t be) and saying the military can’t prosecute a soldier for mistakes in military decisions.

      If there is a duty here, it lies by way of analogy to military relationships, not purely civilian ones.

    2. Lozito v. New York City was decided in the ‘Supreme Court of New York County’, which is a trial court, trial courts don’t set precedent. And state court decisions don’t affect other states.

      Lozito was a tort case, he was suing the NY police, and the court held that the police aren’t liable for failing to act. But that doesn’t mean they can’t be charged with criminal violations.

      1. “Lozito v. New York City was decided in the ‘Supreme Court of New York County’, which is a trial court, trial courts don’t set precedent”

        Yes, they do. It’s only binding in that court, and (usually) isn’t published, but neither of those things qualify as “not precedent”.

  2. I have no idea if the prosecutors are correctly applying Florida law, or staging a publicity stunt, or both.

    But I would presume that the Fraternal Order of Police, and other police apologists who like to distinguish cops from mere “civilians,” and who thump their chests about how the cops are always the ones running into danger while the civilians are running away, would accept the consequences of their own rhetoric. Specifically, if they’re soldiers doing God’s work and protecting civilians, and demanding special compensation and special powers to do this job, then they will accept that if one of their own fails in their soldierly duty they should be punished like a soldier who displays cowardice in battle.

    1. I see your point, but I’d be hesitant to endorse it unless I saw exactly what “rhetoric” of your adversaries you’re trying to stick them to.

      True, if someone really says that police officers are just like soldiers, one can suggest that they should be bound by military justice. But if they simply say that police officers are there to protect civilians, and should be given various immunities because of that, that’s consistent with the duty described in subsection 2 of the post: A duty that sometimes makes police officers criminally punishable for failing to help strangers (unlike the rest of us, who generally aren’t thus punishable), but not when the help would involve grave risk to their own lives. By way of analogy, someone who sings paeans to parental love, and who wants parents to have substantial legal rights, isn’t necessarily bound to conclude that parents should be criminally punished for failing to risk their lives.

      1. Might that rhetoric be that of the cause of the paramilitarization rampant in policing.

      2. “but not when the help would involve grave risk to their own lives”

        Why shouldn’t we impose on cops a duty to risk their own lives? If a cop with a 9mm is standing outside a school where a kid is being killed every few seconds, the grave risk of inaction outweighs the grave risk to the cop. Of course, the cop might not want to take the risk, but that’s why you ask cops to assume the duty before they are placed in grave danger, when the risk of assuming the duty is low, and then punish them if they try to weasel out of their own obligation when the odds go south.

        1. Tend to agree with this, although I’m not sure. The issue is one of assumed risk. Cops don’t have to risk their lives; they can do something safer for a living. And people act in reliance on the belief that police will help them. If I had known the cop was going to sit this one out, I might have armed myself, hired a security guard, etc.

      3. Thank you for that reply, Prof. Volokh. While this oath is not necessarily the one taken by the officer in question, it does make an interesting point. I draw your attention to the phrase “I will perform my duties fearlessly.”

        “I do solemnly swear: I will support, protect and defend the constitution and government of the United States and of the State of Florida; I will render strict obedience to my superiors in the Florida Highway Patrol, and observe and abide by all orders and regulations prescribed by them for the government and administration of said Patrol; I will always conduct myself soberly, honorably and honestly; I will maintain strict, punctual and constant attention to my duties; I will abstain from all offensive personality or conduct unbecoming a police officer; I will perform my duties fearlessly, impartially and with all due courtesy, and I will well and faithfully perform the duties of a Florida Highway Patrol Officer on which I am now about to enter. So help me God.”
        Florida Highway Patrol Oath of Office

  3. This does seem like it would be more appropriate in the form of an employee discipline case rather than a criminal charge. (Or is a discipline case not allowed to extend to a consequential damages claim in addition to firing?)

  4. From the charging docs: “History shows that when a suspect is confronted by an armed individual (police, security, concealed carry person) they either shoot it out with that person or kill themselves. Either way the shooting of innocent bystanders must stop.”
    I found that interesting.

    I read the charges and I hear blah blah blah perjury. Its not unusual for prosecutors to inflate the charges (puffery) so that they have room to knock them down. Trials are always a gamble. Puffery is a time honored negotiating strategy to gain leverage. Part of the plea may be for perjury, but he may be forced to give up his pension and some other things.

    And oh yeah, the charges make for good publicity.

    1. So suspects hardly ever drop their weapons, put their hands up, and surrender? Or run away? Those things are rare?

      1. Suspects? Yes. Deranged mass shooters? No. Very rarely. In fact, Parkland was unusual in that the suspect was captured alive.

        1. There are many cases where a potential mass shooting was derailed by armed opposition. Parkland is not such an outlier as you may think not to mention that once a mass shooter is opposed then they stop shooting innocents and either shoot at the opposition, run away/hide, or commit suicide.

          1. That’s what I said. Mass shooters don’t “surrender” the way a typical criminal might. They either kill themselves or allow themselves to be killed.

          2. “There are many cases where a potential mass shooting was derailed by armed opposition.”

            There are even cases where a mass shooting was derailed by UNarmed opposition.

      2. Context matters: The context of this quote was active shooter training.

  5. […] Deputy Scot Peterson (of Marjory Stoneman Douglas HS Fame) Being Prosecuted for, Essentially, Coward… Reason […]

  6. Let me try a hypothetical: I am walking on the beach and I spot my worst enemy, a hundred feet off shore and in obvious distress. A lifeguard is preparing to swim out to him.

    “Stand back,” I tell the lifeguard. “I am a trained Coast Guard rescue swimmer. I’ll save him.” The lifeguard defers to me and I swim out a little way, then deliberately tread water and chortlingly watch my nemesis slip below the waves.

    If those facts could be proven, I would think I would easily be convicted of manslaughter, if not murder. While I didn’t directly cause the death, I maliciously created a situation I knew raised a great risk of death and that death did in fact result.

    How much different is this situation? Peterson “took” the job: that is, he occupied the post, thereby preventing a qualified person from taking it, and by doing so caused great risk of death.

    I don’t know whether the current state of Florida law allows Peterson to be convicted, but it should.

    1. 1. Your hypothetical focuses on your deliberate intention to divert the lifeguard from his path. The analogy would be if Peterson took the job precisely because he contemplated a possible deadly incident, intended all along not to try to stop such an incident, and purposefully sought to prevent someone else from being in a position to help.

      But as I understand it, there’s no evidence at all of such an unlikely intention on Peterson’s part. Rather, I assume Peterson only realized in the moment that he wasn’t brave enough to confront the killer (or at least the prosecution wouldn’t be able to prove the contrary beyond a reasonable doubt). At that point, there’s no deliberate attempt to prevent a qualified person from being in his job — he thought he was qualified, but only then realized that he was too cowardly to do it.

      2. Now I don’t think your hypothetical is needed to establish that Peterson has some sort of duty to try to protect the children; in your hypothetical, the lifeguard has such a duty, and I do think the police officer is in a similar position. The question is whether this duty extends to life-threatening help, and not just to the more ordinary, safer help.

      1. I think it is clear to everybody that Deputy Scott Peterson was a coward, including in particular himself in the moment. With this in mind, did the Deputy actively call out for replacement units and renounce his position? As the local department would be in assumption of a man on the scene, if the Deputy did not address non-action to the department then he did not only commit to a life-risking engagement of entering the school but also a non-life-risking engagement of communication to his department.

      2. If you’re a lifeguard and 3 sharks are tearing into a swimmer 40 feet off-shore, do you have a legal duty to enter the water at that time? I’d be surprised if the answer is ‘yes.’ (But maybe it is, for all I know.) I would assume her defense would be, “Yeah, I have a legal duty to effect rescues. Drowning people, mostly. And there’s a real risk to me each time I swim out to rescue someone who is drowning, panicking, and swinging his arms wildly at anything approaching him. Doing this is part of the job description. But I did *NOT* sign up for swimming into a swarm of sharks biting a bloody victim. That does happen (5-10 times world-wide, each year), but it’s so rare that it’s not something we lifeguards contemplate when we take on this job.

        I think there are hundreds of thousands of security guards in this country. I would assume that it’s reasonable to expect that you might have to deal with someone with a knife, or a regular gun. Mostly just threatening with it, but certainly possible that he’s actually using it. Seems reasonable to expect the security guard to do *something* in those situations. Not just run away.

        But when there is someone with a large-capacity firearm, where you are outgunned by a massive amount…then it starts to look like you are being asked to sacrifice your life. Doing so would be beyond noble, of course. But not sure if it’s really part of the job description.

        In tragedies like this; I think we find some solace in finding people to (rightly or wrongly) blame. It’s hard for me to see justification for criminal charges. But maybe there are facts out there that would change my mind. Hopefully, if/when this case goes to trial, the jury will be able to reach a reasoned and fair verdict…whatever that turns out to be.

        1. But when there is someone with a large-capacity firearm, where you are outgunned by a massive amount…then it starts to look like you are being asked to sacrifice your life. Doing so would be beyond noble, of course. But not sure if it’s really part of the job description.

          I don’t agree with this at all (not even your suggested facts), but even if it were true, can you answer this: How did Peterson know that Cruz was armed with something other than a “normal gun”? How did he know that Cruz had a “large-capacity firearm”? How did he know he was “outgunned by a massive amount”… considering he never saw Cruz, and never approached the site of the shooting?

          1. I do not *know* the answer to this. But I can guess. If I were out of sight, and heard a gunshot. Then, a second or two or three later, a second gunshot. And a few seconds later, a 3rd gunshot…then I would think that this is a ‘normal’ gun. But if I heard a long sustained burst of gunshots, then I’d be thinking that this is high capacity, or semi-automatic, or military-grade, etc. Maybe this reasoning is inaccurate. But I suspect that lots of people with no real gun training at all (but who have heard live rapid-fire on news reportage of gun battles) would instinctively have a reaction to a crapload of gunshots crammed into just a few seconds.
            For me, the sound of the gunfire would be much more meaningful than actually being within eyesight. If the gunman were 50 yards away, and was holding some sort of handgun, there is zero chance I would be able to tell you anything about what kind of handgun it was, and what capacity it did or did not have for rapid firing, and how many bullets were able to be fired before reloading.

            1. “I do not *know* the answer to this. But I can guess.”

              Machine guns have a little switch on them, that selects between automatic fire and semi-automatic fire. So hearing a single shot, and then a single shot, and then a single shot, does NOT imply that somebody lacks a machine gun. It does imply that either A) he intends to kill many people or B) he’s not a very good shot, and keeps missing his target. (Strictly speaking, that’s not true, either… he could be shooting at things that aren’t people. Shooting at surveillance cameras, for example, or at hallucinations.)

        2. “But when there is someone with a large-capacity firearm, where you are outgunned by a massive amount…”

          I’m not sure that that’s true. I’d think that the guns cops carry nowadays are a pretty good match for an AR15 in close quarters. So action by the cop has a good chance of saving many lives, although perhaps at great risk to his own.

          1. Joe Cop doesn’t know what the other guy has (or doesn’t have). This suggests some prudence (such as knocking on doors from beside them rather than from directly in front of them.)

            The most important factor is tactical surprise. The shooter decides when and where the shooting starts. Then, the cop has to decide whether he sees a target. A lone shooter can pop off at anything that moves, since he doesn’t care who gets shot. The cop has to hold fire until he or she sorts out whether that person standing there is a shooter, or another cop, or a victim. That can cost the cop the advantage of tactical surprise (the shooter not knowing that cop(s) are on the scene already.)

      3. I think Malvolio does capture an important element of the situation, which is that Peterson didn’t just personally refrain from entering the building, but also, in his position as officer in charge, directed that others not enter. He didn’t just fail to help, he obstructed help. Used his authority or order it not be extended.

      4. If you look at the docs then you will see that not only did Peterson not attempt to gather info for tactics, he initially directed Broward officers away from entering the building. Lest we forget, it was a nearby county that entered the facility not Broward. So in effect, Peterson did follow the analogy of Malvolio above.

      5. Petersen did divert someone else from his path — the deputy who would have had that beat had Petersen not claimed to be willing to do it. He did it deliberately and corruptly.
        Presumably Petersen’s only motive was to gain the salary (and respect and whatever other benefits) of being a deputy, but that is still fraudulent.
        Perhaps Petersen could make the defense that he had believed in good faith that he could function as a deputy, but that is a question of fact for the jury.
        As for whether there is a duty to defend even in the face of danger, I think that that is informally demonstrated every day: law-enforcement officers are described as “brave” and their job is “dangerous”. On-the-job deaths are referred to as “in the line of duty”.
        Does that informal understanding translate into a true legal duty? It may say “protect and serve” on the doors of their cruiser, but that obviously hasn’t translated into a civilly enforceable responsibility.
        I don’t know if it does but I think it obviously should. There is something inherent in the contract between society and people with intermittently dangerous but socially necessary jobs, law-enforcement in particular but also firemen, EMTs, lifeguards, and such, to the effect that, “the person who takes this job will endure risks to carry it out; if that person isn’t you, don’t take the job.”

    2. Peterson “took” the job: that is, he occupied the post, thereby preventing a qualified person from taking it

      Didn’t he literally do that at the time of the shooting, i.e. he told his superiors he was on the scene, which resulted in them telling the neighboring police agencies to stay back in order to avoid the risk of friendly fire, while in reality he was hiding out in the parking lot? Maybe that is the actual basis of the charge, not simply that he declined to charge into the guns like the Light Brigade.

      1. This is correct. See my post on the transcript below. Peterson actively told other responding officers to stay away!

  7. This would make an interesting precedent. The police in my jurisdiction will routinely delay giving assistance, etc. if they feel the danger is too great to themselves. It is not uncommon to “wait for SWAT” even when there may potentially be ‘innocent’ lives at stake. There is a ‘better strategy’ argument that there is less risk to innocents when the police have overwhelming force. However, there is also less risk to the police… cowardice or intelligence? It will usually be judged post hoc. It would be “interesting” indeed to give district attorneys the ability to criminally charge cops when they aren’t ‘brave enough.’ But I don’t think that’s a road we want to go down.

  8. Everyone should read the arrest warrant, which Eugene has linked above and I will link again. It’s a chilling 41 pages.

    http://cbsmiami.files.wordpress.com/2019/06/arrestwarrant.pdf

    Page 4: BSO training records indicated that Deputy Peterson last attended a four hour block of Active Shooter training on April 19, 2016.

    Page 5: (Description of the Active Shooter lesson plans)
    “Remember, every time you hear a gunshot in an active shooter incident, you have to believe that is another victim being killed.” Deputies were also taught that “Time is critical in each of these incidents. This is like no other crime. The motive is to kill as many people as possible in the shortest amount of time.”… The first officer or two officers on scene will immediately go to confront the shooter.

    But what did Deputy Peterson actually do after receiving this training and associated pay check?

    Page 11 (Radio Transcript)
    2:27:30 Deputy Peterson broadcasted “Juliet 3. Make sure I have a unit over in the front of the school, make sure nobody comes inside the school”.

    2:28:30 Deputy Peterson broadcasted “Broward, do not approach the 12 or 1300 Buildings. Stay at least 500 feet away at this point”.

    1. Not to mention that he was the Broward County contact and trainer for Active Shooter.

      1. That might be the problem. The cops teach people to run and hide from active shooters, and to avoid direct confrontation.

  9. I read articles about these charges earlier today and, from what I can recall (don’t feel like taking time to research this), it wasn’t just that he failed to engage/pursue or investigate the gunshots, but that he did not even do his job in communicating with his agency and others over the radio about the situation. Plus, I thought that he prevented some from responding because of his poor communication.

    Liability of law enforcement for cowardice and failure to protect shouldn’t be a yes or no issue but should be a wide spectrum. The actions of this man are, IMO, definitely on the should-be-liable side.

  10. Police, in all cases, are a para-military organization. Court decisions on their “duty to protect” in the past have been brought by those they failed to protect, and have been dismissed, and the charges were fought by the municipalities employing the officers to limit their own liability.

    Bringing charges that amount to cowardice (UCMJ Art. 99) against an officer is not likely to survive in court- because police are para-military, not military. The military runs by a different set of legal rules than civilians- the UCMJ. Police operate under the same laws that govern all other civilians. They can and should certainly be fired for military illegalities that have military criminal punishments such as disobeying a direct order, cowardice, and various other things. But the police shouldn’t be charged as criminals for things that ordinary citizens wouldn’t be charged as criminals for. And an ordinary citizen employed anywhere can get fired for disobeying a direct order. In ordinary employment- cowardice will very rarely come up.

    1. I agree that police are a paramilitary organization. I disagree with your emphasis on the para rather than the military part of that description. They and their representatives have demanded all the perks and protections of their status. They need to be held accountable to the obligations of that status as well. And, yes, that means being held criminally liable for willful failure to do your sworn duty.

      I do agree that they are not subject to the UCMJ but for a different reason. That’s a federal statute applicable to federal forces. Police are state officials subject (mostly) to state laws. But the state laws that apply to police are not identical to the state laws that apply to the rest of us. They are immune to some but are (or should be) accountable to others that do not apply to us non-police.

  11. I do not know the case law in that circuit or in the State of Florida but I have read a number of 9th circuit cases over the years which held that while police (i.e., agents of the state) do not have a duty to protect the general public they do have a duty when they have a “special relationship” to which a quick case law search revealed this:

    “The heart of Balistreri’s due process claim is that the Pacifica police failed to take steps to respond to the continued threats, harassment and violence towards Balistreri by her estranged husband. There is, in general, no constitutional duty of state officials to protect members of the 700*700 public at large from crime. See Martinez v. California, 444 U.S. 277, 284-85, 100 S.Ct. 553, 558-59, 62 L.Ed.2d 481 (1980); Ketchum, 811 F.2d 1243, 1247 (9th Cir.1987); Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir.1982). However, such a duty may arise by virtue of a “special relationship” between state officials and a particular member of the public. Ketchum, 811 F.2d at 1247; Escamilla v. Santa Ana, 796 F.2d 266, 269 (9th Cir.1986). Several courts have held that, to determine whether a “special relationship” exists, a court may look to a number of factors, including (1) whether the state created or assumed a custodial relationship toward the plaintiff; (2) whether the state affirmatively placed the plaintiff in a position of danger; (3) whether the state was aware of a specific risk of harm to the plaintiff; or (4) whether the state affirmatively committed itself to the protection of the plaintiff. See Ketchum, 811 F.2d at 1247; Escamilla, 796 F.2d at 269-70; Jensen v. Conrad, 747 F.2d 185, 194 (4th Cir.1984).” Balistreri v. Pacifica Police Dept., 901 F. 2d 696 (1990) at 699-700.

    The qualified immunity hurdle has raised substantially since then but it seems to me that agents of the state, like police officers, should be criminally liable as well for certain people, like school children.

    Whether or not they are criminally liable in Florida is something we may one day discover.

  12. What if Florida offers as a plea bargain sentencing him to be accompanied by a pair of minstrels?

    https://m.youtube.com/watch?v=BZwuTo7zKM8

  13. The use of “child neglect” laws here seems wrong. They’re for situations where a child can’t protect himself _because_ he’s a child. Here, the victims couldn’t have protected themselves any better had they been adults. The guard was not a “caregiver” to the kids any more than street cops are “caregivers” to the passerby.

    1. The *government* put the children (and teachers and staff) in a gun-free zone, and assigned an armed deputy t protect them. The *government* put them in that school *because* they are children. The adults had a choice of work environment; the children did not.

      I see the children as the equivalent of jail prisoners. The adults are the equivalent of jail staff.

      1. That might be a better analogy. Corrections officers are held accountable if they do not protect the prisoners to the extent possible just as Peterson did not protect the students (and teachers) to the extent possible. Especially considering his extended training as well as being a trainer in Active Shooter for Broward County.

  14. This makes sense. If we’re going to pay people to face a low probability that they might have to take a great risk, it doesn’t make sense to let them collect their checks until it’s time for them to perform, and then elect not to perform.

  15. The charge of culpable negligence seems consistent with nonfeasance in office, which a quick review of Blackstone, Hawkins, Russell, and Bishop shows was an offense at common law for sheriffs and constables. These common law authors don’t label it “essentially cowardice in battle,” rather they discuss it as neglect of duty.

    The arrest warrant goes into detail on Peterson’s training and duties in his role and, based on the information in the warrant, it appears he neglected those duties while in his official capacity. As Florida Statute 2.01 adopts the “common and statute laws of England … down to the 4th day of July, 1776,” then a charge of culpable negligence doesn’t seem all that far-fetched.

  16. To me, the charges are just too novel an interpretation of those statutes to be justifiable. The axiom that “ignorance of the law is no excuse” is predicated on the law being knowable before one acts, so after-the-fact interpretations that decide certain conduct is unlawful aren’t- or shouldn’t- be allowed.

    Peterson’s cowardice is certainly contemptible. My person opinion is he had that job because he was at the tail end of his career and was just coasting toward retirement. He wasn’t mentally or physically up to the task that was thrust upon him by the shooter. So he froze. Regardless of how much I despise his cowardice, however, that doesn’t make it a crime. I doubt the prosecutors can point to a single prosecution in the past under these statutes that is remotely similar. IOW, it wasn’t possible for Peterson to have reasonably known that being a coward would be criminal.

    Add to that the decades of training police that the First Rule of Policing is to make it home alive, and these charges look more like politics than justice.

    1. ” He wasn’t mentally or physically up to the task that was thrust upon him by the shooter. So he froze. Regardless of how much I despise his cowardice, however, that doesn’t make it a crime. ”

      Try it this way, then. He chose to take the job. That’s a voluntary act, not made under stress. If he chooses otherwise, there’s a different cop at the school. Now, do we assume that any other cop would have done something different? I think we’re safe in that assumption. It’s not 100%, but it’s closer to 100% than to 0% (a lot closer, by my guess, but I’m nowhere near fully informed on the candidates.) Anyways, from there it gets fuzzier… even if a different cop does things differently, it in no way guarantees you get a better outcome. Maybe different cop #1 charges in and catches a bullet six inches inside the door. Maybe different cop #2 goes inside, sees the carnage, and THEN breaks down instead of breaking down outside. Maybe different cop #3 goes inside, but can’t figure out where the shooter is until the shooter is done shooting. And so on.

      That’s why, I think, the tort claims will fail.

  17. Since we regularly give police access to arms denied to regular civilians, they are not strictly non military, hence they are paramilitary.

    In the founding era there were no police but there were militias and state forces and in time of war, which included undeclared conflicts with American Indians and pirates, they were subject to military discipline including forms of court martial. Were members of militia forces ever charged with cowardice under fire?

  18. I believe DeShaney v. Winnebago will be the deciding case. Here is the pertinent text:

    “(a) A State’s failure to protect an individual against private violence generally does not constitute a violation of the Due Process Clause, because the Clause imposes no duty on the State to provide members of the general public with adequate protective services. The Clause is phrased as a limitation on the State’s power to act, not as a guarantee of certain minimal levels of safety and security; while it forbids the State itself to deprive individuals of life, liberty, and property without due process of law, its language cannot fairly be read to impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means.

    (b) There is no merit to petitioner’s contention that the State’s knowledge of his danger and expressions of willingness to protect him against that danger established a “special relationship” giving rise to an affirmative constitutional duty to protect. While certain “special relationships” created or assumed by the State with respect to particular individuals may give rise to an affirmative duty, enforceable through the Due Process Clause, to provide adequate protection, see Estelle v. Gamble, 429 U.S. 97″] 429 U.S. 97; 429 U.S. 97; Youngberg v. Romeo, 457 U.S. 307, the affirmative duty to protect arises not from the State’s knowledge of the individual’s predicament or from its expressions of intent to help him, but from the limitations which it has imposed on his freedom to act on his own behalf, through imprisonment, institutionalization, or other similar restraint of personal liberty.”

    It is clear that Peterson was an actor of the State and that the key issue will be whether a “special relationship” existed between the officer and the children. Such “special relationship” is not based on the danger during the shooting but “from the limitations which it has imposed on his freedom to act on his own behalf, through imprisonment, institutionalization, or other similar restraint of personal liberty.”

    So, shouldn’t the argument be that because the school had enforced limitations on the freedom to act on the children based on restraint of movement within the school, restraint of possessing defensive weapons, fencing and locks on the buildings and area, requirement to be on campus and not at any other location during certain hours of the day, the school/state had created a “special relationship” and thus failure to act in their defense violated the states affirmative requirements that hold under a “special relationship”?

    1. DeShaney v. Winnebago, IIRC, only speaks toward whether the 14th Amendment creates a federal right. It’s not relevant as to whether Florida law imposes any liability.

      1. I don’t believe that is what it says. It says that a “special relationship” is what is required for the 14th Amendment to apply when making claims against the government (Federal or State) with regards to their failure to provide defense of another.

        Also, if state law controlled on this issue, then why didn’t the plaintiffs in DeShaney, Castle Rock, etc. sue under the laws of their state? Your statement seems to imply that the legally required affirmative duties of individuals acting on behalf of a State will vary based on the State laws of the State. I don’t believe this is true.

        1. If the determination hinges on whether 14th Amendment applies, that means that the claim is for deprivation of a federal Constitutional right.

          Yes, it does very from state to state. The plaintiffs in the others cases probably didn’t bring suit under the laws of those states because the state law created no cause of action, or such a claim was barred in their courts (for sovereign immunity or whatever other reason).

  19. If there is no general duty to rescue (that is, assuming that principle is to be left intact) then is there a specific duty? Well, this policeman was assigned the duty of protecting these kids, specifically. One possible outcome is that this person loses his job because he refused to perform it, thus reverting to the general rule.
    But, there’s a reliance issue in that solution… the kids (and their parents) relied on Officer Chicken and thus did not take steps to be responsible for protecting themselves (and their children) and that should be addressed, and getting fired doesn’t cover that. Should the redress come from civil or criminal courts? There’s an argument for either one, and they aren’t mutually exclusive.

    Ultimately, the question of whether there’s criminal liability comes down to one analogy. Officer Chicken took on the job of policeman, and the job of school resource officer specifically, knowing that he might be expected to come under fire, literally, in the line of duty. Because police officers do this, they get benefits that go with the job. Officer Chicken took the benefits but didn’t perform the duty. That sounds like fraud, and fraud is a crime.

    1. Granted it’s a hypothetical but I’m curious what steps you envision the kids and parents would or could have taken?

      (As to fraud, wouldn’t you need to prove intent?)

      1. “Granted it’s a hypothetical but I’m curious what steps you envision the kids and parents would or could have taken?”

        Pick a different school. Hire private security. Pack heat. There’s three easy ones. I’m sure there are more.

      2. “(As to fraud, wouldn’t you need to prove intent?)”

        He intended to cash his paychecks. Doesn’t seem hard to prove.

  20. Prof. Volokh, I don’t think this is properly phrased, “3. Peterson, though, is being prosecuted for failing to confront an armed murderer. . . .”

    Peterson didn’t know there was an armed murderer at the time (and since this is a law blog, we should even call the accused a murderer since he’s still considered innocent).

    Instead, the culpable negligence charge on the arrest warrant is most applicable here.

    Under FLA law, “With culpable negligence, the accused must not only act unreasonably with respect to his or her duty, but he or she must also exhibit gross recklessness, or wanton disregard for others” which seems to apply here.

    That seems to perfectly describe the situation.

    He’ll probably get off rather lightly if found guilty though.

    Maybe a couple of months.

    1. Arrgg… we shouldn’t even call the accused a murderer

      EDIT FUNCTION PLEASE!

  21. I’m not sure cowardice is the right word. How ’bout rational? In exchange for a reasonable salary, I wouldn’t mind assuming a small risk that I might be placed in a dangerous position. But if the odds suddenly change, and I find I must place myself is a gravely dangerous position, hey, there’s other jobs. I mean, what have those kids ever done for me.

    But if there’s cop with a 9mm outside of a school during a shooting, we need him inside the school. A 9mm against an AR15 is a roughly fair fight, and there’s a good chance that the cop will save many lives. The downside is the risk that the cop will become a victim, but will presumably replace at least one of the kid victims.

    But if we don’t punish cops who fail to step up when duty calls, they might decide, hey, better a live coward than a dead hero.

  22. Two comments comments completely unrelated to each other.
    1. As a former prosecutor (and Child Services attorney) this feels wrong; the law shouldn’t penalize authentic and reasonable human emotions and actions, and should not demand that every guy with a badge be a hero.
    2. If we want to accept this as a premise for CRIMINAL liability, I think every 15-20 week old fetus who has ever been aborted needs to file a class action lawsuit for wrongful death.

    1. ‘. . . the law shouldn’t penalize authentic and reasonable human emotions and actions. . . .”

      That’s true for us schmoes; however, cops volunteered for the position; are vetted, tested, and then accepted; then are specifically trained to face and succeed in such situations.

      You can’t use the same standards and expectations for a non-cop with a cop.

      1. I’m not fully convinced either way (the first thing that occurred to me was “how did ‘Law and Order’ not use this fact pattern to give St. Jack McCoy a shot at cowardly cops?”).
        But what you’re articulating strikes me as more of a tort law standard than a criminal one.

    2. I suppose if all he did was cower then this might apply. However he was not only trained but a trainer in Active Shooter; as well as his communications hampered the response by other Broward county personnel arriving on scene. That is negligence regardless of any presumed duties of a fully trained police officer on duty.

    3. “1. As a former prosecutor (and Child Services attorney) this feels wrong; the law shouldn’t penalize authentic and reasonable human emotions and actions, and should not demand that every guy with a badge be a hero.”

      Is there a middle ground between heroicly facing down the shooter, mano-a-mano, and fleeing the scene “to direct the response”?
      I can accept “I entered the building, but I wasn’t able to determine who the offender was or if there were multiple offenders” and “I entered the building and saw the bad guy, but I didn’t have a shot.” I have more trouble with “I heard something happening inside, so I remained outside to direct the response”.

  23. […] Eugene Volokh has some words on these charges worth reading: […]

  24. In a confrontation with an armed and barricaded subject the police will generally set up a perimeter, call for backup and assess the situation. Of course an active shooter situation is different and more urgent. However I’m not clear on whether the officer knew there was only one shooter, if there were multiple shooters it would seem reckless to simply charge in.

    Assessing the situation would seem the wiser course, although it doesn’t seem he did much of that either. The messages sent by radio would however seem to indicate something else was going on. If backup was arriving it seems at least they should have been deployed to secure a perimeter.

  25. I’m not sure how you could argue that the officer didn’t have a duty to risk his life. What else are you there to do? Why do you carry a gun? Is someone else above you? If risking your life isn’t part of the job, whose job is it? Does Peterson have to call Judge Dredd? Why is he able to risk his life during other police duties but not in a school?

    The story is suspicious af, especially since Scott Israel’s son is a suspected pedo who got arrested and had his case dropped thanks to the arresting officer, none other than one Scot Peterson.

    1. More to the point, if risking your life isn’t part of the job, isn’t it time we stripped away the benefits granted to them on the assumption that it is?

      1. Exactly. Also, if police are not responsible for risking their lives, why should we not be allowed to risk our own and defend ourselves via 2A?

  26. While I can’t speak to Florida law, I do have a couple of comments here:

    1. There is a branch of the US military whose primary responsibility is law enforcement and lifesaving. The unofficial motto of the US Coast Guard is, “You have to go out; you don’t have to come back”. I have rather more respect for the USCG than for this person or the department that employed him.

    2. Even if this proves to be a fruitless prosecution, the attempt might prove a salutary example for other members of Florida law enforcement agencies. After all, “You can beat the rap, but you can’t beat the ride”, as somebody once said. (What goes around comes around.)

    1. “There is a branch of the US military whose primary responsibility is law enforcement and lifesaving”

      Strictly speaking, the coasties aren’t military unless there’s a war on. This is why they can do smuggling interdiction without violating the PCA.

  27. An argument can be made (as have previous commenters) for imposing criminal liability similar to the UCMJ on police for dereliction of duty / cowardice in the face of an armed criminal (the enemy) threatening harm to civilians. But heretofore, society has not done so. If we are to embark on that path, I expect we should enact clear, specific legislation (similar to the UCMJ) so that those considering a law enforcement career understand their exposure to criminal law.

  28. On reflection, I am seeing that Professor Volokh May have a point. There certainly COULD be a law against what he did. It may well be that there OUGHT TO BE such a law. But is there one? That’s a different question. There certainly could be a special code for police officers and similar that imposes duties analogous to military soldiers, perhaps ought to be. But is there one?

    Scot Peterson gets the benefit of being tried under the law as it was at the time of his conduct, not by the law we now wished was there.

    1. “There certainly could be a special code for police officers and similar that imposes duties analogous to military soldiers, perhaps ought to be. But is there one? ”

      Police officers are sworn. Whatever they swore to ought to be enforceable if they break their oath. (Obviously, this could be different from state to state, depending on what each state’s law-enforcement licensing looks like.)

  29. […] law professor Eugene Volokh notes that even when people (such as parents) have a special duty of care, they are not legally obligated […]

  30. […] law professor Eugene Volokh notes that even when people (such as parents) have a special duty to protect someone, they are not […]

  31. […] law professor Eugene Volokh notes that even when people (such as parents) have a special duty to protect someone, they are not […]

  32. […] law professor Eugene Volokh notes that even when people (such as parents) have a special duty to protect someone, they are not […]

  33. […] law professor Eugene Volokh notes that even when people (such as parents) have a special duty to protect someone, they are not […]

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