To Protect and Serve?
Eighty minutes. That’s the amount of time that elapsed on May 24 between the first report of trouble at Robb Elementary school in Uvalde, Tex., and the moment the gunman was shot and killed. We are understandably dismayed by this. How, we ask, when there were so many police officers at the school within minutes of the first 911 call, can it have taken so long to confront the gunman?
Two weeks on, the Uvalde massacre has largely receded from the news, the attention span of the typical American being roughly equal to that of a mosquito. But despite the fact that the horrors of that day are no longer on the front page, a reckoning awaits. Sad to say, but that reckoning will leave nearly everyone disappointed.
You may assume, having seen video of the prolonged inaction by the police that day, that civil suits will follow and juries will hold the responsible parties accountable. But no matter what malfeasance is revealed by the investigations now ongoing, it is unlikely that anyone will be held civilly liable for his failures.
As nonsensical as it may seem, police officers are immune from civil liability for failing to protect any individual from harm, even when that failure is as egregious as it appears to have been in Uvalde. In the U.S. Supreme Court cases of Castle Rock v. Gonzales and DeShaney v. Winnebago, and the D.C. Court of Appeals case of Warren v. District of Columbia, the courts held that police and other government entities could not be held liable for their various lapses that resulted in harm to the plaintiffs.
In Castle Rock, Colorado police failed to arrest an estranged husband for a restraining order violation in the hours before he murdered his three daughters. In DeShaney, social workers in Wisconsin failed to protect a child from an abusive father whose beatings inflicted permanent brain damage. And in Warren, police in D.C. responded to a reported break-in at a home but failed to exert even minimal effort to investigate the circumstances, with the result that three women were kidnapped and subjected to 14 hours of sexual torture. The details of these cases are heartbreaking, and though we may wish otherwise, they reflect the current state of the law. Anyone filing a civil suit against the police in Uvalde is likely to find no more relief than did the plaintiffs in these cases.
But there is a higher standard that police officers should be expected to observe than the legal one. No matter what laws are passed in Uvalde’s aftermath, no matter which police policies are changed, no matter how great our professed commitment to preventing more school shootings may be, similar incidents will follow. And cops responding to the next one may find themselves in a situation similar to that faced by the ones in Uvalde. They may stand idly by and ponder what their legal obligations are, but in that moment they must realize their moral obligation is clear: They must act to the very limits of their abilities to protect innocent life. Anything less is a dereliction, whether the courts hold them to account or not.
Some have accused the police in Uvalde of being cowardly for waiting so long in the hallway while the gunman continued shooting in the classroom. I see it differently. According to this timeline, three Uvalde police officers entered the school at 11:35 a.m. in pursuit of the gunman but retreated when they were grazed by gunfire. A momentary retreat in these circumstances is forgivable, and these officers were not cowards. They were soon joined by four more officers, and still more within a few minutes. Neither were these officers cowards. They were, rather, lacking direction. In most police departments a chain of command is strictly observed, and though brave cops may rush to the scene of a crisis, they are worthless if they are not properly led. In my mind, this was the breakdown in Uvalde that day.
The timeline is not clear as to the moment Uvalde School District police chief Pete Arredondo assumed the role of incident commander, but it seems obvious he was not up to the task. Putting aside the fact that he was not properly equipped for the role, having no police radio with which to talk with responding officers, it appears he failed to accurately assess the tactical situation he faced.
The incident had not changed from an active shooter to a barricaded suspect, as Arredondo is reported to have believed. It remained an active shooter incident, albeit one in which the shooter was more sporadically active than he had been. With 19 officers in the hallway, and dozens more outside, Arredondo appears to have fallen into tactical tunnel vision, remaining focused on the classroom door while other avenues of entry could have and should have been considered. Surely there were sufficient personnel and resources available to find an alternate path into the classroom had there been an incident commander able and willing to give the necessary orders.
Yes, Arredondo was the chief of the school’s police department and as such was technically the highest ranking officer at the scene, but when rapid, tactical decisions are called for, the highest ranking officer may not be the most qualified to make them, and in most cases, he is guaranteed not to be. Such was the case in Uvalde.
In time since the shooting I have waited for Arredondo to explain the rationale for the decisions he made – or failed to make – in the assumption there must have been facts known to him but not yet publicly revealed. With each passing day it seems more likely that no such facts will be forthcoming.
Eighty agonizing minutes, during which God only knows how many of those precious children may have bled to death from wounds that would have been survivable with prompt medical attention. No, Arredondo will not be held civilly liable for his actions that day, but the court of public opinion operates on a moral standard, not a legal one. Its verdict will be harsh.