Arming Florida school staff could expose them to suits: experts

[March 09, 2018]  By Tina Bellon

(Reuters) - A bill passed by Florida lawmakers empowering some personnel in public schools to carry firearms to guard against attacks like last month's massacre near Miami could expose these employees to potentially costly civil lawsuits, legal experts said.

Public employees are generally immune to civil suits, but those authorized to carry a concealed weapon under the Florida measure potentially could be held liable in circumstances such as an accidental shooting or if a gun is lost or stolen and later used in a crime, the experts said.

The measure was passed by Florida's Republican-controlled legislature on Wednesday and will become law in two weeks unless Republican Governor Rick Scott vetoes it. It was approved in the aftermath of the Feb. 14 mass shooting at Marjory Stoneman Douglas High School in Parkland in which 17 students and staff were killed.

The legislation would create a program that would allow librarians, coaches and some other school staff to carry a concealed weapon and act as "deputy sheriffs" in the event of an active shooting incident. It would exclude classroom teachers from carrying guns to work unless they are part of the Junior Reserve Officers' Training Corps, U.S. military service members or former police officers.

While public employees in general are immune from civil suits, they can be held liable under Florida law if they act with "wanton and willful disregard of human rights, safety or property."

"The Florida test does set the bar very high, but it is not an airtight protection," said University of Virginia law professor Kenneth Abraham, who specializes in legal risk and insurance.

Under the measure, program participants must undergo mental health and drug screenings and complete a 132-hour training before being authorized as deputy sheriffs. They can act only "to prevent and abate" an active shooter on a school campus.

The Florida Education Association, the union representing teachers and other school staff in the state, generally opposes the legislation. Union spokeswoman Sharon Nesvig criticized lawmakers for failing to provide guidance on liability issues.

Insurance policies carried by the union and the Florida Department of Education do not cover incidents involving firearms, added Ronald Meyer, a lawyer for the union.

'NOT DOING SOMETHING'

New York University law professor Mark Geistfeld said Florida's protections against lawsuits for state employees are strong and educators likely could be held liable in a civil case only if they acted criminally.

"Worries about liability exposure are often invoked as a reason for not doing something that one would like to avoid for other reasons," Geistfeld said.

Legal experts said they did not know of a case in which a school employee had been sued for injuring a student with a gun. But several scenarios could give rise to lawsuits, they said.

Well-wishers place mementos the day students and parents arrive for voluntary campus orientation at the Marjory Stoneman Douglas High School, for the coming Wednesday's reopening, following last week's mass shooting in Parkland, Florida,February 25, 2018. REUTERS/Angel Valentin

The biggest liability risk would be if a gun were stolen or lost and then later used in a shooting, said Stanford Law School professor John Donohue, an expert on gun ownership legal issues.

School employees would likely not face liability if the gun were adequately locked away and a student broke in and took it, experts said.

Law professor Ken Simons of the University of California, Irvine said school staff could be sued for their actions defending against a shooter if poor aim or a ricochet accidentally wounds or kills an innocent student.

Such suits sometimes are brought when police officers injure bystanders. When police fired more than 100 bullets in 2011 to stop a potential attacker in Miami Beach, several bystanders were severely wounded. Civil litigation against officers and the police department dragged on for nearly two years before settling.

Robert Switkes, a Florida attorney who represented some of the officers in that litigation, said the Miami Beach bystanders had a strong case.

"Unless you give librarians the same training as police officers, you're subjecting them to immense liability," Switkes said.

John Berry, a lawyer who defends police officers, said if a school employee shot a student carrying a toy gun, mistaking it for a real weapon, a plaintiff might have a strong case.

Even if an educator were sued, experts said the case could ultimately be dismissed by a judge or a jury given the difficulty of proving someone acted with "wanton disregard." But the mere prospect of defending against a lawsuit could be daunting.

"Even if you win at the end, this is not something you'd want to go through as an educator," the University of Virginia's Abraham said.

(Reporting by Tina Bellon; Editing by Noeleen Walder and Will Dunham)

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