A New Jersey public school district has been found not liable for the fatal shooting of a 10-year old boy at a high school football game where security did not include metal detectors to screen attendees.
The boy’s mother and estate sought to invoke the “state-created danger” theory to hold the Pleasantville Board of Education (PBOE) civilly liable for violating the boy’s rights under the New Jersey Civil Rights Act and Constitution by not protecting him. They alleged that the PBOE and school officials were negligent in their security in what was acknowledged to be a high crime area.
New Jersey Superior Court, Appellate Division, ruled this week that the school board could not be held liable because it could not have foreseen the shooting and had not done anything to create the danger but had in fact taken steps to increase security.
The appeals court held that PBOE was entitled to summary judgment, reversing a lower court’s denial of summary judgment.
While he was attending the Pleasantville High game against Camden High with his mother and sister, Micah Tennant-Dunmore was killed by a stray bullet that was intended for another person. The shooter was seeking revenge for a shooting that took place 18 days earlier about seven miles away in Atlantic City.
PBOE officials argued in their defense that this was a random shooting and they could not have been aware of the likelihood that the shooter would enter the football field to exact vengeance regarding a completely unrelated shooting almost three weeks earlier in another city.
While PBOE did not have metal detectors, it did have a security plan for the football game. The plan increased the normal assignment of three armed police officers to 10, positioned around the perimeter of the football field. They were assisted by a K-9 unit. Additionally, seven event staff were positioned in the parking lot, entrance, end zone and concession stand. Attendees were only permitted to bring in a bag no larger than the size of a small purse.
The “state-created danger” theory under which Micah’s mother and estate asserted a direct entity claim against PBOE presents a high bar for plaintiffs, one the New Jersey Supreme Court has addressed only once. In a 2014 case (Gormley v. Wood-El), the state’s high court relied on a 2006 Third Circuit case (Bright v. Westmoreland County), which set forth four factors necessary to establish state-created danger. These are that the harm caused was foreseeable and fairly direct; a state actor acted with a degree of culpability that “shocks the conscience”; the plaintiff was a foreseeable victim of the defendant’s acts; and a state actor affirmatively used his or her authority in a way that created a danger.
The 2014 Gormley case involved a public defender who was brutally attacked while visiting an involuntarily committed client in a state-managed facility. The state’s high court concluded that the state had acted with deliberate disregard for the attorney’s safety, given the number of assaults that had occurred in the unsupervised room where attorneys and psychiatrists were frequently violently attacked by mentally ill patients.
Micha’s trial court found there was sufficient evidence for a jury to find that the defendants foresaw that some kind of violence or injury could occur at the football game. The lower court maintained that the fact that PBOE had some security measures in place, including police officers, was an acknowledgement that “violence was possible.” In addition, the trial court stated that the defendants had knowledge of criminal and violent incidents at the school, that the city was in a high-crime area, and that there was a prior shooting at a nearby field four years ago. The court also noted that metal detectors were used at the school entrance. The court stated, “the current reality is that there’s a not less than zero chance that at some point someone’s going to be the victim of gun violence at a school.”
The trial court determined the shooting was sufficiently foreseeable to support a claim of state-created danger. The lower court also found that there was sufficient evidence for a reasonable jury to conclude that PBOE created a dangerous situation by failing to screen attendees for weapons. The court denied summary judgment upon further deciding it was best left to a jury to determine whether PBOE’s actions “shocked the conscience” in a way that met the standards of the state-created danger theory.
The appellate court this week reversed that denial of summary judgment, finding that the plaintiffs did not satisfy the strict requirements of the state-created danger theory.
The appellate division found that the plaintiffs did not show that the harm caused to Micah was foreseeable and fairly direct; or that Micah was a foreseeable victim or part of a discrete class of foreseeable victims, as opposed to an undifferentiated member of the general public.
The appeals court also disagreed with the trial court’s determination that the failure to install metal detectors was “deliberate indifference” that shocked the conscience; and that the defendants affirmatively used their authority in a way that created a danger to Micah. In Gormley, the state’s high court had warned that “shocking the conscience is not an act of negligence or even gross negligence.” To satisfy the standard, a plaintiff must show the state acted with “deliberate indifference.”
The appellate court found that the plaintiffs had not presented the “egregious totality of circumstances to meet the Bright conscience-shocking factor.” The evidence that the city was generally considered a high crime area and there had been acts of violence at the high school could “unfortunately describe and pertain to an infinite number of situations in this or any state,” the appeals court wrote in concluding that the plaintiffs had not shown that the defendants acted with deliberate indifference to any foreseeable danger threatening Micah’s safety.
The appeals court further noted that there was no evidence of specific incidents of violence at this football field nor at any prior football game. Furthermore, PBOE implemented a safety plan, took precautions and attempted to ensure the safety of the attendees. “This action precludes any finding of deliberate indifference and disregard for constitutional rights,” the court said.
Furthermore, not installing a metal detector does not qualify as an affirmative action taken by PBOE that increased the risk to Micah, according to the opinion.
“The totality of the circumstances presented here does not rise to a substantive due process violation,” the appeals court concluded. “Plaintiffs have not satisfied the Bright standard to establish a state-created danger theory of liability to hold PBOE responsible for a private actor’s criminal misconduct and plaintiffs’ resulting damages.”
Topics K-12 New Jersey
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