“The legal impact of emergency responder actions and decisions:
The need for a national immunity law”
Steven E. Standridge, PhD student
University of Colorado – Denver
(Graduate School of Public Affairs)
Mailing: 10579 Tiger Grotto
Littleton, CO. 80124
Word Count: 5,225
Increasingly, law enforcement, emergency medical and fire service agencies are being scrutinized as never before. The legal implications of such litigation as Sanders v. The Board of County Commissioners of the County of Jefferson, Colorado , Kershner v Burlington and the Cedar Fire lawsuits are clear. Decision-makers and the agency’s they represent are being held liable for their actions and decisions. This may necessitate a re-evaluation by national policy-makers to craft a more uniformed nationwide immunity law to help protect responders from the patch-work of state laws that currently exists. This is particularly relevant in an era of cross state, regional and federal mutual aid response where responders are exposed to uneven immunity laws that expose them to significant legal ramifications.
On April 20, 1999 Colorado residents were, as was much of the nation, horrified by the events that transpired late that spring morning. At approximately 11:20 a.m. Dylan Klebold and Eric Harris entered the Columbine High School parking lot armed with shotguns, a semi-automatic handgun, a carbine rifle and various home-made explosive devices intent on killing anyone in their sight. With their arsenal in hand the two preceded toward the school to carry out their carefully planned assault.1
As the two gunmen neared the school, they opened fire on students seated outside the west entrance of the cafeteria, killing two and injuring five. Then, after throwing an improvised explosive device (IED) onto the roof, they entered the school firing indiscriminately at fleeing students and teachers. Although a majority of the occupants were initially unaware of the attack, the gravity of the incident quickly became apparent and panic ensued.
The gunmen, undeterred, proceeded to the library, where they continued their rampage eventually killing another 10 students, one teacher and injuring 11 (Erickson, 2001). From the library they returned to the cafeteria, where they fired at one of the duffel bags containing the improvised explosive devices they had been pre-staged earlier that morning. The gunmen then left the cafeteria and entered the science wing of the school where they shot out the windows and tossed pipe bombs into the hallways. They subsequently returned to the library, where they fired out of the windows at paramedics who were attempting to rescue victims lying just outside the cafeteria. Police, in an effort to protect emergency medical services (EMS) personnel, returned fire to no avail. Although the final moments of the perpetrator’s lives are not entirely known, investigators conjectured that shortly after this exchange the two gunmen turned their weapons on themselves and committed suicide.
It was one of the most heinous school shootings in American history, which eventually left 13 dead and 24 seriously wounded (U.S. Fire Administration Major Incidents Investigation Team, 1999). Not only did the sheer brutality of the act stun the nation, the disjointed and confused actions of emergency responders raised the public’s doubts about their capabilities and preparedness. Nowhere were these criticisms more sharply directed than toward law enforcement (Harper, 2000).
Law Enforcement Response and the Sander’s Lawsuit
Shortly after the initial 911 call was received by the Jefferson County (Jeffco) dispatch center at 11:19 a.m. the first arriving law enforcement officer to the scene was Columbine community resource officer, Neil Gardner, who was also a Jeffco Sheriff's Deputy Officer. Immediately upon stepping out of his patrol car, Eric Harris fired 10 shots at Gardner who immediately returned fire but missed. Four more deputy officers arrived on scene shortly after the exchange who also fired at the gunman. They then used their patrol cars to form shields between the fleeing students and the gunmen. Harris, unaffected by the gun shots, re-entered the building to continue his killing spree. By 11:30 a.m. there were a total of six deputy officers on the scene who helped provide cover for paramedics who were hastily extracting students from the gunmen’s line of fire. As additional law enforcement officers arrived on scene, the perimeter was secured and senior officials established a command post (Unknown, n.d.).
Meanwhile, Jeffco’s Special Weapons Advanced Tactical (SWAT) team commander, Lieutenant Terry Manwaring, received the call while on patrol in the foothills approximately 13 miles from the scene. He immediately proceeded to the incident travelling at more than 100 mph and arrived at Columbine at 11:38 a.m. only to find a frenzied situation. As Manwaring was assembling a makeshift SWAT team, Denver SWAT arrived on scene with its six man team. The Denver team, led by Captain Vincent DiManna, quickly assembled and made their approach to the building using a Littleton Fire Department fire engine as cover. The team, moved cautiously but did not enter the school until 12:06 pm., forty-three minutes after the first officers had arrived on scene (Erickson, 2001).
Manwaring and his hastily assembled team, many of whom did not have the proper gear and were forced to share guns and vests, approached the building at roughly 11:51 a.m. guided by a crudely drawn map of the school provided by two fleeing students. As Manwaring's team made its way toward the school's east entrance it met up with DiManna’s team who had just extracted school staff members from inside the school. Manwaring split the consolidated team in two, sending six of his people toward the cafeteria while the other six provided cover, this despite the fact that there hadn't been any gunshots or explosions heard from inside the school for nearly an hour. The two teams did not, however, enter the building till just after 1:00 pm (Erickson, 2001).
Making an already tense situation worse was the school’s confusing layout, which was a labyrinth of hallways and classrooms. This sprawling maze rendered the SWAT team’s crudely drawn blueprint useless. The team eventually had to rely on radio instructions from supervisors located in the command post to find their way. Likewise, the commanders were dependant upon sketches of the school’s layout drawn on a white board by Columbine Principal Frank DeAngelis. Additionally, the fire alarms had activated as a result of the smoke and fumes emanating from the exploded IED’s. This made communications difficult and slowed the team’s progress. Further compounding the communication’s issues were the problems of inconsistent or simply inaccurate information being conveyed to the SWAT officers. For example, they were initially told that there as many as six gunmen inside and that the suspects might try to escape by blending in with fleeing students. Adding to this chaos, students and teachers trapped inside were using their personal cellular phones as well as school telephones and computers to send police messages on the whereabouts and description of the suspects – much of this information was erroneous.
Given the dire situation, Jeffco law enforcement officials finally decided to send in additional teams comprised of officers from neighboring jurisdictions. Ultimately, the unified command team was able to assemble more than 50 officers who would eventually make their way inside the building. The school was finally cleared and all the suspects reported dead at 4:45 p.m.
Unfortunately, the fact that Harris and Klebold had killed themselves a little more than an hour after the first call came into dispatch was not known to law enforcement personnel who continued to operate under the false assumption the shooters were still alive and determined to kill anyone in their path (Erickson, 2001). This delayed each SWAT team’s ability to quickly secure the building, attend to the dead and provide medical treatment to the wounded. As frustrating as the lack of information on the whereabouts and condition of the killers was for law enforcement personnel, other factors also hindered operations.
Factors Complicating Law Enforcement Response
As might be expected in an event of this magnitude, emergency response to the incident was substantial consisting of 17 fire apparatus, 50 rescues (ambulances), two Medivac helicopters, 172 emergency medical and fire rescue personnel and over 1,000 law enforcement officers (Unknown, 1999). Unfortunately, the incident was also hectic and fragmented (Unknown, 1999). After-action reports later indicated that a series of complicating factors, aside from the inaccurate on scene information, greatly inhibited the responder’s ability to coordinate and cohesively respond to the victims still inside the building. The following section will examine the three most noteworthy issues: communication’s inoperability, lack of immediate medical treatment and outmoded SWAT procedures and training.
Perhaps the most frustrating and debilitating problems law enforcement officials faced that day were the issues surrounding radio communications - specifically, and as noted earlier, several of the SWAT teams were comprised of officers from different agencies, whose radios were, in many cases, incompatible.
The eight tactical teams formed from five different agencies had mismatched radios, which precluded them from effectively communicating with one another or command personnel. The communication’s problems extended beyond the technological interoperability issues as the building itself hampered radio transmissions. Interior SWAT teams encountered numerous “dead zones,” which left officers unable to communicate with other teams, individual members or the command post. This meant that critical tactical information could not be relayed to the SWAT teams, which made coordinating their movements difficult.
The specific challenge that was created by Columbine related to the lack of integration of EMS response into law enforcement operations as a result of the perceived dangers that existed for EMS personnel operating inside the “hot zone.”2 This meant that no medical component was ever integrated into the operating procedures of pre-Columbine SWAT strategies. Moreover, since law enforcement and EMS personnel typically did little training together prior to Columbine these two entities had little understanding of their counterpart’s respective operations. Prior to Columbine, it was widely believed in police circles that EMS personnel, unfamiliar with police tactics, were not suitably trained and inadequately equipped for insertion into complex SWAT operations. In the case of Columbine, this meant that EMS personnel had to wait until the police secured the entire building before they could adequately access and treat victims. In fact, many medical crews waited in the staging area for several hours (in some cases well after 4:00 p.m.) before they were utilized.
Movement through the school was excruciatingly slow as officers had to “clear” each room as dictated by standard operating procedures (SOP’s) and prior training. As teams advanced through the building they were forced to search and escort large number of students and teachers still located inside the school to the outside.
One of the most contentious issues that surfaced in the after-action reports was the SWAT officer’s use of seemingly outdated tactics, which required them to methodically move through the school. The answers were contained in the traditional training approaches and SOP’s used by many of the nation’s police departments.
Prior to Columbine, standard SWAT practices emphasized team safety and teams were trained to view all persons encountered in the “hot zone” as suspects. This necessitated that each person the SWAT team encountered be treated as a potential “suspect.” This required searches and armed escorts from the area with hands in plain sight. The tactic invariably slowed a team’s progression through a building, which, in the case of the Columbine incident, made finding the shooters and securing the building a frustratingly slow process. Additionally, “regular” patrol officers were also trained to secure the area but not seek out a perpetrator as that operation was left to the better trained and equipped SWAT officers. The impact of this procedure and training was significant as early arriving officers to Columbine reflexively reverted to their standard operating procedures - securing the area. These, among the others issues outlined previously, led David Saunders’ family to believe the Jeffco official’s decisions and actions contributed to his death (Grenier, 2004).
The Sander’s Lawsuit
In the aftermath of the Columbine massacre a flurry of activities ensued, which were all designed to ascertain how the event occurred, why it had gone so horribly wrong and who was responsible for the outcome. The most significant of these activities included a Jeffco Sheriff's Office report;a Governor’s independent inquiry; a grand jury investigation; and, not surprisingly, a myriad of civil lawsuits against the killers' parents, the school district, health care providers, as well as pill, gun and video game manufacturers. One lawsuit, however, has had an important impact on law enforcement agencies nationwide: Sanders v. The Board of County Commissioners of the County of Jefferson, Colorado, et al (Harper, 2000).
At approximately 11:35 a.m., Columbine teacher Dave Sanders had been standing outside of the cafeteria when he saw the gunmen approaching. Immediately, he ran into the cafeteria and began ordering students to immediately evacuate ignoring his own safety. He remained in the cafeteria until the last student had fled before Sander’s himself left. As he helped guide the last student up the stairs Sanders was shot twice in the back by Klebold. The bullet partially tore through his left carotid artery and his right sub-clavian vein. Miraculously, he was still able to escape up to the second floor and into Science Room 3. Upon his arrival, teachers and students who had been hiding in the room began using improvised tourniquets and bandages to help slow Sanders’ bleeding. They then called 911 indicating their location, Sanders' condition and stressed the urgent need for rescue and immediate medical treatment. They remained in contact with police dispatchers for the next several hours keeping them apprised of Sanders' condition. Dispatchers assured the callers that help was "on the way" and would arrive "in about ten minutes" (Grenier, 2004). Over the course of several hours, however, the assurances never materialized.
Realizing the urgent need to get Sanders medical treatment, Doug Johnson, a teacher barricaded in the room, hastily wrote out in large letters "1 BLEEDING TO DEATH" on a portable white dry-erase board and placed it out of the window for law enforcement to see. Not only was the sign visible to nearby police, but local news helicopters captured the image on their remote feeds thereby providing real time feeds pinpointing Sanders’ precise location.
Sanders' condition continued to worsen. His attendees, acutely aware of his deteriorating situation and concerned that help was not on its way as promised, informed the dispatcher at roughly 2:00 pm they were going to break out the windows to obtain aid. They were forcefully instructed not to do so and it was not until nearly 4:00 p.m. that a SWAT team reached their location. To their dismay officers indicated they were only there to remove the "living and the walking" and demanded that everyone but Sanders exit the building. He died shortly before 4:00 p.m. roughly four and a half hours after first being shot (Grenier, 2004).
On April 19, 2000, a 42 page complaint was filed by Angela Sanders on behalf of David Sanders (Sanders v. The Board of County Commissioners of the County of Jefferson, Colorado, et al., 2000) asserting the plaintiff’s civil rights had been violated. The lawsuit was the last surviving legal claim against the Jefferson County and its agents for their failed response to the worst school shooting in U.S. history (Abbott & Able, 2002).
Issues of Law
The questions of law centered on four core issues: the Sheriff’s Department had created a danger, thus depriving David Sanders of his right to life, liberty and personal security; the Command Staff had a duty to act as a result of their “special relationship” with the plaintiff; law enforcement officers failure to quickly act deprived the Sanders of his constitutional rights; and, finally, the county was deemed negligent due to the actions of its designated policymaker – Sheriff Stone (Grenier, 2004).
State-Created Danger. The first count of the plaintiff’s complaint, entitled "Deprivation of Right to Life, Liberty, and Personal Security,” was asserted against the Command Defendants.3The defendants, under the State Created Danger doctrine, asserted that state actors may be held liable for an individual’s safety if they created the danger of the harm at issue, or enhanced the plaintiff’s vulnerability to that harm.4 To determine whether the doctrine applies, the Tenth Circuit used a five-part test requiring that:
“[plaintiff] was member of a limited and specifically definable group;”
“Defendants’ conduct put [plaintiff] and other members of that group at substantial risk of serious, immediate, and proximate harm;”
“the risk was obvious or known;”
”Defendants acted recklessly in conscious disregard of that risk; and (5) such conduct, when viewed in total, is conscience shocking” (Grenier, 2004, p. 8).
This, according to the plaintiff’s attorney, was evidenced by the fact that the Command Defendants had “affirmatively created or enhanced the serious risk of death to Dave Sanders, which was obvious and known, given the big white sign ‘1 BLEEDING TO DEATH’ being broadcast on televisions all over the United States, as well as the continuous telephonic communications”(Grenier, 2004, p. 9).
Special Relationship. The second count of the complaint alleged that the Command Defendants had a “special relationship” with the plaintiff. They cited the Tenth Circuit ruling in the Armijo case, “if the state restrains an individual’s freedom to act to protect himself or herself through a restraint on that person’s liberty, the state may thereby enter into a ‘special relationship’ during such restraint to protect that individual from violent acts inflicted by others” (Grenier, 2004).5
Accordingly, count two of their complaint alleged that the Command Defendants had a duty to provide care and protect the plaintiff. By not allowing Sanders and his caretakers to leave the building to receive medical assistance, long after the shooters had died, the Command Defendants had denied Sanders his constitutional rights (Grenier, 2004).6 The plaintiff’s lead attorney relied upon the Eighth Amendment’s “deliberate indifference” standard, which it establishes, though case law, that law enforcement can not “act with deliberate indifference to known, serious medical needs of those in their custody and care who, due to the restraint on their liberty, cannot provide for themselves.”
Moreover, the Command Defendants’ refusal to allow Sanders to leave the building amounted to an implicit covenant that gave rise to a higher level of responsibility and obligation for his well-being. Therefore, when, over the course of several hours, they continued to confine him to the room, effectively denying him the necessary treatment for his wounds, they violated his constitutional rights.
Failure to Remedy Subordinates'/Colleagues' Deprivations. The third count asserted that the Command Defendants failed to “remedy Subordinates'/ Colleagues' Deprivations of Constitutional Rights" (Grenier, 2004, p. 10). This assertion was premised on a previously recognized principle that established that a police officer is not immune from liability for failing to act, if “that inaction permits a fellow officer’s deprivation of a citizen’s constitutional rights to proceed” (Grenier, 2004).7 Essentially, the plaintiffs alleged that the defendants in their capacity as incident commanders prevented subordinates from carrying out their mandated duties, which led to a deprivation of Dave Sanders’ constitutional rights. The attorneys were not alleging that the officer’s themselves were liable, rather as subordinates who, subject to their “conditions of employment,” were constrained by their superiors from carrying out their constitutional duties. In other words, the Command Defendants prevented their subordinates from taking actions that would have saved Sanders’ life and questioning those orders would have subjected them to disciplinary action.
Municipal Liability Arising From Acts of Policymaker.Counts four and five of the suit contended that the decisions and actions taken by Jeffco Sheriff John Stone, acting for the County in his official capacity, exposed the agency to liability (Grenier, 2004).8
Late in spring of 2002, the plaintiff’s attorney began settlement discussions with defense counsel, which eventually ended up in mediation. By August 2002, the two sides had reached a settlement totaling $1.5 million. It was later reported that one of the factors that influenced the plaintiff’s decision to settle was an earlier 2002 appellate court verdict that held law enforcement officials are accountable for failing to act (Abbott & Able, 2002). The court ruled that the duty to act has to be “known and of such quality that the public officer's duty to act becomes absolute, certain, and imperative,' a danger that was `compelling and known to the officer and is of such force that the public officer has no discretion not to act'"(Hoskins v. Dodge County, 2002). Many criticized the plaintiffs for settling, asserting that the truth behind the actions of the Jeffco Sheriff’s office would never be discovered (Abbott & Able, 2002). In fact, Jeffco officials admitted no liability in the settlement, thus officials were never legally held responsible for their actions.9 The emergency response community should not be assuaged by this outcome. In fact, Columbine should serve as a wake up call for the emergency response community.
Although the Sanders case was never adjudicated, therefore no legal precedent was ever established, the underpinnings of the plaintiff’s claims have, nonetheless, congruence with other recent cases that have also challenged emergency response immunity laws. These cases underscore a disturbing trend where first responder actions and decisions are being assailed from different vantage points. This suggests that a more robust and uniformed immunity shield may be needed if emergency workers are to be adequately protected from litigation resulting from decisions and actions made in good faith while carrying out their duties irrespective of the state in which they operate.
Recent Emergency Management Litigation
Two recent cases illustrate just how precarious emergency response immunity laws are and how they are being challenged on evolving grounds: Kershner v Burlington and the Cedar Fire lawsuit.
Kershner v Burlington
The Kershner v City of Burlington lawsuit centered on violating an agency’s operating procedures, which resulted from responding to a clothes dryer fire on January 25, 1996 (2000). The sequence of fateful events leading up to the lawsuit started when the on-duty battalion chief, upon hearing the call being dispatched, elected to reduce the normal response from two fire engines with six total firefighters down to one with only three firefighters. When the officer and his crew arrived on scene they determined that the fire had extended into the porch wall where the dryer had been located. Protocol, however, dictated that entry into a structure with active fire inside was not permitted until a full back-up team was on scene. Accordingly, the officer called for assistance and waited. In the several minutes it took for the engine to arrive the fire spread into the house eventually consuming the entire structure (Kershner v City of Burlington, 2000).
Standard departmental procedures required the first response to include at least one additional fire engine as well as the battalion chief. As a result of the decision made by the battalion chief , the plaintiff’s filed suit asserting that “the immunity provisions of chapter 670 (Iowa State Code) [did] not apply when a governmental subdivision fails to follow written policies governing the conduct and actions of its officers and employees in carrying out their official duties” (Kershner v City of Burlington, 2000). The courts ultimately granted summary judgment stating “Iowa Code section 670.4 (11) plainly states that the only relevant inquiry in determining whether the city has immunity under the emergency-response provision is whether plaintiff’s claim is ‘based upon or arising out of an act or omission in connection with an emergency response’ by officers or employees carrying out their official duties. Because the undisputed facts in the record show that plaintiff’s claim is based on conduct of the defendant in connection with an emergency response, the immunity provision of section 670.4(11) applies and plaintiff’s claim cannot go forward” (Kershner v City of Burlington, 2000). Clearly, the court was reaffirming long standing immunity laws. It is significant to note, however, that the plaintiff’s legal council believed the battalion chief’s contravention of written policies was the cause of the plaintiff’s damages and that the city should have been held accountable for his actions. This followed a similar line of reasoning as that used in the Sander’s lawsuit whereby the plaintiff asserted Jefferson County officials were responsible for the sheriff’s decisions. The Cedar Fire lawsuit, by contrast, attacked California’s immunity law on the grounds that the incident commander’s decisions were not made quickly enough.
The Cedar Fire Lawsuit
The Cedar Fire was the largest wildland-urban interface fire in California history. It began Oct. 25, 2003, in an area known as Kessler Flats located in San Diego County, an area owned by the Federal government. The fire, which was fueled by dry vegetation and hot Santa Ana winds, eventually killed 15 people, destroyed more than 2,400 homes and burned approximately 280,000 acres (San Diego Fire-Rescue Department, n.d.). Fifteen people sued the county and the state, and asked the court to certify the case as a class-action lawsuit on behalf of all Cedar fire victims. They charged, amongst other things, that “firefighters should have doused the flames more quickly” and that 911 operators gave false assurances that help was on the way (San Diego News Services, 2005). The plaintiffs argued that the county and state’s mismanagement of mitigation and firefighting actions amounted to an illegal “taking” of the homeowners' property (Soto, 2005).
The case was eventually dismissed by a state Superior Court judge who ruled that California state law does not permit a public agency or its employees to be held liable for injuries caused by "a natural condition of any unimproved public property" (San Diego News Services, 2005).
These cases illustrate deep legal implications for policy-makers and responders: their actions and decisions are subject to increasing legal scrutiny. The courts, to this point, have been reluctant to incriminate emergency response personnel in decisions made in “the heat of the moment.” This is a practical recognition that actions taken during a crisis are often influenced by the stressful and chaotic nature of emergencies, which unavoidably leads to imprecise and fragmented decisions. The courts have similarly granted wide latitude when assessing the fault of emergency responder decisions and the impact they have on plaintiffs. However, emergency response policy-makers should not be lulled into a false sense of security. In fact, as plaintiffs’ attorneys continue to look for ways to use legal mechanisms such as 42 USC 1983 or a failure to adhere to standard operating procedures as means to hold incident commanders, responders and agencies accountable for their decisions a national framework for statutory immunity must be developed and passed into law to help protect responders.
A National Immunity Law
The goal of a nationwide immunity law would be to eliminate the 50 or so existing legal standards, which cause responders to fear if they’ll be held liable for their decisions. This is particularly relevant as the federal government pushes for greater inter-reliance between states for disaster response through the National Response Framework.10 There are three primary mechanisms by which a national immunity law can be enacted: through the National Conference of Commissioners on Uniform State Laws (NCCUSL), the Emergency Management Assistance Compact (EMAC) or the U.S. Congress.
The NCCUSL is a group of state appointed attorneys whose mission it is to “collaboratively research, draft and promote the enactment of uniform state laws in areas where standardization is desirable and practical” (National Conference of Commissioners on Uniform State Laws [NCCUSL], n.d.). With respect to immunity laws, NCCUSL has had marginal success passing such legislation at the national level. The organization’s most successful foray into this legal genre began in 2007 with the drafting of the Uniform Emergency Volunteer Health Practitioners Act. This draft legislation was created to allow “state governments during a declared emergency to give reciprocity to other states’ licensees on emergency services providers so that covered individuals may provide services without meeting the requesting state’s licensing requirements” (NCCUSL, 2007). Unfortunately, this legislation only tacitly addresses immunity laws. Moreover, only seven states have enacted the law while another seven have introduced it into the legislative process (NCCUSL, 2007). According to Eric Fish, Legislative Council for NCCUSL, trial lawyer groups have strongly opposed the legislation, and he expressed concern that it may not get ratified in all 50 states.11 By contrast, the second vehicle, the Emergency Management Assistance Compact (EMAC), does address the national immunity issue albeit in a superficial and inadequate manner.
Emergency Management Assistance Compact
The EMAC is a federally sanctioned mutual aid agreement between states. The compact is administered by the National Emergency Management Association (NEMA)12 and exists to help states better manage their response and recovery capabilities as a result of a large-scale emergency or disaster. Unlike the Uniform Emergency Volunteer Health Practitioners Act, 50 states as well as the District of Columbia, Puerto Rico, Guam, and the US Virgin Islands have all ratified concurrent legislation to become EMAC members. In order to join the compact each participating member was required to sign into law the EMAC’s Articles of Agreement. Article VI of the agreement addresses the issue of responder liability:
“those rendering aid and assistance under the compact are considered agents of the Requesting State for tort liability and immunity purposes. No Assisting State or its officers or employees rendering aid are liable on account of any act or omission in good faith (Good faith does not include willful misconduct, gross negligence, or recklessness.)” (EMAC. 2007).
The disconcerting aspect of this provision is the first sentence stipulating that a responder is still subject to the requesting state’s tort laws. This condition does not adequately mute the impact of the collage of individual state laws, which has the potential to adversely impact responders. Therefore, responders who deploy nationally are still subject to a frustrating array of immunity laws and standards. It is for reason that the Congress provides the most reliable route for enactment of a national immunity law.
Of the three potential legislative paths, the incoming Congress represents perhaps the most viable means of passing a national immunity law. The primary reason for this supposition is rooted in the future political composition of Congress and the Presidency.
In 2009, both houses of Congress, as well as the Executive Branch, will unambiguously be controlled by the Democrats for the first time since 1994, which presents a window of opportunity for passage of the unifying legislation. Likewise, passing it will not be devoid of opposition.
As the trial lawyer groups have demonstrated with individual state initiatives, they will most likely resist this legislation at the national level as well. Moreover, since this group represents one of the party’s largest and most influential constituents Democrats will undoubtedly face intense pressure to block its passage (Wayne, L. 2000). Congressional members and the president, however, may find it easier to placate that group than to dismiss the collective concerns of Federal Emergency Management Agency (FEMA) and NEMA representatives as well as state governors and other emergency management groups that have a vested interest in seeing uniformed liability laws enacted. Finally, Democrats have traditionally been more accepting of an expanded Federal role in governance than their Republican counterparts (Gerring, 1998). Given this environment, the prospect for enacting this legislation is much higher than the other routes discussed previously, but it will require a well articulated legal framework and a highly coordinated effort in order to withstand one of Washington D.C.’s most influential special interest groups.
The events of April 20, 1999 have left an indelible mark on the emergency response community. The Columbine Massacre, as it has become known, illustrates just how challenging it is to coordinate emergency response efforts during multifaceted incidents. Yet, Columbine should also serve as a warning for all agencies - not just law enforcement.
As emergency response organizations are increasingly evaluated for their actions first responders must understand the legal implications of their decisions. And, as Kershner v Burlington and the Cedar Fire lawsuits demonstrate even fire service entities, which have historically been immune from such inquiry, are now being scrutinized as never before. The implications are clear. In the not too distant future, the fates of decision-makers may not end as favorably as those implicated in the Sanders’ case as they will be held liable for their decisions. Let us hope that before that day comes, those in the emergency services industry heed the many lessons learned from events like Columbine so as to avoid the devastating legal consequences.
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http://query.nytimes.com/gst/fullpage.html?res=9C0CE0D7173DF930A15750C0A9669C8B63 (accessed 2008, November 15)
1 The details of the incident were extracted from four secondary sources:
Erickson, W.H. . 2001, May. The Report of Governor Owens: Columbine Review Commission available from http://www.state.co.us/columbine/Columbine_20Report_WEB.pdf (accessed October 15, 2008).
Unknown. 1999.Official Columbine shooting report . CNN. available from http://www.cnn.com/SPECIALS/2000/columbine.cd/Pages/TOC.htm (accessed October 15, 2008)
Unknown. Columbine High School Incident. Dispatch Monthly Magazine. n.d. available from
http://www.911dispatch.com/info/columbine/ index.html (accessed October 15, 2008)
U.S. Fire Administration Major Incidents Investigation Team. . April 20, 1999. Special Report: Wanton Violence at Columbine High School. U.S. Fire Administration and The Federal Emergency Management Agency: Emmitsburg, MD. available from http://www.usfa.dhs.gov/downloads/pdf/publications/tr-128.pdf (accessed October 15, 2008)
2 A “hot zone” is an emergency response term, which denotes a physical area that is too hazardous to enter unless personnel are properly trained and equipped.
3 The defense collectively defined the “Command Defendants” as including the Jefferson County’s Sheriff (Stone), the Undersheriff, one staff lieutenant and two SWAT officers. (Ibid, p. 3).
4 Grenier (2004) citing Uhlrig v. Harder, 64 F.3d 567, 572 (10thCir. 1995), p. 8.
5 Citing Armijo v. Wagon Mount Public Schools, 159 F.3d 1253, 1263 (10th Cir. 1998), p. 9.
6 Citing DeShaney v. Winnebago County Social Services Dept., 489 U.S. 189 (1989). p. 9.
7 Ibid, citing Renalde v. City and County of Denver, 807 F. Supp. 668, 673-74 (D. Colo. 1992) and Woodward v. City of Worland, 977 F.2d 1392 (10thCir. 1992), p. 10.
8 Citing Lopez v. LeMaster, 172 F.3d 756, 763 (10th Cir. 1999) and Myers v. Oklahoma Co. Board Of County Commissioners, 151 F.3d 1313, 1319 (10th Cir. 1998), p. 11.
9 As recently as August 2004, a Colorado Grand Jury found that there was not enough evidence to prosecute any Jeffco officials relating to destruction of Columbine related documents. The Grand Jury, though, was “troubled” by unusual actions taken by some Jeffco officials, but no wrong doing could be found. It is not yet clear whether those documents would have provided the answers the victim’s families lingering questions. (A.P. 2004, September 17. Grand Jury Knocks Columbine Probe. Associated Press. Available from http://www.cbsnews.com/stories/2002/10/05/national/main524471.shtml [accessed October 9, 2008]).
10 The National Response Framework was developed by the Department of Homeland Security (DHS) and is designed to provide guidance for federal, state and local responses to disasters and emergencies of “national significance.” DHS. 2008, January. National Response Framework. Available from http://www.fema.gov/pdf/emergency/nrf/nrf-core.pdf (accessed June 3, 2008)
11 Phone conversation and subsequent e-mail correspondence made on December 3, 2008.
12 NEMA is professional association comprised of emergency managers from throughout the US, the District of Columbia and its territories. NEMA primary responsibility is to be a conduit of information, support and expertise for emergency managers. The association accomplishes its goals primarily by working with Congress, federal agencies and through strategic partnerships with organizations that impact emergency management. As such, the group has no direct legislative or regulatory authority, thus its influence on emergency management issues is limited. (NEMA. N.d. About Us. Available from http://www.nemaweb.org/?2114. [accessed 2008, November 1] )