Schnurr v. Board of County Com'Rs of Jefferson
| Decision Date | 27 November 2001 |
| Docket Number | No. CIV.00-B-790.,CIV.00-B-790. |
| Parties | Mark A. SCHNURR and Sharilyn K. Schnurr, individually and as parents of Valeen M. Schnurr, Ashley L. Schnurr and Samantha G. Schnurr, and Valeen M. Schnurr, Ashley L. Schnurr and Samantha G. Schnurr, individually, Dale C. Todd and Jana M. Todd, individually and on behalf of Evan M. Todd, Brian W. Todd, Adam C. Todd, and Carl J. Todd, and Evan M. Todd, Brian W. Todd, Adam C. Todd, and Carl J. Todd, individually, Andrew M. Park and Michelle H. Park, individually and as parents of Jeanna A. Park and Kathy H. Park, and Jeanna A. Park and Kathy H. Park, individually, Plaintiffs, v. The BOARD OF COUNTY COMMISSIONERS OF JEFFERSON COUNTY, the Sheriff's Department of Jefferson County, Sheriff John Stone, Deputy Sheriff Neil Gardner, Deputy Sheriff Paul Magor, Deputy Sheriff Paul Smoker, Deputy Sheriff Scott Taborsky, Deputy Sheriff Rick Searle, Deputy Sheriff Kevin Walker, Undersheriffs, Deputy Sheriffs, Other Employees of the Sheriff's Department of Jefferson County John Does 1 Through 30, Defendants. |
| Court | U.S. District Court — District of Colorado |
Daniel E. Evans, Godin & Baity, LLC, Kim Eves Ikeler, Jay S. Horowitz, Philip Lance Gordon, Horowitz & Wake, Denver, CO, for Plaintiffs.
J. Andrew Nathan, Andrew J. Fisher, Bernard Roland Woessner, Nathan, Bremer, Dumm & Myers, PC, Denver, CO, William A. Tuthill, III, Lily Wallman Oeffler, County Attorney's Office, Golden, CO, Alan Kaminsky, Wilson, Elser, Moskowitz, Edelman & Dicker, New York City, for Defendants.
Defendants The Board of County Commissioners of Jefferson County (the Board), The Sheriff's Department of Jefferson County (Sheriff's Department), Sheriff John Stone, Deputy Sheriff Neil Gardner, Deputy Sheriff Paul Magor, Deputy Sheriff Paul Smoker, Deputy Sheriff Scott Taborsky, Deputy Sheriff Rick Searle, and Deputy Sheriff Kevin Walker (collectively, Deputy Sheriff Defendants) move, pursuant to Fed.R.Civ.P. 12(b)(6), to dismiss all claims brought by Plaintiffs Mark A. Schnurr, Sharilyn K. Schnurr, Valeen M. Schnurr, Ashley L. Schnurr, Samantha G. Schnurr, Dale C. Todd, Jana M. Todd, Evan M. Todd, Brian W. Todd, Adam C. Todd, Carl J. Todd, Andrew M Park, Michelle H. Park, Jeanna A. Park, and Kathy H. Park. After consideration of the motion, briefs, arguments of counsel, and for the following reasons, I grant the motion.
The following facts are alleged in Plaintiffs' Second Amended Complaint. (Complaint). On April 20, 1999, Plaintiffs Valeen M. Schnurr, Evan M. Todd, and Jeanna Park were shot and seriously wounded in Columbine High School's library (Library) by fellow students Eric Harris and Dylan Klebold. See C/O ¶¶ 56, 57. Kathy Park, Jeanna Park's sister, was also in the Library and witnessed her sister being shot and wounded and other students being wounded and killed. Id. at ¶ 57. The wounded Plaintiffs and Kathy Parks will be referred to, collectively, as the Library Plaintiffs. The following events led up to these shootings.
On the morning of April 20, 1999, Columbine High School Dean Peter Horvath called School Resource Officer Defendant Deputy Sheriff Gardner for his assistance, informing him that there had been a shooting. C/O ¶ 16. Deputy Gardner responded by driving his patrol car to the "senior parking lot," located just south and west of the Library, and parked. Id. at ¶¶ 17, 21. The Library is located on the upper level, directly above the school cafeteria. Id. Because the school is located on sloping terrain, the Library's exterior entrance is at ground level even though the Library itself is on the upper level. Id.
Upon his arrival, Deputy Gardner saw several wounded students lying on the ground outside the school. Plaintiffs allege that based on his experience as the School Resource Officer, Deputy Gardner was aware that the Library would be filled with students at that time, approximately 11:18 a.m., which corresponded with one of the school's lunch periods. Id. at ¶ 23. From his vantage point, Deputy Gardner observed that the Library's exterior entrance door was open. Id.
Almost immediately, Deputy Gardner saw either Harris or Klebold, likely Klebold, near the school's west entrance, approximately thirty (30) feet east of the Library's exterior entrance door. Id. at ¶¶ 24, 20. Deputy Gardner saw that Klebold was holding a dark-colored long rifle. Id. at ¶ 24. Klebold fired several shots at Deputy Gardner who then took cover behind his patrol car. When the deputy looked again, Klebold had entered the school. Id.
Shortly after Deputy Gardner's arrival at Columbine, Deputy Smoker and Deputy Taborsky arrived and parked their patrol car in the vicinity of Deputy Gardner's car. C/O ¶ 26. Upon their arrival, Deputy Smoker and Deputy Taborsky saw wounded students on the grass and on the sidewalk leading towards Columbine's west entrance. Id. These deputies also noticed that the exterior entrance to the Library was open. Id.
Deputies Gardner, Smoker, and Taborsky heard gunshots and explosions inside the school. C/O ¶ 27. Students running out of school told Deputies Smoker and Taborsky that two gunmen were shooting students. Id. None of the students reported that Harris and Klebold had taken or were threatening to take hostages. Id. Deputy Smoker relayed the students' reports to Deputy Gardner who was nearby. Id.
Deputy Sheriffs Magor, Searle, and Walker then arrived at the senior parking lot where they learned what the other deputies had seen. C/O ¶ 28. They saw the wounded students on the ground, saw students fleeing from the school, and heard automatic gunfire coming from inside Columbine. Id.
Allegedly, based on their own observations and the reports they received from Dean Horvath and the fleeing students, the six Deputy Sheriff Defendants knew they were confronting a "high-risk" situation rather than a hostage situation as defined by the Jefferson County Sheriff's Department's Manual. C/O ¶ 29.
These Deputy Sheriff Defendants were in contact with the Sheriff's Department, Sheriff Stone, and other deputy sheriffs and employees immediately upon their arrival at the senior parking lot. C/O ¶ 30. The Sheriff's Department also began receiving emergency telephone messages routed through its communications center 911 operator. Id. In response, the Sheriff's Department cleared its main communications channel and all other radio traffic was routed to secondary radio channels. Id. at ¶ 31. This permitted Sheriff Stone and others in command, including Deputy Gardner, to communicate directly with the deputies at an en route to the school to monitor and receive information about the 911 telephone calls being received. Id. The Sheriff's Department put out a state-wide callover the state law enforcement Colorado Law Enforcement Emergency Response Network (CLEER) channel to other law enforcement jurisdictions for "mutual aid." C/O ¶ 32.
Minutes after the Deputy Sheriff Defendants arrived at Columbine, a four-member Denver special weapons and attack (SWAT) team also arrived. C/O ¶ 33. These officers, trained to handle high-risk situations, allegedly were prepared and willing to use their special weapons and tactics in response to the Columbine attack. See id.
As the Denver SWAT team pulled into sight of Columbine's west entrance and the Library's exterior entrance, they saw Harris or Klebold, likely Harris, pointing a long-barrel weapon out of the west entrance doors. Harris fired a number of rounds. Three of the SWAT team members returned fire, each getting off several rounds. C/O ¶ 38. Following this exchange, Harris withdrew into the school. Id. The three SWAT team members advanced toward the school in the direction of the Library's exterior entrance and the school's west entrance. Id. at ¶ 40. The Denver SWAT team did not, however, enter Columbine High School due to the following actions of the Deputy Sheriff Defendants. Id.
The Deputy Sheriff Defendants enforced Sheriff Stone's order and/or the Board's and the Sheriff Department's custom, policy or practice calling for the establishment of a secure perimeter after classifying the Columbine attach as a high-risk situation. See C/O ¶ 43. A "secure perimeter" is intended to prevent anyone from entering the scene and to prevent the perpetrators of the high-risk situation from escaping. Id.
Allegedly, consistent with this order to secure the perimeter of Columbine High School, the Deputy Sheriff Defendants "issued orders that they would not permit law enforcement officers, whether affiliated with the Sheriff's Department, or like the Denver SWAT team, affiliated with separate law enforcement agenc[ies], to enter the school to attempt a rescue." C/O ¶ 44. The two shooters, Harris and Klebold, demonstrated no intention other than to remain in the high school and injure or kill as many students and teachers as possible. See id.
As a result, and as part of the decision not to attempt a rescue themselves and to prevent anyone else from attempting a rescue, the Deputy Sheriffs ordered the Denver SWAT team to halt its advance towards the high school and to cease any other rescue efforts. C/O ¶ 45.
In the meantime, after entering the school building, Harris and Klebold fired upon and wounded students and teachers. Among those wounded near the school's west entrance was teacher Patti Nielson. C/O ¶ 47.
After being wounded by gunfire Ms. Nielson fled down a hallway to the Library where a number of students, including the Library Plaintiffs, were studying. Immediately upon entering the Library, Ms. Nielson yelled at the students that there was a "kid with a gun" and to get down. C/O ¶ 48. She then telephoned the 911 operator at the Sheriff's Department. Ms. Nielson...
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