01:18 - Source: CNN
Analyst: I've never seen charges like this

Editor’s Note: Paul Callan is a CNN legal analyst, a former New York homicide prosecutor and of counsel to the New York law firm of Edelman & Edelman PC, focusing on wrongful conviction and civil rights cases. Follow him on Twitter @paulcallan. The opinions expressed in this commentary are his own. View more opinion on CNN.

CNN —  

The scene at Parkland, Florida’s Marjory Stoneman Douglas High School on February 14, 2018, was one of unimaginable carnage. The shattered, bloodstained bodies of high school teenagers and school staff were everywhere. The final toll of 17 dead and another 17 wounded made Parkland one of worst school shootings in US history.

Paul Callan

Given the grim circumstances, it is not surprising that prosecutors have been working diligently to serve up at least a modicum of justice for the survivors and the grieving families of the dead. Their first step was the decision to seek the death penalty for the confessed killer, Nikolas Cruz.

Prosecutors then turned their attention to former Broward County Sheriff’s Deputy Scot Peterson, the high school’s safety resource officer who heard the shots fired and arrived at the building, only to take cover outside instead of entering the school to confront the shooter. As Peterson waited outside, the gunman went on to discharge approximately 75 shots inside the school, according to an arrest warrant affidavit.

Peterson, who has since been branded by some as the “Coward of Broward,” was charged with 11 counts this week, including felony child neglect charges. His attorney called the charges “a thinly veiled attempt at politically motivated retribution,” and Peterson previously defended his actions, maintaining they were appropriate given the chaotic circumstances.

Recalling the events on that fateful day, Peterson said, “How can they keep saying I did nothing? I’m getting on the radio to call in the shooting. I’m locking down the school. I’m clearing kids out of the courtyard,” according to The Washington Post. “There wasn’t even time to think. It just happened, and I started reacting.”

While the impulse to hold Peterson accountable is understandable, the prosecutors’ decision to charge him with serious felonies based on “child neglect” will prove to be a colossal mistake. It stretches existing doctrines of criminal liability to such an extent, it has virtually no chance of being sustained by Florida courts. Worse still, it will likely raise the false hope among the Parkland victims that Peterson will be punished for his alleged cowardice.

The prosecutors have used a unique and therefore untested theory of “child neglect” to implicate a police officer for an alleged criminal failure to protect the students of Stoneman Douglas High. But the US Constitution provides no general right to be protected from harm by wrongdoers, and a “failure to protect” is not a crime that exists on either the state or federal level. In addition, the Supreme Court has previously ruled that the police do not have a constitutional duty to protect a person from harm – unless the officer has failed to protect someone “in custody,” in a jail, prison or mental institution, for example.

Generally, US law does not even permit a crime victim to sue the police for monetary damages for a failure to protect. The only exception to this rule of law in civil cases occurs when a police officer is hired for a specific task such as providing security to a private entity. Broward prosecutors will try to use this civil law concept to impose criminal liability on Peterson and assert that school resource officers have a special duty to protect the safety of students in their assigned schools, just as parents do when the kids are at home. But Florida’s law pertaining to school resource officers makes no mention of such a specific duty.

In Peterson’s case, prosecutors have cited statutes that normally apply to parents, guardians and other “caregivers” who have failed to feed, clothe or provide appropriate medical care to their kids, for example. Someone who fails to send their kids to school or permits the use of illegal narcotic drugs in the home might be found guilty of this offense. But a deputy sheriff? Has any police officer acting in the line of duty ever been called or even thought of as the “caregiver” of a child?

The cops get called a lot of things, but in my many years as a prosecutor and criminal defense attorney, I have never heard “caregiver.” Law enforcement personnel responding to an attack by an active shooter have never before been viewed as falling into the “caregiver” category. As Peterson’s attorney, Joseph DiRuzzo, has already pointed out, a provision of law in Florida suggests that “police officers” are not included in the definition of “caregivers.”

While a jury might be eager to convict Peterson for a dereliction of duty and conclude that at least some lives would have been saved if he had the courage to enter the school and engage the shooter, it is unlikely the child neglect charges will pass muster.

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    And if Peterson is found guilty of child neglect, it could establish a dangerous precedent that could easily cause more harm in the future. If lone officers feel compelled to enter an active crime scene before experienced hostage negotiators and SWAT teams arrive, there are many situations in which that could cause the unnecessary loss of lives.