The Uvalde Police Chief Has Been Indicted – But is it a Crime to Be a Coward or Inept?

By Scott Savage

Preface: What follows is a discussion of the relevant legal and training issues surrounding the tragedy in Uvalde. Obviously, police officers have a moral obligation to make entry and neutralize active shooters but what follows is a look at a different issue which is whether that moral obligation is also a legal obligation.

It has just been announced that Pete Arredondo, the former Uvalde Independent School District Police Chief, has been indicted by a grand jury charging him with 10 felony counts of Texas Penal Code 22.041 - Abandoning or Endangering a Child for his role in the Uvalde school shooting.

The Legal Argument

The specific section he was charged with states “A person commits an offense if, having custody, care, or control of a child younger than 15 years, he intentionally abandons the child in any place under circumstances that expose the child to an unreasonable risk of harm.”

The key phrase in that law is “custody, care, or control.” For a non-parent to have custody, care, or control, of a child, it must be shown that the officers somehow created a relationship with the victims. Uvalde prosecutors will face the same legal challenges faced in the Parkland, Florida case where former Broward County Sheriff’s Deputy Scot Peterson failed to make entry and confront the shooter. Peterson was charged with child neglect but was acquitted because the court ruled Peterson did not have a “special relationship” with the children that would impose a legal duty for him to protect them. Peterson was therefore shielded from prosecution by what is known as the public duty doctrine. The public duty doctrine states that government actors do not have an affirmative legal duty to protect individuals unless they create a special relationship with them. Such relationships are most often created when the government makes specific promises of protection.[1]

In the Uvalde case, prosecutors will have an uphill battle in showing that the Chief’s actions, though inept and cowardly, were criminal. They will also have the more challenging task of proving that the Chief had any legal duty to protect the children in the first place. As bizarre as that may sound, without the Chief having made specific promises of protection to individuals, he like every other police officer or other member of government is not legally required to protect an individual from what the courts have termed “private violence.” ?However, when it comes to a school district, and potentially the school district’s police department, there may be a legal precedent prosecutors can use which is Regents of the Univ. of Cal. v. Superior Court?, 29 Cal.App.5th 890, 240 Cal. Rptr. 3d 675 (Cal. Ct. App. 2018). That case ruled that a university and its employee’s do have a legal obligation to protect its students so perhaps the same can be applied to school district police officers.

But proving the Uvalde School District Police Chief had a legal duty to protect the children is just one hurdle the prosecutors face. Texas Penal Code 22.041 - Abandoning or Endangering a Child also requires that a person “intentionally, knowingly, recklessly, or with criminal negligence, by act or omission, engages in conduct that places a child younger than 15 years in imminent danger of death, bodily injury, or physical or mental impairment.” There is another important legal theory that may apply which is known as “state-created danger” or “officer-created jeopardy.” This theory states that if police officers place the victim in a worse situation than they were already in, then they can be liable.[2] But, like the name implies, officers would have to create or at least enhance the danger. To prove their case, the grand jury listed several factors in the indictment that attempt to cast the Chief’s omissions as more than just simple inaction and instead allege that he actively impeded others from acting. In doing so they are making the case that his actions were not just of a passive bystander (nonfeasance[3]) but rather they actively interfered (malfeasance[4]) with other officer’s ability to make entry and confront the shooter. The indictment lists the following reasons that the Chief’s conduct graduated to the level of criminal negligence:

• The Chief failed to recognize the event as an active shooter and failed to respond as trained. In doing so, he delayed officers from entering the classroom and instead called for SWAT.
• The Chief specifically directed officers to delay breaching the door and entering the classroom and instead directed them to conduct evacuations. ?
• The Chief decided to negotiate with the suspect who was “hunting and shooting children.” The decision to attempt negotiation delayed other officers from making entry.
• The Chief failed to see if the door to the classroom was locked and failed to provide keys or breaching tools to other officers which delayed entry being made.
• The Chief failed to establish an incident command post which meant responding officers lacked information and direction. This caused a delay in them confronting the shooter. ?
• The Chief failed to develop an immediate action plan and failed to direct others to do so, which caused a delay in their making entry. ?

Curiously, the indictment also accused the Chief of “failing to deliver an abandoned infant to an infant care facility (hospital)” yet that law (Texas Family Code 262.302) says the infant must be 60 days or younger. As the children in this case were all middle schoolers, that law doesn’t seem to apply in this situation. The law describes what is supposed to happen when, for example, a parent abandons an infant at a police station or fire station. The receiver of the infant is required by law to promptly deliver the infant to a hospital. In the indictment, the grand jury seems to be using that law to argue that the Uvalde children were abandoned, and the police were required to deliver them to a hospital yet didn’t do so. It will be interesting how prosecutors deal with this allegation as the elements of the law require that the victim be an infant, not a middle school-aged child.

In addition to Chief Arredondo, school district police officer Adrian Gonzales, one of the first officers to enter the building after the shooting began, has reportedly been indicted on 29 counts of the same charge. Although his indictment isn’t publicly available yet, reports suggest that it says he "failed to engage, distract, or delay the shooter" and failed to "act in any way" to stop the shooter. It also says he failed to follow his active shooter training. Again, prosecutors will have an uphill battle in proving the officer had a specific duty to each of the named children. While we can all agree what occurred in Uvalde was tragic and unforgiveable, whether or not the behavior was criminal is yet to be seen. To date, no court has been able to prove it is. Regardless, there are several key take-a-ways for police officers:

Takeaways for Law Enforcement Officers

TAKEAWAY #1 - Although police officers generally are not legally obligated to protect individuals, they do have a moral obligation to try to save children who are being killed. If you respond to an active shooter, make entry, and stop him. Period. In addition to the obvious moral duty, police officers may also be required to do so by policy.?

TAKEAWAY #2 - Conventional active shooter training is not sufficient. One need only watch the Frontline PBS Documentary about the Uvalde incident[5] and listen to the officer’s own words, and it becomes painfully clear that whatever training the officers received had not adequately prepared them for the real thing. It would be easy to dismiss the Uvalde officers as cowards but it’s unlikely that the hundreds of officers who responded all suffered from the same personality flaw of cowardice. Instead, it seems clear from the evidence that many lacked the sense-making and decision-making skills they needed. For example, in the documentary, the officers described being confused and overwhelmed. They were unable to differentiate a barricaded suspect from an active shooter who simply had paused the killing. Active shooter training should include high-fidelity, force-on-force scenarios that require the participants to make challenging decisions in difficult circumstances. They also must be trained to overcome confusion and fear. Watching a Power Point or going through a few unrealistic scenarios isn’t good enough.

TAKEAWAY #3 - When you promote, you lose the luxury of being inept. If you are going to call yourself a police chief but then claim you didn’t believe you were the incident commander at an active shooter incident, you have no business being chief. The same goes for sergeants, lieutenants, and every other rank. Don’t just accept the promotion and the extra pay that comes along with it. Take your position seriously and prepare for the big one. People are counting on you to lead. Your decisions can mean the difference between life and death.

TAKEAWAY #4 - Although the criminal charges against the officers will be difficult to prove just as they were in the Parkland and Pulse Nightclub cases, perhaps there is a difference here because the officers were from a school district police department and therefore will be shown to have an automatic special relationship with the students. However, the same argument was made in the Parkland case because the deputy was a School Resource Officer, and that argument failed.

TAKEAWAY #5 - Because it is so important, it bears repeating: When you respond to an active shooter, even one who has temporarily paused the killing, MAKE ENTRY, LOCATE THE SHOOTER, AND NEUTRALIZE THE THREAT. Need a catch phrase to memorize? “Stop the killing to stop the dying.”

Summary

In summary, this case will be one to watch, as the outcome can have far reaching consequences for police agencies across the country. However, regardless of whether or not the officers in Uvalde had a legal obligation to make entry and stop the shooter, all police officers have a moral obligation to do so. If you are a police officer, please recommit yourself to that moral obligation. The children in our country are counting on you.

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About the author: Scott Savage is a recently retired law enforcement professional and the Founder of the Savage Training Group. Learn more about the Savage Training Group at savagetraininggroup.com and connect with Scott at [email protected].

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[1] Warren v. District of Columbia, 353 F.3d 36 (D.C. Cir. 2004), Deshaney v. Winnebago Cty. Soc. Servs. Dept, 489 U.S. 189, 109 S. Ct. 998 (1989), South v. Maryland, 59 U.S. 396 (1855)

[2] Irish v. Fowler (979 F.3d 65 (1st Cir. 2020))

[3] failure to perform an act that is required by law

[4] wrongdoing or misconduct especially by a public official

[5] https://youtu.be/bBofi_etkUo?feature=shared