Detroit Free Press | December 8, 2021

The Oxford Community School District could be hit with civil liability lawsuits in the coming weeks and months as more questions swirl around the action officials took — and perhaps failed to take — before a deadly shooting on Nov. 30, experts say.

Karen McDonald, Oakland County prosecutor, has not said whether school officials could face criminal charges, citing an ongoing investigation. But experts say likely civil suits would follow in the footsteps of earlier legal battles fought against schools after mass shootings.

After a shooter killed 17 people in Parkland, Florida, in 2018 at Marjorie Stoneman Douglas High School, the school district paid out $25 million to the families of 52 people affected by the shooting, settling in October of this year.

Attorneys may argue Oxford High School officials demonstrated a “substantial lack of concern” for possible injury to students, said Stephen Drew, an attorney in Michigan.

“It will be argued that students under their care were very possibly in danger,” said Drew, who represented more than 100 sexual abuse victims of sports doctor Larry Nassar against Michigan State University.

Still, experts caution that it’s only a week after the tragedy. Families are still mourning. The wounded are still recovering.

And the story behind a shooting can evolve with an investigation.

“I always caution people to be very careful,” said Mike Dorn, a school safety expert with Safe Havens International. “Even when it seems like absolutely certain it’s a fact, it’s just surprising how often it just turns out to be quite different.”

Over two days, Ethan Crumbley met with Oxford counselors twice, according to prosecutors. The first time, a teacher spotted the 15-year-old peering at images of bullets on his cellphone.

Crumbley told counselors the search was part of a family hobby, sport shooting, Tim Throne, Oxford Community Schools superintendent, wrote to community members.

The second time, a teacher spotted a note apparently belonging to Crumbley. She was so alarmed she took a photo of the drawing, which depicted a semiautomatic handgun with the words, “The thoughts won’t stop. Help me,” and blood.

This time, he explained the drawing was a part of a video game design, Throne has said. Officials insisted the student seek counseling. His parents refused to take him home for the day, wrote the superintendent. And counselors did not “believe the student might harm others based on his behavior, responses and demeanor.”

So Crumbley returned to the classroom. And that afternoon, prosecutors say he tore through a hallway with a gun and killed four students, according to charges filed against him in Oakland County.

Early details from the days before the shooting have drawn questions over how school officials acted or failed to act in the face of increasingly alarming behavior from Crumbley.

The district has not responded to questions or interview requests from the Detroit Free Press. Throne said in his statement to the community that a third party will investigate the district’s actions, but rejected an offer from Dana Nessel, Michigan’s Attorney General, to lead the review.

Nessel said on CNN on Monday that she hopes the “school district cares as much about the safety of their students as they do shielding themselves from civil liability.”

Was Oxford legally liable? 

One of the main questions over liability revolves around whether school officials failed to take action to protect student lives, said Doug Fierberg, a Michigan-based attorney who represented families after the 2007 Virginia Tech shootings.

The school may have had the ability to get Crumbley off the property and failed to do so, Fierberg said. Throne wrote that Crumbley’s parents were resistant to bringing their son home.

But Fierberg said the school legally could have called the police to escort him off school property, if they believed he posed a threat to school safety based on his drawings and ammunition search.

“There were a number of options that were far more reasonable and safe than saying, ‘Go get counseling, stay here,’ ” he said.

School administrators can remove a student from school in an emergency, said Amy Klinger, a former principal and educator who cofounded the Educator’s School Safety Network, a school safety training nonprofit. Along with the removal, they’d help the student seek help.

“That’s not just throwing him out of school that is pressing pause to get things in place to ensure his safety and the safety of others,” she said.

Immunity may help protect Oxford officials in the event of a suit. Michigan law grants immunity from civil liability to government agencies and employees.

But immunity is not a “blanket protection,” Drew said. Individuals can still be held liable for gross negligence, which is defined in the law as “Conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.”

“We’ve got to get to a point where our children’s safety is absolutely paramount and you have to err on the side of safety as opposed to everything else,” Drew said.

Still, gross negligence is a high standard to prove in court.

In 2018, a judge threw out a case against the town of Newtown, Connecticut, and the town’s school district over the 2012 Sandy Hook Elementary shootings, which left 26 people dead. The school was protected by immunity, the judge ruled.

Red flags present complex dilemmas 

Ann Owen was a school administrator for 26 years, much of it in Livonia Public Schools. In all that time, she has counted herself lucky that she has never come face-to-face with a real gun, but has seen toy guns and airsoft pistols.

“It’s unnerving opening a backpack that you’ve pulled out of a locker and seeing the end of a gun and very gingerly looking at it to see what it is,” she said.

She would often encounter worrying behavior from students. And mentally calculating how to act was not always easy for the administrator. Nor is it easy for any administrators, she said.

“The amount of things that you need to know and then you need to be a security expert, then you need to be a psychologist and a family counselor and then with COVID,” Owen said. “I guess one of my biggest takeaways is schools right now are asked to do so, so much.”

She said she would have referred Crumbley to a school threat assessment team if she’d witnessed the behavior described by the Oakland County sheriff, including the drawing and ammunition search.

These teams are not in every school or district, but usually bring together school psychologists, social workers, counselors, school police officers and others to debate what to do next. Oxford officials have not said whether they use threat assessment teams, and the practice varies from district to district.

Security experts echoed the need for threat assessment teams.

Klinger said such a team ideally would then look at the student as a whole, investigating whether he or she had posted anything of concern on social media and talking to the people around them, like friends and family members.

“It’s rather looking at the totality of what’s going on with that kid,” she said. “It sounds to me like that did not happen.”

Dr. Peter Langman, a psychologist based in Pennsylvania, and author of “Warning Signs: Identifying School Shooters Before they Strike,” said assessment teams dig for more information so they can see what other kinds of warning signs the student may be exhibiting.

“You’re left kind of guessing and that’s where it’s really important to communicate because different people may have different pieces of the puzzle,” he said.

What about Crumbley’s bag?

Throne in his note on Saturday wrote that the district does not know whether Crumbley had a gun in his backpack when he met with counselors on the day of the shootings.

“Whether or not the gun was in his backpack has not been confirmed by law enforcement to our knowledge nor by our investigation at this time,” he wrote.

But whether school officials should have searched his bag is up for debate.

Administrators are cautioned to be careful in searching student property. Students have a reasonable expectation for privacy, according to the Michigan Association for Secondary School Principals. However, officials may conduct a search if they have a “reasonable suspicion” the student is violating the law.

Dorn said searches can pose a safety risk to school staff members, particularly when they suspect the student may be armed.

“It is extraordinarily dangerous for everybody involved for school officials to try to search students for weapons, especially firearms,” he said.

Instead, if school staff suspect a student has a weapon, they should contact a police officer immediately, he said.