These are the pieces I published at the time in the now-defunct "Today's Campus" Magazine. You may find them worth recalling:
Legal liability for the Virginia Tech massacre: lessons of earlier mass shootings?
Jim Castagnera
Part 1 in a series
The April 16th Virginia Tech massacre sent editors and writers scurrying to their microfiche and video vaults, and lawyers to case law.
Jim Castagnera
The very day of the tragedy, CBS News recalled the mother of all campus mass-murders – the August 1, 1966, slaughter of 16 by a sniper from the top deck of the University of Texas Austin’s landmark tower.
But arguably America’s most notorious campus killing spree was the May 4, 1970 shooting of 13 students in about as many seconds on Kent State’s campus. It has retained the public eye into the new millennium, thanks chiefly to a 2001 Emmy-winning documentary and Reporter-Novelist Philip Caputo’s 2005 book.
In the lingo of American tort (that is, personal injury) law, Virginia Tech more closely resembles the University of Texas. Both campuses were victimized by an unexpected and entirely unwanted intruder. If either institution, its officials and safety forces are legally liable, then the basis must be negligence – some common-law sin of omission. University executives should nonetheless familiarize themselves with the range of civil liabilities they may face in such dire circumstances.
Kent State legally different than Texas or Virginia Tech
Kent State’s shootings implicated higher levels of legal liability … on both sides of the gun barrels. First, contrary to the clear innocence of the shooters’ victims at U.T. and V.T., an argument could be (and, in fact, was) made for student culpability in the tragedy of the K.S. Commons. Likewise, state officials from the governor of Ohio down to the president’s office at the university shared in the decisions that led to four dead and nine wounded students.
On May 1, 1970, students demonstrated against Nixon’s invasion of Cambodia. On May 2, a mob burned the Army ROTC barracks on campus. The following day, the Ohio Riot Act was read and tear gas fired, before the students abandoned the campus Commons. A day later, the Ohio National Guard fired into the reconstituted campus crowd.
Immediately after the shootings, officials attempted to blame the protesters. On May 15, the Portage County Prosecutor displayed a shotgun, a pistol, machetes, cap pistols, slingshots and BB guns confiscated from dorm rooms. The ACLU labeled the search illegal and its fruits “meager.”
On June 6, the Ohio legislature enacted a campus riot law, which took effect in the fall.
The legal tide seemed to turn on June 10, when the parent of a dead student filed suit in federal court, asking $6 million against the governor and the guard commanders for “intentionally and maliciously disregarding” students’ safety. On June 23, a U.S. Department of Justice report concluded the shootings “were not necessary and not in order.” Wrongful death suits followed from the other three decedents’ families.
Meanwhile, the pendulum took another swing, as a special grand jury indicted students and faculty for riot, assault and incitement. After unsuccessfully fighting the charges all the way to the U.S. Supreme Court, a number of these defendants were eventually fined and imprisoned.
All four of the wrongful-death actions were dismissed on the ground of Ohio’s sovereign immunity from suit. But in 1974 the U.S. Supreme Court held in Scheuer v. Rhodes, an action by the family of one victim, that Governor Rhodes and other individual state actors, including Kent State’s president, could be sued. State immunity, said the Supremes, is “no shield for a state official confronted by the claim that he had deprived another of a federal right under color of law.” Meanwhile, eight guardsmen were indicted on civil rights charges by a federal grand jury; all were eventually acquitted.
In 1975’s Krause v. Rhodes, which consolidated all four decedents’ wrongful death claims, a federal jury found the defendants not liable by a 9-3 vote, but the Sixth Circuit Court of Appeals ordered a new trial. As legal wrangling over campus construction that would obliterate the scene of the shootings dragged on, the parties settled for $675,000 in 1979. The four families had sought a grand total of $46 million.
While the settlement amount was relatively small, the cost to Kent State was enormous in terms of legal costs, distraction from the core mission, faculty imprisonment and damage to the school’s reputation.
Legal liability for the Virginia Tech massacre: Have reforms birthed by the U of Texas tower shootings made a difference?
Jim Castagnera
Part 2 in a series
In August 1981, just out of law school and fresh from a bar exam, I reported for duty as an assistant professor of business law at the University of Texas, Austin. Not long into the fall semester, I learned that when the Texas Longhorns won, the 307-foot tower dominating the campus glowed burnt-orange. As attractive as the tower was, I also soon learned that it was closed to visitors. By contrast, in 1966 the 28th floor observation deck hosted some 20,000 tourists annually. Here's why.
Jim Castagnera
On August 1, 1966, a 25-year-old ex-marine named Charles Joseph Whitman, having murdered wife and mother the night before, climbed the University of Texas tower and shot some 45 passers-by. He managed to kill 14, before being shot to death himself.
Addressing what went wrong before and during the tower massacre changed the way not only the University of Texas, but all of higher education, thinks about and tries to deal with dangerous people on our campuses.
Identifying and treating the mentally ill student
On March 29, 1966, Whitman - who was then a student at U.T. - was referred to Dr. M.D. Heatly on the university’s health center staff. Dr. Heatly opened his report, “This massive , muscular youth seemed to be oozing with hostility.” Whitman admitted “that he had on two occasions assaulted his wife physically.” He told Heatly that in the marines he’d been court-martialed for fighting. Most remarkably, Heatly recorded, “Repeated inquiries attempting to analyze his exact experiences were not too successful with the exception of his vivid reference to ‘thinking about going up on the tower with a deer rifle and start shooting people.’” The good doctor’s solution? “No medication was given to this youth at this time and he was told to make an appointment for the same day next week; and should he feel that he needs to talk to this therapist, he could call me at any time during the interval.”
Within days of the August 1 shootings, the Hogg Foundation for Mental Health, founded decades earlier on the U.T. campus, ramped up efforts to improve availability of services for psychologically troubled members of the campus community. Student-counseling services were expanded, including services aimed specifically at patients in “crisis situations.”
The university closed the tower for two years, then closed it again in 1975 following a series of sporadic suicide jumps from its heights.
Today, every campus has its counseling center and its policies on threats of violence and suicide. Yet costly, high profile lawsuits involving students’ violence toward themselves and others abound. Universities still struggle with responsibility for campus safety and the individual rights of students, specifically whether to treat or expel such students. And, as the VTU tragedy demonstrates, identification and prevention remain elusive goals.
From Keystone Kops to campus police departments
According to author Gary Lavergne, who wrote a book about the tower shootings, “The university (in 1966) had no real police department, only a few unarmed men who spent most of their time issuing parking permits.” Today, the U.T. System Police website states, “Our official creation as a police agency occurred in 1967 and was largely the result of a sniping incident on August 1, 1966 on the U.T. Austin campus.
During the 1967 session of the Texas Legislature, authorized the Lone Star State’s public colleges and universities to commission their security personnel as “peace officers.” Countless campuses across the country followed suit. For example, Philadelphia’s Temple University on the city’s dangerous north side boasts one of Pennsylvania’s largest police forces. Meanwhile, most U.S. cities similarly taking their lead from Austin, Texas have created SWAT teams.
Nonetheless, as the VTU tragedy bitterly attests, campus police and city SWAT teams are no magic shield, when pitted against a determined mass killer.
Texas tower redux
The U.T. Tower was once again reopened in late 1998, following $500,000-worth of renovations to prevent jumping. Tours today are sadly by appointment only.
Legal Liability for the Virginia Tech massacre: Is profiling worth considering?
Jim Castagnera
Part 3 in a series
When the police use profiling, it’s condemned as racist. When the customs service does it, it’s similarly assailed as discriminatory and unconstitutional. Still, it’s being done. Travel & Leisure magazine reported in January, “The Transportation Security Administration (TSA) recently began rolling out a new security program, Screening Passengers by Observation Techniques (SPOT), at dozens of airports around the country.” Time magazine explained, “TSA employees will be trained to identify suspicious individuals who raise red flags by exhibiting unusual or anxious behavior, which can be as simple as changes in mannerisms, excessive sweating on a cool day, or changes in the pitch of a person's voice.” Although such techniques invariably arouse the ACLU, should colleges and universities consider adopting them?
Jim Castagnera
Before you answer, consider the case of Dawson College. On September 13, 2006, Kimveer Gill parked his car in downtown Montreal, removed a cache of weapons from the trunk, forced a passerby to carry his extra ammunition, and walked the short distance to the college’s campus. At the main building’s back entrance he opened fire on students standing on the steps. His hostage ran off with the extra ammunition as Gill entered the building and walked to the cafeteria, where he shot two students. Ordering the others in the room to lie on the floor, he fired randomly until police arrived. Taking two more hostages, he attempted to escape until, shot in the arm, he took his own life. The toll: one student dead, 19 more wounded.
Police later found Kimveer Gill’s profile posted on a website called VampireFreaks.com. In the accompanying photo he wears a black leather trench coat and sports a Beretta Cx4 Storm semi-automatic carbine, one of four guns he took to Dawson College. Visit VampireFreaks.com today and you can purchase “cyber-gothic clothing” on a related link called clothing@F---TheMainstream, and read featured interviews with “Velvet Acid Christ,” “Zombie Girl,” and “Grendel.” Gill’s own VampireFreaks screen name was “fatality 666.” His last login was at 10:35 AM on the day of the shootings.
In the aftermath of the Dawson College shootings, the so-called “Goth” subculture came under sharp attack in the media. Hardly a high school or a college on the North American continent is without its clique of Goth enthusiasts in their leather, chains, piercings, tattoos and bizarre hairstyles. Operators of Goth shops and websites found themselves defending the lifestyle and adamantly disavowing violence. Some expressed shock at the 55 graphically violent pictures posted on Gill’s VampireFreaks web page.
Gill also turned out to be a big fan of the video game “Super Columbine Massacre RPG.” Go to the game’s web site today and you’ll find this statement about the Virginia Tech massacre: “This week, the press is awash with stories about the shooting at Virginia Tech – the deadliest in recent history. Will we remember this tragedy in a week? In a month? In the years to follow? I certainly hope so. I hope we can learn from such sobering events as Virginia Tech, as Dawson College, Ehrfurt, Columbine and all the other horrific shootings modern society has endured. So often the potential for another shooting is just around the corner should we forget the lessons history has to offer us. This process of reevaluation, introspection, and a search for understanding is the value I believe my video game offers to those who play it.” The author, site owner Danny Ledonne is said to have vomited when he learned that Gill was a fan. Presumably Gill wasn’t participating for “reevaluation, introspection, and a search for understanding.”
VampireFreaks and Super Columbine Massacre persist on the web, despite their appeal to the Kimveer Gills out there. No one has definitively proven a clear cause-effect-relationship (albeit the Alabama Supreme Court last year reinstated a $600 million lawsuit against the makers of video game “Grand Theft Auto,” which the plaintiffs blame for the shooting deaths of two police officers and a dispatcher in 2003).
As Goth enthusiasts and video gamers alike point out, tens of thousands of adherents never commit a violent crime. In the absence of a clear causal connection between violence-glorifying cults and games on one hand and campus shooters on the other, academic freedom argues against profiling Goths and gamers as potential threats. And yet … as horrific incidents multiply down the decades, administrators might be forgiven for considering closer scrutiny of students who fall into these categories.
Even administrators who shy away from "profiling" might welcome increased sensitivity among their student bodies. "Snitching" about suspect behavior may not be cool, but it could be crucial. A live-and-let live attitude in residence halls is probably no longer appropriate in our post-VT world ... anymore than a laissez faire attitude at our airports would make any sense in this post-9/11 age of international terror.
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Legal liability for the Virginia Tech massacre: Inquiry questions Cho’s mental-health care history
Jim Castagnera
Part 4 in a series
The panel investigating the Virginia Tech massacre met for the first time on Thursday, May 10th. Present was no less a political light than Virginia Governor Tim Kaine, who commented that “we owe it to the victims” to learn all there is to know about the tragedy. He charged the eight-member commission, chaired by retired State Police Superintendent W. Gerald Massengill, to learn all it can about, among other things, the killer’s mental state and mental-health treatment.
Jim Castagnera
In 1966, as we saw in this series’ second installment, U.T. Austin’s resident shrink conducted a session with the tower sniper some three months before the troubled ex-marine climbed to the 28th floor observation deck and shot 45 passers-by. The doctor’s notes eerily reported the 25-year-old Whitman’s fantasy of shooting at people from the tower.
A decade later, in Tarasoff v. Regents of the University of California (551 P.2d 334), the California Supreme Court enunciated a duty-to-warn rule, which has been adopted over the past 30 years by much of the American common law. The decision established an obligation among mental-health professionals to warn the known, intended victim of a patient, doctor-patient privilege notwithstanding.
In 1995, the Virginia Supreme Court had occasion to consider the Tarasoff rule. In Nasser v. Parker (455 S.E.2d 502), the Commonwealth’s high court stated that “we disagree with the holding of Tarasoff that a doctor-patient relationship or a hospital-patient relationship alone is sufficient, as a matter of law, to establish a ‘special relation’” with the patient sufficient to fix liability upon the doctor who declines to warn. Under this Virginia precedent, the mental-health caregiver must “take charge” of the mentally ill individual in order to implicate duty-to-warn liability.
In the Virginia Tech killer’s case, reports indicate that police first investigated the future mass-murderer in November 2005, following up on another student’s harassment complaint. Cho was directed to the university’s Office of Judicial Affairs. The complainant declined to press charges, saying that Cho’s unwelcome attentions were merely annoying, not truly harassing.
A month later another female student filed a complaint against Cho with the VTPD. This time, after the campus police interviewed Cho, another student called to claim that Cho appeared to be suicidal. This call resulted in issuance of a detention order. The troubled young man was subsequently evaluated at Carilion St. Albans Behavioral Health, an independent mental-health facility. Following this counseling intervention, say police, they received no more student complaints about Cho.
Also in the fall of 2005, a Tech poetry professor had Cho removed from her class. Nikki Giovanni told the media she found the young man’s poetry so intimidating and his presence so menacing that, when two students who shared her anxiety stopped attending class, she moved to remove Cho. Describing Cho as “mean,” she told CNN, “I knew when it happened that that’s probably who it was.”
These facts beg the questions: In the fall of ’05 should Cho have been removed from more than just Giovanni’s poetry class? Should he have been kept in custody -- even institutionalized -- when he was taken to the mental-health facility?
A May 8th editorial in the Roanoke Times complains of “No Teeth in Mental Health Laws in Virginia.” The piece goes on to contend that Cho’s fall ’05 release from custody was inappropriate because he was diagnosed as “depressed and imminently dangerous.” In eerie emulation of the Texas psychiatrist’s suggestion that tower-sniper Whitman make an appointment for the following week, Cho was ordered to pursue outpatient treatment and then released. As with Whitman, Cho’s next appearance on the radar screen was gun in hand.
The ultimate question is whether on these facts Tech assumed any legal liability vis-a-vis Cho’s victims and their families in terms of a future wrongful-death action. Though the young man’s meanness and intimidating behavior in Professor Giovanni’s poetry class fit a profile of a potential menace to the campus community, profiling alone cannot form the basis of legal liability for the university. Indeed, whether profiling has any future in campus security is a problematic issue at best. (See the third installment in this series.)
Under the Virginia Supreme Court’s variant of the Tarasoff rule, Tech may well be found to have “taken charge” of Cho in 2005. Although he named no specific victims, whom Judicial Affairs and campus police could have warned, the Commonwealth’s courts may prove to be sympathetic to injured survivors or the parents of the deceased victims, who choose to sue. As with Ohio law after the Kent State shooting of 1970 (see this series’ first installment), the Commonwealth’s highest court ultimately may be called upon to determine whether such anticipated wrongful-death actions are capable of prevailing under Virginia common law.
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