Judge Uphold Negligence Verdict

Judge upholds negligence verdict in Virginia Tech shootings and reduces award

By Tonia Moxley
381-1675

Roanoke Times

ROCKY MOUNT – On Wednesday presiding Judge William Alexander upheld the March jury verdict against the state for Virginia Tech’s handling of the April 16, 2007, shootings, but reduced the awards from $4 million per plaintiff to $100,000 each.

That may not be the end of the five-year-old case, however. Both parties are expected to ask the Virginia Supreme Court to hear their arguments, but for different reasons.

Plaintiffs’ attorney Bob Hall said after the hearing that his clients intend to appeal to the top court to reinstate university President Charles Steger as an individual defendant. Alexander dismissed Steger on a technicality shortly before the case went to trial, leaving the commonwealth as the sole defendant.

In a statement released after the hearing, Virginia Attorney General Ken Cuccinelli wrote that while he’s pleased with the reduction in the awards, "we continue to maintain that the court has misapplied Virginia law in its finding that the commonwealth or its employees could be liable under the facts of this case. Because of that, we are currently reviewing our options."

Under the Virginia Tort Claims Act, negligence claims against the state are capped at the higher of $100,000, or the amount of any liability policy maintained to insure against such negligence. The state has said in hearings and filings that no relevant liability policies are known to exist.

On March 15, after eight days of emotional and sometimes confrontational testimony, a Montgomery County jury awarded the families of the late Erin Peterson and Julia Pryde $4 million each. They found that university officials, including Steger, breached a duty to warn the women of reasonably foreseeable harm from a gunman known by police and officials to be on the loose.

That gunman, troubled Tech student Seung-Hui Cho, shot to death two students in a dormitory room shortly after 7 a.m., then opened fired in Norris Hall classrooms at about 9:50 a.m., killing 30 more and wounding dozens of others. Pryde and Peterson were fatally shot in Norris.

Police who worked the dormitory crime scene, and university officials convened to respond to it testified that they believed the shooting was domestic, and posed no threat to the wider community. No warning was issued to the campus, but an email notification describing a "shooting incident" was sent minutes before Cho entered Norris.

The Attorney General’s office, representing Tech, had asked Alexander in a motion to set aside the jury’s verdict and find in favor of the commonwealth, based in part on a state Supreme Court ruling handed down in April.

In Burns v. Gagnon, the court found that a public high school assistant principal, who was told that a student might be in a fight and did nothing to prevent it had no legal duty to intervene, or to warn of the potential danger. The student was attacked and permanently injured.

"We have a case this court must follow," Assistant Attorney General Mike Mellis told Alexander. "We have the Burns case."

"The Burns case is problematic. There’s no question about it," Alexander said. "But there are enough factual and legal differences" between the two that the state Supreme Court ought to look at the Tech case and clarify the issues.

The judge went on to defend the verdict in the Tech case, saying that it was supported by the facts. Furthermore, Alexander said, the court properly found that Steger and Tech Police Chief Wendell Flinchum did have a duty to warn Pryde and Peterson of foreseeable harm.

"Thank you all very much, and we’ll see what happens," Alexander said.

The judge is expected to enter a final order in the Tech case in the next month or so. Both parties then have 30 days to file notice of any appeals.

Cantor's Duplicity

Eric Cantor’s meeting with representatives of the Brady Campaign on the fifth anniversary of the Virginia Tech shootings exposed the House Majority Leader’s hypocritical duplicity.

Talking to those gathered in his office, Cantor expressed his “full support” for keeping guns out of the hands of dangerous people. However, the Majority Leader, who had just returned from speaking at an NRA convention, refused to sign a Statement of Principle capturing the ideas he had just agreed to. The statement calls for keeping guns out of the hands of those who are convicted felons, convicted domestic abusers, terrorists, or people who are dangerously mentally ill.

The Statement of Principle is not a pledge, and Cantor cannot say he is opposed to signing such documents when they advance his career. He willingly signed Grover Norquist’s pledge not to raise taxes. Apparently when it comes to the lives of students, staff, and faculty the Majority Leader says no dice—there is nothing in it for me. What a shame. Voters are crying out for politicians with backbone and principle, and Cantor took a pass. He apparently prefers to gamble with people’s lives rather than act responsibly.

He volunteered to those gathered that you have to set standards low around here (Congress), and then proved it. He told them he would not allow a vote on a bill strengthening background checks in order to buy a gun because a Democrat sponsors the bill.

DOE RESPONSE TO APPEAL

            The following is the letter of response I received in response to my appeal of Judge Canellos’s decision on Virginia Tech:

Depart of Education

May 10, 2012

Dear Mr. Cariens:

Thank you for your recent correspondence to Secretary Arne Duncan (Secretary) regarding the hearing official’s decision in the Virginia Polytechnic Institute and State University’s (Virginia Tech) fine. Because Federal Student Aid (FSA) is chargedwith enforcing the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics (Clery Act), your letter was referred to FSA for consideration.

FSA takes its responsibility to monitor and enforce Clery Act compliance very seriously. Accordingly, shortly after the tragic events of April 16, 2007 FSA began a focused program review to evaluate Virginia Tech’s actions in light of its own published policies and procedures and the Clery Act’s timely warning requirements. As you know, FSA issued a program review report that identifies certain findings non-compliance. After a very careful consideration of the  (sic.)Virginia Tech’s response to the program review report, FSA issued a Final Program Review Determination (FPRD) stating our conclusion that Virginia Tech, did in fact, fail to meet the timely warning requirements set forth in the Clery Act. Furthermore, FSA initiated a fine as result of the serious non-compliance documented in the FPRD. Virginia Tech appealed the fine action. As you know, the hearing official issued an initial decision which concluded that the fine should not be upheld.

Notwithstanding that decision, FSA continues to believe that the law and the facts of the case support our finding and that those findings support the imposition of a fine. Accordingly, FSA filed an appeal of the haring official’s March 29, 2012 decision with the Secretary on May 4, 2012.

FSA appreciates your interest in this case and your advocacy on behalf of campus crime victims. If you have any questions, please feel free to contact Mr. James Moore, Team Leader of the Clery Act Compliance Team on 215-656-6495 or at james.moore@ed.gov.

Sincerely,

(signed)

Mary E. Gust

Director

Administrative Actions and Appeals Service Group

Appeal Of Judge Canellos's Decision on Virginia Tech

I have sent the following appeal of Judge Canellos's decision on Virginia Tech to the Secretary of Education. I am asking the Secretary to overturn Canellos's decision that Tech did not violate the Clery Act and to reimpose the fines.

APPEAL OF JUDGE ERNEST C. CANELLOS’S

DECISION TO

OVERTURN THE DEPARTMENT OF EDUCATION’S RULING THAT

VIRGINIA POLYTECHNIC INSTITUTE AND STATE UNIVERSITY

VIOLATED THE CLERY ACT

ON APRIL 16, 2007

On March 29, 2012, Judge Ernest C. Canellos ruled “… it is ORDERED that Virginia Polytechnic Institute and State University is relieved of any obligation to pay to the United States Department of Education a fine for an alleged failure to follow the timely warning requirements of the Clery Act.

An examination of the judge’s rulings indicates his decision was based on flawed evidence and should be overturned. Virginia Polytechnic Institute and State University, the Virginia Tech Police Department, and the lawyers representing the state knew of these flaws when the appeal was heard. It is therefore highly possible that those arguing the case before the judge on behalf of the State of Virginia either withheld pertinent information, or for some unexplainable reason, were ignorant of widely known facts about the violation of the Clery Act on April 16, 2007. The evidence would seem to point to the former. In either case, the judge’s ruling was based on flawed testimony and therefore, the decision should to be reversed.

There were two critical facts, not presented to the judge, demonstrating that Virginia Polytechnic Institute and State University was in violation of the Clery Act as it stood on April 16, 2007.

First, the judge ruled that it was reasonable for the police and the school to believe that the murder of Emily Hirscher and Ryan Clark sometime around 0715 on the morning of April 16, 2007, was a “domestic issue”—the implication being a love triangle between Ryan Clark, Emily Hirscher, and her boyfriend, Karl Thornhill. The fact is, that it was well known before 0715 on April 16, 2007, in the immediate aftermath of the two murders that day, that Ryan Clark had no romantic interest in Emily Hirscher or any woman in that dormitory much less the campus. A “domestic issue” (as portrayed by the school and the police) was highly unlikely. Yet, the school and its legal representatives continue to perpetuate this fallacy as justification for not complying with the Clery Act—and the judge accepted the state’s position without question. (It is disappointing that Judge Canellos did not show more intellectual curiosity and ask the lawyers representing Virginia Tech for a definition of the words, “domestic issue.”)

Second, the judge’s decision rests largely on the timeline of events following the double homicide on the morning of April 16, 2007. That timeline was inaccurate in the Governor’s initial report, in the first revision of that report, and remains inaccurate in the final version. The timeline was inaccurate when the judge made his decision.

To base an analysis of a crime on the most critical, but deeply flawed aspect of that crime, is a cardinal error. Then, to base a legal judgment on that same flawed timeline is tantamount to a miscarriage of justice. Had the full facts about the possible “domestic issue” been presented to the judge, it would have been readily apparent that the criteria for an immediate warning, under the Clery Act, had been met:

1. One dead and one seriously wounded student, bloody footprints leading away from the crime scene, and a bloody thumb print on a hallway door—there could be no other conclusion that the murderer was on or near the campus.

2. The school violated its own rules for warning under the Clery Act. Some eight months earlier the school had immediately warned the campus when a convict, William Morva, killed two people while escaping custody. There was no evidence that Morva (versus the evidence on the morning of April 16, 2007) was on campus and the school issued a warning. If you apply to the April 16 double homicide the same timeline from when Tech became aware of Morva to when the school issued a warning, Tech would have issued a campus-wide warning between 0812 and 0816—one hour after Clark was killed and Hirscher seriously wounded.

3. Others on campus and in Blacksburg, complied with the Clery Act, and they did so having less knowledge of the 0715 crime than did Chief Flinchum, the Virginia Tech Police, and Virginia Tech President Charles Steger: In a move compliant with the Clery Act, the Virginia Tech Office of Continuing and Professional Education “locked down” at 0800. In a move compliant with the Clery Act, the Blacksburg public schools “locked down” at 0852. Between 0900 and 0915, the Virginia Tech Veterinary College locked its doors—in affect, a “lock down,” again, in compliance with the Clery Act. If these actions were consistent with the Clery Act, then the Steger administration’s (and Virginia Tech’s) inaction was not in compliance with the Act.

To quote the judge’s ruling, “The Clery Act mandates that institutions notify the campus community when certain enumerated crimes occur. These crimes include murder, sex offenses (forcible or non-forcible), robbery, aggravated assault, burglary, motor vehicle theft, manslaughter, and arson. The statute states that an institution “… shall make timely reports to the campus community on crimes considered to be a threat to other students and employees … that are reported to campus security or local law enforcement agencies. Such reports shall be provided to students and employees in a manner that is timely and that will aid in the prevention of similar occurrences.”

“The statute does not define timely reports, but the legislative history provides some insight into the purpose of a timely warning as well as how soon such a report should be issued. “

“ED’s (Education Department) implementing regulation captions the statutory provision as ‘timely warning’ and states that an institution must, in a manner timely and will aid in the prevention of similar crimes, report to the community on the aforementioned enumerated crimes that are reported to campus security authority, and considered by the institution to represent a threat to students and employees. ED specifically determined that it would not define timely reports in the regulation:”

“The Secretary does not believe a definition of timely reports is necessary or warranted. It must be decided on a case-by-case basis in light of all the facts surrounding a crime, including factors such as the nature of the crime, the continuing danger to the campus community, and the possible risk of compromising law enforcement efforts.”

The Department of Education, and the Secretary of Education specifically, did not define “timely,” saying that “timely” must be decided on a case-by-case basis. Because of this reasoning, it is logical to expect the case-by-case basis will be decided according to the gravity of the situation. If you remove the “domestic issue” from the double homicide, the gravity is serious—the evidence points to a killer on the campus and an immediate warning is called for.

If you accept the contention that under the Clery act a warning is issued on a case-by-case basis, then it only makes sense that the people in a position of authority should act based on the standards of crime scene analysis. The standard operating procedure of a crime scene investigation, when there is one dead, one wounded, and bloody footprints leading away from the scene, is to issue an immediate warning. This is an action consistent with the Clery Act as it existed on April 16, 2007.

Virginia Tech Police Chief Flinchum, who arrived at the crime scene at 0800, has testified under oath that he had the authority to issue a campus-wide alert. The chief therefore, broke the standards of his profession (and the Clery Act) by not exercising that authority and issuing the warning. Indeed, Chief Flinchum has said that he doesn’t recall ever raising the possibility of a campus-wide warning with Tech President Charles Steger. Again, a violation of basic police practices occurred—practices that the Clery Act relies on. The Clery Act definition of “timely” relies on sound police practices. The failure to adhere to basic crime-scene investigative practices is evidence of violation of the Clery Act.

Tech President Steger admitted under oath, “we didn’t know where the gunman was.” This admission, coupled with the bloody footprints leading away from the crime scene, clearly shows that the standards for an immediate warning—under the Clery Act as it existed in April, 2007—were met.

I need to address the timeline once more, because in crime scene analysis, the timeline is critical. Chief Flinchum has testified under oath that he knew about errors in the timeline and did not call them to anyone’s attention because he “assumed” they knew and the errors were “common knowledge.” A school official testified that she notified then-Governor Kaine’s office of the errors but the Governor’s office refused to correct them. These errors and the willful suppression of the corrections are evidence of hiding a violation of the Clery Act, because the Clery Act specifically pertains to the warning of the campus in a timely manner.

For the reasons stated above, I ask the Secretary of Education to overturn Judge Ernest C. Canellos’s ruling, and reinstate the decision that Virginia Tech did break the Clery Act. I also ask that the fines be re-imposed.

David Cariens, Jr.

Let Them Marinate in Their Guilt

The jury decision (in the Pryde and Petersen lawsuit) that Virginia Tech was negligent for not warning the campus after the double homicide at Ambler West Johnston Hall is, once again, proof of the bungling incompetence of Charles Steger’s administration at that school. The Department of Education has already decided that Virginia Tech was guilty of violating the Clery Act for not issuing a warning.

Virginia Tech is one of this nation’s premier schools. It is an outstanding institution of higher learning. Our youngest son is a graduate of the engineering school at Virginia Tech—I am so proud of the education he got there; I am so ashamed that the school is run by such inept people.

To those who say Steger and school officials shouldn’t be held accountable for their inaction, I would remind you that school’s advertise they offer a safe and secure environment for learning, and that the courts have ruled that schools have a “special relationship with students” and do have a responsibility for their safety. Furthermore, how can anyone justify issuing the following warnings and not issuing a warning on April 16, 2007, when there were bloody footprints leading away from a double homicide in the middle of the campus? Tech had

--Issued a campus-wide warning when a convict, William Morva, escaped from a Blacksburg jail and killed two people and there was no evidence Morva was on campus.

--Issued a campus-wide warning about measles.

--Issued a campus-wide warning about mold in the library.

--Issued a campus-wide warning about mumps.

--Issued a campus-wide warning about a bomb threat even though the school knew it was probably false.

JURY FINDS VIRGINIA TECH GUILTY

Virginia Tech trial, Day 8: Families of two April 16 shooting victims awarded $4 million each

A Virginia Tech spokesman said the university is "disappointed with today's decision" and maintained that Tech responded appropriately, given the information available on that day.

The Roanoke Times

Updated 4:03 p.m. | Posted 9:21 a.m.

Virginia Tech spokesman Mark Owczarski responded to a jury's decision to award $4 million to the families of two April 16 shooting victims after finding that Virginia Tech's actions on that day contributed to their deaths.

Owczarski said, in a statement: "We are disappointed with today's decision and stand by our long-held position that the administration and law enforcement at Virginia Tech did their absolute best with the information available on April 16, 2007."

Updated 3:25 p.m.

Virginia Tech contributed to the deaths of two students, Erin Peterson and Julia Pryde, in the mass shooting that took place on the campus April 16, 2007, a jury ruled today.

The seven-person jury in Montgomery County Circuit Court also awarded each parent of Peterson and Pryde $2 million. In total, the jury awarded damages of $8 million. The state may only be responsible for paying $100,000 in damages. The judge will rule on the awards cap later.

The trial brings closure to five years of questions that victims' parents have had about decisions police and university administrators made the morning of April 16.

After two students were murdered in a residence hall, the university waited more than two hours to notify the campus of a shooting. The university was not put on lockdown as police searched for a person of interest -- wrongly, the boyfriend of the first female victim -- off campus.

The gunman opened fire minutes later in Norris Hall, killing 30, including Peterson and Pryde.

The families in court today were the only two estates of victims and wounded students who chose not to settle with the university or forgo a lawsuit.

When the jury announced its verdict after deliberating almost three and a half hours, Peterson’s mother, Celeste, began to weep.

Presiding Judge William Alexander then offered his condolences for the pain Celeste and Grafton Peterson, parents of Erin, and Harry and Karen Pryde, parents of Julia, have felt.

-- Katelyn Polantz | The Roanoke Times

Chardon Rampage

The shooting rampage in Chardon, Ohio, is a stark reminder to all Virginians of how little politicians have done to protect our schools. Following the Virginia Tech massacre, Richmond made promises to improve school safety on a wide range of fronts. Few of those promises have been kept.

The common threat connecting these killers is mental or emotional illness. The shooter at Chardon, an emotionally disturbed young man, proves that point again.

The official reports following both Columbine and Virginia Tech called for increased emphasis and spending on mental health in an effort to identify and get help for these future killers. In the crime analysis courses I teach, some of my students, who are mental health specialists, estimate that between 50 and 70 per cent of all crime in America could be prevented through improved mental health programs.

But Governor McDonnell and the Virginia legislature are cutting spending on mental health. Now, McDonnell proposes to privatize the state’s mental health program. Privatization has failed in other states. Furthermore, privatization will lead to a further decline in the quality of mental health care, thus helping to make the state more vulnerable to school shootings.

School safety is not cheap; mental health is not cheap. But what price would Governor McDonnell say is a fair price for the life of any student, staff, or faculty member?

I tried raising mental health and school safety issues with Delegate Ransone, Senator Stuart, and Congressman Wittman. They either don’t answer letters, or in Wittman’s case, he won’t take my questions on his phone survey. All three are afraid of the problem because it means addressing two issues: spending more money on mental health for school safety, and examining ways to keep guns out of the hands of the mentally ill.