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Eleventh Circuit Court of Appeals rules that Parkland students cannot pursue class action lawsuit against Broward County based on theory that incompetent response to shooting constituted a violation of their due process rights

On December 11, 2020, in L.S., et al, v. Peterson, et al, No. 19-14412, the Eleventh Circuit Court of Appeals affirmed a district court’s dismissal of a class action lawsuit filed by students present at the Parkland school shooting. The complaint alleged that an incompetent response to the shooting by Broward County and five individual public officials violated the students substantive due process rights under the Fourteenth Amendment to the U.S. Constitution.  The district court dismissed this claim with prejudice because it was an impermissible shotgun pleading and, in the alternative, because it failed to state a claim and leave to amend it would be futile.  The Eleventh Circuit agreed, concluding that settled caselaw makes clear that official acts of negligence or even incompetence in this setting do not violate the right to due process of law.  The Court noted that the right to substantive due process depends on the relationship of the official and the individual his acts or omissions allegedly harmed, and that an official has a “duty to protect individuals from harm by third parties” only when the individuals are in the official’s custody, citing White v. Lemacks, 183 F.3d 1253, 1257 (11th Cir. 1999).  Individuals who are not in an official’s custody must allege that his conduct was “arbitrary, or conscience shocking, in a constitutional sense.” Id. at 1258 (quoting Collins v. City of Harker Heights, 503 U.S. 115, 128 (1992).  Quoting from Waldron v. Spicher, 954 F.3d 1297, 1310 (11th Cir. 2020), the Court stated that “[n]o case in the Supreme Court, or in this Circuit, . . . has held that . . . deliberate indifference is a sufficient level of culpability to state a claim of violation of substantive due process rights in a non-custodial context.”  The Court further stated that “[w]e doubt that deliberate indifference can ever be ‘arbitrary’ or ‘conscience shocking’ in a non-custodial setting.”