By Brendan Pierson
(Reuters) - A sheriff's deputy charged with failing to protect students during a mass shooting in a Parkland, Florida high school has a simple defence, some legal experts said - he did not have a duty to save the victims.
"There's no crime called refusing to die while a mass murderer is in your school," said Eugene O'Donnell, a former New York City police officer and prosecutor who teaches at the John Jay College of Criminal Justice.
Scot Peterson, 56, was arrested on Tuesday on charges of child neglect, negligence and perjury, and is in jail on $102,000 bond. He has not yet entered a plea but his lawyer says he will "vigorously" fight the charges.
Several law professors and defence lawyers said they were unaware of a previous case in which a law enforcement officer had been charged for failing to take an action.
The neglect law that Peterson is accused of breaking is usually used to prosecute caregivers such as parents and daycare providers. Peterson has a strong defence that the statute does not apply to law enforcement officers, according to several legal experts.
Broward County State Attorney spokeswoman Paula McMahon declined to comment on Wednesday.
Peterson, a former county deputy, was on duty as a school resource officer when a gunman entered the Marjory Stoneman Douglas High School on Feb. 14, 2018, and opened fire. Seventeen people were killed an 17 wounded.
Nikolas Cruz, who was 19 at the time and had been expelled from the school, was charged with the murders. He is awaiting trial.
Peterson was the only armed guard on the school campus.
The Florida Department of Law Enforcement concluded after a 14-month investigation that Peterson, who remained outside the school during the attack, failed to investigate the source of the bullets and retreated to take cover instead of rushing towards the gunfire.
Peterson, who faces 11 charges of neglect and negligence, has said he responded properly by notifying police and assisting a school lockdown. He told the Washington Post, "It just happened, and I started reacting."
Peterson's lawyer, Joseph DiRuzzo, said in a statement after his client's arrest that "specifically, Mr Peterson cannot reasonably be prosecuted because he was not a 'caregiver', which is defined as 'a parent, adult household member, or other person responsible for a child's welfare'."
John Berry, a lawyer who defends police officers, said using child neglect statutes to prosecute Peterson was creative on the part of prosecutors but a "stretch."
"The way they've charged him is kind of the way you would charge someone who’s watching at a childcare facility, who's specifically charged with watching children."
James Jacobs, a professor of criminal law at the New York University School of Law, said the charges seemed to impose duties on Peterson beyond what was normally expected of law enforcement officers.
"Police have an affirmative duty to resolve a volatile incident, but not a duty to sacrifice life," he said.
In addition to arguing that he was not a caregiver under the law, Peterson could argue that failing to engage an armed person does not constitute child neglect, said Richard Hornsby, a Florida criminal defence lawyer.
Even if prosecutors establish that Peterson had a duty to the victims, under U.S. law, they will have to prove beyond a reasonable doubt that he was responsible for the students' deaths.
Darren Hutchinson, a professor at the University of Florida's Levin College of Law, said that despite the state's apparent hurdles, Peterson still faced legal risk.
While juries are often reluctant to convict law enforcement officers, he said, Peterson's case could be an exception, because the shooting was so emotionally charged.
"It's really hard to guess what a jury is going to do here," Hutchinson said.
A successful prosecution of Peterson for neglect could create a problematic precedent, said NYU's Jacobs.
"Will firefighters be charged for not immediately rushing into vortex of fire?" he asked.
(Reporting By Brendan Pierson in New York; editing by Noeleen Walder and Grant McCool)