South Florida Sun-Sentinel | By Scott Travis | October 20, 2022
Broward schools forged an unusual path to give $26 million to the victims of the Parkland shooting — turning a negligence case into a civil-rights dispute, newly released documents reveal.
Some former school board members were hesitant to use this approach, saying a school shooting at Marjory Stoneman Douglas High on Feb. 14, 2018, wasn’t a civil-rights matter. They worried the district was trying to circumvent a state law that requires legislative approval to pay victims more than $300,000.
But the School Board, worried about an unfavorable outcome from state lawmakers as well as the negative publicity associated with dragging the case out, ultimately agreed last December to settle the case in a way that didn’t involve a trial or the state Legislature.
The behind-the-scenes details of how the school district and 52 plaintiffs impacted by the Parkland shooting reached an agreement are revealed in transcripts of closed-door sessions of the School Board. The transcripts, obtained by the South Florida Sun Sentinel through a public records request, are now unsealed since the district was dismissed from the lawsuit in August. The case is still active against several other defendants, including the Broward Sheriff’s Office.
The district had budgeted about $25 million over a three-year period to settle the case, but had it gone to trial and then to the Legislature, the cost could be far higher, district officials worried.
“My counsel to you all as a client is to keep control of your destiny, and that’s what you all have done,” Eugene Pettis, an outside lawyer handling the case, told the School Board on Sept. 21, 2021. “You’ve tried to come up with the $25 million. We have won that battle. They have come back to me a dozen times trying to get more money and I’ve said I’m not going back to ask them for another penny, take it or leave it. They understand that.”
In the end, the school district agreed to pay about $26 million in two settlements, $25 million for 51 plaintiffs and $1.25 million for Anthony Borges, a student who suffered severe injuries and is expected to need a lifetime of care.
Family members of the 17 who died received $1 million each, including School Board members Lori Alhadeff, whose daughter Alyssa was killed, and Debbi Hixon, whose husband Chris died. The two did not participate in the closed-door sessions.
The settlement was much more than the school district initially said it would pay.
A few weeks after the shooting, the district sent out notices to victims saying the district’s total liability was $300,000 for the entire incident. Many victims found the letters stingy and heartless, but it was rooted in state law. The Legislature, not wanting taxpayers to foot giant legal bills, gives government agencies what’s known as “sovereign immunity” and places a cap of $200,000 per individual or $300,000 per incident for most negligence cases.
To get around the cap, the state requires victims to go through a lengthy process of filing a claims bill. A court first has to find the government body negligent and enter a judgment. Then the Legislature must pass a bill requiring the government to pay more than the cap.
One high-profile example of that happened in 2020, when the Legislature awarded $6 million to Dontrell Stephens, an unarmed man who was paralyzed after being shot in the spine by a Palm Beach County Sheriff’s deputy. The amount was considerably less than the $22.5 million judgment Stephens received from a federal court in 2016.
“A claims bill is a difficult and expensive process,” Jack Scarola, Stephens’ lawyer, told the Sun Sentinel. “You basically have to retry your case in front of the Legislature.”
The total process took seven years in Stephens’ case. He died in 2021, a year after his claims bill was approved.
In the Parkland case, lawyers for both the victims and the school district were reluctant to seek a claims bill.
“Nothing is guaranteed,” Alex Arreaza, the lawyer for Borges, said this week. “It would have been a lot of lobbying.”
Juries can also be unpredictable, Arreaza said, noting the decision this month to spare the Parkland killer of the death penalty.
The school district also had no interest in taking the case to trial, where it would have to publicly defend allegations of negligence by sympathetic plaintiffs.
“There’s some of us who say we’re not going to get a fair jury out of Broward County. I mean, the case has already been litigated in the media a million times,” Pettis told the School Board on Oct. 20, 2020. “I don’t think there’s any scenario that we likely walk out of this unscathed.
“I think they find liability due to the weight of the loss, not due to anything in particular you did or didn’t do that caused this damage.”
Pettis said the school district could face a judgment of $200 million or $300 million, which would then be subject to the state Legislature for approval. District spokesman John Sullivan noted to the Sun Sentinel that the FBI spent $127.5 million to settle with Parkland victims.
How much the Legislature would ultimately approve for the Parkland victims is unknown, but district officials worried they had little political clout in Tallahassee.
At the time of the district’s final negotiations in the fall of 2021, the district was battling with state lawmakers over its decision to impose mask mandates and its slow response to safety concerns identified by a commission formed to investigate the Parkland tragedy.
“I’ve heard from the board their concerns of going to Tallahassee and that was before some of the most recent mask mandates and all of the battles that are going on,” Pettis told the School Board on Sept. 21, 2021. “There’s probably even more concerns of going to Tallahassee now.”
So the lawyers for the Stoneman Douglas victims, with the support of the school district lawyers, came up with another way: amend the case as a civil-rights lawsuit. The $300,000 state cap doesn’t apply to civil-rights cases, although they require a much higher burden of proof.
“The lawyers put their heads together and came up with the idea of allowing the plaintiffs to file a motion to amend their complaint,” Pettis told the School Board at the September 2021 meeting.
It’s an approach “that hasn’t really been tried. There’s not across-the-board case law precluding or allowing civil rights claims in this instance,” Debra Klauber, a lawyer who works with Pettis, told the School Board at the same meeting.
Civil-rights claims are often used against police departments in officer shootings. It’s highly unlikely a court would find a civil-rights violation against the school district in the Parkland case, several legal experts said.
“In order to successfully bring a federal civil-rights action, you need to demonstrate that the injury was a result of a pattern and a practice of disregard for constitutional rights, not simply negligence based on the conduct of a single actor, but conduct on the part of a government agency that sanctions and promotes misconduct,” Scarola told the Sun Sentinel.
Scarola said he tried this argument in the Dontrell Stephens case but it was struck down in federal court.
But the intent in the Parkland case was never actually to litigate this as a civil-rights claim, but instead use it to get around the $300,000 cap.
“A good-faith argument could be made that there was a violation of civil rights as an actionable claim,” said David Brill, a lawyer for 51 Parkland plaintiffs, told the Sun Sentinel this week. “In this instance, however, it served as a mechanism toward settlement, and there’s nothing inappropriate about that at all.”
Arreaza added, “It was a matter of getting as creative as we could. We were working within the parameters.”
But some School Board members were uneasy about this approach when it was discussed in closed session on Sept. 21, 2021.
“A civil-rights claim is a little concerning for me because how is this a civil-rights claim? Like on what grounds does it have anything to do with civil rights?” then School Board member Donna Korn asked lawyers.
Interim General Counsel Marylin Batista told Korn she’d defended civil-rights claims in federal court for 20 years, and “I don’t think there is a claim, a viable claim.”
If a settlement failed to materialize and the case proceeded, the district would seek to dismiss the claim, lawyers said.
“I love that we’re being creative to get us to that place. It makes me uncomfortable that we’re using a civil-rights claim to do that. I think it’s inappropriate,” Korn said at the time. “I understand it’s legal. I understand it’s a means, but I — the word I want to use is not appropriate here for what I think that is doing.”
Then-board member Laurie Rich Levinson voiced concerns about the district circumventing the sovereign immunity law.
“It’s particularly disturbing to me because sovereign immunity is there for a reason, and we’re paying no attention to sovereign immunity,” Levinson said. “Is there any other way to settle the case?”
Not without going to the Legislature, the lawyers said.
Korn and Levinson reluctantly agreed to proceed with the settlement. Other board members attending the closed session that day, Sarah Leonardi, Patti Good and Rosalind Osgood, did not voice concerns.
“It’s the quickest way to the pathway to get money and that’s why I can be OK with it,” Osgood, now a state senator, told board members at the time. “It’s a technique to allow us to close this.”
A judge granted the plaintiffs’ request to amend the case to a civil-rights dispute in November 2021, which then allowed the district to legally offer the $26 million settlement. The School Board voted to approve it in December.
“The final settlement allowed the School Board and the Plaintiffs to find some sense of closure with respect to the civil litigation without the need for a formal civil trial or a similar hearing process before the Legislature,” district spokesman Sullivan said this week in a statement.
Several lawyers say this was a good strategy and didn’t share the concerns of Korn and Levinson.
Deerfield Beach personal injury lawyer Marc Wites said he believes the plaintiffs’ lawyers would only assert the civil-rights claim if they felt it was valid.
“Just because a defendant thinks it’s not valid doesn’t mean it’s not. That’s for a court to decide,” he said.
Wites was able to use the federal courts to secure a $3.58 million settlement in 2017 from the Palm Beach County School Board for four sexual abuse victims. That case took 12 years to resolve.
Scarola said the problem is not the means the school district used to settle but the state law that makes it difficult for victims to collect and provides little incentive for government agencies to change. He said efforts to remove or greatly increase the cap have been unsuccessful.
‘The entire claims bill process is an unjust burdensome process that clearly needs to be re-evaluated by the Legislature,” he said. “There ought not to be a need for the kind of workaround that existed in this case.”