Legal Liability for campus shooting #4

Legal liability for the Virginia Tech massacre: Inquiry questions Cho’s mental-health care history

Jim Castagnera

May 2007

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.

 

To read Part 1 in the series, click here.

To read Part 2 in the series, click here.

To read Part 3 in the series, click here.

Jim Castagnera is a Philadelphia lawyer and writer, who is the Associate Provost and Associate Counsel for Academic Affairs at

Rider

University

.

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