The Roanoke Times

John Fishwick

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Abingdon lawyer Emmitt Yeary said Thursday that he's been contacted by a parent contemplating legal action against Virginia Tech in the wake of Monday's campus shootings.

A few years ago, Yeary and Las Vegas-based lawyer Brent Bryson represented plaintiffs who won a $1 million settlement in 2004 from the Appalachian School of Law, where an unstable student, Peter Odighizuwa, shot and killed a dean, a professor and a student and wounded three others on Jan. 16, 2002. Lawsuits alleged that administrators at the Grundy school should have known Odighizuwa was dangerous.

However, unlike the law school, Virginia Tech is a public university. Thus, any plaintiffs who emerge will run smack into the state's complex doctrine of "sovereign immunity" -- a doctrine about which many state residents know little or nothing.

"I think the average Virginian would not have a full appreciation of sovereign immunity," said David Anthony, a 1987 Virginia Tech graduate and a Richmond-based lawyer who has studied the doctrine.

In fact, many Virginia residents might be stunned to learn how tough it is to successfully sue public universities such as Virginia Tech, as well as law enforcement agencies and state and local governments.

Tough, but not impossible.

The concept of sovereign immunity harks back to the English principle that "the king can do no wrong." Related law is strong in Virginia. Except in rare cases, including those in which an inmate has been wrongly imprisoned, neither the Virginia Supreme Court nor the Virginia General Assembly has demonstrated much inclination to soften or circumvent the state's sovereign immunity protections against suits for civil liability.

"As a general matter, sovereign immunity bars legal actions against the Commonwealth of Virginia and its agencies, except when the General Assembly, by statute, has authorized such actions," said Tucker Martin, a spokesman for Virginia Attorney General Bob McDonnell, in an e-mail Wednesday.

Without proof of gross negligence, evidence that students' civil rights were violated or other exceptions that are challenging to prove, sovereign immunity seems likely to protect Virginia Tech and law enforcement officials from civil litigation filed in the wake of the April 16 on-campus shootings, which left 33 people dead, including the shooter. So said Ron Miller, a Maryland-based lawyer involved in civil litigation after the Columbine High School shootings of April 1999.

Bryson agreed, up to a point.

"Virginia's [sovereign immunity] law is very conservative, there's no doubt about that," he said. "The law does not make it easy for a plaintiff to prevail in these kinds of circumstances."

But Bryson also said Virginia's doctrine is unsettled in some areas of the law.

"I don't think Virginia Tech should count on being immune," he said.

Bryson said the circumstances at Virginia Tech sound strikingly similar to those at the Appalachian School of Law.

Like Odighizuwa, Seung-Hui Cho had documented mental health problems, teachers and students concerned about his behavior, a history of harassing female students and other similarities, he said.

Bryson said Thursday that Virginia Tech officials should have studied the law school killings, adding that Grundy is only about 125 miles from Blacksburg.

"I don't believe Virginia Tech learned from the atrocities that happened at the Appalachian School of Law, where another school had experienced the unthinkable," he said.

Virginia Tech's potential liability "is going to turn on what they knew [about Cho or the initial shootings Monday] and when they knew it," Bryson said.

In 2003, John Fishwick, a Roanoke lawyer, won a $350,000 settlement from the state for the family of an inmate killed at Wallens Ridge, a supermax prison.

Fishwick said Thursday that one avenue for a liability suit could be "a civil rights claim for violations for known constitutional rights." He added, "The standard for these claims is a high standard -- deliberate indifference."

Like Bryson, Fishwick said, "The focus in this case would be what the decisionmakers knew and when they knew it, and whether they knew they were violating the known rights of the victims when they made their various decisions."

Fishwick emphasized that it is premature to speculate about what, if any, liability Virginia Tech or law enforcement officials might have.

"I believe it is too early to evaluate the merits of any claims until a full investigation is complete and all the facts are known," he said. "Like everyone else in our area, I feel tremendous sorrow for the Virginia Tech community."

At this early stage of emotionally charged 20-20 hindsight, if grieving parents of victims cast around for a defendant to sue, they might net few viable candidates, Miller said.

Miller once represented a survivor of the 1999 shootings at Columbine High School who sued a pharmaceutical company that manufactured an antidepressant taken by one of the teenage killers. The plaintiff eventually dropped the suit.

Miller was not involved in civil litigation filed by families of Columbine victims against the parents of killers Dylan Klebold and Eric Harris, a case that ended with a settlement.

But he said Cho's parents will almost certainly be immune from civil action because their son, who was 23, was no longer a minor under their dominion. In the unlikely event it could be proved that they knew Cho posed imminent danger in the days around April 16, liability might be established, Miller said.

Cho apparently purchased his two handguns legally. In 2005, Congress passed a law banning civil lawsuits against gun manufacturers.

Opinions differ about whether mental health professionals who evaluated Cho at Carilion Saint Albans Behavioral Health or in other mental health settings would potentially be liable. In Thursday's issue of The Chronicle of Higher Education, Gregory Eells, director of counseling and psychological services at Cornell University, described legal and ethical challenges professionals face when evaluating students believed to be mentally ill.

"Hindsight is always 20-20," he said, and confidentiality restrictions and rights of students "are there to protect the sanctity of mental-health treatment."

As for sovereign immunity, Anthony said the doctrine might seem unfair at first blush, offering Goliaths protection from Davids. On the other hand, without the doctrine, governments could be hamstrung by liability lawsuits or fear of litigation, he said.

"There is no constitutional obligation, for example, for Botetourt County to have a fire department," Anthony said.

Miller said that if enough evidence emerges that Virginia Tech erred dramatically in its handling of Cho before and during Monday's events, the Virginia General Assembly might decide to grant an exception to sovereign immunity. Members might decide to make payments to victims' families, he said, if swayed by constituent pressure.

Observers near and far have said they believe Virginia Tech and law enforcement officials did the best they could April 16, given the circumstances, the size of the campus and legal protections for Cho. In coming months, an independent panel appointed by Gov. Tim Kaine will review how university and law enforcement officials handled the emergency.

Bryson said families can file lawsuits for complicated reasons.

If lawsuits target Virginia Tech, "it isn't going to be because of any get-rich plan," he said. "These families have truly been scarred for life."

Anthony said families sometimes sue as an attempt to find some measure of closure after a tragic loss.

"And there is almost always a willing plaintiff's attorney to take their case."