ANSWER:

While it may seem odd, there is probably no liability, under normal circumstances, for agents or the agency associated with this policy. 

When we consider liability, we must consider both federal constitutional liability and state law liability.  Under federal constitutional liability, the constitutional amendment used in claims regarding a law enforcement officer’s failure to protect a citizen is the Due Process Clause of the Fourteenth Amendment.  A plaintiff will try to argue that they were deprived of their rights, such as the right to be alive, without due process because a law enforcement officer failed to protect them from some private individual’s criminal act.  This claim seldom is successful due to the United States Supreme Court’s decision in DeShaney v. Winnebago Cty. Dept. of Soc. Services.ⁱ 

In DeShaney, the county department of social services left a young toddler in the custody of his abusive father, even though they new that the father was abusive.  Ultimately, the father beat the child so badly that he was rendered permanently, severely retarded.  Some relatives sued the department of social services for violating the toddler’s due process rights under the Fourteenth Amendment by not properly protecting him from harm from his father.  The Supreme Court held that, generally, the state does not have a duty to protect individuals from criminal acts of third parties.  The court also recognized that there are two exceptions to this general rule which are discussed below. 

The first exception to the general rule in Deshaney is the special relationship theory.  A special relationship normally arises when the state does some act that takes away a person’s ability to protect or care for themselves.  The court then gave the example of an inmate in jail as having a sufficient suitable special relationship.  Beyond the jail environment, it is hard to find a special relationship sufficient to create a state duty to protect someone from private violence.  For example, generally, most federal circuits hold that that compulsory school attendance still does not create a sufficient special relationship to hold a school liable for acts of violence committed on students.ⁱⁱ 

The second exception to the general rule in DeShaney is the state created danger theory.  In order to prevail on a Fourteenth Amendment due process claim for failure to protect under the state created danger theory, a plaintiff must satisfy  all of the following elements:  (1) the plaintiff must have been a member of limited and specifically definable group; (2) the state’s (defendant’s) conduct must specifically put members of that specific group at a substantial risk of serious, immediate and proximate harm; (3) the risk must be obvious or known; (4) the defendant must have acted in conscious disregard of that risk; and (5) the conduct, when viewed in the totality of the circumstances, must “shock the conscience.”ⁱⁱⁱ  This is a very difficult standard for plaintiff to meet, and in the case of the legal question presented, it is unlikely that a plaintiff would be able to meet all of the elements.  For example, it would be difficult to show a specific, definable group; general casino goers would not be sufficient and would be like the public at large.  Additionally, it would be difficult to show that there was a known risk; a general risk from an unknown criminal does not meet the standard. Finally, “conscious shocking” disregard of the risk is a very high standard and is more than “negligence.”  In fact, in Schmidt, et al. v. HTG, Inc., the Supreme Court of Kansas ruled that facts much more egregious than those posed by the legal question presented did not meet the standard under the state created danger theory.

In Schmidt, the state of Kansas paroled Donald Ray Gideon, who had, ten years prior, been convicted of aggravated rape and sodomy of a young college woman.  Gideon ultimately was employed by HTG, a restaurant, and he worked around numerous young women.  His parole officer, despite an unwritten department practice of warning co-workers of dangerous offenders, failed to notify the manager of HTG.  His rationale was that Gideon would probably be fired and society is best served by having parolees gainfully employed.  One night, several employees went out for a co-worker’s (Stephanie Schmidt) birthday.  When Schmidt got sick, Gideon offered to drive her home.  This was the last time [she] was seen alive. 

Stephanie’s parents sued HTG and the state.  Regarding the suit against the state, one of the allegations was a violation of Stephanie’s Fourteenth Amendment Due Process rights.  It is interesting to note that the Schmidt’s and the court both agreed that the special relationship doctrine, the first theory of liability, did not apply in this case.  Instead, the plaintiff proceeded under the state created danger theory.  The rationale was that the state released an inmate with a propensity to injure young women and allowed him to work with young women without providing warning.  However, the court found that, in light of the facts of this case, while the state and parole officer may have been negligent, mere negligence does not rise to the “conscious shocking” behavior required to sustain a due process violation.  Further, the court stated that, while it is easy to surmise that a convicted, violent sex offender would pose a general threat to a female co-worker, there was nothing to show specifically that the parole officer knew of a specific threat to Stephanie.  It would seem to follow with the legal question presented that, while it is known that an unarmed police officer would not be able to protect citizens in a casino if a violent crime took place, the likelihood of being able to pinpoint some known danger to a specific individual would be difficult. 

Thus, it follows that, if an officer chose to not carry a weapon, which is permitted by policy, and some unknown offender in the crowd committed a violent crime, it is very unlikely that the officer or state would face federal constitutional liability for the reasons discussed above. 

We will now examine possible Kansas state law theories of liability that the plaintiffs alleged.  First, the plaintiff alleged that, in Kansas, there was a duty to protect or warn Stephanie, or at least warn her employer, from the danger posed by Gideon.  The court first noted that, generally, unless there is a special relationship between the injured party and the state, there is no liability for failure to control the conduct of a third party in order to prevent harm to others.^iv  The court also looked at a treatise on tort liability, the Restatement (Second) of Torts, and noted that “there is no duty to control the conduct of a third person so as to prevent him physical harm to another unless (1) a special relationship exists between the actor [the parole officer] and the third party [the offender] which imposes a duty upon the actor [the parole officer] to control the third parties [the offenders] conduct or (2) a special relationship exist between the actor [the parole officer] and the other [the victim] which gives to the other [the victim] the right of protection.”^v  In the Schmidt case, the court held that the parole officer owed no duty to warn Stephanie of the dangerous propensities absent an express threat.  Thus, in the question presented, if there was not special relationship between a casino guest or employee and a casino law enforcement agent, then there would be no state liability under this theory.  However, hypothetically, consider the following:  A casino employee receives a specific threat of violence from a specific person; an agent is assigned to a protection detail for that employee; the agent chooses not to carry a weapon; the employee is subsequently harmed at the casino by the suspect; and the agent was unable to protect the employee because he did not have a weapon. In this hypothetical, the agent might be found to have had a special relationship with that employee and may have some liability, unless protected by the statute discussed below. 

Lastly, the plaintiffs alleged that the parole officer had a duty to warn Gideon’s employer of his status under an unwritten parole policy of warning employers of propensities of a parolee.  They allege the parole officer violated this duty by failing to follow that unwritten policy.  The court noted that there was no duty to warn Stephanie under Kansas law.  However, the court also noted a state immunity statute under the Kansas Tort Claims Act.  K.S.A. 75-6104 provides, in pertinent part, the following:

A government entity or an employee acting within the scope of the employees employment shall not be liable for damages resulting from:

(item c) enforcement of or failure to enforce a law, whether valid or invalid, including by not limited to, any statute, rule and regulation, ordinance or resolution;

(item d) adoption or enforcement of, or failure to adopt or enforce, any written personnel policy which protects persons’ health or safety unless a duty or care, independent of such policy, is owed to the specific individual injured, except that the finder of fact may consider the failure to comply with any written personnel policy in determining the question of negligence;

(item e) any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee, whether or not the discretion is abused and regardless of the level of discretion involved;

(item n) failure to provide, or the method of providing, police or fire protection;^vi

In the Schmidt case, the court found that the failure to disclose information about Gideon to his and Stephanie’s employer was within the discretionary function immunity in subsection (e) above.  It would seem follow that the subsections listed above would provide immunity from liability in regard to the legal question presented.

Thus, it appears that liability of a casino agent for choosing to not carry a weapon or conversely, choosing to carry a weapon, under state law is very unlikely. 

The last issue to examine deals with a section of the legal question presented that referred potential liability if an agent chooses to carry a weapon and ultimately shoots and injures or kills a suspect.  Would the agent be liable to the suspect because he could have chosen not to carry a gun, and thus, would have been unable to shoot the suspect?  This answer is simple and short.  No.  When an officer chooses to use any level of force, the only relevant question regarding an excessive force case is whether the force used was objectively reasonable.^vii  In Graham, the Supreme Court considered three issues in making a determination of whether an officer’s use of force was objectively reasonable.  The three issues were (1) the severity of the crime at issue, (2) whether the suspect is a threat to the officer or others, and (3) whether the suspect is actively resisting or attempting to evade arrest by flight.^viii  Further, the Seventh Circuit Court of Appeals, in Plakas v. Drinski, stated

The Fourth Amendment does not require officers to use the least intrusive or even less intrusive alternatives in search and seizure cases.  The only test is whether what police officers actually did was reasonable.^ix

Thus, even if an officer could have possibly used some level of force less than deadly force, as long as the deadly force was objectively reasonable in a specific case, it will not be an unreasonable seizure under the Fourth Amendment.  The lead United States Supreme Court cases on the topic of use of force are Graham v. Connor^x, Tennessee v. Garner^xi, and, most recently, Scott v. Harris.^xii 

In conclusion, it would appear that an officer or agent would unlikely face any liability for his or her choice regarding an open-ended policy on weapons carry, unless faced with a very specific and hard to imagine set of facts.

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