Kendrick Castillo’s parents sue STEM School Highlands Ranch over 2019 shooting in possible first test of Claire Davis Act

The parents of Kendrick Castillo, who was killed during the shooting at STEM School Highlands Ranch in 2019, are suing the school and Douglas County School District, in what is believed to be the first lawsuit to test the state’s Claire Davis School Safety Act.

John and Maria Castillo say they are hoping to use the act to uncover more information about possible warnings school officials received before the shooting almost three years ago and their response, alleging in the lawsuit that officials “breached their duty” to protect students and employees from an act that was “reasonably foreseeable.”

“We knew that there was a credible threat one week before the shooting,” John Castillo said. “It’s information like that, that normally wouldn’t be brought out and exposed if it wasn’t through the ability to go through depositions and pursue the truth (via the Claire Davis Act).”

Historically, it has been “basically impossible” to hold a school legally responsible for a shooting despite any kind of warning in advance of a possible attack because it would have to be proved that officials showed willful and wanton conduct. The Colorado Governmental Immunity Act also prohibits most lawsuits against public agencies for liability, according to education attorneys and mass shooting experts.

But the Claire Davis School Safety Act – which was passed following a fatal shooting at Arapahoe High School in 2013 — opened the door to such lawsuits in Colorado by allowing parents to sue if a school fails to provide “reasonable care” to protect all students and employees from the violence that is considered “reasonably foreseeable.”

Yet, few — if any — lawsuits have been filed under the act since it passed seven years ago — until the Castillos filed their suit last year.

None of the attorneys or experts who spoke to The Post were aware of another case besides the suit filed by the Castillo family. The state’s civil court records system doesn’t allow for keyword searches so a Denver Post reporter was also unable to find other lawsuits.

There have likely been few cases to make it as far as the Castillos lawsuit against STEM because while the law is clear that schools can be held liable when there is violence, such as murder, first-degree assault, or a sexual assault, it is murkier whether that is also the case in more common situations when another student injures a peer, resulting in say a broken bone, said Igor Raykin, an attorney not associated with the lawsuit, who specializes in education law.

Coloradans have faced more school shootings than most, but they are still rare.

Supporters of the law said it is a way for families to get information about school shootings without having to “beg for information.” School safety experts said such information can be used to improve how schools respond before a shooting ever occurs. But there are critics, too.

“The Claire Davis Act is an extraordinarily, sloppy, poorly written piece of legislation,” Raykin said, adding, “It is not entirely clear when there would actually be a liability in these kinds of cases and even what constitutes a crime of violence.”

When legislators passed the Claire Davis School Safety Act, schools opposed the law because they believed it would increase their insurance liability and wouldn’t prevent violence. Some lawmakers were also concerned about potential unintended consequences of the act, fearing it could stop schools from helping students with mental illnesses and that schools could expel more students in an effort to avoid liability.

These fears have come to fruition with schools suspending or expelling students who they believe pose any potential threat, even minor ones, Raykin said.

“Schools are using the Claire Davis Act as a weapon right now,” he said.

But the Castillos and their attorney, Dan Caplis, said the law is allowing them to glean information about the shooting at STEM — which marked its third anniversary on Saturday — that would otherwise be kept secret.

“Over time, the Claire Davis Act is going to do more to protect students and teachers than any law ever passed by the legislature,” Caplis said.  “The Claire Davis Act…gives survivors the power to investigate and to find the truth about whether a school failed to do what it should have done to protect the kids.”

“We want the truth”

Most school shootings feature some kind of warning in advance, including prior threats and communications that a shooter plans to carry out an attack. And in many cases, someone — students, school staff, family members — observed a sign but did not act on it, according to a 2019 study conducted by the U.S. Secret Service on school violence.

It’s the impetus behind the creation of Colorado’s anonymous reporting system Safe2Tell, which allows students and others to report concerns they have about their peers and has become a critical part of the state’s efforts to prevent another school shooting after the Columbine High School massacre more than two decades ago.

“(Gunmen) always talk about what they are going to do because they are consumed with this idea, this plan they have,” said Jaclyn Schildkraut, an associate professor of criminal justice at the State University of New York at Oswego, who studies mass shootings.

The Claire Davis School Safety Act was passed in 2015, two years after 17-year-old Claire Davis was killed by another student at Arapahoe High School.

After the shooting, Davis’ parents helped draft the law amid their own fight for information about the shooting. Their battle paved the way for a report on the shooting by the University of Colorado Center for the Study and Prevention of Violence and the University of Northern Colorado’s Department of Criminal Justice.

The report found that school administrators botched a threat assessment on the student who carried out the attack, as well as a culture of silence that strained the flow of information between school officials and law enforcement, and other failures to act on warning signs.

The Castillos allege in their lawsuit that STEM officials received multiple warnings about the risk of a possible shooting, such as when an unnamed person changed a mention of programs to prevent suicide and shootings on the schools Wikipedia page to include “Do they work? We shall see” in April 2019, according to the lawsuit.

The Castillos’ son, Kendrick, was killed after tackling one of the two shooters who entered STEM on May 7, 2019 and fired on their classmates. Eight other students were injured.

One of the gunmen has been sentenced to life without parole for killing Kendrick Castillo. The second shooter pleaded guilty, including to first-degree murder, and was sentenced to life in prison, plus 38 years with the possibility of parole.

Attorneys representing STEM and Douglas County School District declined to comment on pending litigation. A district spokeswoman also declined to comment.

The lawsuit alleges the school also failed to act on other warnings, including a call from an anonymous parent to Douglas County school officials where the parent told them she feared a “repeat of Columbine and Arapahoe (shootings).”  The school investigated the allegations but found no evidence to support them, reported CPR News.

“We want the truth and we want to be able to talk about it,” John Castillo said. “We want to be able to find out what things need to take place to make positive change in our schools all across our nation, not just here in Colorado.”

School officials also knew of one of the shooter’s disciplinary history and mental health struggles, which included self-harming and suicidal thoughts, according to the lawsuit.

The overlap between suicidal thoughts and mass shootings is complex. The decision to carry out a violent act, such as a mass shooting, can imply suicidal intentions, but it’s rarely the sole or primary factor, according to the Secret Service study.

Mental health experts have said that people with suicidal thoughts or mental illness are more likely to be the targets of violence than harm others and rhetoric that they are dangerous promotes stigma and can prevent people from seeking help.

Going to trial

Nationally, the results of lawsuits against schools and districts following a shooting have been mixed. A lawsuit filed by parents of two children killed in the 2012 shooting at Sandy Hook Elementary School was dismissed in 2018 after a judge said the district was protected by governmental immunity.

Last year, it was revealed the Broward County school district will pay the families of the 17 people killed and others injured or traumatized in the 2018 shooting at Marjory Stoneman Douglas High School in Parkland, Fla., a total of $25 million, according to The New York Times.

Such lawsuits can bring closure to survivors, but they should also result in lessons that all school officials can use to improve their responses to potential warnings of violence and school safety, said Susan Payne, a school safety and prevention expert who founded the Safe2Tell tipline.

Last year, STEM and Douglas County schools said in court filings that they would deposit $387,000 – the most they said the Castillos can receive under the act – into the court registry without admitting liability and asked Douglas County District Judge Jeffery Holmes to dismiss the case as moot.

But Holmes denied their request to dismiss the case, writing in a Sept. 28 order that under the Claire Davis School Safety Act, the Castillos have “a special entitlement to discovery in cases involving incidents of school violence” and that dismissing the case “could hamper the ability to obtain appropriate discovery.”

The Castillos suit against STEM and the district is set to go to trial in September.

“The Claire Davis Act said it’s not just about the governmental immunity lift or a finite amount of dollars, it’s also about the discovery of what happened,” Payne said. “People do want to seek to understand what happened and it could be very painful to not know.”

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