School crossing guard Wendy Behrend lights a candle at a memorial outside Marjory Stoneman Douglas High School during the one-year anniversary of the school shooting. Photo: Wilfredo Lee/AP.

A lawsuit from the parents of victims of the February 2018 Parkland school shooting has passed its first major hurdle in the Southern District of Florida, where U.S. District Judge William P. Dimitrouleas had harsh words for the government.

The suit will test the limits of the FBI's duty to follow up on tips.

The judge criticized the FBI for withholding relevant documents, remarking that discovery has taken "much longer than the court anticipated." He noted the FBI claimed a discovery order covering anything related to how the bureau valuates, assesses, handles or investigates leads was too broad, and would take "perhaps even years" to fulfill.

"The court finds the United States' contorted arguments regarding its exceedingly narrow and unfounded interpretations of the court's discovery orders to be frivolous," Dimitrouleas wrote.

Podhurst Orseck attorneys Kristina Infante, Steven C. Marks and Pablo Rojas represent Frederic and Jennifer Guttenberg, whose 14-year-old daughter Jaime Guttenberg was one of 17 people killed Feb. 14, 2018, when shooter Nikolas Cruz stormed into Marjory Stoneman Douglas High School.

'He's going to explode'

The Guttenbergs argue the FBI failed their daughter by not acting on two tips from people worried about Cruz's behavior.

"I know he's going to explode," one of Cruz's family friends reportedly told the FBI in January 2018, according to court filings. The caller had worried Cruz would "slip into a school and start shooting the place up" after he'd been kicked out of school and started collecting weapons, according to the Guttenberg's lawsuit.

Another tipster had called in late 2017 about a comment Cruz wrote on a YouTube channel about becoming a school shooter.

---

Related story: Parkland Shooter Recorded Himself Plotting School Massacre

---

The Guttenbergs filed suit under the Federal Tort Claims Act discretionary function exception, which waives the government's sovereign immunity in ordinary negligence cases.

Their negligence suit was the first of dozens filed over the callers' tips to law enforcement, and the first to reach the motion-to-dismiss stage. It's consolidated with a similar complaint from Philip and April Schentrup, whose daughter Carmen Schentrup was killed. Attorney Robert Stein of Rennert Vogel Mandler & Rodriguez represents that family.

The government asked the court to throw out the lawsuit. It argued the complaint fell under an exception that bars claims involving employee who act within their own discretion rather than adhering to a "fixed or readily ascertainable standard." It suggested bureau staff had used their own discretion to determine how to respond to the tips.

But Dimitrouleas declined to throw out the case, allowing attorneys to conduct discovery before the defense can raise that claim again.

Admission of negligence?

The plaintiffs have a unique argument in their toolbox. They point to a rare public statement the FBI released two days after the shooting, conceding that it hadn't followed up on tips.

"Under established protocols, the information provided by the caller should have been assessed as a potential threat to life," the FBI statement said. "The information then should have been forwarded to the FBI Miami Field Office, where appropriate investigative steps would have been taken."

That, the plaintiff claims, was an admission of negligence.

When compelling discovery earlier in the case, U.S. Magistrate Judge Lurana Snow had said the significance of that public admission—the first she'd seen from a federal agency in more than 30 years—"cannot be overstated."

"Having first issued a statement of remarkable apparent candor, the defendant has responded to the plaintiffs' reasonable discovery requests in a manner far less candid," Snow found.

Kristina Infante of Podhurst Orseck in Miami. Courtesy photo.

Carlos Javier Raurell of the U.S. Attorney's Office in Miami and Paul David Stern of the U.S. Department of Justice represent the government. Their offices did not respond to a request for comment by deadline.

The plaintiffs will now seek to find out who made the decision not to act on information about Cruz, and when and how that person reached the conclusion.

Meanwhile, plaintiffS counsel Infante said she was pleased with the ruling and looks forward to continuing with the litigation.

"Our clients suffered an unimaginable loss," Infante said. "Their hope is that our efforts in this litigation will prevent similar tragedies in the future."

The next hurdle for the plaintiffs: overcoming the government's claims that it owed no duty of care to the students under Florida law, which dictates—with exceptions—that defendants aren't responsible for the crimes of a third party.

 

Read the ruling:

Read more:

Florida 'Red Flag' Gun Law Used 3,500 Times Since Parkland

Florida Senate Panel Unanimously Backs Gun Control Measure