C. Claim Three42 U.S.C. § 1983 Deprivation of right to life, liberty, and personal security against Sheriffs Beckham and Stone, in their official capacities, and the Jefferson County Sheriff's Department, based on inadequate policies, practices, and training

Claim Three asserts that the Jefferson County Sheriff's Department, former Sheriff Ronald Beckham, in his official capacity, and Sheriff John Stone, in his official capacity violated Plaintiffs' substantive due process rights by failing to implement adequate policies or adequately train the Sheriff's deputies so as not to violate Plaintiffs' constitutional rights. See C/O ¶ 137-38.

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In Monell v. New York City Dept. of Social Servs., 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978), the Supreme Court held that:

a local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or *1161 acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.

Id. at 695, 98 S. Ct. 2018. Liability does not attach to the governmental entity pursuant to § 1983 for the acts of its employees unless the Plaintiff can show: 1) that a municipal employee committed a constitutional violation; and 2) a municipal policy or custom was the moving force behind the constitutional deprivation. Myers v. Oklahoma County Bd. of County Comm'rs, 151 F.3d 1313, 1317 (10th Cir.1998). The policy need not be formal or written. Id. at 691, 98 S. Ct. 2018. See also Adickes v. S.H. Kress & Co., 398 U.S. 144, 167-68, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970).

 
1. Constitutional Violation

Plaintiffs have not made the requisite predicate showing of an underlying constitutional violation as to Claim Two against the Sheriff Defendants. See section (V) (B), supra. Therefore, Plaintiffs cannot meet this element. Assuming, however, a constitutional violation, I assess the second element also.

 
2. Policies, Procedures, Custom, or Training as Moving Force

A governmental entity or its policy makers may be liable pursuant to § 1983 if there is a failure to adequately train employees and that failure is the cause or the "moving force" behind the underlying constitutional deprivation. See City of Canton v. Harris, 489 U.S. 378, 388, 109 S. Ct. 1197, 103 L. Ed. 2d 412 (1989); Myers, 151 F.3d at 1317. A governmental entity "`is only liable when it can be fairly said that the city itself is the wrongdoer.'" Collins, 503 U.S. at 122, 112 S. Ct. 1061.

Myers illustrated this concept in the context of allegations of the use of excessive force by police officers in responding to a domestic violence incident. The Myers Court held:

the plaintiffs' failure to train claims, like their basic excessive force claim against the individual officers, requires a predicate showing that the officers did in fact use excessive force....

Myers, 151 F.3d at 1317. See also Trigalet v. City of Tulsa, 239 F.3d 1150, 1156 (10th Cir.), cert. denied, ___ U.S. ___, 122 S. Ct. 40, 151 L. Ed. 2d 13 (2001). It is only when the "execution of a government's policy or custom ... inflicts the injury" that the governmental entity or its policy makers may be held liable under § 1983. Monell, 436 U.S. at 694, 98 S. Ct. 2018.

Here, Harris and Klebold were the "moving force" behind Plaintiffs' injuries. Plaintiffs' allegations that their injuries could have been avoided if there were different policies in place or adequate training do not state a viable claim.

 
D. Claim Eleven Violation of Colorado Constitution, Art. II, Secs. 6, 25, against Sheriff Defendants, except Jefferson County Sheriff's Department, in their individual capacities

Claim Eleven is based on Article II, Sections 6 and 25 of the Colorado State Constitution. Article II, Section 6 states:

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Courts of justice shall be open to every person, and a speedy remedy afforded for every injury to person, property or character; and right and justice should be administered with sale, denial or delay.

Id. Section 25 provides that "[n]o person shall be deprived of life, liberty or property, without due process of law." Id. at § 25.

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There is, however, no implied cause of action arising directly from the Colorado Constitution. See Brammer-Hoelter v. Twin Peaks Charter Academy, *1162 81 F. Supp. 2d 1090, 1097 (D.Colo.2000); Vanderhurst v. Colorado Mountain College Dist., 16 F. Supp. 2d 1297, 1304 (D.Colo.1998). No statutory equivalent to 42 U.S.C. § 1983 exists under Colorado state law to enforce the state constitution. Id. Moreover, Colorado appellate courts have not recognized an implied cause of action to enforce the provisions of the Colorado Constitution. In Board of County Comm'rs of Douglas County v. Sundheim, 926 P.2d 545, 553 (Colo.1996), the Colorado Supreme Court addressed whether it has "the authority to recognize an implied damages action in cases where citizens allege that government entities have violated their state constitutional rights." Id. at 547. The Court concluded no such implied cause of action to enforce the Colorado Constitution should be recognized because "[w]hile it may be appropriate to recognize an implied state constitutional cause of action when there is no other adequate remedy ... where other adequate remedies exist, no implied remedy is necessary." Id. at 553.

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As a matter of law, adequate remedies are available to Plaintiffs pursuant to their § 1983 claim and willful and wanton conduct claim. I decline to recognize an implied state constitutional cause of action for violation of Article II, Sections 6 and 25 of the Colorado State Constitution. The Sheriff Defendants are entitled to dismissal of Claim Eleven.

VI.

 Qualified Immunity Analysis Claim Two

I have concluded that Plaintiffs have not stated a claim for a constitutional violation in Claim Two. Qualified immunity provides an additional basis for dismissal of this claim.

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The question is whether the constitutional rights allegedly violated were clearly established as of April 20, 1999 so that reasonable police officers in the Sheriff Defendants' position would have understood that their actions were in violation of those rights. See Siegert, 500 US. at 232, 111 S. Ct. 1789; Tonkovich v. Kansas Bd. of Regents, 159 F.3d 504, 516 (10th Cir. 1998).

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In determining whether the law involved was clearly established, I examine the law as it was at the time of Defendants' actions. Hilliard v. City and County of Denver, 930 F.2d 1516, 1518 (10th Cir.), cert. denied, 502 U.S. 1013, 112 S. Ct. 656, 116 L. Ed. 2d 748 (1991). "[T]he plaintiff need not show that the specific action at issue has previously been held unlawful," he need only show that the alleged unlawfulness was apparent in light of preexisting law. Id. Ordinarily, for the law to be clearly established, there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other circuit courts must have found the law to be as a plaintiff maintains. See Medina, 960 F.2d at 1498; Morfin v. Albuquerque Public Schools, 906 F.2d 1434 (10th Cir.1990).

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It is a plaintiff's burden to convince the court that the law was clearly established. In doing so, a plaintiff cannot simply identify a clearly established right in the abstract and allege that a defendant has violated it. Instead, a plaintiff must make a particularized showing that the "contours" of the right are sufficiently clear that a reasonable state actor would understand that what he is doing violates that right. See Patrick v. Miller, 953 F.2d 1240, 1243 (10th Cir.1992) citing Anderson, 483 U.S. at 640, 107 S. Ct. 3034. Although a "precise factual correlation between the then-existing law and the case at-hand is not required," Patrick, 953 F.2d at 1249, the alleged unlawfulness must be "apparent" in light of preexisting law. Anderson, 483 U.S. at 640, 107 S. Ct. 3034. If a *1163 plaintiff is unable to demonstrate that the law allegedly violated was clearly established, the plaintiff is not allowed to proceed with the suit. Hilliard, 930 F.2d at 1518. Hence, I look to whether it was clearly established in April 1999 within a sufficiently analogous factual setting that the particular alleged conduct of the Sheriff Defendants was grounds for a § 1983 violation based on the allegations in Claim Two.

 
A. Claim Two § 1983Deprivation of Substantive Due Process Rights Failure to InvestigateSpecial Relationship and Danger Creation Qualified Immunity Defense

Pursuant to the allegations in Claim Two, Plaintiffs must make a particularized showing that the "contours" of the special relationship and danger-creation jurisprudence in the context of police investigations were clearly established on April 20, 1999.

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In Armijo, 159 F.3d 1253, the Tenth Circuit confirmed that the "danger-creation" doctrine was clearly established by 1998 at the latest. See also Sutton, 173 F.3d at 1241 (supervisor's individual liability for failure to train and/or failure to implement policy to prevent sexual assaults on severely disabled student was clearly established under danger-creation doctrine; "therefore, the contours of the right ... were clearly established ... and the defense of qualified immunity fails.").

In 1990, the Seventh Circuit held that when a citizen is in danger of dying the police have a duty to not cut off all avenues of lifesaving rescue without providing an alternative. See Ross v. United States, 910 F.2d 1422, 1432-33 (7th Cir.1990) (deputy sheriff committed a constitutional tort by ordering qualified bystanders not to rescue a drowning boy while not providing an alternative). Moreover, in Kneipp v. Tedder, 95 F.3d, 1199 (3rd Cir.1996), a case in which police officers cut off private sources of aid to an intoxicated woman who suffered grievous injuries, the Third Circuit found that the plaintiff raised a "triable issue of fact as to whether the police officers affirmatively placed [Ms. Kneipp] in a position of danger." Id.at 1211. I conclude that as of April 20, 1999, the "danger-creation" theory was clearly established in the Tenth Circuit.

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Uhlrig and Armijo addressed the contours of the special relationship doctrine before April 1999. However, these cases do not deal with the adequacy of police investigations. Indeed, the overwhelming majority of the cases addressing the "special relationship" and "danger-creation" doctrines concern police responses to drastic and dramatic emergency situations. Research fails to reveal case authority involving the adequacy of a police investigation in the context of this § 1983 claim.

Although a "precise factual correlation between the then-existing law and the case at-hand is not required," see Patrick,953 F.2d at 1249, under the circumstances here, I cannot say that the Sheriff Defendants would have understood that their conduct was in violation of the United States Constitution. Consequently, the Sheriff Defendants are afforded qualified immunity on Claim Two.

 
VII.

Claims against School Defendants

 
A. Claim Four Willful and Wanton Conduct against Individual School Defendants, in their individual capacities, except the Jefferson County School District R-1

The School Defendants move to dismiss Claim Four on the grounds that this claim: 1) is barred by the Colorado Governmental Immunity Act, Colo.Rev.Stat. § 24-10-118; *1164 and 2) fails to state a claim upon which relief may be granted because Colorado's common law imposes no duty to protect others from harm by third parties and for lack of causation. For the following reasons, I grant the motion.

1. Colorado Governmental Immunity Act

As discussed in section (V) (A) (1), supra, the phrase "willful and wanton" is not defined in the CGIA. The definition of this term gleaned there from Colorado case law applies here.

There is no dispute that individual School Defendants were "public employees." They had access to disturbing information about Harris and Klebold and their plans, through their videotapes, writings, and statements. With limited exceptions, the Complaint contains no specific allegations that the School Defendants shared their individual knowledge among themselves. It is alleged that the School Defendants knew of the Web site contents well before April 20, 1999. C/O ¶ 167. In deciding this question, I assess each School Defendant in light of the information each possessed.

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a. Defendant Talocco

Defendant Talocco, who taught a video production class, viewed videotapes created by Harris and Klebold containing the following information:

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• a video filmed inside of the school showing Harris and Klebold shooting people using fake guns. C/O ¶ 152;

• a video presented in class showing Harris and Klebold carrying large weapons, presumably fake, down the school hallways. Id. at ¶ 153;

• a computer graphic presented in class showing Columbine High School blowing up. Id. at ¶ 154; and

• a video Mr. Talocco saw in the video lab in which Harris and Klebold were firing real guns somewhere in the mountains Id. at 155-56.

In addition, in one or more of the videos and in Mr. Talocco's class, Harris and Klebold spoke of killing, of their ownership of guns and of their bombmaking ability. C/O ¶ 157. Mr. Talocco also knew about Harris' Web site. C/O ¶ 167.

Defendant Talocco was privy to information that demonstrated Harris' and Klebold's long time obsession with violent themes and ideas. Over time, this information included previews of Harris' and Klebold's plans for April 20, 1999, their desire to harm Columbine students, and tangible evidence of their present ability to do so. Plaintiffs plead facts that suggest Defendant Talocco's conduct was at least negligent and likely reckless. Plaintiffs fail to allege, however, sufficient specific factual allegations to raise a reasonable inference that Mr. Talocco purposefully pursued a course of action or inaction that he considered would probably result in the harm that befell Plaintiffs. Although a close question, I conclude that Mr. Talocco's conduct was not willful and wanton.

 
b. Defendant Kelly

It is alleged that Dylan Klebold submitted his short story, see Exhibit B, to Defendant Kelly. Ms. Kelly was sufficiently alarmed that she shared it with Defendant Butts, a school counselor, C/O ¶ 151, and contacted Klebold's parents to share her concerns. This limited conduct cannot be deemed willful and wanton. In addition, it is alleged that Ms. Kelly knew of the Web site contents, C/O ¶ 167, and was privy to unspecified writings of Harris and Klebold. See C/O ¶ 160. Based on the vague and rambling nature of the Web site contents and the lack of information concerning the additional writings, I conclude Ms. Kelly's conduct was not willful and wanton.

*1165 c. Defendant Butts

Based on Plaintiffs' allegations, Mr. Butts knew of Klebold's story submitted in Ms. Kelly's class. C/O ¶ 151. He also knew of the Web site contents and "of Klebold's other activities." Id. Pursuant to these allegations, I must presume that Mr. Butts knew of the information possessed by Defendants Talocco, Johnson, Horvath, and Johnson. Thus, like Deputy Gardner, it is alleged generally that Defendant Butts possessed all the information known to the Sheriff Defendants and the School Defendants.

Unlike Defendant Gardner, Mr. Butts took some action based on the information he possessed. After Ms. Kelly brought the story to him, the two met, discussed Klebold's story, and decided that Ms. Kelly would contact Klebold's parents. Under these circumstances, although a close question, I conclude that Mr. Butts' conduct, as alleged, cannot be deemed willful and wanton.

 
d. Defendant Johnson

Defendant Johnson taught a Psychology class in which Harris and Klebold turned in writings revealing their malevolent feelings and plans. See C/O ¶ 163. There are no allegations concerning the specific nature or content or these materials. In addition, it is alleged he knew of the Web site, see C/O ¶ 167, which, although violent in content, was vague and rambling. Plaintiffs do not plead facts adequate to infer willful and wanton conduct on Defendant Johnson's part. See Barham, 928 P.2d at 1385.

e. Defendant Horvath

Defendant Horvath, the disciplinary assistant principal, allegedly knew of the Web site contents. C/O ¶ 167. He also had contact with Harris and Klebold, knew they were on probation for the van break in, and thought Harris "was on the edge of losing control." C/O ¶ 149. As a school official, Plaintiff's general allegation that "Columbine High School officials knew about Harris and Klebold talking about blowing up the school," see id. at ¶ 166, is applicable to him. It is not alleged that Mr. Horvath was privy to any of the information known by the other School Defendants.

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As discussed, the Web site writings were vague, rambling rants directed at no particular group or person including Columbine or its students. I evaluate together, however, the Web site information, Mr. Horvath's alleged knowledge that Harris and Klebold had talked about "blowing up the school," and his observation that Harris "was on the edge of losing control." It is not alleged that Mr. Horvath knew about the videos, writings, and other statements. I cannot conclude that Defendant Horvath purposefully pursued a course of action or inaction that he considered would probably result in the harm to Plaintiffs. See Moody, 885 P.2d 200; Pettingell, 129 at 491, 271 P.2d at 1042.

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f. Defendants DeAngelis and Cornell

Plaintiffs allege that Defendants DeAngelis and Cornell knew of the Web site well before April 20, 1999. C/O ¶ 167. As school officials, Plaintiffs' general allegation that "Columbine High School officials knew about Harris and Klebold talking about blowing up the school," see id. at ¶ 166, is applicable to these Defendants. The Complaint does not allege that Defendant DeAngelis or Defendant Cornell knew Harris and Klebold or had knowledge of the videotapes, writings, or discussions at issue here. Their knowledge of the Web site contents does not support the inference that their alleged failure to act was willful and wanton. Nor does the additional allegation concerning Harris and Klebold talking about blowing up the *1166 school add sufficient information to meet the willful and wanton standard.

 
g. Defendant Tonelli

Defendant Tonelli, Harris' and Klebold's Government and Economics teacher, viewed a video they presented in class depicting themselves as "hit men" hired by "geeks" to avenge abuse by "jocks." C/O ¶ 164. In this video, filmed on school premises, Harris and Klebold enacted shooting "jocks," spoke of killing, and used a computer graphics scene of blowing up the school. Id. In addition, Mr. Tonelli knew of the Web site well before April 20, 1999. Id. at ¶ 167.

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This violent video demonstrated Harris' and Klebold's interest in killing others, specifically Columbine students, with guns and explosives. In addition, Mr. Tonelli knew that Harris and Klebold had been obsessed with killing and weapons for some time. However, he saw only this one video and did not know of the writings and other videos. Although it is a close a question, I conclude that Mr. Tonelli's alleged failure to intervene was not willful and wanton.

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In later addressing Claim Four against Defendants Butts, Horvath, Talocco, and Tonelli, I conclude that Plaintiffs have alleged conduct on their part that was reckless in conscious disregard of risk to Plaintiffs. That conclusion arguably negates their entitlement to immunity under the CGIA. I will assume it does. See infra, section (VII) (B) (2) (d). Consequently, for purposes of further analysis I conclude Plaintiffs' Claim Four is barred by the Colorado Governmental Immunity Act as to all School Defendants with the exception of Defendants Butts, Horvath, Talocco, and Tonelli.

2. Fed.R.Civ.P. 12(b) (6)

In the alternative, the School Defendants move, pursuant to Rule 12(b) (6), to dismiss Claim Four on the grounds that Colorado's common law imposes no duty on them and for lack of causation.

a. duty

As I have discussed, Colorado's common law, like the Fourteenth Amendment, imposes no duty to protect others from harm by third parties even if such action is necessary to protect the person from injury. See Solano, 985 P.2d at 54. This general rule may be overcome only in certain circumstances, such as a special relationship between the parties, and after consideration of the factors set out in Solano: 1) foreseeability of harm; 2) social utility of the actor's conduct; 3) the magnitude of the burden of guarding against injury or harm; and 4) the practical consequences of imposing a duty. Id.

 
i. existence of a special relationship between the parties

A common law special relationship may be based upon the relationship between the defendant and the wrongdoer, or between the defendant and the victim. Whether a special relationship exists between a defendant and the wrongdoer depends upon the degree of control that the defendant has over the person. Davenport, 962 P.2d at 968; Perreira, 768 P.2d at 1215-16. In Colorado, a jailer does not exercise sufficient dominion over an inmate to create a special relationship where the inmate spends a substantial amount of time off the premises without direct supervision. Davenport, 962 P.2d at 968. As a result, there is no basis for asserting that the School Defendants had a special relationship with Harris and Klebold who spent substantial time off school premises without direct supervision.

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Whether a common law special relationship exists between the School Defendants and the victim parallels the Due Process *1167 Clause's special relationship inquiry. Cf. DeShaney, 489 U.S. at 199-200, 109 S. Ct. 998 (special relationship arises when the state deprives a person of his liberty to such an extent that he is unable to care for himself) with Restatement (Second) of Torts, § 320 (1965) (special relationship may arise when a person "takes the custody of another under circumstances such as to deprive the other of his normal power of self-protection or to subject him to association with persons likely to harm him.")

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The Complaint contains no allegations that the School Defendants took control of or had custody of the victims. Rather, the Complaint treats the in loco parentis doctrine as a synonym for a "special relationship," a position never taken in any of Colorado's four education cases to use the phrase. See Trinidad Sch. Dist. No. 1 v. Lopez, 963 P.2d 1095, 1114 (Colo.1998); University of Colorado v. Derdeyn, 863 P.2d 929, 938 (Colo.1993); University of Denver v. Whitlock, 744 P.2d 54, 59 (Colo. 1987); Cline v. Knight, 111 Colo. 8, 137 P.2d 680 (1943). Based on these authorities and the analysis in section (V) (A) (2) (iii), supra,there is no legal support for the Plaintiffs' position that the School Defendants were in loco parentis with Richard Castaldo. Thus, I conclude that there was no special relationship among the School Defendants, the Plaintiffs, or Harris and Klebold. However, I assume arguendo a special relationship among the parties and examine the Solano factors to determine the existence of a duty.

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ii. Solano Factors

a. Foreseeability

Specific individual School Defendants had access to disturbing information about Harris and Klebold and their plans, through their videotapes, writings, and statements, all of which have been discussed. Again, with limited exception, the Complaint contains no specific allegations that the School Defendants shared their individual knowledge among themselves. According to the Complaint, as alleged in the alternative, the Sheriff Defendants informed the School Defendants of the Web site contents. C/O ¶ 167. Accordingly, in assessing foreseeability, I look separately to each School Defendant in light of the information they possessed.

 
1. Defendant Talocco

Defendant Talocco, who taught a video production class, viewed videotapes containing the following information:

• Harris and Klebold shooting people using fake guns and filmed in the school. C/O ¶ 152;

• scenes of Harris and Klebold carrying large weapons, presumably fake, down the school hallways. Id. at ¶ 153;

• a computer graphic showing Columbine High School blowing up. Id. at ¶ 154; and

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• Harris and Klebold firing real guns.

Id. at 156. In addition, in one or more of the videos and in Mr. Talocco's class, Harris and Klebold spoke of killing, of their ownership of guns and of their bombmaking ability. C/O ¶ 157. Mr. Talocco also knew of Harris' Web site writings. Id. at ¶ 167.

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Foreseeability includes factoring in "the setting of modern life" and "common sense perceptions of the risks" a "reasonably thoughtful person would take account of in guiding practical conduct." See Solano, 985 P.2d at 54, citing Taco Bell, 744 P.2d at 48. Defendant Talocco was privy to previews of Harris' and Klebold's plans for April 20, 1999. Their intent to harm Columbine students, as well as tangible evidence of their ability to do so, was discernible from the information known to Mr. Talocco. Moreover, Mr. Talocco knew that such violent themes had been part of *1168 Harris' and to some extent Klebold's life for some time. I conclude, therefore, that this factor weighs in favor of imposing a duty on Mr. Talocco.

2. Defendant Kelly

It is alleged that Dylan Klebold submitted his short story, see Exhibit B, to Defendant Kelly who shared it with Defendant Butts, a school counselor. C/O ¶ 151. Ms. Kelly was privy to other unspecified writings of both Harris and Klebold. See C/O ¶ 160. Since there is no specific allegations about other writings, I am unable to assess their impact on this question. In addition, it is alleged Ms. Kelly knew of the Web site information. As stated before, Klebold's story, without more is insufficient to find that the events of April 20, 1999 were foreseeable to Ms. Kelly. There is nothing contained in the Web site writings that would have linked the story to Columbine. This additional information did not make the Columbine attack foreseeable to Ms. Kelly.

 
3. Defendant Butts

Mr. Butts knew of Harris' Web site, C/O ¶ 167, Klebold's writing submitted in Ms. Kelly's class, C/O ¶ 151, and "Klebold's other [school] activities." See id. Thus, he is generally alleged to have known all the information possessed by the other School Defendants. Defendant Talocco was privy to previews of Harris' and Klebold's plans for April 20, 1999, their intent to harm Columbine students, as well as tangible evidence of their ability to do so. Moreover, he knew that violent thinking had been part of Harris' and to some extent Klebold's life for some time. I conclude, therefore, that this factor weighs in favor of imposing a duty on Mr. Butts.

 
4. Defendant Johnson

Defendant Johnson taught a Psychology class in which Harris and Klebold turned in writings revealing their malevolent feelings and plans. See C/O ¶ 163. He also knew of the Web site contents. Without more, this is insufficient for foreseeability as to Mr. Johnson.

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5. Defendant Horvath

Defendant Horvath, the disciplinary assistant principal, had contact with Harris and Klebold, knew they were on probation for the van break in, and thought Harris "was on the edge of losing control." C/O ¶ 149. He also knew of the Web site contents. It is alleged he knew for more than a year before the attack that Harris and Klebold talked about blowing up the school. C/O ¶ 166. It is not alleged, however, that he had any knowledge of the videos, writings, and other statements at issue here. Harris' and Klebold's talk about blowing up Columbine focused the general nature of the Web site information. Defendant Horvath had personal contact with Harris and Klebold and thought Harris was close to losing control. Under these allegations, I conclude this factor weighs in favor of imposing a duty on Mr. Horvath.

 
6. Defendants DeAngelis and Cornell

Defendants DeAngelis and Cornell allegedly knew of the Web site information. C/O ¶ 167. Plaintiffs also allege they knew for more than a year before the attack that Harris and Klebold talked about blowing up the school. C/O ¶ 166. The Complaint does not allege that Defendant DeAngelis or Defendant Cornell knew Harris and Klebold or had specific knowledge of the videotapes, writings, or discussions at issue here. Therefore, I conclude there was no foreseeability as to these Defendants.

7. Defendant Tonelli

As set out above, Defendant Tonelli had knowledge of the Web site. C/O *1169 ¶ 167. In addition, he viewed one particularly explicit, graphic, video in which Harris and Klebold portrayed themselves shooting "jocks," spoke of killing, and used a computer graphics scene of blowing up the school. See C/O ¶ 64. Although Mr. Tonelli had less information than Mr. Talocco, based on the extent and nature of the content of this video, I conclude there was sufficient information to render the assailants' conduct foreseeable.

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In summary, based on the information known to the individual School Defendants, the foreseeability factor weighs against imposing a duty on these Defendants, with the exception of Defendants Butts, Horvath, Talocco and Tonelli.

b. Social Utility

In their Response, Plaintiffs focus on the alleged misconduct of the School Defendants. Again, the proper inquiry is the social utility of the Jefferson County School District as a whole. See Davenport, 962 P.2d at 968-69.

The social utility of the School District and its employees is, without question, high. This factor weighs against imposition of a duty.

c. magnitude of the burden of guarding against injury or harm

Citing Perreira, 768 P.2d 1198, the School Defendants posit their burden in terms of the unfairness of expecting them to "detect within their students a latent capacity for violence" akin to the psychiatrist in Perreira.

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The expectation of predicting violent behavior in certain circumstances was converted to a legal duty for practicing psychiatrists just over a decade ago. See id. Psychiatrists, of course, are in a therapeutic relationship with their patients, possessing the training and authority to conduct specifically targeted assessments to determine a patient's capacity for violence including the power to place a patient in protective custody. See Colo.Rev.Stat. § 27-10-10. In addition, these mental health professionals are immunized from civil liability for failing to predict violent behavior unless the patient communicates a serious threat of imminent physical violence against a specific person or persons. See id. at § 117.

Colorado case law does not require lay citizens to predict the future violent behavior of others. See Solano, 985 P.2d at 54-55; Leake, 720 P.2d 152. For example, in Molosz v. Hohertz, 957 P.2d 1049 (Colo. App.1998), tenants sued their landlords after a neighboring tenant, the landlords' son who had a criminal record and had engaged in two prior acts of violence, fired shots through their wall. The Colorado Court of Appeals held:

unlike the psychiatrist in Perreira, defendants could not reasonably predict when the tenant might be violent, nor did they have the power to place or keep him in a lock-up situation to prevent harm to others.

Molosz, 957 P.2d at 1051. Not surprisingly, lay citizens, including educators, are not provided such immunization from liability because they have no specialized education or training in assessing or predicting violent tendencies in others.

Educators, untrained and inexperienced in observing, diagnosing, and treating mental health issues are not held to the same standard as trained mental health professionals. See § 13-21-117. However, under Taco Bell and Lannon, the School Defendants, were expected to use common sense and ordinary judgment in assessing the knowledge they possessed about Harris' and Klebold's school activities.

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In assessing this factor, I rely on the allegations set out in section (VII) (A) (2) (a) (ii) (a), supra, assessing foreseeability. *1170 Based on the information known to the individual School Defendants, this factor weighs against imposing a duty against the School Defendants, with the exception of Defendants Butts, Horvath, Talocco and Tonelli.

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d. Practical Consequences of Placing a Duty

Defendants argue that absent the threat of legal liability, the Columbine educators had no motivation to seek out, anticipate, and prevent the attack upon Columbine High School. This argument ignores that the educators themselves were targets. They had every reason to seek out and prevent the attack. Plaintiffs respond simply by stating that this argument is "contrary to fundamental concepts of tort law." Neither argument is persuasive. Thus, this factor is in equipoise.

Assuming a requisite special relationship, application of the relevant Solano factors to Plaintiffs' allegations yield no duty upon these Defendants sufficient to state a cognizable claim. This is a close question, however, as to Defendants Butts, Horvath, Talocco, and Tonelli.

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b. Causation

Assuming a duty, the School Defendants argue that they were not the legal cause of Plaintiffs' injuries. I agree.

To prevail on a tort claim, a plaintiff must show that the tortious conduct proximately caused his or her injuries. Leake, 720 P.2d at 155. While causation generally is a question of fact for a jury, a court may decide the issue as a matter of law where the alleged chain of causation is too attenuated to impose liability. See Largo Corp. v. Crespin, 727 P.2d 1098, 1103 (Colo.1986); Smith v. State Compensation Ins. Fund, 749 P.2d 462, 464 (Colo.App.1987).

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Proximate cause requires that a defendant's conduct produced the injury "in the natural and probable sequence of things." City of Aurora v. Loveless, 639 P.2d 1061, 1063 (Colo.1981); Schneider v. Midtown Motor Co., 854 P.2d 1322 (Colo. App.1992). "[Proximate cause] is the cause without which the claimed injury would not have been sustained." Loveless, 639 P.2d at 1063.

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Richard Castaldo's injuries were inflicted by Dylan Klebold and/or Eric Harris. See C/O ¶ 24. To conclude that the Columbine educators' conduct produced Plaintiffs' injuries, requires connecting a series of "if ... then ..." propositions which are speculative at best.

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For example, the proposition that if the School Defendants had initiated disciplinary proceedings against Harris and Klebold, then the attack would have been prevented, begins with the uncertain assumption that students may be suspended or expelled for submitting work with dark themes or violent images, and concludes with the assumption that suspending or expelling students from school effectively eliminates their ability to return with fire-arms. Similarly, the proposition that if these Defendants had contacted Harris' and Klebold's parents, then the attack would have been prevented is contradicted by the allegation that Ms. Kelly did contact the Klebold family about the story their son submitted in her class.

​

Alleged tortious conduct must also be a "substantial factor" in producing the injury. See North Colo. Medical Ctr., Inc. v. Committee on Anticompetitive Conduct, 914 P.2d 902, 908 (Colo.1996); Smith, 749 P.2d at 464. If an event other than the defendant's alleged conduct appears predominant, the defendant's conduct cannot be a substantial factor. North Colo. Medical Ctr., 914 P.2d at 908; Smith, 749 P.2d at 464. In Smith, the widow of a man killed in an alcohol-related motorcycle accident alleged that the defendants' failure *1171 to timely complete a vocational rehabilitation plan caused her husband to drink. The court accepted as true that the defendants' negligence contributed to the accident but held as a matter of law that the decedent's operation of a motorcycle after drinking was the predominant cause, eliminating liability for the defendants. Id.

​

Harris' and Klebold's actions on April 20, 1999 were the predominant, if not sole, cause of Plaintiffs' injuries. "Colorado's proximate cause rule is intended to ensure that casual and unsubstantial causes do not become actionable." North Colorado Medical Center, 914 P.2d at 908. As a matter of law, Plaintiffs have failed to allege that the individual School Defendants' conduct was a legal cause of Plaintiffs' injuries.

B. Claim Five 42 U.S.C. § 1983Deprivation of right to life, liberty, and personal security against individual School Defendants, in their individual capacities, except the Jefferson County School District R-1 based on special relationship and creating or substantially enhancing the danger faced by Plaintiffs

Plaintiffs allege that "Defendant DeAngelis' and the other School Defendants' toleration of bullying and abusive student-on-student behavior created a `Lord of the Flies' environment at Columbine High School in which students were left to their own devises to tolerate, retaliate, or avenge abusive conduct by other students." C/O ¶ 195. Plaintiffs allege further that "Defendant DeAngelis and his staff, acting in conjunction with the Sheriff Defendants, [created] the danger that this environment would result and erupt in serious or lethal student-on-student violence." Id. at ¶ 196.

​

I set out at length the history of the Due Process Clause and § 1983 as well as the holdings of DeShaney and its progeny. A significant number of the cases discussed in section (V) (B), supra, deal with school officials. I again emphasize that, generally, "a State's failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause." See DeShaney, 489 U S. at 197, 109 S. Ct. 998. Absent a special relationship or the School Defendants' creation of the danger that Plaintiffs faced, there is no constitutional duty to protect. See id.

​

​

Again, in the Tenth Circuit, school officials have no constitutional duty to protect students based on mandatory school attendance from the private actions of third parties. See Graham, 22 F.3d at 994-95; Maldonado, 975 F.2d at 732. This is true even when public officials know of an individual's capacity for violence. See Graham, 22 F.3d at 994-95 (no duty despite school's prior knowledge of specific threats of violence against student); Armijo, 159 F.3d at 1261 (no duty to protect student with known suicidal ideation from self-inflicted harm).

​

 1. Special Relationship

Pursuant to DeShaney, "[t]he affirmative duty to protect arises not from the State's knowledge of the individual's predicament... but from the limitation which it has imposed on his freedom to act on his own behalf." DeShaney, 489 U.S. at 200, 109 S. Ct. 998. (emphasis added). Unlike criminal incarceration and involuntary commitment to a mental health facility, public education does not impose a sufficient limitation upon students' freedom to act to create a special relationship. See Vernonia School Dist., 515 U.S. at 655, 115 S. Ct. 2386; Seamons, 84 F.3d at 1236; Graham, 22 F.3d at 994. See also O'Hayre v. Board of Educ., 109 F. Supp. 2d 1284, 1289 (D.Colo.2000).

Plaintiffs do not argue or allege that the School Defendants placed limitations upon *1172 their freedom to act at any time. Under these circumstances, as a matter of law, no special relationship existed between the School Defendants and the Plaintiffs.

 
2. State-Created or Enhanced Danger

In a narrative manner, Plaintiffs allege that Harris and Klebold were motivated in their attack by feelings of resentment created by harassment and bullying tolerated by the faculty, forcing Harris and Klebold to resort to the extreme measures of revenge as described by them to numerous witnesses. See C/O ¶ 27. To determine whether Plaintiffs have stated a danger creation claim, I again apply the Uhlrig factors in light of their allegations.

​

a. Uhlrig Test First Element Member of Limited and Specifically Definable Group

Plaintiffs contend that as Columbine High School students, the victims, including Richard Castaldo, were members of a limited and specifically identifiable group. Citing Sutton, in which the victim was a deaf, blind, and mute student who required personal assistance and Armijo, in which the victim was a mentally unstable student with suicidal ideations, the School Defendants argue that the victims did not possess some characteristic by which they were identified apart from the shooting or that rendered them vulnerable to the attack. I do not view this element so narrowly here.

Based on Harris' and Klebold's writings, videotapes, and statements, apparently the only characteristic necessary to be the object of their rage was to be a Columbine High School student at school on April 20, 1999. Although in this case the group was large, it was specific to Columbine High School students rather than students at any high school. Plaintiffs have met the first Uhlrig element.

b. Uhlrig Test Element Two Substantial Risk of Serious, Immediate, and Proximate Harm

The School Defendants cannot dispute that the harm at issue was serious. Rather, they contend that the risk facing the Plaintiffs was neither immediate nor proximate. Plaintiffs themselves acknowledge that the alleged harm was not "immediate and proximate," but something that was "probably inevitable." See C/O ¶ 195. Graham teaches that the risk must be of a limited duration, not merely that a person may act violently in the future. Id. at 995. The events that unfolded happened over at least thirteen months rendering it impossible for Plaintiffs to meet this element.

​

c. Uhlrig Test Element Three Obvious and Known Risk

The School Defendants frame the risk in terms that it must have been obvious and known to them that Harris and Klebold would commit mass murder. See School Defendants' Brief, p. 14. I do not agree. The risk framed by the Complaint was that Harris and Klebold would act on their unfulfilled plans to violently harm students at Columbine High School.

Pursuant to the allegations as to each School Defendant, see section (VII) (A) (1) (a-f), supra, I conclude that Plaintiffs have met this element as to Defendants Butts, Horvath, Talocco, and Tonelli only.

d. Uhlrig Test Element Four Conscious Disregard of the Obvious or Known Risk

This element requires that the School Defendants were subjectively aware of the risk at hand. See Uhlrig, 64 F.3d at 573 n. 8 (recklessness requires proof that defendant focused on the risk and deliberately assumed or acquiesced in such risk); Archuleta v. McShan, 897 F.2d 495, 499 (10th Cir.1990) ("[R]ecklessness includes an element *1173 of deliberatenessa conscious, acceptance of a known, serious risk."). Pursuant to the allegations as to each School Defendant, I again conclude that Plaintiffs have met this element as to Defendants Butts, Horvath, Talocco, and Tonelli only.

e. Uhlrig Test Element Five "conscience shocking" conduct

Under this element, I assess conduct from two perspectives both of which occurred under non-emergency circumstances.

Assuming Plaintiffs' allegations as true, see Tonkovich, 159 F.3d at 510, the School Defendants' acquiesced in student-on-student teasing, intimidation, bullying, and verbal harassment by Columbine students other than Klebold and Harris. SeeC/O ¶ 187(g). While such alleged conduct represents bad educational judgment, in cases dealing with markedly more egregious behavior, courts have consistently failed to find constitutional conscience shocking behavior. For example, in Martinez v. Chama Valley Indep. Sch. Dist. No. 19, 77 F.3d 1253 (10th Cir.1996), a teacher repeatedly calling a twelve year old girl a prostitute did not shock the judicial conscience. Similarly, in O'Hayre, a principal shoved a student into a locker. Id. at 1290. In Lillard v. Shelby County Bd. of Educ., 76 F.3d 716, 725-26 (6th Cir.1996) the Sixth Circuit held that a teacher slapping a student did not shock the judicial conscience.

​

In this case, the School Defendants' alleged toleration of bullying, teasing, and intimidation on the part of the Columbine student body, while reprehensible if true, is not conscience shocking in a Fourteenth Amendment substantive due process sense.

​

I also evaluate the School Defendants' conduct in failing to respond to Harris' and Klebold's disturbing school activities. As discussed in Lewis, where circumstances require instant judgment, no substantive due process claim can lie unless the officials' conduct was "tainted by an improper or malicious motive." Id. at 855, 118 S. Ct. 1708. Where as here, however, the state actors have the time to truly deliberate, something less than intent to harm, such as calculated indifference, may shock the conscience of the Court. See id; Radecki, 146 F.3d 1227.

​

In this case, there was no emergency. Rather, several of the School Defendants had daily contact with Harris and Klebold. Defendants had ample time to consider the information each possessed about Harris and Klebold. See Lewis. I evaluate the factual allegations set out previously as measured against the circumstances in relevant cases in determining whether the School Defendants' conduct is "conscience shocking."

​

In Martinez, 77 F.3d 1253, a teacher who allegedly called a twelve-year-old student a prostitute in front of her class over a period of several weeks and allowed other students to do the same engaged in an obvious abuse of authority and flagrant misconduct. Yet this conduct was not shocking to the Court's conscience. In Garcia v. Miera, 817 F.2d 650 (10th Cir. 1987), cert. denied, 485 U.S. 959, 108 S. Ct. 1220, 99 L. Ed. 2d 421 (1988) a nine-year-old student was held upside down by a teacher and beaten on the legs with a split wooden paddle by the principal resulting in bleeding, a welt, a two-inch cut, and a permanent scar. This behavior was held to be conscience shocking.

​

As illustrated by these cases, whether or not a defendant's conduct was found shocking to the conscience of the Court, there was affirmative conduct by a defendant that directly and immediately resulted in severe physical or psychological injuries to another person or allowed such harm to occur or to continue. Here, however, *1174 Plaintiffs' claims are based on allegations that the School Defendants failed to anticipate and prevent future behavior by Harris and Klebold. I conclude that the School Defendants' alleged actions of omission fail to rise to the level of "conscience shocking" in a constitutional sense. See Lewis, 523 U.S. at 852-53, 118 S. Ct. 1708; Radecki, 146 F.3d 1227.

Because Plaintiffs have not met all of the Uhlrig factors, the School Defendants are entitled to dismissal of Claim Five.

C. Claim Six42 U.S.C. § 1983Deprivation of right to life, liberty, and personal security against Defendants DeAngelis, in his Official Capacity, and the Jefferson County School District R-1, for Inadequate Policies, Customs, Practices, and Training

Pursuant to Claim Six, Plaintiffs assert that Defendant DeAngelis, in his official capacity and the Jefferson County School District R-1 violated their substantive due process rights by failing to formulate policies and practices and failing to provide training to Columbine High School staff. See C/O ¶ 215.

Under Monell, the School District and its policy makers may not be held liable pursuant to § 1983 unless one of the School District employee's committed a constitutional violation and a School District policy or custom was the moving force behind the constitutional deprivation. See id. at 695, 98 S. Ct. 2018. See also, Myers, 151 F.3d at 1317. This rule applies to failure to train claims. See Myers, 151 F.3d at 1317.

Plaintiffs have not made the requisite predicate showing of an underlying constitutional violation. Therefore, Plaintiffs cannot meet this element. In addition, Harris and Klebold were the "moving force" behind Plaintiffs' injuries. Plaintiffs' allegations that their injuries could have been avoided if there were different policies in place or adequate training fail to state a claim upon which relief may be granted.

D. Claim Twelve Violation of Colorado Constitution, Art. II, Secs. 6, 25, against School Defendants, except Jefferson County School District R-1, in their individual capacities

Claim Twelve, based on Article II, Section 10 of the Colorado State Constitution, mirrors the Sheriff Defendants' Claim Eleven. Based on the analysis and reasoning set out in section (V) (D), supra, the School Defendants are entitled to dismissal of Claim Twelve.

VIII.

Qualified Immunity Analysis Claim Five

Qualified immunity also requires dismissal of Claim Five.

The question is whether the constitutional rights alleged to have been violated in Claim Five were clearly established as of April 20, 1999 so that reasonable school teachers and officials in the School Defendants' positions would have understood that their actions were in violation of these rights. See Siegert, 500 US. at 232, 111 S. Ct. 1789; Tonkovich, 159 F.3d at 516.

As stated, the "danger-creation" doctrine has been clearly established in the Tenth Circuit since 1998. See Armijo, 159 F.3d 1253. Similarly, the "special relationship" doctrine can be said to have been clearly established in Uhlrig and Armijo.Plaintiffs bear the additional burden of pointing to case law existing as of April 1999 with facts sufficiently analogous to demonstrate the alleged unlawfulness of the School Defendants' conduct. See Patrick, 953 F.2d at 1249.

​

*1175 Plaintiffs cite Sciotto v. Marple Newtown Sch. Dist., 81 F. Supp. 2d 559, 570 (E.D.Pa.1999) for the proposition that as of January 1997:

​

[i]t was clearly established that a student enjoyed a constitutional right to be free from school official's deliberate indifference to, or acts that increase the risk of serious injury from unjustified invasions of bodily integrity perpetuated by third parties.

Id.

​

Under the doctrine of qualified immunity, for the law to be clearly established, there must be Supreme Court or circuit court authority that has found the law to be as the plaintiff maintains. See Medina, 960 F.2d at 1498; Morfin, 906 F.2d 1434. (emphasis added). Sciotto, a district court case from a foreign jurisdiction, offers no support for Plaintiffs' position.

Plaintiffs rely also on Davis in which the Supreme Court refers to common law duties as guideposts for school officials that "they may be held responsible under state law for their failure to protect students from the tortious acts of third parties." See Davis, 526 U.S. at 644, 119 S. Ct. 1661. Davis does not apply here. The Court's statement is dicta, the case pertained to Title IX, a statute, and it was decided after April 20, 1999.

​

Research reveals no Supreme Court or circuit court authority addressing circumstances sufficiently similar or analogous to those facing the School Defendants. Indeed, Plaintiffs' Response acknowledges as much because "[i]n these Columbine cases now confronting us, the facts distinguish every other case which has come before." Response, p. 72. Accordingly, I grant the School Defendants immunity as to Claim Five.

​

Accordingly, IT IS ORDERED that:

1. Claim One against the Sheriff Defendants, in their individual capacities, is DISMISSED;

2. Claim Two against the Sheriff Defendants, in their individual capacities, is DISMISSED;

3. Claim Three against Sheriffs Beckham and Stone, in their official capacities, and the Jefferson County Sheriff's Department is DISMISSED;

4. Claim Four against the School Defendants, in their individual capacities, is DISMISSED;

5. Claim Five against the School Defendants, in their individual capacities, is DISMISSED;

6. Claim Six against Defendant DeAngelis, in his official capacity, and the Jefferson County School District R-1 is DISMISSED;

7. Claim Eleven against the Sheriff Defendants, in their individual capacities, is DISMISSED; and

8. Claim Twelve against the School Defendants, in their individual capacities, is DISMISSED.

​

​

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191 F. Supp. 2d 1196 (2002)

Richard R. CASTALDO, Dominic R. Castaldo and Connie Michalik, Plaintiffs,
v.
Jefferson County Sheriff John C. STONE, individually and in his official capacity, Former Jefferson County Sheriff Ronald Beckham, individually and in his official capacity, Jefferson County Sheriff's Department, Neil Gardner, individually, John Hicks, individually, Mark M. Miller, individually, Tanya Williams, individually, Mike Guerra, individually, Phillip Lebeda, individually, John or Jane Does 2 through 10 (All Deputies in the Jefferson County Sheriff's Department), individually, Jefferson County School District R-1, Frank DeAngelis, individually and in his official capacity, Howard Cornell, individually and in his official capacity, Peter Horvath, individually, William Butts, individually, Garrett Talocco, individually, Judy Kelly, individually, Tom Tonelli, individually, Tom Johnson, individually, John or Jane Does 11 through 30, individually, Phillip Duran, James Royce Washington, Ronald Frank Hartmann, J.D. Tanner, dba Tanner Gun Show, Robert Kirgis, and Kirgis, Inc., a Colorado Corporation, Defendants.

No. CIV.00-B-1611.

United States District Court, D. Colorado.

January 23, 2002.

​

James A. Cederberg, Buchanan, Jurdem & Cederberg, PC, Larry Trattler, Trattler Law Firm, PC, Denver, CO, for Plaintiffs.

J. Andrew Nathan, Andrew J. Fisher, Bernard Roland Woessner, Nathan, Bremer, *1197 Dumm & Myers, PC, Denver, CO, William A, Tuthill, III, Lily Wallman Oeffler, County Attorney's Office, Golden, CO, Alan Kaminsky, Wilson, Elser, Moskowitz, Edelman & Dicker, New York City, William J. Kowalski, Susan S. Schermerhorn, William Stuart Stuller, Caplan & Earnest, L.L.C., Boulder, CO, Gregg E. Kay, Franklin D. Patterson, Patterson, Nuss & Seymour, P.C., Englewood, Co., C. Michael Montgomery, Joel A. Kolodny, Lorraine Elizabeth Parker, Steven Gregory Greenlee, Montgomery, Kolodny, Amatuzio, Dusbabek & Parker LLP, Denver, CO, Heather A. Salg, Harris, Karstaedt, Jamison & Powers, P.C., Englewood, CO, J. Stephen Mullen, Retherford, Mullen, Johnson & Bruce, Colorado Springs, CO, Scott Jurdem, Buchanan, Jurdem & Cederberg, PC, Denver, CO, Alaurice Maris Tafoya, Alaurice M. Tafoya, Law Office, Denver, CO, Richard Lee Everstine, Michele R. Prud'Homme, Robert Patrick Ingram, Dickinson, Everstine & Prud'Homme, Denver, CO, Gordon Lamar Vaughan, Sara A. Ludke, Vaughan & DeMuro, Colorado Springs, CO, Michael R. Waters, Jones & Water, LLC, Colorado Springs, CO, Lori Mary Moore, Retherford, Mullen, Johnson & Bruce, Colorado Springs, CO, Matthew Y. Biscan, Malcom S. Mead, Hall & Evans, Denver, CO, for Defendants.

ORDER

BABCOCK, Chief Judge.

​

On December 20, 2001, plaintiffs filed their "Motion For Reconsideration Pursuant To F.R.C.P. 59(e), For Relief From Judgment And Leave To Amend Pursuant to F.R.C.P. 60(b) And 15(a), For Extension Of Time In Which To File Amended Pleadings, And For Order Preserving Evidence", (the motion). The motion is directed to my November 27, 2001 Memorandum Opinion And Order (the Order). The sheriff defendants and the school defendants have responded to the motion.

​

Plaintiffs first ask for clarification that information before the Court in the attachments to plaintiffs' supplemental citation is properly before the Court and incorporated into the allegations of the Third Amended Complaint. In the alternative, plaintiffs seek leave to amend, within reasonable time, to include allegations based on those attachments. The attachments are certainly a part of the record in this case. The most significant attachment is the draft affidavit for search warrant. It adds nothing to the Third Amended Complaint's allegations which were taken as true. Most importantly, even if incorporated into a complaint it would not alter application of the controlling law of duty, causation, and immunity in such a way as to alter the result.

​

Plaintiffs also assert misapplication of the no-heightened pleading rule of Currier v. Doran, 242 F.3d 905 (10th Cir. 2001). First, the rule of that case does not apply to the state based claims. Secondly, I applied the Fed.R.Civ.P. 12(b) (6) analysis against plaintiffs' allegations as plaintiffs elected to plead them.

​

The primary thrust of plaintiffs' motion for reconsideration, which I take as a motion for new trial pursuant to Fed.R.Civ.P. 59(e), is their contention that "newly discovered evidence" of the Harris journal warrants setting aside the Order granting discovery and further amendment of the complaint. I will assume this information constitutes newly discovered evidence which could not have been obtained through the exercise of diligence. Even so, under the Order's legal matrix and having accepted as true the allegations of plaintiffs' Third Amended Complaint, this information is cumulative, not material, and has no probable capacity to change the Order's result. Any amendment, therefore, would be futile.

​

*1198 The controlling law of duty, causation, and immunity remains unchanged. Plaintiffs have failed to meet their burden to show manifest error of law or fact, such newly discovered evidence justifying the relief sought, any misconduct of opposing counsel, or that manifest injustice would obtain if the motion is denied.

​

As to plaintiffs' request that all parties be ordered to preserve and secure any and all physical evidence and documents or things pertaining to the Columbine tragedy, including electronic records, computer files, audio and video tapes, films, photographs, memoranda and notes, the sheriff defendants do not oppose it in principle, but request that it be specific as to duration and scope. Any such order must indeed be specific as to its duration and scope. However, the motion is so broad that I cannot begin to define a reasonable scope or duration of such an order.

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IT IS THEREFORE ORDERED that the plaintiffs' motion is DENIED.