Las Vegas student asks Ninth Circuit to revive suit over classroom attack

LAS VEGAS (CN) — Attorneys on Tuesday hinged their arguments before a Ninth Circuit panel on whether a student attack in school was foreseeable.

Rosa Lainez Lemus and her daughter are trying to get their suit against the Clark County School District reinstated before a lower court. A federal judge in Nevada dismissed their complaint last year, finding the district was not responsible for a February 2022 fight where Lemus’ daughter was punched repeatedly in the back of the head by a Las Vegas High School classmate.

They appealed to the Ninth Circuit, which made no decision Tuesday.

Attorney Andre Lagomarsino, representing Lemus and her child, said the district knew the attacker had a history of violence. They threw a bottle of lotion at someone in 2019.

The panel quickly pushed Lagomarsino on that one instance and the claim the attack was foreseeable.

Lagomarsino argued he only knew of the bottle-throwing incident, but that was enough to warrant discovery — requiring the district to provide documents. The lower court should have construed the incident in his client’s favor.

“Why is that a reasonable inference if we just don’t know?” asked U.S. Circuit Judge Gabriel Sanchez, a Joe Biden appointee, questioning the lack of information about other violent acts.

U.S. Circuit Judge Mark Bennett, a Donald Trump appointee, pointed to the lack of specificity in a document stating the attacker has a long-term mental condition. Lagomarsino said he had no information about it, adding that erratic behavior shouldn’t be ignored.

“It was a foreseeable danger,” Lagomarsino said of the injury his client received.

The plaintiffs argue the attacker threatened and harassed Lemus’ daughter before ambushing her and knocking her unconscious, inflicting physical and mental injuries. Cellphone video of the attack was shared on social media, and the incident drew some national attention.

The mother and daughter sued, arguing the district failed to prevent the attack.

U.S. District Judge John Holcomb, a Trump appointee sitting on the three-judge panel by designation, questioned if degrees of foreseeability exist.

“This is high school,” he added. “Students are going to fight.”

Representing the district, attorney Akke Levin of Greenberg Traurig said the plaintiffs had two chances to properly plead their case before the lower court. Those complaints failed, as they didn’t claim the district performed an act that put the girl in danger.

“They have not alleged an affirmative act,” she added.

Bennett probed whether the district leaving the attacker in class qualified as an affirmative act.

Like Lagomarsino, Levin pointed to the 2019 bottle-throwing incident. She added that a verbal altercation happened the same year. But over the next three years, the attacker was only flagged for three instances of rude or defiant behavior toward teachers, not students.

Bennett noted the victim claimed the attacker threatened her and the girl then told a teacher, who did nothing. Levin argued one act was insufficient. Instead, the plaintiffs needed to show a widespread practice in the district.

“But the complaint has pages and pages of just that,” Sanchez said, referring to several parents telling school administrators about bullying. “And those have fallen on deaf ears.”

Levin said the plaintiffs failed to meet a legal standard. The district had to know a violent act would occur, ignore that risk and subject the girl to violence. She said Lagomarsino argued that the district should have known.

“But that is not the standard,” she added. “Merely failing to realize something would happen is not enough.”