(CNN) - Former Broward County Sheriff Deputy Scot Peterson has been charged with child neglect under a statute that applies to caregivers. Legal experts say it's a novel approach that could make the case against him difficult to prove.
Prosecutors will have to show that Peterson was a caregiver and exposed students and teachers to harm with his actions, with reckless disregard for their lives, attorneys say. Peterson's case will be widely watched, they say, and its outcome could affect how officers respond to crises.
In a statement, Peterson's attorney, Joseph A. DiRuzzo III, said the charges appear to be "a thinly veiled attempt at politically motivated retribution against Mr. Peterson."
Peterson cannot be prosecuted as a caregiver since he was acting as a law enforcement officer in an official capacity, DiRuzzo said.
Peterson was widely criticized after he failed to confront a gunman who opened fire last year at Marjory Stoneman Douglas High School in Parkland, Florida, where he was working as a school resource officer. Instead, Peterson took cover outside the school as the shooting continued.
New York defense attorney Joseph Conway said he has prosecuted and represented police officers for crimes they were accused of committing, but never for actions they didn't take.
"This is a great tragedy. You want to try to do anything you can here, but it might be a little bit of a stretch prosecuting a law enforcement official for not doing anything," Conway said.
"I know that our natural inclination is to try to find some rhyme or reason to it and to try to hold people accountable because you want to feel like there's some justice," said Aaron Delgado, a defense attorney in Dayton Beach, Florida.
But, he said, "are we willing to take what's perhaps cowardice and make it a crime?"
What the state's case may look like
Days after the Valentine's Day shooting, footage surfaced of Peterson taking position near the 700 and 800 buildings at the high school, a spot he stayed at for more than 45 minutes. Peterson was publicly shamed by then Broward County Sheriff Scott Israel and President Donald Trump.
The Broward Sheriff's Office's active shooter policy calls for deputies to interrupt a shooting and search for victims when there is a ceasefire. Peterson's attorney has said that he believed the gunman was outside the school at the time, though he can be heard in dispatch audio saying "I think we have shots fired, possible shots fired, 1200 building."
In an arrest warrant affidavit, authorities say the gunman killed five students and one teacher and wounded three more students and a teacher after Peterson arrived at the 1200 building, where the shooting took place. Then, Peterson moved 75 feet to another position, the affidavit said.
The gunman fired approximately 75 times after Peterson arrived, the document said. Seventeen students and teachers were killed in the shooting.
Peterson had received "many hours" of training on how to respond to an active shooter, the affidavit said.
Conway said the footage of Peterson outside the school will likely be central to the prosecution's case.
Prosecutors may also touch on Peterson's training and experience as a veteran officer. And they may also bring in law enforcement experts to testify about what Peterson was trained to do in the situation and how his inaction may have allowed the shooting to continue.
"That in itself to me, is not enough. I think they would actually have to show, had he done something, he actually would have minimized the damage that was done," said Conway, a former assistant United States attorney in Eastern District of New York for 15 years. "And that's very speculative."
Six of the child neglect charges Peterson faces are second-degree felonies. A conviction on those means he could be sentenced to 15 years in prison.
A seventh neglect charge is a third-degree felony (up to five years). He also faces three charges of culpable negligence, second-degree misdemeanors and perjury, a first-degree misdemeanor.
Peterson was released Thursday on a $39,500 bond after a court hearing in Fort Lauderdale.
Concerns about what it means for other officers
CNN legal analyst Paul Callan, a former New York City homicide prosecutor, said the law generally does not allow crime victims to sue police officers for failing to protect them. The exception in civil cases occurs when a police officer is hired for a specific task, like providing security for a private event, he said in an email.
But the duty to protect can be applied to caregivers, who can be charged criminally for allowing children under their watch to be harmed, Callan wrote.
"Law enforcement responding to an attack by an active shooter have never been viewed as falling into the caregiver category," Callan wrote.
"Though prosecutors will have enormous sympathy on their side due to the tragic loss of life at Parkland, established principles of law are likely to prevent the prosecution of Deputy Peterson on child neglect charges," he wrote.
In an email, the president of the Broward Sheriff's Office Deputies Association, Jeff Bell, expressed concerns about Peterson's charges, particularly the neglect and negligence charges.
"In order for there to be neglect, the individual must be a 'care taker' of the individual," Bell wrote. "Does that mean that every police officer from now on that works a detail where children are present are now subjected to child neglect charges if something happens?"
At a Thursday hearing, DiRuzzo and Assistant State Attorney Tim Donnelly argued over who can be considered a caregiver under state law.
The definition is broad, Donnelly said. "It's included kidnappers. It's included juveniles. It's included teachers," he told the judge.
In a statement Friday, the Broward State Attorney's Office said culpable negligence and child neglect charges "would not apply generally to police officers or other first responders who -- unlike school resource officers -- do not have a specific duty to protect the students and staff of a school."
"Any concern that police officers or other first responders would be generally held liable is simply not supported by these facts," the statement said.
The risk of aquittal
Delgado said he has successfully represented clients in child neglect cases, which include situations where caregivers fail to provide necessities like food and water. He said he doesn't think lawmakers had the circumstance Peterson faces in mind when they passed child abuse and child neglect laws.
"I think when you try to fit an unusual circumstance into a statute that doesn't quite fit, you run the risk of an acquittal if you're a prosecutor," he said.
Last year, 15 survivors of the shooting sued Peterson and other defendants including Israel and School Superintendent Robert Runcie alleging their "action and inactions" led to deaths and injuries and trauma.
A federal judge dismissed the lawsuit in December, ruling the sheriff's office and school weren't required to legally protect the students in the mass shooting. Judge Beth Bloom wrote: "the claim arises from the actions of Cruz, a third party, and not a state actor," according to court papers.
"Thus, the critical question the Court analyzes is whether Defendants had a constitutional duty to protect Plaintiffs from the actions of Cruz. As previously stated, for such a duty to exist on the part of Defendants, Plaintiffs would have to be considered to be in custody," she wrote.
How school resource officers might respond
Don Bridges, a board member of the National Association of School Resource Officers, said he believes Peterson's case will make police departments and sheriff's offices all over the country re-evaluate their training, and the selection and the retention of school resource officers.
Bridges, a Baltimore County, Maryland, police officer and former president of the association, said recent school shootings have brought about more state-mandated training for the nation's 15,000 school resource officers.
"It requires you to have a person that is a top-notch person, that understands the magnitude of that position," he said. "Putting a police officer in a school is a difficult and challenging task. So, if I am [the] leadership, then I am going to choose the best and the brightest, not the guy that's lacking."
CNN's Steve Almasy, Jamiel Lynch and Kevin Conlon contributed to this report.
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