In our society, what comes after a tragedy like the killing of hydrology professor Tom Meixner at the University of Arizona seems obvious and natural.
A lawsuit.
Meixner’s family sues the university for their negligence in protecting Meixner from a student long known to be threatening violence. That’s just how things work in the USA.
In this case, though, it might not happen.
In her first interview since the Oct. 5 killing, widow Kathleen Meixner said she might not sue. It’s not that she and her family are happy with the university and other local institutions. They think the university and others failed to protect Meixner, then the chair of the Hydrology and Atmospheric Sciences Department, from a known threat — former graduate student Murad Dervish.
They prefer not to sue, because that’s what they think Tom would want, and because Arizona law works against people in their position. What they really want is accountability for what went wrong and for the people affected to be treated right.
“Tom would not want that,” Kathleen Meixner said about the possibility of suing. “That’s my gut feeling. Tom would not want that. What is frustrating to me is — my concern is — I ask myself, ‘What is it going to take for the underlying issues to be fixed, to prevent this from ever happening again?’”
Meixner and her brothers, Colin and Kevin Cotter, laid out many of those underlying issues during an interview at their mother’s Tucson home. Among them:
When the University of Arizona Police Department first sent possible charges against accused killer Dervish to the Pima County Attorney’s Office in April, they only included recent threats against an assistant dean of students, not the faculty members who had documented his behavior and passed on complaints for months.
Tucson police received a report in March, from a man who discussed selling a gun to Dervish, saying that Dervish texted that he planned to use the gun to kill other people and himself. It appears that information was not passed on to the UAPD or any of those threatened by Dervish.
The UAPD sent possible cases against Dervish to the Pima County Attorney’s Office in April and September, but those documents were included in packets of minor cases rather than highlighted separately so prosecutors would pay special attention.
The Pima County Attorney’s Office took weeks to review the possible charges and declined them without apparently knowing the significance of the threat or considering alternative charging options.
In the aftermath, the university quickly cut off the Meixner family’s health insurance and has been halting in its assistance to them and the other members of the department affected by the killing, including those who witnessed his death.
UA response ‘incredibly disappointing’
The university has hired an outside firm, the PAX Group, to review the entire episode and make recommendations. The UA also hired Steve Patterson, the recently retired head of the FBI’s Tucson office, to help with the university’s Threat Assessment and Management Team.
In a statement, the UA said, “The loss of Dr. Tom Meixner has been heart-wrenching for our campus community, and our thoughts remain with his loved ones and those students, staff and colleagues so deeply impacted by his passing.
“We eagerly await the review’s findings. At the same time, we are implementing additional security measures to further enhance the safety of our entire community.”
Separately, the UA’s faculty senate is also doing its own review of the incident and has voted unanimously to ask the university to continue paying for the Meixner family’s health insurance.
It was this sort of thing, the cutoff of insurance that happened 11 days after Meixner was killed, that prompted Colin Cotter to start consulting with attorneys, he said.
“When I started to reach out to civil attorneys, it was once we realized all the gross negligence and once we realized that the university wasn’t just going to come forward and take care of Kathleen’s family or the other victims and witnesses, which was incredibly disappointing.”
“We felt like we needed to know what our options were. Kathleen never wanted to turn this into some ugly thing.”
What Cotter heard from attorneys is probably surprising to anyone who doesn’t know Arizona’s employment law.
“To our knowledge, there is no actionable claim against the university or any of the entities under their umbrella — UAPD, board of regents, general counsel,” Cotter said. “My understanding is that they are all protected under our workers comp laws, and that workers compensation is the exclusive remedy for when an employee is killed on the job, despite the presence of gross negligence.”
Liability hard to find
I checked with a local attorney experienced in employment and personal-injury law, Stephen Portell, to be sure that what Kathleen Meixner and her siblings were hearing was true. Portell confirmed it is.
“To step outside workers comp and sue the university, there has to be some kind of willful misconduct,” Portell said.
State law defines willful misconduct as “an act done knowingly and purposely with the direct object of injuring another.” In other words, the university would have to have deliberately aided in Meixner’s murder, not just negligently failed to prevent it, to be held liable.
“It’s so crazy to me that the system is so broken that the university has no liability, the Pima County Attorney’s Office has no liability, and the university has no way to give a dollar to Kathleen,” Colin Cotter said. “Or, at this point, to do something unique and special to take care of the witnesses and other people.”
Their brother Kevin wondered if it’s “fear of a lawsuit” that is preventing the university from taking more aggressive action in supporting survivors.
Legally speaking, Portell said, if the UA wants to aid the Meixner family or other survivors, that doesn’t increase its liability.
Goal: accountability and improvements
Kathleen Meixner noted the family has been fortunate to have support from friends and family in Tucson, and also from people all over the world who contributed to a GoFundMe fundraiser set up on their behalf. What remains undone, though, is the people and institutions who could have done more taking responsibility for past failures and fixing the problems.
“I think in part you just want something to happen right away that gives you some consolation,” Kathleen Meixner said. “They’re moving on this, or they want to do right by the Hydrology and Atmospheric Sciences Department. You want it all to happen right away.
“The reality is, and I’m coming to terms with this, that this process is taking a lot longer than I’d like it to. I’d like to feel that the department is getting taken care of and that they’re doing everything they can to prevent this from happening again to any other family or department on campus.”
“What’s frustrating to me is that suing is sometimes what it takes. That really makes me angry, because I’d like for there to be accountability and a recognition of, there were so many things along the way that could have been handled in a different way to prevent Tom’s death.”
It would honor Tom Meixner, who proudly wore the UA’s colors, if accountability could occur, and affected people were well taken care of, without a lawsuit.
After the loss of University of Arizona professor Thomas Meixner, friends, family and the community gathered by Old Main to participate in a candlelight vigil. The ceremony included words from UA President Robert Robbins and Meixner's brother-in-law. Video by Pascal Albright/ Arizona Daily Star.
Tim Steller is an opinion columnist. A 25-year veteran of reporting and editing, he digs into issues and stories that matter in the Tucson area, reports the results and tells you his conclusions. Contact him at tsteller@tucson.com or 520-807-7789. On Twitter: @senyorreporter
