Can Waukesha victims sue for Darrell Brooks being out on the streets? Experts weigh in

The latest on Waukesha parade tragedy

Matt Finn reports the latest on Darrell Brooks at he makes his first court appearance on ‘Special Report’.

Outrage has built around the Waukesha Christmas parade tragedy this week after the suspect was revealed to be a career criminal dating back decades who was released on bail just weeks before the attack.

Fox News Digital spoke with legal experts regarding whether the district attorney or the city could face legal action from the victims for the handling of Darrell Brooks and the attack that left six dead and dozens injured.

“There is no viable claim against the district attorney who exercised prosecutorial discretion on charging and trial decisions, including bail demands,” Fox News contributor and legal scholar Jonathan Turley told Fox News Digital. 

Darrell Brooks is escorted out of the courtroom after making his initial appearance Tuesday in Waukesha County Court in Waukesha, Wisconsin. 
(Mark Hoffman/Milwaukee Journal-Sentinel via AP)

Personal injury lawyer Matthew Haicken, founding partner of Haicken Law, agreed. Though some victims could attempt to sue in a “Hail Mary”-styled lawsuit, he said, he doesn’t believe they would have a case. 

“I don’t think that they’ll have a case as far as suing for the fact that this guy was out on bail and it was such a low bail,” Haicken told Fox News Digital on Wednesday. “It’s because courts have said – this is all the way up to the Supreme Court and courts across the country – have said that the government has immunity for discretionary functions.”

Haicken explained that if people did sue over such matters, no “judge would ever let anyone out on bail, and prosecutors would always ask for the highest bail.” 

Turley said that though the tragedy is recent and more investigation needs to be done, it’s possible the city was negligent in securing the safety of the parade. 

“It is still early to determine if the city was negligent in closing off the parade route to traffic. However, reports indicate that Brooks ran through a police barricade and at least one officer fired a round to try to stop him. There will be questions as to the barricade and whether it was insufficient or poorly constructed,” he said. 

Waukesha parade suspect Darrell Brooks Jr. has a long criminal history.
(Waukesha PD)

Turley noted that such barricades are intended to stop negligent drivers, not “homicidal” ones. 

“Nevertheless, the police was tasked to safeguard the parade route from vehicular accidents or crimes. That includes drunken drivers or those with criminal intent. Unfortunately, we live in times where terrorist or mass casualty crimes must be treated as foreseeable, even in small towns like Waukesha.”

An investigation will also examine whether safety standards were met during the incident, Turley said, and that police departments have regulations on the placement of vehicles and barriers during such events. 

“There will be particular attention to whether there were gaps between barriers and any police cruiser. This vehicle appeared to get through the barrier at a high enough speed to then evade following officers. It also appears completely functional after forcing its way through to the parade route. That raises concerns over the placement of the barriers,” he said. 

Brooks made bail twice in Wisconsin this year, even though has an active sex crime warrant out of Nevada, court records previously reported by Fox News show. 

Investigators are looking into whether the SUV driver who plowed through a Christmas parade was fleeing a crime, a law enforcement official told The Associated Press. 
(Milwaukee County Sheriff’s Office via AP  |  Reuters)

He was first freed in February on $500 after allegedly shooting at his nephew in the summer of 2020. He was out on a $1,000 bail just this month after a woman accused him of punching her and running her over with the same SUV that was allegedly used in the attack on Sunday. 

Milwaukee prosecutors announced they are conducting an internal review into their office’s decision to make an “inappropriately low” bail recommendation.

Brooks’ has an extensive criminal history dating back to 1999, including being convicted of statutory sexual seduction in 2006 after having sex with a 15-year-old girl in Nevada, who became pregnant. He had to register as a sex offender and received three years of probation. 

He was charged again in Nevada in 2016 for violating the state’s sex crime laws, and allegedly skipping bail and fleeing the area. 

Residents of the Waukesha area expressed outrage to Fox News earlier this week when they learned Brooks had just recently been released on bail.

 “There’s no reason somebody should be that low with that serious of crimes, felonies committed,” said Carrie, a lifelong resident of Waukesha, who spoke to Fox News on her way to deliver gifts to victims of the violence at the children’s hospital. 

Five adult victims killed in the Waukesha parade attack. A sixth victim, this one a child, was announced in court Tuesday.

“I can’t believe he was out. Something needs to change,” added Allen, a Waukesha local. 

Brooks has been charged with five counts of first-degree intentional homicide following the attack. The five current charges are in connection with the deaths of Virginia Sorenson, 79, LeAnna Owen, 71, Tamara Durand, 52, Jane Kulich, 52, and Wilhelm Hospel, 81. A sixth charge is expected following the death of an 8-year-old boy on Tuesday.

He is being held on $5 million bail in a Wisconsin jail.

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