Thursday, October 19, 2017

New Federal Court Decision Should Be a Warning to Schools and Police Departments That Arrest Students

Last week, in S.R., v. Kenton County Sheriff's Office, 2017 WL 4545231 (E.D. Ky. Oct. 11, 2017), a U.S. District Court in Kentucky issued a decision that should drastically change schools' and resource officers' thinking in regard to handcuffing students.  Students often lose these types of cases and when they win, the facts are so unique or egregious that other schools and officers might distinguish them or write them off.  This is not to suggest that the harms the students suffered in Kenton County were minimal.  They were handcuffed in painful ways.  The kids also represent sympathetic plaintiffs because they were particularly small. 

But in other respects, the cases were more run of the mill and suggest a court drawing a line in favor of many students.  These were not entirely "innocent" students.  The students had engaged in protracted violent behavior--albeit not all that dangerous.  And the school officials did not jump straight to handcuffing the kids.  They, as well as the officers, had  attempted several deescalation techniques and even let some behavior go, so to speak.  And the cases did not involve pepper spray, head locks, brute force, or other forms of generally outrageous conduct by officers.  In short, they involved handcuffing students whom the school and officers had not found any clear way of calming. 

The fact that the court was willing to intervene here, thus, suggests the general problem with handcuffing kids, particularly small ones.  The court emphasized that officers simply are not trained to engage in this type of behavior with young children and no one recommends it.  Kentucky itself recognizes as much.

Kentucky Board of Education regulations provide that "school personnel may not use physical restraints as 'punishment or discipline,' to 'force compliance or to retaliate,' as 'a routine school safety measure,' or as 'convenience for staff.'” 704 KAR 7:160 § 3(1).  The regulation also prohibits school personnel from using "'mechanical restraints' on students at any time."  The preamble to the regulation, however, states that the regulation "does not prohibit the lawful exercise of law enforcement duties by sworn law enforcement officers.” 

Yet, the details in these sorts of cases will always matter.

The case involves a few different incidents.  The first involved an eight-year old boy who was approximately 4 feet tall and weighed 54 pounds.  He "had been diagnosed with attention deficit hyperactivity disorder (ADHD) and post-traumatic stress disorder (PTSD)," but he "attended regular classes and, at the time of the incidents in question, had not been identified to school administrators as having any disability."  He had engaged in some hitting and kicking incidents toward his teachers.  The school's deescalation efforts included holding him in a cradle restraint and locking him in an office.  When that did not work, they called the Sheriff's office.  By the time Officer Sumner arrived, the student was on the phone talking to his mother.  When the officer engaged him, however, things escalated and the student took an elbow swing at the officer.

Sumner said “you're not allowed to swing at me like that.” Sumner handcuffed S.R. behind his back, placing the cuffs on S.R.'s biceps above the elbows. The video shows that S.R.'s arms are pulled tightly behind his back with what appears to be only approximately three or four inches between his elbows. Sumner testified that he checked the handcuffs for tightness and that, since the chain connecting the handcuffs was nearly as long as the width of S.R.'s body, he had no reason to believe it would cause him pain. The video clearly demonstrates, however, that the chain is not nearly as wide as S.R.'s body, and that his arms are extremely taut.

Sumner can be heard stating, “You can do what we've asked you to or you can suffer the consequences.” (Doc. 156 - video). S.R. can be heard saying, “Oh, God. Ow, that hurts.” (Meyer Depo. 136-37). Sumner tells S.R. that: if he wants the handcuffs off, he has to behave and “ask nicely”; “if you want them off, all you have to do is stop kicking”; and “it's up to you if you want them off or not.”

S.R. remained handcuffed for approximately fifteen minutes, crying and squirming, after which Sumner removed the cuffs. 

The second student, L.G, was a nine-year old girl who weighed about 56 pounds. "L.G. had been diagnosed with ADHD and she had a 504 plan, but she attended regular classes. The plan did not address any behavioral issues or problems."  She also engaging in some hitting and kicking toward adults, as well as blowing snot and attempting to bit.  The school attempted deescalation techniques with her as well, including placing her in a calm room.  On one occasion when Officer Sumner arrived, he

decided to place her in handcuffs. Despite the handcuffs, L.G. did not calm down and Sumner called for an ambulance because he was concerned for her medical condition. 

Paramedic Jerry Mills arrived at the school and went to the calm room. Mills began talking to L.G., and he told Sumner to remove the handcuffs. Mills put his arm around L.G.'s shoulders to comfort her while Sumner removed the handcuffs. Mills hugged L.G. and she hugged him back. Mills sat and talked with L.G. in the ambulance on the way to Children's Hospital. Collins and Sumner followed the ambulance since no parent was available, and Collins waited for about an hour until L.G.'s mother arrived. L.G. was discharged later that morning without any physical injury.

On another occasion, L.G. would not go to her assigned location in the school and ran away from a school employee.

Sumner saw L.G. coming towards him as he stood with his back to the stairway leading to the second floor, and Collins and Craig were telling L.G. to go to the cafeteria. 

When L.G. reached Sumner, he told her to go to the cafeteria where she was supposed to be. L.G. tried to push past him, and she dropped to her hands and knees and tried to crawl through his knees.  She then pulled up his pants leg and tried to scratch him. L.G began screaming, and Craig was able to move her into the “cub store,” a room where school supplies are sold. 

Once inside the cub store, L.G. became physically aggressive, hitting, kicking, and scratching Craig. Sumner pulled L.G. off of Craig and tried to hold her physically for a few minutes, but she continued the same behavior. Sumner told L.G. that if she did not stop, he would handcuff her. L.G. continued to kick and hit, and Sumner placed her in handcuffs, above her elbows behind her back. 

Assistant Superintendent Wilkerson contacted L.G.'s mother, who came to school to get her. Her mother testified that when she arrived, L.G. was on her knees and Sumner was holding her arms up behind her above her head. Sumner then removed the handcuffs.

Plaintiffs later filed suit against the Sheriff and Officer Sumner, alleging "(1) Unreasonable Seizure and Excessive Force in violation of the Fourth and Fourteenth Amendments (against all defendants), pursuant to 42 U.S.C. § 1983; (2) Disability Discrimination under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12132 (against Kenton County Sheriff's Office only); and (3) Failure to Accommodate under the ADA (against Kenton County Sheriff's Office only)."

The district court focused on the excessive force and found:

the severity of the “crime” committed by S.R. and L.G. – assault – weighs in their favor. While S.R. kicked a teacher and L.G. tried to and/or did hit a teacher, these are very young children, and their conduct does not call to mind the type of “assault” which would warrant criminal prosecution. Indeed, Sumner testified that “none of what they did was worthy of trying to file a criminal charge.”

The second factor, whether the children posed an immediate threat to themselves or others, weighs in S.R.'s favor. At the time he was handcuffed, S.R. had largely calmed down, Sumner had escorted him to the restroom without incident, and they had returned to the office. While Sumner testified that S.R. swung his elbow towards Sumner, such can hardly be considered a serious physical threat from an unarmed, 54-pound eight-year-old child.

This factor weighs less in favor of L.G., who was engaging in more physical abuse towards her teachers and Sumner.

Nonetheless, the age and stature of these children is highly relevant to this analysis. 

Finally, the method of handcuffing that Sumner employed leads this Court to conclude that his actions were unreasonable and constituted excessive force as a matter of law. The video of S.R. shows that his arms were pulled tightly behind him, with only inches between his elbows. While Sumner testified that the chain between the cuffs was as wide as S.R.'s torso, the video belies that assertion. Where a witness's version of the facts “cannot be countenanced based upon what the video shows,” the Court must adopt the video as fact. 

Upon being cuffed in this manner, S.R. cried out, “Ow, that hurts.” It was thus immediately apparent that this method – which, it is undisputed, was the same method by which L.G. was cuffed – was causing pain. S.R. was left in this position to cry and squirm for fifteen minutes.

Plaintiff's handcuffing expert, Robert Rail, testified that he does not know of any police instructor in the United States who would allow the elbow cuffing of children such as was used on S.R. and L.G., nor does he know of any program that teaches that method. 

Even defendants' handcuffing expert, William A. Payne – who has been conducting handcuffing training for law enforcement for over 20 years –testified that he has never trained law enforcement to use handcuffs above the elbow. He further testified that he was not aware of any law enforcement agency that trains their officers to use such a technique. 

. . .

Therefore, under the totality of the circumstances, the Court concludes as a matter of law that Sumner's manner of handcuffing S.R. and L.G. was an unconstitutional seizure and excessive force.

On the question of qualified immunity, however, the court was far more forgiving: "plaintiffs have not shown that it was “clearly established” in 2014 that Sumner's handcuffing of S.R. and L.G. was unconstitutional, and Sumner is thus entitled to qualified immunity."  The court also granted the defendants' motion for summary judgment on the ADA claims.  

Plaintiffs most significant victory was against the county.  The court found that Sheriff "Korzenborn has not implemented any changes in the training of his SROs since these incidents. Given this undisputed testimony, Kenton County is liable as a matter of law for Sumner's unlawful handcuffing of S.R. and L.J."

 

http://lawprofessors.typepad.com/education_law/2017/10/new-federal-court-decision-should-be-a-warning-to-schools-and-police-departments-that-arrest-student.html

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