“Brief seizures are seizures all the same….”

Don’t you hate the car congestion when you try to pick up family members at the airport?  There you are carefully nudging your Subaru forward, trying to get past the Lexus in front of you while avoiding the Chevy coming up too fast on your left. This van in front of you is taking way too long with the goodbye hugs, and won’t get out of the way. Finally you slide into the coveted inside position, but your family is just now getting the bags and it will be a few minutes before they emerge. Do you stay or do you go?  Do you risk another circuit around the track? 

Just then the airport cop approaches your vehicle and tells you to move it. What happens then?

According to Mr. Vardeman, things went south at Hobby Airport very quickly.  One officer told him to move, using vulgar language and discounting his explanation that his family was just around the corner.  The officer asked for help. By the time the next officer came on the scene, the family had arrived and Mr. Vardeman was loading the bags in the car. According to the lawsuit, the officer’s opening line was “you need to move the f-ing car or I will whip your bitch ass.” Mr. Vardeman’s adult daughter, while holding her baby, attempted to get between the two men and the officer “forcefully pushed” her.  Which prompted Mr. Vardeman to push the officer away. Uh oh.  Here’s what happened next, according to the lawsuit:

Simpson [the airport cop] aggressively and violently struck Mr. Vardeman with a closed fist, in the right side of his face with such force that it knocked him to the ground. Simpson then proceeded to walk around and stand over Vardeman in a menacing manner and acting as if [he] was going to strike Vardeman again, while he was still on the ground. It was only when Vardeman’s wife got in front of Simpson did he walk back to the sidewalk away from Vardeman..

Loyal Daily Dawg Readers must be thinking to themselves right about now: “Interesting story, Dawg, but what’s it got to do with school law?” 

Mr. Vardeman sued the city and Officer Simpson, alleging, among other things, a violation of the 4th Amendment, an unconstitutional “seizure.”  Therein lies the connection with school law. The Daily Dawg has reported three cases in 2022 in which plaintiffs allege that the physical restraint of a student was not just “excessive force,” but also an unconstitutional seizure under the 4th Amendment.  So when the 5th Circuit issues a published decision that sheds light on what is and is not a “seizure” we need to pay attention.

The federal district court tossed the claim out, holding that what Officer Simpson did was not a “seizure.”  The 5th Circuit reversed that. That’s why this case is Dawgworthy. 

Reviewing the case law, the 5th Circuit noted that all of the circumstances have to be considered. The issue boils down to this: did the conduct of the officer communicate “to a reasonable person that the person was not free to decline the officers’ requests, or otherwise terminate the encounter.” Put yourself in Mr. Vardeman’s position, prone on the pavement at Hobby Airport, as the officer who put you there after shoving your daughter who was holding your grandchild, hovers above you in a menacing manner? 

The court cited SCOTUS for the notion that “brief seizures are seizures all the same.”  Thus the conclusion was that the allegations in this suit, if proven true, could support the conclusion that what Officer Simpson did was a “seizure,” thus opening the door to liability for a violation of the 4th Amendment. 

This is going to come up in a school district case involving allegations that the physical restraint of a student lasted longer than it should have. We have plenty of legal authority to support the use of physical restraint on students in cases of genuine emergency involving imminent threats of serious physical injury. But this case highlights, again, the critical need for good training with regard to when and how physical restraint is used. 

It's Vardeman v. City of Houston, decided by the 5th Circuit on December 21, 2022. It will be published in the Federal Reporter, but for now can be found at 2022 WL 17829434.


Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com

Tomorrow: Toolbox Tuesday!!