The dangers of “standing by your man.”

Yesterday we told you about the Kentucky case involving the SRO who handcuffed an 8-year old boy, with the cuffs above the elbows and the kid’s arms pulled tight behind his back. The court did not approve. It held that this was a constitutional violation and a use of excessive force. It was only due to the “qualified immunity” doctrine that the SRO escaped personal liability.

The suit also sought relief from the sheriff of the county in his “official” capacity.  The SRO was an employee of the county sheriff’s department, which contracted with the school district to provide SROs.  When the video of the crying, squirming little boy went viral, the sheriff issued a statement, which read, in part, as follows:

Deputy Sumner responded to the call and did what he is sworn to do and in conformity with all constitutional and law enforcement standards….I steadfastly stand behind Deputy Sumner who responded to the school’s request for help.  Deputy Sumner is a highly respected and skilled law enforcement Deputy, and is an asset to the community and those he serves.

Tammy Wynette could not have said it better.  The sheriff is “standing by his man.”

This turned out to be a mistake.  The plaintiff produced a “handcuffing expert” in the litigation, who 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…nor does he know of any program that teaches that method.”

It’s not surprising that the plaintiffs found an expert to support their position. But the defendant’s expert was not much help to the defendants:

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.

The court held that the sheriff’s department was liable for the constitutional violation because the sheriff ratified an illegal action. The court noted that:

*The sheriff testified that the handcuffing was consistent with the department’s policy;

*He testified that he is not interested in how often kids are being handcuffed;

*He said the “behind the back, above the elbows” technique was acceptable practice;

*He has not implemented any changes in how SROs are trained.

It seems pretty clear that the judge in this case was offended by what he saw on the video.  He ruled that the SRO violated the boy’s constitutional rights, but he could not impose personal liability on the SRO due to the qualified immunity doctrine.  The sheriff’s office, however, cannot assert a qualified immunity defense. So when the sheriff doubled down by standing by his man, he cleared the way for the court to impose liability.  All that remains to be decided is the amount of the check the county will be writing.

The case is S.R. v. Kenton County Sheriff’s Office, decided by the federal court for the Eastern District of Kentucky on October 11, 2017.  We found it at 2017 WL 4545231.


Tomorrow: the three most important parts of a real estate deal: “location, location, and the superintendent’s certificate.”