Toolbox Tuesday!! Can you be liable for using physical restraint?

The 9th Circuit Court of Appeals has granted qualified immunity to educators in California who were sued personally over the use of restraint and seclusion that allegedly exceeded state guidelines and IEP standards.  According to the lawsuit, this young boy was restrained at least 112 times and spent 2,719 minutes in isolation over a three-year period starting when he was in second grade.  Yikes! The parents alleged that this far exceeded what was permitted by the IEP, that it was inconsistent with state guidelines, and that it was not discussed at IEP Team meetings. 

The educators asked the court to dismiss them from the case due to the “qualified immunity” they enjoy under federal law. The district court refused to do so, but the Circuit Court reversed that decision, holding that the educators were entitled to immunity because they did not violate legal standards that were “clearly established.”   The court took particular note of the specific context:

The use of physical restraints and seclusion by school officials to address the challenges presented by a severely emotionally disturbed student whose behavior poses a safety threat to others.  

In the Toolbox Training our firm provides we recommend that physical restraint not be mentioned in an IEP or BIP.  It doesn’t need to be “authorized” since it’s already authorized by state law.  It should not be prohibited because you can never predict when an emergency might require restraint.  It’s not the type of “positive behavioral supports, interventions or strategies” that BIPs should contain. It’s a response to an emergency, an effort to prevent greater harm. 

The use of restraint needs to be documented and reported promptly to parents.  If it is used frequently, there is a bigger problem at hand, and the district should diligently search for a better method of addressing the student’s issues.  Can parents sue individual educators if they believe that restraint was not called for, or was used excessively?  Sure they can. But here is a high level court holding that qualified immunity is available to those educators. 

One final point about this case: the suit was based on alleged violations of the right to bodily integrity under the 4th Amendment.  That is the specific legal standard that the court said was not  “clearly established.”  Parents could still pursue a simpler legal theory—that the district did not faithfully implement the IEP.  If the district does not faithfully implement a student’s IEP it can be held accountable in a legal proceeding.  Individual educators should be held accountable long before that by their supervisor.

This one is A.T. v. Baldo, decided in an “unpublished” opinion by the 9th Circuit on December 24, 2019.  We found it at Special Ed Connection, 119 LRP 47996.


Tomorrow: “The stuff of nightmares.”