Today’s Daily Dawg is going to be longer than usual. I want you to get the full picture of the facts behind the court case I will tell you about. The case involves a preliminary ruling by a federal court holding that an SRO, an assistant principal, and the school district all face potential liability due to police questioning of the student at school. This happened in Missouri, but it could happen in Texas. Please read on.
Let’s play word association. What comes to mind when you hear the word “seizure”? That question separates those who think more like doctors from those who think more like lawyers. For medical purposes, a seizure is a serious event that happens to a person. For the lawyers, a seizure invokes the 4th Amendment to the Constitution. That’s the one that protects us from unreasonable searches and seizures. We are seeing claims of “unreasonable seizure” by police officers operating in public schools on the rise.
Let’s play word association again. Consider the word “seizure” in its Constitutional sense. What comes to mind? A police officer handcuffing a suspect? Yes—that’s a seizure. The classic Good Cop/Bad Cop questioning in the small, windowless room while a single naked light bulb swings ominously overhead? That’s a seizure. But how about this: two police officers quietly questioning a 16-year old, straight-A student for 10-20 minutes in an office at the school with the door shut and no one else present. No force was used. No one touched the student. No one told her she could not leave. Is that a “seizure”?
The court noted that a “seizure” occurs when government actors have “by means of physical force or show of authority…in some way restrained the liberty of a citizen.” Given all of the circumstances, would a reasonable person have felt free to just walk away? If not, you have a “seizure.” In this case the SRO pulled the student out of class and told her to report to an office for questioning by two police officers. The court put it this way:
L.G. has alleged that she did not feel free to leave, and it is reasonable to infer that a minor student who was directed not to attend class so that she could be questioned by police officers, and who was then left alone with those two officers, would not have felt free to ignore [the SRO’s] directions.
So it was a “seizure.” Next issue: Was this seizure “reasonable”? The court noted that seizures are considered “reasonable” if they are supported by a warrant, or “exigent circumstances.” There was no warrant here. Nor did the circumstances appear to require the immediate questioning of this student during the school day. The cops were not looking into an imminent bomb threat or some immediate threat. If they had, perhaps the court would have deemed this to be a case of “exigent circumstances.” Instead, they were questioning this student about allegations that another student was sexually assaulted outside of school. The police questioned L.G. as a potential witness, not as a suspect. She was being questioned because she had the same first name as the victim.
Thus the court concluded that this was a “seizure” in the absence of a warrant or the type of circumstances that would justify the seizure. The student had plausibly alleged a violation of her 4th Amendment rights. The case would not be dismissed. The parties would proceed to develop evidence and prepare for trial.
Things got decidedly worse for the SRO and an assistant principal when the court turned to the issue of their personal liability. The student did not just sue the two officers who questioned her—she sued the SRO who told her to report for questioning, and the A.P. who did not intervene. As the SRO escorted the student to the room for questioning, the A.P. asked the SRO if he was needed, and the SRO said no. So the 16-year old girl went into the room for questioning alone. Note: the court held that it was the SRO who “seized” the student even though the SRO did not participate in the questioning and was not in the room when it happened. Key Quote:
L.G. has alleged that [the SRO] was the one who directed her out of her class room and told L.G. that two CPD officers had come to the school to question her, and who led L.G. into the room with the other two officers and left her there after closing the door. In short, the complaint alleges that [the SRO] seized L.G. The fact that [the SRO] did not herself question L.G. does not mean that she cannot be sued for unconstitutional seizure. (Emphasis added).
So it’s not the questioning that is the “seizure.” It’s the directing, telling, leading and leaving her there alone with the door shut. It’s the SRO who faces personal liability for an unconstitutional seizure.
What about the A.P.? The claim against him is one of negligence and is governed by state law. The A.P. sought dismissal of the claim against him on the basis of “official immunity,” which protects government officials in Missouri from liability when they are using their discretion. Texas applies a similar standard.
The court refused to dismiss the claim against the A.P. because he is charged with flat out violating a local policy. That policy says that when the police question a student at school “the school principal or designee will be present.” Recall that the A.P. asked the SRO if he was needed, was told that he was not, so he went about his business. Perhaps he forgot the school policy that left no room for discretion: “the school principal or designee WILL BE PRESENT.” No room for a judgment call there.
What about the school district? That case remains alive as well, although the plaintiff bears a heavy burden to show that the district has a widespread custom or practice of ignoring its own policy and permitting seizures of students without a warrant, exigent circumstances or the presence of a school official.
This is a good case to think about on Toolbox Tuesday. The Toolbox is our firm’s one-day training program dealing with discipline of students with disabilities. Tool #10 is “calling the cops” or otherwise involving law enforcement. Schools can use Tool #10, but as this case reminds us, the tool needs to be used properly.
The case is L.G. v. Columbia Public Schools, decided by the U.S. District Court for the Western District of Missouri on May 12, 2020. We found it at 76 IDELR 179.
We’re going to talk about this in detail at our Zooming with the Dawg this Friday. I’ll be joined by Blake Henshaw from our Houston office. Hope to see you there!
DAWG BONE: TAKE A LOOK AT YOUR SCHOOL’S POLICY ABOUT POLICE QUESTIONING STUDENTS DURING THE SCHOOL DAY.
Tomorrow: Let’s talk more about local policy.