Toolbox Tuesday: Police misconduct in the Case of the Red Doritos?

While the principal searched for the missing Red Doritos, an eight-year old and a School Resource Officer struggled over a Capri Sun juice box.   This all happened in the principal’s office, where the third grader had been brought because of his misbehavior on the playground.  Just a typical day in the elementary school.  Here’s what happened in the office:

[The boy] continued his temper tantrum—flailing at the officers, screaming that he wanted his “red Doritos,” and trying to escape the office. At one point [the boy] dove under a table and unplugged cords from the wall.  According to [the boy], the officers pulled [him] out from under the table by his feet and ankles.

Obviously, the Red Doritos were pretty important to the boy, so the principal went out on a search mission.  Meanwhile, two SROs dealt with the student:  Baez, (The Veteran) and Santora (The New Guy).  According to the kid, The Veteran, without any provocation, “picked up the juice box and sprayed it on” him.  According to The Veteran, the kid intentionally sprayed the juice box on both officers, at which point The Veteran tried to take it back, and in the struggle, the kid sprayed himself.  The court’s opinion does not tell us what flavor of juice it was. 

This incident alone makes this case a candidate for a Made-For-TV movie, but it gets better. The New Guy had a change of heart:

Nonparty Santora [New Guy] originally corroborated Baez’s [Veteran] version in incident reports.  However, Santora later recanted. In his deposition, Santora testified that, in creating the incident reports, Baez had pressured Santora to present the facts in a light favorable to Baez.  But Santora testified that the juice-squirting incident actually transpired as follows:

From what I saw, Tony [the Veteran] put the straw in.  It looked like he may have taken a sip, I’m not sure.  He gave the juice box to the kid. The kid grabbed it with two hands, started spraying it all over Tony, the desk, slightly me.  Tony grabbed it, ripped it out of the kid’s hands, and sprayed it up and down on the kid’s face. (Emphasis added).

Now here is the test, Readers.  Consider the little boy’s version of events.  Assume that it happened exactly as he said it happened.  Is your conscience shocked?  A student in a public school has a right to bodily integrity.  Previous cases have established that certain types of misconduct by adult school employees violate that right.  Sexual molestation is at the top of that list.  But what about a spray of juice to the face?  The standard in the 6th Circuit, where this case occurred, is if the “conduct is so brutal, demeaning, and harmful as literally to shock the conscience.”

So waddayathink? Is your conscience shocked?  Let me add one more important factor: the boy was diagnosed with anxiety and ADHD and had been a behavior problem since first grade. 

This court held that it was too close a call to toss the case out.  The SRO’s Motion for Summary Judgment was denied.  Moreover, the court held that the law in this area is “clearly established,” meaning that the SRO was not entitled to qualified immunity. Although there are no known cases involving juice-squirting to the face, the court reasoned this way:

…a reasonable school employee knew or should have known that actions taken with the intent to injure a special education student and without any pedagogical purpose were constitutionally impermissible, even if the specific actions in question—such as juice-squirting—had not previously been held unlawful.

This is Toolbox Tuesday, and so I should point out that none of the ten “tools” involve juice-squirting.  The Toolbox puts the emphasis on positive behavioral interventions via a BIP, especially when a young child is out of control.  As this case illustrates, when the grown-ups also lose control, there can be serious consequences.

It’s Kouider v. Parma City School District BOE, decided by the federal court for the Northern District of Ohio on August 19, 2020.  It’s reported in Special Ed Connection at 77 IDELR 71 (N.D. Ohio 2020).


Tomorrow: Good grades don’t always mean good evidence….