Having a police officer in sight on my way to work, I was actually forced to drive the speed limit.  Booo.  As I moseyed along, however, another driver – on his cell phone mind you – blew past the both of us.  The nerve.  My mind wandered to thoughts of what might ensue if the car was pulled over, especially given the driver’s apparent disregard for the presence of law enforcement.

Having previously represented state law enforcement officers, I learned that detailed use of force policies dictate what kind of force can be used in a given situation.  Generally speaking, the force must be “reasonable” under the circumstances.

What about the use of force against students in the school setting?

A recent case out of the Fourth Circuit teaches us that in determining whether force is reasonable, Courts will look closely at all of the facts leading up to the force and consider a number of factors that include:

1. the severity of the crime at issue,

2.  whether the suspect poses an immediate threat to the safety of the officers or others,

3.  whether he is actively resisting arrest or attempting to evade arrest by flight,

and in the school context….

4. the suspect’s age.

The ultimate question is whether the totality of the circumstances justified the officer’s actions.

The case out of the Fourth Circuit involved ten-year-old E.W., who was handcuffed by an SRO three days after engaging in a fight with another girl on the school bus.  The investigating SRO viewed video surveillance showing E.W. and another student kick each other, and E.W. striking the other student several times in the arm, shoulder, and head.  The SRO questioned the other student and observed bruises on her leg.  When questioned, E.W. didn’t seem to care or think it was a big deal.  The officer then decided to take E.W. into custody to prove a point.  At the time she was handcuffed, the student was described as “calm” and “compliant.”  When handcuffed, E.W. began to cry.  The officer then decided not to arrest her.  E.W. was only in handcuffs for about two minutes.

Excessive use of force?

Yes!

The Fourth Amendment’s prohibition against unreasonable seizures bars police from using excessive force.  The parties disagreed whether handcuffing E.W. was justified under the circumstances.  E.W. claimed that the physical restraint was unnecessary because the SRO didn’t have a reasonable safety concern.  The SRO, on the other hand, argued that she had probable cause to arrest E.W. based on the events depicted in video surveillance.

According to the appeals court, the SRO took a situation where there was no need for any physical force and used unreasonable force disproportionate to the circumstances presented.  The fact that E.W. was only handcuffed for two minutes did not persuade the appellate court.  Leading up to the arrest, the SRO simply observed the ten-year-old girl sit calmly and compliantly in a closed office surrounded by three adults.  The use of handcuffs in that situation was not objectively reasonable.

Personal liability for the SRO?

No.  The Court determined that, despite the constitutional violation, the officer was entitled to “qualified immunity.”  That is a legal defense that protects government officials from personal liability if the law was not “clearly established” at the time of the events at issue.  Because the law was not “clearly established” on the issue of handcuffing students under the facts in this case, the officer was entitled to qualified immunity.  The court still wants school officials to know:

While [a school] officers’ presence surely keeps the nation’s children safe, officers should not handcuff young students who may have committed minor offenses but do not pose an immediate threat to safety and will not evade arrest. Unnecessarily handcuffing and criminally punishing young schoolchildren is undoubtedly humiliating, scarring, and emotionally damaging.  We must be mindful of the long-lasting impact such actions have on these children and their ability to flourish and lead prosperous lives—an impact that should be a matter of grave concern for us all.

The case is E.W. by & through T.W. v. Dolgos, 884 F.3d 172 (4th Cir. 2018).

 DAWG BONE:  GO EASY WITH THE HANDCUFFS.

Tomorrow:   Analyzing a school district’s alleged “deliberate indifference” stemming from a student’s suicide.