LF: Appeals Court: Handcuffing A Compliant Ten-Year-Old Is Unreasonable But Deputy Had No Way Of Knowing That

Title: Appeals Court: Handcuffing A Compliant Ten-Year-Old Is Unreasonable But Deputy Had No Way Of Knowing That
Source: TechDirt
URL Source: https://www.techdirt.com/articles/2 ... -had-no-way-knowing-that.shtml
Published: Feb 16, 2018
Author: Tim Cushing
Post Date: 2018-02-19 07:28:54 by Deckard
Keywords: None
Views: 3714
Comments: 33

from the those-without-common-sense-will-inherit-the-earth dept

Time and time again, courts remind officers of the law don't actually have to know the law to enforce the law. Yes, that's how it all works out for citizens, who are just as frequently reminded ignorance of the law is no excuse. This has lead to the prevalence of pretextual stops where minor traffic violations (that may not even be violations) are used to initiate long conversations with law enforcement officers with the end goal of obtaining consent for a search or to bring a drug dog onto the scene.

Qualified immunity, along with the good faith exception, have allowed an untold amount of law enforcement abuse. This has completely skewed judicial perception, turning law enforcement into noble fools and raising expectations of citizens' legal knowledge to that of seasoned criminal defense lawyers. Here's how occasional Techdirt contributor Andrew Norton breaks down the current state of judicial affairs:

2005, when [Tasers] were still being introduced to law enforcement at large, was a bad year for taser-victims, but not cops. In a California case, Bryan v. McPhearson, the court decided the officer’s actions qualified under the doctrine of qualified immunity (cops will only be responsible for excessive force if they act in a way that is so unreasonable any cop would have known such conduct was against the law – basically acting criminally) Since ‘the law on taser police brutality’ was still evolving when the incident happened in 2005 the cop should get a break from liability. You read that right, because no-one had told the cop, he didn’t have any notion of right and wrong. Ignorance is an excuse, if you wear the badge.
It’s this that characterizes many police brutality and excessive force cases. On one hand the police officers are professionals dedicated to knowing and enforcing the law, when they’re on the prosecuting side, their word is solid and their testimony is unquestionable. However if they’re a defendant, they’re amateurs who don’t know the law, can’t tell right from wrong, and whose training and instincts are so poor, that they can’t be held responsible for decisions made when doing their job because they have to do them quickly.

That's the ugly reality. Things that seem obvious to citizens are somehow inscrutable to police officers with years of legal training and, quite often, a degree in criminal law. Yet another "case in point" is this recent Fourth Circuit Appeals Court decision, in which something that seems obviously wrong is given a judicial hand-wave because the obvious wrong had not been "clearly established" by these judges in this circuit dealing with a carbon copy of these circumstances.

The civil rights lawsuit involves a minor who was in fourth grade at the time the violation occurred. E.W. is the minor suing. A bus surveillance camera caught her and another student fighting on the bus. Both were suspended by the school from riding the bus.

For whatever reason, the school didn't do anything about the altercation for 72 hours. Then they called in deputy sheriff Rosemary Dolgos, the school's resource officer. Dolgos questioned the other party in the fight and asked if she was injured. A.W. (the other minor in the altercation) showed the officer a couple of small bruises on her leg.

E.W. was summoned to the office. According to the deputy, E.W. didn't seem to care enough about the fight on the bus. From the opinion [PDF]:

Dolgos attempted to emphasize to E.W. the seriousness of the situation and the possible repercussions, telling her that adults could be jailed for such behavior. Still, in Dolgos’s opinion, “E.W. continued to act as if the situation simply was not a ‘big deal.’”

It wasn't a big deal. Or at least it wasn't something the school couldn't have handled without a law enforcement officer. But since a law enforcement officer was involved, law enforcement proceeded without any regard for the actual severity of the situation. Deputy Dolgos, presiding over an apathetic fourth grader, feared for her safety.

Dolgos placed E.W. in handcuffs from behind and reseated her. Dolgos inserted two fingers between the handcuffs and E.W.’s wrists to ensure that they were not too tight. In her affidavit, Dolgos stated that she was concerned about the physical safety of herself and the school administrators because of both the incident she observed in the surveillance video and E.W.’s apathy. Dolgos expressed concern in the affidavit that E.W. might act violently against her or someone else if she attempted to walk E.W. from the school to her patrol car.

Dolgos based these observations on her lack of knowledge.

Dolgos also admitted, however, that she had no idea whether E.W. had “any past or current behavioral issues or past involvements with law enforcement.”

She also likely could have controlled the situation without handcuffs, especially considering E.W.'s apparent compliance.

According to Dolgos, E.W. stood 4’4” and weighed about 95 pounds, while Dolgos stands 5’4” and weighs 155 pounds.

Once placed in handcuffs, E.W. began crying and apologized for the fight. She said she did not want to go to jail and promised she wouldn't hit A.W. again. Apparently this was the reaction Dolgos was looking for. Having been taken seriously enough as a law enforcement officer, Dolgos removed the cuffs and released E.W.

The school, however, remained unmoved. It contacted E.W.'s mother and told her they would refer the matter to juvenile services. E.W.'s mother responded with disbelief ("[s]o you're going to put my… daughter in the system when she's 10?") and came to the school to retrieve her daughter. The lawsuit followed.

The district court took a brief glance at Dolgos' motion to dismiss and sided with the deputy. The decision was, at best, perfunctory.

In a short paragraph, without citing any case law, the district court concluded that Dolgos’s actions did not amount to excessive force because E.W. was handcuffed for only two minutes and then released to her mother. The court further concluded that Dolgos was “at least” entitled to qualified immunity as to the § 1983 claim.

The appeals court disagrees with the will-this-do assessment of the lower court. It finds the use of force excessive, considering the surrounding circumstances. In doing so, it finds Dolgos' assertions ridiculous.

Here, Dolgos could not have reasonably believed that E.W. presented any immediate risk of harm to anyone. Like the adult suspect in Solomon, E.W. had no weapons and made no threats, see 389 F.3d at 174, and like the eleven-year-old in Sonora, she was calm and compliant as Dolgos spoke to her, see 769 F.3d at 1030. In fact, Dolgos recognized that E.W. appeared calm. See J.A. 23–24. Also similar to the suspects in Solomon and Sonora, E.W., at 4’4” and ninety-five pounds, was quite small relative to Dolgos, the arresting officer, who was a foot taller and sixty pounds heavier. See Sonora, 769 F.3d at 1030; Solomon, 389 F.3d at 174. Not to mention, E.W. was in a closed office and surrounded by two school administrators and a deputy sheriff. Given these facts, E.W. posed little threat even if she were to become aggressive.
The significant time that had elapsed—without incident—since the fight on the bus further negates any notion that E.W. posed an immediate threat. While the scuffle took place on Tuesday, January 6, East Salisbury Elementary School waited three days to even contact Dolgos. In the interim, E.W. was allowed to and did in fact attend school without incident, indicating that she did not pose a risk to the children around her, much less to the adults.

In addition, the ignorance of the underlying circumstances Dolgos admitted to (and likely hoped would weigh in her favor by making her unreasonable actions reasonable) only further adds to the factors weighing against handcuffing a compliant 10-year-old.

Moreover, Dolgos had no reason to think that the scuffle between E.W. and A.W. was anything but an isolated incident. E.W. had no prior behavioral issues or involvement with law enforcement, nor did Dolgos have any indication that she did. The use of force is an intrusion on Fourth Amendment rights, and an officer must have a reason for using or escalating force. See Graham, 490 U.S. at 396 (intrusions on Fourth Amendment rights must be reasonably necessary given countervailing governmental interests). Even as to the altercation on the school bus, E.W., while unjustified in retaliating, did not become violent without physical provocation by A.W. Indeed, even a child with a history of attacking school officials should not be handcuffed if, at the time of handcuffing, she did not present a danger.

The appeals court also points to plenty of precedent, finding that handcuffing children tends to be excessive force in almost any situation. It also notes that the use of handcuffs in a school setting tends to undermine the mission of schools and school personnel. Students who see other students handcuffed for behavior that could be addressed by parental or school discipline are far more likely to distrust school administration and will be less likely to bring disciplinary issues to their attention. In extreme cases, parents and students may decide to take their scholastic business elsewhere, leaving the school with fewer students.

The court finds Deputy Dolgos violated the Fourth Amendment.

Dolgos took a situation where there was no need for any physical force and used unreasonable force disproportionate to the circumstances presented. We therefore find that Dolgos’s actions amount to excessive force. As such, E.W. has demonstrated a violation of her constitutional rights under the Fourth Amendment.

But here's where it all goes haywire. The court lists numerous reasons -- including circuit precedent -- why Dolgos should have known handcuffing children (absent extreme circumstances) would result in Fourth Amendment violations. It holds that this handcuffing was a Fourth Amendment violation. And then it goes on to declare that Dolgos can rely on her ignorance and her complete lack of better judgment to escape liability.

Conversely, it was not obvious that Dolgos could not handcuff E.W. here. Although precedent supports the conclusion that Dolgos acted unreasonably and violated E.W.’s Fourth Amendment rights, it did not put Dolgos on sufficient notice that her conduct was unlawful. Indeed, this Court previously stated that the use of handcuffs would “rarely” be considered excessive force when the officer has probable cause for the underlying arrest. See Brown, 278 F.3d at 369. And the parties do not point us to any controlling authority sufficiently similar to the situation Dolgos confronted. In fact, E.W. chiefly relies on Graham to define the clearly established law. Without more, we cannot conclude that it would have necessarily been clear to a reasonable officer that handcuffing E.W. would give rise to a Fourth Amendment violation.

This will help handcuffed students in the future, but it does nothing for E.W. And this conclusion comes after a lengthy diversion in the opinion in which the concurring opinion is called out for its willingness to say that handcuffing children reasonable.

The concurrence seems to suggest that elementary school children like E.W. are so inherently unpredictable and uncontrollable that officers would be reasonable in restraining them for our collective safety. Unsurprisingly, the concurrence’s authorities do not actually support that position or apply to this case. The concurrence cites to Knox Cty. Educ. Ass’n v. Knox Cty. Bd. of Educ., 158 F.3d 361 (6th Cir. 1998), for the proposition that young children are “unpredictable, in need of constant attention and supervision,” such that “[e]ven momentary inattention or delay in dealing with a potentially dangerous or emergency situation could have grievous consequences.” Post at 41 (quoting Knox, 158 F.3d at 378). What the concurrence leaves out is that Knox was discussing whether teachers may be required to undergo drug-testing in order to protect young children, who “could cause harm to themselves or others while playing at recess, eating lunch in the cafeteria (if for example, they began choking), or simply horsing around with each other.” See 158 F.3d at 378–79. Unless the concurrence suggests that we handcuff children as a reasonable method of “supervision” to prevent choking and horseplay, Knox has little relevance to the case at hand.

So, the concurrence is only right so far as it agrees with the rest of the court that Deputy Dolgos can walk into a school office and slap handcuffs on a ten-year-old without having to worry about being held liable for violating the student's Fourth Amendment rights. On all other points, it's somehow wrong, but only because it chose the wrong standard of law enforcement ignorance to cite. The concurring opinion somehow manages to be worse than the majority opinion, because it wouldn't even go so far as to establish the handcuffing of compliant prepubescents as "unreasonable."

This is a good decision as far as establishing a baseline goes, but the cases cited suggest the baseline had already been set, but only as to eight-year-olds (James v. Frederick Cty. Pub. Sch.) and eleven-year-olds (Tekle v. United States). Ten-year-olds are apparently in need of their own separate precedent. This is how much the doctrine of qualified immunity has erased the word "justice" from the justice system. Anyone who suffers a Fourth Amendment violation had better hope someone in exactly the same circumstances landed an appellate unicorn with their lawsuit, or law enforcement skates away with another win and a very slight narrowing of the scope of civil rights violations officers can get away with.

I stopped reading this article by Tim Cushing published in Techdirt and categorized it as yet another one of the many biased Yellow Journalism articles posted by Deckard since I found every link in the article I clicked on led back to article after article also published in Techdirt and used as qualified references for documenting source authority.

That was definitely a most subversively method of misleading readers’ thought process.

It is best to not let yourself be swayed by Deckard’s agenda in his effort to have Tim Cushing try to control your mind and tell you what to conclude. Read the decision by the UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT and then you can form your own conclusion as to whether you personally agree or disagree with the decision.

Open-mindedness is a wonderful thing to behold.

Psalm 119:18 Open my eyes that I may see wonderful things in your law.

The cops had no business getting involved in the first place. It was a minor scuffle on a school bus.

Used to be - back when Amerika was still a free country - that the parents would have been notified, the two kids would have apologized to one another and that would be the end of it.

Now punitive polulists like Parsons see any infracton, no matter how insignificant as an excuse to get law enforcement involved.

Qualified immunity, along with the good faith exception, have allowed an untold amount of law enforcement abuse.

You like it just fine when cops can skirt the law in order to inflict abuse upon citizens, don't you?

Seriously? For your information - the link to the ruling was embedded in the article.

E.W. was summoned to the office. According to the deputy, E.W. didn't seem to care enough about the fight on the bus. From the opinion [PDF]:

What we have here ...

Is an opportunity not to be mind-channel when I thoughtfully posted a link so everyone interested can read the decision by the court and decide for themselves what to conclude.

Can I get an “Amen” on that ...

The link was already embedded in the article - it confirms the facts that were written within.

No,it is not. There are times when it is a perfectly reasonable thing to do. Maybe even the only reasonable thing to do. The first that comes to mind is to keep the kid from possibly hurting himself if you have to leave him unattended for some reason.

BTW,do NOT confuse handcuffing a kid with knocking him down or tazing him and then handcuffing him with his hands behind his back as you pin him down with a knee. There need be no violence at all to control a 10 year old.

In the entire history of the world,the only nations that had to build walls to keep their own citizens from leaving were those with leftist governments.

Why don't you find an article about a cop who spilled his milk at a donut shop and didn't clean it up. That would be outrageous.

The link was already embedded in the article -

That’s fine and that should have been ALL that was needed to be said….following a two-sentence introduction to it.

I never go that far into the article to see the link you mention was in the article….because I took a “quit trying to feed me shit attitude” and stopped reading after the author continually, time after time, linked to his own publication as a qualified source of authority.

… it confirms the facts that were written within.

No, it doesn’t. The information in link fully reveals the decision by the court….the information in the article only shows the author’s bias and reflects his attempt to influence people’s thoughts.

The article is indeed, yellow journalism.

"Psalm 119:18 - Open my eyes that I may see wonderful things in your law."

He posted the facts of the case - sorry you disagree and feel that cops don't need to know the laws that they are enforcing.

Oh - and that you defend chickenshit cops who fear for their lives at the sight of a kid a foot shorter and 60 pounds lighter than they are.

If they were called by a COMPLAINANT, they did. Dumb shit. Most departments have it written in policy and procedure that officers WILL respond to EVERY call dispatched to. My old departments 911 center also had policy that dictated that dispatchers WILL dispatch the closest available patrol car FOR EVERY COMPLAINT PHONED IN... and they are all recorded. So it's trackable.

These rules are to curb laziness, poor choices and official misconduct (the illegal act of a sworn official not doing his job).

IOW's, shut your pud pucker. When the cops get called by the enabled WEAK pussified sheeple, they've gotta at least send a car and show up. Whether your AGENDA likes it or not.

The cops ...

You always try to spin everything in an attempt to substantiate your warped point of view.

There were no “COPS” asshole. There was only ONE school resource officer.

[The school resource officer] had no business getting involved in the first place.

Sure she did….most definitely.

She may arguably, in the opinion of some, have used the wrong procedure….but there can be no argument against her having many reasons to get involved.

One reason is that the spat could have continued on the next bus ride and escalated into an incident like this: Student facing multiple charges after stabbing on school bus.

What is the problem you have that prevents you from seeing how wrong your are in the hate-filled posts you make where you always condemn everyone for everything….even after everyone points out the errors to you?

One reason is that the spat could have continued on the next bus ride and escalated into an incident like this:

So what - all of his stories are backed by verifiable facts.

That’s BULLSHIT and you must recognize it.

All of his stories are hate-filled opinion pieces.

That’s WHAT …

Anyone expressing an opinion contrary to yours, especially when discussing law enforcement violating procedures, is a "hater".

She may arguably, in the opinion of some, have used the wrong procedure….
But not you, of course - in Parsons Bizarro World, cops are never wrong.

In my world, I know how to objectively think things through after seeing both side.

That is something you desperately need to learn to do.

He might be that stupid. He hopes that most of your LF posters are that stupid. Then he can TRIGGER them into an anarchist foaming at the mouth frenzy. lol

Actually, DickTard is so self important, he probably feels no LEO should do anything DickTard doesn't approve of.

You'd think that common sense and not abject fear would prevail and they'd be able to choose HOW to deal with the situation.

The court allows the police to use judgment and handcuff children under “extreme circumstance.”

The irony is that the court then decides, after the fact, if the “circumstances” were “extreme."

The courts would never tie an officers hands when it comes to officer safety. They would never take that decision from the officer... but they will rule if an officer makes poor choices with the benefit of the doubt the courts normally give LE.

One also needs to take in consideration the liberalness of the court deciding. Kinda like the libtarded courts that deemed Trumps immigration policies to be unconstitutional... and then their libtarded decision was overturned by a higher court.

It ends with the Supreme Court decision... I've said that here and LP millions of times but the self important Paultards just don't listen. When the Supreme Court makes a decision, like it or not, it's LAW. It's the last train station the train stops at.

The presidents greatest power is selecting Supreme Court justices. That's why when the Paultards chanted the "lessor of evil is still evil" bullshit, I tried to tell the fear mongers that even a RINO asshole president has a chance to put a constitutional minded justice in the USSC... but a democrat snowflake shitbag like KILLary or Commie Sanders (or the potato) won't ever seat nothing but a Ginsburg.

The Paultards helped seat the two reverse racist shitbag justices that the potato seated... with their contempt of both parties and their division of the votes.

Hell, to this day 15 years later, Hondope, Decktard and the other closet libtards still spit Hate only at the RINO's like GW and Mitt. lol

from the those-without-common-sense-will-inherit-the-earth dept

“Truth is treason in the empire of lies.” - Ron Paul

Those who most loudly denounce Fake News are typically those most aggressively disseminating it.

“Truth is treason in the empire of lies.” - Ron Paul

Those who most loudly denounce Fake News are typically those most aggressively disseminating it.

“Truth is treason in the empire of lies.” - Ron Paul

Those who most loudly denounce Fake News are typically those most aggressively disseminating it.

“Truth is treason in the empire of lies.” - Ron Paul

Those who most loudly denounce Fake News are typically those most aggressively disseminating it.

“Truth is treason in the empire of lies.” - Ron Paul

Those who most loudly denounce Fake News are typically those most aggressively disseminating it.

“Truth is treason in the empire of lies.” - Ron Paul

Those who most loudly denounce Fake News are typically those most aggressively disseminating it.

“Truth is treason in the empire of lies.” - Ron Paul

Those who most loudly denounce Fake News are typically those most aggressively disseminating it.

“Truth is treason in the empire of lies.” - Ron Paul

Those who most loudly denounce Fake News are typically those most aggressively disseminating it.

“Truth is treason in the empire of lies.” - Ron Paul

Those who most loudly denounce Fake News are typically those most aggressively disseminating it.

“Truth is treason in the empire of lies.” - Ron Paul

Those who most loudly denounce Fake News are typically those most aggressively disseminating it.

“Truth is treason in the empire of lies.” - Ron Paul

Those who most loudly denounce Fake News are typically those most aggressively disseminating it.

“Truth is treason in the empire of lies.” - Ron Paul

Those who most loudly denounce Fake News are typically those most aggressively disseminating it.

“Truth is treason in the empire of lies.” - Ron Paul

Those who most loudly denounce Fake News are typically those most aggressively disseminating it.