Handcuffing student was excessive force

A school safety officer used excessive force in handcuffing an elementary student who posed no objective threat, but she was still entitled to qualified immunity for the constitutional violation.

This matter involves a school resource officer’s decision to handcuff a calm, compliant elementary school student for fighting with another student three days prior.

In early 2015, Appellant E.W., age ten, was on the bus to school, sitting with her feet in the aisle. Another student, A.W., sat diagonally behind her, also with her feet in the aisle. Video footage from the school bus shows that A.W. appeared to suddenly stomp on E.W.’s shoe. E.W. responded by kicking A.W., and A.W. kicked back from a slouched position. E.W. then stood over A.W. and began hitting her. After four seconds, E.W. returned to her seat, but soon moved in A.W.’s direction again. A.W. raised her leg, and the girls exchanged several kicks again. During the exchange, A.W. appeared to laugh and say something to E.W.

The bus driver called both girls to the front of the bus and eventually temporarily suspended both from riding the bus. Three days later, the girls’ elementary school contacted Appellee Rosemary Dolgos, a deputy sheriff and school resource officer. Dolgos watched the bus’s surveillance video of the girls fighting. She spoke to A.W. and learned that A.W. had three small bruises on her leg.

Dolgos then spoke to E.W., with two school administrators present. In Dolgos’s estimation, E.W. didn’t seem to care about the seriousness of the bus incident. Dolgos told E.W. that adults could be jailed for such behavior, but E.W. continued to act as if the situation wasn’t a big deal. Dolgos then decided to take E.W. into custody.

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. Dolgos later stated that she was concerned about the physical safety of herself and the school administrators because of both E.W.’s actions on video and E.W.’s apathy. But Dolgos also admitted that she didn’t know whether E.W. had any past or current behavioral issues or involvement with law enforcement.

Immediately after being handcuffed, E.W. began to cry. She explained that she didn’t want to go to jail and that she wouldn’t hit A.W. again. Dolgos kept her handcuffed for about two minutes as she cried and apologized. In response to E.W.’s show of remorse, Dolgos decided not to arrest E.W. and removed the handcuffs. Nevertheless, Dolgos informed E.W.’s mother that Dolgos would refer the matter to the county’s Department of Juvenile Services. Frustrated and upset by the treatment of her daughter, E.W.’s mother retrieved her from school and ultimately initiated this action, alleging a violation of the Fourth Amendment under 42 U.S.C. § 1983 for unreasonable seizure and excessive force. The district court found that Dolgos was entitled to qualified immunity for the § 1983 claim. E.W. appealed.

Excessive force

To determine whether an officer is entitled to qualified immunity, courts must examine (1) whether the officer violated a constitutional right and (2) whether that right was clearly established at the time of the alleged violation. Therefore, in this case the court first examines whether Dolgos violated E.W.’s Fourth Amendment rights.

The court concludes that Dolgos’s decision to handcuff E.W. amounted to excessive force, a constitutional violation. In Brown v. Gilmore, 278 F.3d 362 (4th Cir. 2002), this court stated that “a standard procedure such as handcuffing would rarely constitute excessive force where the officers were justified … in effecting the underlying arrest.” But this court has never held that using handcuffs is per se reasonable. And the troubling facts of the present case highlight why a per se rule would be ill-advised.

Under Graham v. Connor, 490 U.S. 386 (1989), the excessive-force inquiry generally considers three factors: the severity of the crime, whether there is an immediate safety threat, and whether the suspect is actively resisting arrest or attempting to flee. But these factors are not exhaustive. Here, the court finds it prudent also to consider the suspect’s age and the school context.

The circumstances in this case are markedly different from Brown. They don’t involve the typical arrest of an adult (or even a teenager) or the arrest of an uncooperative person engaged in criminal activity. Rather, this case has a calm, compliant 10-year-old being handcuffed on school grounds because she hit another student several days prior. These considerations, evaluated under Graham, demonstrate that handcuffing E.W. was unreasonable.

The first Graham factor admittedly weighs against E.W. because assault can be considered violent even if committed by a child. This finding is tempered here by the fact that the offense at issue would be a misdemeanor.

The second Graham factor weighs strongly in E.W.’s favor. The use of force is an intrusion on Fourth Amendment rights, and an officer must have a reason for using or escalating force. The court finds similar cases from the 6th and 9th Circuits instructive. Applying those holdings, Dolgos could not have reasonably believed that E.W. presented any immediately risk of harm to anyone. E.W. was, at 4’4” and 95 pounds, quite small relative to Dolgos, who was a foot taller and 60 pounds heavier. E.W. had no weapons, made no threats, and was calm and compliant as Dolgos spoke to her in a closed office with two other adults present. Given these facts, E.W. posed little threat even if she were to become aggressive.

Moreover, significant time had elapsed since the bus fight, during which E.W. attended school normally, without incident. The school waited three days to even contact Dolgos. Dolgos had no reason to believe that E.W. had any prior behavioral issues and, during the bus incident, E.W. wasn’t violent before A.W.’s physical provocation. 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 third Graham factor also strongly favors E.W. The record contains no suggestion that E.W. attempted to resist or flee from the office at any point.

The suspect’s age, considered here as a factor, favors E.W. as well. Circuit and district courts around the country have recognized that youth is an important consideration when deciding to use handcuffs during an arrest. For example, the 9th Circuit held, applying the Graham factors, that officers who handcuffed an 11-year-old child used excessive force. In addition, the 11th Circuit held that handcuffing a 9-year-old student for five minutes was excessively intrusive. And in James v. Frederick Cty. Pub. Sch., 441 F. Supp. 2d 755 (D. Md. 2006), the district court concluded that handcuffing an 8-year-old child suggested excessive force.

The concurrence suggests that elementary school children 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. For example, in United States v. Gwinn, 219 F.3d 326 (4th Cir. 2000), this court addressed an officer’s interest in protecting an arrestee by requiring him to wear a shirt and shoes outside. Needless to say, handcuffs are different from shoes, and there is no indication in this case that there was any danger to E.W. that justified her wearing handcuffs. Contrary to the concurrence’s suggestion, the court is in good company in concluding that age is a relevant consideration in an excessive-force analysis.

Finally, the location of E.W.’s arrest – her elementary school – also weighs in her favor. Courts have found that officers should exercise more restraint when dealing with student misbehavior in the school context. Society expects that children will make mistakes in school and, yes, occasionally fight. That teachers handle student misbehavior and unruliness on a routine basis without the use of any force suggests that force is generally unnecessary in the school context.

The school context also presents unique considerations not present when officers patrol the street. Handcuffs may undermine students’ perception of the school and their willingness to attend, thereby disrupting their education far beyond the time they actually spend in handcuffs. And being handcuffed is often a source of stigma, which can lead to alienation. In other words, the use of handcuffs is not reasonably expected in the school context because it is counterproductive to the mission of schools. Therefore, the school setting – especially an elementary school – weighs against the reasonableness of using handcuffs.

Thus, the totality of the circumstances demonstrates that Dolgos’s actions were not objectively reasonable in light of the facts confronting her. The court’s analysis incorporates the fact that police officers are often forced to make split-second judgments in circumstances that are tense, uncertain, and rapidly evolving. But the circumstances here were by no means tense, uncertain, or rapidly evolving such that Dolgos was required to make any split-second decisions.

In drawing this conclusion, Dolgos’s subjective motives are not relevant to the court’s reasonableness inquiry. Rather, we consider whether a reasonable officer would have determined that E.W. should be handcuffed as a means of effectuating her arrest. A reasonable officer, in addition to discerning E.W.’s small stature and calm and compliant disposition, would know that the bus driver suspended both students, finding them both culpable for the incident. Further, a reasonable officer would know that E.W. attended school without incident for three days without incident after the fight. No reasonable officer confronted with this information would have determined that handcuffing E.W. for any amount of time was justified.

Dolgos took a situation where there was no need for any physical force and used unreasonable, excessive force disproportionate to the circumstances. As such, E.W. has demonstrated a violation of her Fourth Amendment rights.

Clearly established right

A right may be clearly established if a general constitutional rule already identified in the decisional law applies with obvious clarity to the specific conduct in question. At the time Dolgos seized E.W., the law was clear that, as a general matter, an officer must carefully measure the force used to respond to the particulars of a case. While E.W.’s right not to be unreasonably handcuffed is clearly implicated by more general applications of the core constitutional principle invoked, the court cannot say that Graham put Dolgos on sufficient notice that her conduct was unlawful.

This case is unlike Turmon v. Jordan, 405 F.3d 202 (4th Cir. 2005), where this court concluded that the officer’s conduct – pointing his gun in the plaintiff’s face, pulling him out of his hotel room, and handcuffing him – was an obvious Fourth Amendment violation because the plaintiff was compliant and non-threatening, and there was no evidence that he was or had been engaged in any criminal activity.

Although precedent supports the conclusion that Dolgos 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. And the parties do not point to any controlling authority sufficiently similar to the situation Dolgos confronted. Without more, the court 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.

The court emphasizes, however, that this excessive-force holding is clearly established for any future qualified-immunity cases involving similar circumstances.

As such, Dolgos is entitled to qualified immunity, and the court affirms the district court’s decision as to the § 1983 claim.

Conclusion

School-based policing is the fastest-growing area of law enforcement. While the 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.

Affirmed.

Concurrence

(Shedd, Sr. J.) The majority appears to agree that Dolgos had probable cause to arrest E.W. for her violent assault on another student and to take E.W. into custody for transport to juvenile authorities. For our purposes, therefore, the custodial arrest itself is lawful. Ultimately, the majority affirms summary judgment on immunity grounds, and that holding suffices to end this litigation.

Unfortunately, the majority also unnecessarily holds that E.W. has presented sufficient evidence to conclude that Dolgos used excessive force. In doing so, the majority disregards the fact that Dolgos handcuffed E.W. in preparation for transporting her to juvenile authorities. Compounding this factual error, the majority significantly extends our precedent in a novel and uncertain manner that subjects law enforcement officers to potential liability for simply handcuffing a lawful custodial arrestee.

Sheriffs’ Department policy specified that juveniles taken into custody for criminal-type offenses were subject to the same security requirements as adults and could “be handcuffed or otherwise restrained as necessary during transport and processing. Consistent with departmental policy, Dolgos explained after the fact that “I believed that there was a possibility that [E.W.] could physically act out against me or anyone else nearby as we left the school to go to my patrol car.” This is consistent with the U.S. Supreme Court’s observation in Washington v. Chrisman, 455 U.S. 1 (1982), that “[e]very arrest must be presumed to present a risk of danger to the arresting officer.” The Court has also admonished that judges should be cautious about second-guessing a police officer’s on-scene assessment of the danger presented by a particular situation.

Because the majority appears to agree that Dolgos had probable cause to arrest E.W. and take her into custody, the legality of the deputy’s actions for purposes of this appeal hinges only on her decision to handcuff E.W. Based on common sense and experience, handcuffing is considered part of a normal custodial arrest, even for a relatively minor offense. Thus, the prevailing federal rule appears to be that an arrestee may pursue a Fourth Amendment excessive-force claim based on the use of handcuffs only in very limited circumstances, such as when it causes physical injury. Contrary to the majority’s criticism, there is no doubt that the authorities I have cited support the view that handcuffing an arrested juvenile for custody purposes is generally considered to be entirely lawful. There is scant authority for the proposition that handcuffing an arrestee, without more, may constitute excessive force.

This is not a case where an officer handcuffed a child for disciplinary or instructional reasons. Rather, Dolgos had probable cause to arrest and take E.W. into custody. Before she changed her mind, she was preparing E.W. for transport from school to juvenile authorities. This included handcuffs. Viewing the totality of circumstances, and mindful of the universal acceptance of handcuffing custodial arrestees, the inherent danger presented in every custodial arrest, and the natural unpredictability of juveniles, it is clear as a matter of law that the deputy’s use of handcuffs in this instance was objectively reasonable.

Perhaps E.W. would have gone quietly, but she also might have fled or otherwise resisted. It is not at all farfetched to envision E.W.’s completely understandable emotional reaction to being arrested escalating beyond mere tears during the custodial transport, and one can easily imagine the outcry if, instead of handcuffing E.W., Dolgos had chosen – or been forced – to control E.W. using a more physical “hands-on” approach.

The majority’s decision portends difficulties for law-enforcement officers going forward. It ominously warns that its excessive-force holding is clearly established for any future qualified immunity cases involving similar circumstances, but it does not clearly define the parameters of this holding. It is certainly not unreasonable to read it as opening the door for all custodial arrestees to pursue (but not necessarily win) excessive-force claims based on the mere fact that they were handcuffed. Instead of being able to handcuff arrestees for custodial transport as a matter of course for obvious and practical safety reasons, which is the standard procedure in virtually all custodial arrests, officers subject to the majority decision will now have to make on-the-spot predictions about whether every arrestee will peacefully submit to the transport. The arbitrary age distinction implied by the majority illustrates the dilemma that officers face under the majority’s analysis, and the majority’s analysis certainly leaves open the possibility that the handcuffing in this case could have been reasonable if E.W. had been taller, or heavier, or male.

The majority’s needless ruling that the Fourth Amendment did not permit Dolgos to handcuff E.W. for transport has both besmirched the deputy’s professional standing and put many, if not all, law-enforcement officers (and perhaps other citizens) in this circuit in a potentially dangerous situation going forward.

E.W. v. Dolgos, Case No. 16-1608, Feb. 12, 2018; 4th Cir. (Gregory); DMD at Baltimore (Motz). Robin Ringgold Cockey for Appellant; John Francis Breads Jr. for Appellee. VLW No. 018-2-023, 50 pp.