Fourth Circuit: It’s Not Okay to Handcuff School Children But Go Ahead and Do it Anyway

Two girls got into a fight on the school bus on their way to East Salisbury Elementary School in Salisbury, Maryland. The bus driver suspended them both from the bus for three days, but the school decided more was needed. They called their school resource officer, sheriff’s deputy Rosemary Dolgos, who spoke with both girls.

After determining that one girl, A.W., had slight bruising, Dolgos moved on to speak with the second, E.W., about the fight. Because E.W. didn’t seem concerned enough, Dolgos opted to teach the fourth-grader a lesson by handcuffing her.

Dolgos told E.W. that she was there to discuss what took place on the bus. But, in Dolgos’s estimation, “E.W. [did not] seem to care.” J.A. 23. E.W. explained, “A.W. stepped on my shoe so I kicked her and started to hit her.” J.A. 23. 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.’” J.A. 23. 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. 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 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 also admitted, however, that she had no idea whether E.W. had “any past or current behavioral issues or past involvements with law enforcement.”

Yes, that’s correct: Dolgos claimed she was concerned about her safety although there were two other adults in the room and she had more than a slight edge on E.W. physically.

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

The Fourth Circuit, which hears federal appeals from Maryland, North Carolina, South Carolina, Virginia, and West Virginia, determined that handcuffing E.W. violated her Fourth Amendment rights. (In fact, handcuffing children is just about uniformly unconstitutional.)

Dolgos claimed that having a basis for arresting E.W. made it reasonable to handcuff her. Not so, said the Fourth Circuit.

But this Court has never held that using handcuffs is per se reasonable. Rather, the Fourth Amendment requires us to assess the reasonableness of using handcuffs based on the circumstances. A lawful arrest does not categorically legitimize binding a person’s wrists in chains. And the troubling facts of the present case highlight why such a per se rule would be ill-advised.

Likewise, the court rejected Dolgos’s claim that E.W. posed an immediate threat given the circumstances—the delay, her size, and so on. Moreover, Dolgos had no idea whether E.W. had behavioral problems; E.W. didn’t attempt to flee.

It’s presumptively unconstitutional to handcuff a minor.

The suspect’s age again favors E.W. Circuit and district courts around the country have recognized that youth is an important consideration when deciding to use handcuffs during an arrest. The Ninth Circuit … held that officers who handcuffed an eleven-year-old child used excessive force. In addition, the Eleventh Circuit has held that “handcuffing was excessively intrusive given [the arrestee’s] young age.” Several district courts have similarly held that young age is a “uniquely” or “highly relevant” consideration under Graham. This consideration makes particular sense given the risk of lasting trauma among children exposed to the criminal justice system at young age. Here, E.W. was only ten years old at the time of the arrest. She therefore falls squarely within the tender age range for which the use of handcuffs is excessive absent exceptional circumstances.

Nevertheless, the Fourth Circuit ruled that Dolgos is off the hook courtesy of an oft-abused legal doctrine, “qualified immunity.” Qualified immunity protects officials from liability as long as they don’t violate clearly established rights, or rights that the officials should reasonably have known about.

Somehow, the Fourth Circuit panel decided that, despite how well-established it is that handcuffing children violates their constitutional rights, Dolgos couldn’t be expected to know that handcuffing a completely compliant 10-year-old girl on whom she had one foot and 60 pounds in the presence of two other adults constituted excessive force.

Crazy, right? The Fourth Circuit cited the very cases that prove they’re out of step. The Eleventh Circuit has denied qualified immunity in a similar situation: the school resource officer handcuffed a 9-year-old student for five minutes.

How else has this played out? Andrew Norton found an even more troubling example: excessive force via taser.

[In] 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.

Qualified immunity has been abused to favor bad state actors for far too long. Ignorance should never be a defense for excessive force, particularly not for law enforcement.