Handcuffing of Child Blasted by Full 9th Circ.

     SAN FRANCISCO (CN) – Largely reinstating a verdict against Sonora police officers who removed a hyperactive 11-year-old from school in handcuffs, the en banc 9th Circuit agreed Wednesday that the use of restraints amounted to excessive force.
     The incident in question occurred one September 2008 afternoon at Sonora Elementary School. C.B., as he is named in the ruling, forgot to take medication for his attention deficit hyperactivity disorder and was experiencing a “rough day.” The child’s gym teacher – who had been dealing with him since kindergarten – attempted to coax C.B. into her office where he could “cool down” and refocus, a strategy that had helped make C.B. more compliant in the past.
     With C.B. refusing this time to leave the playground, however, the teacher called the cops.
     Sonora Police Chief Mace McIntosh and Officer Hal Prock were equally unsuccessful in engaging C.B.
     Claiming to be simultaneously concerned for C.B.’s safety – the gym teacher had referred to him as a “runner” and a possible suicide risk – the officers placed the boy in handcuffs and put him into the back of a patrol car.
     All parties agreed that C.B. had not struggled with officers and had complied with their requests. In fact, C.B. said very little during his encounter with McIntosh and Prock. Nonetheless, the officers transported the handcuffed 11-year-old for some 30 minutes to his uncle’s business without ever formally arresting the boy or even telling him where they were going.
     C.B. sued the city of Sonora, McIntosh and Prock for false imprisonment, emotional distress, excessive force and unlawful seizure.
     A federal jury credited the officers’ defense that they believed state law allowed them to take C.B. into temporary custody without a warrant because he had acted uncontrollably at school. But inconsistencies on the verdict form and continuing jury confusion led U.S. District Judge Oliver Wanger to guide the jury on the points of the officers’ affirmative defense. After more deliberations, the jury returned with a completely different verdict that found Sonora and its officers liable for all C.B.’s claims.
     In September 2013, a panel for the 9th Circuit vacated the jury verdict and ordered a new trial. The judges found Wanger’s emphasis on consistency troubling, holding that he had “improperly sent a message to the jurors that they got it wrong the first time.”
     The panel also found the officers’ affirmative defense credible, given what the gym teacher had told them about C.B.’s behavior and medical condition.
     After agreeing to revisit the case en banc, the full 9th Circuit held Wednesday that Wanger’s jury instructions were longwinded but fell “far short of plain error.”
     As to the seizure of C.B., a majority said the officers erred in simply taking the situation at the gym teacher’s word rather than investigating the child’s behavior for themselves.
     “The officers acted reasonably at the outset by seeking to engage with C.B. to investigate the dispatch that they had received about an ‘out of control’ minor,” Judge Richard Paez wrote for the majority. “What they found, though, was a quiet but nonresponsive child. During the entire time police were present, the child did nothing threatening or disobedient. Although Coach Sinclair mentioned that C.B. was a ‘runner’ who had not taken his medication, the officers did not ask a single follow-up question to learn what Coach Sinclair meant and never inquired what had prompted the dispatch. Nor did they consider any less intrusive solutions, such as ordering C.B. to return inside the school building, or asking a guardian to pick up the child. When viewed in relation to these circumstances, the officers’ decision to seize C.B. and remove him from the school grounds was not reasonable.”
     Though the court found that the seizure of C.B. was unreasonable, in violation of the boy’s Fourth Amendment rights, a majority found that the officers enjoyed immunity on this issue.
     Judge Milan Smith wrote this section of the ruling, saying the officers sufficiently showed that they acted appropriately in considering the gym teacher’s assessment of the situation.
     “If we were to hold that the officers’ conduct was an ‘obvious violation,’ we would effectively establish a new rule that police officers in a situation similar to this one must undertake an independent investigation whenever they observe behavior that appears in any way inconsistent with a school official’s report,” Smith wrote. Such a requirement would be unworkable in the real world of law enforcement and school administration.”
     Asking would an investigation in C.B.’s case would entail, Smith noted that it cold involve anything from reviewing the student’s record, to talking with school counselors.
     “By characterizing the officers’ conduct as an ‘obvious violation’ of constitutional rights, the dissent would require an officer to undertake such an uncabined investigation prior to responding to these situations, or risk personal financial liability if he did not,” Smith wrote. “It would disincentivize officers from responding to calls for help from school officials under similar circumstances.”
     The ruling found it unquestionably excessive force for police to handcuff an 80-pound, 4-foot, 8-inch tall boy – surrounded by a gaggle of adults.
     “The further decision to leave C.B. in handcuffs for the duration of the half-hour commute to his uncle’s business – a commute that took place in a vehicle equipped with safety locks that made escape impossible – was clearly unreasonable,” Paez wrote, noting that state law at the time prohibited unreasonable and “excessively intrusive” use of police force in response to school incidents.
     Judge Marsha Berzon had the last word in her dissent to the qualified immunity issue.
     “Because there was no cause to believe C.B. could be detained under Welfare Code provisions, and no reasonable officer could believe that there was, I would affirm the judgment for C.B. on these grounds,” Berzon wrote. “I would not manufacture a T.L.O.-based law-enforcement-officers-as-school-disciplinarians defense never argued to the jury, or us,” Berzon concluded, citing the landmark school-search case New Jersey v. T.L.O.

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