DENVER - With the 10th Circuit finding that a police officer's arm-twisting of a 9-year-old was "regrettable" but not excessive force, one judge called for reform.
The events occurred in Sandy City, Utah, a suburb of Salt Lake City, when an elementary school principal saw 9-year-old C.G.H. with an iPad he stole from the school.
C.G.H. tried to hit, bite and head-butt three school employees in an ensuing struggle, but the 67-lb. boy was sitting calmly on the floor by the time Tina Maria Albrand, a police officer with the city's youth unit arrived.
With C.G.H.'s guardian, grandmother Britt Hawker, looking on with the school psychologist, the principal told Albrand that she wanted theft charges filed.
Albrand then allegedly grabbed the child by the arm, yanked him off the floor, put him in a twist-lock, slammed him against the wall and handcuffed him.
After the boy was cited for theft he was treated for a possible hairline fracture to his collarbone, and the Hawkers say now also suffers from anxiety and post-traumatic stress.
They sued Albrand and her employer, the Sandy City Corp., for excessive force, but a federal judge granted the defendants summary judgment after finding that Albrand executed the twist-lock only after C.G.H. grabbed her arm.
A three-judge panel with the 10th Circuit called the facts of the case "unfortunate in all respects," but affirmed Friday.
"It is regrettable that a police officer feels a need to resort to physical force, handcuffs, and arrest in order to gain control of and reason with a nine-year-old child," according to the court's unpublished opinion by Judge Terrence O'Brien. "Equally regrettable is the disrespectful, obdurate, and combative behavior of that nine-year-old child. In any event, given C.G.H.'s resistance, Albrand's actions in this case simply do not rise to the level of a constitutional violation. And because Albrand committed no constitutional violation, the city cannot be held liable."
One member of the unanimous panel said he would have dissented "but for the state of the law."
Judge Carlos Lucero instead penned a published concurrence that calls for a change in the way the justice system responds to crimes committed by minors.
"Focusing narrowly on the legal standards applicable in this case renders it too easy to overlook the obvious question: Why are we arresting nine-year-old schoolchildren?" Lucero wrote.
It is hard to call C.G.H.'s experience uncommon when police presence in elementary schools has become "pervasive," the judge added.
Though law enforcement may be necessary to protect children against school violence and gang- and drug-related activity, Lucero insisted that "it does not follow ... that elementary schoolchildren of a tender age need to be manhandled into a criminal law system in which they are treated as if they were hardened criminals."
The eight-page opinion cites research on what has come to be known as the "school-to-prison pipeline," a phenomenon in which "students who experience the harsh effects of these policies are more likely to struggle in classes, drop out, and suffer other negative effects on their educations."
Lucero questioned whether such handling of problematic behavior "sends the wrong message to schools," letting family and educators too easily off the hook and instead delegating their roles "to the police and courts."
He especially questioned how these experiences affect children. "The criminal punishment of young schoolchildren leaves permanent scars and unresolved anger, and its far-reaching impact on the abilities of these children to lead future prosperous and productive lives should be a matter of grave concern for us all," Lucero wrote.
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