Settlement Handed To 11-Year-Old Autistic Student Who Was Locked in A Cop Car For Hours, Hit With $25,000 Bail

from the loss-handed-to-school’s-biggest-bullies dept

The problem with putting cops in schools isn’t necessarily that there are never things that happen in schools that require a law enforcement response. (Unfortunately, a lot of those things are school shootings, which cops aren’t all that capable of responding to.)

The problem is that school administrators tend to think that because they have cops (often referred to as “school resource officers”) on tap, nearly any disciplinary problem should be turned over to them, rather than handled by school personnel and/or the student’s parents.

This reduces school discipline to the sort of math cops understand: binary. If no one asks for a cop, it’s not a crime. If someone does ask for a cop — no matter what infraction has occurred — it’s obviously criminal activity.

This turns students into criminals. And it turns SROs back into cops, who use the same techniques they deploy against suspected adult criminals on children. A little restraint by school cops would go a long way. Unfortunately, most of them would read that previous sentence to be a blessing of physical restraint methods more suited to volatile, violent criminals, rather than minors who minds and bodies are far from fully developed.

But, because schools have decided they must have cops in the building, they end up tacitly blessing things like this, as recounted in an autistic student’s lawsuit [PDF] against their school and the school’s cops in a case brought by the ACLU:

On August 29, 2019, officers in police uniforms entered Sagewood Middle School and aggressively handcuffed A.V., an eleven-year-old child with autism. They dragged the handcuffed child through the hallways of his school, placed him in a patrol car, and left him there for hours, while, still handcuffed, he banged his head repeatedly against the plexiglass of the patrol car and cried in pain.

The alleged crime? Responding to another student writing on him with markers (A.V. is hyper-sensitive to touch due to his autism) by poking the student with a pencil. The school did, at least, contact one A.V.’s parents. But apparently not because the school felt the legal guardian should have any say in this particularly brutal disciplinary process.

A.V.’s stepfather rushed to the school and asked to see A.V., but the officers would not allow him to see A.V. A.V’s stepfather asked the officers to take A.V. to get medical attention, but they refused.

Instead, after A.V. was left handcuffed and banging his head for hours, an officer drove A.V. to a juvenile detention center and placed A.V. in custody on charges of assault, harassment, and resisting arrest. A.V. remained in custody until his parents were able to post a $25,000 bond. The charges against him have since been dropped.

The lawsuit followed, naming both the school district and the SROs employed by the district — one of which continued to demonstrate his willingness to bully young students with disabilities.

The officers involved in this traumatic handcuffing and arrest of A.V. were School Resource Officers (“SROs”). They are Douglas County Sheriff’s deputies who are jointly employed by the Douglas County School District. They had been specifically assigned to middle schools for the first time that year without adequate training on interacting with students with disabilities.

No SRO was disciplined due to the incident, and in fact, one of the SROs, SRO Nicholson, was commended for his handling of the situation. He was deemed to have completed the SRO field training program and recommended to be moved to solo status just a few days after the incident. Only a few months after handcuffing A.V, SRO Nicholson repeated his behavior: he handcuffed a twelve-year-old child with disabilities after that child became escalated. As with A.V., he left that child handcuffed for hours.

The lawsuit was filed in March 2021. Of course, every government entity and employee (including the involved school resource officers) asked for immunity. Immunity was denied to some of them in a February 2022 ruling [PDF], which said the facts needed to be more fully developed before the court would consider the officers’ attempt to exit the lawsuit:

To be sure, the Complaint sets forth allegations suggesting that Plaintiff had committed a battery against another student, which could give rise to probable cause supporting Plaintiff’s arrest. However, assuming the truth of Plaintiff’s well-pleaded factual allegations and viewing them in the light most favorable to the Plaintiff, Plaintiff’s plausible allegations also raise the possibility that Defendants only decided to arrest Plaintiff after misperceiving his subsequent lawful conduct, which was the result of the disability. (See ¶ 40 (“SRO Nicholson responded by instead proposing that he ask [Plaintiff] to come talk to him in the SRO office and said: ‘if he wants to come, that’s fine; if he doesn’t, that’s fine too.’”); ¶ 44 (“Nicholson continued to ask [Plaintiff] if he would come talk in the SRO office. [Plaintiff] stared blankly and occasionally shook his head no in response.”); ¶ 45 (“Then, despite the fact that [Plaintiff] was sitting quietly and that there was no emergency requiring immediate intervention, SRO Nicholson and
Peterson abruptly approached [Plaintiff] in a threatening manner and aggressively handcuffed him.”).)

Accordingly, the Court denies this portion of the DCSO Defendants’ Motion to Dismiss. Among other things, this will allow the parties additional time to develop the factual record through discovery on the issue of what prompted the SROs to arrest Plaintiff.

The sued officers claimed (repeatedly) that this was wrong. The court was required to grant them deference, rather than (as the court is required to do during motions to dismiss) grant deference to allegations raised by the plaintiff. And that was all they did for weeks on end: claim qualified immunity law required the court to give more credit to their (unsupported at this point) claims any officer in their position would not have known that tossing an autistic 11-year-old into a cop car for hours over a pencil-poking might have violated the student’s rights.

And the officers weren’t entirely wrong! That’s the sad thing. The Supreme Court has constantly told lower courts the first thing to consider is whether or not there’s any way to allow cops to escape taking responsibility for their actions. If this means glossing over apparent rights violations, so be it.

But it’s not the only option courts have. It’s just the one the Supreme Court would prefer they deploy. It didn’t happen here, much to the dismay of the officers. And this refusal to play by the rules this court set dismayed the court, which issued an order reaffirming its desire to hear more facts before considering qualified immunity arguments as well as this irritated (and lengthy!) note on the docket about the officers’ refusal to abide by the court’s orders by insisting any discovery (at this point, just depositions from the officers) until after it had ruled in favor of their qualified immunity requests.

The court wasn’t interested in engaging in the Catch-22 the school resource officers were attempting to deploy. Either the officers could offer sworn depositions to add to the factual record before raising the immunity defense or they could kindly get the hell out of this courtroom:

ORDER: In their Motions for Protective Orders 158, 159, 160, Defendants express a sense of deja vu at once again briefing the question of whether they are entitled to a stay of discovery. This Court knows the feeling. The Court finds itself, once again, addressing the same flawed arguments regarding qualified immunity. Defendants’ Motions do not bring anything new to the conversation, and they continue to ignore this Court’s repeated invitation to present any particularized argument as to why discovery would be burdensome or inappropriate.

To be sure, in Rome v. Romero, which Defendants seek to distinguish, Judge Krieger was presented with specific requests for production-some of which she found to be properly propounded on the individuals and others she concluded were not. In her evaluation, she noted that in cases where, as here, the parties present differing versions of the underlying events, some discovery on individual defendants is appropriate. She then concluded that other of the proposed requests were more appropriately made on the institutional defendants. With respect to any future discovery, Judge Krieger noted the individual defendants should be protected against any requests seeking information other than that relating to disputed factual issues regarding the actual events giving rise to the qualified immunity defense.

But other than contending they should not have to sit for their depositions, Defendants have not identified any line of questioning that would fall outside of those parameters identified in Rome. Particularly, they have never addressed the glaring issue that they are the primary witnesses in this matter upon whose actions this lawsuit is based, and therefore, would be subject to discovery no matter what the ultimate questions on qualified immunity are determined to be.

Defendants declaration that qualified immunity no longer has any meaning is overwrought; the Court has never held as such. Instead, the Court has only held the mere and basic assertion of qualified immunity without more is insufficient in this case to justify a stay. Because that assertion is all Defendants have ever offered the Court, including at present, the Motions for Protective Orders are DENIED.

I love it. The court says if the officers want to argue no officer in their position would know the sort of behavior being sued over fell on the wrong side of the Constitution, they should at least be willing to present their side of the story in a deposition. But these officers apparently didn’t want to do that. Instead, they presented their GET OUT OF LAWSUIT FREE! cards to the judge and thought that would be sufficient. When the court said it wasn’t, they apparently decided the best course of action was to continue to refuse to defend themselves against these allegations until the court… I don’t know… gave up and decided to give them what they actually wanted: immunity.

With no immunity to be had, a settlement has now arrived. And that’s kind of a shame. The school district was excused from the lawsuit but the county apparently felt allowing these officers to walk away from the lawsuit was the best use of county residents’ tax dollars.

After more than two years in court, the ACLU announced Wednesday that all of the parties named in the suit agreed to a settlement offer.

“Pursuant to the settlement, the defendants have agreed to require advanced training for any SROs assigned to the Douglas County School District, to include training created by the disability rights community that will improve interactions between law enforcement and students with disabilities,” said the ACLU.

“The defendants will also ensure that all SROs review the Behavioral Improvement Plans (a written improvement plan to help students who struggle with behavior issues in class) specific to each student and comply with those plans when interacting with the student.  Important reporting requirements will also ensure that the SROs are complying with de-escalation techniques consistent with students’ plans,” the ACLU stated. 

While it is good to see the SROs will now receive more training on the handling of students with behavioral disabilities, the accompanying statement from the district makes a point to note the involved officers continue to “deny any wrongdoing.” If these officers were so sure they were in the right, they shouldn’t have been so worried about being deposed. Their actions in this lawsuit contradict their insistence on being perceived as innocent. But now it’s not their problem. Their “innocence” has been purchased with tax dollars supplied by people like A.V.’s stepfather, who helps fund a school overseen by a county that figures it’s better to throw money at a plaintiff than subject any government employee to actual accountability.

Filed Under: discipline, douglas county, police, qualified immunity, school police, school resource officers, sros