Handcuffing of Elementary Students Violated Fourth Amendment, Judge Rules

By Mark Walsh — October 18, 2017 4 min read
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A federal district judge has ruled that a school resource officer’s handcuffing of two Kentucky elementary school children in separate incidents violated the Fourth Amendment’s prohibition against unreasonable seizure.

The ruling stems from two incidents in 2014 involving the same SRO. The students attended schools in the Covington Independent school district in Kentucky, though neither the district nor school officials were named as defendants in the suit brought on behalf of the handcuffed students.

One incident involved an 8-year-old boy identified in court papers as S.R. The boy had been identified with attention-deficit hyperactivity disorder and post-traumatic stress syndrome, court papers say, though school officials had not been informed of those diagnoses.

On the day in question, S.R. was disruptive in class and was removed to a school office where he swatted at and tried to kick a teacher. When S.R. continued to kick and try to push open a door, school officials called for SRO Kevin Sumner of the Kenton County Sheriff’s Office.

When Sumner arrived from another school, the officer leaned over S.R. to tell him his mother was on her way to pick him up. S.R. then swung his elbow at Sumner’s face, which the officer blocked with his hand, court papers say. “You’re not allowed to swing at me like that,” Sumner allegedly said to the boy.

Sumner then handcuffed S.R.'s arms behind his back and above his elbows. S.R., a 3rd grader, weighed 54 pounds and was about 4 feet tall, according to court papers.

On a video introduced into evidence, S.R. said, “Oh, God. Ow, that hurts.” Sumner told the boy that if he wanted the handcuffs off, he had to behave and “ask nicely.” S.R. remained handcuffed for about 15 minutes and his mother eventually arrived to take him home.

The second incident was also in the fall of 2014, when a 9-year-old girl identified as L.G. was disruptive in class and was removed to the “calm room.” There, the student, who has ADHD and had an education plan under Section 504 of the Rehabilitation Act of 1973, continued to kick and scream and try to bite and scratch two school officials.

The school offiicals called for Sumner, who was at another school, informing him they had an “out of control” student. The SRO arrived and tried to use de-escalation techniques, but the girl spit at him and tried to hit him, court papers say. Sumner then handcuffed L.G. in the same manner as with the other student—above the elbows. L.G. remained handcuffed until a paramedic arrived at the school.

The two students and their parents, represented by the American Civil Liberties Union, sued Sumner and the sheriff’s office, claiming that the handcuffing violated the Fourth Amendment.

In an Oct. 11 decision in S.R. v. Kenton County Sheriff’s Office, U.S. District Judge William O. Bertelsman of Covington, Ky., held that Sumner’s “seizure and use of force, under the facts of this case, were unreasonable.”

“While S.R. kicked a teacher and L.G. tried to and/or did hit a teacher, these are very young children, and their conduct does not call to mind the type of ‘assault’ which would warrant criminal prosecution,” the judge said in applying a test for reasonableness of the seizure under the Fourth Amendment.

The judge said it was unlikely the students, especially S.R., posed an immediate threat to themselves or others, though he acknowledged that L.G. was engaging in more physical action towards her teachers and Sumner.

Bertelsman said that the SRO’s method of handcuffing the children—above the elbows and behind the back—was not supported by police experts on handcuffing who testified in the case.

“The method of handcuffing that Sumner employed leads this court to conclude that his actions were unreasonable and constituted excessive force as a matter of law,” the judge said.

The judge said two federal appeals courts—the U.S. Court of Appeals for the 9th Circuit, in San Francisco, in a 2014 decision; and the U.S. Court of Appeals for the 11th Circuit, in Atlanta, in a 2006 ruling—have ruled against the handcuffing of students.

But Kentucky is in the Cincinnati-based U.S. Court of Appeals for the 6th Circuit, which hasn’t ruled directly on that issue and whose precedent requires that Sumner be granted qualified immunity from the suit because it was not clearly established that it would be unreasonable for him to handcuff students in the way he did, Bertelsman held.

The judge said immunity for Sumner was a close call, and he made a point of noting that that he his ruling didn’t address the more conventional way of handcuffing a person at the wrist.

The judge allowed the suit to go forward against the Kenton County Sheriff’s Department, noting that at least 10 and as many as 25 children had been handcuffed in recent years by deputies serving as SROs in the county.

Finally, the judge rejected the plaintiff’s disability discrimination claims, holding that “no reasonable jury could find that Sumner’s handcuffing of S.R. and L.J. would not have occurred ‘but for’ their alleged disabilities, as opposed to their behavior on the days in question.”

A version of this news article first appeared in The School Law Blog.