Hawker ex rel. C.G.H. v. Sandy City Corp., No. 13-4139 (10th Cir. Dec. 5, 2014).
Not long ago I covered a case in which a child was arrested for disobeying teachers. This case is somewhat similar, although the facts are considerably more dramatic.
Nine-year-old C.G.H. takes an iPad from school without permission. The principal catches him and takes it away. A struggle ensues in which C.G.H. tries to hit, bite, and head-butt three school employees. A police officer is called, and the principal tells the officer that she wants to file theft charges against C.G.H. The police officer grabs the kid, and when the kid grabs back, the police officer performs a “twist-lock”: she grabs the C.G.H.’s hand and twists it to tighten up the arm, so that further resistance will be painful. C.G.H. suffers a possible hairline fracture to his collarbone.
The question here is whether the use of the twist-lock constituted unconstitutional excessive force. The panel, in an unpublished opinion, decides that it doesn’t, and so affirms the district court, who dismissed C.G.H.’s claims on summary judgment. In a published concurrence—it was news to me, by the way, that judges could file a published concurrence to an unpublished opinion—Judge Lucero says that he would dissent “but for the current state of the law.” Judge Lucero notes what I noted in the earlier case: that police and the criminal process more generally are increasingly being used to discipline students in middle and even elementary schools. This “school-to-prison pipeline” is counterproductive, argues Judge Lucero—and it is being encouraged by the current state of the law:
Our present jurisprudence is sending the wrong message to schools. It makes it too easy for educators to shed their significant and important role in that process and delegate it to the police and courts. We should change course and instead leave it to the factfinder to determine whether the handcuffing of six- to nine-year-old children is excessive force rather than giving schools and police a bye by holding them immune from liability.