8 minute read
Legal Forum
Working with Police and SROs
Dr. Dave Dagley, Professor Emeritus, University of Alabama and Dr. Amy Dagley, Associate Professor, University of Alabama at Birmingham
In a previous commentary, “Coordination with School Resource Officers,” CLAS School Leader vol. 47, no. 1, (Jan. 2019), we discussed legal problems that can occur when a school principal and a school resource officer are simultaneously involved in a disciplinary investigation about a student, without a clear understanding of who is in charge of the investigation or whether the investigation is a school disciplinary matter or a law enforcement matter. The case in that commentary was State v. Daniell, 817 S.E.2d 358, 357 Educ. L. Rep. [837] (Ga.App. 2018), in which the court held that the student being investigated was not yet in custody of the SRO or under arrest, so that a Miranda warning (“you have the right to remain silent, etc.”) was not yet required and the student’s admission of wrongdoing was evidence that did not have to be suppressed in his criminal trial. This commentary is about Taylor v. City and County of Honolulu, 666 F.Supp.3d 1098 (D.Hawai’i 2023), which was signed in March 2023 but not published until two months ago, in which the roles of the principal and the SRO were not clearly separated, thereby creating potential liability for the principal or the SRO.
The student in the more recent case was a ten-year-old Black girl with Attention Deficit/ Hyperactivity Disorder (ADHD) and identified in the record as “NB.” Hawai’i does not have local school districts like other states, but has a state department of education, which performs the functions of local school districts in other states, including the creation of a Section 504 plan for the student. (Note: The court record reflects allegations made by the parties and motions filed by the parties, culminating in a motion to dismiss by the city. For a motion to dismiss, procedural rules require the court to presume that all allegations of material fact are true and draw all reasonable inferences in favor of the nonmoving party, which in this situation is the defendants.)
The plaintiffs (N.B. and her mother) alleged that NB, with other students, made a drawing of a girl holding what the court described as a “cartoon firearm.” At the feet of the girl in the drawing was a drawing of a head, several scribbles, and the words “This is for E and K.” The drawing was left under seal by the judge, because it was unclear who besides the student was involved in creating the drawing, there were problems with the chain of custody of the drawing, and it was not known who gave the drawing to the student who was the subject of the drawing. Consequently, the description of the drawing comes from the court record, and the other students involved are unknown.
The plaintiffs alleged that NB used drawing pictures as a method to cope with her ADHD and with bullying at school. The plaintiffs also asserted that NB thought the drawing was a bad idea and did not want to give it to anyone. An amended complaint claimed that one of the other children took the drawing to another child, identified as K. The plaintiffs also asserted that the drawing was brought to school authorities by K the same day it was made, but no action was made by school authorities on that day.
According to the amended complaint, K’s mother came to school early in the morning and insisted that the school call the police about the drawing. The plaintiffs alleged that the vice principal called NB’s mother to tell her that she needed to come to school, because NB had made a drawing and it was passed to another student (K), and the police were being called at the request of K’s mother. Three city police officers came to the school, followed later by NB’s mother. According to the amended complaint, NB was kept from her mother and did not know that her mother had arrived at the school. Further, without the mother’s knowledge or consent, NB was interrogated by police officers and school authorities. The complaint also alleged that NB’s mother was not allowed to leave the room she was brought to.
According to the complaint, at some point NB was moved to the nurse’s office. NB said to the nurse that she wondered what spending one day in jail would be like. The plaintiffs alleged that the nurse repeated the comment to the police officers, upsetting them because they thought NB was treating the situation as a joke, leading them to put NB in handcuffs, arresting her for terroristic threatening, and placing her in a police car, to be driven to a police station. The amended complaint alleged that NB’s mother was not told of the arrest and learned of the arrest when she was asked to come outside by a police officer, where she then saw her daughter in the rear seat of the police car. NB’s mother followed the police car to the station, where NB was released without charges.
The situation described above touches on at least three issues which should be analyzed. The first issue is the nature of the threat. The plaintiffs alleged that the police officers arrested the ten-year-old child for “terroristic threatening” without a warrant at the insistence of a parent of another child at the school. The court noted that the crime of terroristic threatening has a specific definition under state law, which is difficult to meet. The judge described the drawing as a simplistic cartoon-style picture by elementary age students. The plaintiffs alleged that multiple students participated in the drawing, yet only one student was arrested, and no one knew who had drawn which part of the drawing.
A most troubling aspect of the threat analysis in this situation is the basic rule that speech that is a “true threat” is not protected by the First Amendment, BLACK’S LAW DICTIONARY 1480 (6th ed. 1990). Whether a threat is a “true threat” must be examined in the context in which the words are spoken. In school settings, the way a judge often decides whether a threat is a “true threat” is based upon what school authorities do in responding to the threat. If they respond immediately, it is believable that the threat is a “true threat.” If they delayed until the next day or longer to act, it is less believable that the threat is a “true threat.” The delay in dealing with the situation makes it less likely that the threat was a “true threat,” so the cartoon would be protected by the First Amendment. Then, it would have been difficult for the school officials to prove the legal standard under Tinker v. Des Moines Indep. Comm. Sch. Dist., 393 U.S. 503 (1969), that the cartoon created a “material and substantial disruption.”
The second issue which should be analyzed is who was in charge in this situation. Was it the school principal (or vice principal) or was it the police officers? As most school principals know, police officers and SROs must have probable cause to search, arrest, or restrain a student, while school principals only are required to have reasonable suspicion. In other words, school principals have greater freedom in interrogating and searching students, with a lower legal standard guiding their function. Police officers and SROs have a more vigorous legal standard in their function. Failure to meet the standard exposes them to more legal liability. Without knowing what the school board policy was in this school district in guiding or requiring the principal to cede authority to the police officers, it is not possible to judge whether the principal acted appropriately in turning the matter over to the police so quickly. It would be regrettable if the person in charge of the events that morning was neither the principal nor a police officer, but another child’s mother.
The third issue which should be analyzed is about restraints and seizures of school children. In this situation, when the police officers declared NB was under arrest, it was a seizure under the Fourth Amendment. When they put handcuffs on her, it was a restraint. In 2011, we published a commentary that was an abbreviated review of the legal consequences for restraint of students. “Restraining Difficult Students,” CLAS School Leader Vol. 38, no. 1, (date 2011). In that commentary, we noted that the use of restraints by school personnel are permissible when the practice does not depart substantially from accepted professional judgment, standard, or practice in the care of a student, and when the restraint has an educational purpose, rather than a purely disciplinary purpose.
