June 26, 2019

Tenth Circuit: Published Concurrence Condemns Police Abuse of Children Under Color of Sovereign Immunity

The Tenth Circuit Court of Appeals published Judge Lucero’s concurrence in Hawker v. Sandy City Corp. on Friday, December 5, 2014.

The Tenth Circuit issued its opinion in Hawker v. Sandy City Corp. as an unpublished opinion. The facts of the case were that C.G.H., a 9-year-old boy, stole an iPad from a classmate. His grandmother, who was his legal guardian, found the iPad and asked C.G.H. to return it. When he was returning it, school officials caught him with the iPad and took it from him. He was upset, and school officials forcibly restrained him and called his grandmother and the police. C.G.H. began to calm down as his grandmother spoke to him, but then the police arrived and placed the child in a forcible twist-and-lock restraint and handcuffed him as he cried, “you’re hurting me!” The grandmother took him to the doctor later that day, where he was treated for a hairline fracture to his clavicle (collarbone). In addition to the fracture, C.G.H. suffered post-traumatic stress and anxiety from this experience. The grandmother brought suit on his behalf under 42 U.S.C. § 1983 against the officer and the city, but the district court granted summary judgment on qualified immunity grounds. The Tenth Circuit reluctantly upheld the summary judgment.

Tenth Circuit Judge Lucero wrote a separate concurrence, which was published. Judge Lucero concurred with the findings of the panel, since they followed the law, but disagreed with the state of the law that allows a 9-year-old boy to be treated so forcibly. Judge Lucero writes, “It is time for a change in our jurisprudence that would deal with petty crimes by minors in a more enlightened fashion and would not automatically extend qualified immunity for conduct such as occurred in this case.” The potential future consequences for this child and society at large are great; the child is now branded a criminal and no doubt has lost all faith in the criminal justice system. And although it would be ideal if this were an isolated incident, it is not. School districts across the country are adopting swift punishment for such childish behavior, and children as young as six are handcuffed and treated as criminals.

Judge Lucero condemns the “school-to-prison pipeline” and the myriad negative consequences created by treating children as criminals. Without the benefit of an education free from duress, children are unlikely to succeed in life, and end up populating already overcrowded prisons. Instead of swift punishment, the school’s aim should be to realign the child away from criminal behavior and encourage the pursuit of a productive and educated life. As Judge Lucero says in closing, “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. A more enlightened approach to elementary school discipline by educators, police, and courts will enhance productive lives and help break the school-to-prison chain.”

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