Court Tells Sheriff's Dept. Shackling Kids Above The Elbows Is Excessive Force

from the no-longer-enough-to-be-simply-inept;-one-must-also-be-brutal dept

You wouldn’t think it would take a federal court decision to make this clear, but here we are.

A school resource officer in Kentucky who handcuffed young children acted unreasonably and violated the children’s constitutional rights, a federal judge ruled this week.

Two children, ages 8 and 9, were handcuffed by Kevin Sumner, a school resource officer with Covington Independent Public Schools. They were cuffed behind their backs, and the cuffs were placed above their elbows because the restraints would have slipped off their wrists. Video of the handcuffing of the 8-year-old went viral after it was made public by the American Civil Liberties Union in 2015

The ruling [PDF] restates common sense, albeit in 33 pages of legalese. It is excessive force to restrain preteens who weigh less than 60 lbs. with handcuffs meant to keep full-grown adults from moving their arms. The procedural history notes school personnel are forbidden from using mechanical restraints on students by state law. This law, however, does not forbid law enforcement officers from using handcuffs on students.

In both cases, the students cuffed by a sheriff’s deputy had been combative. School personnel turned both students over to the SRO once it became obvious they would not be able to calm the students down. The combativeness didn’t stop once the deputy entered the picture. These would appear to be arguments in the deputy’s favor but only if other factors weren’t considered — like the students’ ages and sizes. Both children also suffered from behavioral disorders.

Nonetheless, this is what happened once Deputy Kevin Sumner took control of the situation:

Sumner handcuffed S.R. behind his back, placing the cuffs on S.R.’s biceps above the elbows. The video shows that S.R.’s arms are pulled tightly behind his back with what appears to be only approximately three or four inches between his elbows. Sumner testified that he checked the handcuffs for tightness and that, since the chain connecting the handcuffs was nearly as long as the width of S.R.’s body, he had no reason to believe it would cause him pain. The video clearly demonstrates, however, that the chain is not nearly as wide as S.R.’s body, and that his arms are extremely taut.

[…]

Sumner pulled L.G. off of Craig and tried to hold her physically for a few minutes, but she continued the same behavior. Sumner told L.G. that if she did not stop, he would handcuff her. L.G. continued to kick and hit, and Sumner placed her in handcuffs, above her elbows behind her back. Assistant Superintendent Wilkerson contacted L.G.’s mother, who came to school to get her. Her mother testified that when she arrived, L.G. was on her knees and Sumner was holding her arms up behind her above her head. Sumner then removed the handcuffs.

Sumner tried to argue the handcuffing was permitted because state law exempted law enforcement officers from the restriction on restraint methods. The court says that’s all well and good, but it doesn’t change the outcome. No matter which “hat” — school personnel or law enforcement officer — Sumner was wearing, the force used was excessive.

Applying the Graham factors, the severity of the “crime” committed by S.R. and L.G. — assault — weighs in their favor. 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. Indeed, Sumner testified that “none of what they did was worthy of trying to file a criminal charge.”

The second factor, whether the children posed an immediate threat to themselves or others, weighs in S.R.’s favor. At the time he was handcuffed, S.R. had largely calmed down, Sumner had escorted him to the restroom without incident, and they had returned to the office. While Sumner testified that S.R. swung his elbow towards Sumner, such can hardly be considered a serious physical threat from an unarmed, 54-pound eight-year-old child.

This factor weighs less in favor of L.G., who was engaging in more physical abuse towards her teachers and Sumner. Nonetheless, the age and stature of these children is highly relevant to this analysis.

Even if the cuffing were deemed appropriate, the method deployed by Sumner was not.

Finally, 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 video of S.R. shows that his arms were pulled tightly behind him, with only inches between his elbows. While Sumner testified that the chain between the cuffs was as wide as S.R.’s torso, the video belies that assertion. Where a witness’s version of the facts “cannot be countenanced based upon what the video shows,” the Court must adopt the video as fact.

Upon being cuffed in this manner, S.R. cried out, “Ow, that hurts.” It was thus immediately apparent that this method — which, it is undisputed, was the same method by which L.G. was cuffed — was causing pain. S.R. was left in this position to cry and squirm for fifteen minutes.

And there was no one willing to back up Sumner’s claims the cuffing method was common or inexcessive — not even those testifying on behalf of the deputy.

Plaintiff’s handcuffing expert, Robert Rail, testified that he does not know of any police instructor in the United States who would allow the elbow cuffing of children such as was used on S.R. and L.G., nor does he know of any program that teaches that method. (Rail Depo. 109-10).

Even defendants’ handcuffing expert, William A. Payne — who has been conducting handcuffing training for law enforcement for over 20 years — testified that he has never trained law enforcement to use handcuffs above the elbow. (Payne Depo. 37, 121). He further testified that he was not aware of any law enforcement agency that trains their officers to use such a technique.

The court finds the cuffing method — not the cuffing itself — excessive. Without any prior cases on point, Deputy Sumner is granted qualified immunity because he could not have reasonably known his handcuffing methods were excessive. This is disappointing, but the court has one surprise left. The county that employs Sumner can be held civilly liable for Sumner’s actions.

Kenneth Kippenbrock was the SRO Coordinator for the Kenton County Sheriff’s Office at the time of these events. He testified that Sumner’s handcuffing of S.R. and L.G. was consistent with the policy of the sheriff’s department. He also testified that since the SRO program was initiated, more than ten children have been handcuffed by SROs in schools, and it is possible that the number is more than twenty-five.

Kenton County Sheriff Korzenborn also testified that Sumner acted in accordance with all applicable Kenton County policies in handcuffing S.R. and L.G. He has never asked Sumner whether Sumner has ever handcuffed other elementary children in the district, and he is not interested in knowing how often his deputies handcuff school children. Handcuffing children above their elbows behind their back is acceptable practice by his deputies.

[…]

Korzenborn further testified that he was not familiar with the Kentucky Administrative Regulations regarding the use of mechanical restraints in schools.

[…]

Korzenborn has not implemented any changes in the training of his SROs since these incidents.

Given this undisputed testimony, Kenton County is liable as a matter of law for Sumner’s unlawful handcuffing of S.R. and L.J.

School resource officers won’t be able to handcuff students the same way in the future and expect to walk away from resulting civil lawsuits. The unanswered question — is it ever appropriate to handcuff pre-teens on a school campus — remains open. But the message sent here is pretty straightforward: there’s almost zero chance the court will find it acceptable to use adult handcuffs on children, because the only way to keep them on tiny bodies is to deploy them in a fashion that is excessive in nature.

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Comments on “Court Tells Sheriff's Dept. Shackling Kids Above The Elbows Is Excessive Force”

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57 Comments
btr1701 (profile) says:

Re: Re:

Sounds like all they need to do to make this legal is get cuffs with a longer chain between the bracelets.

Sometimes physically violent kids do need to be cuffed, and if their wrists and hands are too small, above the elbows seems valid, so long as the chain is extended to prevent hyperextension of the arms.

Or they could use two sets of cuffs, hooking one bracelet of each set to each arm and looping the other empty bracelets together.

Anonymous Coward says:

Re: Easy solution

Handcuff his arms behind his back the same way and keep it there until he either dies or the children all forgive him. It is against state law to use restrains on children that young and he has done it at least twice. Probably multiple times a year with no repercussions. He needs to find out what it feels like and if that results in him being permanently disabled, good. It will now match his mind.

JoeCool (profile) says:

School is stupid

They don’t need a cop (SRO), they need a padded room (not a closet) with big foam punching bags and mats where the kids can wear themselves out and take a nap. Combative kids are normally cranky from being tired. If they’re tired enough, they’ll go to sleep. If not, let them tire themselves to that point. While they’re asleep, have a parent come in.

David says:

Re: Good Decision

Ah, but the inmates in Guantanamo are "enemy combattants", subhumans. How a civilian you kidnap from his private life and have to release years later because you don’t have any useful evidence against him can be called a "combattant" is sort of a different question. But you can be pretty sure that he will not be a friend of the United States afterwards.

That One Guy (profile) says:

Re: Re: Good Decision

But you can be pretty sure that he will not be a friend of the United States afterwards.

As disgusting as it is I have actually seen that very argument used for why the prisoners cannot be released or even tried, because if they were released they might be inclined to hold a grudge and maybe do something about it.

No idea if that changed since I read it(it’s been a few years), but it would not surprise me if it hasn’t.

Anonymous Coward says:

Can’t wait to see how MyNameHere explains this one away. Probably going to involve how America is being such a “me first” mentality nation of entitled whiners that the sheriff couldn’t help but have to shackle the children above their elbow. What if the kid’s elbow was actually a pistol? Can’t be too careful with these iPhones that might be guns running around…

MyNameHere (profile) says:

Re: Re:

Hi dummy!

There is no explaining away handcuffing a child. It’s an abomination. It’s horrible. It’s mindless.

But, as the first poster mentioned, it makes you wonder exactly WHY the child was in such a position to start with. We really have issues when children with this level of behavioral problems are dumped into the school system without a blink. That even after the police arrived that there was no calming the children down really does make you wonder.

The guy who handcuffed them should have the book thrown at them. Then someone should pick the book up and throw it at the parents and the school system who feel it acceptable to have children with significant issues in mainstream settings.

Anonymous Coward says:

Re: Re: Re:

It makes you wonder in what situation would the police being on-site means that children instantly calm down. More so given the recent penchant for the police to over-escalate, you really think that the police showing up is going to magically pacify children?

Don’t you think you’re taking this “hnnnngh I MUST be the contradictory devil’s advocate for intelligence reasons” mickey a little far?

David says:

Re: Re: Re: Re:

The police could pull the guns on the children and tell them to calm down or else. Maybe fire a warning shot. If they still refuse to calm down, then shoot to calm.

This whole thing is so absolutely lunatic and out of proportion that I suspect we are talking about black children. If we are, at least they are learning a lesson important for them later in life.

[Looking at the video] Nope. Possibly Latino. But definitely not black.

Hooray. Or something.

That One Guy (profile) says:

Re: Re: Re:

But, as the first poster mentioned, it makes you wonder exactly WHY the child was in such a position to start with.

Reading the quotes in the article it sounds like ‘two children who hadn’t been taught that hitting people isn’t acceptable’, followed by ‘a liar with a badge who really had no business dealing with children and didn’t care to be challenged’.

That the children involved were perhaps acting like brats would not I think be enough to say that they had no business being in general schools or say they have ‘significant issues’.

That even after the police arrived that there was no calming the children down really does make you wonder.

To be fair to the children in question, given how they were treated I’d place more blame on the adults involved than them, and I wouldn’t blame them for not calming down at that point.

They were treated atrociously, and from the sound of it that’s practically standard practice(‘more than ten children have been handcuffed by SROs in schools, and it is possible that the number is more than twenty-five.’), leading me to suspect that the school administration might be more inclined towards the stick(threats) than the carrot(calming down and teaching).

MyNameHere (profile) says:

Re: Re: Re: Re:

You are using standard Techdirt logic, which in this case fails. You are trying to bootstrap stuff by starting in the middle.

“To be fair to the children in question, given how they were treated I’d place more blame on the adults involved than them, and I wouldn’t blame them for not calming down at that point.”

The children were already hysterical and uncontrollable apparently before anything was done. This is not the creation of the cretin deputy (who should face charges). there has to be something there to start with, do you honestly think they are randomly pulling kids out of class to torture them until the scream?

“They were treated atrociously, and from the sound of it that’s practically standard practice(‘more than ten children have been handcuffed by SROs in schools, and it is possible that the number is more than twenty-five.’),”

Each case is horrible, and should be dealt with. However, considering the number of cases schools have to deal with every day, I think you are way over reaching to suggest it’s SRO or even acceptable. This seems like a very extreme case, both in the behavior of the “disturbed” children and the criminal deputy. I don’t think it reflects anything other than the concept that society as a whole is trending violent and young children are no exception to that problem.

Anonymous Coward says:

Re: Re: Re:2 Re:

Your unshaken faith in a lack of sadism and opportunism in the teaching profession aside (what a surprise, the authoritarian thinks that teachers are always above singling kids out just because)…

Isn’t the whole point to start in the middle? Critics like you keep whining that the site points out whenever copyright or cops fuck up and bitch why can’t the site write about positive things you like. What will starting at the extreme help, then? Assume that all kids are violent because society?

That One Guy (profile) says:

Re: Re: Re:2 Re:

The children were already hysterical and uncontrollable apparently before anything was done. This is not the creation of the cretin deputy (who should face charges)

Yes and no(or ‘no and yes’ as the case may be).

The boy was combative at first, yet had already calmed down by the time Sumner showed up, before deciding to take a blocked swing for whatever reason at Sumner. Sumner’s response to this was to handcuff him, and I find it hard to believe that he didn’t know that the method used was causing pain given the video evidence.

The girl was more combative in general but was willing to calm down once she was released from the cuffs the first time(whether it was because she wore herself out or someone more sympathetic came along was enough is unknown), wherein the second time it almost reads like he simply decided that it would be easier to keep her from continuing her actions by slapping on the cuffs.

The boy’s treatment strikes me as punishment for the attempted strike rather than a way to restrain a ‘hysterical and uncontrollable’ child given he wasn’t at the time it took place, whereas while the girl was more combative, though ‘hysterical’ is likely going to far.

However, considering the number of cases schools have to deal with every day, I think you are way over reaching to suggest it’s SRO or even acceptable.

The response, or more accurately lack of apparent response, and the fact that this happened multiple times would seem to argue that they did find such treatment acceptable, even if it wasn’t considered Standard Operating Procedure(I’m guessing that’s what you meant, no idea what ‘SRO’ means).

This seems like a very extreme case, both in the behavior of the "disturbed" children and the criminal deputy.

It would be nice to think so, however the fact that Sumner’s superiors not only defended his actions as acceptable and within the guidelines but didn’t change them post-events has me concerned that it is not nearly as isolated or ‘extreme’ as one might hope(the fact that Sumner’s supervisor stated that he wasn’t even interested in how often it occurred does not inspire confidence, though hopefully this ruling will keep it from happening again.)

I don’t think it reflects anything other than the concept that society as a whole is trending violent and young children are no exception to that problem.

What stats I’m aware of indicate that society as a whole is actually going in the other direction, and as for the children in question the fact that both were diagnosed with disabilities that would affect their mental state is likely to have a larger impact than a phantom ‘trending violence’.

That One Guy (profile) says:

Re: Re: Re:4 "... yes, but the /fear/ of crime is rising."

It’s easy to just make up excuses for why the data doesn’t match a preconceived notion, why don’t we stick to verifiable facts? If you want to say that crime is actually going up despite the numbers saying otherwise, then it becomes effectively impossible to get a verifiable number at all, and it devolves into nothing more than gut feelings(which are useless).

The numbers could be higher, they could be lower, who knows. Perhaps even more crimes went unreported in the past, such that even with large numbers of unreported crimes now the numbers are still lower? Once you open that particular can of worms involving unverifiable factors you might as well toss the data out entirely and just state from the outset that it’s nothing more than a matter of opinion what the crime rates actually are.

MyNameHere (profile) says:

Re: Re: Re:5 "... yes, but the /fear/ of crime is rising."

Crime is a slippery thing to report. Many people just don’t bother to report things. Robberies / theft is the most commonly not reported because people don’t want to increase their insurance rates, or the police won’t come out to take a report for a simple theft, they send you to the station. Many people just give up.

The question also is our tolerance. What wasn’t socially acceptable say in 1950 may be acceptable today. A bar fight that might have landed two people in the drunk tank for the night and facing a judge in the morning instead ends up as a “won’t press charges” thing of mutual combatants, with the police happier just to send people on their way.

In the US, you are individually less likely to be a victim of crime today than 20 years ago, but the total number of crimes has risen along with the population. When you add in the media echo chamber, it’s not unreasonable for the public to be more aware of crime and more concerned.

You could look at the National Crime Victimization Survey – it shows trending down, but also indicates that many people are choosing not to report crimes.

You just have to consider that Harvey Weiner-stein and his ilk have single handedly tilted the stats for unreported sexual crimes… if the reports are true. Also, the MeToo hashtag should give you some good insight into how many women have been victims in their past.

Wendy Cockcroft (user link) says:

Re: Re: Re:5 Re:

Eh, he’s a contrarian. Sometimes he’s right, though. We do have a society that increasingly lionises violent people and promotes violence as a solution. Is it any surprise that this kind of thing happens?

I bet that deputy would say it didn’t occur to him to take a different approach. There’s your problem.

That One Guy (profile) says:

Ah good old 'If it's in the rules I don't need to think for myself'...

Without any prior cases on point, Deputy Sumner is granted qualified immunity because he could not have reasonably known his handcuffing methods were excessive.

Like hell he couldn’t, unless the court is saying he’s so grossly incompetent that he’s unable to spot strain placed on the human body(in which case he has no business handcuffing anyone). The court’s own ruling makes it clear that he should have been immediately aware that he was using excessive force to the point of pain.

‘Upon being cuffed in this manner, S.R. cried out, “Ow, that hurts.” It was thus immediately apparent that this method — which, it is undisputed, was the same method by which L.G. was cuffed — was causing pain. S.R. was left in this position to cry and squirm for fifteen minutes.’

That he lied when describing what happened makes clear that even he knew that he had gone too far, and when both the court and the accused all but flat out admit that excecssive force was used to allow qualified immunity is absurd, basically allowing police to be treated under the law as complete and utter morons, incapable of understanding whether or not excessive force is being employed unless there has been a court case covering that particular action in the past.

Sok Puppette (profile) says:

Re: Ah good old 'If it's in the rules I don't need to think for myself'...

I believe the current legal rule for determining whether a cop can "reasonably be expected" to know that his or her actions are illegal, unconstitutional, excessive, or whatever is that it has to have been personally explained to that particular cop by at least three Supreme Court Justices, on separate occasions. On videotape. Within the last week. With a signed triplicate acknowledgement from the cop.

But only if the cop’s behavior causes the horrible, painful death of a total innocent, and the case is absolutely identical to the explained situation in every detail including the names. Otherwise it has to be the whole court en banc.

I think there’s some kind of good faith exception, too.

By the way, the standard for prosecuting a citizen for identical behavior is that the behavior has to vaguely resemble something that might be illegal in the twisted mind of a prosecutor somewhere in Pakistan.

Anonymous Coward says:

Her mother testified that when she arrived, L.G. was on her knees and Sumner was holding her arms up behind her above her head. Sumner then removed the handcuffs.

While the exact position is important for determining exactly how abusive this is, this description alone reads like probable abuse, wholly independent of the placement of the cuffs on the child’s biceps. Rotating the arms above in front of the body is easy. Rotating the arms even up to perpendicular with the torso, much less "above her head" with the arms behind is not how human joints are supposed to work. Try this:

  • Stand upright in a relaxed stance. Keep your torso perpendicular to the floor.
  • Rotate your arm backward, like you are trying to accept an item from someone standing behind you. Don’t twist your arm sideways. Keep it perpendicular to a line across your shoulders.
  • Rotate as high as you can, as if the item was on a high shelf. Keep your body perpendicular to the floor – don’t lean forward. See how high you can go before it becomes uncomfortable.
  • Now move the other arm in the same way and try to bring your elbows in toward how the cuffs would have held this child. (Since the reader is an adult, allow a bit more slack since the reader is probably slightly wider across the torso than a small child.) Can you attain (much less maintain) a configuration that matches how this girl was held? Even with that allowance, my guess is you cannot maintain without discomfort a position matching the one the cop forced this girl into.

In the more aggressive configurations, this was a method of torture in the Middle Ages.

Maybe the on her knees qualifier combines with this such that the actual angle between her torso and her arms is not as bad as I expect. I read this as being that she was on her knees, but her body was still roughly upright relative to the floor, so call it at least an 80 degree angle between torso and arm, but possibly in the 100-120 degree range. Even 80 degrees would be quite unpleasant. More would be worse. On the other hand, maybe a cop would know anatomy well enough not to treat small children this way.

The Wanderer (profile) says:

Re: Walkaway

That’s where the “without any prior cases on point” part comes in.

This particular deputy is walking away, because no previous case had said that this is enough to cross the line into illegality, and so (in the logic of the courts) he could not have been expected to know that it was beyond his authority – in other words, he was operating in good faith that this was permitted.

This case has now said that this is enough to cross that line. Therefore, any cops who do this in the future (at least in the jurisdiction of that court) will not be able to rely on the “good faith” argument, because this case clearly establishes otherwise.

That is, at least, the theory.

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