E.W. v. ROSEMARY DOLGOS and WICOMICO COUNTY SHERIFF’S DEPARTMENT
US Court of Appeals for the Fourth Circuit, Gregory, Feb. 12, 2018,
Reasonable Force – Outside of “exceptional circumstances” suggesting danger, handcuffs may not be used to restrain a young child.

(Concur – Shedd – Concurs in result, but writes separately to explain that handcuffing was not unreasonable or excessive in light of probable cause to arrest)

Facts (in the light most favorable to E.W.):
In 2015, 10-year-old E.W. and A.W. got into a fight on a school bus in Salisbury where E.W. kicked and hit A.W. several times resulting in bruising to A.W.’s leg.
A few days later, the school contacted a school-resource officer with the Wicomico County Sheriff’s Office about the fight.
When a deputy arrived at the school and watched a video of the fight, E.W. was removed from class and taken to the office where she met with the deputy and school administrators. E.W. explained that the other girl stepped on her shoe “so I kicked her and started to hit her.” E.W. did not “seem to care” about the seriousness of the situation, so the Deputy decided to place her under arrest with the intention of transporting her to juvenile booking.
The deputy placed E.W. in handcuffs, stating that “she was concerned about the physical safety of herself and the school administrators because of both the incident she observed in the surveillance video and E.W.’s apathy.”
Shortly after E.W. began to cry and apologize, the Deputy decided not to arrest E.W. and removed the handcuffs.
E.W. filed suit alleging a federal Deprivation of Rights claim for a Fourth Amendment violation along with state torts.
Deputy Dolgos and Wicomico County filed motions to dismiss, which where granted.
E.W. appealed, arguing that putting her in handcuffs was excessive force and that the Deputy was not entitled to immunity.

Held: The Fourth Circuit held that the Deputy used unreasonable force by handcuffing a compliant ten-year-old on school grounds for a misdemeanor assault committed days earlier. However, it held that the Deputy was entitled to qualified immunity because she acted in good faith.

Reasonable Force – Handcuffs are not always reasonable during an arrest. Instead, “the Fourth Amendment requires us to assess the reasonableness of using handcuffs based on the circumstances.”

Reasonable Force – The Supreme Court in Graham v. Connor laid out several factors that courts may consider in deciding whether force was reasonable (known as the “Graham Factors”):
– the severity of the crime at issue
– whether the suspect poses an immediate threat to the safety of the officers or others
– whether the suspect is actively resisting arrest
– whether the suspect is attempting to evade arrest by flight

Reasonable Force – These “Graham Factors” are not the only ones that a court can consider in deciding whether force was reasonable. The court will look at the situation as a whole in determining whether officers were reasonable in using force.

Reasonable Force – “Youth is an important consideration when deciding to use handcuffs during an arrest”

Reasonable Force- School – Where practicable, officers “should exercise more restraint when dealing with student misbehavior in the school context.”

Reasonable Force – School – The school setting weighs against the reasonableness of using handcuffs. This is especially true in an elementary school.

From the Case: “The school context presents unique considerations not present when officers patrol the streets. The use of handcuffs, for instance, may undermine students’ perception of the school and their willingness to attend, thereby disrupting their education far beyond the time they actually spend in handcuffs.”

From the Case: The Fourth Circuit considered the standard Graham Factors in light of the suspect’s age and size as well as considering that this occurred in a school

From the Case: First “Graham Factor” – Severity of the Crime – “Assault is an offense that can be considered violent if committed by any person, even a child, we find that this factor weighs against E.W. This finding is tempered, though, by the fact that the offense is a misdemeanor.”

Reasonable Force – Threat to safety – Factors that may be considered include: size and stature of the suspect as well as the suspect’s known history of violence/peacefulness.

From the Case – Second “Graham Factor” – Threat to Safety- The deputy “could not have reasonably believed that E.W. presented any immediate risk of harm to anyone.” E.W. was “calm and compliant.” E.W. was 4’4” and ninety-five pounds, small relative to the arresting officer. E.W. was in a closed office and surrounded by two school administrators and a deputy sheriff. “Given these facts, E.W. posed little threat even if she were to become aggressive.” Moreover, the assault occurred days earlier without incident, suggesting that E.W. did not pose an immediate threat.

From the Case: Third and Fourth “Graham Factors” – Resistance and Flight – E.W. was not resisting and there were no facts suggesting that she was trying to escape.

From the Case: “Dolgos took a situation where there was no need for any physical force and used unreasonable force disproportionate to the circumstances presented. We therefore find that Dolgos’s actions amount to excessive force. As such, E.W. has demonstrated a violation of her constitutional rights under the Fourth Amendment.”

Qualified Immunity – Qualified immunity shields government officials from liability in a § 1983 suit so long as their conduct did not violate “clearly established statutory or constitutional rights of which a reasonable person would have known.”

Qualified Immunity – To determine whether an officer is entitled to qualified immunity, the court must examine (1) whether the plaintiff has demonstrated that the officer violated a constitutional right and (2) “whether that right was clearly established at the time of the alleged violation.”

From the Case: Because no previous case made it clearly illegal to handcuff E.W. under these circumstances, the deputy was entitled to qualified immunity.

Assault- “When an officer uses excessive force she loses the privilege to commit assault and battery while effectuating an arrest”

Maryland Tort Claims Act (MTCA) – Under the MTCA, Maryland officials are immune from liability for state constitutional violations and tortious acts “committed within the scope of their duties when the violations are made ‘without malice or gross negligence.’”

From the Case: “A reasonable jury could not find that Dolgos’s actions demonstrate “a reckless disregard of the consequences as affecting” E.W.’s life or “a thoughtless disregard of the consequences” that would arise from handcuffing her. Rather, a reasonable jury could infer that Dolgos’s actions were motivated by a desire to dissuade E.W.’s apathy and induce remorse. Though callous, such a motive
does not amount to malice or gross negligence.” Because no facts suggested malice or gross negligence, Deputy Dolgos was entitled to immunity under the MTCA.

Note: Although the Baltimore Police Department is created by state law, BPD officers do not receive immunity under the MTCA

Summary From the Case: “School-based policing is the fastest growing area of law enforcement.” While the officers’ presence surely keeps the nation’s children safe, officers should not handcuff young students who may have committed minor offenses but do not pose an immediate threat to safety and will not evade arrest. Unnecessarily handcuffing and criminally punishing young schoolchildren is undoubtedly humiliating, scarring, and emotionally damaging. We must be mindful of the long-lasting impact such actions have on these children and their ability to flourish and lead prosperous lives—an impact that should be a matter of grave concern for us all.”