As I announced on the Tom Roton Show this morning, yesterday afternoon we filed a lawsuit in Wood County Circuit Court (Parkersburg, WV) against the Wood County Board of Education challenging their blanket school mask mandate, which is currently forcibly masking children for prolonged periods of time. The suit was filed on behalf of my clients, John Davis and Felsie Pierce, who have three children currently enrolled in Wood County Schools, who have suffered, and are continuing to suffer, due to the illegal mandate.
In a nutshell, our legal theory is this: Wood County BOE claims that the local health board, the Mid-Ohio Valley Board of Health, has issued the mandate, and they are merely following that requirement. However, the MOVBOH has denied that they issued the mandate. If the MOVBOH had indeed issued the mandate, they would be required to follow due process, which requires notice, a hearing, and so on, as well as oversight by the Wood County Commission, the local elected representatives of these schoolchildren and their parents. That’s the process in place – even before we get to the issue of science or constitutional rights. They didn’t follow the process, and therefore the mandate needs to be struck down immediately. Secondly, even if and when they follow that process, such a mandate still violates the WV Constitution because it violates the bodily autonomy of these children, just like a mandate requiring a medical procedure without the consent of the recipient.
It’s my understanding that other county boards of education in West Virginia have issued school mandates that are likewise illegal. We’ll see what the Wood County Circuit Court does with this case first before proceeding in other counties. We have requested the issuance of an immediate temporary restraining order, until such time as an expedited hearing can take place. Here is the complaint:
The first of my two clients in the federal civil rights lawsuit filed yesterday against the superintendent of Jefferson County Schools had her disciplinary hearing today, where the “evidence” was presented of her alleged involvement in the violence at the U.S. Capitol last Wednesday. Apparently the only evidence presented was a conspicuously-absent anonymous “report.” According to the attorney at the scene, Bondy Gibson, the superintendent who leveled the accusations, refused to provide a copy of the allegations, the name of the person making the allegation, or any of the social media posts the individual referenced.
Apparently, what actually happened, is that the Board office reviewed Pam McDonald’s social media page and came to the same conclusion that all have, which is that Pam did nothing wrong and broke no laws. Unfortunately, however, the damage has already been done, and our lawsuit will continue. For instance, here’s a screenshot of a TV news story from this morning about my two clients:
Here’s another disgusting media report from WVDM, which was the direct recipient of the leak from the Jefferson County Schools smearing my clients. It announced that my clients “participated in riots in Washington D.C.” Can you imagine, your friendly school bus drivers may have rioted through the Capitol?
In case anyone misunderstood, in the WDVM article above, this was the exact quote:
The statement details that Superintendent Bondy Shay Gibson was made aware on Friday of the staff members’ participation that left the Capitol Building in shambles.
It turns out that no such evidence exists, apparently. But what about the smear letter the superintendent wrote yesterday which was provided to WV Metro News, where she said this:
On Friday, January 8, 2021, I received such a report that two employees had posted threatening and inflammatory posts on their Facebook pages, had been present at the Electoral protest march on Wednesday that erupted in violence, and had violated our leave policy.
Wait, first . . . about the leave policy…. how would one go about reporting whether one of your employees violated your leave policy? Do random people have access to your employee personnel files? Or was this “person” who made the report “a friend” of yours. Sort of like the “friend” prefaced in embarrassing Dear Abby letters? Does this friend happen an office in the school administration building with a sign on the door saying something like, “Superintendent?”
Secondly, about the “threatening and inflammatory posts” my clients supposedly made….. Where are they? I’m sure they were just misplaced….. They must exist, right?
If the goal was to drag these ladies through the mud, merely for their political affiliation and viewpoints, I guess it was a job well-done. They received all sorts of well-wishes from the tolerant and compassionate commenters among us. If only someone saved some sort of record of the ugly comments which were directed at my two innocent clients in the comments section of these defamatory pieces….. That would be a great way, not only to document the ugliness of the situation, but also to hold accountable the nasty individuals behind the keyboards who so recklessly and maliciously love to destroy the lives of their fellow human beings, based only on political disagreement.
It would be a shame if some of them ended up getting sued and held accountable for their online bullying….. Just a thought.
You may have seen this video footage going around the internet. There was a 2018 Fourth Circuit (WV, VA, NC, SC, MD) case finding the handcuffing of a 10 year old boy, who was compliant, unconstitutional.
So what about a 6 year old who was allegedly non-compliant?
In E.W. v. Dolgos, 884 F.3d 172 (4th Cir. 2018), the Fourth Circuit looked at a claim of excessive force by an officer, against a student. Excessive force questions generally also fall under the Fourth Amendment, except in cases of pretrial detainees (arrestees) and prisoners. In E.W., a ten year old was questioned in school by a police officer, about a fight on the bus with other students, which had occurred three days earlier. The officer viewed the footage, and then had a closed door meeting with the child and two school administrators. During the meeting, the police officer handcuffed the 4’4”, 95 pound child, supposedly for his own safety, and that of the other administrators. The officer himself was 5’5” and 155 pounds. After being handcuffed for about 2 minutes, the child cried and apologized. Subsequently the child’s family filed suit.
(ETA: My video:)
The Court then went through the usual excessive force analysis, which are commonly known as the “Graham Factors.” These are the same factors which are analyzed in every Fourth Amendment excessive force case involving people who are not pretrial detainees. So basically, anyone on the street, or who is “being” arrested. At some point following an arrest, an arrestee becomes a “pretrial detainee,” in which case the analysis changes somewhat.
There arethree factors to the “Graham Factors”:
1. “the severity of the crime at issue;
2. whether the suspect poses an immediate threat to the safety of the officers or others,
3. and whether he is actively resisting arrest or attempting to evade arrest by flight.”
Graham, 490 U.S. at 396, 109 S.Ct. 1865.
But these factors are not “exclusive,” and we may identify other “objective circumstances potentially relevant to a determination of excessive force.” Kingsley v. Hendrickson, ––– U.S. ––––, 135 S.Ct. 2466 2473, 192 L.Ed.2d 416 (2015). Here, we believe it prudent to consider also the suspect’s age and the school context. The ultimate “question [is] whether the totality of the circumstances justified a particular sort of … seizure.” Jones , 325 F.3d at 527–28.
In E.W., the Court wasn’t happy with the decision to handcuff a compliant 10 year old:
In Brown v. Gilmore , we stated that “a standard procedure such as handcuffing would rarely constitute excessive force where the officers were justified … in effecting the underlying arrest.” 278 F.3d 362, 369 (4th Cir. 2002). There, the plaintiff brought an excessive force claim based on allegations that a police officer had handcuffed her, causing her wrists to swell, dragged her to the police cruiser, and then pulled her into the vehicle. Id. at 365–66, 369. We found that the circumstances justified the “minimal level of force applied” because, as the officer approached a crowded scene on the street, he attempted to arrest the plaintiff for failure to follow another officer’s orders to move her car. Id. at 369. We stated that it was not “unreasonable for the officers to believe that a suspect who had already disobeyed one direct order would balk at being arrested. Handcuffing [the plaintiff] and escorting her to a police vehicle was thus reasonable under the circumstances.” Id.
….
The circumstances in this case are markedly different from those in Brown . We are not considering the typical arrest of an adult (or even a teenager) or the arrest of an uncooperative person engaged in or believed to be engaged in criminal activity. Rather, we have a calm, compliant ten-year-old being handcuffed on school grounds because she hit another student during a fight several days prior. These considerations, evaluated under the Graham framework, demonstrate that Dolgos’s decision to handcuff E.W. was unreasonable.
E.W. v. Dolgos, 884 F.3d 172, 180 (4th Cir. 2018).
The Court supported its conclusion by pointing to other courts around the country, who have recognized that youth is an important consideration when deciding to use handcuffs during an arrest.
The Ninth Circuit, applying the Graham factors, held that officers who handcuffed an eleven-year-old child used excessive force. Tekle v. United States , 511 F.3d 839, 846 (9th Cir. 2007) (“He was cooperative and unarmed and, most importantly, he was eleven years old.”); see alsoIkerd v. Blair , 101 F.3d 430, 435 (5th Cir. 1996) (holding that officer used excessive force against ten-year-old girl under Graham analysis). In addition, the Eleventh Circuit has held that “handcuffing was excessively intrusive given [the arrestee’s] young age.” Gray ex rel. Alexander v. Bostic , 458 F.3d 1295, 1300–01, 1306 (11th Cir. 2006) (denying qualified immunity to SRO who handcuffed nine-year-old student for five minutes). Several district courts have similarly held that young age is a “uniquely” or “highly relevant” consideration under Graham . See Kenton II , 2017 WL 4545231, at *9 (holding that handcuffing eight-year-old child violated constitution); Hoskins v. Cumberland Cty. Bd. of Educ., No. 13-15, 2014 WL 7238621, at *7, 11 (M.D. Tenn. Dec. 17, 2014) (noting that eight-year-old student “was a startlingly young child to be handcuffed”); see alsoJames v. Frederick Cty. Pub. Sch., 441 F.Supp.2d 755, 757, 759 (D. Md. 2006) (concluding that handcuffing eight-year-old child suggested excessive force). Here, E.W. was only ten years old at the time of the arrest. She therefore falls squarely within the tender age range for which the use of handcuffs is excessive absent exceptional circumstances.
Even though the Fourth Circuit found an excessive force civil rights violation under the facts presented in E.W. v. Dolgos, given that none of the lawyers or judges involved found prior legal precedent sufficiently similar to the conduct involved, the Court granted qualified immunity to the police officer, but warned that “our excessive force holding is clearly established for any future qualified immunity cases involving similar circumstances. Id., 884 F.3d at 187.
What that means, is that all police officers in the Fourth Circuit are now “on notice” that if they handcuff a small child without reasonable cause, they will not be granted immunity from civil damages. This handcuffing, however, occurred in Florida, and not in the Fourth Circuit. Florida is a member of the Eleventh Circuit, based out of Atlanta. One of the cases cited by the Fourth Circuit in E.W. was an Eleventh Circuit case: Gray ex rel. Alexander v. Bostic , 458 F.3d 1295, 1300–01, 1306 (11th Cir. 2006) (denying qualified immunity to SRO who handcuffed nine-year-old student for five minutes).
Somebody involved in that situation probably ought to go read that case now . . . .
