Thursday, December 18, 2014

Hawker v. Sandy City Corp.

Hawker v. Sandy City Corporation, 2014 WL 6844930 (12/5/14) (Ut.) (Published & Unpub'd) - Oddly, the majority's decision is unpublished, but Judge Lucero's concurrence is published. The majority held that an officer's use of a twist-lock (twisting the suspect's hand to place tension on the arm to get compliance) on a 9 year-old, 67 pound, boy was not excessive force. The boy had been caught with someone else's IPad. The principal called the police. The principal told the responding officer she wanted to file charges against the boy. The officer said to the boy: "we can do this the easy way by you talking to me or the hard way by you not talking to me." The boy said nothing. The officer grabbed his arm and yanked him up. The boy grabbed the officer's arm. The officer used the twist-lock maneuver, pushed him against the wall and handcuffed him. Because the officer could view the boy's arm-grabbing as resisting arrest and escalating a tense situation, it was objectively reasonable for the officer to do what she did. The majority explains that stories in the news show how violent little children can be. The boy's "age and small demeanor do not necessarily undermine an officer's concern for safety and need to control the situation." The majority acknowledges the "unfortunate" nature of the facts in this case. It's "regrettable" that an officer feels the need to resort to such physical force. But "equally regrettable is the disrespectful, obdurate, and combative behavior of that 9-year-old child."

Judge Lucero agrees that 10th precedent requires the majority's holding. But Judge Lucero says he disagrees with that precedent. He pleads for dealing with petty crimes by minors "in a more enlightened fashion" to not automatically extend qualified immunity to officers for the kind of conduct involved in this case. He observes that this kind of treatment could leave permanent scars and unresolved anger and have a far-reaching impact on the boy's future. The judge asks: 'Why are we arresting 9-year-old schoolchildren?" He points out that, although the recent tragedies at schools might justify certain security measures, they don't require elementary schoolchildren to be "manhandled into a criminal law system in which they are treated as if they were were hardened criminals." Judge Lucero bemoans the practice of using the police to take care of matters that could be handled by school personnel, thus creating the school-to-prison pipeline. He worries that depriving children of their education by suspending them and sending them into the criminal justice system will deprive them of the opportunity to succeed. He concludes: "Our present jurisprudence is sending the wrong message to schools. It makes it too easy for educators to shed their significant and important role in the process and delegate it to the police and courts."