A publication of the Kentucky Center for Public Service Journalism

Judge Bertlesman orders conference for trial on damages in case of handcuffed schoolchildren

Staff report

Federal District Judge William O. Bertlesman has ordered a conference to discuss that a trial be set for damages in the case involving the handcuffing of elementary schoolchildren in Covington schools.

A lawsuit, S.R. et.al v. Kenton County Sheriff’s Office, et.al. involves two elementary schoolchildren who were handcuffed by a School Resource Officer in the Covington Independent Public School District (CIPS).

Defendants were Kenton County Sheriff Charles Korzenborn and School Resource Officer Kevin Sumner. The school district was not a defendant. But Bertlesman ruled that Sumner has qualified immunity and that Kenton County (and not specifically the Sheriff’s department) is the legal entity that must answer the claims.

The children, an 8-year-old boy and a 9-year-old girl were handcuffed above the elbow behind their backs. Both children were being punished for their behavior, and both claimed their behavior was related to their disabilities.

A lawsuit was filed in August 2015 by the Children’s Law Center, Dinsmore & Shohl, and the American Civil Liberties Union, which prompted a Department of Justice investigation into the school districts’ disciplinary practices, including the use of police to deal with routine student misbehavior.

The incident with the boy was videotaped.

In January 2017 Covington Independent Schools entered into an agreement with DOJ and implemented new policies to ensure that disciplinary practices do not discriminate against children with disabilities.

Judge Bertlesman wrote that the agreement between the schools and the sheriff’s office said the resource officers would be trained to work with youth in schools but would not “act as a school disciplinarian.”

He also cited state regulations that say “physical restraint” on a student can be used only if the behavior “poses an imminent risk of physical harm to self or others.”

Judge Bertlesman’s narrative also includes a discription of the 8-year-old boy’s behavior leading up to the contested restraint. He had been disruptive and violent — kicking and hitting — and was given a one-day suspension. When he returned to school, he was disruptive in class and school officials tried to intervene.

Their de-escalation efforts were not successful so the SRO, Sumner, was called in from another school. The boy did not calm down, so Sumner handcuffed him with his arms behind his back, placing the cuffs on his biceps above the elbows. He remained handcuffed for about 15 minutes.

The mother arrived, learned her son had been handcuffed and told the principal for the first time that the boy had PTSD. A month later, the mother asked for an educational accommodation for her son.

In January 2015, the Children’s Law Center contacted the sheriff’s department. In April 2015, school officials determined the boy needed a formal behavior intervention and crisis plan but found insufficient evidence of a disability. In August, school officials and the mother finally agreed to a plan.

Berteleman’s narrative also describes the circumstances involving the girl:

A 9-year-old girl at John G. Carlisle had been diagnosed with ADHD and had a plan that did not address any behavioral issues. In August, 2014, she was being disruptive in her classroom and eventually had to be escorted home, with the principal and SRO Sumner. In September 2104 Sumner learned that the girl’s behavior was related to failure to take her medication.

In October 2014, the girl became disruptive and violent — and Sumner was called. As her behavior escalated, he placed her in handcuffs and called an ambulance to take her to the hospital. On October 23, when the girl came to school, she was again disruptive and hostile, kicking and hitting and uncontrollable. Sumner put her in handcuffs until her mother came to get her.

In the lawsuit that followed, plaintiffs sought “damages and declaratory and injunctive relief.”

Judge Bertlesman writes that “it is clear that a common question of law is present” in both bases: “whether the elbow-cuffing of these children was unconstitutional.”

Bertlesman goes on to say that Sumner’s “seizure and use of force” with the “young children” were “unreasonable” and that the method of handcuffing was out of line. He cites experts who testified that the method of handcuffing Sumner used is not part of any law enforcement training.

However, the judge says that the plaintiffs did not show that Sumner’s handcuffing of the students was “unconstitutional, and Sumner is thus entitled to qualified immunity.”

However, Bertlesman did conclude that “Kenton County” is liable as a matter of law for Sumner’s unlawful handcuffing” of the children. And he noted that testimony showed that the Sheriff approved of the technique and that more than 25 elementary children had been handcuffed.

He further writes that there was no proof that there was any discrimination related to the Americans with Disabilities Act.

He ordered that:

1. Sumner does have qualified immunity and did not violate the ADA;
2. Kenton County was responsible for unlawful seizure and excessive force and but not of ADA claims;
3. The parties will schedule a status conference to discuss setting the matter for a trial on damages.

“The court confirmed that using law enforcement tactics to discipline young children in this manner has no place in our schools,” said Kenyon Meyer of Dinsmore Shohl.

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