SCHOOL SAFETY AND THE COURTS TOP CASES TOP CASES2013-2014 Focus: Policymaking

SCHOOL SAFETY AND THE COURTS

TOP CASES

2013-2014

Focus: Policymaking

Safe Schools – After Newtown

Safe Schools - 2014

June 2014: 74 school shootings since the infamous

assault on Sandy Hook Elementary School in Newtown, Connecticut

37 Shootings …… so far in 2014.

13 school shootings recorded in first six weeks of 2014 alone.

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.

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Policymakers Challenge Understand current legal standards

What the law permits What the law requires

Confront the reality of the difficulty of

making “good policy”.

Why Look at Court Decisions?

A shift is occurring in judicial appetite for overturning school policy.

Judicial activism* is no longer a surprise when students assert their rights.

Liability is returning to lawsuits as a more frequent outcome.

EQUATION OF AUTHORITY

ACTIONS TAKEN IN GOOD FAITH

POLICIES THAT FURTHER THE EDUCATIONAL MISSION

PROCEDURES THAT ARE FAIR

= LEGAL SYSTEM DEFERS!!!

NEW ELEMENT…




JUDICIAL IMPATIENCE

Traditional Judicial Deference

Courts have traditionally demonstrated

reluctance in exercising their judicial power in the area of school administration.

Courts tend to defer to the school authorities wide discretionary authority in operating their schools.


“By and large, public education in our Nation is committed to the control of state and local authorities.

Epperson v. Arkansas, 393 U.S. 97 at 104 (1968)


“Courts do not and can not intervene in the resolution of conflicts which arise in the daily operation of school systems and which do not directly and sharply implicate basic constitutional values.”

Epperson v. Arkansas, 393 U.S. 97 at 104 (1968)

NEW ELEMENT…




JUDICIAL IMPATIENCE

Safe Schools:President Obama

“Can we honestly say that we’re doing enough to keep our children, all of them, safe from harm? I’ve been reflecting on this the last few days, and if we’re honest

with ourselves, the answer’s no.” We can’t tolerate this anymore. These

tragedies must end. And to end them, we must change.”

Remarks by President at Sandy Hook Interfaith Prayer Vigil.

Court Decisions: Cannot be Too Careful

State Power is Permissive!

Presumption of Authority = “Police Power”

• Health • Safety • Welfare • Values

• Morals • Appropriate behavior

• Education mission

You do not need statutory or judicial permission to modify agency policy.

State Power is Permissive!

State and Local Power is not dependent on enumeration of public law.

Look to Law for Prohibitions,

otherwise act to resolve conflicts that endanger children…

Proper Use of Case Law:1. Examine Federal statutes and Federal

court cases looking for prohibitions.

2. Examine State statutes and State court cases looking for prohibitions.

3. Examine local policies to eliminate self-imposed limits on authority

Where are the Limits in 2014?

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CATEGORIES OF INTEREST TO THE COURTS

DUE PROCESS LIABILITY INTERROGATIONS FREE SPEECH ANONYMOUS TIPS USE OF FORCE SEARCH AND SEIZURE

DUE PROCESSFULTON COUNTY v. D.R.H.

Court of Appeals of Georgia

November 20, 2013 325 Ga.App. 53 752 S.E.2d 103

RULE:Due Process in Education

Give students appropriate notice of the charges BEFORE discipline: Tell you both that a disciplinary action is

pending against you. Describe, at least briefly, the specific act or

acts that allegedly violated the rule. Opportunity to be heard.

NOTE: Most Disciplinary hearings held within 10 days of incident.

FULTON COUNTY v. D.R.H.

FACTS: Student was absent from class without

permission – hanging out in the hallways of the school.

Student failed to comply with SRO instructions to go the Administrative Office.

Student combative with Principal. Shoves SRO. Taken to Youth Detention Facility.


RULING: A high school student's detention at a

juvenile youth detention center does not constitute a disciplinary suspension.

Due process under the State Education

Code is not required.


RULING: School officials did nothing more than

perform the duty under the law to

Report alleged criminal misconduct by students.

Yield when laws are being enforced on on campus.


Why CASE is Important:

Education Due Process procedures do not affect the enforcement of criminal laws.

The Juvenile Justice System and the

school code of conduct are two separate systems.


Why CASE is Important: Allowing enforcement of the law on

campus is a mandatory task for educators.

Reporting of crime on campus is not a discretionary task for educators.

School Rules are not a defense for obstruction of justice.

LIABILITY

Christopher Smith v. State of Indiana

Smith v. Snohomish School Dist. No. 201

M.S.D. of Martinsville v. Jackson

Duval County School Bd. v. Buchanan

LIABILITYCHRISTOPHER SMITH v.

STATE OF INDIANA

Court of Appeals of Georgia

March 27, 2014 8 N.E.3d 668

SMITH v. STATE OF INDIANA

Facts: A high school principal, was convicted of

failing to immediately report crime after being informed that a 16-year-old student reported that she had been raped by another student of the same age.

Misconduct was in a bathroom at the school.

Principal waited 4 hours before making report.


Ruling: State Law’s use of word “immediately” was

not vague.

Principal’s phone call to a private youth center did not satisfy his responsibility to immediately notify either: The Department of Child Services (DCS) or A law enforcement agency.


Ruling:

Principal’s eventual phone call to DCS hotline

four (4) hours later was not sufficiently immediate.


Why CASE is Important: Reporting of crime on campus is not a

discretionary task for educators.

Regardless of any policies within the

school district, the educator is not relieved of the responsibility to report.



It is a violation of the law for an educator

to prevent or discourage an employee from making a report.


Why CASE is Important: School Rules are not a defense for

obstruction of justice.

Education Due Process procedures do not affect the enforcement of criminal laws.



Every State and Territory has statutes that require educators to report suspected child victimization and abuse.

Educators and Reluctance toReport to Other Agencies

Misunderstanding of Law An “abused” child is one who has

been either sexually abused, physically injured, or psychologically injured.


Misunderstanding of Law A “neglected” child is one:

Who has been abandoned by his or her parents,

Who is without the level of control or subsistence as required by the child’s needs, or

Whose parents are unable to properly provide care as a result of their incapacity.


Misunderstanding of Law Teachers and school officials have

no obligation to investigate suspected neglect or abuse.

They should simply report any suspicions of abuse.

Immunity protects all reporters.


Misunderstanding of LawAll persons are mandated

reporters. teachers, school officials school nurses school counselors any other person with school duties.


Misunderstanding of Law

Regardless of any policies within the

school district, the educator is not relieved of the responsibility to report.

LIABILITYSMITH v. SNOHOMISH SCHOOL DISTRICT

Superior Court of Washington

APRIL 11, 2014 2014 WL 1641050

Note: WL means ‘WestLaw‘

SMITH v. SNOHOMISH SCHOOL DISTRICT

Facts: A stabbing occurred on-campus in a

downstairs bathroom near the cafeteria in the morning before school started.

The girl behind the attack came to school that day with knives in her backpack. She waited in a bathroom stall and apparently picked her victims at random. Two students were attacked.


Facts: The girl told school officials in spring 2011 that

she was having fantasies about killing others.

She was expelled from school in April 2011 after

she threatened to stab another student, court papers said. School officials allowed her to return to school after eight (8) days of out-patient professional counseling.


RULING: a jury decided the Snohomish School

District must pay $1.3 million for its negligence in failing to take proper steps to protect students.



Jury gives priority to the duty to respond to dangers that are reasonably forseeable rather than an emerging form of alternative discipline policy.



Jury refusal to accept one popular form of alternative discipline policy.

“Restorative Justice”

Restorative Justice

Philosophy of Reforming School Discipline

Focus: Diminishing Zero Tolerance in School

Discipline Fewer Out-of-School Suspensions Expulsions as a “Last Resort”

Restorative Justice


Focus: Reduction of Referrals to Juvenile

Justice Not Reporting Campus Misconduct that

is not Necessarily Violent or Dangerous.

Restorative Justice


Focus: Reduction of Referrals to Juvenile

Justice Not Reporting Campus Misconduct that

is not Necessarily Violent or Dangerous.



The School district defended by saying it was confused about how to implement its own policies.

“The question in this case is how does a [school] district strike a balance between

safety and the rights of all children to an education?”

Snohomish School District Trial Documents

Snohomish School District Confused by its own School Policies:

Schools have a duty to keep a child in school.

But, School districts are encouraged to find alternatives to suspension.

Discipline should be be progressive in nature.

But, expulsion should be used in an emergency only – when there is an immediate and continuing danger to the students and then only until the emergency subsides.


Prior to excluding a student from class:

--- “the teacher must first attempt one or more alternative forms of corrective action.”


“No student shall be expelled unless other forms of discipline (corrective action, exclusion, detention), short term and long term suspension reasonably calculated to modify his or her conduct have failed

unless there is good reason to believe that other forms of corrective action or consequence would fail if employed.”


“Students 13 years and older have

confidentiality rights in records regarding drug, alcohol and mental health treatment.”


“A school district cannot search a student unless it has a “reasonable, individualized suspicion” justifying the search.”

LIABILITYM.S.D. of Martinsville v. Jackson

Court of Appeals of Indiana

May 19, 2014 9 N.E.3d 230

2014 WL 2039857


Facts: Two Middle School students were shot at

school by another student.

Each Victim filed lawsuits against the Metropolitan School District alleging that the School District breached its duty to keep them safe.


Facts: The shooter was never expelled, although

his disciplinary record was the following:

Fifty (50) discipline referrals:

Forty-three (43) of which were for disrespect toward school personnel or failure to follow school rules.

Seven (7) discipline referrals for harassing, threatening, and physically assaulting other students.


Facts: Five (5) weeks before the shooting, the

shooter commented to some of his classmates that he wanted to “just blow up the school.”

The school barred from entering school property except to take the ISTEP test.

His mother withdrew him from school as expulsion proceedings finally began.


RULING: The Indiana Court of Appeals ruled that a

school district is not entitled to immunity for injuries to a student that are

reasonably foreseeable. Indiana educators have a “special duty,” to supervise students.


RULING: The Indiana Court of Appeals ruled that

educators have a “special duty,” to supervise students.



Implementing a school safety plan on campus is not a discretionary task for educators.

Immunity from suit for educators is being taken away in the area of school safety.


“Principal Lipps's development of the safety plan …is not the type of policy-making that our supreme court has since determined should be exempt from liability.”

”The student’s complaint does not allege that the …safety plan was negligently formulated. Rather, it claims that [their injuries] resulted from

negligent implementation of the plan.”

“Reasonable Forseeability” with Bite:

“Given these facts, a jury could conclude that it is foreseeable that a shooting would occur:”

[The shooter] had a lengthy history of serious misbehavior in school;

Threatened to blow up the school; Was on school grounds, presumably in close proximity

to the personnel monitors, for thirty minutes prior to the shooting.

He had made threats against C.J., of which at least one teacher was aware.

The day before the shooting, another student had made a threat to shoot a teacher.

LIABILITYDuval County School Bd. v. Buchanan

Court of Appeals of Florida

February 7, 2014 131 So.3d 821

301 Ed. Law Rep. 1154

Duval Cty Schools v. Buchanan

Facts:

A sixth grade middle school student physically attacked another student, breaking the victim’s leg.


Facts: The attacker—had an extensive

disciplinary history: Bullying Fighting Disruption of classes Bringing a weapon to school (knife)

punished by an in-school suspension (ISS) set to begin on the day of the attack.


RULING: School district liable for failing to place the

attacker in in-school suspension (ISS) on the day of the attack, where she was scheduled to be due to bringing a knife to school.


Why CASE is Important: Both the jury and the appellate court

rejected the defense of the school district that its forms of discipline are discretionary decisions that are immune from liability.

Victim’s rights are being given more weight in the assessment of reasonable forseeability.


School District Defense: “On appeal, the School Board argues that

it owed no duty to Buchanan to: Discipline Terry in a particular manner. Discipline Terry on any particular day.”

School Interrogations

.

J. D. B. v. North CarolinaJune 16, 2011, Decided

"[T]he age of a child subjected to police questioning is relevant to the custody analysis of Miranda."

13-year-old, seventh-grade student removed from his classroom.

Questioned by outside police, SRO, and questioned 2 administrators for 30 minutes.

Crimes unrelated to school. No Miranda was given. Student was not told that he was free to leave. Student

confessed.


Trial court and appellate court refused to suppress the confession.

U.S. Supreme Court reverses. “In some circumstances, a child's age would have

affected how a reasonable person in the suspect's position would perceive his or her freedom to leave.”


“[A] reasonable child subjected to police questioning will sometimes feel pressured to submit when a reasonable adult would feel free to go.”

“We think it clear that courts can account for that reality without doing any damage to the objective nature of the custody analysis."

Interrogations

J.D.B. v. N. Carolina, 131 S. Ct. 2394 (2011) S.G. v. State, 956 N.E.2d 668 (Ind. Ct. App. 2011) State v. Oligney, 841 N.W.2d 581 (2013) State v. Antonio T. 300 P.3d 1181 (N.M. 2013) N.C. v. KY., 396 S.W.3d 852 (Ky. 2013)

School Interrogations

Adam Lewental

[email protected]

SG v StateIndiana Court of Appeals

2011

Teacher left iPhone in school bathroom. Security cameras caught student who stole it. SG [17-years-old] received stolen property,

got rid of it. SRO brought SG to Principal’s office. Principal questioned, SRO said nothing, SG

confessed. SG suspended and charged with receiving

stolen goods.

SG v StateWhy is this Case Important?

Mere presence of SRO not coercive. Does not create custody

SRO: “[Responsible for] the safety and security of the students and staff. Also, dealing with any type of law enforcement issues that could arise from within the school or on the property from outside.”

State v Antonio TNew Mexico Court of Appeals

2012

Juveniles need Miranda warning when subject to investigatory detention, rather than custodial interrogation (only in New Mexico) “presumptively brief and not so inherently coercive that

the detainee feels compelled to speak” Student (age not given) accused of being

intoxicated in school Vice Principal questioned student in front of SRO,

SRO said nothing. Student confessed, SRO gave Miranda rights after

State v Antonio TImportance

Administrator was acting only for safety of student and school

SRO worked at direction of educator SRO did not engage in questioning Miranda not necessary, confession stands

State v OligneyWisconsin Court of Appeals

2013

Allegations that 16-year-old student raped another student off campus

Police officer came to school in plainclothes

SRO brought student to office where he and officer told student he was free to leave, interviewed for 2 hours

State v OligneyImportance

No custody because: Student told twice that didn't have to stay,

clear that student was free to leave He was not restrained in any manner while

seated next to the unlocked door Judge felt that 16-year-old teenager

generally has less respect for authority than the reasonable adult

State v OligneyImportance

"A reasonable person of Oligney's age [16 years-old] would not ordinarily have felt obligated to participate against his or her wishes; teenagers are often recalcitrant."

NC v KentuckySupreme Court of Kentucky

2013

17-year-old high school student Teacher found empty bottle of prescription

meds in school bathroom Asst. principal and SRO questioned

student together, as per routine No miranda warnings SRO filed criminal charges after

confession

“Consequently, a proper balance is struck if school officials may question freely for school discipline and safety purposes, but any statement obtained may not be used against a student as a basis for a criminal charge when law enforcement is involved or if the principal is working in concert with law enforcement in obtaining incriminating statements, unless the student is given the Miranda warnings and makes a knowing, voluntary statement after the warnings have been given.”

NC v KentuckyImportance


Questioning by educator alone does not need Miranda

Mere presence of SRO requires Miranda Because SRO/AP worked in concert,

Miranda warning must be given Reasonable student (even 17-year-old)

would not feel free to leave questioning from principal/SRO


“No reasonable student, even the vast majority of seventeen year olds, would have believed that he was at liberty to remain silent, or to leave, or that he was even admitting to criminal responsibility under these circumstances.” –NC v Kentucky

“No reasonable student, even the vast majority of seventeen year olds, would have believed that he was at liberty to remain silent, or to leave, or that he was even admitting to criminal responsibility under these circumstances.” –NC v Kentucky

"A reasonable person of Oligney's age [16 years-old] would not ordinarily have felt obligated to participate against his or her wishes; teenagers are often recalcitrant." –State v Oligney

Where Does This Leave Us?


5th Amendment does not apply to educators as long law enforcement not involved in questioning.

May question students without warnings. School safety is always present as primary concern. off campus on campus

Presumption against law enforcement and school resource officers The younger the student, the more likely

custody will be found and Miranda necessary If law enforcement is conducting questioning,

some warning will be necessary Miranda “Oligney” warning

In Kentucky, mere presence of SRO requires Miranda


Adam Lewental

[email protected]

Indiana Law on Interrogations 20-33-11-3: If a student who is under eighteen (18) years of

age is interrogated by a law enforcement officer: (1) on school property; and

(2) regarding an investigation in which the student may be a suspect;

the school principal must make an effort to immediately notify the student's parent of the interrogation, or … notify the student's parent not later than twelve (12) hours after the interrogation occurs.

Indiana Law on Interrogations 20-33-11-3

Optional School Policies:

1. A policy that requires student's parent to be notified if the student is interrogated on school property by a law enforcement officer AT ANY AGE.

503

Colorado: 22-33-106.3 (2008)

“[S]hall not use a statement….unless the statement is signed by the student and a parent….”

Exception: Signed by student only after phone calls are made to parent at the number(s) provided.

Oklahoma Statutes on Interrogations

Okla. Stat. tit. 10, § 1109(a): No information gained by questioning a

child nor any evidence subsequently obtained as a result of such information

shall be admissible …unless the questioning … by any law enforcement officer or investigative agency, or employee of the court, or the Department of Human Services is done in the presence of the parents.”

New Mexico Statutes on Interrogations

N.M. Stat. Section 32A-2-14(C) : “A child subject to the provisions of the

Delinquency Act is entitled to the same basic rights as an adult.”


N.M. Stat. Section 32A-2-14(C) :

Notwithstanding any other provision to the contrary, no confessions, statements or admissions may be introduced against a child under the age of thirteen years on the allegations of the petition.


N.M. Stat. Section 32A-2-14(C) :

There is a rebuttable presumption that any confessions, statements or admissions made by a child thirteen or fourteen years old to a person in a position of authority are inadmissible.

FREE SPEECH

Nixon v. Hardin County Bd. of Education.

Wynar v. Douglas County School Dist

People v. Marquan M.

S.N.B. v. Pearland Independent School District

FREE SPEECHNixon v. Hardin County Bd. of Education.

United States District Court,

W.D. Tennessee,

DECEMBER 27, 2013 013 WL 6843087 (2013)


Nixon v. Hardin County Bd.

A dispute between two female students who, while attending the middle school.

Competing for the attention of the same male student.

A series of tweets: -- “[I will help you] shoot [her] in the face.” -- “Good Luck. Shoot her in the face.” -- “I hate her. That was my whole point. … I’ll

kill her.”


The mother of the THREATENED student called the assistant principal at home to advise him of her concerns about sending her daughter to school the next day.

School gave Nixon a forty-five-day suspension and a transfer to the alternative school for the

duration of the suspension period.

Emerging Rule on Cyberbullying

Student cyber- speech speech may be punished when it originates on campus, or uses school equipment off-campus or originates off campus but is directed at

the school in such a way as to pose a reasonable foreseeable risk that it will disrupt the work and discipline of the school.

Rule on Threats

In the school context, threats of violence and harassment are not protected speech. But there must be

a connection between the cyberbullying and the school to justify school discipline.

The speech must have something to do

with the school to justify school discipline.


Court Decision School discipline invalid. Facts do not satisfy the geography test

Nixon v. Hardin County Bd.Why CASE is Important:

“Here, the speech had no connection to [the school] whatever other than the fact that both the speaker and the target of the speech studied there.”

No disruption of school activities. “The speech was

not made at school, directed at the school, or involved the use of school time or

equipment.”

FREE SPEECHWynar v. Douglas County School Dist

United States District Court,

District of Nevada

AUGUST 29, 2013 728 F.3d 1062 (9th Cir.2013)

Wynar v. Douglas County Sch

A high school student who sent several

threatening instant messages from home via MySpace to his friends bragging about his guns and promising to shoot persons at the school on a certain date.

The student’s instant message conversation was forwarded to school officials by others.

Rule on Threats

In the school context, threats of violence and harassment are not protected speech. But there must be

a connection between the cyberbullying and the school to justify school discipline.

The speech must have something to do

with the school to justify school discipline.

Wynar v. Douglas County Sch Court Decision:

School discipline Valid

Wynar v. Douglas County Why CASE is Important:

School Officials did not violate the Free Speech Rights of the Student: The student stated that he had access to

guns and ammunition and picked out a particular date to carry out his threats.

The school district had a reasonable basis to

forecast a disruption of school activities, and thus the school did not improperly suppress the student’s speech,

FREE SPEECHPeople v. Marquan M.

New York Court of Appeals

JULY 1, 2014 2014 NY Slip Op 04881


A high school student, anonymously posted sexual information and photographs of fellow classmates and other adolescents on Facebook, a social networking website. Detailed descriptions of their alleged sexual

practices and predilections, sexual partners and other types of personal information.

The descriptive captions, which were vulgar and offensive.


Juvenile was charged with cyberbullying under Albany County's local law.

"any act of communicating on…..on the internet.

….disseminating embarrassing or sexually explicit photographs; disseminating private, personal, false or sexual information, or sending hate mail, with no legitimate private, personal, or public purpose,

…with the intent to harass, annoy, threaten, abuse, taunt, intimidate, torment, humiliate, or otherwise inflict significant emotional harm on another person"

People v. Marquan M. Court Decision:

Albany County’s cyberbullying law was overbroad and facially invalid under the Free Amendment.

The text of the law covered too much.

The law criminalized a variety of constitutionally-

protected modes of expression - a great deal more than acts of cyberbullying.

People v. Marquan M.Why CASE is Important:

Cyberbullying can by criminalized.

The laws must be written with greater precision.

School rules should be precise.

FREE SPEECHS.N.B. v. Pearland Independent School

District

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

DECMEBER 22, 2013 2014 WL 2207864



12-year old middle school student began sending inappropriate pictures of herself and her friend to other students off school grounds.

Student, who was transferred to disciplinary alternative education program

People v. Marquan M. School Policy:

“[You cannot] send, post or possess electronic messages that are abusive, obscene, sexually oriented, threatening, harassing, damaging to another's reputation or illegal,

Including cyber-bulling ‘sexting’

….either on or off school property, if the conduct causes a substantial disruption to the educational environment.”

People v. Marquan M. Court Decision: School officials did not violate student's

constitutional rights by punishing her for lewd photograph. School policy was not overbroad. School policy did not cover too much

protected speech. Transfer to the alternative school did not

deprive student of any right to an education.

People v. Marquan M.Why Case is Important

School officials have a range of alternative punishments for cyberbullying and inappropriate speech that Court think are above judicial review:

Transfers In-school suspension Deprivation of Participation School sponsored

programs

ANONYMOUS TIPS

K.P. v. State of Florida

ANONYMOUS TIPSK.P. v. State of Florida

Florida Court of Appeals

DECEMBER 26, 2014 2013 WL 6800973


K.P. v. State of Florida

Law enforcement from another jurisdiction received an anonymous tip that K.P. was carrying a firearm.

An assistant principal of a public high school took possession of a student’s book bag after receiving information.

A loaded, semi-automatic handgun was found.

K.P. was arrested and adjudicated.

K.P. v. State __ So.3d __; 2013 WL 6800973 (FLA 2013)

“An anonymous tip like the one at issue may not constitute a sufficiently reliable indicator that a crime was occurring to justify a search of K.P. by police officers on a public street…

K.P. v. State __ So.3d __; 2013 WL 6800973 (2013)

“…However, the level of reliability required to justify a search is lower when the tip concerns possession by a student of a firearm in a public school classroom.”

K.P. v. State __ So.3d __; 2013 WL 6800973 (2013)

“An anonymous tip that a named student has a gun in school is not something that school administrators may lightly ignore. It is not a matter that warrants no response. …

K.P. v. State __ So.3d __; 2013 WL 6800973 (2013)

“…[T]he conclusion appears inescapable that a reasonable guardian and tutor of a group of school children might well conduct a search of the student’s book bag to address such a substantial threat to the children assembled at school.”

K.P. v. State Why Case is Important

In School where the expectation of privacy is diminished, such as in airports or schools, an anonymous tip about a dangerous event might be so great as

to justify a search without corroborating the reliability of the tip.

Use of Force - Tasers

• Indiana Supreme Court upholds use of Taser by school resource officer against student whose conviction for resisting law enforcement, as a class A misdemeanor, and disorderly conduct, a class B misdemeanor were upheld.

[Walker v. State].

http://caselaw.findlaw.com/in-supreme-court/1652412.html

Use of Force - Tasers

• A federal court panel rules that a school resource officer who used chemical spray on a high school student a second time, when she was allegedly incapacitated, non-resistant, and writhing in pain on the ground, was not entitled to qualified immunity against a claim of unreasonable force, even if the first use of chemical spray was reasonable due to the student's resistance.

[J.W. ex rel. Williams v. Roper].

http://scholar.google.com/scholar_case?case=7761040948404747128&hl=en&as_sdt=6&as_vis=1&oi=scholarr

Riley v. California4th Amendment: “The right of the people to be secure in

their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Riley v. CaliforniaRules “The ultimate touchstone of the Fourth

Amendment is ‘reasonableness.’ “Reasonableness = obtaining of a judicial

warrant.”

Riley v. CaliforniaRules “Any privacy interests retained by an

individual after arrest [is] significantly diminished by the fact of the arrest itself.”

“[But], the fact that an arrestee has diminished privacy interests does not mean that the Fourth Amendment falls out of the picture entirely.

Riley v. CaliforniaRules

“In the absence of a warrant, a search is reasonable only if it falls within a

specific exception to the warrant requirement.”

Riley v. CaliforniaBalancing Test:

The degree to which it intrudes upon an individual’s privacy

The degree to which it is needed for legitimate governmental interests.

Riley v. CaliforniaSearch incident to arrest exception:

Officer safety To preserve evidence

1. Personal property immediately associated with the person of the

arrestee.

2. Vehicle Greater power for relevant evidence because

circumstances unique to the vehicle.


3. Cell Phones ?

NO


“We therefore decline to extend [it] to searches of data on cell phones.”

“[We] hold instead that officers must generally secure a warrant before [searching a cell phone.]”

Riley v. California1. Cell phones, however, place vast quantities of personal information literally in the hands of individuals.

Modern cell phones are …hold for many Americans “the privacies of life.”

Data

Applications

Documents

Remote Access to Cloud

Riley v. California2. “Cell phones, as a category, implicate

privacy concerns far beyond those implicated by the search of:

a cigarette pack,

a wallet,

a purse.”

Riley v. California3. Digital data stored on a cell phone cannot itself be used as a weapon to harm an arresting officer or to effectuate the arrestee’s escape.

Riley v. California4. After seizure of a cell phone, there is no longer any risk of potential loss of evidence that cannot be dealt with other current exceptions or creative methods.

Riley v. California 5. Other Exceptions to the warrant

requirement are in play:

-- Exigent circumstances

-- Plain View

-- Consent

Facts and DataTrends:

Over the past two decades, America's public schools have become safer and safer.

All indicators of school crime continue on the downward trend. school-associated deaths, violence nonfatal victimizations theft


This trend mirrors that of juvenile arrests: Fell nearly 50% between 1994 and 2009. Fell 17% between 2000 and 2009 alone.

2011 National Center for Education Statistics & Bureau of Justice

Statistics, Indicators of School Crime and Safety


This trend mirrors that of juvenile arrests: All States

Texas Maryland Florida

Many Big Cities Baltimore Houston

2011 National Center for Education Statistics & Bureau of Justice

Statistics, Indicators of School Crime and Safety


This trend mirrors that of increased graduation rates: Rose to 75.5% between 2009 and 2010. Number of “failing schools” dropped from 2,007

to 1,550.

Johns Hopkins University, The Everyone Graduates Center.

“Building a Grad Nation” (2012)


This trend mirrors that of increased graduation rates: 40 States reported record increases in the

graduation rate.• Maryland • New York • Virginia

• Florida • Alabama • Tennessee

• Texas • Georgia • North Carolina

• Missouri • Massachusetts • Wisconsin

Johns Hopkins University, The Everyone Graduates Center.

“Building a Grad Nation” (2012)

Letting the Facts and Data

Speak for itself: This period of time:

Coincides with the creation and expansion of School Resource Officer programs.

Overlaps with statutory and judicial acceptance and authorizations of SROs as part of the school safety team in all 50 states.

Explains changes in federal and state records-privacy laws that authorize and promote more effective communication between educators and SROs.

Legitimate Child Welfare Issue:

Research Shows: Poor Exercise of discretion by Educators in

responses to: “DISRODERLY CONDUCT” Incidents.

Poor Response Better Outcomes

• Citation • Risk Factors Assessment

• Arrest • Protective Factors “ “

• Zero Tolerance • Treat the Behavior

• Serious Offenses Excepted*

Legitimate Child Welfare Issue:

Educational Decisionmaking : Misuses Juvenile Justice System Ignores Child Welfare System Interrupts and Delays Student Learning Student:

Harassed by interruptions to learning. Misses opportunity to thrive. May graduate, but is not “ready to contribute”

Restorative-Justiceand the SRO

Emerging Research Shows:

“Restorative-Justice” techniques are compatible with SRO programs that incorporate the triad approach to campus safety.”

Cheryl Swanson & Michelle Owen, “Building

Bridges: Integrating Restorative Justice With the School Resource Officer Model,” (2007).

Restorative-Justiceand the SRO

Emerging Research Shows:

Restorative conferencing with police officers can reduce recidivism and play a key role in restorative justice models.

Cheryl Swanson & Michelle Owen, “Building

Bridges: Integrating Restorative Justice With the School Resource Officer Model,” (2007).

Bernard JamesPhone (310) 506-4689Fax (310) 506-4063

[email protected]

- Questions-Comments-Workshops

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