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After a 9-year-old boy stole an iPad from his Sandy elementary school in 2011, his principal wanted him charged with theft. A Sandy police officer called to the school ended up pushing the boy's arm into a painful twist lock before handcuffing him.
The officer didn't violate the boy's constitutional rights, a three-judge panel of the 10th U.S. Circuit Court of Appeals unanimously agreed in a Friday ruling.
But they split on the philosophical issue of how young offenders should be treated, with Judge Carlos Lucero of Colorado decrying how intertwining criminal justice and school discipline is creating a "school-to-prison" pipeline.
"Focusing narrowly on the legal standards applicable in this case renders it too easy to overlook the obvious question: Why are we arresting nine-year-old schoolchildren?" Lucero wrote.
Judges Terrence O'Brien and Neil Gorsuch agreed it was regrettable that a police officer felt "a need to resort to physical force, handcuffs, and arrest" to control the 67-pound boy, but said that "equally regrettable is the disrespectful, obdurate, and combative behavior of that nine-year-old child."
The case stems from an Aug. 31, 2011, confrontation between the boy, then a fourth-grader at Bell View Elementary School who had been diagnosed with attention deficit hyperactivity disorder, and Sandy school resource Officer Tina Maria Albrand.
The boy's grandmother told him to return the stolen iPad, according to court documents. The principal saw him carrying the device and asked him to return it.
Documents differ on whether the principal or another school employee took it from him, and whether he grabbed it back. But after the encounter, he ran down the hall and tried to kick and head-butt school employees who chased him.
When Albrand arrived, three school employees had gotten him under control and he was sitting calmly in a hallway. The principal, school psychologist and the boy's grandmother were sitting on the other side of the hallway.
The principal told Albrand she wanted to file theft charges, and the accounts of what happened next diverge.
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Judging force • Albrand said she tried to talk with the boy but he didn't reply. She placed her hands on his left hand and elbow to help him stand, she said, but he started twisting and grabbed her arm.
Fearing he was trying to get her gun, Albrand said, she placed him in a twist lock and then put him in handcuffs.
In a twist lock, an officer holds a suspect's arm at his side with both hands and then twists the arm in a painful way to stop the person from fighting or resisting, court documents say.
The grandmother saw the confrontation differently.
She said that when her grandson did not answer Albrand's questions, the officer immediately yanked him up off the floor and put him in a twist lock.
According to the 10th Circuit ruling, an X-ray showed a possible hairline fracture in the boy's collarbone.
The child's grandparents, who are his legal guardians, say he suffers from post traumatic stress disorder because of the incident. They filed suit in U.S. District Court in Salt Lake City against Albrand and Sandy, claiming that the officer used excessive force.
However, Judge Robert Shelby threw out the case last year, ruling it was reasonable for Albrand to believe that someone struggling and grabbing her arm might reach for her gun and that she used "a constitutionally appropriate amount of force."
He noted the grandmother had made inconsistent statements — saying in a deposition that her grandson grabbed Albrand's arm after the officer grabbed his arm — and that the other eyewitnesses said Albrand's first physical contact with the boy was to help him up.
The grandparents appealed, leading to Friday's decision from the Denver court.
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Children and crime • Defense attorney Peter Stirba, who represents Albrand and Sandy, said he was pleased with the ruling. Police officers have to get control of certain situations, he said, and Albrand's actions were appropriate.
The grandparents and their lawyer could not be reached for comment Friday.
The 10th Circuit ruling, written by O'Brien, said the key legal question was when Albrand used the twist lock. The judges agreed with Shelby that the officer used the hold after the boy grabbed her arm, and that its use in those circumstances did not constitute excessive force.
Writing separately, Lucero said he agreed current law called for that conclusion. But the law is "improperly and inadequately developed" for dealing with criminal behavior in young childhood, he said.
Rising school violence, such as the shootings at Sandy Hook and Columbine, necessitates security in American schools, he said. But society's goal should be for families and educators to use "early and positive intervention" to guide errant elementary school children, he said.
The law "makes it too easy for educators to shed their significant and important role in that process and delegate it to the police and courts," he wrote. "We should change course and instead leave it to the factfinder to determine whether the handcuffing of six- to nine-year-old children is excessive force rather than giving schools and police a bye by holding them immune from liability."
Emily Chiang, a University of Utah law professor who studies the link between school discipline and criminal convictions, agrees. She said the case "demonstrates how incredibly important it is that we as a state wake up and start talking about school discipline."
In school, physical discipline from administrators or security officers often traumatizes students, studies suggest.
"You compare that to the traumatic experience of being referred to arrest by your school. It really kind of boggles the mind," she said. "How is this kid going to feel about attending school from now on?"
Overall, Chiang said, schools should strive to resolve such cases without calling police, adding courts don't have the time or money to handle incidents such as this one.
She asked, "Is that really how we as a community want to be spending our precious resources, when we can sit the kid down and say, 'Hey, don't take things that don't belong to you?' "