E.W., a minor, by and through her next friend and mother, T.W., Plaintiff - Appellant,
ROSEMARY DOLGOS, School Resource Officer, in her individual capacity, Defendant-Appellee, and WICOMICO COUNTY SHERIFF'S DEPARTMENT, Defendant.
Argued: May 10, 2017
from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, Senior District
Ringgold Cockey, COCKEY, BRENNAN & MALONEY, PC,
Salisbury, Maryland, for Appellant.
Francis Breads, Jr., Hanover, Maryland, for Appellee.
E. Hay, COCKEY, BRENNAN & MALONEY, PC, Salisbury,
Maryland, for Appellant.
GREGORY, Chief Judge, WYNN, Circuit Judge, and SHEDD, Senior
GREGORY, Chief Judge.
matter involves a school resource officer's decision to
handcuff a calm, compliant elementary school student for
fighting with another student three days prior. The child
brought a claim under 42 U.S.C. § 1983 for excessive use
of force in violation of the Fourth Amendment and several
state law claims. On a motion for summary judgment, the
district court concluded that the officer's conduct did
not amount to a constitutional violation and that the officer
was entitled to both federal qualified immunity and state
statutory immunity under the Maryland Tort Claims Act
("MTCA"). For the reasons that follow, we affirm
the district court's judgment.
this case arises from a grant of summary judgment, we set
forth the material facts in the light most favorable to
Appellant E.W., the non-movant. Henry v. Purnell,
652 F.3d 524, 527 (4th Cir. 2011) (en banc).
Tuesday, January 6, 2015, ten-year-old E.W. rode a school bus
to East Salisbury Elementary School in Salisbury, Maryland.
E.W. sat in an aisle seat on one side of the bus while
another student, A.W., sat diagonally across from her in an
aisle seat one row behind E.W. on the opposite side of the
bus. The two schoolgirls both had their feet in the aisle:
E.W. was facing sideways with her feet in the aisle, and A.W.
was facing forward with her left leg in the aisle, extended
in the direction of E.W.
footage from the school bus's surveillance camera shows
A.W. swaying her left knee from side to side in the aisle.
ECF No. 18 (DVD filed with Joint Appendix, hereinafter
"Video"), at 0:10. Several seconds later A.W.
raised her left leg in the air and made a sudden, stomping
motion in the direction of E.W.'s leg. Video 0:24. E.W.
later reported that A.W. had stomped on her shoe. In response
to the stomp, E.W. immediately stood up and faced A.W., who
was slouched in her seat. Video 0:26. The bus driver then
asked E.W. what she was doing. E.W. sat down, took off her
backpack, and removed what appeared to be two lanyards from
around her neck. Video 0:26-38. A few seconds later, E.W.
stood up again and raised her leg towards A.W. Video 0:40. As
E.W. raised her leg, A.W., still sitting, also raised hers.
Video 0:40. Because A.W. was slouched in her seat, she was
able to extend her leg further than she would have sitting
fully upright. The two girls appear to trade kicks before
E.W. put her leg down and A.W. slid lower into her seat.
then stood over A.W. and began hitting her, swinging her arms
downward because of their height difference. Video 0:41-45.
Although the seat in front of A.W. obscured the camera's
view of the scuffle, the way A.W. was sitting suggests that
E.W.'s swings likely landed on A.W.'s left arm,
shoulder, and possibly her head. Video 0:46-48. After four
seconds, E.W. returned to her seat. Video 0:46-48. Shortly
thereafter, E.W. looked at A.W., stood up, and again moved in
A.W.'s direction. Video 0:54-55. A.W. raised her leg in
the air, and E.W. kicked at A.W.'s shoe several times
while A.W. kicked back. Video 0:56-59. During the exchange of
kicks, A.W. appeared to laugh and say something to E.W. Video
exchange drew the attention of the bus driver, who called
both E.W. and A.W. to the front of the bus and eventually
suspended both girls from the bus for three days. Video
1:00-2:15; J.A. 22-23.
Friday, January 9, 2015, the school contacted Appellee
Rosemary Dolgos, a deputy sheriff and school resource officer
("SRO") in Wicomico County, about the scuffle. When
she arrived at the school, Dolgos watched the surveillance
video described above. Dolgos spoke to A.W. first, asking her
if she was injured. A.W. pulled up her left pant leg, and
Dolgos observed "two small, bluish bruise[s]" above
the left knee and one on the side of A.W.'s leg. J.A. 23.
Notably, no other injuries, including upper body injuries,
was then removed from class and placed in a closed office
with Dolgos and two school administrators. Dolgos told E.W.
that she was there to discuss what took place on the bus.
But, in Dolgos's estimation, "E.W. [did not] seem to
care." J.A. 23. E.W. explained, "A.W. stepped on my
shoe so I kicked her and started to hit her." J.A. 23.
Dolgos attempted to emphasize to E.W. the seriousness of the
situation and the possible repercussions, telling her that
adults could be jailed for such behavior. Still, in
Dolgos's opinion, "E.W. continued to act as if the
situation simply was not a 'big deal.'" J.A. 23.
Dolgos then decided to take E.W. into custody.
placed E.W. in handcuffs from behind and reseated her. Dolgos
inserted two fingers between the handcuffs and E.W.'s
wrists to ensure that they were not too tight. In her
affidavit, Dolgos stated that she was concerned about the
physical safety of herself and the school administrators
because of both the incident she observed in the surveillance
video and E.W.'s apathy. Dolgos expressed concern in the
affidavit that E.W. might act violently against her or
someone else if she attempted to walk E.W. from the school to
her patrol car. Dolgos also admitted, however, that she had
no idea whether E.W. had "any past or current behavioral
issues or past involvements with law enforcement." J.A.
24. According to Dolgos, E.W. stood 4'4" and weighed
about 95 pounds, while Dolgos stands 5'4" and weighs
after being handcuffed, E.W. began to cry. She explained that
she did not want to go to jail and that she would not hit
A.W. again. Dolgos kept her handcuffed for about two minutes
as she cried and apologized. Dolgos averred that E.W. never
complained that the handcuffs were too tight or displayed
bruises to her. Rather, "[i]n response" to
E.W.'s show of remorse, Dolgos decided not to arrest E.W.
and removed the handcuffs. J.A. 24-25. "Based on
[E.W.'s] remorse, " Dolgos further decided to
release E.W. to her parents. J.A. 25. The school contacted
E.W.'s mother, T.W., and Dolgos informed T.W. that she
would refer the matter to the Wicomico County Department of
Juvenile Services. T.W. responded by asking, "[f]or a
kid fight?" and "[s]o you're going to put my 10
year old daughter in the system when she's 10?" J.A.
25. Frustrated and upset by the treatment of her daughter,
T.W. retrieved E.W. from the school.
December 29, 2015, E.W., by and through T.W., filed this suit
against Dolgos, lleging (1) a violation of the Fourth
Amendment under 42 U.S.C. § 1983 for unreasonable
seizure and excessive force; (2) a violation of Article 26 of
the Maryland Declaration of Rights; (3) battery; and (4)
assault. Dolgos filed a motion to dismiss or, in the
alternative, for summary judgment, which the district court
construed as one for summary judgment and then granted. In a
short paragraph, without citing any case law, the district
court concluded that Dolgos's actions did not amount to
excessive force because E.W. was handcuffed for only two
minutes and then released to her mother. The court further
concluded that Dolgos was "at least" entitled to
qualified immunity as to the § 1983 claim. J.A. 71. And
as to the state law claims, the court found that E.W. failed
to prove that Dolgos acted with malice or gross negligence.
E.W. timely appealed.
first maintains that the district court erred by granting
summary judgment to Dolgos for her § 1983 claim. We
review de novo a district court's order granting summary
judgment.See Smith v. Ray, 781 F.3d
95, 100 (4th Cir. 2015). "Summary judgment is
appropriate only if taking the evidence and all reasonable
inferences drawn therefrom in the light most favorable to the
nonmoving party, 'no material facts are disputed and the
moving party is entitled to judgment as a matter of
law.'" Purnell, 652 F.3d at 531 (quoting
Ausherman v. Bank of Am. Corp., 352 F.3d 896, 899
(4th Cir. 2003)).
argues that the district court erred by concluding that
Dolgos did not use excessive force and was entitled to
qualified immunity. Qualified immunity shields government
officials from liability in a § 1983 suit so long as
their conduct did not violate "clearly established
statutory or constitutional rights of which a reasonable
person would have known." Pearson v. Callahan,
555 U.S. 223, 231 (2009) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)). To determine
whether an officer is entitled to qualified immunity, the
court must examine (1) whether the plaintiff has demonstrated
that the officer violated a constitutional right and (2)
"whether that right was clearly established at the time
of the alleged violation." Estate of Armstrong ex
rel. Armstrong v. Vill. of Pinehurst, 810 F.3d 892, 898
(4th Cir. 2016) (quoting Raub v. Campbell, 785 F.3d
876, 881 (4th Cir. 2015)). To defeat the officer's
entitlement to immunity, the answer to both questions must be
in the affirmative. Id.
are no longer required to analyze these questions
sequentially, but it is often the "better approach"
to "determine first whether the plaintiff has alleged a
deprivation of a constitutional right at all."
Id. (quoting Pearson, 555 U.S. at 232).
Indeed, the Supreme Court has recognized that "following
the two-step sequence-defining constitutional rights and only
then conferring immunity-is sometimes beneficial to clarify
the legal standards governing public officials."
Camreta v. Greene, 563 U.S. 692, 707 (2011). To
"provide guidance to those charged with the difficult
task" of protecting students "within the confines
of the Fourth Amendment, " we exercise our discretion to
first decide whether a constitutional violation occurred.
Id. (internal quotation marks omitted); see
Armstrong, 810 F.3d at 899 (exercising discretion to
address excessive force issue because issue does not
"frequently arise in cases in which a qualified immunity
defense is unavailable" (internal quotation marks
omitted)). And our discussion of the alleged constitutional
violation is "[n]o mere dictum" because "a
constitutional ruling preparatory to a grant of immunity
creates law that governs the official's behavior."
Camreta, 563 U.S. at 708.
begin by considering whether Dolgos used excessive force in
violation of the Fourth Amendment when she handcuffed E.W.
"The Fourth Amendment prohibition on unreasonable
seizures bars police officers from using excessive force to
seize a free citizen." Jones v. Buchanan, 325
F.3d 520, 527 (4th Cir. 2003) (citing Graham v.
Connor, 490 U.S. 386, 395 (1989)). We analyze whether an
officer has used excessive force under an objective
reasonableness standard. Purnell, 652 F.3d at 531.
Determining the reasonableness of an officer's actions
"requires a careful balancing of the nature and quality
of the intrusion on the individual's Fourth Amendment
interests against the countervailing governmental interests
at stake." Ray, 781 F.3d at 101 (quoting
Graham, 490 U.S. at 396). We examine the
officer's actions "in light of the facts and
circumstances confronting [her], without regard to [her]
underlying intent or motivation." Graham, 490
U.S. at 397; accord Pegg v. Herrnberger, 845 F.3d
112, 120 (4th Cir. 2017) ("Subjective factors involving
the officer's motives, intent, or propensities are not
relevant." (quoting Rowland v. Perry, 41 F.3d
167, 173 (4th Cir. 1994))).
this inquiry, Graham encourages us to evaluate three
factors: "the severity of the crime at issue, whether
the suspect poses an immediate threat to the safety of the
officers or others, and whether he is actively resisting
arrest or attempting to evade arrest by flight." 490
U.S. at 396. But these factors are not "exclusive,
" and we may identify other "objective
circumstances potentially relevant to a determination of
excessive force." Kingsley v. Hendrickson, 135
S.Ct. 2466, 2473 (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
(alternation in original) (quoting Tennessee v.
Garner, 471 U.S. 1, 8-9 (1985)); see Ray, 781
F.3d at 101 ("To properly consider the reasonableness of
the force employed we must 'view it in full context, with
an eye toward the proportionality of the force in light of
all the circumstances.'" (quoting Waterman v.
Batton, 393 F.3d 471, 481 (4th Cir. 2005))).
the parties dispute whether handcuffing E.W. was justified
under the circumstances. E.W. asserts that such physical
restraint was unnecessary because Dolgos did not have a
reasonable safety concern. Dolgos argues in response that
because she had probable cause to arrest E.W. for assaulting
A.W., as seen on video and as E.W. concedes, see Md.
Code Ann, Crim. Law § 3-203(a) (West 2015) (defining
second-degree assault), she was justified in using handcuffs
to effectuate the arrest.
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
this Court has never held that using handcuffs is per
se reasonable. Rather, the Fourth Amendment requires us
to assess the reasonableness of using handcuffs based on the
circumstances. See United States v. Drayton, 536
U.S. 194, 201 (2002) ("[F]or the most part per
se rules are inappropriate in the Fourth Amendment
context."); Garner, 471 U.S. at 7-8 (holding
that probable cause to arrest does not automatically justify
manner in which search or seizure is conducted). A lawful
arrest does not categorically legitimize binding a
person's wrists in chains. See Soares v. State of
Conn., 8 F.3d 917, 921 (2d Cir. 1993) ("[W]e reject
defendants' invitation to adopt a per se rule
that the use of handcuffs in effecting an arrest is always
reasonable."). And the troubling facts of the present
case highlight why such a per se rule would be
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.
first factor considers the severity of the underlying
offense. Graham, 490 U.S. at 396. At the time Dolgos
handcuffed E.W., Dolgos knew that E.W. had at most committed
misdemeanor assault in the second degree by hitting another
little girl for stepping on her foot. See Md. Code
Ann. Crim. Law § 3-203(a). But because assault is an
offense that can be considered violent if committed by any
person, even a child, we find that this factor weighs against
E.W. This finding is tempered, though, by the fact that the
offense is a misdemeanor.
second factor identified in Graham, whether the
suspect poses an immediate threat to the safety of the
officer or others, weighs strongly in E.W.'s favor.
See 490 U.S. at 396. In assessing the threat an
individual poses, it is often useful to consider the
suspect's conduct at the time of the arrest and "the
size and stature of the parties involved." See
Solomon v. Auburn Hills Police Dep't, 389 F.3d 167,
174 (6th Cir. 2004); see also C.B. v. City of
Sonora, 769 F.3d 1005, 1030 (9th Cir. 2014) (en banc).
In Solomon, the Sixth Circuit concluded that a
suspect did not pose a safety threat because she had no
weapons, she made no threats, and she was several inches
shorter and weighed one hundred pounds less than the
arresting officers. 389 F.3d at 174. Similarly, in
Sonora, the Ninth Circuit held that "a calm,
compliant, but nonresponsive 11-year-old child, " who
weighed about eighty pounds and stood around 4'8"
tall, did not pose a safety threat, particularly given the
child was "surrounded by four or five adults at all
times." 769 F.3d at 1030.
Dolgos could not have reasonably believed that E.W. presented
any immediate risk of harm to anyone. Like the adult suspect
in Solomon, E.W. had no weapons and made no threats,
see 389 F.3d at 174, and like the eleven-year-old in
Sonora, she was calm and compliant as Dolgos spoke
to her, see 769 F.3d at 1030. In fact, Dolgos
recognized that E.W. appeared calm. See J.A. 23-24.
Also similar to the suspects in Solomon and
Sonora, E.W., at 4'4" and ninety-five
pounds, was quite small relative to Dolgos, the arresting
officer, who was a foot taller and sixty pounds heavier.
See Sonora, 769 F.3d at 1030; Solomon, 389
F.3d at 174. Not to mention, E.W. was in a closed office and
surrounded by two school administrators and a deputy sheriff.
Given these facts, E.W. posed little threat even if she were
to become aggressive.
significant time that had elapsed-without incident-since the
fight on the bus further negates any notion that E.W. posed
an immediate threat. While the scuffle took place on Tuesday,
January 6, East Salisbury Elementary School waited three days
to even contact Dolgos. In the interim, E.W. was allowed to
and did in fact attend school without incident, indicating
that she did not pose a risk to the children around her, much
less to the adults. See Williams v. Nice, 58
F.Supp.3d 833, 838 (N.D. Ohio 2014) (finding reduced need to
use force because student was no longer disruptive when
officer arrived). When Dolgos interacted with E.W. on Friday,
January 9, E.W. was not hostile or even disobedient. Rather,
E.W. remained seated and submissive during the entire
interview, even as Dolgos placed the handcuffs on her.
Dolgos had no reason to think that the scuffle between E.W.
and A.W. was anything but an isolated incident. E.W. had no
prior behavioral issues or involvement with law enforcement,
nor did Dolgos have any indication that she did. The use of
force is an intrusion on Fourth Amendment rights, and an
officer must have a reason for using or escalating force.
See Graham, 490 U.S. at 396 (intrusions on Fourth
Amendment rights must be reasonably necessary given
countervailing governmental interests). Even as to the
altercation on the school bus, E.W., while unjustified in
retaliating, did not become violent without physical
provocation by A.W. Indeed, even a child with a history of
attacking school officials should not be handcuffed if, at
the time of handcuffing, she did not present a danger.
See S.R. v. Kenton Cty. Sheriff's Office, No.
15-143, 2017 WL 4545231, at *5- 6, *9 (E.D. Ky. Oct. 11,
2017) (hereinafter "Kenton II"). All of
these circumstances, taken together, show that E.W. posed no
immediate threat to the safety of the officer or others to
justify the use of handcuffs.
third factor discussed in Graham, whether the
suspect is actively resisting arrest or attempting to evade
arrest by flight, also strongly favors E.W. See 490
U.S. at 396. Dolgos does not even suggest that E.W. attempted
to resist or flee from the office at any point. See,
e.g., Sonora, 769 F.3d at 1030 (handcuffing
student was unreasonable in part because no evidence
suggested that nonresponsive eleven-year-old was likely to
run away); Solomon, 389 F.3d at 173-74 (unreasonable
use of force in part because arrestee did not attempt to flee
or otherwise resist arrest). Cf. Brown, 278 F.3d at
369-70 (finding that officer was justified in handcuffing
plaintiff who was actively and violently resisting arrest).
suspect's age again favors E.W. Circuit and district
courts around the country 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 also Ikerd 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 also James 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.
concurrence seems to suggest that elementary school children
like E.W. are so inherently unpredictable and uncontrollable
that officers would be reasonable in restraining them for our
collective safety. Unsurprisingly, the concurrence's
authorities do not actually support that position or apply to
this case. The concurrence cites to Knox Cty. Educ.
Ass'n v. Knox Cty. Bd. of Educ., 158 F.3d 361 (6th
Cir. 1998), for the proposition that young children are
"unpredictable, in need of constant attention and
supervision, " such that "[e]ven momentary
inattention or delay in dealing with a potentially dangerous
or emergency situation could have grievous
consequences." Post at 41 (quoting
Knox, 158 F.3d at 378). What the concurrence leaves
out is that Knox was discussing whether teachers may
be required to undergo drug-testing in order to
protect young children, who "could cause harm
to themselves or others while playing at recess, eating lunch
in the cafeteria (if for example, they began choking), or
simply horsing around with each other." See 158
F.3d at 378-79. Unless the concurrence suggests that we
handcuff children as a reasonable method of
"supervision" to prevent choking and horseplay,
Knox has little relevance to the case at hand. If
anything, Knox suggests that adults may have to take
on otherwise unreasonable burdens under the Fourth Amendment
to accommodate children's unique needs. Similarly, the
concurrence cites to United States v. Gwinn, 219
F.3d 326 (4th Cir. 2000), but it addresses an officer's
interest in protecting an arrestee by requiring him to wear a
shirt and shoes outside. See id. at 333;
Post at 41. Needless to say, handcuffs are different
from shoes, and there is no indication in this case that
there was any danger to E.W. that justified her
wearing handcuffs. The concurrence also cites to
Hedgepeth ex rel. Hedgepeth v. W.M.A.T.A., 386 F.3d
1148 (D.C. Cir. 2004), but that case expressly noted that the
plaintiff did not bring a traditional Fourth Amendment claim,
and the court did not even consider an excessive force
argument. See id. at 1159; Post at 42.
Finally, J.H. ex rel. J.P. v. Bernalillo County, 806
F.3d 1255 (10th Cir. 2015), another case the concurrence
cites, is not contrary to our holding, as it merely held that
age does not categorically remove all safety concerns.
See id. at 1259 ("[A]n arrestee's age does
not necessarily undermine an officer's concern for safety
and need to control the situation." (citation and
alternations omitted)); Post at 41. We agree and
therefore do not establish a per se rule in this
case.Contrary to the concurrence's
suggestion, we are in good company in concluding that age is
a relevant consideration in an excessive force analysis.
location of the arrest also weighs in E.W.'s favor
because all relevant activity took place in the school
context. Courts have found that officers
should exercise more restraint when dealing with student
misbehavior in the school context. See Hoskins, 2014
WL 7238621, at *7 (holding that school setting, along with
suspect's young age, is "uniquely relevant"
consideration under Graham analysis); see,
e.g., Sonora, 769 F.3d at 1030 (noting
significance of school setting); Kenton I, at *4-5
(same). Society expects that children will make mistakes in
school-and, yes, even occasionally fight. That teachers
handle student misbehavior and unruliness "on a routine
basis without the use of any force" suggests that force
is generally unnecessary in the school context. See
Nice, 58 F.Supp.3d at 838. Furthermore, as with age, the
school context presents unique considerations not present
when officers patrol the streets. The use of handcuffs, for
instance, may undermine students' perception of the
school and their willingness to attend, thereby disrupting
their education far beyond the time they actually spend in
handcuffs.And being handcuffed is often a
source of stigma, which can lead to alienation and further
disrupt long-term outcomes. In other words, the use of handcuffs
and force is not reasonably expected in the school context
because it is counterproductive to the mission of schools and
school personnel. For these reasons, the school
setting-especially an elementary school- weighs against the
reasonableness of using handcuffs.
the facts in the light most favorable to E.W., the totality
of the circumstances weighs against Dolgos and demonstrates
that her actions were not "'objectively
reasonable' in light of the facts and circumstances
confronting" her. Graham, 490 U.S. at 397. Our
reasonableness analysis incorporates "the fact that
police officers are often forced to make split-second
judgments-in circumstances that are tense, uncertain, and
rapidly evolving-about the amount of force that is necessary
in a particular situation." Id. But the
circumstances here were by no means tense, uncertain, or
rapidly evolving such that Dolgos was required to make any
split-second decisions. Dolgos observed a ten-year-old girl
sit calmly and compliantly in a closed office surrounded by
three adults and answer questions about an incident with
another little girl that had occurred several days prior.
Although Dolgos stated she "believed there was a
possibility that [E.W.] could physically act out against me
or anyone else nearby as we left the school to go to my
patrol car, " J.A. 24, and although E.W. argues that
Dolgos handcuffed her at the outset merely because E.W.
"didn't seem to care" about the incident with
A.W., J.A. 23, Dolgos's subjective motives are not
relevant to our reasonableness inquiry. We consider neither
whether Dolgos had a subjective safety concern nor whether
she intended to teach E.W. to appreciate the consequences of
her actions. Rather, we consider whether a
reasonable officer would have determined that E.W. should be
handcuffed as a means of effectuating her arrest.
district court considered only the amount of time E.W. was
handcuffed and that she was released to her mother, but we
are required to assess the totality of the
circumstances presented to properly assess Dolgos's
conduct. Jones, 325 F.3d at 527-28 (citing
Garner, 471 U.S. at 8-9). A reasonable officer, in
addition to discerning E.W.'s small stature and calm and
compliant disposition, would know that the bus driver who
observed the incident between E.W. and A.W. found them
mutually culpable, as he suspended both girls from the bus
for three days. Further, the officer would know that E.W.
attended school and sat in class among other children without
incident from Tuesday, January 6, 2015 to Friday, January 9,
2015. No ...