Teacher’s use of force with fire extinguisher

ANSWER:

In answering this question, we will assume that using a fire extinguisher means spraying a student with the fire extinguisher.  That being said, typically, uses of force by government officials are analyzed under the Fourth Amendment’s “objective reasonableness” standard.ⁱ  However, in the Ninth Circuit, which is where this question originated, uses of force “not involving an arrest or custodial situation and claims by students asserting the right to be free of violations of bodily integrity remain within the purview of the Fourteenth Amendment” as a substantive due process claim.ⁱⁱ  In County of Sacramento v. Lewis, the United States Supreme Court stated that, in a Fourteenth Amendment substantive due process claim, the threshold question is “whether the behavior of the governmental officer is so egregious, so outrageous, that it may fairly be said to shock to contemporary conscience.”ⁱⁱⁱ

Now, back to the question of whether a school official could spray a student with a fire extinguisher to break up a fight.  It is likely that a court would find that spraying a student with a fire extinguisher would violate the Fourteenth Amendment in that it seems “outrageous” enough to “shock the conscience,”  although this would depend on the specific facts of the case at hand.  In Banks v. City of Modesto Schools, the District Court for the Eastern District of California found that the use of pepper spray on an emotionally disturbed 13 year old student “shocked the conscience.”  However, to more definitively answer the question, we would actually need additional facts.  Facts that would have bearing on whether the conduct would shock the conscience would be the severity of the fight, the number of students involved, the resources available to stop the fight, and the age of the students, among others.

One additional consideration is whether the school official or school resource officer was going to effect an arrest or custodial situation.  If that were the case, a court may decide the issue is better analyzed under the Fourth Amendment’s objective reasonableness standard.  If so, the court would look at three factors to determine the reasonable of the conduct.  The three factors are (1) the severity of the crime at issue, (2) whether the suspects pose a threat of harm to the school official/officers or others, and (3) whether the suspects were actively resisting arrest or attempting to evade arrest by flight.^iv  Again, we would need specific facts to analyze the three factors.

In addition to the Fourth and Fourteenth Amendment standards discussed above, one must also consider any tort claims available under specific state law.  It is unknown if any would apply.

In conclusion, there is certainly the possibility that spraying students with a fire extinguisher to break up a fight could result in either constitutional or state law liability.  Fire extinguishers are not conventional weapons and school officials and officers are not trained in the use of such objects as a tool to break up fights.  As such, it is not recommended that they be used for that purpose.

CITATIONS:

ⁱ Graham v. Connor, 490 U.S. 386 (1989)

ⁱⁱ Banks v. Modesto City Schools, 2005 U.S. Dist. LEXIS 44295 (E.D. Cal 2005)(citing Fontana v. Haskin, 262 F.3d 871 (9th Cir. 2001))

ⁱⁱⁱ 523 U.S. 833, 882 (1998)

^iv Graham v. Connor, 490 U.S. 386 (1989)