©2018 Brian S. Batterton, Attorney, Legal & Liability Risk Management Institute (www.llrmi.com)

On February 12, 2018, the Fourth Circuit Court of Appeals decided E.W. v. Dolgos[i], in which the court examined whether it violated the Fourth Amendment when a school police officer handcuffed an elementary school student who had fought with another student three days prior and was, at the time of the handcuffing, calm, compliant and in an office with two school administrators and the school resource officer.

The relevant facts of E.W., in summary, are as follows: E.W. and A.W., both juvenile, elementary school girls, were on the bus and A.W. stepped on E.W.’s shoe. E.W. then repositioned herself and began kicking A.W. A.W. kicked back and E.W. stood up and began striking A.W. with her hands or fists. The bus driver noticed the fight and ordered both girls to the front of the bus. They were both suspended from riding the bus for three days.

A few days after the incident, school administrators notified the Deputy Rosemary Dolgos, the school resource officer (SRO), about the incident. Deputy Dolgos watched the bus video of the fight and first spoke to A.W. She observed bruises on A.W.’s legs.

Deputy Dolgos then had E.W. come to the office with her and two school administrators. E.W. was calm and compliant but her attitude was that she was justified in kicking and punching A.W. and that it was not a “big deal.” Deputy Dolgos, having probable cause to charge E.W. with misdemeanor assault, handcuffed E.W., checked for proper fit, and had her sit back in a chair. She told her that she could be arrested. E.W. began to cry, apologized and said that she would not hit A.W. again. After two minutes in handcuffs, Deputy Dolgos removed the cuffs, and called E.W.’s mother to pick her up. She was not charged with assault.

E.W. subsequently filed suit and alleged that Deputy Dolgos violated her rights under the Fourth Amendment to be free from unreasonable and excessive force as well as various state claims. This article will address the Fourth Amendment claim.

The district court granted the officers motion for summary judgment and held the there was no Fourth Amendment violation because E.W. was only handcuffed for two minutes and then released to her mother. Further, the district court held that the law is not clearly established so the deputy would at least be entitled to qualified immunity. E.W. appealed the grant of summary judgment and qualified immunity to the Fourth Circuit Court of Appeals.

The court of appeals first discussed qualified immunity. Deputy Dolgos is entitled to qualified immunity unless the plaintiff can show (1) that she violated a constitutional right, and (2) the contours of the right were “clearly established” at the time of the violation such that a reasonable officer would have had “fair warning’ that her conduct was a violation.

The court of appeals then set out to determine if Deputy Dolgos violated the Fourth Amendment when she handcuffed E.W. under the facts of this case. The court stated

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))).[ii] [emphasis added]

The court also noted that the Supreme Court, in Graham v. Connor[iii] established three factors to consider when examining the reasonableness of a use of force under the Fourth Amendment. The factors are as follows:

(1) the severity of the crime at issue; (2) whether the suspect posed an immediate threat to the officer or others; and (3) whether the suspect was actively resisting or attempting to evade arrest by flight.[iv]

The court of appeals stated

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))).[v] [emphasis added]

In E.W.’s case, the deputy argued that there was probable cause to arrest E.W. for second-degree assault (a misdemeanor). She asserts that this allowed her to handcuff the plaintiff. The court stated

In 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)… But 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.”).[vi] [emphasis added]

The court of appeals noted that in Brown, discussed above, the arrestee was an adult female who had already refused one verbal command. However, E.W. was a 10 year-old girl who was calm and compliant. Thus, Brown is distinguishable from the case at hand.

The court next examined each of the factors from Graham as they apply to E.W’s case. First, as to the seriousness of the crime, the court noted that second degree assault is a crime that weighed against E.W. and in favor of the deputy.

Second, as to whether E.W. posed an immediate threat to the officer or other, the court noted that E.W., who was 10 years-old, was 4 feet, 4’ 4” tall, and 95 lbs, whereas the deputy was 5’ 4” tall and weighed 155 lbs. There were also two other school administrators in the office. Additionally, E.W. was calm and compliant. Further, E.W. had been in school the previous three days since the fight and had not been disruptive, threatening or fought with anyone. Lastly, she did not a history of fighting.

Third, there was no allegation that E.W. was actively resisting or attempting to evade arrest by flight.

The court also considered E.W.’s age. The court stated

The 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.[vii] [emphasis added]

The court of appeals then reiterated that the deputy’s subjective or personal motives were irrelevant to a Fourth Amendment claim; all that matters is whether, when viewed objectively, the deputy acted reasonably.

The court of appeals noted that the district court considered that E.W. was only handcuffed for two minutes, which was “de minimus.” The court stated

Police officers will not be absolved of liability merely because their conduct, however unreasonable, results in only de minimis injury. See Tennessee, 471 U.S. at 8-9 (explaining that the relevant inquiry examines “the nature and quality” of the seizure and “whether the totality of the circumstances justified a particular sort of . . . seizure“). That the handcuffs did not cause E.W. more pain does not diminish the disproportionality of Dolgos’s actions in light of the circumstances.[viii] [emphasis added]

Then, in light of Graham, and other case law that was distinguishable from E.W.’s case, the court held that the deputy did violate the Fourth Amendment when she handcuffed E.W. Specifically, the court stated

Dolgos took a situation where there was no need for any physical force and used unreasonable force disproportionate to the circumstances presented. We therefore find that Dolgos’s actions amount to excessive force. As such, E.W. has demonstrated a violation of her constitutional rights under the Fourth Amendment.

Having established that a Fourth Amendment violation did occur, the court of appeals then moved on to the second prong of the qualified immunity analysis, particularly, whether the law was clearly established such that a reasonable deputy in Dolgos situation would have know that her conduct was illegal. The court stated

A right is “clearly established” if “the contours of the right [are] sufficiently clear that a reasonable officer would understand that what he is doing violates that right.” Hill v. Crum, 727 F.3d 312, 321 (4th Cir. 2013) (quoting Wilson v. Layne, 526 U.S. 603, 615 (1999)).[ix]

The court noted that the Supreme Court has previously held that “clearly established” should not come from a case with a “high level of generality.” This means that the case must be somewhat factually similar, rather than just resting upon general legal principles. After examining several cases, the court of appeals ultimately held that the law was not clearly established. The court stated

[I]t was not obvious that Dolgos could not handcuff E.W. here. Although precedent supports the conclusion that Dolgos acted unreasonably and violated E.W.’s Fourth Amendment rights, it did not put Dolgos on sufficient notice that her conduct was unlawful. Indeed, this Court previously stated that the use of handcuffs would “rarely” be considered excessive force when the officer has probable cause for the underlying arrest. See Brown, 278 F.3d at 369. And the parties do not point us to any controlling authority sufficiently similar to the situation Dolgos confronted. In fact, E.W. chiefly relies on Graham to define the clearly established law. Without more, we cannot conclude that it would have necessarily been clear to a reasonable officer that handcuffing E.W. would give rise to a Fourth Amendment violation. We emphasize, however, that our excessive force holding is clearly established for any future qualified immunity cases involving similar circumstances.

Accordingly, we conclude that E.W.’s right not to be handcuffed under the circumstances of this case was not clearly established at the time of her seizure. As such, Dolgos is entitled to qualified immunity, and we affirm the district court as to the § 1983 claim.

Thus, the ruling of the district court was affirmed.



[i]  16-1608 (4th Cir. Decided February 12, 2018)

[ii] Id. at 9

[iii] 490 U.S. 386 (1989)

[iv] E.W. at 10

[v] Id.

[vi] Id. at 11

[vii] Id. at 15

[viii] Id. at 21

[ix] Id.

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