January 01, 2015

Officer Not Required to Determine if Child Had a Disability Before Arrest

Scott Trowbridge

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

J.H. v. Bernalillo County, 2014 WL 6612060 (D. N.M.).

Although child was ultimately found incompetent to stand trial for battery on a teacher and peer, school resource officer was not required to determine if  she had a disability before arresting and transporting her to detention. Although her disability was relevant at later points, including competency and if there had been a disposition, an officer must only reasonably investigate evidence readily available to them up until they have probable cause to arrest. 

An 11-year-old child began hitting a marble loudly in class and would not stop when her teacher said it was disturbing other students. She cursed at her teacher and a peer. A short time later, she got up and threw the marble across the room. She got up and hit the peer on the back of the head. The teacher got between the two and asked the peer to leave the room, which he began to do. The teacher held the child above her wrists and the child attempted to head butt and bite her. The child scratched the teacher’s hand, drawing blood, and got free. She pursued the peer, hitting him on the back of the head and following from class.

Meanwhile, someone had called the school resource officer. As he arrived he saw the teacher holding the child’s arms outside the room. He also saw the child kick the teacher. The officer approached and took out his handcuffs. The child went back into the classroom and sat down hiding her hands. She sat crying for 15 minutes before he handcuffed her, in part because he was waiting for another officer to arrive. Also, he intended to walk the child to his car while classes were in session to minimize embarrassment. At that point, she stood up calmly and allowed him to handcuff her. 

The officer transported the child to the county juvenile detention center for assault on her teacher. She was released to her mother after review by the Division of Youth and Families based on their risk assessment criteria. 

The Children’s Court Attorney filed a four count delinquency petition including battery, battery on school staff, disorderly conduct, and interference with school processes.

The child underwent a competency evaluation. Because she did not cooperate with the evaluation, the psychologist’s report deemed preliminary. She was identified with anxiety disorder and oppositional defiant disorder. The psychologist explored her understanding of the court process and felt she may not be competent to assist in her defense. 

The state trial court dismissed the delinquency petitions, finding the child incompetent to stand trial. 

The mother and child filed a suit in state court alleging unlawful seizure under the Fourth Amendment and violations of the ADA. The case was removed to the Federal District Court for New Mexico. 

The federal district court noted probable cause for arrest occurs when the “facts and circumstances within the arresting officer’s knowledge and of which they have reasonably trustworthy information are sufficient in themselves to warrant a person of reasonable caution to have the belief that the offense has been or is being committed by the person to be arrested.”

Here, the battery on the teacher was not questionable. The officer witnessed part of the battery first hand. The plaintiff contended that, under the Americans with Disabilities Act (ADA) and the Individuals with Disabilities in Education Act (IDEA), the officer should have known or investigated to learn the child lacked the proper mens rea to commit the offense given her age and disability. 

The officer countered that the child stopped kicking the teacher when she saw him. He claimed this showed she knew what she was doing was wrong. She also told him that she should use words when angry. 

Plaintiffs pointed to a Tenth Circuit case where the court found officers should have reviewed a surveillance tape before arresting an individual for shoplifting to support their argument that the officer had a duty to investigate whether the child had the ability to form a criminal intent. The officer countered that, in this case, to further investigate would have required he examine mental health records—an impractical request in this context. He argued the state had a duty to prove mens rea at trial, but this was not required before an arrest. The court agreed with the officer. It held an officer has a duty to reasonably examine evidence that is easily accessible before making a warrantless arrest. A contrary rule would not be practical in fast-moving situations requiring action to protect the public. 

The court found the IDEA did not prevent the officer from arresting the child. The IDEA gives students with disabilities rights, including that their disability be examined. If a student’s disability is responsible for the student’s  behavior, the IDEA requires the student continue in their special education program. The IDEA does not prohibit school staff from contacting, or law enforcement from arresting or charging, students with crimes. 

The court determined that while a student’s disability should be considered in crafting a disposition, it does not erode probable cause. 

Next, the officer argued that even if it was unlawful to arrest the child, he was entitled to qualified immunity. The court held that there was no clear precedent. In contrast even to the cases that found arrests lawful, here the officer saw the child commit a battery. Further, the other cases did not deal with disabilities. 

The court therefore granted the officer’s motion to dismiss.