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Using Control Hold on Child Was OK, but One Judge Is Wary

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By Mark Wilson, Esq. on December 09, 2014 11:44 AM

With police use of excessive force all over the news these days, we turn now to police involvement with a nine-year-old boy. One judge on the Tenth Circuit Court of Appeals has had enough.

In this unpublished case from the Tenth Circuit, via Utah, a nine-year-old was put in a "control hold" after he stole an iPad. The court affirmed the district court's judgment that using the control hold was not excessive force.

And then Judge Carlos Lucero had something to say.

Control Hold Not Excessive Force

C.G.H., the plaintiff in this civil suit, stole an iPad from his school. The principal caught him and took it away. There was a scuffle, in which C.G.H. tried to bite and head-butt school officials. They called for two of the school district's resource officers (a.k.a. police officers), but by the time they arrived, C.G.H. had calmed down. C.G.H. refused to talk to one of the officers, which resulted in her yanking him off the ground, whereupon C.G.H. grabbed her arm. She put him in the "twist-lock" control hold, and pushing him against the wall.

Eventually settling on a factual situation in which C.G.H. did grab the officer's arm, the question was whether the use of the twist-lock was "objectively reasonable" under the circumstances. While the crime of arrest was fairly minor, the officer "could objectively and reasonably view C.G.H.'s grabbing her arm as resisting arrest and escalating a tense situation. For safety, it was objectively reasonable for Albrand [the officer] to deescalate the situation and command C.G.H.'s compliance by using a twist-lock."

A Concurrence That Reads Like a Dissent

Judge Carlos Lucero concurred, but begrudgingly. "But for the current state of the law, I would dissent," he began. He then went on to talk about "the potential future consequences to the child and the ordeal suffered by the family" as a result of what he sees as an alarming trend toward involving the criminal justice system in school disputes.

Pointedly, the question is this: "Why are we arresting nine-year-old schoolchildren?" C.G.H.'s experience is unfortunately typical of many children, who are being criminally punished for many simple offenses that were once relegated to school authorities to handle exclusively. Part of the problem, Lucero said, is that actual police officers are employed as "school resource officers" in schools. Police presence in schools creates an atmosphere in which every discipline problem is treated as a criminal issue.

Involving the criminal justice system at such a young age, said Lucero, facilitates "the myriad negative consequences of the school-to-prison pipeline." Involving law enforcement in minor situations like C.G.H.'s can create a loop in which, like a self-fulfilling prophecy, a child who should not have ended up in the justice system ends up there, anyway, when he would have been much better served by in-school punishments.

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