Editor’s Note: Danny Cevallos is a CNN Legal Analyst and a personal injury and criminal defense attorney practicing in Pennsylvania and the U.S. Virgin Islands. Follow him on Twitter @CevallosLaw. The opinions expressed in this commentary are solely his.
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Danny Cevallos: S. Carolina school arrest appeared excessive, but it may be a consequence of decision to bring police to schools
He says the law gives police wide latitude in how they make arrests
A South Carolina student’s violent arrest has sparked outrage about the amount of force a police officer used to remove the student from the classroom. The school resource officer has since been fired.
When videotaped arrests like these happen, people often complain: “Well, he could have done this in a different, nicer way.” It’s hard to disagree with that statement. It’s usually true. It’s probably true here. It’s just not legally significant. Just because an officer “could have been more polite” during an arrest is not conclusive proof that the arrest was unlawful, or that force was excessive.
False arrest claims are typically brought as “Section 1983” lawsuits, and they are analyzed as unreasonable seizures under the Fourth Amendment. If an officer has probable cause to arrest, there is no violation of the Fourth Amendment.
In South Carolina, disrupting school is a misdemeanor. If there was probable cause that a misdemeanor is being committed, police are trained to arrest.
Additionally, pursuant to Richland County Schools’ Code of Conduct, if a student’s behavior materially or substantially disrupts the orderly operation, the student is committing a “Level 2” offense, punishable by expulsion. So then, if the arrest was justified, force was justified to effect it.
But how much force should police use when they arrest people? Courts in South Carolina, including the Federal Court of Appeals for the Fourth Circuit, have specifically addressed that issue.
“In determining what amount of force is objectively reasonable under the circumstances, due regard must be given to the fact that police officers are often forced to make split-second judgments, under tense, dangerous, and rapidly moving circumstances, about the amount of force necessary to effect a particular arrest.” In South Carolina, courts have held that “not every shove or push during an arrest will give rise to liability.”
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Other factors courts would consider are whether the student was uninjured, and whether the student actively resisted arrest. In this case, the officer has been fired for the toss at the end of the altercation—but does that mean all the other contact was acceptable? Do we look at each split-second moment of force as a severable event? Or do we look at the totality of the encounter, which included the events leading up to it, and the student’s apparent striking of the officer, albeit after he initiated contact. It’s never an easy analysis. If you think there’s some legal obligation to make arrests as pleasant as possible, then criminal defense attorneys everywhere have some bad news to break to you: It just isn’t true.
The reality is this: A “strong show of force, coupled with the threat to actually use it if necessary, is sometimes the safest way to ensure that a potentially volatile situation does not erupt into physical violence.” If you find that statement offensive, those aren’t my words. Those are the words of the federal court of appeals for this jurisdiction. It’s a validation of the reality of day-to-day police encounters for both adults and juveniles – they’re not exactly a customer service experience. If that’s what you expect, you need to get realistic about the state of police-citizen encounters.
The point is: You can reasonably disagree with the amount of force in the videotape. You can say that arrests should be kinder and gentler. I agree with you. So does every criminal defense attorney in the solar system. It’s just not the law. And it’s not what law enforcement officers are trained to do.
That’s my point: This problem isn’t about this officer in this classroom on this day – it goes back to decades before this incident. At some point we made a decision to militarize our schools with a standing police force. When you place an officer in the classroom, he’s going to do what officers are trained to do: arrest people. Don’t start wringing your hands when they do. We should be asking the broader policy question: How did we get to officers in our classrooms in the first place?
It wasn’t always like this. When I misbehaved in class decades ago, I was sent to the principal’s office. My fifth-grade teacher actually stuffed me in a garbage can once. I was not exactly what you would call a “model student.” But even for nudniks like me, there were no “school resource officers” in my era. I am very aware that if law enforcement was present in my school then, it could have been me in that video, getting forcibly removed from class.
How did we get here? In 1994, Congress passed the Gun-Free Schools Act, which required states receiving federal education funding to pass laws 1) requiring an automatic one-year expulsion; and 2) prosecution in juvenile or criminal court of a student who brings a weapon to school. School districts throughout the country expanded these strict policies from just weapon possession to general misbehavior.
This, along with the availability of federal funds to support them heralded the emergence of the “school resource oficer,” or SRO – a deputized law enforcement officer stationed on campus. Suddenly, fights and misbehavior that once resulted in a detention, now resulted in an arrest by an SRO, and a juvenile court record.
Of course, there is a strong argument for police presence in schools. Starting with Columbine, school shootings, along with your garden variety gangs and firearms in school, have left us a little insecure over the last couple decades.
So, if police presence in schools is what we wanted, then we got what we asked for. We just can’t act shocked when police do what they are trained to do. And if you’re not familiar with what they’re trained to do, ask any public defender. Law enforcement makes arrests. That’s what they do. Arrests are not pleasant experiences. Courts know this, and they are, for the most part, OK with it.
If we station police in schools, we may increase some safety, but at a cost. That is, police will do what they are trained to do. Can arrests be nicer and gentler? Always. But that standard exists only in our personal opinions – not the law as it exists today.
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