The full 9th Circuit Court of Appeals voted Monday to reconsider a September decision that police officers are immune from liability for handcuffing an 11-year-old at school and driving him to a relative’s home.
The order for an 11-judge en banc review comes in response to a split three-judge panel decision that ordered a new trial for two Sonora police officers. The officers were liable in a civil suit for detaining a student, identified only as C.B., who suffers from attention-deficit disorder and forgot his medicine that day.
The original panel, vacated a jury verdict in favor of the child because the trial judge had an extensive unscripted talk to jurors that was “so confusing and potentially misleading” it required a new trial. The trial judge had initially concluded the original jury verdict favoring the officers was incomplete and sent them back to re-deliberate after extensive colloquies with the jury.
Jurors then returned with a verdict favoring the child.
The 9th Circuit panel split, with visiting Judge Thomas Zilly of Seattle, writing the majority decision, joined by Judge Paul Watford, a recent appointee of President Obama. That opinion ordered a new trial for the officers on alleged Fourth Amendment violations and found that they should be immune from liability for handcuffing the child because the was not clear that it would be improper to handcuff and 11-year-old.
“In sum, in more than one way, the district court improperly sent a message to the jurors that they got it wrong the first time,” said Zilly.
Judge Margaret McKeown dissented. She agreed that the case should go back for a new trial but said the two officers should not be immune from C.B.’s Fourth Amendment violation claims.
“The officers found an 80-pound 11-year-old child, seated calmly and silently on a bench staring at the ground,” she said. In no more than five minutes of trying to engage the child in conversation, they officers ordered C.B. to stand with his hands behind his back, handcuffed him and put him in the back of a police car. “The facts demonstrate that C.B.’s prolonged detention was unconstitutional,” she said.
C.B., who suffered from attention deficit disorder and hyperactivity, forgot to take his medication in 2008 and was had a difficult day. At one point he fled from the school and a man who found him and returned him to school, told a coach that C.B. said he was “tired of Feeling the way he felt and he wanted to go out into traffic and kill himself.”
Eventually the police were called and the officers tried to talk to C.B. but he was unresponsive. The officers said they feared C.B. might run toward the busy street and they would be forced to restrain him and it might injury the child. So they used handcuffs, lead him to a patrol car and took him to an uncle’s business nearby.
C.B. accused the city and officers of false imprisonment, intentional inflection of emotional distress and unlawful seizure and excessive force.
Jurors found largely in favor of the defendants, but the judge found the verdict form incomplete and conflicting. Over two days, the judge gave a series of answers and long, unscripted responses to juror questions about the verdict, then sent them back to deliberate.
Four hours later they returned with a verdict opposite the one they initially reached.
The SonoraSchool District settled separately.
It is not unusual for the full court to order rehearing en banc when a three-judge panel splits and a visiting judge casts the deciding vote. It requires a majority, or 14 of 27 active judges, to vote to reconsider a decision.
Case: C.B. v. City of Sonora, No. 11-17454
Prior coverage here: ‘Cuff Him Danno, He’s an 11-year-old’