J W v. Birmingham Bd. of Educ.

• Decision Date: 24 September 2018
• Docket Number: No. 15-14669,15-14669
• Parties: J W, BY AND THROUGH his next friend, TAMMY WILLIAMS, G S, by and through her next friend, LaTonya Stearnes, P S, by and through her next friend, LaTonya Stearnes, T L P, by and through her next friend, Tarra Pritchett, T A P, by and through her next friend, Barbara Pettaway, individually, et al., Plaintiffs-Appellees, v. BIRMINGHAM BOARD OF EDUCATION, et al., Defendants, A. C. Roper, in his individual and official capacity as Chief of the Birmingham Police Department, J. Nevitt, Officer, in his individual capacity, A. Clark, Officer, in his individual capacity, R. Tarrant, Officer, in his individual capacity, M. Benson, Officer, in her individual capacity, D. Henderson, Officer, in his individual capacity, S. Smith, Officer, in his individual capacity, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

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J W, BY AND THROUGH his next friend, TAMMY WILLIAMS, G S, by and through her next friend, LaTonya Stearnes, P S, by and through her next friend, LaTonya Stearnes, T L P, by and through her next friend, Tarra Pritchett, T A P, by and through her next friend, Barbara Pettaway, individually, et al., Plaintiffs-Appellees,
v.
BIRMINGHAM BOARD OF EDUCATION, et al., Defendants,

A. C. Roper, in his individual and official capacity as Chief of the Birmingham Police Department, J. Nevitt, Officer, in his individual capacity, A. Clark, Officer, in his individual capacity, R. Tarrant, Officer, in his individual capacity, M. Benson, Officer, in her individual capacity, D. Henderson, Officer, in his individual capacity, S. Smith, Officer, in his individual capacity, Defendants-Appellants.

No. 15-14669

United States Court of Appeals, Eleventh Circuit.

September 24, 2018

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Ebony Glenn Howard, Assistant Federal Public Defender, Federal Public Defender, Birmingham, AL, Jerri Katzerman, Natalie Lyons, Brooke Menschel, Maria V. Morris, Southern Poverty Law Center, Montgomery, AL, for Plaintiffs-Appellees.

Michael K.K. Choy, Eddie Travis Ramey, Robert H. Rutherford, Elizabeth Bosquet Shirley, Burr & Forman, LLP, Fredric L. Fullerton, II, Nicole Elise King, Thomas Bentley, III, Javan J. Patton, City of Birmingham Law Department, Birmingham, AL, for Defendants-Appellants.

Before ED CARNES, Chief Judge, JORDAN, Circuit Judge, and LAMBERTH,^* District Judge.

PER CURIAM:

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Student Resource Officers employed by the Birmingham Police Department and stationed at schools have the authority to use Freeze +P, an incapacitating chemical spray, on students under certain circumstances. A number of Birmingham high school students who were sprayed with or exposed to Freeze +P in 2009, 2010, and 2011 filed a civil rights lawsuit under 42 U.S.C. § 1983 against the Birmingham Board of Education; A.C. Roper, the Chief of the BPD; and the SROs who used the spray against them or in their vicinity. Asserting individual and class-based claims, they alleged that the SROs used excessive force in violation of the Fourth Amendment by spraying them and by failing to adequately decontaminate them. They also claimed that the constitutional violations were the result of a policy or custom of the Birmingham Police Department. They requested damages as well as declaratory and injunctive relief.

Following a 12-day bench trial, the district court issued a comprehensive 120-page order on September 30, 2015, with detailed findings of fact and conclusions of law. See J.W. v. Birmingham Bd. of Educ. , 143 F.Supp.3d 1118 (N.D. Ala. 2015). As summarized below, the district court granted the students relief on most of their claims.

With respect to the individual claims, the district court found in favor of two students, K.B. and B.J., on their excessive force allegations against the SROs who sprayed them with Freeze +P, and awarded each of them $5,000 in damages. Because those rulings have not been appealed, we do not discuss or address the use of Freeze +P on any of the students except to discuss the availability of class-based declaratory and injunctive relief.

The district court also found in favor of six students—G.S., B.D., T.L.P., T.A.P., K.B., and B.J.—and against the SROs who failed to adequately decontaminate them after the use of Freeze +P, and awarded each of them $5,000 in damages. The SROs found liable on the decontamination claims now appeal, arguing that they are entitled to qualified immunity on the students’ Fourth Amendment claims.

On the class claims, the district court concluded that the Fourth Amendment violations occurred pursuant to a policy or custom of the BPD, and ruled that declaratory and injunctive relief was warranted. Rather than issue a permanent injunction, however, the court ordered the parties to meet and confer to devise a training and procedure plan to improve the policies related to the use of chemical spray in Birmingham schools. In so doing, the court set out a number of "general practices" (which we detail later) to guide the parties in their formulation of the plan. The parties complied with the court’s order and submitted a proposed plan (with some disagreements) in December of 2015. As of today, the court has not entered a final judgment or permanent injunction.

Chief Roper appeals the rulings on the class claims. He contends that these claims should have been dismissed for lack of standing, that they alternatively fail on the merits, that the district court should have decertified the class, and that the court’s mandatory injunction (the "general practices" provided to the parties for the formulation of the proposed training and procedure plan) is contrary to the principles of federal-state comity.

It has taken us a long time following oral argument to go through the record in this complex case, including the lengthy trial transcript and documentary evidence, to evaluate and analyze the parties’ competing arguments. Having completed our review, we commend the district court for its thorough work and analysis in this difficult case. We conclude that the September

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30 order is final and appealable under 28 U.S.C. § 1291 pursuant to our decision in United States v. Alabama , 828 F.2d 1532, 1536 (11th Cir. 1987), superseded by statute on other grounds as recognized by Lussier v. Dugger , 904 F.2d 661, 664 (11th Cir. 1990) ; that assuming the SROs in question violated the Fourth Amendment by failing to adequately decontaminate the students exposed to Freeze +P, they are entitled to qualified immunity because the relevant law was not clearly established at the time of their conduct in 2009, 2010, and 2011; that the class-based claim for declaratory and injunctive relief with respect to the use of Freeze +P fails for lack of standing; and that the class-based claim for declaratory and injunctive relief with respect to the decontamination policy also fails for lack of standing.

I. APPELLATE JURISDICTION

The district court ruled on September 30, 2015, that the plaintiffs, as a class, were entitled to injunctive relief on their spraying and decontamination claims. But it declined to issue an injunction at that time, and directed the parties to "meet and confer, engage in fruitful discussions and compromise, and develop and jointly submit" a single training and procedure plan with respect to the use of pepper spray. See D.E. 282 at 118. On the issue of spraying, the court stated that the plan had to "address the current deficiencies and form a template for [SROs’] use of Freeze +P going forward." Id. at 118–19. The court also provided a number of "general practices" to guide the parties in their drafting of the decontamination aspect of the plan:

(1) unless doing so would endanger the student, officer, or bystanders, after an [SRO] sprays a student with Freeze +P and has secured the student, the officer must provide the student with an opportunity to decontaminate with water, either in the form of a shower, washing at a sink, or using an eye wash station; (2) because of the lingering exposure from contaminated clothing, at all times, Chief Roper must maintain at each school where the B.P.D. allows [SROs] to spray students with Freeze +P a sufficient number (as agreed by the parties) of sweat suits in varying sizes, and must allow the student to change out of his or her contaminated clothes; (3) the [SRO] must then place the student in front of a fan; (4) Chief Roper must ensure that [SROs] have available sealable plastic and/or garbage bags that an affected student can use to store her contaminated clothing; and (5) Chief Roper must replace each sweat suit a student uses so that the total number available at the start of each week is always the same as the initial number agreed on by the parties.

Id. at 119–20. Finally, "because of Freeze +P’s impact on nearby students and to generally educate students about its effects," the court also directed the parties to "jointly draft," by the same date, "a one-page flyer that is to be posted prominently on each high school’s central bulletin boards or to be disseminated electronically to each enrolled student that, among other things, outlines the effects of Freeze +P and the suggested methods to use to obtain relief in the event a student is exposed to Freeze +P." Id. at 119–20.

The court indicated that it would issue an order and judgment after November 15, 2015. Id. at 120. The court later extended the deadline to December 15, 2015, which is when the parties submitted their joint plan. See D.E. 295; D.E. 309. The court has not entered a final judgment or issued an injunction. And, as far as we can tell, the record does not show that the parties have drafted or posted the flyer ordered by the district court.

Given the lack of a final judgment or permanent injunction, the first question we

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confront is jurisdictional. Is the district court’s order of September 30, 2015, appealable as a "final" order under 28 U.S.C. § 1291, or as an injunction under 28 U.S.C. § 1292(a)(1) ? Exercising plenary review, see, e.g. , Williams v. Chatman , 510 F.3d 1290, 1293 (11th Cir. 2007), we...