J.W. v. Birmingham Bd. of Educ.

• Decision Date: 30 September 2015
• Docket Number: Civil Action Number 2:10–cv–03314–AKK
• Citation: 143 F.Supp.3d 1118
• Parties: J.W. et al., Plaintiffs, v. Birmingham Board of Education., et al., Defendants.
• Court: U.S. District Court — Northern District of Alabama

143 F.Supp.3d 1118

J.W. et al., Plaintiffs,

v.Birmingham Board of Education., et al., Defendants.

Civil Action Number 2:10–cv–03314–AKK

United States District Court, N.D. Alabama, Southern Division.

Signed September 30, 2015

Brooke Menschel, Jerri Katzerman, Ebony G. Howard, Maria V. Morris, Montgomery, AL, for Plaintiffs.

Frederic L. Fullerton, II, Nicole E. King, Thomas Bentley, III, Javan J. Patton, City of Birmingham Law Department, Elizabeth Bosquet Shirley, Julien Mitchell Relfe, Mark M. Lawson, Michael K. K. Choy, Burr & Forman, LLP, Birmingham, AL, Forrest S. Latta, Burr & Forman LLP, Mobile, AL, for Defendants.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

ABDUL K. KALLON, UNITED STATES DISTRICT JUDGE

Since the dawn of time, children have engaged in challenging but normal adolescent behavior in school settings. Indeed, this is perhaps the one point on which the parties in this matter agree. For just as long, presumably wiser, more level-headed adults have responded and have successfully utilized deescalation techniques that are far less violent than those at issue here. As this case has revealed, the adults tasked with ensuring the safety of Birmingham's school children have resorted to using chemical spray to deal with this normal—and, at times, challenging—adolescent behavior. The chemical spray at issue here is Freeze +P, which is described by its manufacturer as "the most intense [ ] incapacitating agent available today." Pl.Ex. 10 at 1. While some may disagree, there are scenarios in which the use of Freeze +P is perfectly justifiable, even in the school setting. What no one can disagree on, however, is that once law enforcement officers have secured the affected individual, they have a legal obligation to decontaminate the individual. Unfortunately, despite established case law requiring effective decontamination and clear instructions from Freeze +P's manufacturer, the officers here failed to decontaminate the students, and instead left them to suffer the effects of the chemicals until they dissipated over time. That the officers chose to do so when each of the high schools has science labs with eye wash stations, showers in the lockers, and bathroom sinks with showers and soap is simply confounding to this court when, as here, the officers testified that the students posed no further threat after the officers sprayed them with Freeze +P.

The plaintiffs in this case are eight former Birmingham City School students who Birmingham Police Department School Resource Officers ("S.R.O.s") sprayed with Freeze +P while they attended various Birmingham high schools. The plaintiffs seek damages from the officers who sprayed them. Six of the plaintiffs, J.W., G.S., P.S., T.L.P., B.D., and K.B,¹ are also the named representatives of a class of all current and future Birmingham City Schools high school students. They seek injunctive relief from Birmingham Police Chief A.C. Roper. The court presided over a twelve-day bench trial on the matter between January 20, 2015 and February 9, 2015.

At the outset, let the court be clear regarding what is not at issue in this case. This case is not about whether the S.R.O.s assigned to Birmingham City Schools can spray students who are actively engaged in a physical fight or other violent behavior with Freeze +P. They can. The plaintiffs have long since conceded that point and agree that S.R.O.s can use Freeze +P in schools. See doc. 105 at 5. Indeed, the law affords law enforcement a great deal of discretion when a person poses a risk of harm to others or to the officers. Instead, this case boils down to four issues. The first is whether the defendant S.R.O.s inflicted excessive force on the plaintiffs when they sprayed the plaintiffs with Freeze +P. The second is whether the defendant S.R.O.s adequately decontaminated the plaintiffs after spraying them with Freeze +P, and if not, whether their failure to do so constituted excessive force. The third is whether, if they inflicted excessive force on the plaintiffs, the defendant S.R.O.s' behavior was pursuant to a Birmingham Police Department ("B.P.D.") policy or custom. The fourth is whether the plaintiffs have demonstrated that they are entitled to injunctive relief.

The court was profoundly disturbed by some of the testimony it heard at trial. The defendant S.R.O.s uniformly displayed a cavalier attitude toward the use of Freeze +P—in a display of both poor taste and judgment, one defendant joked that Freeze +P is a potent nasal decongestant for individuals with sinus problems. Equally disturbing, the trial revealed that the defendant S.R.O.s believe that deploying Freeze +P is the standard response even for the non-threatening infraction that is universal to all teenagers—i.e. backtalking and challenging authority. Frankly, the defendant S.R.O.s' own testimony left the court with the impression that they simply do not believe spraying a student with Freeze +P is a big deal, in spite of their own expert's testimony that Freeze +P inflicts "severe pain." The court also heard testimony that indicated several of the officers spray students with Freeze +P because it is easier than more hands-on approaches, even though those approaches cause students less pain than Freeze +P. Ultimately, the court believes that it was unnecessary for the defendant S.R.O.s to spray most if not all of the plaintiffs. Unfortunately for some of the plaintiffs, behavior that is unnecessary and disturbing is not automatically unconstitutional.

Because the defendants have raised a number of thorny legal issues, the length of this opinion belies the simplicity of resolving the merits of this case. To summarize the court's findings, two of the plaintiffs—K.B. and B.J.—succeed on the merits of their individual excessive force claims against the defendant S.R.O.s who sprayed them with Freeze +P. Although K.B. and B.J. were creating noisy disturbances when S.R.O.s sprayed them, both were restrained and neither tried to resist arrest or posed a danger to anyone. In contrast the other plaintiffs either resisted, fled, or tried to assault someone, all grounds for the deployment of chemical spray in this circuit.

The six plaintiffs who the defendant S.R.O.s directly sprayed with Freeze +P² succeed on the merits of their excessive force claim against the defendant S.R.O.s for failing to adequately decontaminate them. By and large, the defendant S.R.O.s did nothing to decontaminate the plaintiffs, and their efforts certainly do not rise to the level suggested by Freeze +P's manufacturer and, most tellingly, the defendants' own expert.

These two constitutional violations occurred pursuant to B.P.D. policy or custom. Birmingham police officers are instructed that they can respond to resistance with a degree of force one to two levels greater than the resistance itself. As will become clearer when the court explains the B.P.D.'s use of force continuum, the result is that Birmingham police officers may respond to verbal noncompliance by students with Freeze +P. That is precisely what happened to K.B. and B.J. Similarly, B.P.D. policy dictates that time alone may be an adequate decontamination measure for Freeze +P exposure, and Birmingham police officers are taught that time and air are sufficient measures of decontamination. These measures fall far short of those suggested by Freeze +P's manufacturer and the defendants' own experts, and B.P.D.'s policy governing the use of chemical spray indicates that decontamination is not necessary at all. Finally, the plaintiffs have met their burden and are entitled to injunctive relief.

Findings of Fact³

I. Findings of Fact Related to the Plaintiffs' Claims against Individual Officers

A. G.S. and P.S.

1. On the afternoon of December 8, 2009, at about 4:00 p.m. G.S.,⁴ a seventeen-year-old student enrolled in Huffman High School, was standing in front of the school waiting for her mother to pick her up. 1/20/15 at 130–32.⁵ While G.S. talked to a friend, a boy known as "Snake" approached the two girls and insulted G.S.'s friend. Id. at 133–34. G.S. and Snake exchanged words, and Snake pushed G.S. twice in the chest. Id. at 134–35. At this point, other students intervened; G.S.'s friend grabbed her by the arm and Snake's friends moved him away to a different area. Id. at 135. G.S. escaped from her friend and started running toward Snake. Id. at 135–36. As G.S. reached Snake, someone grabbed her from behind. Id. at 136–37. G.S. thought it was another student and tried to break free. Id. at 138–39. G.S. kept her eyes closed as she struggled, and did not realize it was Officer Anthony Clark who had grabbed her until she opened her eyes and saw that he was holding a can of Freeze +P directly in front of her face. Id. at 137–39. Without telling G.S. to calm down, that she was under arrest, or that he was about to spray her with Freeze +P, Officer Clark sprayed G.S. in the face, and G.S. fell to the ground. Id. at 138, 140–41.

2. At trial, Officer Clark presented a different version of the facts. Relevant here, Officer Clark testified that he spoke to G.S. prior to spraying her with Freeze + P, that G.S. told him that Snake had hit her, 2/3/15 at 209, that at the time he sprayed G.S., she was trying to fight with a girl who described herself as Snake's sister, rather than Snake, that G.S. tried to punch the other girl over Officer Clark's shoulder, and that he sprayed G.S. in response to G.S. pushing him in the chest five times, id. at 209–11.

3. The court did not find Officer Clark's testimony credible, based in part on his combative and evasive demeanor during cross-examination. Moreover, cross examination pointed to a number of inconsistencies between Officer Clark's testimony at trial and his deposition testimony such as whether he walked or ran through students to reach G.S. and the number of times G.S. allegedly shoved him. Id. at 243, 244. Most tellingly, Officer Clark failed to mention G.S.'s supposed fight with Snake's sister and her...