A federal appeals court has held that three Honolulu police officers can be sued for using excessive force against a 10-year-old girl, finding that it is “beyond dispute that handcuffing a small, calm child who is surrounded by numerous adults, who complies with all of the officers’ instructions, and who is . . . unlikely to flee, was completely unnecessary and excessively intrusive.”
On January 10, 2020, N.B., a 10-year-old Black girl with a known disability, was handcuffed and arrested by three police officers at her public elementary school in Honolulu, allegedly for her participation in creating a cartoon-style drawing with other children, according to the federal district court.
A “simplistic cartoon-style picture” had been made by several elementary age students the day before in response to a bullying incident. N.B. used drawing as a coping mechanism, a lawsuit filed by N.B.’s mother explained, and another child took the drawing and gave it to one of the students it mentioned against N.B.’s wishes. School officials saw the drawing on January 9 and took no action.
But the next morning, a parent demanded that the school call the police on N.B. School officials complied, and three police officers arrived at Honowai Elementary School, where the complaint says they interrogated N.B. in a secluded room without knowledge or consent from her mother, who was not allowed to see her daughter.
Officers put 10-year-old N.B. in adult handcuffs and arrested her, according to the complaint. They then placed her in the back of a squad car and drove the crying child to Pearl City Police Station, where no charges were filed. When N.B. was finally allowed to go home with her mother, she allegedly had marks on her wrists from the tight handcuffs.
None of the other students—who were not Black—were investigated or disciplined for their involvement in creating and delivering the drawing, the complaint alleges.
N.B.’s mother filed a civil rights lawsuit for false imprisonment, racial discrimination, and excessive force, specifically alleging that the officers’ use of handcuffs was excessive given the age, size, and disability of her 10-year-old daughter, who was compliant and responsive to officers, posed no physical threat to anyone, was not resisting arrest, and had not attempted to flee.
The officers filed a motion to dismiss, asserting that qualified immunity shielded them from being sued.
Qualified immunity is a court-created rule that bars lawsuits against police unless the victim can show (1) their conduct was unlawful and (2) the officers should have known they were violating “clearly established” law because a prior court case had said similar actions were illegal.
The district court denied qualified immunity on the excessive force claim. It agreed with the plaintiffs that prior cases had clearly established that police “could not handcuff, arrest, and transport a ten-year-old disabled child for a drawing that she made with other children when she was compliant and not a physical threat.”
The officers appealed, and the U.S. Circuit Court of Appeals for the Ninth Circuit affirmed, holding that “no reasonable official could have believed that the level of force employed against ten-year-old N.B….was necessary” and prior cases had put police on notice that the level of force used against N.B. was excessive.
At the same time, the Ninth Circuit reversed the lower court and granted qualified immunity to the officers as to the claim of false arrest. Police lacked a warrant and had no probable cause to arrest N.B. for “terroristic threatening” based solely on a simplistic cartoon-style picture drawn by multiple children, according to the complaint. The district court wrote that it is unknown “which children drew or wrote which parts of the cartoon” or whether other children directed N.B. to draw parts of the cartoon, which “depicts a girl colored in blue and red, with the girl holding what appears to be a cartoon firearm. In the drawing, there appears to be a head on the ground and various scribbles and words,” including the statement, “This is for E[ ] and K[ ].”
The lawsuit alleged that “no reasonable officer would have probable cause to find that there was a true threat to cause bodily injury to another, especially when the drawing was never published or delivered as a threat by N.B.” But the appeals court found the officers could not be sued for false arrest because the complaint did not cite prior cases with identical circumstances.
The handcuffing of 10-year-old N.B. at school is among a number of recent incidents around the country involving police mistreatment of young children.
In 2020, the family of an elementary school student with special needs filed a class action lawsuit against Pittsburgh Public Schools after their son was physically abused, repeatedly secluded, and handcuffed by school police when he was a seven-year-old in first grade.
A six-year-old girl was arrested, handcuffed, and fingerprinted after she kicked someone at her charter school in Orlando in 2019. And police in San Antonio, Texas, handcuffed a seven-year-old with autism after he had an outburst in class.
In Key West, Florida, Reason reported that body camera footage showed police trying to handcuff an eight-year-old boy but failing because his wrists were too small. The Denver Post reported in 2021 on a lawsuit filed in Colorado after school resource officers allegedly handcuffed an 11-year-old boy with autism and left him in the back of a patrol car for two hours while he banged his head repeatedly against plexiglass.
In 28 states, there is no minimum age for arresting children, Reason reported in 2021, adding that other states set the minimum age as young as six years old.