Case 2:10-cv-03314-AKK Document 1 Filed 12/01/10 Page 1 of 61
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA

FILED
2010 Dec-01 PM 01:43 U.S. DISTRICT COURT
N.D. OF ALABAMA

J.W., by and through his next friend, Tammy Williams; G.S., by and through her next friend, LaTonya Steames; P.S., by and through her next friend, LaTonya Steames; T.L.P., by and through her next friend, Tarra Pritchett, on behalf of themselves and all similarly situated individuals; T.A.P., by and through her next friend, Barbara Pettaway, individually; and B.J., by and through his next friend, Renee Howard,
Plaintiffs,
v.
BIRMINGHAM BOARD OF EDUCATION; CRAIG WITHERSPOON, in his individual and official capacity as Superintendent of the Birmingham City School District; A.C. ROPER, in his individual and official capacity as Chief of the Birmingham Police Department; OFFICER J. NEVITT, in his individual and official capacity; OFFICER A. CLARK, in his individual and official capacity; ASSISTANT PRINCIPAL ANTHONY MOSS, in his individual and official capacity; OFFICER R. TARRANT, in his individual and official capacity; OFFICER M. BENSON, in her individual and official capacity,
Defendants.

CLASS ACTION CASE NO. CV-

COMPLAINT I. This is a civil rights action filed pursuant to 42 U.S.C. § 1983 to protect the Fourth and Fourteenth Amendment rights of children in the Birmingham City Schools ("BCS"). Plaintiffs are BCS students who have been brutalized with chemical weapons and other excessive force while attempting to obtain an education. Defendants - the Birmingham Board of Education, Superintendent Craig Witherspoon, and the Birmingham Police Department - have created a police state within the City's public high schools, stationing police officers known as School Resource Officers ("SRO") in each school, arming them with chemical weapons, and

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authorizing them to use those weapons to enforce basic school discipline. Teachers, administrators, and law enforcement operate in close concert with one another, with school personnel frequently calling upon SROs to get involved in minor incidents of childish misbehavior that schools would typically handle as internal matters - without resorting to law enforcement. Instead of de-escalating these situations, SRO involvement often has the opposite effect. Officers are quick to resort to pepper spray (alkla mace or Freeze +p).l School personnel not only watch but sometimes even celebrate when schoolchildren are maced.
2. As a result of the Defendants' conduct, all of which is authorized by BPD policy, practice, and custom, the Plaintiffs have suffered severe physical and psychological harm. The physical effects of pepper spray are serious and can be life-threatening. Among the many physical effects is immediate inflannnation and swelling of the throat, a reflexive reaction that restricts the size of the airway and limits the amount of oxygen entering the lungs - creating an especially dangerous situation for children with asthma. Physical injuries are not the only negative consequences that result from the use of pepper spray in Birmingham high schools. As a result of the Defendants' unconstitutional policy and conduct, the plaintiffs and countless other BCS students have been conditioned to fear and distrust school and law enforcement officials. Plaintiffs' attachment to school has been undermined, one has dropped out, and all have been robbed of the sense of security and safety that children should experience while attending schools. Mace is used so frequently and so indiscriminately in Birmingham's public high schools that each Class Representative - and all BCS students - faces a real and substantial risk of future and repeated injury.
I Mace is the trademarked name for a line of defense products that include pepper spray. Although the original Mace product differs in chemical composition from pepper spray, the two terms are frequently used interchangeably to refer to chemical weapons that contain pepper spray. Following popular practice, this complaint will also use both terms to refer to Freeze +P chemical spray.
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3. Accordingly, Plaintiffs J.W., G.S., P.S., and T.L.P. bring this action on behalf of a class composed of all current and future students who are or will be enrolled in any high school in the Birmingham City School system - all of whom face, and will continue to face, a real and immediate risk of repeated injury due to Defendants' unconstitutional policies and practices. On behalf of the class, Plaintiffs seek declaratory and injunctive relief to vindicate their rights, to protect members of the class, and to compel Defendants to immediately abandon the use of chemical and other weapons against schoolchildren and revise their unconstitutional policies. In addition to the class claims, Plaintiffs J.W., RJ., G.S., P.S., T.L.P., TAP., and RJ. also bring individual claims for damages arising from violations of their rights under the Fourth and Fourteenth Amendments to the United States Constitution, from the Defendants' conspiracy to deprive Plaintiffs of their civil rights under the Civil Rights Act of 1871 (42 U.S.C. § 1983), and for the torts of assault and battery, and outrage.
PARTIES Named Plaintiffs/Class Representatives 4. Plaintiff J.W. is a 16-year-old boy residing in Birmingham, Alabama. He is currently enrolled at Woodlawn High School, a school operated by the Birmingham City Schools ("BCS"). He brings this action by and through his mother and legal guardian, Tammy Williams. At the time of the incidents described below in paragraphs 63 through 68, he was enrolled as a 9th grader at Woodlawn High School and was subject to the Alabama compulsory school attendance law. Ala. Code § 16-28-3. 5. PlaintiffG.S. is an 18-year-old girl residing in Birmingham, Alabama. She is currently enrolled at Huffman High School, a school operated by BCS. At the time of the incidents
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described below in paragraphs 70 through 87, she was emolled as an 11th grader at Huffinan High School. 6. PlaintiffP.S. is a 16-year-old girl residing in Birmingham, Alabama. She is currently emolled at Huffinan High School, a school operated by BCS. She brings this action by and through her mother and legal guardian, LaTonya Stearnes. At the time of the incidents described below in paragraphs 70 through 87, she was emolled as a 9th grader at Huffman High School and was subject to the Alabama compulsory school attendance law. Ala. Code § 16-28-3. 7. PlaintiffT.L.P. is a 16-year-old girl residing in Birmingham, Alabama She is currently emolled at Woodlawn High School, a school operated by BCS. She brings this action by and through her mother and legal guardian, Tarra Pritchett. At the time of the incidents described below in paragraphs 88 through 97, she was emolled as a 10th grader at Woodlawn High School and was subject to the Alabama compulsory school attendance law. Ala. Code§ 16-28-3,
Individual Plaintiffs 8. PlaintiffT.A.P. is a 19-year-old girl residing in Birmingham, Alabama. At the time of the incidents described below in paragraphs 98 through 112, she was emolled at George Washington Carver High School, a school operated by BCS. PlaintiffT.A.P. seeks damages only. 9. PlaintiffB.J. is a 16-year-old boy who was emolled as a 10th grader at P.D. Jackson-Olin High School, a school operated by BCS, at the time of the incidents described below in paragraphs 113 through 126. At all relevant times, PlaintiffB.J was subject to the Alabama compulsory school attendance law. Ala. Code § 16-28-3. He brings this action by and through his mother and legal guardian, Renee Howard. PlaintiffBJ. seeks damages only.
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Defendants 10. Defendant Birmingham Board of Education ("BOE") is a nine-member, elected legal body "vested with all the powers necessary or proper for the administration and management of [the Birmingham City Schools]." Ala. Code § 16-11-9. BOE is responsible for supervising the schools in the district by establishing and enacting guiding policies. Birmingham Board of Education, Policy Manual 2009. Individual BOE members are required to "be familiar with ... [the] regulations of [BCS] ... , to visit schools in the school district for the purpose of assessing the learning climate and accomplishment of educational goals ... [, and] to refer complaints to the superintendent." Birmingham Board of Education, Policy Manual 2009. 11. Defendant Craig Witherspoon is the Superintendent and Chief Executive Officer of BCS. He serves at the pleasure of the BOE. As Superintendent, Defendant Witherspoon is responsible for "see[ing] that the laws relating to the schools and the rules and regulations of the city board of education are carried into effect." Ala. Code § 16-12-3. In addition, Defendant Witherspoon "[s]upervises all schools and all personnel of [BCS)" and "[i]s responsible for the management of the schools under [BOE] policies." Birmingham Board of Education, Policy Manual 2009. He may delegate his responsibilities and duties as Superintendent to other school personnel, but such delegation "shall not relieve [Witherspoon] of responsibility for any action taken under such delegation." Id. Defendant Witherspoon is named as a defendant to this action in his individual and official capacities. 12. Defendant A.C. Roper is the Chief of the Birmingham Police Department ("BPD"), a law enforcement agency created by the Birmingham City Council. BPD is "charged with the preservation of the peace and order of the city, the protection ofal! persons and property within the city, and the enforcement of all criminal ordinances and criminal laws of the city and the
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state." General Code of the City of Birmingham, Public Safety and Protection, Title 9, Ch. 1: Police Department. Under law, Defendant Roper is required to "direct, control and discipline all
officers and members of the department." Id. He is named as a defendant to this action in his
official and individual capacities. 13. Defendant Officer J. Nevitt was a BPD employee assigned to the Special Victims Division, Youth Services Unit, as an SRO during the 2009-2010 school year. He is named as a defendant to this action in his official and individual capacities. 14. Defendant Officer A. Clark was a BPD employee assigned to the Special Victims Division, Youth Services Unit, as an SRO during the 2009-2010 school year. He is named as a defendant to this action in his official and individual capacities. 15. Defendant Officer R. Tarrant was a BPD employee assigned to the Special Victims Division, Youth Services Unit, as an SRO during the 2009-2010 school year. He is named as a defendant to this action in his official and individual capacities. 16. Defendant Anthony Moss is a BCS employee working at Carver High School. He is named as a defendant to this action in his individual and official capacities. 17. Defendant Officer M. Benson is a BPD employee assigned to the Special Victims Division, Youth Services Unit, as a School Resource Officer (SRO). She is named as a defendant to this action in her official and individual capacities.
JURISDICTION AND VENUE 18. The federal claims in this action arise under the Fourth and Fourteenth Amendments to the United States Constitution and 42 U.S.C. § 1983. Jurisdiction is invoked pursuant to 28 U.S.C. § 1331 and § 1343(a).
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19. This Court has jurisdiction under 28 U.S.c. § 1367 over the Plaintiffs' state law claims, as they are so related to the federal claims in this action that they fonn a part of the same cas~ or controversy under the Constitution and the laws of the United States. 20. Venue is proper under 28 U.S.C. § I 391(b)(2) because a "substantial part of the events or
omissions giving rise to the claim[s1occurred" in this district.
CLASS ACTION ALLEGATIONS 21. Plaintiffs l.W., G.S., P.S., and T.L.P. (collectively "Class Representatives") bring this suit on their own behalf and on behalf of a class consisting of all students who attend high school in the Binningham City School system. 22. The class is so numerous that joinder of all members is impractical. Fed. R. Civ. P. 23(a)(1). Approximately 8,000 students are currently enrolled in Binningham City high schools. The class also includes future members whose names and overall number cannot be detennined at this time. Fed. R. Civ. P. 23(a)(1). 23. There are questions oflaw and fact common to all class membeI;s, including but not limited to the Plaintiffs' facial challenge to the constitutionality ofBPD's policy concerning the use of chemical weapons. Other common legal issues include the presence of a conspiracy between BPD and BOE and their collective employees to violate the Plaintiffs' rights, the reasonableness of using mace against children who pose no public safety risk, and the scope of the BOE's duty to protect students from harm. Common factual issues include the severe health risks posed by the deployment of mace against schoolchildren, particularly in a closed environment and with respect to a population with a higher than average incidence of asthma. Fed. R. Civ. P. 23(a)(2).
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24. Because the policies, practices, and customs challenged in this action apply with equal force to the Class Representatives and the other members of the class, the claims of the Class Representatives are typical of the class in general. Fed. R. Civ. P. 23(a)(3). 25. The Class Representatives will fairly and adequately protect the interests of the class. Each possesses a strong personal interest in the subject matter of the lawsuit and the claims raised therein. They are represented by experienced counsel with expertise in class action litigation and litigation involving children. Counsel has the legal knowledge and resources to fairly and adequately represent the interests of all class members in this action. Fed. R. Civ. P. 23(a)(4). 26. The Defendants. have acted and refused to act on grounds generally applicable to the class in that the Defendants' policies and practices of violating students' constitutional rights affect all class members. Accordingly, final injunctive and declaratory relief is appropriate to the class as a whole. Fed. R. Civ. P 23(b)(2).
STATEMENT OF FACTS 27. The Birmingham City School ("BCS") system includes seven high schools, which collectively serve approximately 8,000 students. 28. Under the Alabama compulsory school attendance law, Ala. Code § 16-28-3, children between the ages of seven and seventeen are required to attend school. 29. Defendants BOE and Witherspoon enforce the Alabama compulsory school attendance law through BCS attendance officers. BCS attendance officers identifY students accused of truancy and refer them to be prosecuted in the Jefferson County Family Court. Defendant Roper authorizes officers of the Birmingham Police Department ("BPD") to locate and pick up students accused of truancy, and return them to their respective schools.
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30. BPD is a municipal law enforcement agency "charged with the preservation of the peace and order of [Birmingham], the protection of all persons and property of the city, and the enforcement of all criminal ordinances and all criminal laws of the city and state." General Code of the City of Birmingham, Title 9: Public Safety and Protection, Ch. I: Police Department. 31. BPD stationed officers in the BCS schools at the request or with the consent and approval of the Birmingham Board of Education and the Superintendent. These officers are known as School Resource Officers ("SROs"). The SRO Program is part ofBPD's Special Victims Division, Youth Services Unit. 32. The original goal and purpose ofthe SRO Program was to protect the safety of students attending BCS. But in practice, SROs frequently become involved - both on their own initiative and at the request of school persOlmel- in minor incidents in which safety is not an issue. In some instances, it is the SROs themselves who threaten the safety they are charged to protect. 33. Each BCS high school is assigned at least two SROs who patrol school property during school hours. SROs patrol school grounds with the permission of Defendants BOE and Witherspoon. 34. A long-standing agreement exists among BPD, BOE, the Superintendent, BCS personnel, and individual SROs that SROs are expected not only to make arrests when they witness students engaged in illegal behavior, but also to respond when school personnel seek their assistance enforcing the BCS Code of Conduct. All Defendants to this action are aware of this agreement. All Defendants are further aware that SROs often use abusive and unnecessary force against schoolchildren in the course of their duties. 35. BCS teachers and other school personnel frequently request that SROs handle misbehavior traditionally managed by the school, such as children who utter expletives or refuse
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to comply with directives. In effect, BCS personnel often tum their disciplinary authority over to BPD by requesting that SROs handle in school discipline. By the same token, SROs have abandoned their primary mission - to protect student safety _. in order to become tools of school personnel who have abdicated their disciplinary responsibilities. This phenomenon was acknowledged publicly by Interim BCS Superintendent Barbara Allen, who noted:
"We put SROs (school resource officers) in there to manage the school and serious crimes. They are there if someone commits a felony or major crime," said interim Birmingham school Superintendent Barbara Allen. "But sometimes we have principals who call them to break up a fight. They are busy, and I think it's just easier for them to place the responsibility elsewhere, and that isn't right."
***
"Other school systems aren't arresting kids for small things; they handle it from within," Allen said. "We call the police." She said SROs too often are called upon to handle small fights, disruptive behavior and dress-code violations, such ag sagging pants. Marie Leech & Carol Ronbinson, "Birmingham city schools rely on arrests to keep order," Binningham News, March 22,2009. 36. Most BCS school arrests are for petty misdemeanors like disorderly conduct or harassment, which are broadly defined offenses that can be used to criminalize a wide range of ordinary teenage behavior. During the 2009-10 school year, 86% of arrests in BCS schools were for minor violations and misdemeanors, while less than 2% involved felonies against persons. 37. As a result of the presence ofSROs in BCS schools, Birmingham students are significantly more likely to be arrested than students in neighboring districts who engage in the same conduct. Although BCS educates only 25% of public school children in Jefferson County, BCS was responsible for more than 65% of all school-based complaints filed against students in the Jefferson County Family Court in the 2009-10 school year.
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Policy on Use ofForce and Chemical Restraints
38. BPD's Use of Force policy, Procedure No. 113-3, was last updated on February 18,2008.
Under that policy, officers may carry and use Freeze +P chemical spray - a pepper spray product
- during the course of their duties.
39. BPD's policy on Chemical Spray Subject Restraint: Non-Deadly Use of Force,
Procedure No. 113-5, was last updated on February 10, 2006.
40. BPD's policy on Chemical Spray Subject Restraint provides, in pertinent part:
C. The chemical spray may be used in an arrest situation where the weapon's use offers the possibility of lessening the likelihood of physical injury to the arresting officer, citizens on the scene and/or the suspect.
D. The use of chemical spray is intended solely as a control device to enable the officer to carry out his or her duties in the safest, most efficient and most professional manner with the least chance of injury to either the officer or suspect.
1. At no time will an officer unnecessarily brandish, or use chemical spray as an intimidation device unless the officer is attempting to prevent further escalation of force.
2. Chemical spray is not[,] under any circumstances, to be used as punishment or as a coercive tool once an individual is under control and in custody.
3. The chemical spray is not to be used by officers unless they have a reasonable belief that a crime has been committed and that the intended target committed the crime.
E. Any time chemical spray is used for controlling an offender[,] the application of the chemical spray will end when the subject discontinues resistance or aggression.
F. The chemical spray is best employed in one to two second bursts. The spray must be directed to the facial area of the assailant, with the bridge of the nose being the best target area. This weapon is primarily an inflanunatory agent, producing the following results:
1. Involuntary closing of the eyes.
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2. Swelling of the mucous membranes, which results in shallow breathing ability.
3. Intense burning on sensitive parts of the body.
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H. It should be kept in mind by all concerned that any actual contact with chemical spray to the face or sensitive skin areas will result in the officer being adversely affected by its properties. Caution must be taken while handcuffing prisoners, placing them in automobiles, etc. If contact is made with the actual substance, the officer shall refrain from touching his face with the contacted area until he can wash that area with warm soapy water.
********
III. AFTER USE PROCEDURE A. Following the use of chemical spray the officer will ensure that the subject receives adequate decontamination as soon as practical. The officer should supply immediate medical attention if requested by the subj ect.
B. Birmingham Fire and Rescue will be called and will deterniine whether or not the subject needs further medical attention or hospital treatment.
D. Any time an officer uses chemical spray for subject control, the officer will notifY the on-duty supervisor and complete a Use of Force Information and Statement Report.
41. The BPD's Use of Force policy defines control as "[tJhe force an officer uses to influence
or neutralize the unlawful, physical actions of a subject under arrest."
42. The BPD "Use of Force" and "Chemical Spray Subject Restraint: Non-Deadly Use of
Force" policies do not provide BPD personnel with adequate guidance for the appropriate use of Freeze +Pon adolescents and in school environments. Neither policy addresses any of the
following issues: a. The appropriate distance to stand from a subject when administering the spray; b. Appropriate use of Freeze +P, and other chemical weapons, on adolescents;
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c. Use of chemical-based weapons in closed environments, such as schools or school vehicles;
d. Appropriate use of Freeze +P when in close proximity to third parties who are not suspected of committing any crime;
e. Procedures for effective decontamination and treatment; f. Guidelines and cautions for use of chemical spray on individuals that are at a
higher risk of injury from exposure to pepper spray, such as asthmatics; g. Use of pepper spray as a means to disperse a group of observers; and h. Protocol for deploying chemical weapons, including a mandated warning prior to
using the chemical. 43. All Defendants are aware that SROs routinely use Freeze +P against students in the course of school discipline and arrests, even when the targeted child poses no risk of injury to other children, to the officer, to school persomlel, or to herself. School leadership at every BCS high school- including but not limited to Jackson-Olin, Woodlawn, Huffman, and Carver High Schools - have witnessed SROs use Freeze +P on students. Under BPD policy, any officer who uses a chemical weapon must notify the on-duty supervisor and complete a Use of Force Information and Statement Report. Any use of force must also be noted in the officer's report of the incident. The use of chemical weapons against students in the Birmingham schools has also been the subject of multiple media accounts, including a March 2009 article in the Birmingham News and an August 2008 report by Alabama NBC Charmel 13. 44. Many SROs use Freeze +P against BCS students as a first resort, and without issuing a warning to students. 45. Many SROs use Freeze +P against BCS students who pose no risk of injury to other students, to school staff, to SROs, or to themselves. 46. Many SROs use Freeze +P against BCS students when they are restrained. 47. Many SROs use Freeze +P against BCS students as a form of punishment.
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48. Without regard to others in close proximity to the intended target, SROs often deploy Freeze +P in closed school spaces without appropriate avenues of ventilation. As a result, students who are uot accused of auy wrongdoing are often injured by the pepper spray. 49. SROs use Freeze +P as a way to intimidate aud control peaceable groups of students when the groups do not immediately disperse upon order. In some cases, SROs begin spraying students immediately without giving them time to disperse. 50. The abusive practices described in paragraphs 44 through 49 are reflected in the officers' Use of Force Information aud Statement Reports, which are subject to regular review by highlevel BPD officials to ensure conformity to departmental policy, practice, aud custom. BPD policy also requires that each use offorce be reported to the on-duty supervisor. 51. The use of chemical weapons against students in the Birmingham schools has also been the subject of multiple media accounts, including au August 2008 report by Alabama NBC Channell3 aud a front-page article in the Birmingham News on March 22, 2009. The 2009 article in the Birmingham News was entitled "City Schools Rely on Arrests to Keep Order" aud highlighted several incidents involving the use of mace on BCS high school students by SROs. Specifically, the article reported that a 16-year-old BCS high school student was sprayed with mace and haudcuffed for yelling a curse word, aud that a 17-year-old BCS high school student was sprayed with mace and arrested for being "loud aud boisterous." Chief Roper was quoted extensively in the article, aud there is no question that he read it. 52. In his capacity as Chief of Police, Defendaut Roper has a legal duty to "direct, control aud discipline all officers and members of the department." General Code of the City of Binningham, Public Safety and Protection, Title 9, Ch. 1: Police Department. In order to fulfill this duty, Chief Roper must: maintain familiarity with the activities, practices, and customs of
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officers in all BPD units; ensure their compliance with BPD policy and with state and federal law; and take disciplinary and other remedial action when officers run afoul of these mandates.
Properties and Dangers ofthe Chemical Weapons used against BCS Students 53. Freeze +P consists of two chemical agents, Orthochlorobenzalmalonitrile (CS) and Oleoresin Capsicum (OC). The product manufacturer claims that "[t]he strong respiratory effects of OC combined with the severe pain induced by CS magnify each other." See http://www.aerko.com/Freeze+P.htm. Freeze +P is marketed as "the most intense, incapacitating agent available today." Id 54. Exposure to pepper spray products like Freeze +P can temporarily eliminate the protective reflexes in the eyes and throat by poisoning the nerve endings that stimulate these reflexes. The absence of the gag and blink reflex make the eyes and lungs susceptible to injury. The chemical ingredients in Freeze +P are known to cause severe and painful effects, including: (a) temporary and permanent damage to the cornea, (b) conjunctiva of the eye, (c) temporary loss of vision, (d) persistent and debilitating pain and swelling around the eyes, (e) blisters under the eye, (f) chemical injury to the eye, (g) blurred vision and redness in the eye, (h) blistering of the
eyelids, (i) blistering and scarring of the eyeball, and CD corneal abrasion of the eye.
55. Exposure to pepper spray product such as Freeze +P also has severe respiratory effects. Among. the many physical reactions to Freeze +P is an immediate inflammation and swelling in the throat, a reflexive reaction that restricts the size of the airway and limits the amount of oxygen entering the lungs. Pepper spray also causes the affected individual to cough violently, gasp for air, and experience a gagging sensation. Pepper spray exposure also presents the risk of apnea, cyanosis, and respiratory arrest. Inhaling pepper spray may cause acute hypertension, which may increase the risk of stroke or heart attack.
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56. Asthmatics exposed to pepper spray are at higher risk for severe and possibly lifethreatening asthma attacks. Asthmatics may be hypersensitive to pepper spray because the chemical combination can induce bronchoconstriction - a constriction of the airways causing coughing, wheezing, and shortness of breath. 57. Asthma is fairly common among children, affecting about nine percent of all children in the general population. 58. The United States Department of Health and Human Services ("HHS") has reported an especially high prevalence ofasthma among African Americans, particularly among AfricanAmerican children. According to the Office of Minority Health at HHS:
a. In 2006, African Americans were three times more likely to die from asthmarelated causes than whites. From 2003 to 2005, the death rate for AfricanAmerican children was seven times the rate of white children.
b. Generally, African-American children require more treatment for asthma-related incidents when compared to white children: 260% more for emergency room visits and 250% more for hospitalization.
c. African-American children also have a 500% higher death rate due to asthmarelated complications compared to white children.
59. African American children comprise approximately 96% of the Birmingham City School System. 60. The standard of care for individuals affected by pepper spray is to immediately ensure access to a flowing air source (removing them from the chemical-filled enviromnent), and to immediately flush the affected areas of the skin with water, especially the eyes if affected by the chemical. In addition, the injured person's clothing should be immediately removed to prevent continued exposure and contamination. Individuals wearing contact lenses should immediately remove them.
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61. The Freeze +P Material Safety Data Sheet is the official document that sets forth the usage guidelines for the product. The Emergency and First Aid Procedure contained in this document sets forth appropriate decontamination and first aid procedures for individuals exposed to Freeze +P. Individuals exposed to Freeze +P should "flush [their] eyes with large quantities of water to speed recovery" and face "wind or forced air source such as fans or air conditioning outlet." Aerko Intemational,Freeze +P, Material Safety Data Sheet, Prepared June 17, 1991. Individuals sprayed with Freeze +P should "remove contaminated clothing" and "wash affected areals] with soap and water to avoid transfer to more sensitive areas." The Material Safety Data Sheet further provides that "persons with preexisting skin disorders may be more susceptible to the affects of [Freeze +PJ." 62. BPD policy on the use of chemical weapons provides some limited guidance on decontamination procedures:
A. Following the use of chemical spray the officer will ensure that the subject receives adequate decontamination as soon as practical. The officer should supply immediate medical attention if requested by the subject.
B. Birmingham Fire and Rescue will be called and will determine whether or not the subject needs further medical attention or hospital treatment.
BPD Rules and Regulations, Chemical Spray Subject Restraint: Non-Deadly Use of Force, No. 113-5, February 10,2006.
Use ofChemical Weapons against Plaintiffs PlaintiffJ. W.
63. In April 2010, lW. left his third-block class at Woodlawn High School and was walking down the hallway when he saw a physical altercation begin. A group of students began to gather near the scene. lW. was towards the back of the group. He was approximately ten feet away from the altercation.
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64. Defendant Nevitt and an unknown SRO responded to the incident. The unknown SRO approached the students involved in the altercation and sprayed them in the faces with Freeze +P. 65. Defendant Nevitt walked up to the group of observers and yelled at them to disperse. Without further warning, and without giving the students any opportunity to move away, Defendant Nevitt immediately started spraying the observers with Freeze +P. Defendant Nevitt sprayed them for approximately ten seconds, waving the canister back and forth across the group at eye level. 66. While Defendant Nevitt sprayed the group, the students began screaming and coughing as they ran in different directions to get away from the chemical spray that was filling the hallway. 67. Although J.W. was about ten feet away when Defendant Nevitt started blasting Freeze +P, some of the chemical spray landed on lW.'s face. Upon contact, J.W.'s eyes and nose started stinging and burning immediately. The burning feeling spread throughout his entire face. l W. also started coughing uncontrollably as some of the chemical entered his throat. 68. Although Defendant Nevitt had directly sprayed the group of observers standing in the hallway, he did not ask if they were alright or take any other actions to determine whether any of the children were injured or required help. Neither J. W. nor any of the students in the group received medical attention for their injuries. Neither Defendant Nevitt nor any school official took any steps to commence decontamination procedures for J. W. or the other students affected by the Freeze +P. 69. As a direct and proximate result of Defendant Nevitt's actions, which were authorized by Defendants BOB, Witherspoon, and Roper, Plaintiff J.W. suffered emotional, psychological, and physical injury. Plaintiff J.W. is afraid that he will be maced again in the future, and that he will
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again be powerless to protect himselffrom the Defendants' unconstitutional policies, practices, and customs.
Plaintiff G.S. & PlaintiffP.S. 70. At all relevant times, Plaintiff O.S. was five feet, five inches tall. 71. At all relevant times, PlaintiffP.S. was five feet, four inches tall. 72. O.S. and P.S. are sisters. At all relevant times, both girls attended Huffman High School. 73. Defendant Clark is a male School Resource Officer. He is approximately five feet, ten inches tall, has a stocky build, and weighs approximately 220 pounds. 74. On December 8, 2009, O.S. was jogging across the lawn outside Huffinan High School when Defendant Clark grabbed her from behind by the waist. He did not identify himself as a law enforcement officer or say anything before grabbing her. Unaware of Defendant Clark's identity and alarmed at being attacked by an unknown assailant, O.S. struggled to free herself. When she broke from his grasp, she turned around and pushed him in the chest to distance herself from him. O.S. did not realize who Defendant Clark was until after she had pushed him. 75. Without saying a word, Defendant Clark immediately pulled out his Freeze +P, raised it to O.S.'s face, and sprayed her directly in the face and eyes. The pepper spray entered her eyes, nose, and mouth, causing her to ingest the product. 76. O.S. 's face and eyes began to bum and she felt like she could not breathe. She began to cry uncontrollably from the pain. 77. O.S.'s sister, PlaintiffP.S., had been approaching O.S. when Defendant Clark sprayed O.S. for the first time. When P.S. was about five feet away from O.S., an unknown SRO grabbed P.S. from behind to stop her from reaching O.S. As the SRO grabbed P.S. and held her,
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Defendant Clark sprayed a second blast of Freeze +P directly into O.S.'s face without warning, causing O.S. to crumble to the ground. 78. Defendant Clark did not consider whether other students were close enough to be affected by the chemical before he administered the second blast. As a result of Defendant Clark's recklessness, the secorid blast of Freeze +P also hit PlaintiffP.S. in the face. P.S. immediately felt a burning sensation in her eyes and face, and had trouble breathing. 79. Defendant Clark left O.S. and P.S. in the school yard. He did not assess their physical well-being or attempt to determine their need for medical attention. 80. O.S. eventually made her way tothe school's main office. Once in the office, an unknown school official contacted 911 at O.S.'s request. Emergency Medical Service (EMS) persormel arrived at the school and questioned O.S. for 45 minutes, but did not provide her with any medical treatment. O.S; had a hard time focusing on the questions EMS persormel asked because she was crying hysterically and asking repeatedly for her mother. 81. LaTonya Stearnes is the mother ofO.S. and P.S. Ms. Stearnes arrived at the school shortly after O.S. went to the office. P.S. infonned her mother that Defendant Clark had used pepper spray on both girls. 82. As Ms. Stearnes began to enter the school, she encountered Defendant Clark and asked to see O.S. Defendant Clark would not pennit Ms. Stearnes to enter the school and refused to allow her to see O.S. Defendant Clark refused to give Ms. Stearnes any information about O.S. 's physical state and threatened to arrest her if she continued to ask about her daughter's wellbeing.
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83. Eventually, a Huffmau faculty member escorted Ms. 8teames into the school's office, where she sat for 45 minutes before finally being allowed to see G.8. While she was forced to wait, Ms. 8teames heard G.8. screaming "I cau't breathe!" from the next room. 84. Neither school personnel nor Defendant Clark advised or allowed G.8. or P.8. to rinse their eyes, wash their faces, or change out of their contaminated clothing. 85. Nearly au hour after the incident on the school lawn, Defendaut Clark took G.8. to Cooper Green Hospital, but it was too late to provide auy effective treatment or pain relief. Hospital personnel informed G.8. that they could not provide her with auy medical treatment aud requested that she sign a form. Upon infonnation aud belief, the form was a medical release waiver. 86. G.8. was then taken to the Jefferson County Family Court. 8he was released to her mother's custody later that day. No formal charges were filed against her. At her release, she still wore the same contaminated clothing fTOm earlier in the day because no one had provided her with a chauge of clothes. 87. As a direct aud proximate result of Defendant Clark's actions, G.S. suffered emotional, psychological, aud physical injury. Due to the pepper spray, the skin on G.S.'s face is still discolored. She also experienced painful burning in her face aud eyes for over 24 hours, had difficulty breathing for au hour, aud suffered throat irritation. G.S.'s hair aud skin also smelled like pepper spray for more thau. 24 hours, causing her further discomfort aud pain. G.8. did not waut to return to school for several days following the assault for fear that she would be peppersprayed again. Both G.S. aud P.S. are reasonably afraid that au SRO will spray them again.
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Plaintiff T.L.P. 88. At all relevant times, I.L.P. was five feet, two inches tall, 120 pounds, and petite in stature. 89. Defendant Nevitt is an approximately six-foot-tall male, weighs approximately 200 pounds, and has a muscular build. 90. BCS employee Johnson is an adult male standing approximately five feet, ten inches tall, and weighs about 200 pounds with a muscular build. 91. BCS employee Howard is an adult male standing approximately six feet tall and weighing more than 200 pounds with a muscular build. 92. On or around November 29,2009, a female student initiated a verbal altercation with I.L.P. Ihe situation eventually escalated into a physical altercation. Upon seeing the two girls, BCS employees Johnson and Howard intervened and separated them; Johnson picked I.L.P. up from behind, holding her arms securely against her body, and hoisted her in the air. Johnson held I.L.P. in such a way that posed no threat to herself or others. 93. After the girls had been separated and I.L.P. had been restrained, Defendant Nevitt arrived at the scene. Without any warning or provocation, Defendant Nevitt directed a blast of Freeze +P in I.L.P.'s direction, even though she was still being restrained by Johnson. Ihe pepper spray entered T.L.P.'s mouth, and she began to cough severely. 94. While attempting to spray I.L.P., Defendant Nevitt also sprayed Johnson in the face with pepper spray. Johnson released I.L.P. while excitedly yelling, "It got me in the eyes!" 95. Although I.L.P. was injured by the pepper spray, as evidenced by her violent coughing fit, Defendant Nevitt did not commence any decontamination procedure to rinse T.L.P.'s eyes or face or rid her of her contaminated clothing. Instead, he arrested her and took her to the
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Jefferson Connty Family Court, where she was placed in a holding cell at the G. Ross Bell Youth Detention Center (YDC) to wait for her mother. Because no one provided her with a change of clothes, T.L.P. continued to wear the contaminated clothing while she waited at YDC. The allegations in the police report were never pursued as formal charges. 96. As a direct and proximate result of Defendant Nevitt's actions, T.L.P. suffered emotional, psychological, and physical injuries. From breathing in the pepper spray, T.L.P. was wracked by violent coughing fits. 97. T.L.P. is reasonably afraid that she will be subjected to Defendants' illegal policy and practice in the future. She is particularly concerned because the incident described above is not the first time that T.L.P. has been blasted with pepper spray at school while restrained. T.L.P. was previously sprayed with Freeze +P on or aronnd November 17, 2008. During that incident, she was grabbed by a faculty member from behind and completely restrained when an nnknown SRO sprayed her in the face and eyes with Freeze +P. Following that assault, T.L.P. suffered from burning sensations on her face, peeling skin, difficulties breathing, swollen and burning eyes, and prolonged head pains.
INDIVIDUAL PLAINTIFFS Plaintiff T.A.P.
98. At all relevant times, T.A.P. was 5 feet, 4 inches tall and weighed approximately 145 pounds. T.A.P. attended Carver High School from 2007 to 2009. 99. Defendant Tarrant is a male SRO. He has a muscular build, stands approximately five feet, six inches in height, and weighs approximately 200 pounds. 100. Defendant Moss is an assistant principal at Carver High School. He has a stocky build, stands approximately six feet, two inches in height, and weighs approximately 280 ponnds.
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Pursuant to BCS policy, Defendant BOE "does not allow the use of corporal punishment as an appropriate means of discipline." As superintendent, Defendant Witherspoon has a duty to enforce this policy and ensure that BCS personnel refrain from engaging in corporal punishment as a means of discipline. 101. On or around August 31, 2009, T.A.P. entered a classroom to begin her third-block class. As T.A.P. walked in, a substitute teacher approached her, accused her of smoking cigarettes, and sent her to the school's main office to see Assistant Principal Moss. 102. Outside of the main office, Assistant Principal Moss accused T.A.P. of smelling like cigarette smoke. T.A.P. explained that she had smoked a cigarette before school started and off of school grounds. Moss disregarded T.A.P.'s explanation and ordered her to call her mother to arrange to leave school. In an attempt to comply, T.A.P. took out her cell phone and began to dial her mother. Even though he had told T.A.P. to call her mother, Moss attempted to take the cell phone away from her. When T.A.P. refused to give him the cell phone, he became visibly angry and told her that she could leave. 103. Assuming that he meant she could go home, T.A.P. followed Moss down the school hallway and outside of the school. As they reached the door, Moss opened the door and motioned for T.A.P. to exit ahead of him. As T.A.P. walked out of the door, Moss grabbed her from behind and tripped her. T.A.P. fell onto the concrete, stomach-first. Moss then dug his foot into her back as she lay on the ground. 104. T.A.P. heard a student call out "Damn, you didn't have to do it like that." After hearing the student, Moss removed his foot from T.A.P.'s back. 105. When T.A.P. stood up, she noticed Officer Tarrant standing close by. T.A.P. bent to pick up her backpack from the ground and slung it over her shoulder. As she slung the backpack, the
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backpack accidentally bumped Tarrant in the chest. T.A.P. then saw Tarrant reach for his belt. Because she did not know what he was reaching for, T.A.P. panicked and ran. 106. Tarrant caught T.A.P. after she ran approximately seven feet. He grabbed her from behind and threw her down into some bushes on the lawn. 107. When T.A.P. looked up she saw Moss and Tarrant standing above her. Moss grabbed her right arm, while Tarrant grabbed her left arm. Several seconds later, three other men - all unknown to T.A.P. - approached and held her legs down. T.A.P. was frightened being restrained by five men, and began to squirm under their grasp. However, she did not break free from their hold nor did she utter any threats to any of the men. 108. As T.A.P. was pilmed to the ground, restrained by five grown men, Tarrant said: "You wanna act hard? Let's see how you act when you get this." Tarrant then removed his canister of Freeze +P from his belt and sprayed a blast into T.A.P. 's face and eyes without waming. T.A.P. felt intense pain on her face and in her eyes, had difficulty breathing, and was blinded. Tarrant then flipped T.A.P. onto her stomach, handcuffed her, and took her to one of the school's administrative offices. 109. T.A.P. sat handcuffed in the office for more than 40 minutes without any medical assistance. T.A.P. was crying profusely, and Tarrant told her: "Stop slobbering on my table." When she asked Officer Tarrant for a wet paper towel to wipe her eyes, he yelled, "You don't need a mother-fucking thing!" Tarrant did not provide T.A.P. with a change of clothing or take any other decontamination measures even though T.A.P. was obviously in severe pain. 110. Tarrant eventually escorted T.A.P. to Cooper Green Hospital, but it was too late to provide any effective treatment or pain relief, and T.A.P. was asked to sign a medical release waiver. Tarrant then escorted T.A.P. to the Jefferson County Family Court. T.A.P. continued to
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wear the contaminated clothing until she was released to her mother, Barbara Pettaway, at 5:00 p.m. that evening. 111. Barbara Pettaway contacted Defendant BOE the next day to complain about Tarrant's reckless and dangerous use of Freeze +P against T.AP. A BOE representative told Ms. Pettaway that they could not take any action against the school or Tarrant because Ms. Pettaway had washed the shirt that T.AP. wore on the day of the incident. 112. As a direct and proximate result of the actions of Defendants Tarrant and Moss, T.AP. suffered emotional, psychological, and physical injuries. T.AP. experienced swelling in the face and eyes for 24 hours, blindness for more than five hours, severe burning of the eyes and face, and difficulty. breathing. The skin around her eyes was damaged and peeling for a week after she was sprayed. The actions of Defendants Tarrant and Moss were major factors in T.A.P.'s decision not to return to school. T.AP. continues to experience a deep distrust of the school and law enforcement staff at Carver High School.
Plaintiff B.J. 113. At all relevant times, BJ. was five feet, six inches tall and weighed 140 pounds, with a lean build. 114. On or around September 27,2010, a substitute teacher, known to B.J. as Mr. Cook, ordered B.l to leave his fourth-block classroom at Jackson-Olin High School to tuck his shirt into his pants. B.l complied with the order. As BJ. re-entered the classroom, another student mumbled "Fuck you, Mr. Cook" in the direction of the substitute teacher. Mistaking BJ. for the speaker, the teacher contacted Assistant Principal Gaston, a BCS employee at Jackson-Olin High School.
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115. Gaston ordered B.J. out of the classroom. Although the substitute teacher's only complaints were that B.J/s shirt had been untucked and that he might have used profanity, Gaston immediately began to pat him down and go through his pockets. As the illegal search continued, B.l repeatedly proclaimed his innocence and struggled to free himselffrom Gaston's hold. At one point, BJ. tripped and fell to the ground, landing on his stomach. While BJ. lay on the ground, Gaston continued to search his back pockets. After a few minutes, Gaston called Assistant Principal Gates to the scene. Gates is a six-foot-tall male with an average build. 116. When Gates arrived, the two assistant principals restrained B.l against a set of lockers with his arms spread, with Gates and Gaston each holding an arm. 117. At some point, Gates called Defendant Officer Benson to the scene. Upon arrival, Officer Benson did not take any action or even speak - she jnst stood there and watched Gates and Gaston restrain BJ. Officer Benson then blasted Freeze +P directly into B.J.'s face and eyes, holding the cannister within inches from BJ.'s face. 118. The blast entered BJ.'s eyes, nose, and mouth, causing him to ingest the pepper spray. He immediately experienced a severe burning sensation across his face and in his eyes, and felt as if he could not breathe. B.J. was also immediately blinded. 119. BJ. began to fall to the ground holding his face and gasping for air. The pain was so intense that he began to cry. As he sank to the gronnd, Officer Benson used her foot to forcibly shove him fully onto the ground, where she held him in place with her knee planted in his back. Officer Benson threatened to administer a second blast of pepper spray into B.J.'s face ifhe attempted to stand. 120. Officer Benson handcuffed BJ. and took him to the school's main office. As BJ. sat in the office, Gates said: "Woo! That's the first macing of the year!"
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121. Officer Benson did not immediately seek medical attention for B.J., nor did she contact Birmingham Fire and Rescue. B.J. sat handcuffed in the school office for more than 20 minutes before Officer Benson escorted him to the hospital. Officer Benson did not permit BJ. to wash out his eyes, nor did she take any steps to get him a change of clothes or advise him to get out of his contaminated clothing. 122. When Officer Benson eventually transported B.l to Cooper Green Hospital in Birmingham, it was too late to provide any effective treatment or·pain relief. Hospital staff informed B.J. that they could not provide him with any medical treatment and directed him to sign a form. B.J. signed the form even though he still could not see due to the pepper spray. No one explained the contents of the form to B.J. Upon information and belief, the form was a medical release waiver. 123. Officer Benson then transported BJ. to theG. Ross Bell Youth Detention Facility, where he was placed in a holding cell at 5:00 pm to wait for his grandmother to pick him up. No formal charges were filed against BJ. as a result of this incident. 124. While in the holding cell, B.J. continued to experience negative effects from being sprayed directly in the face with pepper spray. His face felt like it was burning, and it began to swell. B.l's eyes were also swollen, and he could not see for several hours. B.J. experienced severe stomach pains and violent nausea. He vomited twice while in the holding cell, and could taste the pepper spray in his vomit. Because he was never offered a change of clothes at any time, BJ. continued to wear the same contaminated clothing while in the cell. 125. BJ.'s grandmother was not informed that BJ. had been injured by pepper spray, arrested, transported to Cooper Green Hospital, and taken to a detention facility until later that evening. B.J. was released to her custody at 7:00 p.m.
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126. As a direct and proximate result of Officer Benson's actions, B.l. suffered emotional, psychological, and physical injury. BJ. endured nausea, violent vomiting, blindness for more than five hours, numbness and burning in his face for more than 24 hours, severe head pains for more than a day, swelling of the face for more than two days, an aggravation of allergies, and pain in the back from SRO Benson's assault with her knee.
Allegations relating to Municipal Liability for Unconstitutional Policy and Practice, Failure to Train, and Failure to Supervise
127. In each of the incidents described above, the Defendant Officer's conduct was consistent either with BPD policy or with BPD custom and practice. In his capacity as Chief of Police, Defendant Roper is aware ofBPD policy, custom, and practice concerning the use of Freeze +P on BCS students. 128. On several occasions, Defendant Roper has publicly expressed concern with the criminalization of teenage behavior in the Binningham City School system. For example, Defendant Roper gave the following comments to the Binningham News in March 2009:
Roper acknowledges that most of the arrests are for minor violations that should not have involved police. "They have over-relied on our officers, and our officers have responded," Roper said. "I think the school system should handle minor violations and the SROs should be present and respond when it rises to a criminal level." "Too many of these kids have been criminalized, and that's not the goal," he said "The current system is dysfunctional, and that's putting it mildly." Marie Leech & Carol Robinson, "Birmingham city schools rely on arrests to keep order," Birmingham News, March 22, 2009. Despite these comments, and despite his awareness that SROs routinely use Freeze +P against schoolchildren who pose no threat to officers, to BCS staff, to other children, or to themselves, Defendant Roper has failed to take action to prohibit - or even limit - the use of Freeze +P on schoolchildren.
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129. Defendant Roper has not made any effort to amend BPD policy to provide specific guidance to officers in the use of force on children. 130. Defendant Roper has not made any effort to provide specialized training to officers to educate them about the specific risks of using Freeze +P (and other pepper spray products) on children, in closed environments, and/or within populations with a higher than average incidence of asthma. 131. Instead, Defendant Roper has continued to condone and approve the abusive and brutal practices and/or customs that SROs employ when using pepper spray against BCS students in the course of administering school discipline and conducting school arrests, even where custom and practice is inconsistent with written policy. Specifically, Defendant Roper authorizes the use of pepper spray on students who are completely restrained, who pose no threat to themselves or others, and who are merely in the wrong place at the wrong time.
Allegations Relating to Defendant Board ofEducation's and Defendant Witherspoon's Liabilityfor Failure to Protect and Conspiracy to Violate Plaintiffs' Civil Rights
132. Based on numerous complaints from parents, reports from BCS staff, media coverage, direct observation, and a variety of other sources, Defendant BOE and Defendant Witherspoon are well aware of the policies, practices, and customs described above. 133. On July 27, 2010, the Southern Poverty Law Center ("SPLC") submitted a Request for Access to Information to the Family Court of Jefferson County, Alabama. The Request sought copies of all police reports submitted to the Jefferson County Family Court that reflected the use of chemical spray against BCS students. The Request included a significant amount of medical evidence, documenting the dangers of chemical spray.
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134. Upon information and belief, an electronic copy of SPLC's Reqnest, inclnding the supporting documentation, was provided to Defendants BOE, Witherspoon, Roper, and the Birmingham City Attorney's Office within a week. 135. On or about September 16,2010, BOE and Superintendent Witherspoon were served with a copy of an Order by the Honorable Scott Vowell, Presiding·Judge of the Jefferson County Circuit Court. That Order provided, in pertinent part:
1. A copy of this Order shall be served by the Clerkofthe Family Court [by] mailing a copy to the Birmingham Board of Education and the Birmingham Superintendent of Education. Any objection to this Order must be filed with this Court (at the Chambers ofthe undersigned) within fourteen (14) days from the date of this Order or any such objection will be waived. 2. If no objection is received within 14 days from the date of this Order, the Family Court of Jefferson County will produce for inspection and copying all police reports that:
a. were submitted to the Family Court in connection with complaints filed against students in the Birmingham City School System arising from incidents or behavior that occurred in or at school during the 2008-2009 and 2009-2010 school years; and which
b. document the use of chemical restraints, including Freeze +P or other mace- [or] pepper-spray products.
136. Neither BOE nor Superintendent Witherspoon raised any objections to the September 16 order. Accordingly, the Circuit Court entered a second order on October 7, 2010, directing the Family Court to produce the documents described in the Order dated September 16. 137. Despite the Circuit Court's orders and the obvious concerns raised by SPLC's Request for Access to Information, neither BOE nor Superintendent Witherspoon took any action to prohibit - or even investigate - the use of chemical weapons against Binningham schoolchildren.
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Necessity ofInjunctive Relief 138. Because mace is used so frequently and so indiscriminately in Binninghatn's public high schools, each plaintiff- and each member of the class - faces a real and substantial risk of future and repeated injury as a result of the Defendants' unlawful policies, customs, and practices. There are only three ways for the class members to avoid that real and substantial risk: (a) by attending school in another school system, something prohibited by zoning requirements; (b) by foregoing their right to a free public education and enrolling in private school, which Plaintiffs cannot afford; or (c) by dropping out of school entirely, which would violate the compulsory school attendance law and deprive the students of their rights to an "equal and adequate" education under Alabama law. 139. As described above, the Defendants have acted and continue to act in violation of the law. The Class Representatives and the class they seek to represent do not have an adequate remedy at law. As a result of the policies, practices, acts, and omissions of the Defendants, the Class Representatives and the class of children they seek to represent have suffered and continue to suffer imminent, serious and irreparable injuries.
CAUSES OF ACTION 140. The named Plaintiffs and the proposed class incorporate by reference all of the above factual allegations to support the following claims:
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CLASS CLAIMS FOR DECLARATORYAND INJUNCTIVE RELIEF
COUNT I
Declaratory and Injunctive Relief to Protect Plaintiffs' Fourth and Fourteenth Amendment Rights to be Free from Excessive Force Defendant Roper, in his official capacity
141. Defendant Roper is responsible for supervising BPD and ensuring that the agency operates in compliance with federal and state law. In his official capacity, he is responsible for the "Chemical Spray Subject to Restraint: Non-Deadly Use of Force" policy, which is unconstitutional both on its face and as applied to the Plaintiffs and the class they represent. 142. On its face, the Chemical Spray policy allows the use of a chemical weapons against children under circumstances that are patently unreasonable under New Jersey v. T.L. 0., 469 U.S. 325 (1985). The deployment of chemical weapons against schoolchildren in a closed environment is exceptionally dangerous, yet BPD policy and practice allows and encourages this extreme application of force in situations where such force is not remotely justified by the targets' conduct, by the risk they pose, or by any other factors. As such, the Defendant's policy cannot pass muster under the second prong of the T.L. 0. reasonableness inquiry, which asks whether the level of force used was "reasonably related in scope to the circumstances justifying interference in the first place." T.L.0., 469 U.S. at 341. 143. Indeed, because the Defendant's custom and practice allows the use of chemical weapons against children who are not accused of any wrong-doing and children who are being physically restrained, Defendant Roper cannot even satisfY the first prong of the T.L.0. reasonableness inquiry, which asks whether any force was justified. Id. at 341. 144. By promulgating an unconstitutional policy and by condoning unconstitutional customs and practices with respect to the use of chemical weapons in the Birmingham schools, Defendant
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Roper has violated and continues to violate the Fourth and Fourteenth Amendment rights of the Plaintiff class. 145. By failing to train, supervise, and monitor the use of Freeze +P by SROs in the Birmingham schools, Defendant Roper has been deliberately indifferent to repeated and ongoing violations of the Fourth and Fourteenth Amendment rights of the Class Representatives and the class they seek to represent. 146. Accordingly, the Class Representatives and the proposed class are entitled to a permanent injunction to remedy the constitutional violations described above and to ensure that the constitutional rights of Class Representatives and the plaintiff class are protected.
COUNT II Declaratory and Injunctive Relief to Protect Plaintiffs' Substantive Due Process
Rights to Personal Security under the Fourteenth Amendment Defendant Birmingham Board ofEducation and Defendant Witherspoon,
in his official capacity 147. Defendants BOE and Witherspoon have created a custodial environment within the BCS high schools for all stndents subject to the compulsory school attendance law. Factors evidencing the presence of a custodial enviromnent include, but are not limited to the following:
a. Defendants BOE and Witherspoon have requested and/or agreed to the placement ofBPD law enforcement officers in each BCS high school.
b. Defendants BOE and Witherspoon have delegated authority to BPD officers to handle school discipline matters that are traditionally handled by school officials.
c. Alabama's compulsory school attendance law requires that all stndents between the ages of seven and seventeen attend school.
d. Defendants Roper, BOE, Witherspoon, and their employees playa significant role in enforcing the compulsory school attendance statute: school officials routinely
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file complaints against students for truancy; while BPD officers not only file complaints, but also physically transport truant students back to school. 148. As a result of that custodial environment, Defendants BOE and Witherspoon have a constitutional duty under the Fourteenth Amendment to protect BSC high school students from being injured by third parties while the students are on school property for the purpose of obtaining an education. Defendants BOE and Witherspoon have breached this constitutional duty by authorizing, approving, and failing to take any action to prevent the reckless and malicious use of Freeze +P on schoolchildren, including children who are not suspected of any delinquent activity, children who are physically restrained, and children who do not pose a serious threat of injury to anyone. 149. Defendants BOE and Witherspoon are liable pursuant to 42 U.S.c. § 1983 for violating the constitutional due process rights of the Class Representatives and other members of the class under the Fourteenth Amendment to the U.S. Constitution. 150. The Class Representatives and the proposed class are entitled to a permanent injunction prohibiting the Defendants from engaging in the unlawful conduct described above.
COUNT III Declaratory and Injnnctive Relieffor Conspiracy to Violate Plaintiffs' Fourth Amendment
Rights to be Free from Unlawful Seiznres Defendant Roper, Defendant Birmingham Board ofEducation, and Defendant Witherspoon,
in their official capacities 151. As set forth above, Defendant Roper has violated and continues to violate the Fourth and Fourteenth Amendment rights of the Class Representatives and the other members of the class by promulgating and enforcing policies, practices, and customs that have deprived the plaintiffs of their constitutional rights to be free from excessive force and unlawful seizures.
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152. Defendants Roper, BOE, and Witherspoon willfully and maliciously conspired among themselves to deprive the Class Representatives and the other members of the class of their rights under the Fourth and Fourteenth Amendments to the U.S. Constitution. As provided above, Defendant BOE and Defendant Witherspoon, in his official capacity, invited BPD, represented in this action by Defendant Roper, into BCS to administer school discipline and conduct school arrests pursuant to unconstitutional policies, customs, and practices. Pursuant to this agreement, Defendants BOE and Witherspoon have effectively authorized and continue to authorize the illegal deployment of chemical spray against schoolchildren. 153. Accordingly, Defendants Roper, Witherspoon, and BOE are liable pursuant to 42 U.S.C. § 1983 for conspiring to violate the Fourth and Fourteenth Amendment rights of the Class Representatives and the proposed class. 154. The Class Representatives and the proposed class are entitled to a permanent injunction prohibiting the Defendants from engaging in the unlawful conduct described above.
Individual Claims (or Damages under Federal Law COUNT IV
Damages for Fourth and Fourteenth Ameudment Violations arising from the use of Excessive Force against Plaintiff J.W. Defendant Roper and Defendant Nevitt, in their official and individual capacities 155. By deploying a chemical weapon against Plaintiff 1.W. as a means of pure intimidation, Defendant Nevitt violated J.W.'s clearly established constitutional rights under the Fourth and Fourteenth Amendments. Defendant Nevitt's conduct fails even the threshold inquiry for Fourth Amendment violations: whether the defendant's action was justified at its inception. In the incident giving rise to this claim, Plaintiff J. W. had committed no crime and posed no threat whatsoever to anyone's safety. Even if the deployment of Freeze +P against Plaintiff lW. was
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deemed justified at its inception, which it was not, the use of a chemical weapon against Plaintiff lW. was unconstitutional in that it was not reasonably related in scope to the circumstances justifying the interference. 156. Defendants Roper and Nevitt are liable pursuant to 42 U.S.C. § 1983 for sanctioning, enforcing, and implementing a policy, custom, and practice of subjecting BCS students, including Plaintiff lW., to excessive force and illegal seizures, in violation of the Fourth and Fourteenth Amendments of the United States Constitution. Because Defendants Nevitt and Roper acted in clear violation of well-established law, of which a reasonable person would have been aware, they are not entitled to qualified immunity. Defendants Nevitt and Roper acted recklessly, maliciously, and with a callous disregard or indifference to the rights of Plaintiff IW. 157. Plaintiff J.W. seeks compensatory damages from these Defendants.
COUNT V Damages for Fourth and Fourteenth Amendment Violations arising from the use of Excessive Force against Plaintiff G.S. Defendant Roper and Defendant Clark, in their official and individual capacities 158. By repeatedly attacking PlaintiffO.S. with a chemical weapon without justification or warning, Defendant Clark violated the Plaintiff's clearly established constitutional rights under the Fourth and Fourteenth Amendments. Both deployments of Freeze +P against Plaintiff O.S. constituted unjustified and excessively intrusive seizures. Defendant Clark grabbed Plaintiff O.S. from behind, failed to identify himself as a law enforcement officer, then deployed chemical spray in her face - without a warning - when she reasonably defended herself against his attack. Defendant Clark then unleashed another round of chemical spray against Plaintiff O.S., despite the fact that she had already been completely incapacitated and was, in fact, struggling to breathe. His actions were not reasonably related in scope to the circumstances justifying
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interference in the first place, and were calculated to injure, punish, humiliate, and intimidate Plaintiff O.S. Accordingly, Defendant Clark's actions constitute an excessively intrusive seizure in violation of the Fourth and Fourteenth Amendments of the United States Constitution. 159. As described herein, Defendants Roper and Clark are both liable pursuant to 42 U.S.C. § 1983 for sanctioning, enforcing, and implementing a policy, practice, and custom of unreasonably and unconstitutionally subjecting BCS students, including Plaintiff O.S., to excessive force in violation of the Fourth and Fourteenth Amendments of the United States Constitution. Because Defendants Nevitt and Roper acted in clear violation ofwell-established law, of which a reasonable person would have been aware, they are not entitled to qualified immunity. The actions of these Defendants were intentional, malicious, and reckless, and showed a callous disregard for the rights of the Plaintiff. 160. Plaintiff O.S. seeks compensatory damages against these Defendants.
COUNT VI Damages for Fourth and Fourteenth Amendment Violations arising from the use of Excessive Force against PlaintiffP.S. Defendant Roper and Defendant Clark, in their official and individual capacities 161. By deploying a chemical weapon with reckless disregard for the safety of Plaintiff p.s., and without any reason to believe she had committed a delinquent act, Defendant Clark violated the Plaintiffs clearly established constitutional rights under the Fourth and Fourteenth Amendments. Defendant Clark's conduct fails even the threshold inquiry for Fourth Amendment violations: whether the defendant's action was justified at its inception. In the incident giving rise to this claim, PlaintiffP.S. had committed no crime and posed no threat whatsoever to anyone's safety. In fact, PlaintiffP.S. was being physically restrained by an adult when Defendant Clark deployed a second burst of Freeze +P against Plaintiff O.S., also hitting
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PlaintiffP.S. in the face. The deployment of Freeze +P against PlaintiffP.S. was also unconstitutional in that it was not reasonably related in scope to the circumstances justifying the interference. 162. Defendants Roper and Clark are liable pursuant to 42 U.S.C. § 1983 for sanctioning, enforcing, and implementing a policy, custom, and practice of subjecting BCS students, including PlaintiffP.S., to excessive force and illegal seizures, in violation of the Fourth and Fourteenth Amendments of the United States Constitution. Because Defendants Clark and Roper acted in clear violation of well-established law, of which a reasonable person would have been aware, they are not entitled to qualified immunity. Defendants Clark and Roper acted recklessly, maliciously, and with a callous disregard or indifference to the rights ofPlaintiffP.S. 163. PlaintiffP.S. seeks compensatory damages from these Defendants.
COUNIVII Damages for Fourth and Fourteenth Amendment Violations arising from the use of Excessive Force against Plaintiff I.L.P. Defendant Roper and Defendant Nevitt, in their official and individual capacities 164. By deploying a chemical weapon against PlaintiffT.L.P. without justification or warning, Defendant Nevitt violated T.L.P.'s clearly established constitutional rights under the Fourth and Fourteenth Amendments. The deployment of Freeze +P against PlaintiffT.L.P. was unjustified, given that T.L.P. was restrained by an adult man at the time and posed no threat to the safety of others. This seizure was calculated to punish, humiliate, and intimidate T.L.P. Defendant Nevitt's actions were not reasonably related in scope to the circumstances justifying interference in the first place, and were calculated to injure, punish, humiliate, and intimidate T.L.P. Accordingly, Defendant Nevitt's actions constitute an excessively intrusive seizure in violation of the Fourth and Fourteenth Amendments of the United States Constitution.
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165. By the forgoing actions and inactions, Defendants Roper and Nevitt are liable pursuant to 42 U.S.C. § 1983 for sanctioning, enforcing, and implementing a policy, practice, and custom of unreasonably and unconstitutionally sUbjecting BCS students, including PlaintiffT.L.P., to excessive force in violation of the Fourth and Fourteenth Amendments of the United States Constitution. Because Defendants Nevitt and Roper acted in clear violation of well-established law, of which a reasonable person would have been aware, they are not entitled to qualified immunity. The actions of these Defendants were intentional, malicious, and reckless, and showed a callous disregard for the rights of Plaintiff T.L.P. 166. PlaintiffT.L.P. seeks compensatory damages from these Defendants.
COUNT VIII Damages for Fourth and Fourteenth Amendment Violations arising from the use of Excessive Force against Plaintiff T.A.P.
Defendant Roper, Defendant Moss, and Defendant Tarrant, in their official and individual capacities
167. By deploying a chemical weapon against PlaintiffT.AP. without justification, Defendant Nevitt violated T.AP. 's clearly established constitutional rights under the Fourth and Fourteenth Amendments. The deployment of Freeze +P against PlaintiffT.A.P. was unjustified at its inception, given that T.AP. was pinned to the ground by five adult men and posed no threat to the safety of others. This seizure was calculated to punish, humiliate, and intimidate T.AP., as evidenced by his taunting words prior to deploying the chemical in her face. His actions were not reasonably related to the circumstances justifying the interference, and were calculated to injure, punish, humiliate, and intimidate T.AP. Accordingly, Defendant Tarrant's actions constitute an excessively intrusive seizure in violation of the Fourth and Fourteenth Amendments of the United States Constitution.
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168. By the forgoing actions and inactions, Defendants Roper and Tarrant are liable pursuant to 42 U.S.C. § 1983 for sanctioning, enforcing, and implementing a policy, practice and custom of unreasonably and unconstitutionally subjecting BCS students, including PlaintiffT.A.P., to excessive force in violation of the Fourth and Fourteenth Amendments of the United States Constitution. Because Defendants Tarrant and Roper acted in clear violation of well-established law, of which a reasonable person would have been aware, they are not entitled to qualified immunity. The actions of these Defendants were intentional, malicious, reckless, and showed a callous disregard for the rights of Plaintiff T.A.P. 169. PlaintiffT.A.P. seeks compensatory damages from these Defendants.
COUNT IX Damages for Fourth and Fourteenth Amendment Violations arising from the use of Excessive Force against Plaintiff B.J. Defendant Roper and Defendant Benson, in their official and individual capacities 170. By deploying a chemical weapon against PlaintiffB.J. without justification or warning, Defendant Benson violated B.J.'s clearly established constitutionalrights under the Fourth and Fourteenth Amendments. The deployment of Freeze +P against PlaintiffBJ. was bOtll unjustified and unreasonable in that that BJ. was already being physically restrained by two adult men and posed no threat to the safety of others or the school enviromnent. This seizure was calculated to punish, humiliate, and intimidate B.J. Even after he had been blinded and incapacitated by the chemical sprayed into his nose and mouth, Defendant Benson continued to use excessive force by forcing B.J. to the ground and holding him down with her knee as he struggled to breathe. Defendant Benson's actions were not reasonably related in scope to the circumstances justifYing interference in the first place, and were calculated to injure, punish, humiliate, and intimidate B.J.
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171. By the forgoing actions and inactions, Defendants Roper and Benson are liable pursuant to 42 U.S.c. § 1983 for sanctioning, enforcing, and implementing a policy, practice and custom of unreasonably and unconstitutionally subjecting BCS students, including Plaintiff B.J., to excessive force in violation of the Fourth and Fourteenth Amendments of the United States Constitution. Because Defendants Nevitt and Roper acted in clear violation of well-established law, of which a reasonable person would have been aware, they are not entitled to qualified immunity. The actions of these Defendants were intentional, malicious, reckless, and showed a callous disregard for the rights ofPlaintiffBJ. 172. Plaintiff BJ. seeks compensatory damages against these Defendants.
COUNT X Damages for Fourteenth Amendment Violations: Failure to Protect Plaintiff J.W.
Defendant Birmingham Board ofEducation and D~rendant Witherspoon, in his official and individual capacity
173. By failing to protect Plaintiff lW. from the illegal and unreasonable actions of Defendants Roper and Nevitt, Defendants BOE and Witherspoon have violated Plaintiff lW.'s clearly established rights under the Fourteenth Amendment. Defendants BOE and Witherspoon have created a custodial environmental within the BCS system for all students subject to the compulsory school attendance law. That custodial environment imposes a constitutional duty on Defendants BOE and Witherspoon to ensure J. W. 's safety and well-being while he attends BCS. Defendants BOE and Witherspoon breached that duty by authorizing and approving the use of chemical weapons against BCS students, and by failing to take action to protect Plaintiff J.W. and other students against tlle use of chemical weapons. Accordingly, Defendants BOE and Witherspoon have violated Plaintiff J.W.'s rights in violation of the Fourteenth Amendment to the U.S. Constitution.
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174. By the forgoing actions and inactions, these Defendants are liable pursuant to 42 U.S.C. § 1983 under the Fourteenth Amendment of the United States Constitution for failing to protect J.W. from Defendant Roper's unlawful and illegal policies, practices, and customs. Because Defendants BOE and Witherspoon breached their duty to protect J.W. as required by the Fourteenth Amendment and acted in clear violation of well-established law, of which a reasonable person would have been aware, they are not entitled to qualified immunity. 175. Plaintiff lW. seeks compensatory and punitive damages from these Defendants.
COUNT XI Damages for Fourteenth Amendment Violations: Failure to Protect Plaintiff G.S.
Defendant Birmingham Board ofEducation and Defendant Witherspoon, in his official and individual capacity
176. By failing to protect Plaintiff G.S. from the illegal and unreasonable actions of Defendants Roper and Benson, Defendants BOE and Witherspoon have violated Plaintiff G.S. 's clearly established rights under the Fourteenth Amendment. Defendants BOE and Witherspoon have created a custodial environmental within the BCS system for all students subj ect to the compulsory school attendance law. That custodial environment imposes a constitutional duty on Defendants BOE and Witherspoon to ensure G.S.'s safety and well-being while she attends BCS. Defendants BOE and Witherspoon breached that duty by authorizing and approving the use of chemical weapons against BCS students, and by failing to take action to protect Plaintiff G. S. and other students against the use of chemical weapons. Accordingly, Defendants BOE and Witherspoon have violated PlaintiffG.S.'s rights in violation ofthe Fourteenth Amendment to the U.S. Constitution. 177. By the forgoing actions and inactions, these Defendants are liable pursuant to 42 U.S.C. § 1983 under the Fourteenth Amendment of the United States Constitution for failing to protect
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O.S. from Defendant Roper's unlawful and illegal policies, practices, and customs. Because Defendants BOE and Witherspoon breached their duty to protect O.S. as required by the Fourteenth Amendment and acted in clear violation of well-established law, of which a reasonable person would have been aware, they are not entitled to qualified immunity. 178. Plaintiff O.S. seeks compensatory and punitive damages from these Defendants.
COUNT XII Damages for Fourteenth Amendment Violations: Failure to Protect PlaintiffP.S.
Defendant Birmingham Board ofEducation and Defendant Witherspoon, in his official and individual capacity
179. By failing to protect Plaintiff P.S. from the illegal and unreasonable actions of Defendants Roper and Benson, Defendants BOE and Witherspoon have violated PlaintiffP.S.'s clearly established rights under the Fourteenth Amendment. Defendants BOE and Witherspoon have created a custodial environmental within the BCS system for all students subject to the compulsory school attendance law. That custodial environment imposes a constitutional duty on Defendants BOE and Witherspoon to ensure P.S.'s safety and well-being while she attends BCS. Defendants BOE and Witherspoon breached that duty by authorizing and approving the use of chemical weapons against BCS students, and by failing to take action to protect PlaintiffP.S. and other students against the use of chemical weapons. Accordingly, Defendants BOE and Witherspoon have violated PlaintiffP.S. 's rights in violation of the Fourteenth Amendment to the U.S. Constitution. 180. By the forgoing actions and inactions, these Defendants are liable pursuant to 42 U.S.C. § 1983 under the Fourteenth Amendment of the United States Constitution for failing to protect P.S. from Defendant Roper's unlawful and illegal policies, practices, and customs. Because Defendants BOE and Witherspoon breached their duty to protect P.S. as required by the
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Fourteenth Amendment and acted in clear violation of well-established law, of which a reasonable person would have been aware, they are not entitled to qualified immunity. 181. PlaintiffP.S. seeks compensatory and punitive damages from these Defendants.
COUNT XIII Damages for Fourteenth Amendment Violations: Failure to Protect Plaintiff T.L.P.
Defendant Birmingham Board ofEducation and Defendant Witherspoon, in his official and individual capacity
182. By failing to protect PlaintiffT.L.P. from the illegal and unreasonable actions of Defendants Roper and Benson, Defendants BOE and Witherspoon have violated Plaintiff T.L.P.'s clearly established rights under the Fourteenth Amendment. Defendants BOE and Witherspoon have created a cnstodial environmental within the BcS system for all students subject to the compulsory school attendance law. That custodial environment imposes a constitutional duty on Defendants BOE and Witherspoon to ensure T.L.P.'s safety and wellbeing while she attends BCS. Defendants BOE.and Witherspoon breached that duty by authorizing and approving the use of chemical weapons against BCS students, and by failing to take action to protect PlaintiffT.L.P. and other students against the use of chemical weapons. Accordingly, Defendants BOE and Witherspoon have violated PlaintiffT.L.P.'s rights in violation of the Fourteenth Amendment to the U.S. Constitution. 183. By the forgoing actions and inactions, these Defendants are liable pursuant to 42 U.S.c. § 1983 under the Fourteenth Amendment of the United States Constitution for failing to protect T.L.P. from Defendant Roper's unlawful and illegal policies, practices, and customs. Because Defendants BOE and Witherspoon breached their duty to protect T.L.P. as required by the Fourteenth Amendment and acted in clear violation of well-established law, of which a reasonable person would have been aware, they are not entitled to qualified immunity.
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184. PlaintiffT.L.P. seeks compensatory and punitive damages from these Defendants. COUNT XIV
Damages for Fourteenth Amendment Violations: Failure to Protect Plaintiff T.A.P. Defendant Birmingham Board ofEducation and Defendant Witherspoon. in his official and individual capacity
185. By failing to protect PlaintiffT.A.P. from the illegal and unreasonable actions of Defendants Roper and Benson, Defendants BOE and Witherspoon have violated Plaintiff T.A.P.'s clearly established rights under the Fourteenth Amendment. Defendants BOE and Witherspoon have created a custodial environmental within the BCS system for all students subject to the compulsory school attendance law. That custodial environment imposes a constitutional duty on Defendants BOE and Witherspoon to ensure T.A.P.'s safety and wellbeing while she attends BCS. Defendants BOE and Witherspoon breached that duty by authorizing and approving the use of chemical weapons against BCS students, and by failing to take action to protect PlaintiffT.A.P. and other students against the use of chemical weapons. Accordingly, Defendants BOE and Witherspoon have violated PlaintiffT.A.P.'s rights in violation of the Fourteenth Amendment to the U.S. Constitution. 186. By the forgoing actions and inactions, these Defendants are liable pursuant to 42 U.S.C. § 1983 under the Fourteenth Amendment of the United States Constitution for failing to protect T.A.P. from Defendant Roper's unlawful and illegal policies, practices, and customs. Because Defendants BOE and Witherspoon breached their duty to protect T.A.P. as required by the Fourteenth Amendment and acted in clear violation of well-established law, of which a reasonable person would have been aware, they are not entitled to qualified immunity. 187. PlaintiffT.A.P. seeks compensatory and punitive damages from these Defendants.
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COUNT XV Damages for Fourteenth Amendment Violations: Failure to Protect PlaintiffB.J.
Defendant Birmingham Board ofEducation and Defendant Witherspoon, in his official and individual capacity
188. By failing to protect PlaintiffBJ. from the illegal and unreasonable actions of Defendants Roper and Benson, Defendants BOE and Witherspoon have violated PlaintiffB.J. 's clearly established rights under the Fourteenth Amendment. Defendants BOE and Witherspoon have created a custodial environmental within the BCS system for all students subject to the compulsory school attendance law. That custodial environment imposes a constitutional duty on Defendants BOE and Witherspoon to ensure BJ.'s safety and well-being while he attends BCS. Defendants BOE and Witherspoon breached that duty by authorizing and approving the use of chemical weapons against BCS students, and by failing to take action to protect PlaintiffBJ. and other students against the use of chemical weapons. Accordingly, Defendants BOEand Witherspoon have violated PlaintiffBJ.'s rights in violation of the Fourteenth Amendment to the U.S. Constitution. 189. By the forgoing actions and inactions, these Defendants are liable pursuant to 42 U.S.C. § 1983 under the Fourteenth Amendment of the United States Constitution for failing to protect B.J. from Defendant Roper's unlawful and illegal policies, practices, and customs. Because Defendants BOE and Witherspoon breached their duty to protect B.J. as required by the Fourteenth Amendment and acted in clear violation of well-established law, of which a reasonable person would have been aware, they are not entitled to qualified immunity. 190. Plaintiff BJ. seeks compensatory and punitive damages from these Defendants.
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COUNT XVI Damages for Conspiracy to Violate the Civil Rights of Plaintiff J.W.
under the Fourth and Fourteenth Amendments Defendant Roper, Defendant Birmingham Board ofEducation, and Defendant Witherspoon,
in their official and individual capacities 191. Defendants Roper, BOE, and Witherspoon have engaged in a conspiracy to violate Plaintiff I W.'s civil rights under the Fourth and Fourteenth Amendments of the U.S. Constitution. As set forth above, Defendants Roper and Nevitt have violated IW.'s Fourth and Fourteenth Amendment rights by sUbjecting him to unreasonable and excessive force, and an unlawful seizure in violation of the Fourth and Fourteenth Amendments of the U.S. Constitution. 192. Defendants Roper, BOE, and Witherspoon willfully and maliciously conspired among themselves to deprive J.W. of his rights under the Fourth and Fourteenth Amendments to the U.S. Constitution. As provided above, Defendant BOE and Defendant Witherspoon, in his official capacity, invited BPD, represented in this action by Defendant Roper, into BCS to administer school discipline and conduct school arrests pursuant to unconstitutional policies, customs, and practices. Pursuant to this agreement, Defendants BOE and Witherspoon effectively authorized Defendant Nevitt's illegal deployment of chemical spray against J.W. 193. By the forgoing actions and inactions, Defendants Roper, BOE, and Witherspoon are liable pursuant to 42 U.S.C. § 1983 for conspiring to violate Plaintiff IW.'s rights under the Fourth and Fourteenth Amendments of the United States Constitution. Because Defendants Roper, BOE, and Witherspoon conspired to subject I W. to unlawful seizures and excessive force, and acted in clear violation of well-established law, of which a reasonable person would have been aware, they are not entitled to qualified immunity. 194. J.W. seeks compensatory damages from these Defendants.
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COUNT XVII Damages for Conspiracy to Violate the Civil Rights of Plaintiff G.S.
nnder the Fourth and Fourteenth Amendments Defendant Roper, Defendant Birmingham Board ofEducation, and Defendant Witherspoon,
in their offiCial and individual capacities 195. Defendants Roper, BOE, and Witherspoon have engaged in a conspiracy to violate Plaintiff G.S.'s civil rights under the Fourth and Fourteenth Amendments of the U.S. Constitution. As set forth above, Defendants Roper and Clark have violated Plaintiff G.S.'s Fourth and Fourteenth Amendment rights by subjecting her to umeasonable and excessive force, and an unlawful seizure in violation of the Fourth and Fourteenth Amendments of the U.S. Constitution. 196. Defendants Roper, BOE, and Witherspoon willfully and maliciously conspired among themselves to deprive Plaintiff G.S. of her rights under the Fourth and Fourteenth Amendments to the U.S. Constitution. As provided above, Defendant BOE and Defendant Witherspoon, in his official capacity, invited BPD, represented in this action by Defendant Roper, into BCS to administer school discipline and conduct school arrests pursuant to unconstitutional policies, customs, and practices. Pursuant to this agreement, Defendants BOE and Witherspoon effectively authorized Defendant Clark's illegal deployment of chemical spray against Plaintiff G.S. 197. By the forgoing actions and inactions, Defendants Roper, BOE, and Witherspoon are liable pursuant to 42 U.S.C. § 1983 for conspiring to violate Plaintiff G.S.'s rights under the Fourth and Fourteenth Amendments of the United States Constitution. Because Defendants Roper, BOE, and Witherspoon conspired to subject G.S. to unlawful seizures and excessive force, and acted in clear violation of well-established law, of which a reasonable person would have been aware, they are not entitled to qualified immunity.
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198. PlaintiffG.S. seeks compensatory damages from these Defendants. COUNT XVIII
Damages for Conspiracy to Violate the Civil Rights of Plaintiff P.S. under the Fonrth and Fourteenth Amendments
Defendant Roper, Defendant Birmingham Board ofEducation, and Defendant Witherspoon, in their official and individual capacities
199. Defendants Roper, BOE, and Witherspoon have engaged in a conspiracy to violate P.S.'s civil rights under the Fourth and Fourteenth Amendments of the U.S. Constitution. As set forth above, Defendants Roper and Clark have violated P.S.'s Fourth and Fourteenth Amendment rights by subjecting her to unreasonable and excessive force, and an unlawful seizure in violation of the Fourth and Fourteenth Amendments of the U.S. Constitution. 200. Defendants Roper, BOE, and Witherspoon willfully and maliciously conspired among themselves to deprive P.S. of her rights under the Fourth and Fourteenth Amendments to the U.S. Constitution. As provided above, Defendant BOE and Defendant Witherspoon, in his official capacity, invited BPD, represented in this action by Defendant Roper, into BCS to administer school discipline and conduct school arrests pursuant to unconstitutional policies, customs, and practices. Pursuant to this agreement, Defendants BOE and Witherspoon effectively authorized Defendant Clark's illegal deployment of chemical spray against P.S. 201. By the forgoing actions and inactions, Defendants Roper, BOE, and Witherspoon are liable pursuant to 42 U.S.C. § 1983 for conspiring to violate PlaintiffP.S.'s rights under the Fourth and Fourteenth Amendments of the United States Constitution. Because Defendants Roper, BOE, and Witherspoon conspired to subject P.S. to unlawful seizures and excessive force, and acted in clear violation of well-established law, of which a reasonable person would have been aware, they are not entitled to qualified immunity. 202. P.S. seeks compensatory damages from these Defendants.
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COUNT XIX Damages for Conspiracy to Violate the Civil Rights of Plaintiff T.L.P.
under the Fourth and Fourteenth Amendments Defendant Roper, Defendant Birmingham Board ofEducation, and Defendant Witherspoon,
in their official and individual capacities 203. Defendants Roper, BOE, and Witherspoon have engaged in a conspiracy to violate T.L.P.'s civil rights under the Fourth and Fourteenth Amendments of the U.S. Constitution. As set forth above, Defendants Roper and Nevitt have violated T.L.P.'s Fourth and Fourteenth Amendment rights by subjecting her to unreasonable and excessive force, and an unlawful seizure in violation of the Fourth and Fourteenth Amendments of the U.S. Constitution. 204. Defendants Roper, BOE, and Witherspoon willfully and maliciously conspired among themselves to deprive T.L.P. of her rights under the Fourth and Fourteenth Amendments to the U.S. Constitution. As provided above, Defendant BOE and Defendant Witherspoon, in his official capacity, invited BPD, represented in this action by Defendant Roper, into BCS to administer school discipline and conduct school arrests pursuant to unconstitutional policies, customs, and practices. Pursuant to this agreement, Defendants BOE and Witherspoon effectively authorized Defendant Nevitt's illegal deployment of chemical spray against T.L.P. 205. By the forgoing actions and inactions, Defendants Roper, BOE, and Witherspoon are liable pursuant to 42 U.s.C. § 1983 for conspiring to violate PlaintiffT.L.P.'s rights under the Fourth and Fourteenth Amendments of the United States Constitution. Because Defendants Roper, BOE, and Witherspoon conspired to subject T.L.P. to unlawful seizures and excessive force, and acted in clear violation of well-established law, of which a reasonable person would have been aware, they are not entitled to qualified immunity. 206. T.L.P. seeks compensatory damages from these Defendants.
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COUNT XX Damages for Conspiracy to Violate the Civil Rights of Plaintiff T.A.P.
under the Fourth and Fourteenth Amendments Defendant Roper, Defendant Birmingham Board ofEducation, and D~fendant Witherspoon,
in their official and individual capacities 207. Defendants Roper, BOE, and Witherspoon have engaged in a conspiracy to violate PlaintiffT.AP.'s civil rights under the Fourth and Fourteenth Amendments of the U.S. Constitution. As set forth above, Defendants Roper and Tarrant have violated PlaintiffT.AP.'s Fourth and Fourteenth Amendment rights by subjecting her to unreasonable and excessive force, and an unlawful seizure in violation of the Fourth and Fourteenth Amendments of the U.S. Constitution. 208. Defendants Roper, BOE, and Witherspoon willfully and maliciously conspired among themselves to deprive T.AP. of her rights under the Fourth and Fourteenth Amendments to the U.S. Constitution. As provided above, Defendant BOE and Defendant Witherspoon, in his official capacity, invited BPD, represented in this action by Defendant Roper, into BCS to administer school discipline and conduct school arrests pursuant to unconstitutional policies, customs, and practices. Pursuant to this agreement, Defendants BOE and Witherspoon effectively authorized Defendant Tarrant's illegal deployment of chemical spray against T.AP. 209. By the forgoing actions and inactions, Defendants Roper, BOE, and Witherspoon are liable pursuant to 42 U.S.c. § 1983 for conspiring to violate PlaintiffT.AP.'s rights under the Fourth and Fourteenth Amendment of the United States Constitution. Because Defendants Roper, BOE, and Witherspoon conspired to subject T.AP. to unlawful seizures and excessive force, and acted in clear violation of well-established law, of which a reasonable person would have been aware, they are not entitled to qualified immunity. 210. T.AP. seeks compensatory damages from these Defendants.
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COUNT XXI Damages for Conspiracy to Violate the Civil Rights of Plaintiff B.J.
nnder the Fonrth and Fourteenth Amendments Defendant Roper, Defendant Birmingham Board ofEducation, and Defendant Witherspoon,
in their official and individual capacities 211. Defendants Roper, BOB, and Witherspoon have engaged in a conspiracy to violate PlaintiffBJ.'s civil rights under the Fourth and Fourteenth Amendments of the U.S. Constitution. As set forth above, Defendants Roper and Benson have violated BJ.'s Fourth and Fourteenth Amendment rights by SUbjecting him to unreasonable and excessive force, and an unlawful sei=e in violation ofthe Fourth and Fourteenth Amendments of the U.S. Constitution. 212. Defendants Roper, BOB, and Witherspoon willfully and maliciously conspired among themselves to deprive B..T. of his rights under the Fourth and Fourteenth Amendments to the U.S. Constitution. As provided above, Defendant BOB and Defendant Witherspoon, in his official capacity, invited BPD, represented in this action by Defendant Roper, into BCS to administer school discipline and conduct school arrests pursuant to unconstitutional policies, customs, and practices. Pursuant to this agreement, Defendants BOB and Witherspoon effectively authorized Defendant Benson's illegal deployment of chemical spray against B.J. 213. By the forgoing actions and inactions, Defendants Roper, BOB, and Witherspoon are liable pursuant to 42 U.S.C. § 1983 for conspiring to violate PlaintiffB.J.'s rights under the Fourth and Fourteenth Amendments of the United States Constitution. Because Defendants Roper, BOB, and Witherspoon conspired to subject BJ. to unlawful seizures and excessive force, and acted in clear violation of well-established law, of which a reasonable person would have been aware, they are not entitled to qualified immunity. 214. BJ. seeks compensatory damages from these Defendants.
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COUNT XXII Damages for Excessive Corporal Punishment inflicted upon Plaintiff T.A.P.,
in Violation of the Fourteenth Amendment Defendant Moss in his individual capacity
215. By illegally assaulting Plaintiff TAP. in direct violation ofBCS policy prohibiting corporal punishment, Defendant Moss violated PlaintiffT.A.P.'s right to be free fTom excessive corporal punishment as provided by the Fourteenth Amendment of the United States Constitution. Defendant Moss unreasonably and unjustifiably assaulted PlaintiffT.A.P., intentionally caused her to fall to the ground, and planted his foot in her back when she posed no threat to anyone. Defendant Moss' actions were obviously excessive and presented a reasonably foreseeable risk of serious bodily injury to PlaintiffT.A.P. Accordingly, Defendant Moss' use of corporal punishment amounts to arbitrary and egregious conduct in violation of the Fourteenth Amendment to the United States Constitution. 216. PlaintiffT.A.P. seeks compensatory and punitive damages.
Individual Claims for Damages under Alabama Law COUNT XXIII
Damages for Assault and Battery on Plaintiff G.S., in Violation of Alabama Law Defendant Roper and Defendant Clark, in their official and individual capacities
217. By twice deploying chemical spray against Plaintiff O.S. as a means of intimidation, Defendant Clark committed the tort of assault and battery against O.S., in violation of Alabama law. Defendant Clark intentionally and unlawfully twice sprayed O.S. in the face with a dangerous chemical weapon, without warning, without justification, and without cause. Defendant Clark's actions were intended to physically harm O.S. and caused her to fear imminent bodily harm.
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218. Defendants Roper and Clark are liable pursuant to Alabanla law for sanctioning, enforcing, and implementing policies, customs, and practices that subject BCS students, including G.S., to bodily harm in violation of Alabama law. Defendants Clark and Roperacted willfully, recklessly, maliciously, and with a callous disregard or indifference to G.S. 's rights. Because Defendants Clark and Roper acted willfnlly and maliciously, they are not entitled to discretionary function immunity provided by Alabama law. 219. PlaintiffG.S. seeks compensatory damages from these Defendants.
COUNT XXIV Damages for Assault and Battery on PlaintiffT.L.P., in Violation of Alabama Law
Defendant Roper and Defendant Nevitt, in their official and individual capacities 220. By deploying chemical spray against T.L.P. as a means of intimidation, Defendant Nevitt committed the tort of assault and battery against T.L.P., in violation of Alabama law. Defendant Nevitt intentionally and unlawfully sprayed B.l with a dangerous chemical weapon, without warning, while she was restrained by an adult man. Defendant Nevitt's actions were intended to physically harm T.L.P. and caused her to fear imminent bodily harm. 221. Defendants Roper and Nevitt are liable pursuant to Alabama law for sanctioning, enforcing, and implementing policies, customs, and practices that subject BCS students, including T.L.P., to bodily hann in violation of Alabama law. Defendants Nevitt and Roper acted willfully, recklessly, maliciously, and with a callous disregard or indifference to T.L.P.'s rights. Because Defendants Nevitt and Roper acted acted willfully and maliciously, they are not entitled to discretionary function immunity provided by Alabama law. 222. PlaintiffT.L.P. seeks compensatory danlages from these Defendants.
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COUNT XXV Damages for Assault and Battery on PlaintiffT.A.P., in Violation of Alabama Law Defendant Roper, Defendant Moss, and Defendant Tarrant, in their official and individual
capacities 223. By deploying chemical spray against PlaintiffT.A.P. as a means of intimidation, Defendant Tarrant committed the tort of assault and battery against T.A.P., in violation of Alabama law. Defendant Tarrant intentionally and unlawfully sprayed T.A.P. with a dangerous chemical weapon, without warning, and while she was restrained by five grown men. Defendant Tarrant's actions were intended to physically harm PlaintiffT.A.P. and caused her to fear imminent bodily harm. 224. Defendants Roper and Tarrant are liable pursuant to Alabama law for sanctioning, enforcing, and implementing policies, customs, and practices that subject BCS students, including T.A.P., to bodily harm in violation of Alabama law. Defendants Tarrant and Roper acted willfully, recklessly, maliciously, and with a callous disregard or indifference to T.A.P.'s rights. Because Defendants Tarrant and Roper acted willfully and maliciously, they are not entitled to discretionary function immunity provided by Alabama law. 225. PlaintiffT.A.P. seeks compensatory damages from these Defendants.
COUNT XXVI Damages for Assault and Battery on Plaintiff B.J., in Violation of Alabama Law Defendant Roper and Defendant Benson, in their official and individual capacities 226. By deploying chemical spray against B.J. as a means of intimidation and kicking him to the ground grounding her foot in his back, Defendant Benson committed assault and battery against B.J., in violation of Alabama law. Defendant Benson intentionally and unlawfully sprayed B.J. with a dangerous chemical weapon without warning or cause. Defendant Benson
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also kicked BJ. to the ground after deploying the chemical in BJ.'s face. Her actions were intended to physically harm B.l and caused him to fear imminent bodily harm. 227. Defendants Roper and Benson are liable pursuant to Alabama law for sanctioning, enforcing, and implementing policies, customs, and practices that subject BCS students, including B.l, to bodily harm in violation of Alabama law. Defendants Benson and Roper acted willfully, recklessly, maliciously, and with a callous disregard or indifference to BJ.'s rights. Because Defendants Benson and Roper acted willfully and maliciously, they are not entitled to discretionary function immunity provided by Alabama law. 228. PlaintiffBJ. seeks compensatory damages from these Defendants.
COUNTxxvn
Damages for the Tort of Outrage against Plaintiff G.S., in Violation of Alabama Law Defendant Roper and Defendant Clark, in their official and individual capacities
229. By intentionally deploying chemical spray against O.S. as a means of intimidation and fear, Defendant Clark engaged in extreme and outrageous conduct in violation of Alabama law. Without identiJYing himself as a police officer, Defendant Clark grabbed a young girl from behind, then sprayed a blast of painful chemicals in her face when she tried to defend herself. After Plaintiff O.S. had already been incapacitated from the first blast of chemical spray, Defendant Clark proceeded to intentionally and recklessly spray her for a second time. Defendant Clark's actions caused O.S. physical and emotional distress that no reasonable child could be expected to eudure. 230. Defendants Roper and Clark are liable pursuant to Alabama law for sanctioning, enforcing, and implementing policies, customs, and practices that subject BCS students, including Plaintiff O.S., to extreme and intentional emotional distress in violation of Alabama law. Defendants Clark and Roper acted willfully, maliciously, and with a callous disregard or
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indifference to PlaintiffO.S. 's rights. Because Defendants Clark and Roper acted willfully and maliciously, they are not entitled to discretionary function innnunity provided by Alabama law. 231. Plaintiff O.S. seeks compensatory damages from these Defendants.
COUNT XXVIII Damages for the Tort of Outrage against PlaintiffT.L.P., in Violation of Alabama Law
Defendant Roper and Defendant Nevitt, in their official and individual capacities 232. By intentionally deploying chemical spray against T.L.P. as a means of intimidation, Defendant Nevitt engaged in extreme and outrageous conduct in violation of Alabama law. Without first delivering a warning or giving PlaintiffT.L.P. an opportunity to avoid his attack, Defendant Nevitt intentionally and recklessly sprayed a young child in tile face wiill chemical spray, while she was being restrained by an adult man. Defendant Nevitt's actions caused T.L.P. physical and emotional distress that no reasonable child could be expected to endure. 233. Defendants Roper and Nevitt are liable pursuant to Alabama law for sanctioning, enforcing, and implementing policies, customs, and practices that subject BCS students, including T.L.P., to extreme and intentional emotional distress in violation of Alabama law. Defendants Nevitt and Roper acted willfully, maliciously, and with a callous disregard or indifference to T.L.P. 's rights. Because Defendants Nevitt and Roper acted willfully and maliciously, they are not entitled to discretionary function innnunity provided by Alabama law. 234. PlaintiffT.L.P. seeks compensatory damages from illese Defendants.
COUNT XXIX Damages for the Tort of Outrage against PlaintiffT.A.P., in Violation of Alabama Law
Defendant Roper, Defendant Moss, and Defendant Tarrant, in their official and individual capacities
235. By intentionally deploying chemical spray against Plaintiff T.A.P. as a means of pure intimidation and punishment, Defendant Tarrant engaged in extreme and outrageous conduct in
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violation of Alabama law. Defendant Tarrant intentionally and recklessly sprayed a yonng child in the face with a painful chemical, while she was pinned to the gronnd and completely incapacitated by five adult men. Defendant Tarrant's actions caused T.A.P. physical and emotional distress that no reasonable child could be expected to endure. 236. Defendants Roper and Tarrant are liable pursuant to Alabama law for sanctioning, enforcing, and implementing policies, customs, and practices that subject BCS students, including PlaintiffT.A.P., to extreme and intentional emotional distress in violation of Alabama law. Defendants Tarrant and Roper acted willfully, maliciously, and with a callous disregard or indifference to the rights of Plaintiff T.A.P. Because Defendants Tarrant and Roper acted willfully and maliciously, they are not entitled to discretionary function immunity provided by Alabama law. 237. PlaintiffT.A.P. seeks compensatory damages from these Defendants.
COUNT XXX Damages for the Tort of Outrage against Plaintiff B.J., in Violation of Alabama Law
Defendant Roper and Defendant Benson, in their official and individual capacities 238. By intentionally deploying chemical spray against B.1. as a means of intimidation and fear, Defendant Benson engaged in extreme and outrageous conduct in violation of Alabama law. Without even delivering a warning, Defendant Benson intentionally and recklessly sprayed a yonng child in the face with a painful chemical spray, while that child was being restrained by two adult men. Defendant Benson's actions caused B.J. physical and emotional distress that no reasonable child could be expected to endure. 239. Defendants Roper and Benson are liable pursuant to Alabama law for sanctioning, enforcing, and implementing policies, customs, and practices that subject BCS students, including B.1., to extreme and intentional emotional distress in violation of Alabama law.
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Defendants Benson and Roper acted willfully, maliciously, and with a callous disregard or indifference to BJ.'s rights. Because Defendants Benson and Roper acted willfully and maliciously, they are not entitled to discretionary function immunity provided by Alabama law. 240. PlaintiffBJ. seeks compensatory damages from these Defendants.
PRAYER FOR RELIEF WHEREFORE, the Plaintiffs pray that this Court grant the following relief:
1. Assume jurisdiction over this matter; 2. Certify this action as a class action pursuant to Fed. R. Civ. P. 23(a) and (b)(2); 3. Declare that the acts and omissions of all Defendants violate the U.S.
Constitution; 4. Declare tllat the acts and omissions of Defendants Roper, Clark, Nevitt, Tarrant,
Moss, and Benson violate state law; 5. Enter a permanent injunction requiring the Defendants, tlleir agents, employees
and all persons acting in concert with them to cease their unconstitutional and unlawful practices; 6. Award compensatory and punitive damages to the named Plaintiffs for the injuries they sustained as a result of the actions of Defendants BOE, Witherspoon, Roper, Clark, Nevitt, Tarrant, Moss, and Benson; 7. Award the Plaintiffs the costs of this lawsuit and reasonable attorneys' fees and costs under 42 U.S.C. § 1988; and 8. Grant any other relief the Court shall deem just and proper.
60

Case 2:10-cv-03314-AKK Document 1 Filed 12/01/10 Page 61 of 61 Respectfully submitted this 1st day of December, 2010.
Ebony Glenn Howard (admission pending) ASB-7247-076H Mary C. Bauer (admission pending) ASB-1181-R76B
SOUTHERN POVERTY LAW CENTER
400 Washington Avenue Montgomery, Alabama 36104 334-956-8200 334-956-8481 (fax) Attorneys for Plaintiffo
~
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 Case 2:10-cv-03314-AKK Document 188 Filed 09/10/12 Page 1 of 104

FILED
2012 Sep-10 PM 03:30 U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

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; B.D., by and through her next friend, Angela Davis; K.B., by and through her next friend, Maddie West, on behalf of themselves and all similarly situated individuals; T.A.P., by and through her next friend, Barbara Pettaway, individually; and B.J., by and through his next friend, Renee Howard,
Plaintiffs,

CLASS ACTION
CASE NO. CV-10-B3314-S

v.

A.C. ROPER, in his individual and official capacity as Chief of the Birmingham Police Department; OFFICER J. NEVITT, in his individual capacity; OFFICER A. CLARK, in his individual capacity; OFFICER D. HENDERSON, in his individual capacity; OFFICER S. SMITH in his individual capacity; ASSISTANT PRINCIPAL ANTHONY MOSS, in his individual capacity; OFFICER R. TARRANT, in his individual capacity; OFFICER M. BENSON, in her individual capacity; BIRMINHAM BOARD OF EDUCATION,

Defendants.

CORRECTED THIRD AMENDED COMPLAINT 1. This is a civil rights action filed pursuant to 42 U.S.C. § 1983 to challenge the written and unwritten policies, practices, and customs of the Birmingham

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Police Department (“BPD”) regarding the use of mace against children in the Birmingham City Schools (“BCS”) and to protect the Fourth and Fourteenth Amendment rights of these children. Plaintiffs are BCS students who have been brutalized with chemical weapons and other excessive force while attempting to obtain an education. Defendants Birmingham Board of Education1 and Chief A.C. Roper, acting as Chief of Police for BPD, have created a police state within the City’s public high schools, stationing police officers known as School Resource Officers (“SRO”) in each school, arming them with chemical weapons, and authorizing them to use those weapons to enforce basic school discipline. Further, Defendant Roper has not provided SROs with any training on the use of chemical agents in school settings or on children. 2. Teachers, school administrators, and law enforcement operate in close concert with one another, with school personnel frequently calling upon SROs to forcefully intervene in minor incidents of childish misbehavior that schools would typically handle as internal matters without resorting to law enforcement. Instead of de-escalating these situations, SRO involvement often has the opposite effect.
1 The Court dismissed all claims against the Birmingham Board of Education in its July 20, 2011 Order partially granting the Motion to Dismiss of Defendants Birmingham Board of Education (Docs. 48, 49). Plaintiffs reiterate their request for Declaratory and Injunctive Relief to Protect Plaintiffs’ Substantive Due Process Rights to Personal Security under the Fourteenth Amendment in the Third Amended Complaint to preserve Plaintiffs’ right to address this issue on
appeal.
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Officers are quick to resort to pepper spray (a/k/a mace or Freeze +P).2 School personnel not only watch but sometimes even celebrate when schoolchildren are maced. 3. As a result of the Defendants’ conduct, all of which is authorized by BPD policy, practices, and customs, the Plaintiffs have suffered severe physical and psychological harm. The physical effects of pepper spray are serious and can be life-threatening. Among the many physical effects is immediate inflammation and swelling of the throat, a reflexive reaction that restricts the size of the airway and limits the amount of oxygen entering the lungs, creating an especially dangerous situation for children with asthma. Physical injuries are not the only negative consequences that result from the use of pepper spray in Birmingham high schools. As a result of BPD’s unconstitutional policy, practices, and customs, the Plaintiffs and countless other BCS students have been conditioned to fear and distrust school and law enforcement officials. Plaintiffs’ attachment to school has been undermined (one has even dropped out) and all have been robbed of the sense of security and safety that children should experience while attending schools. Mace is used so frequently and so indiscriminately in Birmingham’s public high schools
2 Mace is the trademarked name for a line of defense products that include pepper spray. Although the original Mace product differs in chemical composition from pepper spray, the two terms are frequently used interchangeably to refer to chemical weapons that contain pepper spray. Following popular practice, this complaint will also use both terms to refer to Freeze +P chemical spray.
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that each Class Representative – and all BCS students – faces a real and substantial risk of future and repeated injury. 4. Accordingly, Plaintiffs J.W., G.S., P.S., T.L.P, B.D., and K.B. bring this action on behalf of a class composed of all current and future students who are or will be enrolled in any high school in the Birmingham City School system – all of whom face, and will continue to face, a real and immediate risk of repeated injury due to Defendants’ unconstitutional policy, practices, and customs. On behalf of the class, Plaintiffs seek declaratory and injunctive relief to vindicate their rights, to protect members of the class, and to compel Defendants to immediately abandon the use of chemical and other weapons against schoolchildren and revise their unconstitutional policies. In addition to the class claims, Plaintiffs J.W., G.S., P.S., T.L.P., B.D., K.B., T.A.P., and B.J. also bring individual claims for damages arising from violations of their rights under the Fourth and Fourteenth Amendments to the United States Constitution, and for the torts of assault and battery and outrage.
PARTIES Named Plaintiffs/Class Representatives 5. Plaintiff J.W. is a 16-year-old boy residing in Birmingham, Alabama. He is currently enrolled at Woodlawn High School, a school operated by the Birmingham City Schools (“BCS”). He brings this action by and through his
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mother and legal guardian, Tammy Williams. At the time of the incidents described below in paragraphs 84 through 90, he was enrolled as a 9th grader at Woodlawn High School and was subject to the Alabama compulsory school attendance law. Ala. Code § 16-28-3. 6. Plaintiff G.S. is an 18-year-old girl residing in Birmingham, Alabama. She is currently enrolled at Huffman High School, a school operated by BCS. At the time of the incident described below in paragraphs 91 through 108, she was enrolled as an 11th grader at Huffman High School and was subject to the Alabama compulsory school attendance law. Ala. Code § 16-28-3. 7. Plaintiff P.S. is a 16-year-old girl residing in Birmingham, Alabama. She is currently enrolled at Huffman High School, a school operated by BCS. She brings this action by and through her mother and legal guardian, LaTonya Stearnes. At the time of the incident described below in paragraphs 91 through 108, she was enrolled as a 9th grader at Huffman High School and was subject to the Alabama compulsory school attendance law. Ala. Code § 16-28-3. 8. Plaintiff T.L.P. is a 16-year-old girl residing in Birmingham, Alabama. She is currently enrolled at Woodlawn High School, a school operated by BCS. She brings this action by and through her mother and legal guardian, Tarra Pritchett. At the time of the incident described below in paragraphs 109 through 118, she
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was enrolled as a 10th grader at Woodlawn High School and was subject to the Alabama compulsory school attendance law. Ala. Code § 16-28-3 9. Plaintiff B.D. is a 17-year-old girl residing in Birmingham, Alabama. She is currently enrolled at Woodlawn High school, a school operated by BCS. She brings this action by and through her mother and legal guardian, Angela Davis. At the time of the incidents described below in paragraphs 119 through 140, she was enrolled as a 12th grader at Woodlawn High School and was subject to the Alabama compulsory school attendance law. Ala. Code § 16-28-3 10. Plaintiff K.B. is a 17-year-old girl residing in Birmingham, Alabama. She is currently enrolled at Riggins Alternative High School, a school operated by BCS. She brings this action by and through her aunt and legal guardian, Maddie West. At the time of the incidents described below in paragraphs 141 through 152, she was enrolled as a 10th grader at Woodlawn High School and was subject to the Alabama compulsory school attendance law. Ala. Code § 16-28-3.
Individual Plaintiffs 11. Plaintiff T.A.P. is a 19-year-old girl residing in Birmingham, Alabama. At the time of the incident described below in paragraphs 153 through167, she was enrolled at George Washington Carver High School, a school operated by BCS, and was subject to the Alabama compulsory school attendance law. Ala. Code § 16-28-3. Plaintiff T.A.P. seeks damages only.
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12. Plaintiff B.J. is a 16-year-old boy who was enrolled as a 10th grader at P.D. Jackson-Olin High School, a school operated by BCS, at the time of the incident described below in paragraphs 168 through 181. At all relevant times, Plaintiff B.J was subject to the Alabama compulsory school attendance law. Ala. Code § 1628-3. He brings this action by and through his mother and legal guardian, Renee Howard. Plaintiff B.J. seeks damages only.
Defendants 13. Defendant A.C. Roper is the Chief of the Birmingham Police Department (“BPD”), a law enforcement agency created by the Birmingham City Council. BPD is “charged with the preservation of the peace and order of the city, the protection of all persons and property within the city, and the enforcement of all criminal ordinances and criminal laws of the city and the state.” General Code of the City of Birmingham, Public Safety and Protection, Title 9, Ch. 1: Police Department. Under law, Defendant Roper is required to “direct, control and discipline all officers and members of the department.” Id. He is named as a defendant to this action in his official and individual capacities. 14. Defendant Officer J. Nevitt was a BPD employee assigned to the Special Victims Division, Youth Services Unit, as an SRO during the 2009-2010 school year. He is named as a defendant to this action in his individual capacity.
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15. Defendant Officer A. Clark was a BPD employee assigned to the Special Victims Division, Youth Services Unit, as an SRO during the 2009-2010 school year. He is named as a defendant to this action in his individual capacity. 16. Defendant Officer R. Tarrant was a BPD employee assigned to the Special Victims Division, Youth Services Unit, as an SRO during the 2009-2010 school year. He is named as a defendant to this action in his individual capacity. 17. Defendant Officer D. Henderson was a BPD employee assigned to the Special Victims Division, Youth Services Unit, as an SRO during the 2010-11 school year. He is named as a defendant to this action in his individual capacity. 18. Defendant Officer S. Smith was a BPD employee assigned to the Special Victims Division, Youth Services Unit, as an SRO during the 2010-11 school year. He is named as a defendant to this action in his individual capacity. 19. Defendant Anthony Moss is a BCS employee working at Carver High School. He is named as a defendant to this action in his individual capacity. 20. Defendant Officer M. Benson is a BPD employee assigned to the Special Victims Division, Youth Services Unit, as an SRO during the 2010-11 school year. She is named as a defendant to this action in her individual capacity. 21. Defendant Birmingham Board of Education (“BOE”) is a nine-member, elected legal body “vested with all the powers necessary or proper for the administration and management of [the Birmingham City Schools].” Ala. Code §
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16-11-9. BOE is responsible for supervising the schools in the district by establishing and enacting guiding policies. Birmingham Board of Education, Policy Manual 2009. Individual BOE members are required to “be familiar with . . . [the] regulations of [BCS] . . . , to visit schools in the school district for the purpose of assessing the learning climate and accomplishment of educational goals . . . [, and] to refer complaints to the superintendent.” Birmingham Board of Education, Policy Manual 2009.
JURISDICTION AND VENUE 22. The federal claims in this action arise under the Fourth and Fourteenth Amendments to the United States Constitution and 42 U.S.C. § 1983. Jurisdiction is invoked pursuant to 28 U.S.C. § 1331 and § 1343(a). 23. This Court has jurisdiction under 28 U.S.C. § 1367 over the Plaintiffs’ state law claims, as they are so related to the federal claims in this action that they form a part of the same case or controversy under the Constitution and the laws of the United States. 24. Venue is proper under 28 U.S.C. § 1391(b)(2) because a “substantial part of the events or omissions giving rise to the claim[s] occurred” in this district.
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CLASS ACTION ALLEGATIONS 25. Plaintiffs J.W., G.S., P.S., T.L.P., B.D., and K.B. (collectively “Class Representatives”) bring this suit on their own behalf and on behalf of a class consisting of all current and future BCS high school students. 26. The class is so numerous that joinder of all members is impractical. Fed. R. Civ. P. 23(a)(1). Approximately 8,000 students are currently enrolled in Birmingham City high schools. The class also includes future members whose names and overall number cannot be determined at this time. Fed. R. Civ. P. 23(a)(1). 27. There are questions of law and fact common to all class members, including, but not limited to, the Plaintiffs’ challenge to the constitutionality of BPD’s policies, practices, and customs concerning the use of chemical weapons. Other common legal issues include the reasonableness of using mace against children who pose no public safety risk. Common factual issues include the severe health risks posed by the deployment of mace against schoolchildren, particularly in a closed environment and with respect to a population with a higher than average incidence of asthma. Fed. R. Civ. P. 23(a)(2). 28. Because the policies, practices, and customs challenged in this action apply with equal force to the Class Representatives and the other members of the class,
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the claims of the Class Representatives are typical of the class in general. Fed. R. Civ. P. 23(a)(3). 29. The Class Representatives will fairly and adequately protect the interests of the class. Each possesses a strong personal interest in the subject matter of the lawsuit and the claims raised therein. They are represented by experienced counsel with expertise in class action litigation and litigation involving children. Counsel has the legal knowledge and resources to fairly and adequately represent the interests of all class members in this action. Fed. R. Civ. P. 23(a)(4). 30. The Defendants have acted and refused to act on grounds generally applicable to the class in that the Defendants’ policies and practices of violating students’ constitutional rights affect all class members. Accordingly, final injunctive and declaratory relief is appropriate to the class as a whole. Fed. R. Civ. P. 23(b)(2).
STATEMENT OF FACTS 31. The Birmingham City School (“BCS”) system includes seven high schools, which collectively serve approximately 8,000 students. 32. Under the Alabama compulsory school attendance law, Ala. Code § 16-28-3, children between the ages of seven and seventeen are required to attend school. 33. The Birmingham Board of Education enforces the Alabama compulsory school attendance law through BCS attendance officers. BCS attendance officers
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identify students accused of truancy and refer them to be prosecuted in the Jefferson County Family Court. Defendant Roper authorizes officers of the Birmingham Police Department (“BPD”) to locate and pick up students accused of truancy, and to return them to their respective schools. 34. BPD is a municipal law enforcement agency “charged with the preservation of the peace and order of [Birmingham], the protection of all persons and property of the city, and the enforcement of all criminal ordinances and all criminal laws of the city and state.” General Code of the City of Birmingham, Title 9: Public Safety and Protection, Ch. 1: Police Department. 35. Prior to January 1996, BPD maintained a periodic presence in BCS schools. Charles J. Dean, “Police Patrols in Schools Growing,” Birmingham News, January 10, 1996. However, in January 1996, BPD permanently stationed officers in all but one BCS high schools and several middle schools. Id. On January 9, 1996 BOE provided BPD with retroactive approval to patrol BCS schools. Id. 36. Officers who are stationed in BCS schools are known as School Resource Officers (“SROs”). The SRO Program is part of BPD’s Special Victims Division, Youth Services Unit. SROs frequently become involved – both on their own initiative and at the request of school personnel – in minor incidents in which safety is not an issue.
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37. Each BCS high school is assigned at least two SROs who patrol school property during school hours. SROs are required to report to their assigned school site every day and commence routine job functions, including patrolling school grounds and engaging in school discipline. SROs patrol school grounds and engage in school discipline with the permission of BCS Superintendent Craig Witherspoon and Defendant BOE. 38. As set forth below, all Defendants and school personnel are aware that SROs utilize police practices, such as use of Freeze +P (a pepper spray product) and physical force, while engaging in school discipline. 39. On January 25, 2011, BOE member Edward Maddox insisted during a school board meeting that the use of pepper spray by SROs against students in disciplinary measures is sometimes necessary. He stated that he had served as a teacher in Birmingham schools, and it was sometimes necessary to spray students with mace. Maddox also said that when SROs use mace, innocent children who are in close proximity are sometimes affected – sometimes when simply eating their lunch in the cafeteria. 40. As described in the factual allegations below, a long-standing agreement exists among BPD, BOE, the Superintendent, BCS personnel, and individual SROs that SROs are expected not only to make arrests when they witness students engaged in illegal behavior, but also to respond when school personnel seek their
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assistance in enforcing the BCS Code of Conduct. All Defendants to this action are aware of this agreement. Moreover, all Defendants are further aware that SROs often use abusive and unnecessary force against schoolchildren in the course of their duties, and Defendants Roper and BOE authorize the use of such force. 41. BCS teachers and other school personnel frequently request that SROs handle misbehavior traditionally managed by the school, such as the uttering of expletives or refusals to comply with classroom directives. In effect, SROs have become tools of school personnel who have abdicated their disciplinary authority and responsibilities. This phenomenon was acknowledged publicly by Interim BCS Superintendent Barbara Allen, who noted:
“We put SROs (school resource officers) in there to manage the school and serious crimes. They are there if someone commits a felony or major crime,” said interim Birmingham school Superintendent Barbara Allen. ”But sometimes we have principals who call them to break up a fight. They are busy, and I think it's just easier for them to place the responsibility elsewhere, and that isn't right.” *** “Other school systems aren't arresting kids for small things; they handle it from within,” Allen said. ”We call the police.” She said SROs too often are called upon to handle small fights, disruptive behavior and dress-code violations, such as sagging pants. Marie Leech & Carol Robinson, “Birmingham city schools rely on arrests to keep order,” Birmingham News, March 22, 2009.
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42. Most BCS school arrests are for petty misdemeanors like disorderly conduct or harassment, which are broadly defined offenses that can be used to criminalize a wide range of ordinary teenage behavior. During the 2009-10 school year, 86% of arrests in BCS schools were for minor violations and misdemeanors, while less than 2% involved felonies against persons. 43. As a result of the presence of SROs in BCS schools, Birmingham students are significantly more likely to be arrested than students in neighboring districts who engage in the same conduct. Although BCS educates only 25% of public school children in Jefferson County, BCS was responsible for more than 65% of all school-based complaints filed against students in the Jefferson County Family Court in the 2009-10 school year. 44. On several occasions, Defendant Roper has publicly expressed concerns regarding the criminalization of teenage behavior in the Birmingham City School system. For example, Defendant Roper gave the following comments to the Birmingham News in March 2009:
Roper acknowledges that most of the arrests are for minor violations that should not have involved police. “They have over-relied on our officers, and our officers have responded,” Roper said. “I think the school system should handle minor violations and the SROs should be present and respond when it rises to a criminal level.”
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“Too many of these kids have been criminalized, and that's not the goal,” he said. “The current system is dysfunctional, and that's putting it mildly.” Marie Leech & Carol Robinson, “Birmingham city schools rely on arrests to keep order,” Birmingham News, March 22, 2009. 45. Defendants BOE and Roper purported to respond to excessive law enforcement intervention in the schools with the implementation of the School Offense Protocol – an agreement that governs BCS arrests and referrals to the Jefferson County Family Court. The School Offense Protocol does not contain any provisions that govern the use of chemical agents by SROs against BCS students. Properties and Dangers of the Chemical Weapons used against BCS Students 46. Defendant Roper authorizes and requires BPD officers to carry Freeze +P – a pepper spray product. Freeze +P consist of two chemical agents, Orthochlorobenzalmalonitrile (CS) and Oleoresin Capsicum (OC). The product manufacturer claims that “[t]he strong respiratory effects of OC combined with the severe pain induced by CS magnify each other.” See http://www.aerko.com/Freeze+P.htm. Freeze +P is marketed as “the most intense, incapacitating agent available today.” Id. 47. Exposure to pepper spray products like Freeze +P can temporarily eliminate the protective reflexes in the eyes and throat by poisoning the nerve endings that stimulate these reflexes. The absence of the gag and blink reflexes make the eyes
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and lungs susceptible to injury. The chemical ingredients in Freeze +P are known to cause severe and painful effects, including: (a) temporary and permanent damage to the cornea, (b) conjunctiva of the eye, (c) temporary loss of vision, (d) persistent and debilitating pain and swelling around the eyes, (e) blisters under the eye, (f) chemical injury to the eye, (g) blurred vision and redness in the eye, (h) blistering of the eyelids, (i) blistering and scarring of the eyeball, and (j) corneal abrasion of the eye. 48. Exposure to a pepper spray product such as Freeze +P also has severe respiratory effects. Among the many physical reactions to Freeze +P is an immediate inflammation and swelling in the throat, a reflexive reaction that restricts the size of the airway and limits the amount of oxygen entering the lungs. Pepper spray also causes the affected individual to cough violently, gasp for air, and experience a gagging sensation. Pepper spray exposure also presents the risk of apnea, cyanosis, and respiratory arrest. Inhaling pepper spray may cause acute hypertension, which may increase the risk of stroke or heart attack. 49. Asthmatics exposed to pepper spray are at higher risk for severe and possibly life-threatening asthma attacks. Asthmatics may be hypersensitive to pepper spray because the chemical combination can induce bronchoconstriction – a constriction of the airways causing coughing, wheezing, and shortness of breath.
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50. Asthma is fairly common among children, affecting about nine percent of all children in the general population. 51. The United States Department of Health and Human Services (“HHS”) has reported an especially high prevalence of asthma among African Americans, particularly among African-American children. According to the Office of Minority Health at HHS:
a. In 2006, African Americans were three times more likely to die from asthma-related causes than whites. From 2003 to 2005, the death rate for African-American children was seven times the rate of white children.
b. Generally, African-American children require more treatment for asthma-related incidents than white children: African American children have 260% more emergency room visits and 250% more hospitalizations.
c. African-American children also have a 500% higher death rate due to asthma-related complications compared to white children.
52. African American children comprise approximately 96% of the Birmingham City School system. 53. Applicable safety standards for use of chemical agents, such as mace or pepper spray, warn that directing the chemical directly into the eyes and face increases the risk of injury to the eyes and that the stream from chemical agents should be directed towards the clothing on the chest. 54. The standard of care for individuals affected by pepper spray is to immediately ensure access to a flowing air source (removing them from the
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chemical-filled environment), and to immediately flush the affected areas of the skin with water, especially the eyes if affected by the chemical. In addition, the injured person’s clothing should be immediately removed to prevent continued exposure and contamination. Individuals wearing contact lenses should immediately remove them. 55. The Freeze +P Material Safety Data Sheet is the official document that sets forth the usage guidelines for the product. The Emergency and First Aid Procedure contained in this document sets forth appropriate decontamination and first aid procedures for individuals exposed to Freeze +P. Individuals exposed to Freeze +P should “flush [their] eyes with large quantities of water to speed recovery” and face “wind or forced air source such as fans or air conditioning outlet.” Aerko International, Freeze +P, Material Safety Data Sheet, Prepared June 17, 1991. Individuals sprayed with Freeze +P should “remove contaminated clothing” and “wash affected area[s] with soap and water to avoid transfer to more sensitive areas.” Id. The Material Safety Data Sheet further provides that “persons with preexisting skin disorders may be more susceptible to the affects [sic] of [Freeze +P].” 56. BPD policy on the use of chemical weapons provides some limited guidance on decontamination procedures:
A. Following the use of chemical spray the officer will ensure that the subject receives adequate decontamination as soon as
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practical. The officer should supply immediate medical attention if requested by the subject.
B. Birmingham Fire and Rescue will be called and will determine whether or not the subject needs further medical attention or hospital treatment.
BPD Rules and Regulations, Chemical Spray Subject Restraint: Non-Deadly Use
of Force, No. 113-5, February 10, 2006.
BPD Written Policy on Use of Force and Chemical Restraints
57. BPD’s Use of Force policy, Procedure No. 113-3, was last updated on
February 18, 2008. Under that policy, officers may carry and use Freeze +P
chemical spray during the course of their duties.
58. BPD’s policy on Chemical Spray Subject Restraint: Non-Deadly Use of
Force, Procedure No. 113-5, was last updated on February 10, 2006.
59. BPD’s policy on Chemical Spray Subject Restraint provides, in pertinent
part:
C. The chemical spray may be used in an arrest situation where the weapon’s use offers the possibility of lessening the likelihood of physical injury to the arresting officer, citizens on the scene and/or the suspect.
D. The use of chemical spray is intended solely as a control device to enable the officer to carry out his or her duties in the safest, most efficient and most professional manner with the least chance of injury to either the officer or the suspect.
1. At no time will an officer unnecessarily brandish, or use chemical spray as an intimidation device unless the officer is attempting to prevent further escalation of force.
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2. Chemical spray is not[,] under any circumstances, to be used as punishment or as a coercive tool once an individual is under control and in custody.
3. The chemical spray is not to be used by officers unless they have a reasonable belief that a crime has been committed and that the intended target committed the crime.
E. Any time chemical spray is used for controlling an offender[,] the application of the chemical spray will end when the subject discontinues resistance or aggression.
F. The chemical spray is best employed in one to two second bursts. The spray must be directed to the facial area of the assailant, with the bridge of the nose being the best target area. This weapon is primarily an inflammatory agent, producing the following results.
1. Involuntary closing of the eyes.
2. Swelling of the mucous membranes, which results in shallow breathing ability.
3. Intense burning on sensitive parts of the body.
********
H. It should be kept in mind by all concerned that any actual contact with chemical spray to the face or sensitive skin areas will result in the officer being adversely affected by its properties. Caution must be taken while handcuffing prisoners, placing them in automobiles, etc. If contact is made with the actual substance, the officer shall refrain from touching his face with the contacted area until he can wash that area with warm soapy water.
********
III. AFTER USE PROCEDURES
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A. Following the use of chemical spray the officer will ensure that the subject receives adequate decontamination as soon as practical. The officer should supply immediate medical attention if requested by the subject.
B. Birmingham Fire and Rescue will be called and will determine whether or not the subject needs further medical attention or hospital treatment.
C. Any time an officer uses chemical spray for subject control, the officer will notify the on-duty supervisor and complete a Use of Force Information and Statement Report.
60. The BPD’s Use of Force policy defines control as “[t]he force an officer uses to influence or neutralize the unlawful, physical actions of a subject under arrest.” 61. The expansive language contained in paragraph “C” of BPD’s policy on Chemical Spray Subject Restraint: Non-Deadly Use of Force permits and encourages BPD officers, including SROs, to recklessly deploy chemical weapons against individuals, including children, in inappropriate situations and allows officers to respond disproportionately to student misbehavior. In effect, it authorizes and directs BPD officers, including SROs, to deploy chemical agents in an unreasonable and unconstitutional manner. 62. As described below in paragraphs 84 through 181, the unfettered use of chemical weapons against BCS students, as permitted by written BPD policy, has resulted in the overuse of mace in BCS and in violations of the Fourth and Fourteenth Amendment rights of the named Plaintiffs and other BCS students.
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63. Paragraph “F” of BPD’s policy on Chemical Spray Subject Restraint: NonDeadly Use of Force unreasonably and unconstitutionally instructs BPD officers, including SROs, to administer chemical spray directly into the face of individuals, including children. As provided above, applicable deployment standards for chemical sprays warn against administering pepper spray directly into the face. 64. As described below in paragraphs 84 through 181, BPD’s policy regarding pepper spray deployment has resulted in injuries to the named Plaintiffs and other affected BCS students, and violates their Fourth and Fourteenth Amendment rights. 65. As described in plaintiff-specific facts sections below, the Defendant Officers’ conduct was consistent with BPD policy, practices, and/or customs. In his capacity as Chief of Police, and as the official responsible for the training and supervision of BPD officers and their use of force, Defendant Roper is aware of BPD policy, customs, and practices concerning the use of Freeze +P on BCS students.
BPD Practices and Customs on Physical Force and Chemical Restraints 66. As described below, BPD, through Defendant Roper, has adopted and encouraged widespread and persistent unconstitutional practices and customs that permit and encourage SROs to use chemical weapons against BCS students in inappropriate situations and in an abusive and excessive manner:
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a. SROs use Freeze +P against BCS students as a first resort, and without issuing a warning to students.
b. SROs use Freeze +P against BCS students who pose no risk of injury to other students, to school staff, to SROs, or to themselves.
c. SROs use Freeze +P against BCS students when they are restrained. d. SROs use Freeze +P against BCS students as a form of punishment. e. Without regard to others in close proximity to the intended target,
SROs deploy Freeze +P in closed school spaces without appropriate avenues of ventilation – injuring students not accused of any wrongdoing. f. SROs use Freeze +P as a way to intimidate and control peaceable groups of students when the groups do not immediately disperse upon order. In some cases, SROs begin spraying students immediately without giving them time to disperse. 67. As provided in the plaintiff-specific facts sections below, these practices and customs have resulted in injury to the named Plaintiffs and other BCS students and violated their Fourth and Fourteenth Amendment rights under the U.S. Constitution. 68. All Defendants are aware that SROs routinely use Freeze +P against students in the course of school discipline and arrests, even when the targeted child poses
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no risk of injury to other children, to the officer, to school personnel, or to herself. School leadership at every BCS high school – including, but not limited to, Jackson-Olin, Woodlawn, Huffman, and Carver High Schools – are aware that SROs use Freeze +P on students. See paragraphs 84 through 90, 91 through 108, 109 through 118, 119 through 140, 141 through 152, 153 through 167, and 168 through 181. 69. Under BPD policy, any officer who uses a chemical weapon must notify the on-duty supervisor and complete a Use of Force Information and Statement Report. These reports are subject to regular review by high-level BPD officials to ensure conformity with departmental policy, practice, and custom. Any use of force must also be noted in the officer’s report of the incident. Accordingly, Defendant Roper is aware of the abusive practices described above given that they are reflected in the officers’ Use of Force Information and Statement Reports and officer reports. 70. The use of chemical weapons against students in the Birmingham schools is so widespread and persistent that the use of pepper spray has been the subject of multiple media accounts, including an August 2008 report by Alabama NBC Channel 13 and a front-page article in the Birmingham News on March 22, 2009. A 2009 article in the Birmingham News entitled “City Schools Rely on Arrests to Keep Order” highlighted several incidents involving the inappropriate use of mace on BCS high school students by SROs. Specifically, the article reported that a 16-
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year-old BCS high school student was sprayed with mace and handcuffed for yelling a curse word, and that a 17-year-old BCS high school student was sprayed with mace and arrested for being “loud and boisterous.” Defendant Roper was quoted extensively in the article, and almost certainly read it. Despite his awareness that SROs routinely use Freeze +P against schoolchildren who pose no threat to officers, to BCS staff, to other children, or to themselves, Defendant Roper has failed to take action to prohibit – or even limit – the use of Freeze +P on schoolchildren. 71. In each of the incidents involving pepper spray described below, the Defendant Officers’ conduct was consistent with abusive BPD practices and/or customs for the use of chemical weapons in BCS. In his capacity as Chief of Police, Defendant Roper is aware of BPD policy, customs, and practices concerning the use of Freeze +P on BCS students. 72. Due to the media coverage described above, as well as numerous complaints from parents, reports from BCS staff, direct observation, and a variety of other sources, BOE and the BCS Superintendent are also well aware of the policy, practices, and customs described above. 73. In addition, the Southern Poverty Law Center (“SPLC”) submitted a Request for Access to Information to the Family Court of Jefferson County, Alabama on July 27, 2010. The Request sought copies of all police reports submitted to the
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Jefferson County Family Court that reflected the use of chemical spray against
BCS students. The Request included a significant amount of medical evidence
documenting the dangers of chemical spray.
74. Upon information and belief, an electronic copy of SPLC’s Request,
including the supporting documentation, was provided to Superintendent
Witherspoon and Defendants BOE and Roper, and the Birmingham City
Attorney’s Office within a week.
75. On or about September 16, 2010, BOE and Superintendent Witherspoon
were served with a copy of an Order by the Honorable Scott Vowell, Presiding
Judge of the Jefferson County Circuit Court. That Order provided, in pertinent
part, the following:
1. A copy of this Order shall be served by the Clerk of the Family Court [by] mailing a copy to the Birmingham Board of Education and the Birmingham Superintendent of Education. Any objection to this Order must be filed with this Court (at the Chambers of the undersigned) within fourteen (14) days from the date of this Order or any such objection will be waived.
2. If no objection is received within 14 days from the date of this Order, the Family Court of Jefferson County will produce for inspection and copying all police reports that:
a. were submitted to the Family Court in connection with complaints filed against students in the Birmingham City School System arising from incidents or behavior that occurred in or at school during the 2008-2009 and 2009-2010 school years; and which
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b. document the use of chemical restraints, including Freeze +P or other mace- [or] pepper-spray products.
76. Neither BOE nor Superintendent Witherspoon raised any objections to the September 16 order. Accordingly, the Circuit Court entered a second order on October 7, 2010, directing the Family Court to produce the documents described in the Order dated September 16. 77. Despite the Circuit Court’s orders and the obvious concerns raised by SPLC’s Request for Access to Information, neither BOE nor Superintendent Witherspoon took any action to prohibit – or even investigate – the use of chemical weapons against Birmingham schoolchildren.
Duty of Defendant Roper to Train and Supervise BPD Officers 78. Defendant Roper has failed to adequately train BPD officers on the use of chemical weapons and, specifically, on the use of chemical weapons against children in school settings. The BPD “Use of Force” and “Chemical Spray Subject Restraint: Non-Deadly Use of Force” policies do not provide BPD personnel with adequate guidance for the appropriate use of Freeze +P on adolescents and in school environments, nor do they refer to any training protocol. Neither policy addresses any of the following issues:
a. The appropriate distance to stand from a subject when administering the spray;
b. Appropriate use of Freeze +P, and other chemical weapons, on adolescents;
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c. Use of chemical-based weapons in closed environments, such as schools or school vehicles;
d. Appropriate use of Freeze +P when in close proximity to third parties who are not suspected of committing any crime;
e. Procedures for effective decontamination and treatment; f. Guidelines and cautions for use of chemical spray on individuals that
are at a higher risk of injury from exposure to pepper spray, such as asthmatics; g. Use of pepper spray as a means to disperse a group of observers; and h. Protocol for deploying chemical weapons, including a mandated warning prior to using the chemical. 79. In his capacity as Chief of Police, Defendant Roper has a legal duty to “direct, control and discipline all officers and members of the department.” General Code of the City of Birmingham, Public Safety and Protection, Title 9, Ch. 1: Police Department. In order to fulfill this duty, Chief Roper must: maintain familiarity with the activities, practices, and customs of officers in all BPD units; ensure their compliance with BPD policy and with state and federal law; and take disciplinary and other remedial action when officers run afoul of these mandates. 80. Every BPD officer who uses Freeze +P is required to notify a supervisor and submit a Use of Force Information and Statement Report. These reports are subject to regular review by BPD officials. From reviewing these reports to ensure that all officers are complying with BPD policy, and state and federal law,
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Defendant Roper is fully aware of the use of chemical restraints on BCS students and the manner in which these weapons are deployed in the BCS schools. 81. Despite this knowledge, Defendant Roper has not made any effort to amend BPD policy, practices, and customs to provide specific guidance to officers on the use of force on children. Further, Defendant Roper has not made any effort to provide specialized training to officers to educate them about the specific risks of using Freeze +P (and other pepper spray products) on children, in closed environments, and/or within populations with a higher than average incidence of asthma. 82. Instead, Defendant Roper has continued to condone and approve the abusive and brutal practices and customs that SROs employ when using pepper spray against BCS students in the course of administering school discipline and conducting school arrests, even where custom and practice is inconsistent with written policy. Specifically, Defendant Roper authorizes the use of pepper spray on students who are completely restrained, who pose no threat to themselves or others, and who are merely in the wrong place at the wrong time. 83. Given the inherent dangers of chemical weapons, the high incidence of asthma amongst African-American children, and the reckless and abusive manner in which many SROs deploy chemical weapons, Defendant Roper’s failure to provide SROs with specialized training and his failure to amend BPD policy,
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practices, and customs, amounts to deliberate indifference to the health and safety of BCS school children. Defendant Roper’s deliberate indifference has resulted in violations of the Fourth and Fourteenth Amendment rights under the U.S. Constitution of the named Plaintiffs and other unnamed BCS students.
Use of Chemical Weapons against Plaintiffs Plaintiff J.W.
84. In April 2010, J.W. left his third-block class at Woodlawn High School and was walking down the hallway when he saw a physical altercation begin. A group of students began to gather near the scene. J.W. was towards the back of the group. He was approximately ten feet away from the altercation. 85. Defendant Nevitt and an unknown SRO responded to the incident. The unknown SRO approached the students involved in the altercation and sprayed them in the face with Freeze +P. 86. Defendant Nevitt walked up to the group of observers and yelled at them to disperse. Without further warning, and without giving the students any opportunity to move away, Defendant Nevitt immediately started spraying the observers with Freeze +P. Defendant Nevitt sprayed them for approximately ten seconds, waving the canister back and forth across the group at eye level.
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87. While Defendant Nevitt sprayed the group, the students began screaming and coughing as they ran in different directions to get away from the chemical spray that was filling the hallway. 88. Although J.W. was about ten feet away when Defendant Nevitt started blasting Freeze +P, some of the chemical spray landed on J.W.’s face. Upon contact, J.W.’s eyes and nose started stinging and burning immediately. The burning feeling spread across his entire face. J.W. also started coughing uncontrollably as some of the chemical entered his throat. 89. Although Defendant Nevitt had directly sprayed the group of observers standing in the hallway, he did not ask if they were alright or take any other actions to determine whether any of the children were injured or required help. Neither J.W. nor any of the students in the group received medical attention for their injuries. Neither Defendant Nevitt nor any school official took any steps to commence decontamination procedures for J.W. or the other students affected by the Freeze +P. 90. As a direct and proximate result of Defendant Nevitt’s actions, which were authorized by Superintendent Witherspoon and Defendants BOE and Roper, Plaintiff J.W. suffered emotional, psychological, and physical injury. Plaintiff J.W. is afraid that he will be maced again in the future, and that he will again be
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powerless to protect himself from the Defendants’ unconstitutional policies, practices, and customs.
Plaintiff G.S. & Plaintiff P.S. 91. At all relevant times, Plaintiff G.S. was five feet, five inches tall. 92. At all relevant times, Plaintiff P.S. was five feet, four inches tall. 93. G.S. and P.S. are sisters. At all relevant times, both girls attended Huffman High School. 94. Defendant Clark is a male School Resource Officer. He is approximately five feet, ten inches tall, has a stocky build, and weighs approximately 220 pounds. 95. On December 8, 2009, G.S. was jogging across the lawn outside Huffman High School when Defendant Clark grabbed her from behind by the waist. He did not identify himself as a law enforcement officer or say anything before grabbing her. Unaware of Defendant Clark’s identity and alarmed at being attacked by an unknown assailant, G.S. struggled to free herself. When she broke from his grasp, she turned around and pushed him in the chest to distance herself from him. G.S. did not realize who Defendant Clark was until after she had pushed him. 96. Without saying a word, Defendant Clark immediately pulled out his Freeze +P, raised it to G.S.’s face, and sprayed her directly in the face and eyes. The pepper spray entered her eyes, nose, and mouth, causing her to ingest the product.
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97. G.S.’s face and eyes began to burn and she felt like she could not breathe. She began to cry uncontrollably from the pain. 98. G.S.’s sister, Plaintiff P.S., had been approaching G.S. when Defendant Clark sprayed G.S. for the first time. When P.S. was about five feet away from G.S., an unknown SRO grabbed P.S. from behind to stop her from reaching G.S. As the SRO grabbed P.S. and held her, Defendant Clark sprayed a second blast of Freeze +P directly into G.S.’s face without warning, causing G.S. to crumble to the ground. 99. Defendant Clark did not consider whether other students were close enough to be affected by the chemical before he administered the second blast. As a result of Defendant Clark’s recklessness, the second blast of Freeze +P also hit Plaintiff P.S. in the face. P.S. immediately felt a burning sensation in her eyes and face, and had trouble breathing. 100. Defendant Clark left G.S. and P.S. in the school yard. He did not assess their physical well-being or attempt to determine their need for medical attention. 101. G.S. eventually made her way to the school’s main office. Once in the office, an unknown school official contacted 911 at G.S.’s request. Emergency Medical Service (EMS) personnel arrived at the school and questioned G.S. for 45 minutes, but did not provide her with any medical treatment. G.S. had a hard time
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focusing on the questions EMS personnel asked because she was crying hysterically and asking repeatedly for her mother. 102. LaTonya Stearnes, the mother of G.S. and P.S., arrived at the school shortly after G.S. went to the office. P.S. had informed her mother that Defendant Clark had used pepper spray on both girls. 103. As Ms. Stearnes began to enter the school, she encountered Defendant Clark and asked to see G.S. Defendant Clark would not permit Ms. Stearnes to enter the school and refused to allow her to see G.S. Defendant Clark refused to give Ms. Stearnes any information about G.S.’s physical state and threatened to arrest her if she continued to ask about her daughter’s well-being. 104. Eventually, a Huffman faculty member escorted Ms. Stearnes into the school’s office where she sat for 45 minutes before finally being allowed to see G.S. While she was forced to wait, Ms. Stearnes heard G.S. screaming “I can’t breathe!” from the next room. 105. Neither school personnel nor Defendant Clark advised or allowed G.S. or P.S. to rinse their eyes, wash their faces, or change out of their contaminated clothing. 106. Nearly an hour after the incident on the school lawn, Defendant Clark took G.S. to Cooper Green Hospital, but it was too late to provide any effective treatment or pain relief. Hospital personnel informed G.S. that they could not
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provide her with any medical treatment and requested that she sign a form. Upon

information and belief, the form was a medical release waiver.

107. G.S. was then taken to the Jefferson County Family Court. She was released

to her mother’s custody later that day. No formal charges were filed against her.

At her release, she still wore the same contaminated clothing from earlier in the

day because no one had provided her with a change of clothes.

108. As a direct and proximate result of Defendant Clark’s actions, G.S. suffered

emotional, psychological, and physical injury. Due to the pepper spray, the skin on

G.S.’s face is still discolored. She also experienced painful burning in her face and

eyes for over 24 hours, had difficulty breathing for an hour, and suffered throat

irritation. G.S.’s hair and skin also smelled like pepper spray for more than 24

hours, causing her further discomfort and pain. G.S. did not want to return to

school for several days following the assault for fear that she would be pepper-

sprayed again. Both G.S. and P.S. are reasonably afraid that an SRO will spray

them again.

Plaintiff T.L.P.

109. At all relevant times, T.L.P. was five feet, two inches tall, 120 pounds, and

petite in stature.

110. Defendant Nevitt is an approximately six-foot-tall male, weighs

approximately 200 pounds, and has a muscular build.

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111. BCS employee Johnson is an adult male with a muscular build standing approximately five feet, ten inches tall and weighing about 200 pounds. 112. BCS employee Howard is an adult male with a muscular build standing approximately six feet tall and weighing more than 200 pounds. 113. On or around November 29, 2009, a female student initiated a verbal altercation with T.L.P. The situation eventually escalated into a physical altercation. Upon seeing the two girls, BCS employees Johnson and Howard intervened and separated them. Johnson picked T.L.P. up from behind, holding her arms securely against her body, and hoisted her in the air. Johnson held T.L.P. in such a way that posed no threat to herself or others. 114. After the girls had been separated and T.L.P. had been restrained, Defendant Nevitt arrived at the scene. Without any warning or provocation, Defendant Nevitt directed a blast of Freeze +P in T.L.P.’s direction, even though she was still being restrained by Johnson. The pepper spray entered T.L.P.’s mouth, and she began to cough severely. 115. While attempting to spray T.L.P., Defendant Nevitt also sprayed Johnson in the face with pepper spray. Johnson released T.L.P. while excitedly yelling, “It got me in the eyes!” 116. Although T.L.P. was injured by the pepper spray, as evidenced by her violent coughing fit, Defendant Nevitt did not commence any decontamination
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procedure to rinse T.L.P.’s eyes or face or rid her of her contaminated clothing. Instead, he arrested her and took her to the Jefferson County Family Court where she was placed in a holding cell at the G. Ross Bell Youth Detention Center (“YDC”) to wait for her mother. Because no one provided her with a change of clothes, T.L.P. continued to wear the contaminated clothing while she waited at YDC. The allegations in the police report were never pursued as formal charges. 117. As a direct and proximate result of Defendant Nevitt’s actions, T.L.P. suffered emotional, psychological, and physical injuries. From breathing in the pepper spray, T.L.P. was wracked by violent coughing fits. 118. T.L.P. is reasonably afraid that she will be subjected to Defendants’ illegal policy and practice in the future. She is particularly concerned because the incident described above is not the first time that T.L.P. has been blasted with pepper spray at school while restrained. T.L.P. was previously sprayed with Freeze +P on or around November 17, 2008. During that incident, she was grabbed by a faculty member from behind and completely restrained when an unknown SRO sprayed her in the face and eyes with Freeze +P. Following that assault, T.L.P. suffered from burning sensations on her face, peeling skin, difficulties breathing, swollen and burning eyes, and prolonged head pains.
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Plaintiff B.D. 119. At all relevant times, B.D. was 5 feet, 4 inches tall, weight approximately 106 pounds, and was petite in stature. 120. B.D. was diagnosed with a Cardio Pulmonary Tachycardia at 7 years old. Tachycardia is an abnormally rapid beating of the heart at a resting heart rate of over 100 beats per minute. As a result of this condition, when B.D. is frightened, she may experience heart palpitations, shortness of breath, dizziness, fainting, and chest pain similar to that experienced during a heart attack. 121. Defendant Henderson is an adult male with a muscular build standing approximately 6 foot, 4 inch tall male and weighing approximately 210 pounds. 122. On or around February 22, 2011, B.D. had just entered her first-block class when she remembered that she had forgotten to get an excused absence form from the school’s main office. B.D. had been absent from school the previous day and school rules require that students provide teachers with an excused absence form when they miss school. 123. B.D. asked her first-block teacher, Ms. Chatters, to be excused to the main office. In response, Ms. Chatters told B.D. not to interrupt her class again. Ms. Chatters went on to say that that B.D. was already failing the class. 124. Embarrassed, B.D. responded that it was not anyone’s business what grade she had in Ms. Chatters’ class. Ms. Chatters contended that she could say whatever
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she wanted. This verbal exchange continued until Ms. Chatters called Principal Shirley Burrell and asked her to come to the classroom. When Ms. Burrell arrived, she began to walk B.D. to the school’s main office. 125. As the pair walked down the hall, B.D. told Ms. Burrell that she would prefer to talk to Assistant Principal Gill because she felt more comfortable talking to Assistant Principal Gill. 126. Instead of calling Assistant Principal Gill, Ms. Burrell called Defendant Officer Nevitt on her hand-held radio and asked him to come to the second floor where she stood with B.D. Defendant Nevitt responded that he was busy and sent Defendant Officer Henderson instead. 127. Minutes later, Defendant Henderson arrived where B.D. and Ms. Burrell stood. Upon approaching the pair, Defendant Henderson grabbed B.D. roughly by the arm and began to drag her down the hallway. Defendant Henderson’s grasp on B.D.’s thin arm caused her pain, so B.D. tried to pull away from his grasp. Defendant Henderson let go of B.D.’s arm momentarily, then grabbed her again by the arm, this time more forcefully. Because Defendant Henderson’s grip was hurting her, B.D. again pulled away. Without any words or prior warning, Defendant Henderson pushed B.D.’s back against a wall. He then stood several inches from her body, pulled out his canister of Freeze +P, and sprayed the
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chemical back and forth across her face so that the chemical went into her eyes and face. 128. Immediately, B.D. started to feel an intense burning sensation in her eyes and face. She was suddenly blinded and began to gasp for air because she felt like she could not breathe. She felt her heart start to beat rapidly and she felt dizzy. Startled at how intense the pain was, B.D. began to cry and grasp at her face. As she stood crying and struggling to breathe, she could hear coughing from Defendant Henderson and Ms. Burrell. She also heard Ms. Burrell tell the students and parents who were in the hallway to go into the main office to escape the macefilled hallway. 129. As B.D. continued to cough and struggled to breathe and see, Defendant Henderson put her hands behind her back, placed her in handcuffs, and began to walk her towards what she later learned was the school’s entrance. As she walked, B.D. repeatedly told Defendant Henderson that she could not see. Ignoring her, Defendant Henderson began to walk B.D. down a flight of stairs despite her repeated statement that she could not see where she was walking. As Defendant Henderson forced B.D. down the stairs, she began to trip. As B.D. tripped over her feet, Defendant Henderson continued to pull her down the stairs.
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130. When B.D. and Defendant Henderson reached the bottom of the stairs, he told her to sit down on the landing of the stairs outside of the school to wait for EMS personnel to arrive. 131. Several minutes later, one of B.D.’s school friends saw her sitting on the steps crying and immediately called B.D.’s mother and told her that Defendant Henderson had sprayed B.D. with pepper spray. 132. Sometime later, EMS personnel arrived and began to examine B.D. B.D. begged them to make the pain stop. B.D. told EMS personnel about her heart condition and that she generally has difficulty breathing. EMS personnel told B.D. that there was nothing they could do for her and that she would have to wait for the pain to subside by itself. 133. After EMS personnel left the school, Defendant Henderson took B.D. to a school office where she sat for approximately 15 minutes while her face and eyes burned and she continued to have difficulty breathing. Defendant Henderson did not arrange for her to exchange her clothing or commence any other decontamination procedures despite having sprayed her with Freeze +P. 134. When B.D.’s mother, Angela Davis, arrived at the school, she saw Defendant Henderson dragging B.D. out of the school by the arm and towards a police cruiser. Ms. Davis approached Defendant Henderson and asked what
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happened. Defendant Henderson’s only response was that Ms. Davis should go see Ms. Burrell. 135. Ms. Davis found Ms. Burrell in the school’s main office and asked her what happened. Ms. Burrell said that B.D. “had gotten out of control” and she had to call a SRO to deal with the situation. Ms. Burrell further claimed that B.D. continued to act out of control when Defendant Henderson arrived and that Defendant Henderson sprayed her with mace because she was acting “threatening.” When Ms. Davis asked Ms. Burrell to describe B.D.’s threatening behavior, Ms. Burrell said that B.D. had tried to tell her how to run her school. Ms. Burrell also told Ms. Davis that once school personnel call a SRO to the scene, school personnel no longer have control over the situation. 136. Meanwhile, Defendant Henderson placed B.D. in the backseat of a police cruiser and took her to the Jefferson County Family Court. When they arrived at the Court, court intake personnel refused to accept B.D. because Defendant Henderson had not taken her to the hospital for treatment. Defendant Henderson then placed B.D. back into the backseat of the cruiser and took her to Cooper Green Hospital. At the hospital, a staff member told B.D. that they could not provide her with any medical treatment for mace exposure and gave her a form to sign that she did not understand and could not read because she was still partially
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blinded by the mace. She later learned that the form was a hospital medical release waiver. 137. After hospital staff released B.D., Defendant Henderson took her back to the Jefferson County Family Court where she sat in a holding cell to wait for her mother to pick her up. The allegations in the police report were never pursued as formal charges. 138. Because no one provided her with a change of clothes, B.D. was still wearing the same contaminated clothing when her mother arrived at the Family Court to pick her up. 139. As a result of the incident, Woodlawn school officials brought discipline proceedings against B.D. Approximately one week after the macing incident, BOE officials conducted a due process hearing to determine whether B.D. should be suspended or expelled from BCS. Ms. Davis, B.D., Woodlawn Assistant Principal Lyons, and a BOE hearing officer attended the hearing. During that meeting, Ms. Davis asked Mr. Lyons to specify the perceived threat B.D. allegedly posed on the day Defendant Henderson sprayed B.D. with mace. Mr. Lyons stated that after viewing the surveillance tape of the incident, he thought that Ms. Burrell might have felt threatened at the time. He further stated that he wouldn’t have felt threatened had he been in Ms. Burrell’s position. Mr. Lyons also said BCS policy is to use mace against students if a school official perceives a threat from a student.
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140. As a direct and proximate result of Defendant Henderson’s actions, B.D. suffered physical, emotional, and psychological injuries. For at least an hour and a half after the incident, B.D. experienced shortness of breath and other symptoms related to her exacerbated heart condition. B.D. is scared to return to school because of the SRO presence at school. She fears that she may be maced again and worries that Defendant Henderson or other SROs will hurt her again in the future, possibly with a billy club.
Plaintiff K.B. 141. At all relevant times, K.B. was 5 feet, 5 inches tall, weighed approximately 130 pounds, and was 4 months pregnant. Because K.B. is naturally small in stature, her pregnancy was evident. 142. Defendant Smith is an approximately six–foot-tall male with a muscular build weighing approximately 200 pounds. 143. On or around the afternoon of February 21, 2011, K.B. was walking to class with her cousin, also a student at Woodlawn High School, when a male student approached the pair and starting telling jokes about them. The student repeatedly called K.B. a “ho,” which is shorthand slang for “whore,” and made several sexually-based comments about her. 144. K.B. began to cry and walked away from the taunting student. Even though she had walked away, the student followed her and continued to taunt her with
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sexual references. As the student continued the verbal assault, K.B. began to cry harder and yelled at him to leave her alone. After a few minutes, K.B. and the student began to walk in different directions without any prompting from school officials or SROs. As she walked away, K.B. was still visibly upset. 145. As K.B. continued to cry, she proceeded to walk to her next class. As she walked, a SRO arrived at the scene and approached her. K.B. later learned that the SRO was Defendant Smith. Defendant Smith grasped K.B. by the arm and began to guide her away from the direction of her next class and towards the school’s main office, telling her to calm down. When she continued to cry, he stopped her, turned her so that she was facing him and said, in a stern voice, that she really needed to calm down. K.B. then looked up at Defendant Smith through her tears and told him that she was ok. 146. All of sudden, K.B. felt an intense burning sensation on her face and in her eyes. She later learned that Defendant Smith had taken out his canister of Freeze +P and sprayed her in the face and eyes as she stood in front of him crying. The pain from the mace caused her to cry even harder and she felt as if she couldn’t breathe. 147. After Defendant Smith sprayed mace into K.B.’s face, he put her hands behind her back, placed her in handcuffs, and began to walk her towards the
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school’s gym. As Defendant Smith walked K.B. to the gym, she leaned over and vomited. 148. Several minutes later, EMS personnel arrived and examined K.B. as she stood in handcuffs. EMS personnel told K.B. to keep water out of her eyes and then left the school. 149. Defendant Smith did not commence any decontamination procedures for K.B. or arrange for her to remove her contaminated clothing. 150. After EMS personnel left the scene, Defendant Smith put K.B. in a police cruiser and took her to Cooper Green Hospital where hospital staff gave K.B. a form to sign that she could not understand and could not read because she was still partially blinded by the mace. She later learned that it was a hospital medical release waiver. 151. After hospital staff released K.B., Defendant Smith took her to the Jefferson County Family Court where she sat in a cell until her mother picked her up. The Family Court did not pursue formal charges against K.B. 152. As a direct and proximate result of Defendant Smith’s actions, K.B. suffered physical, emotional, and psychological injuries. K.B. experienced temporary blindness, an intense burning of the eyes and face, nausea and painful vomiting, and difficulty breathing. K.B. fears returning to school again because she may be
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sprayed with mace again. She fears her unborn child will suffer injury if she is sprayed with mace again.
Individual Plaintiffs Plaintiff T.A.P.
153. At all relevant times, T.A.P. was 5 feet, 4 inches tall and weighed approximately 145 pounds. T.A.P. attended Carver High School from 2007 to 2009. 154. Defendant Tarrant is a male SRO. He has a muscular build, stands approximately five feet, six inches in height, and weighs approximately 200 pounds. 155. Defendant Moss is an assistant principal at Carver High School. He has a stocky build, stands approximately six feet, two inches in height, and weighs approximately 280 pounds. Pursuant to BCS policy, BOE “does not allow the use of corporal punishment as an appropriate means of discipline.” As superintendent, Defendant Witherspoon has a duty to enforce this policy and ensure that BCS personnel refrain from engaging in corporal punishment as a means of discipline. 156. On or around August 31, 2009, T.A.P. entered a classroom to begin her third-block class. As T.A.P. walked in, a substitute teacher approached her, accused her of smoking cigarettes, and sent her to the school’s main office to see Assistant Principal Moss.
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157. Outside of the main office, Assistant Principal Moss accused T.A.P. of smelling like cigarette smoke. T.A.P. explained that she had smoked a cigarette before school started and off of school grounds. Moss disregarded T.A.P.’s explanation and ordered her to call her mother to arrange to leave school. In an attempt to comply, T.A.P. took out her cell phone and began to dial her mother. Even though he had told T.A.P. to call her mother, Moss attempted to take the cell phone away from her. When T.A.P. refused to give him the cell phone, he became visibly angry and told her that she could leave. 158. Assuming that he meant she could go home, T.A.P. followed Moss down the school hallway and outside of the school. As they reached the door, Moss opened the door and motioned for T.A.P. to exit ahead of him. As T.A.P. walked out of the door, Moss grabbed her from behind and tripped her. T.A.P. fell onto the concrete, stomach-first. Moss then dug his foot into her back as she lay on the ground. 159. T.A.P. heard a student call out “Damn, you didn’t have to do it like that.” After hearing the student, Moss removed his foot from T.A.P.’s back. 160. When T.A.P. stood up, she noticed Officer Tarrant standing close by. T.A.P. bent to pick up her backpack from the ground and slung it over her shoulder. As she slung the backpack, the backpack accidentally bumped Tarrant in the chest.
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T.A.P. then saw Tarrant reach for his belt. Because she did not know what he was reaching for, T.A.P. panicked and ran. 161. Tarrant caught T.A.P. after she ran approximately seven feet. He grabbed her from behind and threw her down into some bushes on the lawn. 162. When T.A.P. looked up, she saw Moss and Tarrant standing above her. Moss grabbed her right arm, while Tarrant grabbed her left arm. Several seconds later, three other men – all unknown to T.A.P. – approached and held her legs down. T.A.P. was frightened being restrained by five men, and began to squirm under their grasp. However, she did not break free from their hold nor did she utter any threats to any of the men. 163. As T.A.P. was pinned to the ground, restrained by five grown men, Tarrant said: “You wanna act hard? Let’s see how you act when you get this.” Tarrant then removed his canister of Freeze +P from his belt and sprayed a blast into T.A.P.’s face and eyes without warning. T.A.P. felt intense pain on her face and in her eyes, had difficulty breathing, and was blinded. Tarrant then flipped T.A.P. onto her stomach, handcuffed her, and took her to one of the school’s administrative offices. 164. T.A.P. sat handcuffed in the office for more than 40 minutes without any medical assistance. T.A.P. was crying profusely, and Tarrant told her: “Stop slobbering on my table.” When she asked Officer Tarrant for a wet paper towel to
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wipe her eyes, he yelled, “You don’t need a mother-fucking thing!” Tarrant did not provide T.A.P. with a change of clothing or take any other decontamination measures even though T.A.P. was obviously in severe pain. 165. Tarrant eventually escorted T.A.P. to Cooper Green Hospital, but it was too late to provide any effective treatment or pain relief, and T.A.P. was asked to sign a medical release waiver. Tarrant then escorted T.A.P. to the Jefferson County Family Court. T.A.P. continued to wear the contaminated clothing until she was released to her mother, Barbara Pettaway, at around 5:00 p.m. that evening. 166. Barbara Pettaway contacted BOE the next day to complain about Tarrant’s reckless and dangerous use of Freeze +P against T.A.P. A BOE representative told Ms. Pettaway that BOE could not take any action against the school or Tarrant because Ms. Pettaway had washed the shirt that T.A.P. wore on the day of the incident. 167. As a direct and proximate result of the actions of Defendants Tarrant and Moss, T.A.P. suffered emotional, psychological, and physical injuries. T.A.P. experienced swelling in the face and eyes for 24 hours, blindness for more than five hours, severe burning of the eyes and face, and difficulty breathing. The skin around her eyes was damaged and peeling for a week after she was sprayed. The actions of Defendants Tarrant and Moss were major factors in T.A.P.’s decision
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not to return to school. T.A.P. continues to experience a deep distrust of the school and law enforcement staff at Carver High School.
Plaintiff B.J. 168. At all relevant times, B.J. was five feet, six inches tall and weighed 140 pounds, with a lean build. 169. On or around September 27, 2010, a substitute teacher, known to B.J. as Mr. Cook, ordered B.J. to leave his fourth-block classroom at Jackson-Olin High School to tuck his shirt into his pants. B.J. complied with the order. As B.J. reentered the classroom, another student mumbled “Fuck you, Mr. Cook” in the direction of the substitute teacher. Mistaking B.J. for the speaker, the teacher contacted Assistant Principal Gaston, a BCS employee at Jackson-Olin High School. 170. Gaston ordered B.J. out of the classroom. Although the substitute teacher’s only complaints were that B.J.’s shirt had been untucked and that he might have used profanity, Gaston immediately began to pat him down and go through his pockets. As the illegal search continued, B.J. repeatedly proclaimed his innocence and struggled to free himself from Gaston’s hold. At one point, B.J. tripped and fell to the ground, landing on his stomach. While B.J. lay on the ground, Gaston continued to search his back pockets. After a few minutes, Gaston called Assistant Principal Gates to the scene. Gates is a six-foot-tall male with an average build.
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171. When Gates arrived, the two assistant principals restrained B.J. against a set of lockers with his arms spread, with Gates and Gaston each holding an arm. 172. At some point, Gates called Defendant Officer Benson to the scene. Upon arrival, Officer Benson did not take any action or even speak – she just stood there and watched Gates and Gadson3 restrain B.J. Officer Benson then blasted Freeze +P directly into B.J.’s face and eyes, holding the canister within inches from B.J.’s face. 173. The blast entered B.J.’s eyes, nose, and mouth, causing him to ingest the pepper spray. He immediately experienced a severe burning sensation across his face and in his eyes, and felt as if he could not breathe. B.J. was also immediately blinded. 174. B.J. began to fall to the ground holding his face and gasping for air. The pain was so intense that he began to cry. As he sank to the ground, Officer Benson used her foot to forcibly shove him fully onto the ground, where she held him in place with her knee planted in his back. Officer Benson threatened to administer a second blast of pepper spray into B.J.’s face if he attempted to stand. 175. Officer Benson handcuffed B.J. and took him to the school’s main office. As B.J. sat in the office, Gates said: “Woo! That’s the first macing of the year!”
3 Previous versions of the Plaintiffs’ Complaint misspells Assistant Principal Gadson’s last name, identifying him as “Gaston.”
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176. Officer Benson did not immediately seek medical attention for B.J., nor did she contact Birmingham Fire and Rescue. B.J. sat handcuffed in the school office for more than 20 minutes before Officer Benson escorted him to the hospital. Officer Benson did not permit B.J. to wash out his eyes, nor did she take any steps to get him a change of clothes or advise him to get out of his contaminated clothing. 177. When Officer Benson eventually transported B.J. to Cooper Green Hospital in Birmingham, it was too late to provide any effective treatment or pain relief. Hospital staff informed B.J. that they could not provide him with any medical treatment and directed him to sign a form. B.J. signed the form even though he still could not see due to the pepper spray. No one explained the contents of the form to B.J. Upon information and belief, the form was a medical release waiver. 178. Officer Benson then transported B.J. to the G. Ross Bell Youth Detention Facility, where he was placed in a holding cell at around 5:00 pm to wait for his grandmother to pick him up. No formal charges were filed against B.J. as a result of this incident. 179. While in the holding cell, B.J. continued to experience negative effects from being sprayed directly in the face with pepper spray. His face felt like it was burning and began to swell. B.J.’s eyes were also swollen, and he could not see for several hours. B.J. experienced severe stomach pains and violent nausea. He
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vomited twice while in the holding cell, and could taste the pepper spray in his vomit. Because he was never offered a change of clothes at any time, B.J. continued to wear the same contaminated clothing while in the cell. 180. B.J.’s grandmother was not informed that B.J. had been injured by pepper spray, arrested, transported to Cooper Green Hospital, and taken to a detention facility until later that evening. B.J. was released to her custody at around 7:00 p.m. 181. As a direct and proximate result of Officer Benson’s actions, B.J. suffered emotional, psychological, and physical injury. B.J. endured nausea, violent vomiting, blindness for more than five hours, numbness and burning in his face for more than 24 hours, severe head pains for more than a day, swelling of the face for more than two days, an aggravation of allergies, and pain in the back from SRO Benson’s assault with her knee.
Necessity of Injunctive Relief 182. Because mace is used so frequently and so indiscriminately in Birmingham’s public high schools, each plaintiff – and each member of the class – faces a real and substantial risk of future and repeated injury as a result of the Defendants’ unlawful policies, customs, and practices. There are only three ways for the class members to avoid that real and substantial risk: (a) by attending school in another school system, an option prohibited by zoning requirements; (b) by foregoing their right to a free public education and enrolling in private school, an option Plaintiffs
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cannot afford; or (c) by dropping out of school entirely, which would violate the compulsory school attendance law and deprive the students of their rights to an “equal and adequate” education under Alabama law. 183. As described above, the Defendants have acted and continue to act in violation of the law. The Class Representatives and the class they seek to represent do not have an adequate remedy at law. As a result of the policies, practices, acts, and omissions of the Defendants, the Class Representatives and the class of children they seek to represent have suffered and continue to suffer imminent, serious and irreparable injuries.
CAUSES OF ACTION 184. The named Plaintiffs and the proposed class incorporate by reference all of the above factual allegations to support the following claims:
CLAIMS FOR DECLARATORY AND INJUNCTIVE RELIEF COUNT I
Declaratory and Injunctive Relief to Protect Plaintiffs’ Fourth and Fourteenth Amendment Rights to be Free from Excessive Force Defendant Roper in his official capacity
185. Defendant Roper is responsible for supervising BPD and ensuring that the agency operates in compliance with federal and state law. In his official capacity, he is responsible for the “Chemical Spray Subject to Restraint: Non-Deadly Use of Force” policy, which is unconstitutional both on its face and as applied to the Plaintiffs and the class they represent.
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186. On its face, the Chemical Spray policy allows the use of chemical weapons against children under circumstances that are patently unreasonable under New Jersey v. T.L.O., 469 U.S. 325 (1985). The deployment of chemical weapons against schoolchildren in a closed environment is exceptionally dangerous, yet BPD policy and practice allows and encourages this extreme application of force in situations where such force is not remotely justified by the targets’ conduct, by the risk they pose, or by any other factors. As such, the Defendant’s policy cannot pass muster under the second prong of the T.L.O. reasonableness inquiry, which asks whether the level of force used was “reasonably related in scope to the circumstances justifying interference in the first place.” T.L.O., 469 U.S. at 341. 187. Indeed, because the Defendant’s custom and practice allows the use of chemical weapons against children who are not accused of any wrong-doing and children who are being physically restrained, Defendant Roper cannot even satisfy the first prong of the T.L.O. reasonableness inquiry, which asks whether any force was justified. Id. at 341. 188. By promulgating an unconstitutional policy as applied in the Birmingham schools and by condoning unconstitutional customs and practices with respect to the use of chemical weapons in the Birmingham schools, Defendant Roper has violated and continues to violate the Fourth and Fourteenth Amendment rights of the Class Representatives and the class they seek to represent.
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189. By failing to train, supervise, and monitor the use of Freeze +P by SROs in
the Birmingham schools, Defendant Roper has been deliberately indifferent to
repeated and ongoing violations of the Fourth and Fourteenth Amendment rights
of the Class Representatives and the class they seek to represent.
190. Accordingly, the Class Representatives and the proposed class are entitled to
a permanent injunction to remedy the constitutional violations described above and
to ensure that the constitutional rights of Class Representatives and the plaintiff
class are protected.
COUNT II Declaratory and Injunctive Relief to Protect Plaintiffs’ Substantive Due Process Rights to Personal Security under the
Fourteenth Amendment Defendant Birmingham Board of Education in its official capacity
191. BOE has created a custodial environment within the BCS high schools by
taking the affirmative act of authorizing the placement of BPD law enforcement
officers on campus to enforce Alabama’s compulsory school attendance law.
Factors evidencing the presence of a custodial environment include, but are not
limited to, the following:
a. BOE has requested and/or agreed to the placement of BPD law enforcement officers in each BCS high school.
b. Each BCS school is assigned at least two officers who patrol school property during school hours.
c. Alabama’s compulsory school attendance law requires that all students between the ages of seven and seventeen attend school.
d. Defendants Roper and BOE, and their employees, play a significant role in ensuring that students remain on campus during school hours
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as required by the compulsory school attendance statute. School officials routinely file complaints against students for truancy while BPD officers not only file complaints, but also physically locate and transport truant students back to school. e. BOE has delegated authority to BPD officers to handle school discipline matters that are traditionally handled by school officials. 192. As a result of the custodial environment in BCS, BOE has a constitutional duty under the Fourteenth Amendment to protect BCS high school students from being injured by third parties while the students are on school property for the purpose of obtaining an education. BOE has breached this constitutional duty by authorizing, approving, and failing to take any action to prevent the reckless and malicious use of Freeze +P on schoolchildren, including children who are not suspected of any delinquent activity, children who are physically restrained, and children who do not pose a serious threat of injury to anyone. 193. BOE is liable pursuant to 42 U.S.C. § 1983 for violating the constitutional due process rights of the Class Representatives and other members of the class under the Fourteenth Amendment to the U.S. Constitution. 194. The Class Representatives and the proposed class are entitled to a permanent injunction prohibiting the Defendant from engaging in the unlawful conduct described above.
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INDIVIDUAL CLAIMS UNDER FEDERAL LAW COUNT III
Damages for Fourth and Fourteenth Amendment Violations arising from the use of Excessive Force against Plaintiff J.W.
Defendant Roper in his individual capacity 195. By sanctioning, enforcing, and implementing a policy, practice and/or custom that unreasonably and unconstitutionally subjects BCS students, including Plaintiff J.W., to excessive force in violation of the Fourth and Fourteenth Amendments of the United States Constitution, Defendant Roper has violated J.W.’s clearly established constitutional rights and, accordingly, is liable pursuant to 42 U.S.C. § 1983. 196. Because Defendant Roper acted in clear violation of well-established law, of which a reasonable person would have been aware, he is not entitled to qualified immunity. The actions of this Defendant were intentional, malicious, reckless, and showed a callous disregard for the rights of Plaintiff J.W. 197. Plaintiff J.W. seeks compensatory and punitive damages from this Defendant.
COUNT IV Damages for Fourth and Fourteenth Amendment Violations arising from the use of Excessive Force against Plaintiff J.W.
Defendant Nevitt in his individual capacity 198. By deploying a chemical weapon against Plaintiff J.W. as a means of intimidation, Defendant Nevitt violated J.W.’s clearly established constitutional
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rights under the Fourth and Fourteenth Amendments and, accordingly, is liable pursuant to 42 U.S.C. § 1983. Defendant Nevitt’s conduct fails even the threshold inquiry for Fourth Amendment violations: whether the defendant’s action was justified at its inception. In the incident giving rise to this claim, Plaintiff J.W. had committed no crime and posed no threat whatsoever to anyone’s safety. Even if the deployment of Freeze +P against Plaintiff J.W. was deemed justified at its inception, which it was not, the use of a chemical weapon against Plaintiff J.W. was unconstitutional in that it was not reasonably related in scope to the circumstances justifying the interference. 199. Because Defendant Nevitt acted in clear violation of well-established law, of which a reasonable person would have been aware, he is not entitled to qualified immunity. The actions of this Defendant were intentional, malicious, reckless, and showed a callous disregard for the rights of Plaintiff J.W. 200. Plaintiff J.W. seeks compensatory and punitive damages against Defendant Nevitt.
COUNT V Damages for Fourth and Fourteenth Amendment Violations arising from the use of Excessive Force against Plaintiff G.S.
Defendant Roper in his individual capacity 201. By sanctioning, enforcing, and implementing a policy, practice and/or custom that unreasonably and unconstitutionally subjects BCS students, including Plaintiff G.S., to excessive force in violation of the Fourth and Fourteenth
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Amendments of the United States Constitution, Defendant Roper has violated G.S.’s clearly established constitutional rights and, accordingly, is liable pursuant to 42 U.S.C. § 1983. 202. Because Defendant Roper acted in clear violation of well-established law, of which a reasonable person would have been aware, he is not entitled to qualified immunity. The actions of this Defendant were intentional, malicious, reckless, and showed a callous disregard for the rights of Plaintiff G.S. 203. Plaintiff G.S. seeks compensatory and punitive damages from this Defendant.
COUNT VI Damages for Fourth and Fourteenth Amendment Violations arising from the use of Excessive Force against Plaintiff G.S.
Defendant Clark in his individual capacity 204. By repeatedly attacking Plaintiff G.S. with a chemical weapon without justification or warning, Defendant Clark violated the Plaintiff’s clearly established constitutional rights under the Fourth and Fourteenth Amendments and, accordingly, is liable pursuant to 42 U.S.C. § 1983. Both deployments of Freeze +P against Plaintiff G.S. constituted unjustified and excessively intrusive seizures. Defendant Clark grabbed Plaintiff G.S. from behind, failed to identify himself as a law enforcement officer, then deployed chemical spray in her face – without a warning – when she reasonably defended herself against his attack. Defendant Clark then unleashed another round of chemical spray against Plaintiff G.S.,
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despite the fact that she had already been completely incapacitated and was, in fact, struggling to breathe. His actions were not reasonably related in scope to the circumstances justifying interference in the first place, and were calculated to injure, punish, humiliate, and intimidate Plaintiff G.S. Accordingly, Defendant Clark’s actions constitute an excessively intrusive seizure in violation of the Fourth and Fourteenth Amendments of the United States Constitution. 205. Because Defendant Clark acted in clear violation of well-established law, of which a reasonable person would have been aware, he is not entitled to qualified immunity. The actions of this Defendant were intentional, malicious, reckless, and showed a callous disregard for the rights of Plaintiff G.S. 206. Plaintiff G.S. seeks compensatory and punitive damages against Defendant Clark.
COUNT VII Damages for Fourth and Fourteenth Amendment Violations arising from the use of Excessive Force against Plaintiff P.S.
Defendant Roper in his individual capacity 207. By sanctioning, enforcing, and implementing a policy, practice and/or custom that unreasonably and unconstitutionally subjects BCS students, including Plaintiff P.S., to excessive force in violation of the Fourth and Fourteenth Amendments of the United States Constitution, Defendant Roper has violated P.S.’s clearly established constitutional rights and, accordingly, is liable pursuant to 42 U.S.C. § 1983.
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208. Because Defendant Roper acted in clear violation of well-established law, of which a reasonable person would have been aware, he is not entitled to qualified immunity. The actions of this Defendant were intentional, malicious, reckless, and showed a callous disregard for the rights of Plaintiff P.S. 209. Plaintiff P.S. seeks compensatory and punitive damages from this Defendant.
COUNT VIII Damages for Fourth and Fourteenth Amendment Violations arising from the use of Excessive Force against Plaintiff P.S.
Defendant Clark in his individual capacity 210. By deploying a chemical weapon with reckless disregard for the safety of Plaintiff P.S., and without any reason to believe she had committed a delinquent act, Defendant Clark violated the Plaintiff’s clearly established constitutional rights under the Fourth and Fourteenth Amendments and, accordingly, is liable pursuant to 42 U.S.C. § 1983. Defendant Clark’s conduct fails even the threshold inquiry for Fourth Amendment violations: whether the defendant’s action was justified at its inception. In the incident giving rise to this claim, Plaintiff P.S. had committed no crime and posed no threat whatsoever to anyone’s safety. In fact, Plaintiff P.S. was being physically restrained by an adult when Defendant Clark deployed a second burst of Freeze +P against Plaintiff G.S., also hitting Plaintiff P.S. in the face. The deployment of Freeze +P against Plaintiff P.S. was also unconstitutional
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in that it was not reasonably related in scope to the circumstances justifying the interference. 211. Because Defendant Clark acted in clear violation of well-established law, of which a reasonable person would have been aware, he is not entitled to qualified immunity. The actions of this Defendant were intentional, malicious, reckless, and showed a callous disregard for the rights of Plaintiff P.S. 212. Plaintiff P.S. seeks compensatory and punitive damages against Defendant Clark.
COUNT IX Damages for Fourth and Fourteenth Amendment Violations arising from the use of Excessive Force against Plaintiff T.L.P.
Defendant Roper in his individual capacity 213. By sanctioning, enforcing, and implementing a policy, practice and/or custom that unreasonably and unconstitutionally subjects BCS students, including Plaintiff T.L.P., to excessive force in violation of the Fourth and Fourteenth Amendments of the United States Constitution, Defendant Roper has violated T.L.P.’s clearly established constitutional rights and, accordingly, is liable pursuant to 42 U.S.C. § 1983. 214. Because Defendant Roper acted in clear violation of well-established law, of which a reasonable person would have been aware, he is not entitled to qualified immunity. The actions of this Defendant were intentional, malicious, reckless, and showed a callous disregard for the rights of Plaintiff T.L.P.
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215. Plaintiff T.L.P. seeks compensatory and punitive damages from this Defendant.
COUNT X Damages for Fourth and Fourteenth Amendment Violations arising from the use of Excessive Force against Plaintiff T.L.P.
Defendant Nevitt in his individual capacity 216. By deploying a chemical weapon against Plaintiff T.L.P. without justification or warning, Defendant Nevitt violated T.L.P.’s clearly established constitutional rights under the Fourth and Fourteenth Amendments and, accordingly, is liable pursuant to 42 U.S.C. § 1983. The deployment of Freeze +P against Plaintiff T.L.P. was unjustified, given that T.L.P. was restrained by an adult man at the time and posed no threat to the safety of others. Defendant Nevitt’s actions were not reasonably related in scope to the circumstances justifying interference in the first place, and were calculated to injure, punish, humiliate, and intimidate T.L.P. Accordingly, Defendant Nevitt’s actions constitute an excessively intrusive seizure in violation of the Fourth and Fourteenth Amendments of the United States Constitution. 217. Because Defendant Nevitt acted in clear violation of well-established law, of which a reasonable person would have been aware, he is not entitled to qualified immunity. The actions of this Defendant were intentional, malicious, reckless, and showed a callous disregard for the rights of Plaintiff T.L.P.
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218. Plaintiff T.L.P. seeks compensatory and punitive damages against Defendant Nevitt.
COUNT XI Damages for Fourth and Fourteenth Amendment Violations arising from the use of Excessive Force against Plaintiff B.D.
Defendant Roper in his individual capacity 219. By sanctioning, enforcing, and implementing a policy, practice and/or custom that unreasonably and unconstitutionally subjects BCS students, including Plaintiff B.D., to excessive force in violation of the Fourth and Fourteenth Amendments of the United States Constitution, Defendant Roper has violated B.D.’s clearly established constitutional rights and, accordingly, is liable pursuant to 42 U.S.C. § 1983. 220. Because Defendant Roper acted in clear violation of well-established law, of which a reasonable person would have been aware, he is not entitled to qualified immunity. The actions of this Defendant were intentional, malicious, reckless, and showed a callous disregard for the rights of Plaintiff B.D. 221. Plaintiff B.D. seeks compensatory and punitive damages from this Defendant.
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COUNT XII Damages for Fourth and Fourteenth Amendment Violations arising from the use of Excessive Force against Plaintiff B.D.
Defendant Henderson in his individual capacity 222. By deploying a chemical weapon against Plaintiff B.D. without warning, Defendant Henderson violated B.D.’s clearly established constitutional rights under the Fourth and Fourteenth Amendments and, accordingly, is liable pursuant to 42 U.S.C. § 1983. The deployment of Freeze +P against Plaintiff B.D. was unjustified, given that B.D. posed no threat of injury to anyone at the time Defendant Henderson sprayed her with mace. Defendant Henderson’s actions were not reasonably related in scope to the circumstances justifying interference in the first place, and were calculated to injure, punish, humiliate, and intimidate B.D. Accordingly, Defendant Henderson’s actions constitute an excessively intrusive seizure in violation of the Fourth and Fourteenth Amendments of the United States Constitution. 223. Because Defendant Henderson acted in clear violation of well-established law, of which a reasonable person would have been aware, he is not entitled to qualified immunity. The actions of this Defendant were intentional, malicious, reckless, and showed a callous disregard for the rights of Plaintiff B.D. 224. Plaintiff B.D. seeks compensatory and punitive damages against Defendant Henderson.
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COUNT XIII Damages for Fourth and Fourteenth Amendment Violations arising from the use of Excessive Force against Plaintiff K.B.
Defendant Roper in his individual capacity 225. By sanctioning, enforcing, and implementing a policy, practice and/or custom that unreasonably and unconstitutionally subjects BCS students, including Plaintiff K.B., to excessive force in violation of the Fourth and Fourteenth Amendments of the United States Constitution, Defendant Roper has violated K.B.’s clearly established constitutional rights and, accordingly, is liable pursuant to 42 U.S.C. § 1983. 226. Because Defendant Roper acted in clear violation of well-established law, of which a reasonable person would have been aware, he is not entitled to qualified immunity. The actions of this Defendant were intentional, malicious, reckless, and showed a callous disregard for the rights of Plaintiff K.B. 227. Plaintiff K.B. seeks compensatory and punitive damages from this Defendant.
COUNT XIV Damages for Fourth and Fourteenth Amendment Violations arising from the use of Excessive Force against Plaintiff K.B.
Defendant Smith in his individual capacity 228. By deploying a chemical weapon against Plaintiff K.B. without warning and when she posed absolutely no risk of harm to anyone, Defendant Smith violated K.B.’s clearly established constitutional rights under the Fourth and Fourteenth
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Amendments and, accordingly, is liable pursuant to 42 U.S.C. § 1983. The deployment of Freeze +P against Plaintiff K.B. was unjustified, given that K.B. was not engaged in any wrongful conduct and posed no threat of injury to anyone at the time Defendant Smith sprayed her with mace. Defendant Smith’s actions were not reasonably related in scope to the circumstances justifying interference in the first place, and were calculated to injure, punish, humiliate, and intimidate K.B. Accordingly, Defendant Smith’s actions constitute an excessively intrusive seizure in violation of the Fourth and Fourteenth Amendments of the United States Constitution. 229. Because Defendant Smith acted in clear violation of well-established law, of which a reasonable person would have been aware, he is not entitled to qualified immunity. The actions of this Defendant were intentional, malicious, reckless, and showed a callous disregard for the rights of Plaintiff K.B. 230. Plaintiff K.B. seeks compensatory and punitive damages against Defendant Smith.
COUNT XV Damages for Fourth and Fourteenth Amendment Violations arising from the use of Excessive Force against Plaintiff T.A.P.
Defendant Roper in his individual capacity 231. By sanctioning, enforcing, and implementing a policy, practice and/or custom that unreasonably and unconstitutionally subjects BCS students, including Plaintiff T.A.P., to excessive force in violation of the Fourth and Fourteenth
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Amendments of the United States Constitution, Defendant Roper has violated T.A.P.’s clearly established constitutional rights and, accordingly, is liable pursuant to 42 U.S.C. § 1983. 232. Because Defendant Roper acted in clear violation of well-established law, of which a reasonable person would have been aware, he is not entitled to qualified immunity. The actions of this Defendant were intentional, malicious, reckless, and showed a callous disregard for the rights of Plaintiff T.A.P. 233. Plaintiff T.A.P. seeks compensatory and punitive damages from this Defendant.
COUNT XVI Damages for Fourth and Fourteenth Amendment Violations arising from the use of Excessive Force against Plaintiff T.A.P.
Defendant Tarrant in his individual capacity 234. By deploying a chemical weapon against Plaintiff T.A.P. without justification, Defendant Tarrant violated T.A.P.’s clearly established constitutional rights under the Fourth and Fourteenth Amendments and, accordingly, is liable pursuant to 42 U.S.C. § 1983. The deployment of Freeze +P against Plaintiff T.A.P. was unjustified at its inception, given that T.A.P. was pinned to the ground by five adult men and posed no threat to the safety of others. This seizure was calculated to punish, humiliate, and intimidate T.A.P., as evidenced by Defendant Tarrant’s taunting words prior to deploying the chemical in her face. His actions were not reasonably related to the circumstances justifying the interference.
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Accordingly, Defendant Tarrant’s actions constitute an excessively intrusive seizure in violation of the Fourth and Fourteenth Amendments of the United States Constitution. 235. Because Defendant Tarrant acted in clear violation of well-established law, of which a reasonable person would have been aware, he is not entitled to qualified immunity. The actions of this Defendant were intentional, malicious, reckless, and showed a callous disregard for the rights of Plaintiff T.A.P. 236. Plaintiff T.AP. seeks compensatory and punitive damages against Defendant Smith.
COUNT XVII Damages for Fourth and Fourteenth Amendment Violations arising from the use of Excessive Force against Plaintiff T.A.P.
Defendant Moss in his individual capacity 237. Defendant Moss intentionally tripped T.A.P., causing her to fall to the ground, and ground his foot in her back. Defendant Moss also held T.A.P. down on the ground so that Defendant Tarrant could spray her in the face with chemical spray. These actions violated T.A.P.’s clearly established constitutional rights under the Fourth and Fourteenth Amendments. Defendant Moss’ actions were unjustified at inception, given that T.A.P. had complied with his directives and posed no threat to the safety of others or to the school environment. This seizure was calculated to punish, humiliate, and intimidate T.A.P. Defendant Moss’ actions constitute an excessively intrusive seizure in violation of the Fourth and
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Fourteenth Amendments of the United States Constitution. Accordingly, Defendant Moss is liable pursuant to 42 U.S.C. § 1983. 238. Because Defendant Moss acted in clear violation of well-established law, of which a reasonable person would have been aware, he is not entitled to qualified immunity. The actions of this Defendant were intentional, malicious, reckless, and showed a callous disregard for the rights of Plaintiff T.A.P. 239. Plaintiff T.A.P. seeks compensatory and punitive damages against Defendant Moss.
COUNT XVIII Damages for Fourth and Fourteenth Amendment Violations arising from the use of Excessive Force against Plaintiff B.J.
Defendant Roper in his individual capacity 240. By sanctioning, enforcing, and implementing a policy, practice and/or custom that unreasonably and unconstitutionally subjects BCS students, including Plaintiff B.J., to excessive force in violation of the Fourth and Fourteenth Amendments of the United States Constitution, Defendant Roper has violated B.J.’s clearly established constitutional rights and, accordingly, is liable pursuant to 42 U.S.C. § 1983. 241. Because Defendant Roper acted in clear violation of well-established law, of which a reasonable person would have been aware, he is not entitled to qualified immunity. The actions of this Defendant were intentional, malicious, reckless, and showed a callous disregard for the rights of Plaintiff B.J.
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242. Plaintiff B.J. seeks compensatory and punitive damages from this Defendant.
COUNT XIX Damages for Fourth and Fourteenth Amendment Violations arising from the use of Excessive Force against Plaintiff B.J.
Defendant Benson in her individual capacity 243. By deploying a chemical weapon against Plaintiff B.J. without justification or warning, Defendant Benson violated B.J.’s clearly established constitutional rights under the Fourth and Fourteenth Amendments and, accordingly, is liable pursuant to 42 U.S.C. § 1983. The deployment of Freeze +P against Plaintiff B.J. was both unjustified and unreasonable in that that B.J. was already being physically restrained by two adult men and posed no threat to the safety of others or the school environment. This seizure was calculated to punish, humiliate, and intimidate B.J. Even after he had been blinded and incapacitated by the chemical sprayed into his nose and mouth, Defendant Benson continued to use excessive force by forcing B.J. to the ground and holding him down with her knee as he struggled to breathe. Defendant Benson’s actions were not reasonably related in scope to the circumstances justifying interference in the first place, and were calculated to injure, punish, humiliate, and intimidate B.J. 244. Because Defendant Benson acted in clear violation of well-established law, of which a reasonable person would have been aware, she is not entitled to
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qualified immunity. The actions of this Defendant were intentional, malicious, reckless, and showed a callous disregard for the rights of Plaintiff B.J. 245. Plaintiff B.J. seeks compensatory and punitive damages against Defendant Benson.
COUNT XX Excessive Corporal Punishment inflicted upon Plaintiff T.A.P., in
Violation of the Fourteenth Amendment Defendant Moss in his individual capacity 246. By illegally assaulting Plaintiff T.A.P. in direct violation of BCS policy prohibiting corporal punishment and by holding T.A.P. down as Defendant Tarrant sprayed her in the face with mace, Defendant Moss violated Plaintiff T.A.P.’s right to be free from excessive corporal punishment as provided by the Fourteenth Amendment of the United States Constitution. Defendant Moss unreasonably and unjustifiably assaulted Plaintiff T.A.P., intentionally caused her to fall to the ground, and planted his foot in her back when she posed no threat to anyone. Defendant Moss also aided Defendant Tarrant in subjecting T.A.P. to unreasonable and abusive physical abuse. Defendant Moss’ actions were obviously excessive and presented a reasonably foreseeable risk of serious bodily injury to Plaintiff T.A.P. Accordingly, Defendant Moss’ use of corporal punishment amounts to arbitrary and egregious conduct in violation of the Fourteenth Amendment to the United States Constitution.
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247. Because Defendant Moss acted in clear violation of well-established law, of which a reasonable person would have been aware, he is not entitled to qualified immunity. The actions of this Defendant were intentional, malicious, reckless, and showed a callous disregard for the rights of Plaintiff T.A.P. 248. Plaintiff T.A.P. seeks compensatory damages.
COUNT XXI Damages for Fourteenth Amendment Violations:
Failure to Protect Plaintiff J.W. Defendant Birmingham Board of Education 249. By failing to protect Plaintiff J.W. from the illegal and unreasonable actions of Defendants Roper and Nevitt, as set forth in the plaintiff-specific facts detailed supra, Defendant BOE has violated the clearly established rights of Plaintiff J.W. under the Fourteenth Amendment. Defendant BOE has created a custodial environmental within the BCS system for all students subject to the compulsory school attendance law. That custodial environment imposes a constitutional duty on Defendant BOE to ensure the safety and well-being of Plaintiff J.W. while he attends BCS. Defendant BOE breached that duty by authorizing and approving the use of chemical weapons against BCS students, and by failing to take action to protect Plaintiff J.W. and other students from the use of chemical weapons. Accordingly, Defendant BOE has violated the rights of Plaintiff J.W. in violation of the Fourteenth Amendment to the U.S. Constitution.
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250. By the forgoing actions and inactions, Defendant BOE is liable pursuant to 42 U.S.C. § 1983 under the Fourteenth Amendment of the United States Constitution for failing to protect J.W. from Defendant Roper’s unlawful and illegal policies, practices, and customs. Because Defendant BOE breached its duty to protect J.W. as required by the Fourteenth Amendment and acted in clear violation of well-established law, of which a reasonable person would have been aware, it is not entitled to qualified immunity. 251. Plaintiff J.W. seeks compensatory damages from this Defendant.
COUNT XXII Damages for Fourteenth Amendment Violations:
Failure to Protect Plaintiff G.S. Defendant Birmingham Board of Education 252. By failing to protect Plaintiff G.S. from the illegal and unreasonable actions of Defendants Roper and Clark, as set forth in the plaintiff-specific facts detailed supra, Defendant BOE has violated the clearly established rights of Plaintiff G.S. under the Fourteenth Amendment. Defendant BOE has created a custodial environmental within the BCS system for all students subject to the compulsory school attendance law. That custodial environment imposes a constitutional duty on Defendant BOE to ensure the safety and well-being of Plaintiff G.S. while she attends BCS. Defendant BOE breached that duty by authorizing and approving the use of chemical weapons against BCS students, and by failing to take action to protect Plaintiff G.S. and other students from the use of chemical weapons.
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Accordingly, Defendant BOE has violated the rights of Plaintiff G.S. in violation of the Fourteenth Amendment to the U.S. Constitution. 253. By the forgoing actions and inactions, Defendant BOE is liable pursuant to 42 U.S.C. § 1983 under the Fourteenth Amendment of the United States Constitution for failing to protect G.S. from Defendant Roper’s unlawful and illegal policies, practices, and customs. Because Defendant BOE breached its duty to protect G.S. as required by the Fourteenth Amendment and acted in clear violation of well-established law, of which a reasonable person would have been aware, it is not entitled to qualified immunity. 254. Plaintiff G.S. seeks compensatory damages from this Defendant.
COUNT XXIII Damages for Fourteenth Amendment Violations:
Failure to Protect Plaintiff P.S. Defendant Birmingham Board of Education 255. By failing to protect Plaintiff P.S. from the illegal and unreasonable actions of Defendants Roper and Clark, as set forth in the plaintiff-specific facts detailed supra, Defendant BOE has violated the clearly established rights of Plaintiff P.S. under the Fourteenth Amendment. Defendant BOE has created a custodial environmental within the BCS system for all students subject to the compulsory school attendance law. That custodial environment imposes a constitutional duty on Defendant BOE to ensure the safety and well-being of Plaintiff P.S. while she attends BCS. Defendant BOE breached that duty by authorizing and approving the
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use of chemical weapons against BCS students, and by failing to take action to protect Plaintiff P.S. and other students from the use of chemical weapons. Accordingly, Defendant BOE has violated the rights of Plaintiff P.S. in violation of the Fourteenth Amendment to the U.S. Constitution. 256. By the forgoing actions and inactions, Defendant BOE is liable pursuant to 42 U.S.C. § 1983 under the Fourteenth Amendment of the United States Constitution for failing to protect P.S. from Defendant Roper’s unlawful and illegal policies, practices, and customs. Because Defendant BOE breached its duty to protect P.S. as required by the Fourteenth Amendment and acted in clear violation of well-established law, of which a reasonable person would have been aware, it is not entitled to qualified immunity. 257. Plaintiff P.S. seeks compensatory damages from this Defendant.
COUNT XXIV Damages for Fourteenth Amendment Violations:
Failure to Protect Plaintiff T.L.P. Defendant Birmingham Board of Education 258. By failing to protect Plaintiff T.L.P. from the illegal and unreasonable actions of Defendants Roper and Nevitt, as set forth in the plaintiff-specific facts detailed supra, Defendant BOE has violated the clearly established rights of Plaintiff T.L.P. under the Fourteenth Amendment. Defendant BOE has created a custodial environmental within the BCS system for all students subject to the compulsory school attendance law. That custodial environment imposes a
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constitutional duty on Defendant BOE to ensure the safety and well-being of Plaintiff T.L.P. while she attends BCS. Defendant BOE breached that duty by authorizing and approving the use of chemical weapons against BCS students, and by failing to take action to protect Plaintiff T.L.P. and other students from the use of chemical weapons. Accordingly, Defendant BOE has violated the rights of Plaintiff T.L.P. in violation of the Fourteenth Amendment to the U.S. Constitution. 259. By the forgoing actions and inactions, Defendant BOE is liable pursuant to 42 U.S.C. § 1983 under the Fourteenth Amendment of the United States Constitution for failing to protect T.L.P. from Defendant Roper’s unlawful and illegal policies, practices, and customs. Because Defendant BOE breached its duty to protect T.L.P. as required by the Fourteenth Amendment and acted in clear violation of well-established law, of which a reasonable person would have been aware, it is not entitled to qualified immunity. 260. Plaintiff T.L.P. seeks compensatory damages from this Defendant.
COUNT XV Damages for Fourteenth Amendment Violations:
Failure to Protect Plaintiff B.D. Defendant Birmingham Board of Education 261. By failing to protect Plaintiff B.D. from the illegal and unreasonable actions of Defendants Roper and Henderson, as set forth in the plaintiff-specific facts detailed supra, Defendant BOE has violated the clearly established rights of Plaintiff B.D. under the Fourteenth Amendment. Defendant BOE has created a
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custodial environmental within the BCS system for all students subject to the compulsory school attendance law. That custodial environment imposes a constitutional duty on Defendant BOE to ensure the safety and well-being of Plaintiff B.D. while she attends BCS. Defendant BOE breached that duty by authorizing and approving the use of chemical weapons against BCS students, and by failing to take action to protect Plaintiff B.D. and other students from the use of chemical weapons. Accordingly, Defendant BOE has violated the rights of Plaintiff B.D. in violation of the Fourteenth Amendment to the U.S. Constitution. 262. By the forgoing actions and inactions, Defendant BOE is liable pursuant to 42 U.S.C. § 1983 under the Fourteenth Amendment of the United States Constitution for failing to protect B.D. from Defendant Roper’s unlawful and illegal policies, practices, and customs. Because Defendant BOE breached its duty to protect B.D. as required by the Fourteenth Amendment and acted in clear violation of well-established law, of which a reasonable person would have been aware, it is not entitled to qualified immunity. 263. Plaintiff B.D. seeks compensatory damages from this Defendant.
COUNT XXVI Damages for Fourteenth Amendment Violations:
Failure to Protect Plaintiff K.B. Defendant Birmingham Board of Education 264. By failing to protect Plaintiff K.B. from the illegal and unreasonable actions of Defendants Roper and Smith, as set forth in the plaintiff-specific facts detailed
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supra, Defendant BOE has violated the clearly established rights of Plaintiff K.B. under the Fourteenth Amendment. Defendant BOE has created a custodial environmental within the BCS system for all students subject to the compulsory school attendance law. That custodial environment imposes a constitutional duty on Defendant BOE to ensure the safety and well-being of Plaintiff K.B. while she attends BCS. Defendant BOE breached that duty by authorizing and approving the use of chemical weapons against BCS students, and by failing to take action to protect Plaintiff K.B. and other students from the use of chemical weapons. Accordingly, Defendant BOE has violated the rights of Plaintiff K.B. in violation of the Fourteenth Amendment to the U.S. Constitution. 265. By the forgoing actions and inactions, Defendant BOE is liable pursuant to 42 U.S.C. § 1983 under the Fourteenth Amendment of the United States Constitution for failing to protect K.B. from Defendant Roper’s unlawful and illegal policies, practices, and customs. Because Defendant BOE breached its duty to protect K.B. as required by the Fourteenth Amendment and acted in clear violation of well-established law, of which a reasonable person would have been aware, it is not entitled to qualified immunity. 266. Plaintiff K.B. seeks compensatory damages from this Defendant.
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COUNT XXVII Damages for Fourteenth Amendment Violations:
Failure to Protect Plaintiff T.A.P. Defendant Birmingham Board of Education 267. By failing to protect Plaintiff T.A.P. from the illegal and unreasonable actions of Defendants Roper and Tarrant, as set forth in the plaintiff-specific facts detailed supra, Defendant BOE has violated the clearly established rights of Plaintiff T.A.P. under the Fourteenth Amendment. Defendant BOE has created a custodial environmental within the BCS system for all students subject to the compulsory school attendance law. That custodial environment imposes a constitutional duty on Defendant BOE to ensure the safety and well-being of Plaintiff T.A.P. while she attends BCS. Defendant BOE breached that duty by authorizing and approving the use of chemical weapons against BCS students, and by failing to take action to protect Plaintiff T.A.P. and other students from the use of chemical weapons. Accordingly, Defendant BOE has violated the rights of Plaintiff T.A.P. in violation of the Fourteenth Amendment to the U.S. Constitution. 268. By the forgoing actions and inactions, Defendant BOE is liable pursuant to 42 U.S.C. § 1983 under the Fourteenth Amendment of the United States Constitution for failing to protect T.A.P. from Defendant Roper’s unlawful and illegal policies, practices, and customs. Because Defendant BOE breached its duty to protect T.A.P. as required by the Fourteenth Amendment and acted in clear
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violation of well-established law, of which a reasonable person would have been aware, it is not entitled to qualified immunity. 269. Plaintiff T.A.P. seeks compensatory damages from this Defendant.
COUNT XXVIII Damages for Fourteenth Amendment Violations:
Failure to Protect Plaintiff B.J. Defendant Birmingham Board of Education 270. By failing to protect Plaintiff B.J. from the illegal and unreasonable actions of Defendants Roper and Benson, as set forth in the plaintiff-specific facts detailed supra, Defendant BOE has violated the clearly established rights of Plaintiff B.J. under the Fourteenth Amendment. Defendant BOE has created a custodial environmental within the BCS system for all students subject to the compulsory school attendance law. That custodial environment imposes a constitutional duty on Defendant BOE to ensure the safety and well-being of Plaintiff B.J. while he attends BCS. Defendant BOE breached that duty by authorizing and approving the use of chemical weapons against BCS students, and by failing to take action to protect Plaintiff B.J. and other students from the use of chemical weapons. Accordingly, Defendant BOE has violated the rights of Plaintiff B.J. in violation of the Fourteenth Amendment to the U.S. Constitution. 271. By the forgoing actions and inactions, Defendant BOE is liable pursuant to 42 U.S.C. § 1983 under the Fourteenth Amendment of the United States Constitution for failing to protect B.J. from Defendant Roper’s unlawful and illegal
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policies, practices, and customs. Because Defendant BOE breached its duty to protect B.J. as required by the Fourteenth Amendment and acted in clear violation of well-established law, of which a reasonable person would have been aware, it is not entitled to qualified immunity. 272. Plaintiff B.J. seeks compensatory damages from this Defendant.
INDIVIDUAL CLAIMS UNDER TO ALABAMA LAW COUNT XXIX
Assault and Battery on Plaintiff G.S. in Violation of Alabama Law Defendant Roper in his individual capacity
273. Defendant Roper is liable pursuant to Alabama law for sanctioning, enforcing, and implementing a policy, custom, and/or practice that subjects BCS students, including Plaintiff G.S., to bodily harm in violation of Alabama law. 274. Defendant Roper acted willfully, recklessly, maliciously, and with a callous disregard or indifference to the rights of Plaintiff G.S. Because Defendant Roper acted willfully and maliciously, is not entitled to discretionary function immunity provided by Alabama law. 275. Plaintiff G.S. seeks compensatory damages from this Defendant.
COUNT XXX Assault and Battery on Plaintiff G.S. in Violation of Alabama Law
Defendant Clark in his individual capacity 276. By twice deploying chemical spray against Plaintiff G.S. as a means of intimidation, Defendant Clark committed the tort of assault and battery against
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G.S., in violation of Alabama law. Defendant Clark intentionally and unlawfully twice sprayed G.S. in the face with a dangerous chemical weapon, without warning, without justification, and without cause. Defendant Clark’s actions were intended to physically harm G.S. and caused her to fear imminent bodily harm. 277. Defendant Clark acted willfully, recklessly, maliciously, and with a callous disregard or indifference to the rights of Plaintiff G.S. Because Defendant Clark acted willfully and maliciously, he is not entitled to discretionary function immunity provided by Alabama law. 278. Plaintiff G.S. seeks compensatory damages from this Defendant.
COUNT XXXI Assault and Battery on Plaintiff T.L.P. in Violation of Alabama Law
Defendant Roper in his individual capacity 279. Defendant Roper is liable pursuant to Alabama law for sanctioning, enforcing, and implementing a policy, custom, and/or practice that subjects BCS students, including Plaintiff T.L.P., to bodily harm in violation of Alabama law. 280. Defendant Roper acted willfully, recklessly, maliciously, and with a callous disregard or indifference to the rights of Plaintiff T.L.P. Because Defendant Roper acted willfully and maliciously, is not entitled to discretionary function immunity provided by Alabama law. 281. Plaintiff T.L.P. seeks compensatory damages from this Defendant.
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COUNT XXXII Assault and Battery on Plaintiff T.L.P. in Violation of Alabama Law
Defendant Nevitt in his individual capacity 282. By deploying chemical spray against T.L.P. as a means of intimidation, Defendant Nevitt committed the tort of assault and battery against T.L.P., in violation of Alabama law. Defendant Nevitt intentionally and unlawfully sprayed T.L.P. with a dangerous chemical weapon, without warning, while she was restrained by an adult man. Defendant Nevitt’s actions were intended to physically harm T.L.P. and caused her to fear imminent bodily harm. 283. Defendant Nevitt acted willfully, recklessly, maliciously, and with a callous disregard or indifference to the rights of Plaintiff T.L.P. Because Defendant Nevitt acted willfully and maliciously, he is not entitled to discretionary function immunity provided by Alabama law. 284. Plaintiff T.L.P. seeks compensatory damages from this Defendant.
COUNT XXXIII Assault and Battery on Plaintiff B.D. in Violation of Alabama Law
Defendant Roper in his individual capacity 285. Defendant Roper is liable pursuant to Alabama law for sanctioning, enforcing, and implementing a policy, custom, and/or practice that subjects BCS students, including Plaintiff B.D., to bodily harm in violation of Alabama law. 286. Defendant Roper acted willfully, recklessly, maliciously, and with a callous disregard or indifference to the rights of Plaintiff B.D. Because Defendant Roper
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acted willfully and maliciously, is not entitled to discretionary function immunity provided by Alabama law. 287. Plaintiff B.D. seeks compensatory damages from this Defendant.
COUNT XXXIV Assault and Battery on Plaintiff B.D. in Violation of Alabama Law
Defendant Henderson in his individual capacity 288. By deploying chemical spray against Plaintiff B.D. as a means of intimidation, Defendant Henderson committed the tort of assault and battery against B.D., in violation of Alabama law. Defendant Henderson intentionally and unlawfully sprayed B.D. with a dangerous chemical weapon, without warning, when she posed no serious threat of harm to anyone. Defendant Henderson’s actions were intended to physically harm Plaintiff B.D. and caused her to fear imminent bodily harm. 289. Defendant Henderson acted willfully, recklessly, maliciously, and with a callous disregard or indifference to the rights of Plaintiff B.D. Because Defendant Henderson acted willfully and maliciously, he is not entitled to discretionary function immunity provided by Alabama law. 290. Plaintiff B.D. seeks compensatory damages from this Defendant.
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COUNT XXXV Assault and Battery on Plaintiff T.A.P. in Violation of Alabama Law
Defendant Roper in his individual capacity 291. Defendant Roper is liable pursuant to Alabama law for sanctioning, enforcing, and implementing a policy, custom, and/or practice that subjects BCS students, including Plaintiff K.B., to bodily harm in violation of Alabama law. 292. Defendant Roper acted willfully, recklessly, maliciously, and with a callous disregard or indifference to the rights of Plaintiff K.B. Because Defendant Roper acted willfully and maliciously, is not entitled to discretionary function immunity provided by Alabama law. 293. Plaintiff K.B. seeks compensatory damages from this Defendant.
COUNT XXXVI Assault and Battery on Plaintiff K.B. in Violation of Alabama Law
Defendant Smith in his individual capacity 294. By deploying chemical spray against Plaintiff K.B. as a means of intimidation, Defendant Smith committed the tort of assault and battery against K.B., in violation of Alabama law. Defendant Smith intentionally and unlawfully sprayed K.B. with a dangerous chemical weapon, without warning, when she posed no threat of harm to anyone. Defendant Smith’s actions were intended to physically harm Plaintiff K.B. and caused her to fear imminent bodily harm. 295. Defendant Smith acted willfully, recklessly, maliciously, and with a callous disregard or indifference to the rights of Plaintiff K.B. Because Defendant Smith
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acted willfully and maliciously, he is not entitled to discretionary function immunity provided by Alabama law. 296. Plaintiff K.B. seeks compensatory damages from this Defendant.
COUNT XXXVII Assault and Battery on Plaintiff T.A.P. in Violation of Alabama Law
Defendant Roper in his individual capacity 297. Defendant Roper is liable pursuant to Alabama law for sanctioning, enforcing, and implementing a policy, custom, and/or practice that subjects BCS students, including Plaintiff T.A.P., to bodily harm in violation of Alabama law. 298. Defendant Roper acted willfully, recklessly, maliciously, and with a callous disregard or indifference to the rights of Plaintiff T.A.P. Because Defendant Roper acted willfully and maliciously, is not entitled to discretionary function immunity provided by Alabama law. 299. Plaintiff T.A.P. seeks compensatory damages from this Defendant.
COUNT XXXVIII Assault and Battery on Plaintiff T.A.P. in Violation of Alabama Law
Defendant Tarrant in his individual capacity 300. By deploying chemical spray against Plaintiff T.A.P. as a means of intimidation, Defendant Tarrant committed the tort of assault and battery against T.A.P., in violation of Alabama law. Defendant Tarrant intentionally and unlawfully sprayed T.A.P. with a dangerous chemical weapon, without warning, and while she was restrained by five grown men. Defendant Tarrant’s actions were
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intended to physically harm Plaintiff T.A.P. and caused her to fear imminent bodily harm. 301. Defendant Tarrant acted willfully, recklessly, maliciously, and with a callous disregard or indifference to the rights of Plaintiff T.A.P. Because Defendant Tarrant acted willfully and maliciously, he is not entitled to discretionary function immunity provided by Alabama law. 302. Plaintiff T.A.P. seeks compensatory damages from this Defendant.
COUNT XXXIX Assault and Battery on Plaintiff T.A.P. in Violation of Alabama Law
Defendant Moss in his individual capacity 303. Defendant Moss intentionally tripped T.A.P., causing her to fall to the ground, and ground his foot her in back. Defendant Moss also held T.A.P. to the ground as Defendant Tarrant sprayed her in the face with chemical spray. These actions amount a tort of assault of battery against T.A.P. in violation of Alabama law. Defendant Moss’ actions were intended to physically harm Plaintiff T.A.P. and caused her to fear imminent bodily harm. 304. Defendant Moss acted willfully, recklessly, maliciously, and with a callous disregard or indifference to the rights of Plaintiff T.A.P. Because Defendant Moss acted willfully and maliciously, he is not entitled to discretionary function immunity provided by Alabama law. 305. Plaintiff T.A.P. seeks compensatory damages from this Defendant.
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COUNT XL Assault and Battery on Plaintiff B.J. in Violation of Alabama Law
Defendant Roper in his individual capacity 306. Defendant Roper is liable pursuant to Alabama law for sanctioning, enforcing, and implementing a policy, custom, and/or practice that subjects BCS students, including Plaintiff B.J., to bodily harm in violation of Alabama law. 307. Defendant Roper acted willfully, recklessly, maliciously, and with a callous disregard or indifference to the rights of Plaintiff B.J. Because Defendant Roper acted willfully and maliciously, is not entitled to discretionary function immunity provided by Alabama law. 308. Plaintiff B.J. seeks compensatory damages from this Defendant.
COUNT XLI Assault and Battery on Plaintiff B.J. in Violation of Alabama Law
Defendant Benson in her individual capacity 309. By deploying chemical spray against B.J. as a means of intimidation and kicking him to the ground and planting her knee in his back, Defendant Benson committed assault and battery against B.J., in violation of Alabama law. Defendant Benson intentionally and unlawfully sprayed B.J. with a dangerous chemical weapon without warning or cause. Defendant Benson also kicked B.J. to the ground after deploying the chemical in B.J.’s face. Her actions were intended to physically harm B.J. and caused him to fear imminent bodily harm.
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310. Defendant Benson acted willfully, recklessly, maliciously, and with a callous disregard or indifference to the rights of Plaintiff B.J. Because Defendant Benson acted willfully and maliciously, she is not entitled to discretionary function immunity provided by Alabama law. 311. Plaintiff B.J. seeks compensatory damages from this Defendant.
COUNT XLII Claim of Tort of Outrage on Plaintiff G.S. in Violation of Alabama Law
Defendant Roper in his individual capacity 312. By sanctioning, approving, and authorizing the illegal and unconstitutional use of chemical weapons by Defendant Clark against Plaintiff G.S., Defendant Roper engaged in extreme and outrageous conduct in violation of Alabama law. As a result of Defendant Roper’s policy, practices, and deficient training program with regard to the use of chemical weapons in BCS, Plaintiff G.S. suffered physical and emotional distress that no reasonable child could be expected to endure. 313. Defendant Roper acted willfully, recklessly, maliciously, and with a callous disregard or indifference to the rights of Plaintiff G.S. Because Defendant Roper acted willfully and maliciously, he is not entitled to discretionary function immunity provided by Alabama law. 314. Plaintiff G.S. seeks compensatory damages from this Defendant.
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COUNT XLIII Claim of Tort of Outrage on Plaintiff G.S. in Violation of Alabama Law
Defendant Clark in his individual capacity 315. By intentionally deploying chemical spray against G.S. as a means of intimidation and fear and without necessity, Defendant Clark engaged in extreme and outrageous conduct in violation of Alabama law. Without identifying himself as a police officer, Defendant Clark grabbed a young girl from behind, then sprayed a blast of painful chemicals in her face. After Plaintiff G.S. had already been incapacitated from the first blast of chemical spray, Defendant Clark proceeded to intentionally and recklessly spray her for a second time. Defendant Clark’s actions caused G.S. physical and emotional distress that no reasonable child could be expected to endure. 316. Defendant Clark acted willfully, recklessly, maliciously, and with a callous disregard or indifference to the rights of Plaintiff G.S. Because Defendant Clark acted willfully and maliciously, he is not entitled to discretionary function immunity provided by Alabama law. 317. Plaintiff G.S. seeks compensatory damages from this Defendant.
COUNT XLIV Claim of Tort of Outrage on Plaintiff T.L.P. in Violation of Alabama Law
Defendant Roper in his individual capacity 318. By sanctioning, approving, and authorizing the illegal and unconstitutional use of chemical weapons by Defendant Nevitt against Plaintiff T.L.P. Defendant
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Roper engaged in extreme and outrageous conduct in violation of Alabama law. As a result of Defendant Roper’s policy, practices, and deficient training program with regard to the use of chemical weapons in BCS, Plaintiff T.L.P. suffered physical and emotional distress that no reasonable child could be expected to endure. 319. Defendant Roper acted willfully, recklessly, maliciously, and with a callous disregard or indifference to the rights of Plaintiff T.L.P. Because Defendant Roper acted willfully and maliciously, he is not entitled to discretionary function immunity provided by Alabama law. 320. Plaintiff T.L.P. seeks compensatory damages from this Defendant.
COUNT XLV Claim of Tort of Outrage on Plaintiff T.L.P. in Violation of Alabama Law
Defendant Nevitt in his individual capacity 321. By intentionally deploying chemical spray against T.L.P. as a means of intimidation, Defendant Nevitt engaged in extreme and outrageous conduct in violation of Alabama law. Without first delivering a warning or giving Plaintiff T.L.P. an opportunity to avoid his attack, Defendant Nevitt intentionally and recklessly sprayed a young child in the face with chemical spray, while she was being restrained by an adult man. Defendant Nevitt’s actions caused T.L.P. physical and emotional distress that no reasonable child could be expected to endure.
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322. Defendant Nevitt acted willfully, recklessly, maliciously, and with a callous disregard or indifference to the rights of Plaintiff T.L.P. Because Defendant Nevitt acted willfully and maliciously, he is not entitled to discretionary function immunity provided by Alabama law. 323. Plaintiff T.L.P. seeks compensatory damages from this Defendant.
COUNT XLVI Claim of Tort of Outrage on Plaintiff B.D. in Violation of Alabama Law
Defendant Roper in his individual capacity 324. By sanctioning, approving, and authorizing the illegal and unconstitutional use of chemical weapons by Defendant Henderson against Plaintiff B.D. Defendant Roper engaged in extreme and outrageous conduct in violation of Alabama law. As a result of Defendant Roper’s policy, practices, and deficient training program with regard to the use of chemical weapons in BCS, Plaintiff B.D. suffered physical and emotional distress that no reasonable child could be expected to endure. 325. Plaintiff B.D. seeks compensatory damages from this Defendant.
COUNT XLVII Claim of Tort of Outrage on Plaintiff B.D. in Violation of Alabama Law
Defendant Henderson in his individual capacity 326. By intentionally deploying chemical spray against B.D. as a means of intimidation, Defendant Henderson engaged in extreme and outrageous conduct in violation of Alabama law. Without first delivering a warning or giving Plaintiff
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B.D. an opportunity to avoid his attack, Defendant Henderson intentionally and recklessly sprayed a young child in the face with chemical spray when she posed no threat of harm to anyone. Defendant Henderson’s actions caused B.D. physical and emotional distress that no reasonable child could be expected to endure. 327. Defendant Henderson acted willfully, recklessly, maliciously, and with a callous disregard or indifference to the rights of Plaintiff B.D. Because Defendant Nevitt acted willfully and maliciously, he is not entitled to discretionary function immunity provided by Alabama law. 328. Plaintiff B.D. seeks compensatory damages from this Defendant.
COUNT XL VII Claim of Tort of Outrage on Plaintiff K.B. in Violation of Alabama Law
Defendant Roper in his individual capacity 329. By sanctioning, approving, and authorizing the illegal and unconstitutional use of chemical weapons by Defendant Smith against Plaintiff K.B. Defendant Roper engaged in extreme and outrageous conduct in violation of Alabama law. As a result of Defendant Roper’s policy, practices, and deficient training program with regard to the use of chemical weapons in BCS, Plaintiff K.B. suffered physical and emotional distress that no reasonable child could be expected to endure. 330. Defendant Roper acted willfully, recklessly, maliciously, and with a callous disregard or indifference to the rights of Plaintiff K.B. Because Defendant Roper
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acted willfully and maliciously, he is not entitled to discretionary function immunity provided by Alabama law. 331. Plaintiff K.B. seeks compensatory damages from this Defendant.
COUNT XLIX Claim of Tort of Outrage on Plaintiff K.B. in Violation of Alabama Law
Defendant Smith in his individual capacity 332. By intentionally deploying chemical spray against K.B. as a means of intimidation, Defendant Smith engaged in extreme and outrageous conduct in violation of Alabama law. Without first delivering a warning or giving Plaintiff K.B. an opportunity to avoid his attack, Defendant Smith intentionally and recklessly sprayed a young child in the face with chemical spray, when she posed no threat of harm to anyone. Defendant Smith’s actions caused K.B. physical and emotional distress that no reasonable child could be expected to endure. 333. Defendant Smith acted willfully, recklessly, maliciously, and with a callous disregard or indifference to the rights of Plaintiff K.B. Because Defendant Smith acted willfully and maliciously, he is not entitled to discretionary function immunity provided by Alabama law. 334. Plaintiff K.B. seeks compensatory damages from this Defendant.
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COUNT L Claim of Tort of Outrage on Plaintiff T.A.P. in Violation of Alabama Law
Defendant Roper in his individual capacity 335. By sanctioning, approving, and authorizing the illegal and unconstitutional use of chemical weapons by Defendant Tarrant against Plaintiff T.A.P. Defendant Roper engaged in extreme and outrageous conduct in violation of Alabama law. As a result of Defendant Roper’s policy, practices, and deficient training program with regard to the use of chemical weapons in BCS, Plaintiff T.A.P. suffered physical and emotional distress that no reasonable child could be expected to endure. 336. Defendant Roper acted willfully, recklessly, maliciously, and with a callous disregard or indifference to the rights of Plaintiff T.A.P. Because Defendant Roper acted willfully and maliciously, he is not entitled to discretionary function immunity provided by Alabama law. 337. Plaintiff T.A.P. seeks compensatory damages from this Defendant.
COUNT LI Claim of Tort of Outrage on Plaintiff T.A.P. in Violation of Alabama Law
Defendant Tarrant in his individual capacity 338. By intentionally deploying chemical spray against Plaintiff T.A.P. as a means of pure intimidation and punishment, Defendant Tarrant engaged in extreme and outrageous conduct in violation of Alabama law. Defendant Tarrant intentionally and recklessly sprayed a young child in the face with a painful
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chemical, while she was pinned to the ground and completely incapacitated by five adult men. Defendant Tarrant’s actions caused T.A.P. physical and emotional distress that no reasonable child could be expected to endure. 339. Defendant Tarrant acted willfully, recklessly, maliciously, and with a callous disregard or indifference to the rights of Plaintiff T.A.P. Because Defendant Tarrant acted willfully and maliciously, he is not entitled to discretionary function immunity provided by Alabama law. 340. Plaintiff T.A.P. seeks compensatory damages from this Defendant.
COUNT LII Claim of Tort of Outrage on Plaintiff T.A.P. in Violation of Alabama Law
Defendant Moss in his individual capacity 341. Defendant Moss intentionally caused T.A.P. to fall to the ground by tripping her and planted his foot in her back. Defendant Moss also aided Defendant Tarrant in subjecting T.A.P. to abusive and barbaric treatment by spraying her in the face with a chemical weapon. This conduct amounts to extreme and outrageous conduct in violation of Alabama law. Defendant Moss’ actions caused T.A.P. physical and emotional distress that no reasonable child could be expected to endure. 342. Defendant Moss acted willfully, recklessly, maliciously, and with a callous disregard or indifference to the rights of Plaintiff T.A.P. Because Defendant Moss
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acted willfully and maliciously, he is not entitled to discretionary function immunity provided by Alabama law. 343. Plaintiff T.A.P. seeks compensatory and punitive damages from this Defendant.
COUNT LIII Claim of Tort of Outrage on Plaintiff B.J. in Violation of Alabama Law
Defendant Roper in his individual capacity 344. By sanctioning, approving, and authorizing the illegal and unconstitutional use of chemical weapons by Defendant Benson against Plaintiff B.J. Defendant Roper engaged in extreme and outrageous conduct in violation of Alabama law. As a result of Defendant Roper’s policy, practices, and deficient training program with regard to the use of chemical weapons in BCS, these Plaintiffs suffered physical and emotional distress that no reasonable child could be expected to endure. 345. Defendant Roper acted willfully, recklessly, maliciously, and with a callous disregard or indifference to the rights of Plaintiff B.J. Because Defendant Roper acted willfully and maliciously, he is not entitled to discretionary function immunity provided by Alabama law. 346. Plaintiff B.J. seeks compensatory damages from this Defendant.
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COUNT LIV Claim of Tort of Outrage on Plaintiff B.J. in Violation of Alabama Law
Defendant Benson in her individual capacity 347. By intentionally deploying chemical spray against B.J. as a means of intimidation and fear, Defendant Benson engaged in extreme and outrageous conduct in violation of Alabama law. Without even delivering a warning, Defendant Benson intentionally and recklessly sprayed a young child in the face with a painful chemical spray, while that child was being restrained by two adult men. Defendant Benson’s actions caused B.J. physical and emotional distress that no reasonable child could be expected to endure. 348. Defendant Benson acted willfully, recklessly, maliciously, and with a callous disregard or indifference to the rights of Plaintiff B.J. Because Defendant Benson acted willfully and maliciously, she is not entitled to discretionary function immunity provided by Alabama law. 349. Plaintiff B.J. seeks compensatory damages from this Defendant.
PRAYER FOR RELIEF WHEREFORE, the Plaintiffs pray that this Court grant the following relief:
1. Assume jurisdiction over this matter; 2. Certify this action as a class action pursuant to Fed. R. Civ. P. 23(a)
and (b)(2);
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3. Declare that the acts and omissions of all Defendants violate the U.S. Constitution;
4. Declare that the acts and omissions of Defendants Roper, Clark, Nevitt, Henderson, Smith, Tarrant, Moss, and Benson violate state law;
5. Enter a permanent injunction requiring Defendants Roper and the Birmingham Board of Education, their agents, employees and all persons acting in concert with them to cease the unconstitutional and unlawful practices outline above;
6. Award compensatory and punitive damages to the named Plaintiffs for the injuries they sustained as a result of the actions of Defendants Roper, Clark, Nevitt, Smith, Henderson, Tarrant, Moss, and Benson;
7. Award the Plaintiffs the costs of this lawsuit and reasonable attorneys’ fees and costs under 42 U.S.C. § 1988; and
8. Grant any other relief the Court shall deem just and proper. Respectfully submitted this 10th day of September, 2012.
/s/ Ebony G. Howard Ebony G. Howard (ASB-7247-O76H) Mary C. Bauer (ASB-1181-R76B) Maria V. Morris (ASB-2198-R64M) Jadine C. Johnson (ASB-7253-E33J) SOUTHERN POVERTY LAW CENTER 400 Washington Avenue Montgomery, Alabama 36104
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334-956-8200 334-956-8481 (fax) Counsel for Plaintiffs
CERTIFICATE OF SERVICE I hereby certify that on the 10th day of September, 2012, I electronically filed the foregoing with the clerk of the court by using the CM/ECF system, which will send a notice of electronic filing to the following:
Mark S. Boardman Clay Carr Boardman, Carr, Hutcheson & Bennett, P.C. 400 Boardman Drive Chelsea, Alabama 35043-8211 Office (205) 678-8000 mboardman@boardmancarr.com ccarr@boardmancarr.com Counsel for Defendant Moss
Thomas Bentley, III Frederick Fullerton II Nicole King Javan Patton City of Birmingham - Law Department 710 North 20th Street Birmingham, Alabama 35203 Office (205) 254-2369 Thomas.Bentley@ci.birmingham.al.us Frederick.Fullerton@ci.birmingham.al.us Counsel for Police Defendants
/s/ Ebony G. Howard
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 Case 2:10-cv-03314-AKK Document 48 Filed 07/20/11 Page 1 of 29
IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

FILED
2011 Jul-20 AM 09:49 U.S. DISTRICT COURT
N.D. OF ALABAMA

J.W., a minor by and through Tammy )

Williams, et al.

)

)

Plaintiffs,

)

)

vs.

)

)

BIRMINGHAM BOARD OF )

EDUCATION, et al.

)

)

Defendants.

)

Civil Action Number 2:10-CV-3314-AKK

MEMORANDUM OPINION

Before the court is Defendants Birmingham Board of Education, Craig

Witherspoon, and Anthony Moss’s (hereinafter, the “School Defendants”) Motion to Dismiss. Doc. 14.1 Plaintiffs have sued the defendants alleging improper use of

pepper spray on high school students by School Resource Officers (“SROs”) of the

Birmingham Police Department (“BPD”). Upon consideration of the record, the

submissions of the parties, and the relevant law, the court finds that the School

Defendants’ Motion to Dismiss is due to be GRANTED in part and DENIED in part.

I. STANDARD OF REVIEW

Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain “a short

and plain statement of the claim showing that the pleader is entitled to relief.” “[T]he

pleading standard Rule 8 announces does not require ‘detailed factual allegations,’

1Reference to a document number, “Doc. ___”, refers to the number assigned to each document as it is filed in the court’s record.

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but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, ---U.S.---, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Mere “labels and conclusions” or “a formulaic recitation of the elements of a cause of action” are insufficient. Iqbal, 129 S. Ct. at 1949 (citations and internal quotation marks omitted). “Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Id. at 1949 (citing Twombly, 550 U.S. at 557).
Federal Rule of Civil Procedure 12(b)(6) permits dismissal when a complaint fails to state a claim upon which relief can be granted. “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Iqbal, 129 S. Ct. at 1949 (citations and internal quotation marks omitted). A complaint states a facially plausible claim for relief “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citation omitted). The complaint must establish “more than a sheer possibility that a defendant has acted unlawfully.” Id.; see also Twombly, 550 U.S. at 555 (“Factual allegations must be enough to raise a right to relief above the speculative level.”). Ultimately, this inquiry is a “context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 129 S. Ct. at 1950.
On a motion to dismiss under Rule 12(b)(6), the court accepts all of a plaintiff’s factual allegations as true. See, e.g., Grossman v. Nationsbank, N.A., 225 F.3d 1228,
2

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1231 (11th Cir. 2000). However, legal conclusions unsupported by factual allegations are not entitled to that assumption of truth. Iqbal, 129 S. Ct. at 1950.
II. STATEMENT OF FACTS2 Plaintiffs, current and former students enrolled in Birmingham high schools, have sued defendants alleging a number of claims arising from the use of pepper spray by SROs, who are Birmingham police officers assigned to Birmingham high schools. According to plaintiffs, the Birmingham Board of Education “is a ninemember, elected legal body ‘vested with all the powers necessary or proper for the administration and management of [the Birmingham city school system].’” Doc. 25-1 ¶ 12 (citing Ala. Code § 16-11-9). The Board “is responsible for supervising the schools in the district by establishing and enacting guiding policies.” Id. (citation omitted). “Defendant Craig Witherspoon is the Superintendent and Chief Executive Officer of [the Birmingham City School System];” he “is responsible for ‘see[ing] that the laws relating to the schools and the rules and regulations of the city board of education are carried into effect.’” Id. ¶ 13 (citing Ala. Code § 16-12-3). Witherspoon “supervises all schools and all personnel” in the Birmingham city school
2These facts are taken from plaintiffs’ proposed Third Amended Complaint, which is attached to their Motion to File Third Amended Complaint and Incorporated Memorandum of Law. Doc. 25. By filing a Motion to Amend, before the court ruled on the pending Motion to Dismiss, plaintiffs have “invited” this court to review the Motion to Dismiss in light of the proposed amendments. See Coventry First, LLC v. McCarty, 605 F.3d 865, 870 (11th Cir. 2010). As set forth above, the court views plaintiffs’ factual allegations as true; however, it does not assume the truth of conclusory statements.
3

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system and “is responsible for the management of the schools under [the Board’s] policies.” Id. (internal citations and quotations omitted). Defendant Anthony Moss was an Assistant Principal at Carver High School at all times relevant to this action. Id. ¶ 155. According to plaintiffs, school policy “does not allow the use of corporal punishment as an appropriate means of discipline.” Id.
Alabama has a compulsory school attendance law, Ala. Code § 16-28-3, which requires children between the ages of seven and seventeen to attend school. Id. ¶ 32. The Board and Witherspoon enforce the attendance law. Id. ¶ 33. In January 1996, the Board approved for BPD officers to patrol city high schools and the stationing of SROs at city schools. Id. ¶¶ 35, 36. “SROs are required to report to their assigned school site every day and commence routine job functions, including patrolling school grounds and engaging in school discipline.” Id. ¶ 37. “SROs patrol school grounds and engage in school discipline with the permission of [the Board] and Witherspoon.” Id. “SROs frequently become involved – both on their own initiative and at the request of school personnel – in minor incidents in which safety is not an issue.” Id. ¶ 36. Plaintiffs allege that “school personnel are aware that SROs utilize police practices, such as use of Freeze +P (a pepper spray product) and physical force, while engaging in school discipline.” Id. ¶ 38.
Plaintiffs contend that the School Defendants have “a long-standing agreement” with the BPD that SROs not only “make arrests when they witness students engaged in illegal behavior,” but that they also “respond when school
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personnel seek their assistance in enforcing the [Birmingham city school system’s]
Code of Conduct.” Id. ¶ 40. They contend the School Defendants are “aware that
SROs often use abusive and unnecessary force against schoolchildren in the course
of their duties,” and the Board “authorize[s] the use of [abusive and unnecessary]
force.” Id.
A.C. Roper, Chief of Police for the BPD, has authorized Birmingham police
officers, including SROs, to carry Freeze +P, a pepper spray. Id. ¶ 46. Plaintiffs
quote the following from the BPD’s “policy on Chemical Spray Subject Restraint:
Non-deadly Use of Force, Procedure No. 113-5”:
C. The chemical spray may be used in an arrest situation where the weapon’s use offers the possibility of lessening the likelihood of physical injury to the arresting officer, citizens on the scene and/or the suspect.
D. The use of chemical spray is intended solely as a control device to enable the officer to carry out his or her duties in the safest, most efficient and most professional manner with the least chance of injury to either the officer or suspect. 1. At no time will an officer unnecessarily brandish, or use chemical spray as an intimidation device unless the officer is attempting to prevent further escalation of force.
2. Chemical spray is not[,] under any circumstances, to be used as punishment or as a coercive tool once an individual is under control and in custody.
3. The chemical spray is not to be used by officers unless they have a reasonable belief that a crime has been committed and that the intended target committed the crime.
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E. Any time chemical spray is used for controlling an offender[,] the application of the chemical spray will end when the subject discontinues resistance or aggression.
F. The chemical spray is best employed in one to two second bursts. The spray must be directed to the facial area of the assailant, with the bridge of the nose being the best target area. This weapon is primarily an inflammatory agent, producing the following results:
1. Involuntary closing of the eyes.
2. Swelling of the mucous membranes, which results in shallow breathing ability.
3. Intense burning on sensitive parts of the body.
. . .
H. It should be kept in mind by all concerned that any actual contact with chemical spray to the face or sensitive skin areas will result in the officer being adversely affected by its properties. Caution must be taken while handcuffing prisoners, placing them in automobiles, etc. If contact is made with the actual substance, the officer shall refrain from touching his face with the contacted area until he can wash that area with warm soapy water.
III. AFTER USE PROCEDURE
A. Following the use of chemical spray the officer will ensure that the subject receives adequate decontamination as soon as practical. The officer should supply immediate medical attention if requested by the subject.
B. Birmingham Fire and Rescue will be called and will determine whether or not the subject needs further medical attention or hospital treatment.
D.[sic] Any time an officer uses chemical spray for subject control, the officer
will notify the on-duty supervisor and complete a Use of Force Information and Statement Report.
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Id. ¶ 59. Plaintiffs contend the language of this policy permits and encourages BPD officers, including SROs, to recklessly deploy chemical weapons against individuals, including children, in inappropriate situations and allows officers to respond disproportionately to student misbehavior. In effect, it authorizes and directs BPD officers, including SROs, to deploy chemical agents in an unreasonable and unconstitutional manner.
Id. ¶ 61. Moreover, they contend that the School Defendants “are aware that SROs routinely use Freeze +P against students in the course of school discipline and arrests, even when the targeted child poses no risk of injury to other children, to the officer, to school personnel, or to herself.” Id. ¶ 68.
“Under BPD policy, any officer who uses a chemical weapon must notify the on-duty supervisor and complete a Use of Force Information and Statement Report.” Id. ¶ 69. “These reports are subject to regular review by high-level BPD officials to ensure conformity with departmental policy, practice, and custom. Any use of force must also be noted in the officer’s report of the incident.” Id. Therefore, plaintiffs allege “Roper is aware of the abusive practices [of SROs] given that they are reflected in the officers’ Use of Force Information and Statement Reports and officer reports.” Id. Plaintiffs contend the Board and Witherspoon were aware of abusive use of pepper spray by SROs based on “media coverage” and complaint from parents. Id. ¶ 72.
Plaintiffs’ complaints against defendant Moss arise from a confrontation with plaintiff T.A.P. See id. ¶¶ 153-167, 216, 223. Plaintiffs allege:
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153. At all relevant times, T.A.P. was 5 feet, 4 inches tall and weighed approximately 145 pounds. T.A.P. attended Carver High School from 2007 to 2009.
154. Defendant Tarrant is a male SRO. He has a muscular build, stands approximately five feet, six inches in height, and weighs approximately 200 pounds.
155. Defendant Moss is an assistant principal at Carver High School. He has a stocky build, stands approximately six feet, two inches in height, and weighs approximately 280 pounds. . . .
156. On or around August 31, 2009, T.A.P. entered a classroom to begin her third-block class. As T.A.P. walked in, a substitute teacher approached her, accused her of smoking cigarettes, and sent her to the school’s main office to see Assistant Principal Moss.
157. Outside of the main office, Assistant Principal Moss accused T.A.P. of smelling like cigarette smoke. T.A.P. explained that she had smoked a cigarette before school started and off of school grounds. Moss disregarded T.A.P.’s explanation and ordered her to call her mother to arrange to leave school. In an attempt to comply, T.A.P. took out her cell phone and began to dial her mother. Even though he had told T.A.P. to call her mother, Moss attempted to take the cell phone away from her. When T.A.P. refused to give him the cell phone, he became visibly angry and told her that she could leave.
158. Assuming that he meant she could go home, T.A.P. followed Moss down the school hallway and outside of the school. As they reached the door, Moss opened the door and motioned for T.A.P. to exit ahead of him. As T.A.P. walked out of the door, Moss grabbed her from behind and tripped her. T.A.P. fell onto the concrete, stomach-first. Moss then dug his foot into her back as she lay on the ground.
159. T.A.P. heard a student call out “Damn, you didn’t have to do it like that.” After hearing the student, Moss removed his foot from T.A.P.’s back.
160. When T.A.P. stood up, she noticed Officer Tarrant standing close by. T.A.P. bent to pick up her backpack from the ground and slung it over her shoulder. As she slung the backpack, the backpack
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accidentally bumped Tarrant in the chest. T.A.P. then saw Tarrant reach for his belt. Because she did not know what he was reaching for, T.A.P. panicked and ran.
161. Tarrant caught T.A.P. after she ran approximately seven feet. He grabbed her from behind and threw her down into some bushes on the lawn.
162. When T.A.P. looked up, she saw Moss and Tarrant standing above her. Moss grabbed her right arm, while Tarrant grabbed her left arm. Several seconds later, three other men – all unknown to T.A.P. – approached and held her legs down. T.A.P. was frightened being restrained by five men, and began to squirm under their grasp. However, she did not break free from their hold nor did she utter any threats to any of the men.
163. As T.A.P. was pinned to the ground, restrained by five grown men, Tarrant said: “You wanna act hard? Let’s see how you act when you get this.” Tarrant then removed his canister of Freeze +P from his belt and sprayed a blast into T.A.P.’s face and eyes without warning. T.A.P. felt intense pain on her face and in her eyes, had difficulty breathing, and was blinded. Tarrant then flipped T.A.P. onto her stomach, handcuffed her, and took her to one of the school’s administrative offices.
. . .
165. Tarrant eventually escorted T.A.P. to Cooper Green Hospital, but it was too late to provide any effective treatment or pain relief, and T.A.P. was asked to sign a medical release waiver. Tarrant then escorted T.A.P. to the Jefferson County Family Court. T.A.P. continued to wear the contaminated clothing until she was released to her mother, Barbara Pettaway, at around 5:00 p.m. that evening.
. . .
167. As a direct and proximate result of the actions of Defendants Tarrant and Moss, T.A.P. suffered emotional, psychological, and physical injuries. T.A.P. experienced swelling in the face and eyes for 24 hours, blindness for more than five hours, severe burning of the eyes and face, and difficulty breathing. The skin around her eyes was
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damaged and peeling for a week after she was sprayed. The actions of Defendants Tarrant and Moss were major factors in T.A.P.’s decision not to return to school. T.A.P. continues to experience a deep distrust of the school and law enforcement staff at Carver High School. Id. ¶¶ 153-67. Plaintiffs filed their Complaint on December 1, 2010. Doc. 1. They filed an Amended Complaint (“First Amended Complaint”) on January 7, 2011, (doc. 8), and, on February 14, 2011, they filed a Motion to Amend and a Second Amended Complaint, (docs. 19, 20).3 The School Defendants filed a Motion to Dismiss the First Amended Complaint on January 21, 2011, (doc. 14), and it is this motion this opinion addresses.
III. DISCUSSION A. OFFICIAL CAPACITY CLAIMS AGAINST WITHERSPOON AND MOSS
Plaintiffs concede that the claims asserted against Witherspoon and Moss in their official capacities are due to be dismissed. See doc. 21 at 2 n.2. Therefore, the court will dismiss the claims against them in the their official capacities. B. PUNITIVE DAMAGE CLAIMS
Plaintiffs also concede their claims for punitive damages asserted against the School Defendants. See doc. 21 at 2 n.2. Therefore, the court will dismiss the claims for punitive damages against the School Defendants.
3Plaintiffs filed a Motion to File a Third Amended Complaint on May 3, 2011. Doc. 25. 10

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C. “PERSON” UNDER § 1983 The School Defendants contend, “The plaintiffs’ claims for damages under 42
U.S.C. §1983 against the Board . . . fail to state claims upon which relief can be granted because state agencies . . . are not persons subject to suit for damages under §1983.” Doc. 14 ¶ 14; see also id. ¶ 17. They contend that the Board is a state agency, and, therefore, is not subject to suit under 42 U.S.C. § 1983. Doc. 15 at 12 (citing, inter alia, Edwards v. Wallace Cmty. Coll., 49 F.3d 1517, 1524 (11th Cir. 1995) and quoting Ex parte Hale Cnty. Bd. of Educ., 14 So. 3d 844, 846 (Ala. 2009)).
Although the Supreme Court “has construed the word ‘person’ in § 1983 to exclude States,” Howlett By and Through Howlett v. Rose, 496 U.S. 356, 376 (1990), the Court has made clear that “municipal corporations and similar governmental entities are ‘persons’” subject to liability under § 1983. Id. (citing, inter alia, Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 280-81 (1977)). Indeed, the Eleventh Circuit and the old Fifth Circuit have “rejected claims by local boards of education . . . that they are entitled to Eleventh Amendment protection.” Stewart v. Baldwin Cnty. Bd. of Educ., 908 F.2d 1499, 1510 n.6 (11th Cir. 1990)(citing Travelers Indem. Co. v. Sch. Bd. of Dade Cnty., 666 F.2d 505 (11th Cir. 1982); Moore v. Tangipahoa Parish Sch. Bd., 594 F.2d 489, 493-94 (5th Cir. 1979); Campbell v. Gadsden County Dist. Sch. Bd., 534 F.2d 650, 655-56 (5th Cir. 1976); Adams v. Rankin Cnty. Bd. of Educ., 524 F.2d 928, 929 (5th Cir. 1975)); see also Hardy v. Town of Hayneville, 50 F. Supp. 2d 1176, 1187 (M.D. Ala. 1999)(citing
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Monell v. Dept. of Social Servs., 436 U.S. 658, 689 (1978)) (“Local governmental bodies such as school boards . . . are persons within the meaning of section 1983 and can be held accountable for deprivations of federally protected rights.”).
The School Defendants’ arguments to the contrary have no legal support. In fact, the cases they cite hold only that a school board is entitled to state-tort immunity. See Hutt, 454 So. 2d at 974 n.2 (municipal board of education enjoys immunity from state tort claims (citing Enterprise City Bd. of Educ. v. Miller, 348 So. 2d at 783, 784 (Ala. 1977) and Jackson v. City of Florence, 320 So. 2d 68 (1975))). Such claims are separate and distinct from § 1983 claims for which school boards have no immunity. Indeed, although not binding on this court, the Alabama Supreme Court has held that a local board of education “is . . . not an arm of the State for the purposes of § 1983 liability.” Ex parte Madison Cnty. Bd. of Educ., 1 So. 3d 980, 989-90 (Ala. 2008) (emphasis added).
The court finds that the Board is a “person” subject to suit under § 1983, and, accordingly, DENIES the motion to dismiss the § 1983 claims against it. D. CLAIMS BASED ON A CONSTITUTIONAL DUTY TO PROTECT
In Counts II and V of the Amended Complaint, plaintiffs allege that the Board “has created a custodial environment with the [Birmingham] high schools for all students subject to the compulsory school attendance law,” and, “As a result of the custodial environment in [Birmingham high schools], Defendant [Board] has a constitutional duty under the Fourteenth Amendment to protect . . . high school
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students from being injured by third parties while the students are on school property for the purpose of obtaining an education.” Doc. 25-1 ¶¶ 191-92. The School Defendants disagree and move for dismissal because “there is no constitutional right to such protection.” Doc. 14 ¶ 13; see also id. ¶¶ 3, 6.
In this Circuit, “schoolchildren are not in a custodial relationship with the state,” and “school attendance laws [do] not restrain personal liberty in a way that place[s] an affirmative duty on the school to provide for the student’s safety and general well-being.” Nix v. Franklin Cnty. Sch. Dist., 311 F.3d 1373, 1378 (11th Cir. 2002)(citing and quoting Wyke v. Polk Cnty. Sch. Bd., 129 F.3d 560, 569 (11th Cir. 1997)(quoting DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 200 (1989)))(internal quotations omitted). This court is bound to follow this prior ruling of the Eleventh Circuit. See Magwood v. Jones, 472 F. Supp. 2d 1333, 1343 (M.D. Ala. 2007)(“[I]f a circuit court has conclusively ruled on a question of law, a district court [in that circuit], may not consider arguments by a litigant that would require the district court to ignore, or rule in a manner that would undermine, the circuit court’s prior ruling.” (citing McGinley v. Houston, 361 F.3d 1328, 1329-32 (11th Cir. 2004))). Therefore, to the extent that Counts II and V are based on a constitutional duty to protect schoolchildren arising from a custodial relationship, the motion to dismiss is due to be GRANTED.4
4The court notes, “If there is no custodial relationship, an official is liable under the substantive due process clause only if the official engages in conduct that is arbitrary or conscience shocking in a constitutional sense or amounts to deliberate indifference.” Hall v. Freeman, 293 F.
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E. CONSPIRACY In Counts III and VI of the Amended Complaint, the plaintiffs allege a
conspiracy between the police and school officials to administer school discipline and conduct arrests pursuant to unconstitutional policies and practices. The School Defendants contend, “The allegations of conspiracy between police officials and school officials fail to establish the requisite basis for a conspiracy, therefore the claims for declaratory and injunctive relief arising from such alleged conspiracy are due to be dismissed,” and “The plaintiffs’ claims against the Board and Dr. Witherspoon for alleged conspiracy to violate the plaintiffs’ rights fail to allege facts sufficient to establish a conspiracy.” Doc. 14 ¶¶ 10, 16.
“In conspiracy cases, a defendant must be informed of the nature of the conspiracy which is alleged. It is not enough to simply aver in the complaint that a conspiracy existed.” Fullman v. Graddick, 739 F.2d 553, 557 (11th Cir. 1984)(citing Ostrer v. Aronwald, 567 F.2d 551 (2d Cir. 1977); United States ex rel. Simmons v. Zibilich, 542 F.2d 259 (5th Cir. 1976); Black v. United States, 534 F.2d 524 (2d Cir. 1976); Fine v. City of New York, 529 F.2d 70 (2d Cir. 1975)). Indeed,
“the linchpin for conspiracy is agreement . . . .” Bailey v. Bd. of County Comm’rs of Alachua County, 956 F.2d 1112, 1122 (11th Cir.), cert. denied 506 U.S. 832 (1992). “For purposes of 42 U.S.C. § 1983, the plaintiff must plead in detail, through reference to material facts, the relationship or nature of the conspiracy . . . .” Harvey v. Harvey, 949 F.2d 1127, 1133 (11th Cir. 1992) (citing Fullman v. Graddick, 739 F.2d
App’x. 675, 678 (11th Cir. 2008)(internal citations and quotations omitted)(unpublished). 14

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553, 556-57 (11th Cir. 1984)). Merely conclusory, vague, and general allegations of conspiracy are not sufficient. See Fullman, 739 F.2d at 556-57. “‘[C]ourts insist that plaintiffs state with specificity the facts supporting an allegation of conspiracy in order to control frivolous conspiracy suits under § 1983.’” Novak v. Cobb County-Kennestone Hosp. Authority, 849 F. Supp. 1559, 1578 (N.D. Ga. 1994)(quoting Schlosser v. Coleman, 818 F. Supp. 1534, 1537 (M.D. Fla. 1993)). Thus, to state a § 1983 conspiracy claim, plaintiff must establish the supporting, operative facts of the conspiracy. Phillips v. Mashburn, 746 F.2d 782, 785 (11th Cir. 1984).
. . . A complaint containing conclusory, vague, and general allegations of conspiracy will be dismissed as insufficient. Kearson v. Southern Bell Telephone & Telegraph Co., 763 F.2d 405, 407 (11th Cir. 1985); see also Fullman, 739 F.2d at 557 (“A complaint may justifiably be dismissed because of the conclusory, vague and general nature of the allegations of conspiracy.”).
Robert v. Abbett, No. 3:08-CV-329-WKW (WO), 2009 WL 902488, at *19-20 (M.D.
Ala. Mar. 31, 2009).
“To establish a prima facie case of conspiracy under 42 U.S.C. § 1983, the
plaintiff must allege, among other things, that the defendants ‘reached an
understanding to violate his rights.’” Albra v. City of Fort Lauderdale, 232 F. App’x.
885, 890-91 (11th Cir. 2007)(quoting Rowe v. City of Fort Lauderdale, 279 F.3d
1271, 1283 (11th Cir. 2002)). A plaintiff “must make factual allegations of
combination, agreement, or understanding among all or between any of the
defendants or co-conspirators to plot, plan, or conspire together to carry out the
alleged chain of events.” Thomas v. Pichardo, No. 08-22333-CIV-LENARD, 2010
WL 3119623, *8 (S.D. Fla. June 2, 2010)(quoting Ammlung v. City of Chester, 494
F.2d 811, 814 (3d Cir. 1974))(internal quotations omitted). As one court put it,
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“It is not enough to allege that the end result of the parties’ independent conduct caused plaintiff harm or even that the alleged perpetrators of the harm acted in conscious parallelism.” Spencer v. Steinman, 968 F. Supp. 1011, 1020 (E.D. Pa. 1997). To the contrary, Plaintiff must show that the alleged conspirators “directed themselves toward an unconstitutional action by virtue of a mutual understanding or agreement.” Chicarelli v. Plymouth Garden Apartments, 551 F. Supp. 532, 539 (E.D. Pa. 1982). This requires facts suggesting a “meeting of the minds.” Startzell v. City of Philadelphia, Pennsylvania, 533 F.3d 183, 205 (3d Cir. 2008)(quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 158, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970)).
Prince v. Aiellos, No. 09-5429 (JLL), 2010 WL 5392724, *5 (D.N.J. Dec. 22, 2010).
Plaintiffs allege that the Board approved police officers and SROs to patrol
schools and engage in discipline, doc. 25-1 ¶¶ 35, 37, and that the Board,
Witherspoon, the BPD, and the SROs have a “long-standing agreement . . . that SROs
are expected not only to make arrests when they witness students engaged in illegal
behavior, but also to respond when school personnel seek their assistance in
enforcing the . . . Code of Conduct,” id. ¶ 40. Plaintiffs allege further that “all
Defendants are . . . aware that the SROs often use abusive and unnecessary force
against schoolchildren in the course of their duties, and Defendants Roper[, Chief of
Birmingham Police Department,] and [the Board] authorize the use of such force,”
(id.), and that the School Defendants “are aware that SROs routinely use Freeze +P
[pepper spray] against students in the course of school the discipline and arrests.” Id.
¶ 68. Based on these facts, plaintiffs allege:
Defendant Roper and [the Board] willfully and maliciously conspired among themselves to deprive [plaintiffs] of their rights under the Fourth and Fourteenth Amendments to the U.S. Constitution. As
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provided above, [the Board] invited [the Police Department] . . . into [Birmingham schools] to administer school discipline and conduct school arrests pursuant to unconstitutional policies, customs, and practices. Pursuant to this agreement, [the Board] has effectively authorized and continues to authorize the illegal deployment of chemical spray against school children. Id. ¶ 196; see also id. ¶ 213. The court finds that these allegations do not allege an agreement between the Board and/or Witherspoon and the BPD and/or the SROs to violate the rights of the plaintiffs and other students in Birmingham high schools. While plaintiffs aver repeatedly that the Board and/or Witherspoon “invited” or “authorized” SROs in Birmingham high schools and that they were “aware” of the SROs excessive use of pepper spray against students, these facts do not, however, suggest that the BPD and/or Chief Roper and/or the SROs plotted or planned with the Board and/or Witherspoon for the purpose of violating the constitutional rights of Birmingham high school students through the excessive and unwarranted use of pepper spray. Moreover, that the Board and/or Witherspoon had knowledge of excessive or unwarranted use of pepper spray by SROs against high school students does not show that the parties had a purposeful agreement to violate the constitutional rights of students. See Rowe, 279 F.3d at 1285. Where, as here, there is no evidence that the School Defendants reached an agreement to violate plaintiffs’ constitutional rights, the conspiracy claim fails.
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The School Defendants’ motion to dismiss Counts III and VI is due to be
GRANTED. Because the court finds that plaintiffs’ conspiracy and failure-to-protect
claims are due to be dismissed, the court pretermits discussion of the School
Defendants’ other grounds for dismissal.
F. CLAIMS AGAINST DEFENDANT MOSS
1. Excessive Force
The School Defendants have moved to dismiss the excessive force claims
against Moss. In their Amended Complaint, plaintiffs allege:
205. By deploying a chemical weapon against Plaintiff T.A.P. without justification, Defendant Tarrant violated T.A.P.’s clearly established constitutional rights under the Fourth and Fourteenth Amendments.5 The deployment of Freeze +P against Plaintiff T.A.P. was unjustified at its inception, given that T.A.P. was pinned to the ground by five adult men and posed no threat to the safety of others. This seizure was calculated to punish, humiliate, and intimidate T.A.P., as evidenced by Defendant Tarrant’s taunting words prior to deploying the chemical in her face. His actions were not reasonably related to the circumstances justifying the interference. Accordingly, Defendant Tarrant’s actions constitute an excessively intrusive seizure in violation of the Fourth and Fourteenth Amendments of the United States Constitution.
. . .
5The court notes, “Where, as here, the excessive force claim arises in the context of an arrest or investigatory stop of a free citizen, it is most properly characterized as one invoking the protections of the Fourth Amendment, which guarantees citizens the right ‘to be secure in their persons . . . against unreasonable . . . seizures’ of the person.” Graham v. Connor, 490 U.S. 386, 394 (1989). Therefore, “all claims that law enforcement officers have used excessive force – deadly or not – in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard, rather than under a ‘substantive due process’ approach.” Id. at 395.
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207. By the forgoing actions and inactions, Defendants Roper, Nevitt, Clark, Henderson, Smith, Moss, Tarrant, and Benson are liable pursuant to 42 U.S.C. § 1983 for sanctioning, enforcing, and implementing a policy, practice and custom of unreasonably and unconstitutionally subjecting BCS students, including Plaintiffs J.W., G.S., P.S., T.L.P., B.D., K.B., T.A.P, and B.J., to excessive force in violation of the Fourth and Fourteenth Amendments of the United States Constitution. See paragraphs 46, 69, 70, 72-74, 80-82, 96-98, 114, 127, 146, 158-163, and 172-174. Because Defendants Roper, Nevitt, Clark, Henderson, Smith, Moss, Tarrant, and Benson acted in clear violation of well-established law, of which a reasonable person would have been aware, they are not entitled to qualified immunity. The actions of these Defendants were intentional, malicious, reckless, and showed a callous disregard for the rights of Plaintiffs J.W., G.S., P.S., T.L.P., B.D., K.B., T.A.P, and B.J.
Doc. 25-1 ¶¶ 205-07 (footnote and emphasis added).
To support their claim against Moss, in addition to the facts related to Moss’s
confrontation with T.A.P. on August 31, 2009, plaintiffs refer to a number of
paragraphs that allegedly show Moss’s conduct as it relates to other plaintiffs. See
doc. 25-1 ¶ 207 (listing paragraphs).6 However, except for the incident involving
Moss and T.A.P. described in paragraphs 153-163, these paragraphs have nothing
to do with Moss. Paragraph 46 states that Roper “authorize[d] and require[d] BPD
officers to carry Freeze +P.” Doc. 25-1 ¶ 46. Paragraphs 69 and 80-82 allege that
Roper was aware of the use of pepper spray because of the BPD policy requiring
officers to complete a “Use of Force Information and Statement Report” when they
used pepper spray and Roper took no action to stop or control the use of pepper spray
6Specifically, plaintiffs cite paragraphs 46, 69, 70, 72-74, 80-82, 96-98, 114, 127, 146, 158163, and 172-174.
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on school children. Id. ¶¶ 69, 80-82. Paragraph 70 alleges that Roper failed to take any action despite knowing that SROs “routinely use Freeze +P against school children.” Id. ¶ 70. Paragraphs 72-74 state that the Board and Witherspoon were “well aware of the policy, practices, and customs” of the SROs use of pepper spray and that the Board and Witherspoon knew that plaintiffs’ counsel had requested documents showing SROs use of pepper spray from Jefferson County Family Court. Id. ¶¶ 72-74. Finally, while the remaining paragraphs plaintiffs cite allege facts related to the use of pepper spray against plaintiffs other than T.A.P, id. ¶¶ 96-98 (plaintiff G.S.), ¶ 114 (plaintiff T.L.P.), ¶ 127 (plaintiff B.D.), ¶ 146 (plaintiff K.B.), and ¶¶ 172-74 (plaintiff B.J.), none of these paragraphs, however, contained any allegation regarding or reference to Moss. In other words, to the extent that plaintiffs maintain Moss used excessive force against plaintiffs other than T.A.P., they failed to plead that alleged conduct.
As to the conduct that plaintiffs did plead, however, despite plaintiffs’ assertion that Moss participated in the incident involving T.A.P., in which Moss allegedly grabbed and tripped T.A.P., dug his foot into her back to keep her on the ground, held her down, and did nothing to stop the official after Tarrant told a restrained T.A.P.: “You wanna act hard? Let’s see how you act when you get this?”, Doc.25-1 ¶¶ 158163, and their reliance on this incident, in part, to support their excessive force claim, the School Defendants contend nonetheless that plaintiffs have failed to sufficiently plead an excessive force claim. Specifically, the School Defendants contend: “The
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plaintiffs’ claim against defendant Anthony Moss for alleged use of excessive force fails to state a claim for relief that is plausible on its face or that raises the possibility of relief above the mere speculative level;” “The plaintiffs’ claim against defendant Anthony Moss for alleged use of excessive force fails to plead sufficient facts against Mr. Moss to support a reasonable inference that the defendant is liable for the alleged misconduct.” Doc. 14 ¶¶ 11-12. The court disagrees. Moss is an educator to whom parents entrust their children daily during the school year. In addition to educating the children, parents expect that Moss will do all he can to provide a safe learning environment for their children. While educators certainly cannot protect students from all harm, at a minimum, parents expect educators to refrain from grabbing and tripping a child they are charged with protecting or from restraining a child and then standing by when an officer sprays the child with pepper spray, especially where, as here, the allegations are that the child was simply exiting the building as instructed by the educator in question.
Although he is not a member of the BPD, these facts are sufficient to establish that, as to T.A.P., Moss was in a position to sanction, enforce, and/or implement any policy of police use of force in general or the use of pepper spray specifically. Likewise, the court finds that plaintiffs’ Amended Complaint has “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face,’” against Moss for excessive force in violation of T.A.P.’s Fourth Amendment rights. See Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 555). Therefore, the
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School Defendants’ motion to dismiss Count IV against Moss will be DENIED as it
relates to T.A.P. However, as it relates to the other plaintiffs, the motion is due to be
GRANTED since plaintiffs have presented no facts to support their contention that
Moss sanctioned, enforced, or implemented any policy to use excessive force as it
relates to them.
2. Excessive Corporal Punishment
Plaintiffs claim –
By illegally assaulting Plaintiff T.A.P. in direct violation of [Birmingham school] policy prohibiting corporal punishment and by holding T.A.P. down as Defendant Tarrant sprayed her in the face with mace, Defendant Moss violated Plaintiff T.A.P.’s right to be free from excessive corporal punishment as provided by the Fourteenth Amendment of the United States Constitution. Defendant Moss unreasonably and unjustifiably assaulted Plaintiff T.A.P., intentionally caused her to fall to the ground, and planted his foot in her back when she posed no threat to anyone. Defendant Moss also aided Defendant Tarrant in subjecting T.A.P. to unreasonable and abusive physical abuse. Defendant Moss’[s] actions were obviously excessive and presented a reasonably foreseeable risk of serious bodily injury to Plaintiff T.A.P. Accordingly, Defendant Moss’[s] use of corporal punishment amounts to arbitrary and egregious conduct in violation of the Fourteenth Amendment to the United States Constitution.
Doc. 25-1 ¶ 216. The School Defendants contend, “The plaintiffs’ claim against
defendant Anthony Moss for damages for alleged excessive corporal punishment fail
to allege any facts upon which defendant Moss could be held liable,” and, “The
plaintiffs’ factual allegations against defendant Anthony Moss for excessive corporal
punishment could support, at most, a state law tort claim and the plaintiffs’ claim for
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a constitutional violation arising from alleged excessive corporal punishment must therefore be dismissed.” Doc. 14 ¶¶ 18-19.
In this Circuit, “excessive corporal punishment . . . may be actionable under the Due Process Clause when it is tantamount to arbitrary, egregious, and conscience-shocking behavior.” Neal ex rel. Neal v. Fulton Cnty. Bd. of Educ., 229 F.3d 1069, 1075 (11th Cir. 2000). “[A]t a minimum, the plaintiff must allege facts demonstrating that (1) a school official intentionally used an amount of force that was obviously excessive under the circumstances, and (2) the force used presented a reasonably foreseeable risk of serious bodily injury.” Id.; see also D.D. ex rel. Davis v. Chilton Cnty. Bd. of Educ., 701 F. Supp. 2d 1236, 1241 (M.D. Ala. 2010)(“The court explained that to reach the constitutional standard, a plaintiff must show that the school official intentionally used an amount of force that was obviously excessive and that the force presented a reasonably foreseeable risk of serious bodily injury.” (citing Peterson v. Baker, 504 F.3d 1331, 1337 (11th Cir. 2007))).
T.A.P.’s allegations are the quintessential “conscience-shocking behavior” that rises to a constitutional claim. Specifically, plaintiffs allege that Moss grabbed and tripped T.A.P., that she fell on her stomach on concrete, and that, after she fell, Moss “dug his foot into her back.” Doc. 25-1 ¶ 158. They also allege that after SRO Tarrant grabbed and threw T.A.P. down from behind, she looked up and saw Moss and SRO Tarrant standing over her and that, allegedly, Moss helped to restrain her while Tarrant pepper-sprayed her. Id. ¶¶ 162-63.
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While the court is aware that “the kind of minor injury suffered by a student during the administration of traditional corporal punishment will rarely, if ever, be the kind of injury that would support a federal due process claim for excessive corporal punishment,” see Neal, 229 F.3d at 1076, allegedly tripping a student and restraining her while she is pepper sprayed exceeds “traditional corporal punishment.” Moreover, unlike the plaintiff in Peterson v. Baker, 504 F.3d 1331 (11th Cir. 2007), T.A.P. “points to . . . evidence that medical care was administered [and] that permanent marks remained on [her] body.” 504 F.3d at 1337; see also Kirkland ex rel. Jones v. Greene Cnty. Bd. of Educ., 347 F.3d 903, 904-05 (11th Cir. 2003)(cause of action stated against principal who struck a thirteen-year-old student repeatedly with a metal cane, including hitting him in the head); Neal, 229 F.3d at 1076 (cause of action stated when plaintiff alleged a coach “hit [him] in the eye with a metal weight, causing severe injury,” including permanent loss of the use of his eye).
Because the plaintiffs have alleged facts that support their allegation that Moss’s conduct, as it relates to T.A.P., posed a reasonably foreseeable risk of serious bodily injury, the motion to dismiss the excessive corporal punishment claim against Moss will be DENIED.
3. Assault and battery Plaintiffs allege:
Defendant Moss intentionally tripped T.A.P., causing her to fall to the ground, and ground his foot [in her] back. Defendant Moss also held T.A.P. to the ground as Defendant Tarrant sprayed her in the face
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with chemical spray. These actions amount a tort of assault of battery against T.A.P. in violation of Alabama law. Defendant Moss’ actions were intended to physically harm Plaintiff T.A.P. and caused her to fear imminent bodily harm. Doc. 25-1 ¶ 223. Defendants contend, “The plaintiffs’ claim against defendant Anthony Moss for assault and battery fails to allege sufficient facts from which Mr. Moss could be held liable for assault and battery.” Doc. 14 ¶ 20. In Alabama, “[t]o be guilty of an assault and battery, the teacher must not only inflict on the child immoderate chastisement, but he must do so with legal malice or wicked motives or he must inflict some permanent injury.” Suits v. Glover, 71 So. 2d 49, 50 (Ala. 1954)(internal quotations omitted; emphasis added); see also Deal By and Through Barber v. Hill, 619 So. 2d 1347, 1349 (Ala. 1993) (same, quoting Suits); Hinson v. Holt, 776 So. 2d 804, 810-11 (Ala. Civ. App. 1998). “[A] showing of legal malice on the part of an educator with respect to the infliction of corporal punishment will not only defeat the privilege enunciated in Suits – it will also overcome any substantive immunity arising from the performance of a discretionary function.” Hinson, 776 So. 2d at 811-12. “Legal malice may be defined as ‘the intentional doing of a wrongful act without just cause or excuse, either with an intent to injure the other party or under such circumstances that the law will imply an evil intent.’” Id. at 812 (quoting Empiregas, Inc. v. Feely, 524 So. 2d 626, 628 (Ala. 1988)). “[M]alice is generally a fact issue; ‘the existence of malice being a fact which in the nature of things is incapable of positive, direct proof, it must of necessity be rested on
25

Case 2:10-cv-03314-AKK Document 48 Filed 07/20/11 Page 26 of 29
inferences and deductions from facts’ that can be presented to the trier of fact.” Id.
(quoting Nat’l Sec. Fire & Cas. Co. v. Bowen, 447 So. 2d 133, 140 (Ala. 1983)).
Plaintiffs’ Amended Complaint contains sufficient factual allegations that
support a plausible claim for assault and battery against Moss. See doc. 25-1 ¶¶ 157-
158 (alleging that Moss tripped T.A.P without cause or excuse and at a time when she
was complying with his instructions). Accordingly, the motion to dismiss Count VIII
will be DENIED.
4. Outrage
Plaintiffs allege:
233. By sanctioning, approving, and authorizing the illegal and unconstitutional use of chemical weapons by Defendants Nevitt, Clark, Smith, Henderson, Moss, Tarrant, and Benson against Plaintiffs G.S., T.L.P., B.D., K.B., T.A.P, and B.J., Defendant Roper engaged in extreme and outrageous conduct in violation of Alabama law. As a result of Defendant Roper’s policy, practices, and deficient training program with regard to the use of chemical weapons in BCS, these Plaintiffs suffered physical and emotional distress that no reasonable child could be expected to endure.
234. Defendants Roper, Nevitt, Clark, Smith, Henderson, Moss, Tarrant, and Benson are liable pursuant to Alabama law for sanctioning, enforcing, and implementing policies, customs, and practices that subject BCS students, including Plaintiffs G.S., T.L.P., B.D., K.B., T.A.P, and B.J., to extreme and intentional emotional distress in violation of Alabama law. Defendants Roper, Nevitt, Clark, Smith, Henderson, Moss, Tarrant, and Benson acted willfully, maliciously, and with a callous disregard or indifference to the rights of Plaintiffs G.S., T.L.P., B.D., K.B., T.A.P, and B.J. See paragraphs 46, 69, 70, 72-74, 8082, 96-98, 114, 127, 146, 158-163, and 172-174. Because Defendants Roper, Nevitt, Clark, Smith, Henderson, Moss, Tarrant, and Benson acted willfully and maliciously, they are not entitled to discretionary function immunity provided by Alabama law.
26

Case 2:10-cv-03314-AKK Document 48 Filed 07/20/11 Page 27 of 29
Doc. 25-1 ¶¶ 233-234.
“The tort of outrage is a very limited cause of action that is available only in
the most egregious circumstances.” Leatherwood v. Mobile Hous. Bd., No. 09-
00410-CB-N, 2010 WL 3039598, at *6-7 (S.D. Ala. 2010) (internal citations and
quotations marks omitted). The Alabama Supreme Court has recognized outrage
claims in regard to only three kinds of conduct: “(1) wrongful conduct in the family-
burial context, (2) barbaric methods employed to coerce an insurance settlement, and
(3) egregious sexual harassment.” Potts v. Hayes, 771 So. 2d 462,465 (internal
citations omitted). Nonetheless, as the Supreme Court more recently explained:
That is not to say, however, that the tort of outrage is viable in only the three circumstances noted in Potts. Recently, this Court affirmed a judgment on a tort-of-outrage claim asserted against a family physician who, when asked by a teenage boy’s mother to counsel the boy concerning his stress over his parents’ divorce, instead began exchanging addictive prescription drugs for homosexual sex for a number of years, resulting in the boy’s drug addiction. . . . It is clear, however, that the tort of outrage is viable only when the conduct is so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized society.
Little v. Robinson, --- So. 3d ---, No. 1090428, 2011 WL 1334416, at *4 (Ala. April
8, 2011) (internal quotation marks and citation omitted). Defendants, however,
contend, “The plaintiffs’ claim against defendant Anthony Moss for the tort of
outrage must be dismissed because the alleged conduct of the defendant is not within
any of the three categories of claims for which the Alabama Supreme Court has
permitted outrage claims.” Doc. 14 ¶ 22. The court disagrees that the tort-of-outrage
27

Case 2:10-cv-03314-AKK Document 48 Filed 07/20/11 Page 28 of 29
claim is cognizable only in the circumstances outlined in Potts. Instead, consistent with Little, the court declines, at this juncture, to decide that the use of pepper spray on a minor entrusted in one’s care can never rise to a cognizable claim for outrage. Therefore, the motion to dismiss Count IX against Moss is DENIED. G. REPLEADING
The court will GRANT plaintiffs’ Third Motion to Amend, (doc. 25), and allow plaintiffs an opportunity to replead. However, their Third Amended Complaint shall contain no more than one claim against one defendant per count. See Fed. R. Civ. P. 10(b). For example, Count IV alleges a claim of excessive force by Moss and each police defendant against each plaintiff. Doc. 25-1 ¶¶ 199-208. However, each alleged use of pepper spray against the students did not involve all defendants. Rule 10(b) requires that “A party must state its claims or defenses in numbered paragraphs, each limited as far as practicable to a single set of circumstances. . . . If doing so would promote clarity, each claim founded on a separate transaction or occurrence . . . must be stated in a separate count . . . .” Fed. R. Civ. P. 10(b). In this case, without doubt, clarity would be promoted by limiting each count to a “single set of circumstances.” Id.
Therefore, plaintiffs’ Third Amended Complaint must, to the extent practicable, limit each claim found on a specific incident of the use of pepper spray to a separate count.
28

Case 2:10-cv-03314-AKK Document 48 Filed 07/20/11 Page 29 of 29
CONCLUSION For the foregoing reasons, the court is of the opinion that the Motion to Dismiss, filed by the School Defendants, (doc. 14), is due to be DENIED as to all claims except plaintiffs’ (1) official capacity claims against Witherspoon and Moss;(2) punitive damages claims; (3) constitutional duty to protect based on a custodial relationship claim (Counts II and V); (4) conspiracy claim (Counts III and VI); and (5) excessive force claims against Moss by all plaintiffs except T.A.P. The court will enter contemporaneously with this Memorandum Opinion its Order granting in part and denying in part the School Defendants’ motion to dismiss. DONE this 20th day of July, 2011.
________________________________ ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE
29

 
 Case 2:10-cv-03314-AKK Document 50 Filed 07/20/11 Page 1 of 2
IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

FILED
2011 Jul-20 AM 10:29 U.S. DISTRICT COURT
N.D. OF ALABAMA

J.W., a minor by and through Tammy )

Williams, et al.

)

)

Plaintiffs,

)

)

vs.

)

)

BIRMINGHAM BOARD OF

)

EDUCATION, et al.

)

)

Defendants.

)

Civil Action Number 2:10-CV-3314-AKK

ORDER

In light of the court’s recent Memorandum Opinion and Order, (docs. 48 and

49), the following is ORDERED with respect to the parties’ outstanding motions:

(1) In anticipation of plaintiffs’ submission of a Third Amended Complaint,

plaintiffs’ First Motion for Extension of Time, (doc. 4), and First Motion to Amend,

(doc. 19), are MOOT.

(2) Plaintiffs’ Motion for Class Certification, (doc. 26), is DENIED without

prejudice to its refiling it on or before September 30, 2011 (see Scheduling Order),

and in accordance with the court’s partial dismissal of plaintiffs’ claims and after

plaintiffs’ submission of their Third Amended Complaint.

(3) In light of the court’s denial of the motion for class certification, plaintiffs’

Motion to Seal, (doc. 27), defendants motions to strike, (docs. 28, 30, and 31), and

Case 2:10-cv-03314-AKK Document 50 Filed 07/20/11 Page 2 of 2
the School Defendants’ Motion for Briefing Schedule, (doc. 33), are all MOOT. The court anticipates considering some or all of the parties’ respective assertions in the aforementioned motions via renewed motions once plaintiffs’ provide added clarity to this case by way of their Third Amended Complaint.
DONE and ORDERED this 20th day of July, 2011.
________________________________ ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

 
 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

FILED
2012 Aug-31 PM 02:20 U.S. DISTRICT COURT
N.D. OF ALABAMA

J.W. et al.,

)

)

Plaintiffs,

)

)

v.

)

)

BIRMINGHAM BOARD OF

)

EDUCATION, et al.,

)

)

Defendants.

)

Civil Action Number 2:10-cv-03314-AKK

MEMORANDUM OPINION AND ORDER

The court has for consideration J.W., G.S., P.S., T.L.P., T.A.P., B.J., B.D.,

and K.B.’s (“Plaintiffs”) Motion for Class Certification, doc. 75, which is fully

briefed, docs. 83, 84, and 86.1 In its discretion, and, after considering the parties’

written submissions and arguments at the December 6, 2011, hearing, doc. 105,

the court GRANTS Plaintiffs’ motion to certify a class of all current and future

high school students of Birmingham City Schools. The issues for class resolution

1 Plaintiffs ask the court to disregard Defendant Anthony Moss’s (“Moss”) Opposition to Motion for Class Certification, doc. 84, because only Plaintiff T.A.P. has a claim remaining against Moss and T.A.P.’s claims are not asserted on behalf of the proposed class. Doc. 86, at 23. Plaintiffs assert that Moss he cannot respond to their motion since Moss is not a party to the class claim. Id. In its discretion, the court will consider Moss’s arguments because they aid the court in resolving the class issues. Also, Defendants’ Motion to Strike Exhibit #1 and Exhibit #5 and Legal Arguments Associated Therein to Plaintiffs’ Motion for Class Certification, doc. 82, and Motion to Strike Exhibit #4 and Legal Arguments Associated Therein to Plaintiffs’ Reply Brief, doc. 90, are MOOT because the court did not rely on the exhibits in question.

are whether the Birmingham Police Department Policy for the use of chemical spray in school settings and the training provided to School Resource Officers (“SROs”) are constitutionally defective.
I. FACTUAL AND PROCEDURAL BACKGROUND Plaintiffs, who are current and former students enrolled in Birmingham City high schools (the “schools”), allege a number of claims arising from the use of chemical spray by SROs, who are Birmingham police officers assigned to the high schools. Doc. 52. Plaintiffs, on behalf of the proposed class, seek declaratory and injunctive relief against Defendant A.C. Roper (“Chief Roper”), in his capacity as Chief of the Birmingham Police Department (“BPD”), to limit the use of chemical spray against high school students (“students”) through training of the SROs and a revision of policy. Doc. 75-1; doc. 105, at 20-21. The proposed class includes all current and future students who “are at risk of injury as a result of Defendant Chief Roper’s unconstitutional policy and practices that permit [SROs] . . . to use mace against Birmingham high school students . . . .” Doc. 75-1, at 2. According to Plaintiffs, Chief Roper’s implementation of alleged unconstitutional policies and practices relating to the use of chemical spray in the schools violates all students’ Fourth and Fourteenth Amendment rights against excessive force. Doc. 52, at 1-2 ¶ 1; doc. 75, at 2.
2

A. Introduction of Chemical Spray in Birmingham City High Schools
In January 1996, the Birmingham Board of Education approved the
stationing of SROs at the high schools to conduct arrests and to assist in
discipline. Id., at 12 ¶¶ 35-36. SROs are permitted to carry and use chemical
spray, if necessary, to address any criminal or breach of the peace violations. Doc.
83-3, at 1; doc. 52, at 16 ¶ 46. Over a five-year period beginning in 2006, SROs used chemical spray on approximately 100 students.2 Doc. 83-4, at 1-2.
The BPD has no specific policy regarding SROs’ use of chemical spray.
Rather, SROs are subject to BPD’s general policy on Chemical Spray Subject
Restraint: Non-Deadly Use of Forces, which provides:
C. The chemical spray may be used in an arrest situation where the weapon’s use offers the possibility of lessening the likelihood of physical injury to the arresting officer, citizens on the scene and/or the suspect.
D. The use of chemical spray is intended solely as a control device to enable the officer to carry out his or her duties in the safest, most efficient and most professional manner with the least chance of injury to either the officer or suspect.
1. At no time will an officer unnecessarily brandish, or use chemical spray as an intimidation device unless the
2Allegedly, over the same period, similar officers stationed at high schools run by the Jefferson County Board of Education have only used chemical spray once on students. Doc. 105, at 31.
3

officer is attempting to prevent further escalation of force.
2. Chemical spray is not[,] under any circumstances, to be used as punishment or as a coercive tool once an individual is under control and in custody.
3. The chemical spray is not to be used by officers unless they have a reasonable belief that a crime has been committed and that the intended target committed the crime.
E. Any time chemical spray is used for controlling an offender[,] the application of the chemical spray will end when the subject discontinues resistance or aggression.
F. The chemical spray is best employed in one to two second bursts. The spray must be directed to the facial area of the assailant, with the bridge of the nose being the best target area. This weapon is primarily an inflammatory agent, producing the following results:
1. Involuntary closing of the eyes.
2. Swelling of the mucous membranes, which results in shallow breathing ability.
3. Intense burning on sensitive parts of the body.
. . .
H. It should be kept in mind by all concerned that any actual contact with chemical spray to the face or sensitive skin areas will result in the officer being adversely affected by its properties. Caution must be taken while handcuffing prisoners, placing them in automobiles, etc. If contact is made with the actual substance, the officer shall refrain from touching his face
4

with the contacted area until he can wash that area with warm soapy water. III. AFTER USE PROCEDURE A. Following the use of chemical spray the officer will ensure that the subject receives adequate decontamination as soon as practical. The officer should supply immediate medical attention if requested by the subject. B. Birmingham Fire and Rescue will be called and will determine whether or not the subject needs further medical attention or hospital treatment. D. [sic] Any time an officer uses chemical spray for subject control, the officer will notify the on-duty supervisor and complete a Use of Force Information and Statement Report. Doc. 83-2, at 2-4. Plaintiffs contend this policy is constitutionally defective as it relates to the utilization of chemical spray in the school setting and filed this lawsuit, in part, to force Chief Roper to implement a policy specifically for SROs. The parties disagree about whether the current policy allows SROs to subject students to abusive and excessive use of chemical spray and whether the policy gives SROs unfettered discretion to use chemical spray. Doc. 75-1, at 1; doc. 83, at 3. B. Named Class Representatives The representatives of the proposed class are six of the eight named
5

Plaintiffs3 and are in two distinct groups. The first group is comprised of students intentionally chemically sprayed (T.L.P., G.S., K.B., and B.D.), and the second is comprised of the innocent bystanders accidently exposed to the effects of chemical spray (P.S. and J.W.). Doc. 75-1, at 14-15; doc. 75-1, at 3-28. The court outlines the specific incidents involving both groups below.
i. Group One – Class Representatives Intentionally Sprayed with Chemical Spray 1. T.L.P.
On November 29, 2009, while walking past the lunch room at Woodlawn High School, T.L.P., then an 11th grader, heard another student call her a “bitch.” Doc. 75-5, at 18 ¶ 4. As is generally the case amongst this age group, T.L.P. engaged the student in a verbal argument, which unfortunately escalated to a fight. Id. Although athletic coaches intervened and successfully separated and restrained both girls, a SRO responding to the incident allegedly sprayed T.L.P. nonetheless with chemical spray.4 Id., at ¶ 6-7. The SRO then handcuffed T.L.P. and transported her to Family Court. Id., at ¶ 8. Interestingly, this was the second incident involving a SRO spraying T.L.P. with chemical spray while a teacher
3The class representatives are T.L.P., G.S., K.B., B.D., P.S., and J.W. 4The SRO also accidently sprayed the coach restraining T.L.P. Doc. 75-5, at 18 ¶ 7.
6

restrained her. Id., at ¶ 6. On both occasions, the chemical spray burned T.L.P.’s throat and caused her to cough. Id., at 19 ¶ 9.
2. G.S. On December 8, 2009, as seventeen-year-old G.S. jogged across the lawn at Huffman High School, a SRO grabbed her from behind. Doc. 75-5, at 12 ¶ 4. Naturally, before she recognized the individual as a SRO, G.S. tried to free herself from her attacker. Id., at ¶ 5. Allegedly, the SRO immediately sprayed chemical spray directly in G.S.’s eyes and face. Id. G.S. contends the SRO sprayed her a second time even after she fell to the ground due to the pain caused by the first spray. Id., at ¶ 6. Although the school called the paramedics, G.S. recalls only that the paramedics asked her questions related to her age and allegedly does not remember much else because of the pain. Id., at ¶ 7. At some point, the SRO transported G.S. to Cooper Green Hospital where a nurse told G.S. the pain would eventually subside. Id., at ¶ 8. Allegedly, the nurse also made G.S. sign a medical treatment waiver without disclosing the contents of the document. Id. As a result of the chemical spray, G.S. allegedly sustained multiple injuries, including swollen eyes, burned facial skin, and difficulty breathing. Id., at ¶ 9.
7

3. K.B. On or around February 21, 2011, a male student allegedly approached K.B., then a tenth grader at Woodlawn and four months pregnant, and started making inappropriate sexual comments. Doc. 75-5, at 25-26 ¶ 4. Although K.B. cried and walked away, the male student followed K.B. and continued the barrage of opprobrious epithets. Id., at 26 ¶ 5. As K.B. walked to her next class in tears, a SRO allegedly grabbed K.B. and told her to calm down. Id. at ¶ 6. When K.B. continued crying, the SRO allegedly turned K.B. around and told her in a stern voice, “you really need to calm down.” Id., at ¶ 7. Immediately thereafter, the SRO allegedly sprayed K.B. with chemical spray and handcuffed her. Id. at ¶ 8-9. The SRO then transported K.B. to Cooper Green Hospital, where K.B. signed a medical release form even though K.B. alleges she was partially blind due to the effects of the chemical spray. Id., at 27 ¶ 11. K.B. contends the chemical spray made her nauseous, burned her eyes and face, and impacted her breathing. Id., at ¶¶ 13-15.
4. B.D. On February 22, 2011, B.D., then a senior at Woodlawn, had a disagreement with a teacher that caused the teacher to ask the principal to escort B.D. to the office. Doc. 75-5, at 21 ¶ 5. While in route to the office, B.D.
8

informed the principal that she wanted to talk to an assistant principal B.D. knew well. Id., at ¶ 6. Allegedly, this request prompted the principal to page a SRO to assist her with an “outrageous student on the second floor.” Id. Shortly thereafter, a SRO responding to the page grabbed B.D. by the arm and pulled her down the hallway. Because of the pain, B.D. tried three times to escape from the SRO’s grip. On the third attempt, the SRO pushed B.D. against the wall and applied chemical spray directly in B.D.’s eyes, id., at ¶ 8, causing them to burn and aggravating a preexisting health condition that causes B.D.’s heart to beat abnormally fast, id., at 20 ¶ 3. Allegedly, the chemical spray also caused the SRO to start coughing and struggling to catch his breath. Id., at 22 ¶ 9. Sometime thereafter, the SRO escorted B.D. to Family Court and then to Cooper Green Hospital, where a nurse “told” B.D. to sign a form declining medical treatment. Id., at ¶ 11. B.D. alleges that she signed the form because the chemical spray affected her ability to see fully. Id. Finally, B.D. contends her face and eyes burned and that bumps formed on her neck and chin. Id., at 23 ¶¶ 13-15.
ii. Group Two – Class Representatives Accidently Exposed to Chemical Spray 1. P.S.
P.S. is the sister of Group One class representative G.S. and was exposed
9

accidently in the incident involving G.S. Specifically, on December 8, 2009, P.S., then fifteen years old, saw G.S. walking across the Huffman High School grounds. Doc. 75-5, at 15 ¶ 4. As P.S. ran towards her sister, P.S. saw a SRO spray chemical spray directly in G.S.’s eyes. Id., at ¶ 5. Another SRO grabbed P.S. from behind to prevent P.S. from reaching G.S. Unfortunately, despite this second SRO’s efforts, when the other SRO sprayed G.S. a second time, P.S. felt the effects of the chemical spray. Id., at ¶ 8. Specifically, the chemical spray burned P.S.’s eyes and impacted her breathing. Id.
2. J.W. In April 2010, J.W., then a tenth grader at Woodlawn, saw two students fighting. Doc. 75-5, at 8 ¶¶ 1, 3. As is generally the case amongst this age group, J.W. and other students gathered nearby to watch. Around that same time, two SROs responded and one allegedly directed his chemical spray into the crowd before the spectators could walk away. Id., at ¶¶ 5-6. J.W. alleges that the student onlookers started coughing and screaming from the pain, that his eyes and nose started stinging and burning, and that he had difficulty breathing. Id., at ¶ 6. C. Class Claims Plaintiffs moved the court for class certification under FED. R. CIV. P. 23(a) and 23(b)(2) on October 19, 2011. Doc. 75. On December 6, 2011, the court
10

heard arguments only since neither side requested an evidentiary hearing. Doc. 105. During the arguments, in response to the court’s questions, counsel for Plaintiffs clarified that Plaintiffs are not asking this court to issue an outright ban on the use of chemical spray:
THE COURT: The plaintiff is not asking the Court in this case to bar the SROs from ever using mace in school settings. MS. HOWARD: Right. Your Honor, we’re just asking that the Court bar the unlawful use of mace in school settings. See id., at 21-22. In fact, it is clear Plaintiffs recognize and embrace the school system’s legitimate interests in preserving order and protecting students and teachers from harm while on school property. Plaintiffs challenge instead the specific uses of chemical spray here which Plaintiffs claim constitute excessive force. As it relates to the class question currently before this court, Plaintiffs claim that the use of chemical spray is constitutionally flawed because Chief Roper allegedly failed to adequately train SROs and to implement a policy specifically for the utilization of chemical spray by SROs. Essentially, Plaintiffs contend that the school setting is unique and requires police procedures tailored specifically to such an environment. In other words, Chief Roper’s general policy on the use of chemical spray and the training he provides to officers is purportedly geared towards the adult population and, consequently, applying it in the school setting
11

without any modifications is tantamount to excessive force. Plaintiffs seek to challenge these alleged constitutional deficiencies on behalf of themselves and a class of similarly situated students, and ask this court to certify a class and appoint them as representatives of the class.
II. CLASS CERTIFICATION ANALYSIS A. Class Certification Standard
Rule 23 of the Federal Rules of Civil Procedure outlines the requirements for class certification. Initially, Plaintiffs must satisfy the four Rule 23(a) prerequisites:
One or more members of a class may sue or be sued as representative parties on behalf of all members only if: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. FED. R. CIV. P. 23(a). Courts often refer to these prerequisites as the numerosity, commonality, typicality, and adequacy requirements. They are “designed to limit class claims to those fairly encompassed by the named plaintiffs’ individual
12

claims.” Valley Drug Co. v. Geneva Pharms., Inc., 350 F.3d 1181, 1188 (11th Cir. 2003) (citing Prado-Steiman v. Bush, 221 F.3d 1266, 1278 (11th Cir. 2000)). “These four requirements serve as guideposts for determining whether under the particular circumstances maintenance of a class action is economical and whether the named plaintiff’s claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence.” Piazza v. Ebsco Industries, Inc., 273 F.3d 1341, 1346 (11th Cir. 2001) (quotations and citations omitted).
If Plaintiffs succeed in establishing the Rule 23(a) prerequisites, the analysis then shifts to Rule 23(b), which states in pertinent part that:
A class action may be maintained if Rule 23(a) is satisfied and if: (2) the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole . . . FED. R. CIV. P. 23(b)(2). In reviewing the motion, “[a] district court must conduct a rigorous analysis of the Rule 23 prerequisites before certifying a class.” Sher v. Raytheon Co., 419 F. App’x 887, 889 (11th Cir. 2011) (citing Falcon, 457 U.S. at 161). While class certification naturally focuses on the requirements of Rule 23, “the trial court can and should consider the merits of the case to the degree
13

necessary to determine whether the requirements of Rule 23 will be satisfied.” Valley Drug Co., 350 F.3d at 1188 n.15. Signficantly, “[i]t is inescapable that in some cases there will be overlap between the demands of Rule 23(a) and (b) and the question of whether plaintiff can succeed on the merits.” Rutstein v. Avis RentA-Car Sys., 211 F.3d 1228, 1234 (11th Cir. 2000). Finally, the movant bears the burden of proving that she satisfies one of the Rule 23(b) requirements. Valley Drug Co., 350 F.3d at 1187. B. Rule 23(a) Analysis
Consistent with the established procedures for analyzing motions for class certification, the court will begin its analysis with an assessment of whether this matter is appropriate for class certification by examining the “numerosity, commonality, typicality, and adequacy of representation” requirements contained in Rule 23(a). Because the court answers the question in the affirmative, the court will then address the requirements of 23(b) fully in section C.
i. Numerosity Under Rule 23(a)(1), a class action may be maintained only if the class is so numerous that joinder of all class members is impracticable. Dujanovic v. MortgageAmerica, Inc., 185 F.R.D. 660, 666 (N.D. Ala. 1999); Terazosin Hydrochloride Antitrust Litig., 203 F.R.D. 551, 553 (S.D. Fla. 2001). Whether
14

joinder is practicable depends on many factors, including “the size of the class, ease of identifying its numbers and determining their addresses, facility of making service on them if joined and their geographic dispersion.” Kilgo v. Bowman Transp., Inc., 789 F.2d 859, 878 (11th Cir. 1986) (finding that class of at least 31 individual class members from a wide geographic area met the numerosity requirement). “While there is no fixed numerosity rule, generally less than twenty-one is inadequate, more than forty adequate, with numbers between varying according to other factors.” Cox v. Am. Cast Iron Pipe Co., 784 F.2d 1546, 1553 (11th Cir. 1986) (quotations omitted). If the court can draw reasonable inferences from the facts before it as to the approximate size of the class and the infeasibility of joinder, the numerosity requirement is satisfied. Evans v. U.S. Pipe & Foundry Co., 696 F.2d 925, 930 (11th Cir. 1983) (“Although mere allegations of numerosity are insufficient to meet this prerequisite, a plaintiff need not show the precise number of members in the class”); Dujanovic, 185 F.R.D. at 666 (“This court may ‘make common sense assumptions’ to support a finding of numerosity.”).
Here, Plaintiffs maintain that all students are at risk of either direct or indirect exposure to chemical spray and, accordingly, seek declaratory and injunctive relief on behalf of all current and future high school students. Doc. 75-
15

1, at 4. Moreover, because approximately 8,000 students attended Birmingham city high schools during the 2009-2010 school year, doc. 77-1, at 7-8, doc. 83, at 11, Plaintiffs allege the 8,000 current students, plus the future students, make the class “so numerous that joinder of all the class members is impracticable.” FED. R. CIV. P. 23(a); doc. 75-1, at 7. Furthermore, Plaintiffs contend the class is clearly defined and identifiable because all potential class members are currently attending or will attend one of the eight high schools in the Birmingham system. Doc. 75-1, at 8.
Defendants disagree and assert that the proposed class is too broad and should only include the 100 students SROs sprayed with chemical spray from 2006-2011. Doc. 83, at 11-12. Furthermore, Defendants contend that 100 students over a five-year period, when compared to the approximate 35,000 students attending the eight high schools during this period, is too small a number to meet the numerosity requirement.
Defendants’ focus on the 100 students directly targeted by the SROs overlooks the bystander students impacted indirectly by the use of chemical spray. Although SROs are trained professionals who make an effort to restrict the chemical spray to the specific student in question, chemical spray is nonetheless an aerosol that knows no boundaries and makes no distinction between
16

misbehaving and compliant students. As such, any student in the vicinity can suffer from the effects of the chemical spray. Indeed, this is the subset of students the second group of class representatives seeks to represent. While the precise number for this group is speculative, it is safe to assume nonetheless that the innocent bystander group is fairly significant given that SROs directly sprayed 100 students, including while in close proximity to other students. See Dujanovic, 185 F.R.D. at 666 (“This court may ‘make common sense assumptions’ to support a finding of numerosity.”). Therefore, the court rejects Defendants’ contention that the chemical spray only impacted 100 students.
Moreover, even if the court ignores the innocent bystander subset and focuses only on the group of 100, Plaintiffs still satisfy the numerosity requirement because generally more than forty is sufficient. Cox, 784 F.2d at 1553. Thus, under Rule 23(a)(1), it is insignificant whether the class is comprised of 8,000 as Plaintiffs contend or 100 students as Defendants contend because either amount is so “numerous that joinder of all class members is impracticable.” Dujanovic, 185 F.R.D. at 666.
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ii. Commonality and Typicality5 “Traditionally, commonality refers to the group characteristics of the class as a whole and typicality refers to the individual characteristics of the named plaintiff in relation to the class.” Prado-Steiman, 221 F.3d at 1266. Commonality under Rule 23(a)(2) requires that the named plaintiff and the class members’ grievances share common questions of law or fact, while typicality under Rule 23(a)(3) requires that “the claims or defenses of the representative parties [are] typical of the claims or defenses of the class.” FED. R. CIV. P. 23(a)(2), (a)(3). Commonality is satisfied whenever “[t]he claims actually litigated in the suit [are] fairly represented by the named plaintiffs.” Cox, 784 F.2d at 1567. Indeed, commonality requires “‘that there be at least one issue whose resolution will affect all or a significant number of the putative class members.’” Williams v. Mohawk Indus., 568 F.3d 1350, 1355 (11th Cir. 2009) (quoting Stewart v. Winter, 669 F.2d 328, 335 (5th Cir. 1982)). Likewise, typicality exists when the named plaintiffs’ claim arises “from the same event or pattern or practice and are based on the same legal theory” as the claims of the class. Kornberg v. Carnival Cruise Lines, Inc.,
5The court addresses these two prerequisites together because they involve similar considerations and “tend to merge.” See e.g., General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 158 n.13 (1982).
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741 F.2d 1332, 1337 (11th Cir. 1984). “Typicality also encompasses the question of the named plaintiff’s standing, for ‘[w]ithout individual standing to raise a legal claim, a named representative does not have the requisite typicality to raise the same claim on behalf of a class.’” Piazza, 273 F.3d at 1346. Significantly, commonality and typicality do not require that the named plaintiffs’ claims are identical to each class member’s claims, but they must share “the same essential characteristics.” Prado-Steiman, 221 F.3d at 1279 n.14 (citations and quotation marks omitted).
a. Commonality Plaintiffs allege they satisfy the commonality requirement because “this action raises questions of law and fact that are common to the class and arise from a Police policy that is generally applicable to Birmingham City high school students.” Doc. 75-1, at 9. Plaintiffs frame the common questions of law and fact as follows: • Whether Defendant Roper’s policy governing the use of mace on
children attending Birmingham high schools permits and encourages SROs to use . . . mace against students in inappropriate situations and in an unconstitutional manner in violation of the Fourth and Fourteenth Amendment. • Whether the practices and customs related to use of mace employed by SROs . . . are impermissible under the Fourth and Fourteenth Amendments.
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• Whether Defendant Roper’s uniform training and supervision SROs in the use of mace provides insufficient guidance on application of the chemical in school settings and against children . . . .
• Whether Defendant Roper’s decontamination procedures for students who have been exposed to mace are inadequate to reduce the risk of prolonged pain, injury, or other serious harm to exposed students.
• Whether SROs’ use of mace on students constitutes an unreasonable seizure in violation of the Fourth Amendment.
• Whether Defendant Roper is liable under 42 U.S.C. § 1983 for failing to adequately train and supervise SROs who are authorized to use mace on children.
Doc. 75-1, at 10-11.
Defendants disagree and contend the “primary issue is whether the use of
mace by Defendants against teenagers engaging in criminal activity in the
Birmingham High School is excessive on its’ face.” Doc. 83, at 14. Moreover,
Defendants allege that this matter is inappropriate for class certification because
excessive force cases involve numerous factual disputes that require an individual
fact intensive review on each allegation of alleged excessive force. Doc. 83, at 14.
These factual differences, according to Defendants, include:
• Different Police Officers • Different Officers’ perception of the events involving the Plaintiffs • Reasonableness of the Officer’s actions • Various and different Officers’ training, background and experiences • Different uses of force by the Officers for each incident
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• Whether the Plaintiffs were violating the law • Different criminal charges that resulted from each incident • Different criminal and disciplinary history of the Plaintiffs • Different students as witnesses to each incident • Different actions by the Plaintiffs for each incident • Different locations (schools) and physical makeup of the area of each
incident • Numerous other different witnesses, including principles, teachers
and faculty to the events
Doc. 83, at 14.
Although Defendants are correct about factual differences in Plaintiffs’
individual claims, they overlook that Rule 23(a)(2) “demands only that there be
questions of law or fact common to the class. This part of the rule does not require
that all the questions of law and fact raised by the dispute be common.” Vega v. T-
Mobile USA, Inc., 564 F.3d 1256, 1268 (11th Cir. 2009) (citations and quotation
marks omitted). Indeed, here, all of Plaintiffs’ claims, including the Plaintiffs
accidently subjected to chemical spray, stem from whether Chief Roper’s
implementation of policies and practices and the alleged failure to train SROs
specifically relating to the use of chemical spray in a school setting violate
students’ Fourth and Fourteenth Amendment rights. See doc. 75, at 3-28.
Furthermore, potential class members’ claims will also stem from the intentional
or accidental affects of chemical spray as a result of policies and training
procedures implemented by Chief Roper. Therefore, Plaintiffs claims “are
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premised on the same legal theories ” of whether the policy and practices governing the use of chemical spray are inadequate, whether Chief Roper failed to properly supervise and train the SROs, and whether these alleged inadequate policies and training violated students’ constitutional rights. Doc. 75-1, at 16. Resolving this issue will not require witnesses from each school or witnesses of each incident, nor an inquiry into the alleged criminal charges levied on each class member. In fact, the class may be able to present their case on this issue based solely on policies and training records. Since the resolution of this constitutional issue will depend primarily on policies and training related to SROs and will not require an extensive assessment of each specific chemical spray incident, the court finds the commonality requirement is satisfied.
b. Typicality A class representative must possess the same interest and suffer the same injury as the class for her claims to be typical of the class under Rule 23(a)(3). See Prado-Steiman, 221 F.3d at 1279. However, typicality can exist despite substantial factual differences when there is a “strong similarity of legal theories.” Murray v. Auslander, 244 F.3d 807, 811 (11th Cir. 2001); see also Appleyard v. Wallace, 754 F.2d 955, 958 (11th Cir.1985). To establish typicality, plaintiffs must show there is “a nexus between the class representative’s claims or defenses
22

and the common questions of fact or law which unite the class.” Kornberg, 741 F.2d at 1337. “A sufficient nexus is established if the claims or defenses of the class and the class representatives arise from the same event or pattern or practice and are based on the same legal theory.” Id.; see also Prado-Steiman, 221 F.3d at 1279 n.14. (“[A] strong similarity of legal theories will satisfy the typicality requirement despite substantial factual differences.”).
As previously stated, the proposed class and Plaintiffs’ claims arise from the same allegedly unconstitutional practices. Doc. 75-1, at 16. Because the class representatives consist of four students actually sprayed with chemical spray and two students accidently affected by the effects of chemical spray, their claims are consistent with the proposed class’s injury or risk of injury from the use of chemical spray by SROs. Thus, the court finds the typicality requirement is satisfied because the class representatives and members’ claims are premised around the same injury or threat of injury and the same legal theory of the unconstitutionality of Chief Roper’s policies, practices and training.
iii. Adequate Representation Rule 23(a) also requires the named plaintiffs to demonstrate adequacy of representation, which courts extend to two areas: (1) the competency of class counsel to handle the case; and (2) the absence of disabling conflicts of interest
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between the named plaintiffs and the class members. Griffin v. Carlin, 755 F.2d 1516, 1532-33 (11th Cir. 1985). Thus, “adequacy of representation means that the class representative has common interests with unnamed class members and will vigorously prosecute the interests of the class through qualified counsel.” Piazza, 273 F.3d at 1346 (quotation marks omitted). Therefore, “[i]f substantial conflicts of interest are determined to exist among a class, class certification is inappropriate.” Valley, 350 F.3d at 1189.
a. Adequacy of Class Counsel “Counsel will be deemed adequate if they are shown to be qualified, adequately financed, and possess sufficient experience in the subject matter of the class action.” City of St. Petersburg, et al., v. Total Containment, Inc., et al., 265 F.R.D. 630, 651 (S.D. Fla. 2008) (citing Dahlgren’s Nursery, Inc. v. E.I. DuPont De Nemours & Co., No. 91-8709-CIV, 1994 WL 1251231, at *6-7 (S.D. Fla. 1994). Here, Plaintiffs contend class counsel Ebony Howard and Mary Bauer are fully qualified to pursue this action. Doc. 18, at 22; doc. 75-8. Although Defendants do not challenge Ms. Bauer’s qualifications, they question whether Ms. Howard, who has no class litigation experience, is qualified to handle this matter. Doc. 19, at 21. Defendants’ concerns about Ms. Howard’s experience would carry the day
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if Ms. Howard is lead counsel for the class. However, Ms. Howard is assisting Ms. Bauer whom Defendants acknowledge is competent to adequately represent the proposed class. Indeed, Ms. Bauer has prior experience serving as class counsel in at least four cases. Doc. 75-8, at 3. Moreover, The Southern Poverty Law Center, where Ms. Bauer and Ms. Howard work, has extensive experience as class counsel in at least twenty cases and has sufficient funds to finance this litigation. Id. at 3-4. In other words, because Ms. Howard will have the assistance of Ms. Bauer and The Southern Poverty Law Center, Ms. Howard’s participation will not handicap the class adversely. Furthermore, Ms. Howard has almost five years of litigation experience which, although not class action related, will be a benefit to the class nonetheless. Finally, the court adds that Ms. Howard can only gain experience by working on a class case under the guidance and tutelage of an experienced counselor like Ms. Bauer, and it might as well be this one especially since Ms. Howard has proved to be an effective advocate thus far in this case. Therefore, the court finds that counsel are adequate to represent the proposed class.
b. Adequacy of Class Representatives The Eleventh Circuit has held that “[t]he existence of minor conflicts alone will not defeat a party’s claim to class certification: the conflict must be a
25

‘fundamental’ one going to the specific issues in controversy.” Valley, 350 F.3d at 1189. “A fundamental conflict exists where some party members claim to have been harmed by the same conduct that benefitted other members of the class.” Id.
Plaintiffs contend no conflict exists between them and the proposed class because they want to make all students safer by ensuring that Chief Roper implements adequate policies and training for the SROs. Doc. 75-1, at 17; 75-5, at 3-28. Defendants disagree and contend that Plaintiffs may have “interests antagonist to those of the class” because some Plaintiffs are no longer students, doc. 83, at 18, and some class members may actually want SROs to continue their current practice given that SROs are in the schools to protect students from misbehaving students, doc. 84, at 11.
Defendants’ arguments fail for several reasons. First, as it relates to the graduation or drop-out argument, Defendants seem to limit this contention solely to T.A.P. Specifically, Defendants state “[T.A.P’s] interest are not in a line with the interest of the class” because she is no longer in school. Doc. 83, at 18. However, T.A.P.’s interests do not need to align with the class because she raises claims against Defendant Moss only and is not seeking to serve as a class representative. Doc. 84, at 2. Moreover, even if some of the proposed class representatives have graduated or no longer attend Birmingham schools, to the
26

extent that their departure causes a conflict, the conflict is not fundamental. The proposed class representatives were either directly or indirectly harmed by the chemical spray. Doc. 75-5, at 3-28. Each representative described the pain he or she suffered and wants to ensure that no other student experiences similar trauma. That some have since graduated or left Birmingham schools does not diminish the trauma they claim they endured and which current and future students may endure as well. In short, no fundamental conflict exists between the named Plaintiffs and the proposed class simply because some named Plaintiffs may no longer attend Birmingham City Schools.
Likewise, no conflict exists between the named Plaintiffs and any potential class members who advocate for or favor the presence of SROs in the schools. Again, the named Plaintiffs are not seeking to remove SROs from city schools, nor do they contend that SROs can never use chemical spray. Doc. 105, at 21-22. Rather, as it relates to the class, they challenge only Chief Roper’s policies and the training Chief Roper provides for the use of chemical spray by SROs, which the named Plaintiffs contend are inadequate and encourage SROs to violate the constitutional rights of students. To the extent that Plaintiffs prevail, all students will benefit from the implementation of revised policies and more effective training, if, in fact, the current policies and training are ineffective. Therefore, the
27

court finds that the named representatives are adequate to represent the class. C. Rule 23(b)(2) Standard
In light of the court’s finding that the named Plaintiffs satisfy Rule 23(a), the court turns now to Rule 23(b)(2), which provides that to maintain a class, Plaintiffs must show that “(1) the party opposing the class must have acted or refused to act or failed to perform a legal duty on grounds generally applicable to all class members; and (2) the class must seek final injunctive or declaratory relief with respect to the class as a whole.” FED. R. CIV. P. 23(b)(2); see also Murray, 244 F.3d at 812.
Plaintiffs contend Chief Roper failed to implement a policy for the use of chemical spray by SROs and to train and supervise SROs. Doc. 75-1, at 19. Therefore, Plaintiffs assert that the alleged deficiencies of Chief Roper’s training and policies affect all students who attend and will attend a Birmingham high school. Id. Defendants disagree and contend Plaintiffs “have failed to prove that Defendant Roper’s policy of using mace on teenagers in the Birmingham high Schools is unconstitutional or a danger.” Doc. 83, at 20. Furthermore, Defendants rely on Kerr v. City of West Palm Beach, 875 F.2d 1546 (11th Cir. 1989), for the proposition that “district courts tend to deny class certification when the allegations show factual differences among the putative class members in
28

excessive force cases.” Doc. 83, at 15. Indeed, the Eleventh Circuit stated in Kerr:
As we have already discussed, when presented with allegations that a police officer used excessive force in the apprehension of a suspect, the federal courts must assess the reasonableness of the office’s actions in light of the essentially unique factual circumstances accompanying the arrest. Such determinations cannot be made en masse, and such suits therefore are especially unsuited to class disposition.
Kerr, 875 F.2d at 1558 (citations omitted). However, Defendants overlook that this court will not decide on a class basis whether each use of chemical spray was justified under the circumstances. That determination is one that indeed the court can only assess “in light of the essentially unique factual circumstances accompanying” each incident. Rather, the class determination here is whether Chief Roper’s alleged failure to implement a policy specifically for the use of chemical spray by SROs and the alleged failure to train SROs on the use of chemical spray in a school setting violated the constitutional rights of the Plaintiffs. Therefore, the Kerr holding is not applicable here. Moreover, Kerr is also distinguishable because it involved Rule 23(b)(3), which requires that “the questions of law or fact common to the members of the class [must] predominate over any questions affecting only individual members.” FED. R. CIV. P. 23(b)(3). Conversely, under Rule 23(b)(2), “there is no requirement . . . that issues subject to
29

generalized proof predominate over those subject to individualized proofs.” Murray, 244 F.3d at 811; see also Rutstein v. Avis Rent-A Car Sys., Inc., 211 F.3d 1228, 1233 (11th Cir.2000); Barnes v. American Tobacco Co., 161 F.3d 127, 143 (3rd Cir.1998) (“While 23(b)(2) class actions have no predominance . . . requirements, it is well established that the class claims must be cohesive.”).
To satisfy the first requirement of 23(b)(2), Plaintiffs allege Chief “Roper has acted or refused to act on grounds applicable to the proposed class by subjecting Birmingham high school students to an unconstitutional policy and deficient police training program on mace.” Doc. 19, at 21. As previously stated, Plaintiffs only need to show general questions of law or fact are common to the members of the class, which Plaintiffs have done. Plaintiffs and the proposed class’s claims are based on the same legal theory that Chief Roper allegedly failed to perform his constitutional legal duty to implement a policy for the use of chemical spray by SROs and to train and adequately supervise SROs. Doc. 75-1, at 19. Therefore, although there may be some factual disputes about the circumstances surrounding each specific incident, Chief Roper’s legal duty to Plaintiffs is generally applicable and cohesive to the class members. Furthermore, the exclusive relief sought in the Complaint under class action is injunctive and declaratory relief; thus, the second requirement of Rule 23 (b)(2) is satisfied. See
30

Doc. 52. V. CONCLUSION
For the reasons stated above, the court finds that Plaintiffs satisfy the Rule 23(a) and (b)(2) requirements. Accordingly, the court GRANTS Plaintiffs’ motion for class certification.
DONE this the 31st day of August, 2012. ________________________________ ABDUL K. KALLON UNITED STATES DISTRICT JUDGE
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 Case 2:10-cv-03314-AKK Document 196 Filed 10/03/12 Page 1 of 52

FILED
2012 Oct-03 AM 11:10 U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

J.W. et al.,

)

)

Plaintiffs,

)

)

v.

)

)

BIRMINGHAM BOARD OF

)

EDUCATION et al.,

)

)

Defendants.

)

Civil Action Number 2:10-cv-3314-AKK

MEMORANDUM OPINION AND ORDER

This case involves allegations by plaintiffs J.W. et al. (collectively

“Plaintiffs”) that, among other things, school resource officers (“SROs”) assigned

to Birmingham city high schools by the Birmingham Police Department (“BPD”)

used a chemical spray, Freeze+P, on them unnecessarily and in violation of their

Constitutional rights. According to Plaintiffs, the SRO Defendants maced them

because they committed minor school-based infractions or, in Plaintiff K.B.’s case,

because she could not stop crying after a fellow student harassed her with lewd

comments because she was pregnant. To make matters worse, Plaintiffs allege that

the SROs failed to follow BPD decontamination procedures after each incident and

left them instead to continue suffering from the effects of the Freeze+P for hours.

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Additionally, as it relates to Carver High School Assistant Principal Anthony Moss (“Moss”), Plaintiff T.A.P. alleges that Moss tripped her (which Moss denies) and then stepped on her back while she was on the ground to restrain her (which Moss, surprisingly, admits) – just because T.A.P. attempted to leave school, purportedly as instructed by Moss, without properly checking out first.
To say that this lawsuit, like most, started with contentious allegations would be a huge understatement. Allegations are, of course, not proven facts. Instead, each defendant will eventually receive an opportunity to tell his or her side of the story. However, when a defendant asks the court to grant summary judgment and dismiss a case, as the defendants here have done, docs. 159 and 162, the court is required to view the disputed facts in the light most favorable to the plaintiffs. Based on the allegations raised here, which the court must accept as true, and for the reasons stated more fully below, the motions of the SROs and Moss for summary judgment are DENIED, except for SRO Clark’s motion with respect to P.S., count VIII, which is GRANTED. BPD Chief A.C. Roper’s (“Chief Roper”) motion on the claim for injunctive and declaratory relief against him in his official capacity is DENIED, but GRANTED on all claims against him in his individual
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capacity.1 Plaintiffs’ and Defendants’ respective motions to strike, docs. 166, 167, 177, are MOOT as the court did not rely upon the challenged statements of fact, exhibits and evidentiary submissions in considering the motions for summary judgment.2
The court begins its analysis with a review of the relevant standard of review in part I, and will outline the relevant facts for summary judgment purposes in part II. Part III is divided into two parts and addresses separately Defendants’ defenses for the federal claims and state law claims. Finally, part IV is the court’s overall conclusion.
I. SUMMARY JUDGMENT STANDARD OF REVIEW Under Rule 56(c)(2) of the Federal Rules of Civil Procedure, summary judgment is proper “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” “Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of
1 Moss’s Motion to Clarify Scope of Previous Order, doc. 195, is rendered MOOT by this opinion.
2 Defendants are, however, reminded that any further submissions to the court should strictly comply with the court’s Uniform Initial Order. Doc. 37 at 17.
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an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the initial burden of proving the absence of a genuine issue of material fact. Id. at 323. The burden then shifts to the nonmoving party, who is required to “go beyond the pleadings” to establish that there is a “genuine issue for trial.” Id. at 324 (citation and internal quotation marks omitted). A dispute about a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The court must construe the evidence and all reasonable inferences arising from it in the light most favorable to the non-moving party. Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970); see also Anderson, 477 U.S. at 255 (all justifiable inferences must be drawn in the non-moving party’s favor). Any factual disputes will be resolved in Plaintiffs’ favor when sufficient competent evidence supports Plaintiffs’ version of the disputed facts. See Pace v. Capobianco, 283 F.3d 1275, 1276, 1278 (11th Cir. 2002) (a court is not required to resolve disputes in the nonmoving party’s favor when that party’s version of events is supported by insufficient evidence). However, “mere conclusions and unsupported factual allegations are legally insufficient to defeat a summary judgment motion.” Ellis v.
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England, 432 F.3d 1321, 1326 (11th Cir. 2005) (per curiam) (citing Bald Mountain Park, Ltd. v. Oliver, 863 F.2d 1560, 1563 (11th Cir. 1989)). Moreover, “[a] mere ‘scintilla’ of evidence supporting the opposing party’s position will not suffice; there must be enough of a showing that the jury could reasonably find for that party.” Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citing Anderson, 477 U.S. at 252)).
II. FACTUAL BACKGROUND A. Introduction of Chemical Spray in Birmingham City High Schools
In January 1996, the Birmingham Board of Education approved the stationing of SROs at the city’s high schools to conduct arrests and to assist in discipline. Doc. 160-9 at 5. These SROs are BPD officers who are part of the Special Victims Division, Youth Services Unit. Doc. 160-1 at 12. SROs are permitted to carry and use chemical spray, if necessary, to address any criminal or breach of the peace violations. Doc. 83-3, at 1; doc. 52, at 16 ¶ 46. SROs stationed at Birmingham high schools generally carry the chemical spray “Freeze+P,” a pepper spray product.3 Over a five-year period beginning in 2006,
3 The term “chemical spray” is generally used to refer to products including pepper spray and mace. While the chemical compositions of pepper spray and mace may be different in certain products, here a reference to a “macing” or use of “mace” is used to indicate use of the chemical spray used by the BPD SROs.
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SROs used chemical spray on approximately 100 students. Doc. 83-4, at 1-2. The BPD has no specific policy regarding SROs’ use of chemical spray.
Rather, SROs are subject to the BPD’s general policy on Chemical Spray Subject Restraint: Non-Deadly Use of Forces. Plaintiffs contend this policy is constitutionally defective as related to utilizing chemical spray in the school setting and filed this lawsuit, in part, to force Chief Roper to implement a policy specifically for SROs. The parties disagree about whether the current policy allows SROs to subject students to abusive and excessive use of chemical spray and whether the policy gives SROs unfettered discretion to use chemical spray. Doc. 75-1, at 1; doc. 83, at 3. B. Plaintiff T.L.P.
On November 29, 2009, eleventh grade student T.L.P. heard another student call her a “bitch” while walking past the lunch room at Woodlawn High School. Doc. 164-5 at 9. Unfortunately, the ensuing verbal exchange escalated into a physical altercation. Id. Two athletic coaches intervened and successfully separated and restrained both girls. Id. at 11-12. Yet, T.L.P. alleges, SRO J. Nevitt sprayed her with mace without warning although she was fully restrained. Id. Allegedly, the spray also hit the coach restraining T.L.P. Id. at 12. The SRO then handcuffed T.L.P., transported her to Family Court, and placed her in a holding cell
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at the G. Ross Bell Youth Detention Center. Id. at 14. Although no formal charges were filed, T.L.P. remained in holding, without any decontamination or other medical attention, until her mother arrived to retrieve her. Id. Interestingly, this was the second incident involving an SRO spraying T.L.P. with chemical spray while a teacher restrained her. Id. at 12. On both occasions, the chemical spray burned T.L.P.’s throat and caused her to cough. Id. at 15. C. Plaintiffs G.S. and P.S.
On December 8, 2009, as seventeen year old G.S. chased another student across the lawn at Huffman High School, an SRO grabbed G.S. from behind. Doc. 164-2 at 7. Before she recognized the individual as an SRO, G.S. tried to free herself. Id. at 7, 10. Allegedly, SRO A. Clark immediately sprayed chemical spray directly in G.S.’s eyes and face. Id. G.S. contends SRO Clark sprayed her a second time even after she fell to the ground due to the pain caused by the first spray. Id.
Around the same time, fifteen year old P.S. saw G.S., her sister, across the lawn and ran toward her. Doc. 164-3 at 6-7. As P.S. approached G.S., she saw SRO Clark spray chemical spray directly in G.S.’s eyes. Id. at 7. Another SRO grabbed P.S. from behind to prevent P.S. from reaching G.S. Id. Unfortunately, when SRO Clark sprayed G.S. a second time, the blast also hit P.S. in the face. Id.
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P.S. alleges that SRO Clark was reckless in failing to consider whether other students were in the proximity of the mace blast, and as a result she suffered from a burning sensation in her eyes and had difficulty breathing.
SRO Clark allegedly failed to ascertain the well-being of either P.S. or G.S. after the incident. Instead, G.S. eventually made her way to the office with the assistance of another student, where a school official called 911 at G.S.’s request. Doc. 164-2 at 13. G.S. recalls only that the paramedics asked her questions related to her age and allegedly does not remember much else because of the pain. Id. at 13-14. An SRO transported G.S. to Cooper Green Hospital where a nurse told G.S. the pain would eventually subside. Id. at 14. G.S. alleges also that a nurse made her sign a medical treatment waiver without disclosing the contents of the document. Id. Prior to undertaking any decontamination measures, the SRO transported G.S. from Cooper Green to the Family Court youth detention facility. Id. at 14-15. No formal charges were filed and G.S. was eventually released to her mother. Id. As a result of the chemical spray, G.S. allegedly sustained multiple injuries, including swollen eyes, burned facial skin, and difficulty breathing. Id. at 12-13. D. Plaintiff K.B.
On or around February 21, 2011, a male student allegedly approached K.B.,
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a visibly pregnant tenth grade student at Woodlawn High School, and started making inappropriate sexual comments. Doc. 164-4 at 11-12. Although K.B. attempted to escape, the male student followed K.B. and continued his lewd comments, causing K.B. to cry intensely. Id. at 12-13. K.B.’s cries apparently drew SRO S. Smith’s attention. Allegedly, SRO Smith grabbed K.B., steered her toward the office, and told her to calm down. Id. at 12. When K.B. continued crying, SRO Smith purportedly turned K.B. around and told her in a stern voice, “you really need to calm down.” Id. at 15. Immediately thereafter, SRO Smith allegedly handcuffed K.B. and sprayed her with chemical spray without warning. Id. As SRO Smith escorted K.B. to the gym, K.B. vomited from the effects of the spray. Id. Some time later, the school called EMS to treat K.B. and SRO Smith transported K.B. to Cooper Green Hospital, where K.B. signed a medical release form even though K.B. alleges she was partially blind due to the effects of the chemical spray. Id. at 15-17. Afterwards, SRO Smith took K.B. to Family Court to await release to her mother. Id. at 16-17. No formal charges were filed against K.B. Id. K.B. contends the chemical spray made her nauseous, burned her eyes and face, and impacted her breathing. Id. E. Plaintiff B.D.
On February 22, 2011, B.D., then a senior at Woodlawn High School, had a
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disagreement with a teacher that caused the teacher to ask the principal to escort B.D. to the office. Doc. 164-6 at 9. While in route to the office, B.D. informed the principal that she wanted to see an assistant principal she felt more comfortable speaking with about the incident. Id. Allegedly, this request prompted the principal to page for an SRO, who responded by grabbing B.D. by the arm and pulling her down the hallway. Id. at 10. B.D. alleges that SRO D. Henderson grabbed her so tightly that it hurt and that she tried three times to escape from SRO Henderson’s grip. Id. On the third attempt, SRO Henderson pushed B.D. into a corner and applied chemical spray directly in B.D.’s eyes, causing them to burn and aggravating a preexisting heart condition that causes B.D. to experience symptoms similar to a heart attack. Id. at 10-11. Allegedly, the chemical spray also caused SRO Henderson to start coughing and struggling to catch her breath. Id. B.D. also alleges that the spray temporarily blinded her and despite her protests that she could not see, SRO Henderson forced her down several sets of stairs - tripping the entire way. Id. at 10. Sometime thereafter, SRO Henderson escorted B.D. to Family Court but intake personnel refused to accept B.D. because SRO Henderson had not yet taken her to the hospital for treatment. Id. at 11. Henderson then escorted B.D. to Cooper Green Hospital, where a nurse “told” B.D. to sign a form declining medical treatment. B.D. alleges that she signed the form because the
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chemical spray affected her ability to see fully. Id. Afterwards, SRO Henderson returned B.D. to Family Court, where she remained, without any decontamination procedures, until her mother picked her up. Id. No formal charges were ever filed. Id. B.D. contends her face and eyes burned and that bumps formed on her neck and chin. G. Plaintiff J.W.
In April 2010, J.W., a Woodlawn High School tenth-grader, saw two students fighting. Doc. 164-1 at 7-8. J.W., and other students, gathered nearby to watch. Id. Around that same time, two SROs responded and one allegedly dispersed chemical spray into the crowd before the spectators could walk away. Id. at 8. J.W. alleges that the student onlookers started coughing and screaming from the pain, that J.W.’s eyes and nose started stinging and burning, and that he had difficulty breathing. Id. at 8-9. Neither J.W. nor any of the other students in the crowd received any medical attention or decontamination procedures. Id. H. Plaintiff T.A.P.
In August of 2009, a substitute teacher at Carver High School told T.A.P. that she smelled like cigarette smoke and sent her to the office. Doc. 162-2 at 9, 13. On her way to the office, T.A.P. saw Moss in the hallway and the teacher told Moss her suspicions regarding T.A.P. smoking. Id. at 14. T.A.P. asserts that Moss
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told her to call her mother to come pick her up, but Moss says he simply asked for the number. Id. at 15. T.A.P. took out her cell phone and began dialing her mother, which prompted Moss to ask for the phone. Id. When T.A.P. refused to turn over the phone, she and Moss engaged in a verbal dispute. Id. at 14-15. SRO R. Tarrant claims he heard the commotion and walked over to warn T.A.P. to calm down. T.A.P. instead asserts that Moss told her to leave the school and that when she made it to the door, Moss tripped her and placed his foot on her back until another student commented on his actions. Id. at 16, 19. When T.A.P. got up, she swung her backpack and accidently hit SRO Tarrant in the chest - she claims this is the first time she realized he was present. Id. at 22. When Tarrant reached for his gun belt to retrieve his handcuffs, T.A.P. panicked and ran away because she thought SRO Tarrant was reaching instead for his gun. Id. SRO Tarrant contends he chased T.A.P. alone, that he and T.A.P. both fell to the ground in some bushes, and that T.A.P. continued to resist him. Doc.160-2 at 60. T.A.P. asserts that Moss, SRO Tarrant and two other adult males held her down, that Tarrant stated he would “see how hard you is when you get this,” sprayed her in the eyes and face with mace, and then flipped her onto her stomach to handcuff her. Id. at 23, 25-26. Moss denies ever making physical contact with T.A.P., besides “placing” his foot on her back, and further denies being present outside or helping to restrain T.A.P.
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Doc. 162-6 at 12, 14-15. SRO Tarrant eventually escorted T.A.P. to Cooper Green, but no medical treatment was administered. Id. at 27. Afterwards, SRO Tarrant transported T.A.P. to Family Court where T.A.P. remained until she was released to her mother. Id. at 28. T.A.P. asserts that she suffered swelling in her face and eyes, temporary blindness, difficulty breathing, and peeling of the skin around her eyes. Id. at 26-27. I. Plaintiff B.J.
On or around September 27, 2010, a substitute teacher reported B.J., a student at Jackson-Olin High School, to the assistant principal for using profanity. Doc. 164-7 at 6-7. B.J. alleges that another student made the comment, and that the teacher incorrectly identified him as the speaker because she had just instructed B.J. to tuck in his shirt. Id. Once in the hallway, an assistant principal searched B.J. Id. at 7. B.J. alleges that two male assistant principals restrained him against the lockers with his arms spread and called SRO M. Benson to the scene. Id. SRO Benson purportedly maced B.J. in the face, at close proximity, while the assistant principals restrained B.J., without first taking any other action or even speaking to B.J. Id. at 8. B.J. claims he experienced immediate temporary blindness, a severe burning sensation on his face and in his eyes, felt as if he could not breathe, and later vomited. Id. Following the incident, B.J. fell to the ground crying and SRO
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Benson planted her knee in B.J.’s back and handcuffed him, threatening to spray B.J. again if he attempted to stand. Id. at 8-9.
B.J. alleges that no one sought any immediate medical attention on his behalf. Id. at 10. Instead, he sat handcuffed in the school office for an extended period of time, without any decontamination procedures, until SRO Benson eventually escorted him to Cooper Green Hospital. Id. Allegedly, a nurse told B.J. she could do nothing for him. Id. Although he still could not see and alleges that no one explained the contents of the form, B.J. signed a medical release waiver. Id. SRO Benson then escorted B.J. to the G. Ross Bell Youth Detention Facility where he remained in custody, still wearing his contaminated clothing, until his grandmother received notice and secured his release at 7p.m. Id. at 10-11. No formal charges were ever actually filed against B.J. Id.
III. ANALYSIS The Corrected Third Amended Complaint contains 54 counts.4 Doc. 188. Specifically, Count I seeks declaratory and injunctive relief against Chief Roper in his official capacity and alleges that Chief Roper is responsible for the “Chemical Spray Subject to Restraint: Non-Deadly Use of Force” policy that is purportedly
4 The court dismissed J.W.’s claim against SRO Nevitt, count IV of the Third Amended Complaint, doc. 52, on August 30, 2012. See doc. 185.
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unconstitutional both on its face and as applied to the individual Plaintiffs and the certified class. Id. at 56. In Counts III - XIX, the individual Plaintiffs allege use of excessive force in violation of the Fourth and Fourteenth Amendments against all Defendants in their individual capacities - including allegations that Chief Roper is responsible for each individual instance of alleged excessive force for “sanctioning, enforcing, and implementing” the challenged policy. Id. at 60-75. Count XX alleges excessive corporal punishment in violation of the Fourteenth Amendment against Defendant Moss for his alleged conduct with respect to Plaintiff T.A.P. Id. at 75. In Counts XXIX through XLI, each individual Plaintiff asserts an Alabama state law assault and battery claim against each defendant in their individual capacities, including allegations that Chief Roper is again responsible for “sanctioning, enforcing, and implementing” the policy that purportedly led to each plaintiff’s injuries. Id. at 85-93. Finally, Counts XLII through LIV assert claims under Alabama law for the tort of outrage against each defendant individually. Id. at 93-102.5 Defendants have moved for summary judgment on all claims. Docs. 159, 162.
5 The court granted the Defendant Birmingham Board of Education’s motion to dismiss, see docs. 48, 49, and therefore declines to address Counts II and XXI-XXVIII asserted against it.
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A. Federal Claims Each defendant asserts a qualified immunity defense to the federal claims.
Additionally, Moss also asserts an immunity claim under the No Child Left Behind Act. Both defenses are discussed more fully below, beginning with qualified immunity.
[1] Qualified Immunity The doctrine of qualified immunity “shields public officials from suits against them in their individual capacities for torts committed while performing discretionary duties unless the tortious act violates a clearly established statutory or constitutional right.” Mahone v. Ben Hill County School System, 377 Fed. Appx. 913, 915 (11th Cir. 2010) (emphasis added) (quoting Zivojinovich v. Barner, 525 F.3d 1059, 1071 (11th Cir. 2008) (per curiam). To properly raise a qualified immunity defense, officials must demonstrate initially that they were engaged in a discretionary function at the time of the allegedly unlawful act. Id. The burden then shifts to the plaintiff to establish that the officials are otherwise unentitled to qualified immunity. Id. (citing Brant v. Jones, 575 F.3d 1281, 1295 (11th Cir. 2009)). A plaintiff may satisfy this burden by demonstrating that the officials violated a clearly established constitutional right. Id.
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(a) Chief Roper As a preliminary matter, Chief Roper is not entitled to qualified immunity for Count I because it is pled against him in his official capacity. See doc. 188. “A suit against a state official in his or her official capacity is not a suit against the individual but rather a suit against the official’s office.” Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989). Here, the official-capacity count against Chief Roper is better characterized as a suit against the BPD, a municipality, which cannot assert qualified immunity as a defense to liability under § 1983. Owen v. City of Independence, Mo., 445 U.S. 622, 638 (1980). Therefore, Chief Roper’s motion on the official capacity claim against him in Count I is DENIED. On the other hand, “an official in a personal-capacity action may, depending on his position, be able to assert personal immunity defenses [.]” Kentucky v. Graham, 473 U.S. 159, 166 (1985). Put differently, Chief Roper may assert qualified immunity with respect to the counts against him in his individual capacity.
i. Discretionary Authority Plaintiffs do not challenge Chief Roper’s contentions that he acted within his discretionary authority with respect to the claims against him in his individual capacity. As such, no disagreement exists as to this element of Chief Roper’s
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qualified immunity defense. Therefore, the only issue in dispute is whether Chief Roper violated a clearly established constitutional right.
ii. Constitutional Violation Each Plaintiff alleges that Chief Roper is liable for “sanctioning, enforcing, and implementing a policy, practice and/or custom that unreasonably and unconstitutionally subjects [them] to excessive force in violation of the Fourth and Fourteenth Amendments...” See doc. 188. In other words, Chief Roper’s liability is based on the individual SROs’ alleged constitutional violations and the BPD policy they followed. Since individual capacity suits under §1983 seek to impose liability upon an official for actions he takes under color of law, to succeed on the merits Plaintiffs need only show that Chief Roper, “acting under color of...law, caused the deprivation of a federal right.” Kentucky v. Graham, 473 U.S. 159, 166 (1985). To meet this burden, Plaintiffs argue that Chief Roper deprived them of their federal rights by promulgating and enforcing a constitutionally deficient mace policy that “permits unfettered use of [chemical spray] against Birmingham students” by failing to place actual limits on the SROs’ discretion to deploy mace. Doc. 167 at 27. As discussed in section (b), infra, the facts, viewed in the light most favorable to Plaintiffs, establishes that Plaintiffs suffered a deprivation of the
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right to be free from use of excessive force. The primary question under the second prong of the immunity analysis, then, is whether this right was “clearly established” with respect to Chief Roper, as viewed under Plaintiffs’ theory that Chief Roper failed to implement a non-deadly force policy and training procedures specifically for the school setting.
iii. Clearly Established Right “For a constitutional right to be clearly established, its contours must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Saucier v. Katz, 533 U.S. 194, 202 (2001); See also Hope v. Pelzer, 536 U.S. 730, 739 (2002). The Eleventh Circuit uses two separate methods in determining whether a defendant should have known that her conduct was unconstitutional. Fils v. City of Aventura, 647 F.3d 1272, 1292 (11th Cir. 2011). “The first method looks at the relevant case law at the time of the violation; the right is clearly established if a concrete factual context exists so as to make it obvious to a reasonable government actor that his actions violate federal law.” Id. (internal quotations omitted) (citing Hadley v. Gutierrez, 526 F.3d 1324, 1333 (11th Cir. 2008)). “This method does not require that the case law be ‘materially similar’ to the [defendant’s] conduct; officials can still be on notice that their conduct violates established law even in novel factual circumstances.” Id. The
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second method looks directly at the conduct of the defendant and “inquires whether that conduct lies so obviously at the very core of what the 4th Amendment prohibits that the unlawfulness of the conduct was readily apparent to [him], notwithstanding the lack of fact-specific case law.” Id.; (citing Vinyard v. Wilson, 311 F.3d 1340, 1355 (11th Cir. 2002)). This second method is often referred to as the “obvious clarity” exception to the normal test requiring case law and specific factual scenarios. Id. It is meant to recognize that in some instances, certain conduct is so outrageous that qualified immunity will not protect the offender, even in the absence of case law. Id.
Again, Plaintiffs contend that Chief Roper violated their constitutional rights by failing either to adopt a use of force policy specific to the school setting or to train the SROs properly on use of chemical spray in schools. To defeat Chief Roper’s immunity defense, Plaintiffs must show that he should have had notice that these alleged failures violated their rights. In other words, Plaintiffs must show that their rights were clearly established. In this instance, there is no case law establishing the necessity of a specific policy or special training for use of nondeadly force, like Freeze+P, in a school setting. Indeed, Plaintiffs are asking this court to determine whether, in fact, the BPD and Chief Roper should implement such a policy for SROs. Furthermore, under the second test, it is not so clear that it
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is unreasonable for Chief Roper to fail to implement such a policy or training, when general use of force policies and training are already in place. In addition to the general policies, Chief Roper also has in place an agreement with the Board of Education that outlines graduated procedures SROs must follow before using any force, which Plaintiffs allege the SROs violated when they deployed mace on them. Under Plaintiffs’ theory, presumably if the SROs had followed Chief Roper’s policies, the SROs may not have had to use mace on them. In short, Chief Roper did not violate a “clearly established” constitutional right and is, therefore, entitled to qualified immunity. Accordingly, Chief Roper’s motion, with respect to Plaintiffs’ excessive force claims against him in his individual capacity, is GRANTED.6
(b) SRO Defendants i. Discretionary Authority
The court begins its qualified immunity inquiry for the SROs by first asking whether each was “acting within the scope of [his or her] discretionary authority when the allegedly wrongful acts occurred.” Grider v. City of Auburn, Ala., 618
6 Separately, Chief Roper is also due summary judgment on J.W.’s claim for excessive force under the 4th and 14th Amendments, count III. J.W. voluntarily dismissed his allegation of excessive force against SRO Nevitt. See doc. 185. Therefore, J.W. cannot assert liability for excessive force against Chief Roper based on a ratification theory when he acknowledges the SRO under Chief Roper’s supervision did not subject him to an unconstitutional action. Thus, summary judgment as to count III is GRANTED for Chief Roper.
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F.3d 1240, 1254 n.19 (11th Cir. 2010) (citations and internal quotations omitted). “Instead of focusing on whether the acts in question involved the exercise of actual discretion, we assess whether they are of a type that fell within the employee’s job responsibilities.” Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 12651266 (11th Cir. 2004). To make this determination, the court must review whether the Defendants were “performing a legitimate job-related function (that is, pursuing a job-related goal),” and whether they performed this goal “through means that were within [their] power to utilize.” Id. During this review, the court must “look to the general nature of the [SROs’] action[s] [and] temporarily put[] aside the fact that it may have been committed for an unconstitutional purpose, in an unconstitutional manner, to an unconstitutional extent, or under constitutionally inappropriate circumstances.” Id.
Plaintiffs allege that SROs Smith, Henderson and Benson acted outside their discretionary authority by violating the Collaborative Agreement (“Agreement”) between the BPD and the Birmingham Board of Education. Doc. 167-5. According to Plaintiffs, the Agreement provides that SROs will follow a graduated sanctions procedure prior to arresting a student for a school-based offense:
The parties agree that the response to the commission of a minor schoolbased offense by a student should be determined using a system of graduated sanctions, disciplinary methods, and/or educational
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programming before a complaint is filed with the Court. The parties agree that a student who commits a minor school-based offense must receive a Warning Notice and a subsequent referral to the School Conflict Workshop before a complaint may be filed in the Juvenile Court.
Id. Since the SROs arrested Plaintiffs K.B., B.D. and B.J. and charged them with
an offense covered by the Agreement, see doc. 160-21, Plaintiffs allege that by
effectuating those arrests without observing the graduated procedure, and using
mace during those arrests, these officers thus acted outside their authority. Finally,
Plaintiffs allege that SRO Tarrant acted outside his authority in violation of BPD
policy by brandishing mace, using it to intimidate T.A.P. without a threat of further
escalation of force, or using mace punitively. See Doc. 160-23. According to
T.A.P., SRO Tarrant pushed her to the ground, said he was going to “see how hard
you is when you get this,” and maced her while he and three adult males held her down. Doc. 162-2 at 23, 25.7
Defendants challenge Plaintiffs’ reliance on the Agreement and dispute that
it is official BPD or city policy. Doc. 160-10 at 6-7. Further, Defendants claim
that the Agreement does not prohibit SROs from arresting students, or for that
7 The court notes that Plaintiffs failed to raise any argument asserting that SRO Nevitt acted outside his discretionary authority when he maced T.L.P. See generally doc. 167. Additionally, while Plaintiffs argue that SRO Clark acted outside his discretionary authority by macing P.S. without justification, they failed to raise a similar argument with respect to G.S. See id. As such, the court assumes Plaintiffs concede that SROs Nevitt and Clark were, in fact, acting within such authority.
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matter, using chemical spray, prior to observing the graduated three-step procedure. Id. Obviously, if the graduated procedure delineated by the Agreement is not an official or binding policy, Plaintiffs’ reliance on it to claim the SROs acted outside their discretionary authority would ring hollow. This fundamental dispute between the parties as to the effect and nature of the Agreement is clearly a material factual dispute that this court cannot resolve without additional evidence and testimony.
Moreover, even if the court assumes the SROs are correct about the Agreement and finds that the SROs acted within their discretionary authority, the court can only grant summary judgment if the court also finds the SROs did not violate a clearly established constitutional right. Although establishing the existence of a constitutional right and determining if it was clearly established is an analysis the court need not undertake sequentially, the court will do so nonetheless for the sake of clarity. See Pearson v. Callahan, 555 U.S. 223 (2009). Thus, the court’s initial inquiry is whether the allegations, when viewed in the light most favorable to Plaintiffs, establish a constitutional violation. Saucier, 533 U.S. at 200-02 (2001).
ii. Constitutional Violation The Plaintiffs’ excessive force claims arise from the 4th Amendment’s prohibition against unreasonable seizures, as made applicable to the states through
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the 14th Amendment. Graham v. Connor, 490 U.S. 386, 394 (1989). An officer’s use of force is excessive under the 4th Amendment if it was “objectively [un]reasonable in light of the facts and circumstances confronting” the officer. Id. at 397. Reasonableness is “judged from the perspective of the reasonable officer on the scene” without the benefit of hindsight. Id. This standard “allow[s] for the fact that police officers are often forced to make split-decision judgments - in circumstances that are tense, uncertain, and rapidly evolving - about the amount of force that is necessary in a particular situation.” Id. at 396-97. In its analysis, “a court must carefully balance the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interests.” Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1305 (11th Cir. 2009). In determining whether the officers used only the force that was “necessary in the situation at hand,” Lee v. Ferraro, 284 F.3d 1188, 1197 (11th Cir. 2002), the court evaluates “(1) the severity of the crime at issue; (2) whether the suspect poses an immediate threat to the safety of the officers or others; and (3) whether [the suspect] is actively resisting arrest or attempting to evade arrest by flight.” Brown v. City of Huntsville, Ala., 609 F.3d 724, 738 (11th Cir. 2010) (quoting Vinyard, 311 F.3d at 1347). However, the court must determine whether the SROs’ use of force was excessive under the circumstances as reconstructed in a light most
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favorable to Plaintiffs, rather than accepting the officers’ version of events. See Vinyard, 311 F.3d at 1347-48.
The SROs justify each instance of use of Freeze+P as necessary “to protect the officer from injury, to effectuate a lawful arrest and to protect the subjects from injuring themselves” because the “Plaintiffs were conducting themselves in a violent, disruptive, aggressive, threatening, or unlawful” manner. Doc. 160 at 17. To no surprise, Plaintiffs paint a different picture that alleges the use of chemical spray even when Plaintiffs purportedly offered no resistance. For example, T.L.P. claims SRO Nevitt maced her even though she was completely secured by an adult male and offered no struggle. Doc.164-5 at 11-12. G.S. contends that she ran after a young man who pushed her, that she only pushed SRO Clark because she had no idea who grabbed her from behind, that SRO Clark never identified himself, and that SRO Clark maced her even though she never caught up with the young man. Doc. 164-2 at 7, 10. K.B. contends that SRO Smith maced her, despite being pregnant and restrained in handcuffs, simply because she could not stop crying after another student insulted her. Doc. 164-4 at 12-15. B.D. admits to pulling her arm away from SRO Henderson three times because his grip was too tight, and alleges that on the third time SRO Henderson pushed her into a corner and maced her without warning. Doc. 164-6 at 10-11. T.A.P. asserts that SRO Tarrant maced
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her while he and three men held her down and after mocking her about his intent to mace her. Doc.160-2 at 15-16. Finally, B.J. alleges that SRO Benson maced him after two adult males had already secured him against a locker and even though he had not committed a crime. Doc. 164-7 at 6-7. All Plaintiffs contend they received injuries from the chemical spray.
In light of the officers’ contentions that they acted justifiably, the court must first determine the severity of the alleged “crimes” involved in each incident. In viewing the facts in a light most favorable to Plaintiffs, it appears that, at best, the most severe crime any Plaintiff engaged in was disorderly conduct or resisting arrest. Disorderly conduct is, of course, not a serious offense warranting use of force, including the use of non-deadly force like mace. Vinyard, 311 F.3d at 1347. Similarly, resisting arrest without force does not rise to a level of dangerousness that justifies the type of force used here. Fils v. City of Aventura, 647 F.3d 1272, 1288 (11th Cir. 2011). To make matters worse, the SROs intentionally subjected some of the Plaintiffs to mace even though the Plaintiffs purportedly were not accused of any crime – a fact that the SROs may not be able to refute since the SROs never filed charges against the majority of Plaintiffs – and had only committed minor school infractions. Given these alleged facts, the court cannot agree with Defendants that the severity of Plaintiffs’ alleged “crimes” warranted
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the use of force.8 Next, the court must ascertain whether the Plaintiffs posed an immediate
threat to the safety of themselves or others. Among other things, the court must discern whether the SROs used force even though the plaintiffs made no attempt to attack the officer or persons nearby. See id. Likewise, while an officer may assert that a person posed a safety threat by disobeying a direct order from the officer, to make this assertion the officer must first identify herself and issue directives or warnings to the individual. This is not the case here because the Plaintiffs allege that for some of the incidents, the SRO never announced his or her presence, and that in other instances the SRO maced them without issuing any warnings. Further, there is a dispute about whether the Plaintiffs posed a threat to the safety of others at the time they were maced - in fact the Plaintiffs allege they were already restrained either by handcuffs or by other adults. Based on these allegations, the court simply cannot say that the use of force was warranted under these
8 This rationale is inapplicable to the incident between SRO Clark and P.S., who was unintentionally subjected to mace when she ran into the affected area. See Doc. 164-3 at 7. Even further, as P.S. admits, another SRO attempted to keep her from entering the contaminated area by grabbing her. Id. Given these facts, the court cannot say that SRO Clark violated P.S.’s right to be free from unreasonable seizure and summary judgment is GRANTED for him as to P.S.’s excessive force claim. While she cannot survive SRO Clark’s qualified immunity claim, P.S., nonetheless, maintains her status as a member of the certified class to challenge Chief Roper’s purported failure to implement a specific policy for and/or training procedures for use of force in the school setting.
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circumstances. Finally, the court must determine whether there was active resistance or an
attempt to evade arrest. Again, viewing the facts in Plaintiffs’ favor, T.A.P. was the only plaintiff who attempted to flee. Even then, T.A.P. contends she fled because she saw SRO Tarrant reach for his gun belt. While SRO Tarrant had every right to chase and apprehend T.A.P. – although it is debatable whether T.A.P. posed a threat since she ran out of the school and SRO Tarrant could have waited and arrested her at home because the school presumably had T.A.P.’s home address – the facts are in dispute as to whether T.A.P. continued to resist after SRO Tarrant restrained her outside. According to T.A.P., she posed no threat at that point, was subdued by SRO Tarrant and three other adults, and was purportedly taunted by SRO Tarrant before he maced her.
Although the court agrees with Defendants that the use of non-lethal weapons such as Freeze+P does not violate the 4th Amendment per se, the law is clear that “unprovoked force against a non-hostile and non-violent suspect who has not disobeyed instructions violates that suspect’s rights under the 4th Amendment.” Fils, 647 F.3d at 1289. When the alleged facts here are viewed in the light most favorable to Plaintiffs, the court cannot find at this juncture that the “Plaintiffs were conducting themselves in a violent, disruptive, aggressive, threatening, or
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unlawful” manner, as Defendants contend. Doc. 160 at 70. Ultimately, Defendants may well succeed in establishing that the Plaintiffs posed a threat. However, that determination is one for a jury to make at the appropriate juncture. At this stage in the litigation, based on these alleged facts, the court simply cannot conclude that, as a matter of law, the SROs used the Freeze+P justifiably.
iii. Clearly Established Right As the final step in the qualified immunity analysis, the court must also determine whether Plaintiffs’ rights were “clearly established.” Summary judgment is inappropriate here because, ultimately, whether the Plaintiffs’ rights were “clearly established” hinges on which version of the facts a jury finds most credible. Again, as discussed in section (a), the Eleventh Circuit relies on two separate tests in making this determination. Under either method, the facts viewed in a light most favorable to Plaintiffs show that a reasonable jury could find that the SROs should have known their conduct violated the 4th Amendment. For example, under the first method for determining whether a right is clearly established, just as in Fils v. City of Aventura, the SROs subjected the Plaintiffs to non-deadly force even though they committed, at most, minor offenses, did not resist arrest, were not a continuing threat to anyone, and were not disobeying any of the SROs’ instructions. See generally, 647 F.3d 1272; See also Vinyard, 311 F.3d at 1347-48
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(defendant-officer violated a clearly established right when he sprayed pepper spray into the eyes of a non-violent plaintiff, who was handcuffed and in the back seat of the police car, even though he had threatened no one). These cases “clearly establish that such force is excessive where the suspect is non-violent and has not resisted arrest. While these cases are not identical to [Defendants’], they need not be ‘materially similar’; the precedent need only provide the Defendants with ‘fair warning.’” Fils, 647 F.3d at 1292. Even under the second test, viewing the evidence in the light most favorable to the Plaintiffs, they displayed little to no hostility toward the officers, were not disobeying orders, did not resist arrest, and, for some, were accused of no wrongdoing. As such, Plaintiffs’ rights were clearly established and it was unreasonable for the SROs to believe using mace was appropriate. For all these reasons, except as to P.S.’s claim against SRO Clark, the SROs motion for summary judgment on qualified immunity grounds is DENIED.
(c) Moss i. Discretionary Authority
T.A.P. asserts that Moss acted outside his discretionary authority when he purportedly tripped her and planted his foot on her back because this conduct amounted to prohibited corporal punishment. See doc. 168-3 (Birmingham Board of Education policy prohibiting corporal punishment). Moss disagrees and
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contends that the Board’s policy is limited to paddling and “necessarily still allows physical contact between school officials and students, including the use of physical force as may be necessary to maintain order and discipline.” Doc. 176 at 5. In other words, at a minimum, Moss is contending that restraining T.A.P. by stepping on her back while she was on the floor was “necessary to maintain order and discipline.” Whether Moss is correct that he acted within his discretionary authority when he purportedly tripped T.A.P. and then restrained her by stepping on her back is contingent on a resolution of the factual dispute between Moss and T.A.P. regarding the incident in question. The resolution will require, in part, the presentation of evidence on the Board’s policies and procedures. The court can only side with Moss on this issue if it ignores established case law and finds that Moss’s version of the incident is more credible than T.A.P.’s, which the court declines to do. Hardin v. Pitney-Bowes Inc., 451 U.S. 1008, 1008 (“It has long been established that it is inappropriate to resolve issues of credibility. . . on motions for summary judgment”).
ii. Constitutional Violation Even if Moss prevails on the discretionary authority prong, he still must show that he did not violate T.A.P.’s clearly established constitutional right. The analysis for T.A.P.’s 4th Amendment excessive force claim against Moss is
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identical that for the SROs because Moss was in a position to sanction, enforce, and/or implement generally any policy of police use of force or the use of pepper spray specifically. Again, T.A.P. asserts that Moss tripped her as she left the school premises pursuant to his instructions, then placed his foot on her back to hold her down, and subsequently assisted in restraining her while SRO Tarrant maced her. Doc. 162-2 at 15-16, 19. Moss asserts that he had to use force to prevent T.A.P. from violating the school’s prohibition against leaving school without checking out first. Doc. 162-3 at 12, 14-15. Although Moss admits to putting his foot on T.A.P.’s back – after all, that was the only way, apparently, to ensure that T.A.P. followed the check out policy – Moss denies tripping T.A.P. or restraining her while SRO Tarrant maced her. Id. at 14-15. While ensuring that students follow school policies is an important objective, leaving school without checking out is not an offense that warrants the use of force – even under Moss’s version of the facts. Furthermore, purportedly tripping T.A.P., stepping on her back, or allegedly helping to restrain her so that SRO Tarrant could spray her with mace is conduct that Moss can only justify if there is a finding that T.A.P. posed a safety threat or continued to resist. In light of T.A.P.’s contentions, a factual dispute clearly exists regarding the extent of Moss’s behavior and whether T.A.P. disobeyed a directive supplied by Moss and/or SRO Tarrant that, at a minimum,
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would justify an administrator stepping on a student’s back. Thus, with respect to the 4th Amendment claim, the court disagrees with Moss’s assertion that T.A.P. has failed to demonstrate a constitutional violation.
Turning now to T.A.P.’s 14th Amendment excessive corporal punishment claim, the Eleventh Circuit has recognized that “excessive corporal punishment . . . may be actionable under the Due Process Clause when it is tantamount to arbitrary, egregious, and conscience-shocking behavior.” Neal ex rel. Neal v. Fulton Cnty Bd. of Educ., 229 F.3d 1069, 1075 (11th Cir. 2000). The plaintiff bears the burden of demonstrating the “school official intentionally used an amount of force that was obviously excessive under the circumstances, and [that]... the force used presented a reasonably foreseeable risk of serious bodily injury.” Id. Whether the use of force was “obviously excessive” under the circumstances can be determined by looking to “the need for the application of corporal punishment, . . . the relationship between the need and amount of punishment administered, and . . . the extent of the injury inflicted.” Id. As a threshold matter, the court must first analyze whether Moss’s actions constitute corporal punishment. The key inquiry here is “whether the use of force is related to the student’s misconduct at school and ... for the purpose of discipline.” T.W. ex rel. Wilson v. School Bd. of Seminole Cnty., Fla., 610 F.3d 588, 599 (11th Cir. 2010).
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The parties disagree on whether Moss’s conduct constituted prohibited corporal punishment under the Birmingham Board of Education’s policies. Moss asserts that “corporal punishment” is limited to paddling and thus his actions neither violated the Board’s policy nor are actionable under the 14th Amendment. Unfortunately for Moss, corporal punishment, as defined for 14th amendment purposes, is not limited to paddling. T.W., 610 F.3d at 598-99 (“Not all corporal punishment cases arise under circumstances where school officials ... mete out spankings or paddlings to a disruptive student.”) (internal quotation marks omitted). Thus, Moss’s alleged conduct may, in fact, qualify as corporal punishment under the 14th Amendment. However, whether Moss is correct that the Board does not prohibit his alleged conduct is a disputed fact and probably a claim that the Board wants an opportunity to address. After all, if Moss is correct, then, presumably, the Board allows the use of physical force, such as stepping on students, to ensure compliance with the check-out procedures. Likewise, whether Moss’s alleged use of corporal punishment was excessive and whether T.A.P. has sufficiently established a constitutional violation are disputed issues for a jury to resolve.
iii. Clearly Established The last step of the immunity analysis requires the court to determine
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whether T.A.P.’s constitutional rights were “clearly established.” Again, T.A.P.’s excessive force claim against Moss arises from the 4th Amendment’s prohibition against unreasonable seizures, as made applicable to the states through the 14th Amendment. Graham v. Connor, 490 U.S. 386, 394 (1989). Therefore, the analysis is identical to that for the SROs, i.e., a jury question exists on this prong. See section III(A)(b)(iii), supra.
To the extent that T.A.P.’s 14th Amendment claim against Moss requires a separate analysis, the facts viewed in the light most favorable to T.A.P. likewise preclude summary judgment. The cases cited by Moss in an attempt to demonstrate that the case law was not clearly established are inapposite, in that the injuries complained of were primarily caused inadvertently by the teacher’s conduct. For example, in Ex Parte Turner, 840 So. 2d 132 (Ala. 2002), the teacher grabbed a student to keep her from passing by and inadvertently injured the student when they both fell. Id. at 134. Even further, in cases such as Neal ex rel. Neal v. Fulton Cnty. Bd. of Educ., 229 F.3d 1069 (11th Cir. 2000), where a teacher hit a student after the student assaulted another student, the court found that “[e]ven assuming that it would not have been improper per se for [the defendant] to have administered some amount of corporal punishment to the Plaintiff due to the Plaintiff’s misconduct, [the defendant] allegedly went much further, intentionally
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using an obviously excessive amount of force that presented a reasonably foreseeable risk of serious bodily injury.” Id. at 1076. This is precisely the case here. Again, T.A.P. alleges that Moss used physical force against her even though she was not engaged in any misconduct. Specifically, T.A.P. alleges that Moss tripped her and stepped on her back while she was on the ground to restrain her, which “presented a reasonably foreseeable risk of serious bodily injury.” In light of these facts, a constitutional violation is clearly established because the alleged conduct creates a foreseeable risk of injury. Further, a jury could find, under the second method discussed above, that Moss’s behavior was so outrageous that the unlawfulness of it should have been readily apparent, even in the absence of established case law. Ultimately, whether T.A.P.’s 14th Amendment right was “clearly established” rests on a jury’s determination of the underlying facts. Therefore, summary judgment for Moss on qualified immunity grounds is DENIED.
[2] Paul D. Coverdell Protection Act of 2001 Moss asserts also that he is entitled to immunity under the No Child Left Behind Act, Paul D. Coverdale Teacher Protection Act of 2001, 20 U.S.C. § 6731, et seq., doc. 162 at 3 ¶ 13, which provides that
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no teacher in a school shall be liable for harm caused by an act or omission of the teacher on behalf of the school if -(1) the teacher was acting within the scope of the teacher’s employment or responsibilities to a school or governmental entity; (2) the actions of the teacher were carried out in conformity with Federal, state, and local laws (including rules and regulations) in furtherance of efforts to control, discipline, expel, or suspend a student or maintain order or control in the classroom or school; . . . (4) the harm was not caused by willful or criminal misconduct, gross negligence, reckless misconduct, or a conscious, flagrant indifference to the rights or safety of the individual harmed by the teacher[.] 20 U.S.C. § 6736(1), (2) and (4) (emphasis added). Although T.A.P. does not explicitly challenge Moss’s contention that he was acting within the scope of his employment with respect to his assertion of immunity under the Act, the argument T.A.P. raised in challenging Moss’s qualified immunity defense is equally applicable here. Specifically, T.A.P. contends that Moss had no authority, discretionary or otherwise, to use force of any kind on her because of the Board’s corporal punishment policy. Moss, instead, contends that the policy does allow for some physical force “to maintain order and discipline.” Just as for the discretionary authority analysis under the qualified immunity section, the court cannot settle this factual dispute at this juncture.
The parties’ primary dispute centers on whether Moss’s actions violate §
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6736(2) and (4), which state that there is no immunity if Moss acted willfully, recklessly or if he violated the Board’s policy. Interestingly, perhaps because he believes the Act gives a teacher the power to use any form of “control, discipline . . . [or] order” to keep students in school, Moss contends that his admitted conduct, i.e., stepping on T.A.P.’s back to restrain her because she wanted to leave school without “checking out,” conformed with all applicable laws, “as well as the policies of the Birmingham Board of Education.” Doc 162-1 at 30; see also doc. 162-3 at 14-15. Again, T.A.P. alleges that Moss tripped her, planted his foot on her back, and helped restrain her so that SRO Tarrant could mace her. Doc. 162-2 at 15-16. Whether a school official can engage in such conduct as part of his efforts to comply with the Act and leave no child behind is a question for a jury to resolve. However, construing the evidence in the light most favorable to T.A.P., as the court must do at this juncture, a genuine issue of material fact exists as to whether Moss can satisfy the elements required for immunity under § 6736. Accordingly, Moss’ motion for immunity under the No Child Left Behind Act is DENIED.
B. State Law Claims The Defendants challenge also the Plaintiffs’ state law claims on immunity
grounds – state agent immunity for all Defendants and school master’s immunity
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for Moss. Finally, Moss and the SROs challenge the Plaintiffs’ outrage claims on
the merits. For the reasons stated more fully below, with the exception of Chief
Roper, the court again finds that summary judgment based on these defenses is
inappropriate at this juncture.
[1] State Agent Immunity
Moss asserts state agent immunity, under Article I, § 14 of the Alabama Constitution9 and Ex parte Cranman, 792 So. 2d 392 (Ala. 2000). Doc. 162 at 2 ¶ 10. Likewise, the Police Defendants assert the defense of discretionary function immunity, which is also called state agent immunity, as provided in § 6-5-338 of the Code of Alabama (1975)10 and Ex parte Cranman, 792 So. 2d 392 (Ala. 2000). Doc. 159 at 2-3 ¶ 9-10. In explaining this immunity, the Alabama Supreme Court stated that
[a] state agent shall be immune from civil liability in his or her personal capacity when the conduct made the basis of the claim against the agent is based upon the agent’s . . . exercising. . . their judgment in the administration of a department or agency of the government, including . . . making administrative adjudications[,]. . . hiring, firing, transferring, assigning, or supervising personnel;. . . exercising judgment in the enforcement of the criminal laws of the State, including. . .attempting to arrest persons; or . . .exercising judgment in the discharge of duties
9 Section 14 states simply that the state “shall never be made a defendant in any court of law or equity.” ALA. CONST. Art. I § 14 (1901).
10 Section 6-5-338 provides that “[e]very peace officer, [...] who is employed or appointed pursuant to the Constitution or statutes of this state, [. . .] shall have immunity from tort liability arising out of his or her conduct in performance of any discretionary function within the line and scope of his or her law enforcement duties.”
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imposed by statute, rule or regulation in. . . educating students. Ex parte Cranman, 792 So. 2d at 405. Under the burden-shifting process used when a party raises this defense, the movant must demonstrate initially that the plaintiff’s claims arise from a function that would entitle the movant to immunity. Giambrone v. Douglas, 874 So. 2d 1046, 1052 (Ala. 2003). The burden then shifts to the plaintiff to establish that the movant “act[ed] willfully, maliciously, fraudulently, in bad faith, beyond his or her authority, or under a mistaken interpretation of the law.” Id. (quoting Cranman at 405). Further, a state agent acts beyond his or her authority, and thus is not immune from suit, if he or she “fail[s] to discharge duties pursuant to detailed rules or regulations.” Id.
a. Chief Roper Chief Roper claims he is entitled to immunity because the claims against him are based on his tasks in “hiring, training, disciplining, supervising, and retaining police officers,” doc. 160 at 26, which fall within the category of “exercising judgment in the administration of a department.” Plaintiffs disagree and assert that Chief Roper has no immunity because he purportedly allowed his officers to arrest students in violation of the Collaborative Agreement. See doc. 167-5. This appears to be an allegation that Chief Roper acted beyond his authority. Further, Plaintiffs allege that Chief Roper acted willfully, maliciously, in bad faith or under
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a mistaken interpretation of the law because the use of mace under these circumstances violates the Constitution. As such, Plaintiffs claim Chief Roper “either . . . misinterpreted the law on the use of force in response to minor misconduct or . . . knew this was wrong and [allowed his SROs to proceed] anyway.” Doc. 167 at 33. Plaintiffs arguments, however, are unpersuasive. Despite their allegation that Chief Roper allowed the SROs to violate the Collaborative Agreement, they failed to present sufficient evidence to establish that Chief Roper acted beyond his authority as police chief. Plaintiffs, likewise, presented no evidence suggesting that Chief Roper acted willfully, maliciously, fraudulently or in bad faith, in violation of the Cranman standard for immunity.
Alternatively, even if Chief Roper is not entitled to state agent immunity, Plaintiffs have failed to sufficiently establish the basis for the state law claims against Chief Roper. While the tort of outrage is discussed more fully below in section [3], an allegation of assault and battery requires a plaintiff to show “(1) that the defendant touched the plaintiff; (2) that the defendant intended to touch the plaintiff; and (3) that the touching was conducted in a harmful or offensive manner.” Walker v. City of Huntsville, 62 So. 3d 474, 494 (Ala. 2010). Plaintiffs obviously do not allege that Chief Roper personally assaulted them and instead seek to hold him liable in his individual capacity for the torts of his subordinates.
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Although an employer can be held directly liable for the alleged tortious conduct of his employees if he “authorize[d] or participate[d] in the employee’s acts or ratifie[d] the employee’s conduct after [he] learns of the action,” Mardis v. Robbins Tire & Rubber Co., 669 So. 2d 885, 889 (Ala. 1995), the claims here are against Chief Roper in his individual capacity. Plaintiffs failed to explain how a supervisor can be held individually liable for the torts of his employees. Alternatively, they fail to explain how Chief Roper, in his individual capacity, authorized or ratified the SROs’ alleged conduct or “enforc[ed], sanction[ed], and/or implement[ed] a policy/custom that subjects [Birmingham City Schools] students to bodily harm in violation of state law” as they allege in their amended complaint. Therefore, their state law claims against Chief Roper fail as a matter of law.
Moreover, Plaintiffs cannot establish that Chief Roper authorized or ratified the alleged torts. To establish ratification, Plaintiffs must show that Chief Roper expressly adopted the SROs’ alleged tortious conduct or implicitly approved of it because he “(1) had actual knowledge of the tortious conduct of the offending employee and that the tortious conduct was directed at and visited upon the complaining [student]; (2) that based upon this knowledge, [Chief Roper] knew, or should have known, that such conduct constituted . . . a continuing tort; and (3) that [Chief Roper] failed to take ‘adequate’ steps to remedy the situation.” Id.
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(emphasis added). There is no allegation that Chief Roper expressly approved the SRO’s alleged conduct, and thus Plaintiff’s must satisfy the remaining steps of the ratification analysis. Although Chief Roper may have constructive notice of each incident involving an SRO and use of Freeze+P through the use of incident reports and use of force forms, there is no indication that Chief Roper had actual knowledge of each individual incident complained of prior to the filing of this lawsuit. Additionally, even if Chief Roper did have such knowledge, information about the use of chemical spray in response to alleged misconduct by a student would not reasonably lead Chief Roper to conclude that a prohibited tort had occurred. Even further, these were not instances of continuing torts – each alleged assault and battery involves only a single macing incident. In other words, Chief Roper would not have had an opportunity to take adequate steps to remedy the tortious conduct, especially since Plaintiffs failed to allege that they complained directly to the BPD about the conduct of the SROs in each of these particular incidents. Therefore, Plaintiffs have failed to establish that Chief Roper ratified the alleged wrongful conduct of each SRO and his motion for summary judgment on the assault and battery and, because this analysis applies also to Plaintiffs’ outrage claims, the outrage claims is GRANTED.
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b. SRO Defendants The SRO Defendants assert they are entitled to state agent immunity because the challenged incidents involved their “exercise of judgment in enforcing the criminal laws.” Plaintiffs disagree and assert that they violated no criminal laws and only committed mere school infractions. Although Plaintiffs may be correct that the officers were not addressing per se criminal infractions, the SROs were nonetheless acting within their discretionary authority. Therefore, the SRO Defendants have met their initial burden under the state agent immunity test. The court must now ascertain whether Plaintiffs have demonstrated that the SROs are otherwise not immune from suit. In that regard, Plaintiffs allege that SROs Smith, Benson and Henderson acted beyond their authority by arresting Plaintiffs B.J., K.B., and B.D. in violation of the Collaborative Agreement which requires that SROs effectuate arrests only in “exceptional circumstances” and after using a graduated set of responses for school based offenses. See id.; doc. 160-5 at 50; doc. 160-3 at 85-86; doc. 160-4 at 49. Further, Plaintiffs allege that the SRO Defendants acted willfully, maliciously, in bad faith or under a mistaken interpretation of law by “either. . . misinterpret[ing] the law on the use of force in response to minor misconduct or [knowing] this was wrong and [going] ahead
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anyway.” Doc. 167 at 33. Essentially, Plaintiffs allege that the SROs lost their right to state agent immunity due to their purported failure to discharge their duties pursuant to applicable rules and regulations.
As discussed in Section III.A[1](b) regarding qualified immunity, several factual disputes exist regarding whether the SRO Defendants used excessive force or violated the Collaborative Agreement. Likewise, there are factual disputes regarding whether the SROs lose their immunity for “act[ing] willfully [or] maliciously” under Cranman. 792 So. 2d at 405. The court finds that these factual disputes preclude a finding that the SRO Defendants are entitled state agent immunity. Therefore, the SRO Defendants’ motion on this issue is also DENIED.
c. Defendant Moss Moss asserts that he is entitled to state agent immunity because he was “exercising his judgment in discharging his duty to educate students” during the incident with T.A.P. Several genuine factual disputes exist regarding whether Moss used excessive force, corporal punishment, see section III.A[1](c)-[2], supra, or is otherwise not immune because he “act[ed] willfully, maliciously [or] beyond his . . . authority” in violation of Cranman, 792 So. 2d at 405, when he purportedly tripped T.A.P., stepped on her back, and restrained her so she could be maced.
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Thus, Moss’s motion on this issue is DENIED.
[2] Schoolmaster’s Immunity
Moss asserts also that he is entitled to “schoolmaster’s immunity,” as construed by the Alabama Supreme Court in Suits v. Glover, 71 So. 2d 49 (Ala. 1954). Doc. 162 at 3 ¶ 14. Further, Moss asserts that the heightened evidentiary standard of “clear and convincing evidence” applies because of the applicability of this defense.11 According to Suits,
A schoolmaster is regarded as standing in loco parentis and has the authority to administer moderate correction to pupils under his care. To be guilty of an assault and battery, the teacher must not only inflict on the child immoderate chastisement, but he must do so with legal malice or wicked motives or he must inflict some permanent injury. In determining the reasonableness of the punishment or the extent of malice, proper matters for consideration are the instrument used and the nature of the offense committed by the child, the age and physical condition of the child, and the other attendant circumstances.
Suits, 71 So. 2d at 50 (emphasis added). T.A.P. alleges that Moss is not entitled to this immunity because she was following his instructions, and thus no correction, moderate or otherwise, was warranted in the situation. Doc. 162-2 at 20-21. T.A.P.
11 The heightened pleading standard of clear and convincing evidence established in Hurst v. Capitell, 539 So. 2d 264 (Ala. 1989), clearly does not apply in this case because, as the court made clear, this “exception to the parental immunity doctrine” is narrow and only to be used in “cases involving sexual abuse.” Id. at 266.
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asserts also that Moss admits his actions “fit[] within the 11th Circuit’s broad definition of corporal punishment[,]” doc. 162-1 at 11, and thus his conduct, which is purportedly prohibited by the Board of Education, does not qualify as “moderate” under Suits. Doc 168-3 at 2.
The court does not even have to consider the facts in the light most favorable to T.A.P. to find against Moss on this issue. By Moss’s own admission, he is simply not entitled to schoolmaster’s immunity. According to Moss, “the nature of the offense [T.A.P.]committed,” Suits, 71 So. 2d at 50, is leaving school without checking out. Doc. 162-3 at 14-15. Under even an extreme tough love form of in loco parentis, placing one’s foot on the back of a child to restrain them from leaving school without checking out, as Moss admits, is simply not a reasonable form of punishment or “moderate correction” as outlined in Suits. See id. Frankly, when coupled with T.A.P.’s allegation that Moss also tripped her, Moss’s admitted conduct borders on child abuse and is precisely the type of behavior that creates a strong inference of “legal malice or wicked motives,” under Suits. Id. Therefore, Moss’s motion on the basis of school-master immunity is DENIED.
[3] The Tort of Outrage Finally, Moss alleges that Plaintiff T.A.P. cannot establish an outrage claim.
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Doc. 162 at 3 ¶ 15. Further, while outrage is not specifically mentioned in their motion, the Police Defendants also seem to allege that Plaintiffs cannot adequately establish an outrage claim because “there is no proof [the Police Defendants] acted in a personal or vindictive nature[.]” Doc 160 at 29.
Moss is correct that “[t]he tort of outrage is a very limited cause of action that is available only in the most egregious circumstances.” Thomas v. BSE Indus. Contractors, Inc., 624 So. 2d 1041,1044 (Ala. 1993). Despite this limited nature, the Alabama Supreme Court has explained that outrage claims are not restricted to the three specific circumstances articulated in Potts v. Hayes, 771 So. 2d 462 (Ala. 2000). Little v. Robinson, — So.3d —, No. 1090428, 2011 WL 1334416, at *4 (Ala. April 8, 2011). Nonetheless, it is clear that the tort is only appropriate when the alleged conduct is so “outrageous in character and so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized society.” Tinker v. Beasley, 429 F.3d 1324, 1329-30 (11th Cir. 2005) (citing American Rd. Svc. Co. v. Inmon, 394 So. 2d 361, 365 (Ala. 1980)).
Here, all Plaintiffs allege that the SRO Defendants and/or Moss subjected them to excessive force or punishment. Furthermore, they allege that they were
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unnecessarily subjected to the use of mace, while restrained, handcuffed, pregnant, engaged in no wrongdoing, and deprived of proper decontamination procedures afterwards. See docs. 164-4 at 45-46, 53-54; 164-2 at 25-26, 40-41; 164-5 at 45; 164-6 at 36-38; 164-7 at 26-33; 164-3 at 25, 54; and 160-2 at 52, 77-78, 82. Even if the SRO Defendants are correct that they used mace justifiably, they face a difficult time arguing credibly that their purported failure to subsequently follow the decontamination procedures does not rise to the level of “extreme and outrageous” conduct necessary for an outrage claim. See Perkins v. Dean, 570 So. 2d 1217, 1219 (Ala. 1990) (stating that the tort of outrage requires proof that “(1) the actor intended to inflict emotional distress, or knew or should have known that emotional distress was likely to result from his conduct; (2) the conduct was extreme and outrageous; and (3) the distress was severe”) (citations omitted).
According to Chief Roper, SROs must follow the use of force and chemical spray policies, which include decontamination procedures following use of Freeze+P. Doc. 160-1 at 17, 20, 35. The policy on chemical spray subject restraint states that “[f]ollowing the use of chemical spray the officer will ensure that the subject receives adequate decontamination as soon as practical. The officer should supply immediate medical attention if requested by the subject.” Doc. 160-21 at 3. Yet, Plaintiffs allege that the SROs held them for hours without decontamination,
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and that they continued to feel the lingering effects of the chemical spray as a result. Indeed, the alleged behavior is so outrageous that even the Family Court personnel purportedly refused to accept Plaintiff B.D. because SRO Henderson had yet to decontaminate her and seek medical treatment. Our society has set certain rules that all citizens must follow. Amongst these rules is the requirement that even purported criminals have basic human rights. Where, as here, the SRO Defendants purportedly violated the BPD’s Agreement with the Board of Education and maced the Plaintiffs for engaging in minor non-criminal infractions, and then also failed to follow the BPD policy on decontamination, this court is simply not prepared to say that this conduct can never rise to the level necessary for it “to be regarded as atrocious and utterly intolerable in a civilized society.” Whether Plaintiffs ultimately can prevail on this or any of their claims are matters not before this court at this juncture. Ultimately, the parties will have the opportunity to tell their respective stories to a jury, and that jury may well find against the Plaintiffs. However, based on these allegations, Plaintiffs have earned the right to present their outrage claims to a jury. Accordingly, the SRO Defendants’ motion is DENIED.
Likewise, Moss’s motion is also DENIED. An assistant principal simply cannot contend credibly that T.A.P.’s allegations against him, which the court must
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accept as true, do not cross the bounds of decency and rise to the level of acts regarded as atrocious and intolerable for a civilized society.
With respect to Chief Roper, however, Plaintiffs have failed to show that his conduct in sanctioning, enforcing, and implementing the policies SROs follow was sufficiently extreme and outrageous. Chief Roper’s conduct is distinct from that of the individual SROs, as he was a non-actor in each incident leading to Plaintiffs’ alleged injuries. Failing to promulgate specific policies with respect to use of nonlethal force by police officers assigned to a school is not outrageous conduct when there is a general policy in place and a collaborative agreement that outlines practices for the SROs to follow. As such, Chief Roper’s motion on the outrage claim is GRANTED.
IV. CONCLUSION In sum, except for P.S.’s claim against SRO Clark and Plaintiffs’ claims against Chief Roper in his individual capacity, summary judgment is DENIED as to all counts alleged against the police defendants and Assistant Principal Moss. DONE and ordered this 3rd day of October, 2012.
________________________________ ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE
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 Case 2:10-cv-03314-AKK Document 212-1 Filed 11/08/13 Page 1 of 13 Case: 12-15551 Date Filed: 09/19/2013 Page: 1 of 12

FILED
2013 Nov-08 AM 10:16 U.S. DISTRICT COURT
N.D. OF ALABAMA

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

—————————————

No. 12-15551

—————————————

D.C. Docket No. 2:10-cv-03314-AKK

J.W., by and through his next friend, Tammy Williams, G.S., by and through her next friend, LaTonya Stearns, et al.,

Plaintiffs-Appellees,

versus

A. C. ROPER, in his individual and official capacity as Chief of the Birmingham Police Department, J. NEVITT, Officer, in his individual capacity, et al.,

Defendants-Appellants.

—————————————
Appeal from the United States District Court for the Northern District of Alabama
————————————— (September 19, 2013)

Case 2:10-cv-03314-AKK Document 212-1 Filed 11/08/13 Page 2 of 13 Case: 12-15551 Date Filed: 09/19/2013 Page: 2 of 12
Before MARTIN and BLACK, Circuit Judges, and EDENFIELD,∗ District Judge. PER CURIAM:
Birmingham Police Chief A.C. Roper and several individual School Resource Officers appeal the district court’s partial denial of their motion for summary judgment. On appeal, Chief Roper argues he is not liable in his official capacity under 42 U.S.C. § 1983. The individual Resource Officers argue (1) they are entitled to qualified immunity against Plaintiffs’ § 1983 constitutional claims, (2) they are entitled to state-agent immunity against Plaintiffs’ state-law outrage claims, and (3) even if they are not entitled to state-agent immunity, Plaintiffs’ outrage claims are meritless and should not survive summary judgment. We affirm the district court’s decision that the Resource Officers are not entitled to qualified immunity, and dismiss the remaining claims for lack of appellate jurisdiction.1
I. JURISDICTION A. Chief Roper’s Appeal
∗ The Honorable B. Avant Edenfield, United States District Judge for the Southern District of Georgia, sitting by designation.
1 We review the denial of summary judgment de novo, applying the same legal standard as the district court. Durruthy v. Pastor, 351 F.3d 1080, 1084 (11th Cir. 2003). Also, we have an independent obligation to determine whether appellate jurisdiction exists in each case, regardless of whether the parties raised that issue. Reaves v. Sec’y Fla. Dep’t of Corr., 717 F.3d 886, 905 (11th Cir. 2013).
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Plaintiffs’ only remaining claim against Chief Roper alleges that he is liable in his official capacity because the Birmingham Police Department’s policy and custom on the use of mace in Birmingham schools caused their constitutional injuries.2 The district court concluded the Plaintiffs’ allegations and supporting evidence created a genuine issue of material fact on this issue, and therefore Chief Roper was not entitled to summary judgment. Roper contends the district court erred because the Plaintiffs’ § 1983 claims are meritless and cannot establish his official liability.
For several reasons, we do not have jurisdiction over Roper’s claims at this interlocutory stage. See, e.g., Swint v. Chambers Cnty. Comm’n, 514 U.S. 35, 41– 43 (1995). Roper appeals a non-final ruling that denied him summary judgment on a “defense to liability”—not “immunity from suit.” Mitchell v. Forsyth, 472 U.S. 511, 526, 530 (1985) (emphasis in original). Unlike the Resource Officers’ qualified-immunity appeal, Roper’s defense to liability is not “effectively lost if a case is erroneously permitted to go to trial.” Id. at 526. The district court can revisit the merits of Roper’s defense before submitting the case to the jury, and Roper can appeal any adverse final judgment on the official-capacity issue. See, e.g., Swint, 514 U.S. at 41–43 (stressing that defenses to liability are generally not
2 The district court granted Chief Roper qualified immunity for those claims brought against him in his individual capacity. Because Plaintiffs have not cross-appealed that ruling, it is not before us.
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subject to interlocutory review because “[a]n erroneous ruling on liability may be reviewed effectively on appeal from final judgment”).
Moreover, this Court does not have pendent-party appellate jurisdiction over Roper’s official-capacity appeal. See, e.g., id. at 43–51. Pendent-party appellate jurisdiction exists “only under rare circumstances.” King v. Cessna Aircraft Co., 562 F.3d 1374, 1379 (11th Cir. 2009). This Court has pendent-party appellate jurisdiction over otherwise nonappealable claims when they are “‘inextricably intertwined’ with the appealable decision or when ‘review of the former decision is necessary to ensure meaningful review of the latter.’” Id. (quoting Swint, 514 U.S. at 51) (brackets omitted).
Roper argues the official-capacity claim is “inextricably intertwined” with the Resource Officers’ qualified-immunity appeal. In his view, both claims ask whether the Plaintiffs’ constitutional rights were violated and both claims examine Roper’s mace policies. As a result, the two claims “significantly overlap,” as we must decide whether he is liable in his official capacity when reviewing the Officers’ qualified-immunity appeals.
Roper’s argument fails as a matter of law. See, e.g., Jones v. Cannon, 174 F.3d 1271, 1292–93 (11th Cir. 1999). Official-capacity liability and qualified immunity involve fundamentally different inquiries, even if they arguably share some common ground. See id. To survive summary judgment on the official-
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capacity claim, Plaintiffs must present evidence (1) their constitutional rights were
violated; (2) Roper’s policy is unconstitutional because it had no school-specific
directives3 and Roper’s training customs reflected “deliberate indifference”; and
(3) Roper’s policy and custom were the “moving force” behind the Plaintiffs’
constitutional violations. See City of Canton v. Harris, 489 U.S. 378, 385–92
(1989). But to survive summary judgment on the qualified-immunity issue,
Plaintiffs must present evidence (1) the Officers violated their constitutional rights;
and (2) those rights were “clearly established” when the violations occurred. See
Hope v. Pelzer, 536 U.S. 730, 736–41(2002).
The official-capacity and qualified-immunity appeals overlap only on the
question of whether the Resource Officers violated the Plaintiffs’ constitutional
rights. In deciding that question, however, we need not address the
constitutionality of Roper’s policies, or whether those policies were the “moving
force” behind the Plaintiffs’ injuries. Moreover, the constitutionality of Roper’s
3 At oral argument, Plaintiffs’ counsel asserted a different theory of liability for their policy-based claim. Counsel alleged Roper’s mace policy was unconstitutional writ large— against students or adult-arrestees—and that they were seeking to enjoin the use of mace against any individual subject to police control. However, no such theory of liability appears in Plaintiffs’ complaint or motion opposing summary judgment. In those filings, Plaintiffs explicitly denied that they were “challeng[ing] the use of mace on its face,” and asserted instead they were “challeng[ing] Defendants’ policy because it places no actual limits on the officers’ discretion to deploy mace against students.” See Pls.’ Resp. Defs.’ Mot. Summ. J. at 27 (emphasis added); see also Pls.’ Third Am. Compl. at ¶¶ 185–90 (same).
If they so desire, Plaintiffs may move the district court for leave to amend their complaint under Fed. R. Civ. P. 15(a)(2). They may not amend their complaint or adopt a new theory of liability before this Court at oral argument, however. Cf. Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th Cir. 2004). As such, we analyze Plaintiffs’ claims as they have been presented throughout this litigation and do not address any newly asserted theories.
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policies is not pertinent to determining whether the Officers acted within their discretionary authority. After all, a mace policy could be constitutional, and yet an individual officer could still violate a student’s constitutional rights or act outside the policy’s terms. Vice versa, a mace policy could be unconstitutional on its face, and yet an individual officer could still behave constitutionally and do so within his discretionary authority. Therefore, Roper’s official-capacity appeal is not “inextricably intertwined” with the Officers’ qualified-immunity appeals. Cf. Bryant v. Jones, 575 F.3d 1281, 1301–02 (11th Cir. 2009) (holding that a question of “issue preclusion” was “inextricably intertwined” with qualified-immunity issues “because resolution of the preclusion issue in favor of the defendants w[ould] necessarily dispense of any need to pass on the immunity issues”).
Indeed, Roper’s jurisdictional argument is foreclosed by our decision in Jones. See 174 F.3d at 1293. Just as in this case, Jones involved separate defendants bringing separate official-capacity and qualified-immunity claims. Id. Although the defendants’ claims shared a common question—i.e., whether the plaintiff’s constitutional rights were violated—one common question did not make the claims “inextricably intertwined.” See id. at 1279, 1283–86, 1293.
The same conclusion follows in this case. Like Jones, the only point of overlap between the official-capacity and qualified-immunity claims is the question of whether the Officers violated the Plaintiffs’ constitutional rights. As in
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Jones, no other issue is necessarily shared among the claims. Therefore, like Jones, Roper’s official-capacity appeal is not inextricably intertwined with the Officers’ qualified-immunity appeal.
Accordingly, we do not have pendent-party appellate jurisdiction over Roper’s official-capacity appeal. Such a claim is merely a defense to liability, which is generally not subject to interlocutory review. See Mitchell, 472 U.S. at 526–30. Also, Roper’s appeal is not inextricably intertwined with the other defendants’ qualified-immunity appeals, because resolving Roper’s claim would not “necessarily dispense of any need to pass on the immunity issues.” Cf. Bryant, 575 F.3d at 1301–02. B. The Resource Officers’ State-law Claims
The record makes clear we do not have appellate jurisdiction at this stage over the Officers’ state-law claims. On appeal, the Resource Officers make two arguments involving state law. First, the Officers contend they are entitled to stateagent immunity against the Plaintiffs’ outrage claims under Alabama law. Second, the Officers contend that, even if they are not immune from suit under state law, the Plaintiffs’ outrage claims are meritless. Based on these arguments, the Officers ask us to both reverse the district court and direct it to enter summary judgment in their favor.
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Regardless of whether the Officers’ claims are correct or incorrect, we do not have jurisdiction over their state-law appeals.4 Ordinarily, we have appellate jurisdiction over only “those judgments, orders, or portions thereof which are specified in an appellant’s notice of appeal.” Hill v. BellSouth Telecomms., Inc., 364 F.3d 1308, 1313 (11th Cir. 2004) (internal quotation marks omitted). Here, the Officers’ Notice of Appeal refers only to that portion of “the Order denying their summary judgment motion on qualified immunity.” Their Notice does not indicate an appeal of any state-law issue specifically. Nor does it specify an appeal of the district court’s order generally, such that all of the issues resolved therein would be reviewable.
Under our precedent, issues not specified in a notice of appeal are reviewable in two situations. See C.A. May Marine Supply Co. v. Brunswick Corp., 649 F.2d 1049, 1056 (5th Cir. 1981).5 First, we may review unspecified issues when the intent to appeal was “apparent” and review would not “prejudice”
4 As an initial matter, the merits of the outrage claim are not properly before us, since the Officers’ claim is merely a defense to liability rather than immunity from suit. See Mitchell, 472 U.S. at 526–30. Moreover, the outrage claim is not sufficiently interwoven with any reviewable issue. See, e.g., Grider v. City of Auburn, 618 F.3d 1240, 1268 n.41, 1269 n.42 (11th Cir. 2010) (declining to address the merits of state-law claims because they were not necessary to deciding immunity issues).
5 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981.
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the adverse party. Id. Second, we may review unspecified issues when they are “inextricably entwined” with specified issues. Id.
In this case, the Officers’ unspecified state-law claims satisfy neither criterion for review. The Officers’ intent to appeal the state-agent immunity and outrage issues was not apparent. See id. Rather, “by specifically listing only” one part of a multi-issue district court order, the Officers conveyed an “intent not to appeal” other unspecified issues and rulings. See Pitney Bowes, Inc. v. Mestre, 701 F.2d 1365, 1374 (11th Cir. 1983) (emphasis in original).
Additionally, the state-law issues are not inextricably entwined with qualified immunity. Qualified immunity and Alabama’s outrage tort, for example, share no common questions of law. Compare Hope, 536 U.S. at 736–41 (outlining the elements of qualified immunity), with Green Tree Acceptance, Inc. v. Standridge, 565 So. 2d 38, 44 (Ala. 1990) (outlining the elements of outrage as whether the officers’ conduct (1) was intentional or reckless; (2) was extreme and outrageous; and (3) caused emotional distress so severe that no reasonable person could be expected to endure it). Further, although qualified immunity and stateagent immunity ask a similar question about discretionary authority, they are not sufficiently entwined. Unlike qualified immunity, state-agent immunity does not turn on the existence of a “clearly established” constitutional right; instead, it asks whether the officers acted willfully or maliciously. See Ex parte Kennedy, 992 So.
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2d 1276, 1281 (Ala. 2008). Because we need not reach that distinctive question in resolving the qualified-immunity appeals, state-agent immunity is not inextricably entwined with qualified immunity.
As a result, we do not have jurisdiction over the Officers’ appeals involving state law. Indeed, the Officers’ failure to specify the state-law issues in their Notice of Appeal is not merely an “informality of form.” See Fed. R. App. P. 3(c)(4). To the contrary, although we liberally construe notices of appeal, the rules governing such notices are “jurisdictional in nature, and their satisfaction is a prerequisite to appellate review.” Smith v. Barry, 502 U.S. 244, 248 (1992). Notices of appeal must “designate the judgment, order, or part thereof being appealed,” Fed. R. App. P. 3(c)(1)(B), and when a notice specifies a particular ruling or issue, we infer others are not part of the appeal, see White v. State Farm Fire & Cas. Co., 664 F.3d 860, 864 (11th Cir. 2011). Because the Officers’ Notice of Appeal designated only the qualified-immunity ruling and conspicuously omitted the state-law issues, it is appropriate to dismiss the state-law claims for lack of appellate jurisdiction. See Fed. R. App. P. 3(a)(2).
II. QUALIFIED IMMUNITY Finally, we have jurisdiction to review and we affirm the district court’s order denying the Resource Officers’ motion for qualified immunity. See Mitchell, 472 U.S. at 526–30. Only six of the eight named Plaintiffs still seek monetary
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damages from the Resource Officers under § 1983: K.B., B.D., T.L.P., T.A.P., B.J., and G.S.6 The facts set out by the district court accurately represent the record on summary judgment, and viewing those facts in the light most favorable to the Plaintiffs, we affirm the district court’s denial of qualified immunity. See, e.g., Vinyard v. Wilson, 311 F.3d 1340, 1347–55 (11th Cir. 2002).
Only one of the macings requires additional discussion. With regard to Officer Clark, the denial of qualified immunity is based on the second macing of G.S. Viewing the facts in the light most favorable to G.S., Officer Clark maced G.S. a second time when she was incapacitated, non-resistant, and writhing in pain on the ground.7 Although the first macing was reasonable due to G.S.’s initial resistance, that resistance does not shield Officer Clark from liability when he used force after the resistance and risk of flight was over. Cf. Gray v. Bostic, 458 F.3d 1295, 1307 (11th Cir. 2006) (concluding the handcuffing of “a compliant, nineyear-old girl for the sole purpose of punishing her was an obvious violation of [her] Fourth Amendment rights”). Accordingly, we affirm the district court’s
6 The other Plaintiffs—J.W. and P.S.—did not file a notice of appeal and are not involved in the qualified-immunity appeals because they have either abandoned or voluntarily dismissed their § 1983 claims for damages. J.W. and P.S. remain part of this case only as named representatives of the class action seeking declaratory and injunctive relief against Chief Roper in his official capacity.
7 Although G.S.’s testimony could be construed to imply that Officer Clark maced her two times in quick succession, G.S.’s testimony must be viewed in the light most favorable to her at this point in the litigation.
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denial of qualified immunity to Officer Clark, as well as the other Resource Officers.
III. CONCLUSION We AFFIRM the district court’s denial of the Resource Officers’ motion for qualified immunity, and DISMISS Chief Roper’s appeal, as well as the Officers’ state-law appeals, for lack of appellate jurisdiction.
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UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

ELBERT PARR TUTTLE COURT OF APPEALS BUILDING 56 Forsyth Street, N.W. Atlanta, Georgia 30303

John Ley Clerk of Court

September 19, 2013

MEMORANDUM TO COUNSEL OR PARTIES
Appeal Number: 12-15551-DD Case Style: J.W., et al v. A.C. Roper, et al District Court Docket No: 2:10-cv-03314-AKK

For rules and forms visit www.ca11.uscourts.gov

This Court requires all counsel to file documents electronically using the Electronic Case Files ("ECF") system, unless exempted for good cause. Enclosed is a copy of the court's decision filed today in this appeal. Judgment has this day been entered pursuant to FRAP 36. The court's mandate will issue at a later date in accordance with FRAP 41(b).

The time for filing a petition for rehearing is governed by 11th Cir. R. 40-3, and the time for filing a petition for rehearing en banc is governed by 11th Cir. R. 35-2. Except as otherwise provided by FRAP 25(a) for inmate filings, a petition for rehearing or for rehearing en banc is timely only if received in the clerk's office within the time specified in the rules. Costs are governed by FRAP 39 and 11th Cir.R. 39-1. The timing, format, and content of a motion for attorney's fees and an objection thereto is governed by 11th Cir. R. 39-2 and 39-3.
Please note that a petition for rehearing en banc must include in the Certificate of Interested Persons a complete list of all persons and entities listed on all certificates previously filed by any party in the appeal. See 11th Cir. R. 26.11. In addition, a copy of the opinion sought to be reheard must be included in any petition for rehearing or petition for rehearing en banc. See 11th Cir. R. 35-5(k) and 40-1 .
Counsel appointed under the CRIMINAL JUSTICE ACT must file a CJA voucher claiming compensation for time spent on the appeal no later than 60 days after either issuance of mandate or filing with the U.S. Supreme Court of a petition for a writ of certiorari (whichever is later).
Pursuant to Fed.R.App.P. 39, costs taxed against appellants.

The Bill of Costs form is available on the internet at www.ca11.uscourts.gov

For questions concerning the issuance of the decision of this court, please call the number referenced in the signature block below. For all other questions, please call Tonya L. Richardson, DD at (404) 335-6176.
Sincerely,
JOHN LEY, Clerk of Court
Reply to: Jeff R. Patch Phone #: 404-335-6161

OPIN-1A Issuance of Opinion With Costs

 
 Case 2:10-cv-03314-AKK Document 282 Filed 09/30/15 Page 1 of 120
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

FILED
2015 Sep-30 PM 02:45 U.S. DISTRICT COURT
N.D. OF ALABAMA

J.W. et al.,

)

)

Plaintiffs,

)

)

v.

)

)

BIRMINGHAM BOARD OF )

EDUCATION., et al.,

)

)

Defendants.

)

)

Civil Action Number 2:10-cv-03314-AKK

FINDINGS OF FACT AND CONCLUSIONS OF LAW

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

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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,
1 The plaintiffs’ motion requesting that the court continue to refer to them by their initials, doc. 264, is GRANTED.
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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
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+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.
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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
2 Two of the plaintiffs, P.S. and J.W., were bystanders when S.R.O.s sprayed other students with Freeze +P—P.S. was nearby when Officer Anthony Clark sprayed her sister, G.S., with Freeze +P, 1/21/15 at 61, and J.W. was standing in a crowd watching a fight when an unnamed S.R.O. sprayed the crowd, id. at 91.
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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
3 The parties filed various motions in limine seeking to exclude certain evidence at trial. See docs. 256, 265, 266, and 267. To the extent that the court did not address these motions during the trial, they are DENIED because “during a bench trial . . . it is presumed that the district judge with rely only upon properly admitted and relevant evidence.” Tampa Bay Shipbuilding & Repair Co. v. Cedar Shipping Co., Ltd., 320 F.3d 1213, 1216 (11th Cir. 2003) (citing Cmty. Action Grp. v. City of Columbus, 473 F.2d 966, 973 (5th Cir. 1973)).
4 G.S. was approximately 5’5” tall and weighed approximately 145 pounds on December 8, 2009. Pl. Ex. 14 at 1. Officer Clark, the S.R.O. who sprayed her with Freeze +P, was approximately 5’11” tall and weighed approximately 240 pounds. Id.
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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 purported attempt to punch the other girl in either his arrest report or during his deposition. Id. at 244. The arrest report described G.S.
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trying to get to a male student who previously hit her, presumably Snake, and does not describe her trying to punch anyone, although it does state that she pushed Officer Clark twice. Pl. Ex. 14 at 3. Finally, P.S., G.S.’s younger sister, who was nearby, testified that she did not hear Officer Clark say anything to G.S. prior to spraying her with Freeze +P. 1/21/15 at 63.
4. After Officer Clark sprayed G.S., a teacher helped G.S. off the ground and walked her into the school building to the office, where a school official asked if she needed an ambulance. Id. at 142–44. G.S. said yes because her face burned badly and she was having trouble breathing. Id. at 144.
5. Birmingham Fire and Rescue Service personnel responded and spoke with G.S. Id. at 145. They asked her for basic information, including her name and other identifying information. Id. G.S. asked the paramedics if she could wipe or put water on her face, but they told her doing so would make the burning worse. Id. at 146.
6. At some point, Officer Clark arrested G.S. and charged her with physical harassment. Pl. Ex. 14 at 1. Eventually, Officer Clark drove G.S. to Cooper Green Hospital, where G.S. told a nurse she was feeling better and signed a release form (albeit purportedly without knowing it was a release form). 1/20/14 at 147–49.
7. Officer Clark then transported G.S. to the Jefferson County Family Court, where court officials strip-searched G.S. Id. at 149–52. Eventually, G.S. was released to her mother. Id. at 150. She did not face any criminal proceedings in connection
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with her arrest. Id. at 154. 8. At trial, the court heard no testimony indicating that Officer Clark attempted
to decontaminate G.S. in any way. Specifically, the court heard no testimony indicating that Officer Clark placed G.S. in front of a fan or arranged for her to access any airflow. The court heard no testimony indicating he provided her with an opportunity to wash her face or shower. He also failed to provide G.S. with a change of clothes or give her the opportunity to access clothing that was not soaked in Freeze +P. Id. at 152.
9. G.S.’s younger sister, P.S., then a ninth grade student at Huffman High School, was standing nearby when Officer Clark sprayed G.S. with Freeze +P. 1/21/15 at 55, 64. Because of the windy conditions, P.S. and other students nearby experienced the effects of Freeze +P, which P.S. described as feeling like “needles stabbing my face. . . . [I]t hurt.” Id. at 64.
B. T.L.P.
10. On October 29, 2009, a fight erupted between T.L.P.,6 a fifteen-year-old student enrolled in Woodlawn High School, and another female student, E.H., in the school’s cafeteria. 1/21/15 at 137. Two members of the school staff, Coach Johnson and Coach Howard, were the first adults to reach the girls. Id. at 139. Coach Johnson
6 T.L.P. was approximately 5’2” tall and weighed approximately 128 pounds on October 29, 2009. Pl. Ex. 14 at 4. Officer Nevitt, the S.R.O. who sprayed her with Freeze +P, was approximately 6’4” tall and weighed approximately 265 pounds. Id.
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grabbed T.L.P., and Coach Howard grabbed E.H., who had fallen to the ground.7 Id. at 163. Officer Jeremiah Nevitt was already in the cafeteria and reached the girls a few seconds after Coach Johnson and Coach Howard. 2/2/15 at 150. He attempted to join the coaches in separating the girls but was unable to do so because T.L.P. had a tight grip on E.H.’s hair. Id. at 151.
11. Officer Nevitt told T.L.P. to let go of E.H.’s hair several times. Id. By this time, the many other students in the lunch room were growing rowdy and beginning to throw things. Id. at 230–31. When T.L.P. failed to comply with his instructions, Officer Nevitt attempted to spray her with Freeze +P. Id. Although some of the spray hit T.L.P. in the mouth, 1/21/15 at 142, Coach Johnson “took the bulk of the spray.” 2/2/15 at 151. The spray made the inside of T.L.P.’s mouth burn and itch and caused her to cough. 1/21/15 at 142. T.L.P. released E.H.’s hair, ending the fight, and Coach Johnson dropped T.L.P. 2/2/15 at 151–52.
12. Subsequently, in an assistant principal’s office, an administrator prepared papers suspending T.L.P. from school, and Officer Nevitt called Birmingham Fire and Rescue to provide medical assistance to T.L.P. Id. at 155. After the paramedics left, Officer Nevitt charged T.LP. with disorderly conduct, id. at 235, and transported her to the Family Court, instead of the hospital, where court staff strip searched her. Id.
7 Officer Nevitt testified that Coach Johnson was about 6’0” tall and weighed about 300 pounds, and that Coach Howard was about 6’3” tall and weighed about 230 pounds.
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at 156, 1/21/15 at 131, 235. T.L.P. was not formally charged with any criminal conduct in connection with this incident.
13. At trial, the court heard no testimony indicating that Officer Nevitt made any effort to decontaminate T.L.P. Specifically, the court heard no testimony indicating Officer Nevitt placed T.L.P. in front of a fan or arranged for her to access any airflow.8 Id. at 234. The court heard no evidence indicating Officer Nevitt provided T.L.P. with a change of clothes or gave her the opportunity to access clothing uncontaminated by Freeze +P. The court also heard no evidence indicating that Officer Nevitt provided T.L.P. with water to wash her face or arranged for her to go to the restroom to wash. Id. at 235.The day after the incident, T.L.P. saw her pediatrician because she continued to cough as a result of the exposure to Freeze +P. 1/21/15 at 187.
14. At trial, T.L.P.’s version of these events differed somewhat from Officer Nevitt’s. Most critically, she denied holding onto E.H.’s hair, 1/21/15 at 139, and testified that she and E.H. had stopped struggling with the coaches when Officer Nevitt sprayed her and Coach Johnson, id. at 141. Unfortunately for T.L.P., she undermined her own credibility by attempting to minimize the seriousness of and her culpability in the fight with E.H. Compare id. at 139 (testifying on direct that she
8 Officer Nevitt did note during cross examination that the air conditioning was on in the assistant principal’s office and that there “was plenty of air.”2/2/15 at 234.
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could not remember whether E.H. fell during the fight), with id. at 163 (admitting on cross-examination that E.H. was on the ground by the end of the fight). There is nothing in the record that undermines Officer Nevitt’s testimony, and based on his demeanor at trial, the court chooses to credit his version of events to the extent they are inconsistent with T.L.P.’s.
C. B.D.
15. On February 22, 2011, B.D.,9 a seventeen-year-old student enrolled in Woodlawn High School, became argumentative with a teacher. Id. at 12. The teacher told B.D. to leave the classroom, and B.D. refused, fearing that she would get in trouble if a teacher or administrator found her in the hallway after the bell rang. Id. The teacher used the classroom’s telephone to call Woodlawn’s principal, Shirley Burrell,10 and summon her to the classroom. Id. When Burrell arrived, she asked B.D. to step into the hallway and, once there, told B.D. to accompany her to her office. Id. at 13. The two began arguing, and Burrell used her walkie-talkie to call for assistance. 2/4/15 at 91.
9 At the time of the incident at issue, B.D. was approximately 5’4” tall and weighed approximately 106 pounds. Pl. Ex. 14 at 7. Officer Henderson was approximately 6’4” tall and weighed approximately 210 pounds.
10 At trial and in the parties evidentiary submissions, Burrell was referred to alternatively as Shirley Burrell and as Shirley Graham, her married name. 1/21/15 at 34.
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16. Officer Douglas Henderson and Assistant Principal John Lyons responded to Burrell’s request for assistance. 2/4/15 at 88, 95. They found B.D. very agitated and cursing loudly at Burrell. 2/2/15 at 23; 2/4/15 at 92–93. All four began walking to Burrell’s office, with Burrell walking ahead of the group. Id. at 94–95. B.D. continued to curse loudly, and other students began stepping into the hallway looking for the source of the commotion. Id. at 95. Officer Henderson grabbed B.D. by the arm and told her to calm down. 2/2/15 at 64–65. B.D. ignored Officer Henderson and lunged toward Burrell. Id. at 65; 2/4/15 at 95. At that point, fearing for Burrell’s safety, Officer Henderson sprayed B.D. with Freeze +P. 2/2/15 at 27, 65. Officer Henderson’s testimony—which B.D. disputed—was corroborated by Assistant Principal Lyons. Therefore, the court finds Officer Henderson’s version of the incident more credible than B.D.’s.
17. After spraying B.D. with Freeze +P, Officer Henderson took her outside so that she could get some air and called Birmingham Fire Rescue. Id. at 30–32. When paramedics arrived, B.D. told them that her face felt like it was on fire and she could not breathe. 1/21/15 at 20. They told her it was normal to feel that way and that she should keep wiping her eyes with gauze. Id.
18. After the paramedics left, Officer Henderson handcuffed B.D., 2/2/15 at 85, charged B.D. with disorderly conduct, Pl. Ex. 14 at 7, and drove B.D. to Family
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Court, 1/21/15 at 22. During the drive, the windows in Officer Henderson’s squad car were up and the air conditioning was off. Id. at 23. The Family Court refused to accept B.D. in light of her distress and her lack of medical treatment.11 Id. at 22–23. Officer Henderson transported B.D. to Cooper Green Hospital, where, although she wanted medical attention, B.D. signed a form refusing treatment, purportedly because she did not understand the document. Id. at 23. After leaving Cooper Green, Officer Henderson transported B.D. back to Family Court, where court officers strip-searched her. Id. at 24. B.D. remained there for a few hours until her mother picked her up. Id. at 25.
19. B.D.’s eyes remained swollen for three or four days, and the spray caused welts on her face that lasted for a week and a half. Id.
20. At trial, the court heard testimony indicating that Officer Henderson undertook only minimal measures to decontaminate B.D. Although Officer Henderson took B.D. outside to provide her with access to fresh air, 2/2/15 at 30, the court heard no testimony indicating that he provided her with water to wash her face or arranged for her to go to the restroom to wash. The court also heard no testimony indicating that Officer Henderson provided B.D. with a change of clothes or gave her the opportunity to access clothing uncontaminated by Freeze +P.
11 Officer Henderson testified that he could not recall whether he took B.D. to Family Court before taking her to Cooper Green Hospital. 2/2/15 at 69–72.
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D. K.B.
21. During a class change on the afternoon of February 21, 2011, K.B.,12 a fifteen-year-old female student enrolled in Woodlawn High School, and a boy named L.M. became engaged in a verbal altercation. 1/20/15 at 96. The dispute apparently stemmed from K.B.’s family’s decision to ask L.M., who had previously lived with them, to move out after K.B. caught him stealing from her family. Id at 98. During the incident at Woodlawn, L.M. cursed at K.B., called her derogatory names, and insulted K.B.’s family members. Id. at 98. K.B. cursed back and walked away to avoid further confrontation. Id. at 99–100. However, L.M. followed her and continued to insult her. Id. at 100. L.M.’s friends and other students changing classes began to laugh at K.B. and she became upset and began to cry. Id.
22. K.B. continued to walk away, and L.M. followed, continuing to call her names. Id. at 102. K.B. continued to cry and cursed loudly at L.M. Id. At this point, L.M. went inside the girl’s gymnasium. Id. Without explanation, Officer Silburn Smith13 approached K.B., grasped her arm, handcuffed her, and told her to calm
12 K.B. was approximately 5’4” tall and weighed approximately 130 pounds. Pl. Ex. 14 at 10. She was also five months pregnant. 1/20/15 at 107. Officer Smith was approximately 6’ tall and weighed approximately 200 pounds. Pl. Ex. 14 at 10.
13 Ordinarily, Officer Smith was assigned to Jackson-Olin High School, but on this day he filled in at Woodlawn.
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down. Id. K.B. insisted that she was calm, id., even though, by her own account, she was still upset and continued to cry hysterically, id. at 103.
23. K.B. did not struggle with Officer Smith, try to pull away from Officer Smith, or call him any names. Id. at 104. When Officer Smith asked K.B. about the dispute with L.M., K.B. started to tell him, and added that she did not understand why she was the only person in handcuffs. Id. Officer Smith told her to calm down twice more, and when she failed to do so, with no warning,14 he sprayed her with Freeze +P. Id. The spray made K.B.’s eyes burn and her face felt like someone had cut it and poured hot sauce on it. Id. at 105.
24. While K.B. waited for the paramedics to arrive, she vomited. Id. at 106. Birmingham Fire and Rescue responded and talked to K.B., but did not provide any treatment. Id. Instead, they asked her a few questions and told her to keep her eyes open and not to put water on her face. Id. At the time of this incident, K.B. was five months pregnant. Id. at 124.
25. After Birmingham Fire and Rescue left, Officer Smith drove K.B. to Cooper Green Hospital. Id. at 108. The car windows were up. Id. At the hospital, K.B. signed a form declining treatment because Officer Smith told her there was nothing
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the medical personnel could do to help her and that they would sit at the hospital all day if K.B. requested treatment. Id. at 109–10.
26. After leaving Cooper Green, Officer Smith transported K.B. to the Family Court, where the staff strip searched her. Id. at 111. K.B. was not formally charged with any criminal conduct in connection with this incident.
27. At trial, the court heard no testimony indicating that Officer Smith made any effort to decontaminate K.B. Specifically, the court heard no testimony indicating that Officer Smith placed K.B. in front of a fan or arranged for her to access any airflow. Officer Smith did not provide K.B. with a change of clothes or give her the opportunity to access clothing uncontaminated by Freeze +P. Id. at 109. The court also heard no testimony indicating that Officer Smith provided K.B. with water to wash her face or arrange for her to go to the restroom to wash.
28. Officer Smith’s testimony differed from the preceding account in several ways. Most significantly, Officer Smith testified that K.B. made several attempts to move aggressively toward L.M. and repeatedly and loudly stated, “I’ll fight a boy.” 2/3/15 at 47. Officer Smith also testified that a large crowd had gathered around L.M. and K.B., and his concern about additional fights developing influenced his decision to spray K.B. with Freeze +P. Id. at 56. Finally, Officer Smith testified that he did not handcuff K.B. until after he sprayed her with Freeze +P. Id. at 49.
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29. Based on K.B. and Officer Smith’s demeanor on the stand, the court finds K.B.’s testimony to be more credible. Unlike some of the plaintiffs, K.B. did not try to minimize the disturbance her yelling and crying created. She also testified with great detail about her and L.M.’s movements around the campus prior to her encounter with Officer Smith, an aspect absent from Officer Smith’s own testimony. In contrast, Officer Smith was evasive and combative on cross examination. And, importantly, a number of significant contradictions emerged in his testimony. On direct examination, Officer Smith testified that he sprayed K.B., in part, because a crowd of students was nearby, and he was worried that additional fights would begin. Id. at 56. But on cross examination, he stated that he could not remember if the crowd was yelling and admitted many of the students in it were trying to dissuade K.B. from fighting with L.M. Id. at 63–64. His position regarding the crowd was further undermined by the revelation that he testified at his deposition that the students in it were not, in fact, yelling, and, most significantly, that the crowd had dispersed by the time he sprayed K.B. with Freeze +P. Id. at 64–65. Additionally, he testified that he was not afraid of K.B., id. at 67, that K.B. did not hit him or anyone else, id., and that he could not remember whether L.M. seemed frightened of K.B., although as to this later point, plaintiffs’ counsel subsequently revealed that at his deposition, Officer Smith testified that L.M. did not seem frightened by K.B, id. at 61, 63. In short,
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Officer Smith undermined his own credibility. Consequently, to the extent they are at odds, the court chooses to credit K.B.’s testimony over that of Officer Smith.
E. B.J.15
30. On September 27, 2010, B.J.,16 a 16-year-old student enrolled in JacksonOlin High School, was in English class when the substitute teacher, Mr. Cook, summoned Assistant Principal Gadson to the classroom for assistance with verbal epithets directed at him. 1/23/15 at 5. When Gadson arrived, Cook identified B.J. as the offending student,17 and Gadson pulled B.J. into the hallway. Id. at 6. Once there, with no warning, he began searching B.J.’s pockets. Id. Gadson pulled out a cell phone belonging to a friend of B.J., and B.J., fearful that Gadson would confiscate the cell phone, began to resist the search by pulling away from Gadson, pushing at Gadson’s hands, and trying to retrieve the cell phone. Id. at 7–8.
31. At some point, Gadson called Assistant Principal Gates over the school radio and requested his assistance. 2/3/15 at 146. Officer Marion Benson was in Gates’ office, and she accompanied him to meet Gadson. Id. When they arrived, Gates began to help Gadson search B.J. Id. at 148. The precise sequence of events
15 The defendants second motion to depose B.J., doc. 241, is DENIED AS MOOT. 16 B.J. was approximately 5’6” tall and weighed approximately 140 pounds. Pl. Ex. 14 at 16. Officer Benson was approximately 5’6” tall and weighed approximately 200 pounds. Id. 17 B.J. denied cursing at Mr. Cook. 1/23/15 at 6.
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that ensued was not clear from either B.J. or Officer Benson’s testimony, but they culminated in the two men holding B.J. against a locker. 1/23/15 at 26–27. Although B.J. had stopped resisting at this point, id., he heard a woman’s voice say “Stay still, don’t move.” Id. at 9. Then, Officer Benson sprayed him in the face with Freeze +P, threw him to the ground, where he hit his head, kneeled on his back, and handcuffed him. Id. at 10–11.
32. Officer Benson picked B.J. by the handcuffs and took him to Gates’ office. 2/3/15 at 149, 160. The Freeze +P made B.J. feel like his skin was steaming. 1/23/15 at 10. In the office, B.J. vomited, id. at 11, and Gates gave him a paper towel so that he could blow his nose, 2/3/15 at 149. Officer Benson charged B.J. with harassment. Pl. Ex 14 at 16. She then drove him to Cooper Green Hospital. 1/23/15 at 12. The windows in Officer Benson’s car were rolled up. Id. at 13. At Cooper Green, B.J. signed a form declining treatment, although he purportedly did not understand what it meant. Id. at 12. Officer Benson then took B.J. to Family Court, id. at 13, where B.J. stayed until his father picked him up, id. at 16. He continued to cough until he fell asleep that night. Id. at 18. B.J. was not formally charged with any criminal conduct in connection with this incident.
33. Officer Benson failed to engage in any efforts to decontaminate B.J. after she sprayed him with Freeze +P. Specifically, she failed to place B.J. in front of a fan
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or arrange for his access to any airflow.18 2/3/15 at 162. She failed to provide B.J. with a change of clothes or give him the opportunity to access clothing uncontaminated by Freeze +P. Id. at 163. She also did not provide him with water to wash his face or arrange for him to wash. Id. at 162.
34. B.J. and Officer Benson’s versions of these events are largely consistent, although by Officer Benson’s account, B.J.’s resistance to Principals Gadson and Gates’ search was somewhat more aggressive than the behavior B.J. described in his testimony. More specifically, Officer Benson testified that B.J. was hitting Gadson’s hand while resisting the search, rather than pushing it away. Id. at 152. To the extent that B.J. and Officer Benson’s testimony is inconsistent, the court chooses to credit B.J.’s account of events, because Officer Benson’s credibility, both in terms of truthfulness and in terms of the accuracy of her memory, was called into question significantly at trial due to the numerous discrepancies between her trial testimony and her deposition testimony. See id. at 156, 163–64, 167–68, 169, 170, 181, and 189.
F. T.A.P.
35. On August 29, 2009, a teacher brought T.A.P.,19 a seventeen-year-old student enrolled in Carver High School, to Assistant Principal Anthony Moss, who
18 Officer Benson did note that Mr. Gates’ Office was air conditioned. 2/3/15 at 162. 19 T.A.P. was approximately 5’4” tall and weighed approximately 145 pounds. Pl. Ex. 14 at 13. Officer Tarrant was approximately 5’11” tall and weighed approximately 165 pounds. Id.
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was standing in the atrium near Carver High School’s front entrance, and reported T.A.P. for smoking in the bathroom. 2/4/15 at 130. Moss asked T.A.P. to give him her mother’s telephone number, and T.A.P. began cursing at Moss. Id. at 132. Officer Ricky Tarrant entered the atrium, and as he told T.A.P. that she needed to calm down, T.A.P. swung her book bag at Officer Tarrant, hitting him with it, and ran out the front door.20 Id.
36. Officer Tarrant chased after T.A.P., tackled her, and the two fell into a shrubbery. Id. at 28. Even though she was lying face down on the ground with Officer Tarrant on top of her, id. at 46, T.A.P. resisted Officer Tarrant’s attempts to handcuff her, id. at 28. Consequently, Officer Tarrant sprayed T.A.P. in the face with Freeze +P. Id.
37. Officer Tarrant then handcuffed T.A.P. and took her to the school’s distance learning center. Id. at 33. He called Birmingham Fire Rescue, and when the paramedics arrived, they briefly asked T.A.P. questions and then left. Id. One of Carver’s special education teachers washed T.A.P.’s face. 1/22/15 at 174. An hour and a half later, Officer Tarrant drove T.A.P. to Cooper Green Hospital. Id. at 175. Officer Tarrant rolled his car windows down to expose T.A.P. to a breeze. Id. at 189. At Cooper Green, T.A.P. declined treatment because someone told her previously it
20 T.A.P.’s account differed, but the court finds that Officer Tarrant’s version, which Moss corroborated, is more credible.
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would not help and some of her discomfort had been alleviated when the teacher washed her face. Id. at 175, 190. After leaving Cooper Green, Officer Tarrant drove T.A.P. to Family Court, where T.A.P. stayed until her mother picked her up. Id. at 175. The Freeze +P caused T.A.P.’s face to hurt for a couple of days. Id. at 177. T.A.P. was not formally charged with any criminal conduct in connection with this incident.
38. At trial, the court heard testimony indicating that Officer Tarrant undertook only minimal measures to decontaminate T.A.P. Although Officer Tarrant rolled down his car windows while driving T.A.P. to Cooper Green and Family Court, the court heard no testimony indicating he placed T.A.P. in front of a fan or arranged for her to access any airflow during the hour and a half she sat in the distance learning center after he sprayed her with Freeze +P.21 Officer Tarrant did not provide T.A.P. with a change of clothes or give her the opportunity to access clothing uncontaminated by Freeze +P. 2/4/15 at 53. He also did not provide her with water to wash her face or arrange for her to go to the restroom to wash.22 Id. at 54.
G. J.W.
21 Officer Tarrant noted that the distance learning center was air conditioned. 2/4/15 at 53. 22 Officer Tarrant noted that he did not prevent the special education teacher from washing T.A.P.’s face. 2/4/15 at 56.
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39. In April 2010,23 J.W., a tenth-grade student enrolled in Woodlawn High School, was on his way to English class when a fight involving three or four students broke out in the hallway. 1/21/15 at 89–90. J.W. and many other students formed a crowd around the fight to observe the events. Id. at 90. Two S.R.O.s responded, and one sprayed the students who were fighting with Freeze +P while the other S.R.O. sprayed the crowd. Id. at 91.
40. The mist from the Freeze +P landed on J.W.’s face, and felt like “burning wind.” Id. at 92. It made his eyes and nose burn and made him cough. Id. He went to the bathroom, put water on his hands and rubbed his face, which did not help. Id. J.W. then went to class, but coughed for the rest of the day. Id. at 93.
II. Findings of Fact Related to the Plaintiffs’ Municipal Liability Claims
A. The B.P.D. S.R.O. Program
1. B.P.D. officers who are stationed in Birmingham City Schools are referred to as School Resource Officers or S.R.O.s. S.R.O.s are a part of the Youth Services Unit which is a part of the Community Services Division of the B.P.D. 1/23/15 at 77.
2. Birmingham City Schools has eight high schools, which collectively serve approximately seven to eight thousand students. 1/29/15 at 211. There are sixteen

23 The exact date is not clear.

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S.R.O.s stationed in the high schools. 2/3/15 at 174. Huffman High School, Wenonah High School, Jackson-Olin High School and Kennedy Alternative School each has one full-time and two part-time S.R.O.s. Woodlawn High School, Carver High School, and Parker High School each has one full-time and one part-time S.R.O. Ramsay High School has one part-time S.R.O.
B. B.P.D. Rules and Regulations on the Use of Force and Chemical Spray
3. B.P.D. has rules and regulations governing officer conduct. Each officer is trained on the rules and regulations at the police academy and receives periodic retraining in various forms. See e.g., 2/2/15 at 35, 161.
4. At the time the incidents giving rise to this matter occurred, B.P.D. Use of Force Policy, Procedure No. 113-3, Revision 924 (“Revision 9”) governed the use of force.25 It provides that B.P.D. officers may use physical control methods under four circumstances: “to stop potentially dangerous and unlawful behavior; to protect the officer or another from injury or death; to protect subjects from injuring themselves;
24 In post-trial briefing, the defendants attempt to exclude Procedure No. 113-3 from the court’s analysis. Doc. 279 at 3 n. 3. However, the defendants failed to object to the admission of either Procedure 113-3 Revision 9 or 10 at trial. 2/3/15 at 125, 130.
25 Revision 9 became effective on December 10, 2009. Pl. Ex. 1 at 5647. Consequently, it was not in effect when S.R.O.s sprayed T.A.P., T.L.P., and G.S. with Freeze +P. The parties did not present any evidence regarding the use of force police in effect prior to the implementation of Revision 9. At any rate, this omission is immaterial in light of the court’s findings that T.A.P., T.L.P., and G.S.’s excessive force claims fail on the merits.
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and in the process of effecting lawful arrest or detention when the subject offers resistance.” Pl. Ex. 1 at 1.
5. Revision 9 provides that an “officer’s actions to resistance will be based upon his perception of the level of resistance.” Id. at 3. The following table displays the B.P.D.’s classification of resistance and control:

Level:

I

II

III

IV

V

VI

Levels of Psychological Verbal Non- Passive Resistance: Intimidation Compliance Resistance

Defensive Active

Lethal Force

Resistance Aggression Assaults

Examples of Resistance

Blank stares, clenching of fists, tightening of jaws

Any verbal response of unwillingness to obey

Dead weight

Pulling away, pushing away

Challenging, punching, kicking, grabbing

Dangerous instruments, firearms, knives; any force which the officer believes could cause serious bodily injury or death

Levels of Officer Control: presence

Verbal Direction

Soft Empty Hand Control

Hard Empty Hand Control

Intermediate Lethal Force Weapon

Examples Badge, of Control uniform

Officer’s commands, advice persuasion

Handcuffing, pressure points, wrist locks

Kicks, punches, strikes, CS/OC spray, TASER

Impact weapons, less than lethal munitions, K-9

Firearm, baton strikes to the head, neck, and throat areas

Id. at 6.

6. Revision 9 does not limit officers to responding to a given level of resistance with an equivalent level of control. Specifically, Chief Roper testified that officers

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are permitted to respond with a level of control one to two levels higher than the level of resistance displayed by an individual.26 1/23/15 at 150. Similarly, several of the defendant S.R.O.s testified that their training included instruction that they were allowed to use control one to two levels higher than a subject’s level of resistance.27 2/2/15 at 166; 2/3/15 at 54. With regard to the resistance and force at issue in this case, Chief Roper specifically testified that chemical spray can be an appropriate control level in response to verbal noncompliance. 1/23/15 at 128.
7. Revision 9 requires an officer to notify his supervisor after using chemical spray. Pl. Ex. 1 at 14. It also requires the officer to prepare a Use of Force Information and Statement Report. Id. The officer’s sergeant, lieutenant, captain, the deputy chief and ultimately Chief Roper must review and approve the report. Id. at 15; see also 1/23/15 at 86 (Chief Roper’s testimony that he is ultimately responsible for reviewing and approving every incident report involving the use of chemical spray). Each Use of Force Information and Statement also is reviewed independently by the B.P.D.’s Internal Affairs Division. Id.
8. The Use of Force Rules and Regulations, Procedure No. 113-3, Revision 10 (“Revision 10”), an updated version of Revision 9, became effective on March 27,
26 The plaintiff’s expert, Dr. Aaron Kupckik, testified that permitting this upward deviation was standard law enforcement practice. 1/22/15 at 141.
27 By point of contrast, Officer Henderson denied he received training instructing him that he could deviate upward by one to two levels. 2/2/15 at 49.
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2012. Pl. Ex. 2 at 1. Unlike Revision 9, Revision 10 requires that officers evaluate a number of specific factors when determining the appropriate level of control required for a situation. Id. at 11. For example, Revision 10 requires that an officer evaluate the seriousness of the crime committed by the subject, the subject’s size, age and weight, the apparent physical ability of the subject, the number of subjects present, the weapons possessed or available to the subject, whether the subject has a known history of violence, whether innocents or potential victims are present in the area, and whether evidence is likely to be destroyed. Id. Revision 10 also requires that officers consider their own size, physical ability and defensive tactics expertise, the number of officers present or available, the weapons or restraint devices available to the officer, legal requirements, agency policy, and the environment. Id. However, several of the defendant S.R.O.s testified that they failed to consider some of these factors when determining what level of force to employ in a given situation, even after Revision 10 went into effect. 2/2/15 at 54 (Officer Henderson’s testimony that he failed to consider the size and age of an individual when deciding whether to use Freeze +P); 2/3/15 at 186 (Officer Benson’s testimony that she failed to consider the size and age of an individual when deciding whether to use Freeze +P). Others were unaware of the difference between Revision 9 and Revision 10. 2/4/15 at 73 (Officer Tarrant’s testimony that the two policies were basically the same).
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9. B.P.D. Chemical Spray Subject Restraint: Non-Deadly Use of Force Rules and Regulations, Procedure No. 113-5 Revision 528 (the “Chemical Policy”) specifically governs B.P.D. officers’ use of chemical spray. Consistent with Revision 9, the Chemical Policy classifies chemical spray as a Level IV Control “Use of Force.” Pl. Ex. 3 at 2. According to the Chemical Policy, “chemical spray may be used in an arrest situation where the weapon’s use offers the possibility of lessening the likelihood of physical injury to the arresting officer, citizens on the scene and/or the suspect.” Id.
10. Like Revision 9, the Chemical Policy, requires an officer to notify the onduty supervisor when the officer uses a chemical restraint to control a subject. Id. at 4. Similarly, the chemical policy, requires an officer to complete a Use of Force Information and Statement Report any time he or she uses a chemical restraint to control a subject. Id.
D. B.P.D. Training on Chemical Spray Use29
11. All B.P.D. recruits complete the twenty-one week B.P.D. Police Academy. 1/23/15 at 53. Next, new B.P.D. officers complete 16 weeks of field training, which consists of accompanying a senior patrol officer. Id. at 81. All B.P.D. officers,
28 Procedure No. 113-5, Revision 5, went into effect on February 10, 2006. 29 This section relies on “facts” the parties submitted in a joint pretrial submission.
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including S.R.O.s, attend required semiannual in-service training. Id. at 63. As part of these semi-annual sessions, officers receive update and refresher courses on the use of force, including the use of chemical spray. Id. B.P.D. officers also receive additional training at weekly roll call meetings with their units. 2/9/15 at 11–12.
12. Training for cadets at the Police Academy includes describing the chemical components of Freeze +P, reviewing the Chemical Policy, spraying the cadets with Freeze +P in an outdoor environment, and answering cadet questions. 1/23/15 at 51–52. Cadets are instructed to wash their faces with warm, soapy water 30 minutes to an hour after exposure. Doc. 229-5 at 53–54.
13. Although cadets are personally instructed to use warm soapy water for their own exposure, cadets are trained that the appropriate methods for decontaminating an individual sprayed with Freeze + P are time, air, and calling Birmingham Fire Rescue Services. 2/2/15 at 12; id. at 262; 2/3/15 at 30; id. at 225; 2/4/15 at 70.
F. The Effects of Chemical Spray 14. S.R.O.s, like other uniformed B.P.D. officers, are required to carry duty belts that contain canisters of chemical spray. 1/23/15 at 49. B.P.D. officers carry a chemical spray marketed as Freeze +P, id. which is made by Aerko International. Pl.
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Ex. 9. Between 2006 and 2014, S.R.O.s sprayed 19930 Birmingham City School students with Freeze +P in 110 incidents. Pl. Exs. 14, 15. With one exception, none of these incidents involved any students who had weapons in their possession.
15. Incapacitating agents, such as Freeze +P, are designed to temporarily incapacitate an individual by causing pain and intense tissue irritation. 1/28/15 at 177. Freeze +P consists of one percent Oleoresin Capsicum (“OC”) and one percent Orthochlorobenzalmalonitrile (“CS”) in a nonflammable solvent. Id. at 37. The expected effects of Freeze +P are burning of the eyes, skin, mouth, and airway, tearing, reflexive closing of the eyes, coughing, gagging, and difficulty breathing. 1/21/15 at 188. In the words of the defendants’ expert Dr. David Tanen, it works by causing “severe pain.” 1/28/15 at 25.
16. The plaintiffs’ experiences were consistent with this description. G.S. testified that her face burned badly and she had trouble breathing. 1/20/15 at 144. P.S. testified that exposure to Freeze +P felt like “needles stabbing [her] face.” 1/21/15 at 52. T.L.P. testified that her mouth burned and itched and that the spray made her cough. Id. at 142. B.D. testified that she felt like her face was on fire and that she had trouble breathing. Id. at 20. K.B. testified that her eyes burned and that her face felt like someone had cut it and poured hot sauce on it. 1/20/15 at 105. B.J. testified that
30 The plaintiffs derive this number from the 110 arrest reports at issue. The defendants do not challenge the 195.
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his skin felt like it was steaming, and that he coughed and vomited. 1/23/15 at 10, 11, and 18. Finally, J.W. testified that his eyes and nose burned and that the spray made him cough. 1/21/15 at 92.
17. Testimony at trial varied somewhat as to the duration of the effects of Freeze +P. The defendants’ position, generally, was that they persist for less than an hour. B.P.D.’s Chemical Policy states that “[t]he effects of chemical spray will begin to lessen in 10–15 minutes with all effects disappearing in approximately 45 minutes with no treatment being administered.” Pl. Ex. 3 at 3. B.P.D. training materials state that “[e]ffects are temporary,” that after treatment with “[c]ool air or water,” “eyes can open in 10–20 minutes,” that “[r]espiratory effects [] dimishing in 10–30 minutes,” and that “[e]ffects on skin [] may take 45–60 minutes” and may last “up to hours” for “some sensitive subjects.” Pl. Ex. 12 at 000068. Dr. Tanen, one of the defendants’ experts, testified that “severe pain” lasts for less than a minute, 1/28/15 at 25, and that an individual might cough for half an hour and experience eye irritation for about an hour after exposure to Freeze +P, id. at 31.
18. The plaintiffs’ testimony placed more emphasis on the extreme pain they experienced immediately after exposure, but some of them testified about lingering discomfort. B.J. coughed for the rest of the day after Officer Benson sprayed him, T.L.P. sought medical attention the day after Officer Nevitt sprayed her because she
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continued to cough, T.A.P.’s skin hurt for a few days after Officer Tarrant sprayed her, and B.D.’s eyes were swollen for three or four days after Officer Henderson sprayed her.
19. The plaintiffs presented a great deal of evidence in an attempt to establish that exposure to Freeze +P may potentially lead to serious and/or long-term medical ramifications. In particular, the plaintiffs’ expert, Dr. Michael Cohen testified that exposure to chemical spray could lead to corneal abrasions and ulcers, changes in skin color related to inflammation that could last for months or years, potentially fatal spasms of the larynx, chemical pneumonia, potentially fatal exacerbation of bronchitis, exacerbations of asthma, and loss of protective reflexes. 1/21/15 at 189–203. However, Dr. Cohen, who testified that he had no experience treating patients for chemical spray exposure, based this testimony on single, isolated incidents. In contrast, Dr. Tanen, the defendants’ expert and the only medical expert who testified at trial with experience treating patients sprayed with Freeze +P, see 1/28/15 at 9, testified that during his twenty years of experience as a physician in the Navy, he never encountered or heard of any patients who had suffered severe complications from exposure to chemical spray, id. at 27. He noted that he encountered one officer who suffered a corneal ulcer after being sprayed in training, whom he successfully treated, id. at 27–28, and that corneal ulcers are generally treatable with antibiotic drops, id. at 30. He also noted that he encountered a few
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patients who suffered from corneal abrasions after being sprayed, that corneal abrasions are “a known side effect of being sprayed,” id. at 69, but that “ninety-eight to ninety-nine percent of corneal abrasions heal spontaneously,” id. at 73, and that they can also be caused by rubbing one’s eyes, id. at 30. The court finds Dr. Tannen’s testimony regarding the relatively safety of chemical spray, based on his own experience, more convincing than Dr. Cohen’s testimony based on hypotheticals and isolated incidents. More to the point, none of the plaintiffs contend that they suffered from serious or long-term medical ramifications because of exposure to Freeze +P. The plaintiffs seemed to be moving in that direction when B.D. testified that doctors diagnosed her with pulmonary tachycardia as an infant, 1/21/15 at 35, but none of her testimony suggested exposure to Freeze +P exacerbated her underlying condition. In light of Dr. Cohen and Dr. Tanen’s testimony, but primarily because the matter is simply not at issue in this lawsuit, the court declines to issue findings regarding the risks of serious or long term medical consequences posed by exposure to Freeze +P.
20. Similarly, the plaintiffs presented evidence and elicited testimony seemingly for the purpose of establishing that teenagers who take prescription psychotropic medication are at risk of increased harm if exposed to Freeze +P. The plaintiffs’ expert, Dr. Daphne Glindmeyer, testified that the use of Freeze +P on an individual taking psychotropic medication could cause cardiovascular side effects. 1/26/15 at 12. Specifically, Dr. Glindmeyer testified that exposure to Freeze +P could
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cause such an individual to experience “[i]ncreased blood pressure, increased heart rate, [and/or] cardiac arrhythmia, which could lead to death.” Id. at 36. However, Dr. Glindmeyer admitted that she knew of no such fatal incidents, id., and, indeed, failed to give any examples regarding actual individuals who suffered an adverse reaction as a result of exposure to Freeze +P while taking psychotropic medication. More to the point, while two of the plaintiffs, B.D. and T.A.P.,31 testified that they were taking medication for psychiatric disorders at the time Officers Henderson and Tarrant sprayed them with Freeze +P, 1/21/15 at 21, 1/22/15 at 188, neither testified that she experienced any cardiac symptoms in association with the events. Consequently, sufficiency of Dr. Glindmeyer’s testimony aside, because the matter is not at issue in this case, the court declines to make findings regarding the interaction between Freeze +P and psychotropic medication.
21. Turning to the final issue in this vein, Dr. Glindmeyer testified that all of the plaintiffs experienced some “peritraumatic symptomatology” as a result of their exposure to Freeze +P.32 1/26/15 at 11–12. However, even had the plaintiffs testified that they experienced lasting, significant psychological damage, which they did not,
31 B.D. testified that she was taking Adderall and Vyvanse at the time Officer Henderson sprayed her. 1/21/15 at 21. T.A.P. testified that she was taking medication for depression, bipolar disorder, and impulse control disorder when Officer Tarrant sprayed her, but did not specify the particular medication. 1/22/15 at 188.
32 Dr. Glindmeyer testified that none of the plaintiffs suffered from post-traumatic stress disorder as a result of their exposure to Freeze +P. 1/26/15 at 12.
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Dr. Glindmeyer repeatedly testified that trauma is “additive.” Id. at 20, 23, 30, and 35. Over the course of the trial, the court heard testimony revealing that exposure to Freeze +P was not the only potentially traumatic event experienced by the plaintiffs. For example, T.A.P. had a history of sexual abuse and mental illness predating her exposure to Freeze +P. 2/22/15 at 164. T.L.P.’s boyfriend died after being tazed by police officers. 2/26/15 at 58. K.B. became pregnant at fifteen. Id. at 44. B.D. had a history of mental illness, 1/21/15 at 21, and was subsequently arrested on charges of grand theft auto, robbery, and assault,33 id. at 32. B.J. is currently incarcerated. 1/23/15 at 2. In sum, because, as Dr. Glindmeyer testified, trauma is “additive,”34 and because it is impossible to say how much of any “peritraumatic symptomatology” exhibited by the plaintiffs was due to exposure to Freeze +P as opposed to other painful experiences, the court cannot reach any conclusions regarding the effect of exposure to Freeze +P on the plaintiffs’ psychological state.
G. Decontamination Procedures
22. The parties are at odds regarding effective decontamination procedures. Because the constitutional adequacy of such procedures is a legal, rather than factual,
33 B.D. pleaded guilty and received youthful offender status and probation. 34 The court did not hear testimony about any additional troubling events befalling G.S. But, at any rate, she did not testify that she experienced long-term psychological damage, and, ultimately, her individual claim fails on the merits.
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determination, the court will outline the parties’ respective positions on the matter
here, and address the constitutional question in its Conclusions of Law.
23. The parties are in agreement that the Material Safety Data Sheet for Freeze
+P describes Emergency and First Aid procedures for exposure to Freeze +P:
EYES: Flush eyes with large quantities of water to speed recovery. Face subject into wind or forced air source such as fans or air conditioning outlet. Wash face with mild soap
SKIN CONTACT: Remove contaminated clothing. Wash affected area with soap and water to avoid transfer to more sensitive areas. Burning sensation with skin contact in most areas. Use no creams or salves. Persons with preexisting skin disorders may be more susceptible to the effects of this agent.
INHALATION: Irritant, stimulation of facial nerves causes feeling of restricted airway. No danger exists for asphyxiation. Remove persons to fresh air.
INGESTION: Severe burning heartburn sensation may cause nausea. Seek medical attention if nausea persists. Pl. Ex. 9. Additionally, the plaintiffs note that Aerko training materials describe the
following as proper treatment of persons who have been exposed to chemical spray:
While there are no medical practitioners on the staff of Aerko International, the following regimen is suggested based on documents of the United States Chemical Warfare Service and our experience overseeing hundreds of exposures, both intentional during training or accidental as a result of production mishaps.
A wash may be prepared utilizing approximately 100 to 120 grams of sodium bisulfate in four gallons of cool water. Subjects experience some relief when splashing this solution on [a]ffected areas.
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When running water is available, a softly flowing stream from a hose should be applied to the face and eyes. Copious amount[s] of cool water will give some relief.
After initial treatment with water or wash, the subject should be moved to fresh air and faced into the wind. The time to recovery is directly proportionate to the speed of the air stream. Fans or air conditioning outlets provide an excellent source of relief. In the event running water or the [s]odium [b]isulfate solution is not available[,] excellent field treatment results may be obtained by placing the subject in the front section of a vehicle and directing the air conditioning vent into his face. Pl. Ex. 10 at 64. Based on this material, the plaintiffs’ position is that adequate
decontamination involves removing contaminated clothes, washing with copious
amounts of water, and exposure to moving air.
24. Turning to the defendants’ position, the Chemical Policy notes that “[t]he
effects of chemical spray will begin to lessen in 10–15 minutes, with no treatment
being administered,” but that “[f]ollowing the use of chemical spray the officer will
ensure that the subject receives adequate decontamination as soon as practical.” Pl.
Ex. 3 at 3. At trial, Chief Roper explained that:
[t]he policy requires officers to take adequate decontamination efforts. And so under decontamination, that can be water. That can be time. That can be air. Our policies also requires the officers to notify the Birmingham Fire and Rescue35. . . . [I]f you’re asking me does the policy specifically say large qualities of water, then the policy does not say that. 1/23/15 at 68.
35 It was undisputed at trial that Birmingham Fire Rescue Services personnel did nothing to decontaminate the plaintiffs. Moreover, the defendant S.R.O.s conceded that this was generally the case. See e.g., 2/3/15 at 97.
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25. Interestingly, the defendants’ expert, Dr. Tanen, who was exposed to chemical spray for training purposes on an annual basis during his twenty-year career in the Navy, had a different assessment of adequate decontamination. 1/28/15 at 14–15. He testified that if he were sprayed, his first choice method of decontamination would be to wash with copious amounts of water and soap, and if neither were available, he would want access to a fan. Id. at 98.
26. Dr. Tanen also testified that ideal decontamination after exposure to Freeze +P includes the passage of time, exposure to wind or a fan, and washing with copious amounts of water and soap. Id. at 34. He noted, though, that ideal decontamination is possible in a controlled environment, such as a police training scenario, where spraying is anticipated, the necessary materials are on hand, and decontamination can be accomplished without jeopardizing officer safety, and that such conditions are less likely in many situations when police deploy Freeze +P in the field. Id. Dr. Tanen acknowledged, however, that in terms of the practicality of ideal decontamination, a school environment where officers are permitted to deploy Freeze +P and consequently can anticipate its use has much in common with a police academy. Id. As a result, he believes that officers should provide students who are intentionally sprayed with chemical spray in schools with water to decontaminate as soon as the situation is safe. Id. at 122.
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27. The court heard testimony that there are multiple facilities in each high school where students could wash after being sprayed with Freeze +P including gym showers and science lab wash stations. 2/2/15 at 79, 263, 264; 2/4/15 at 118.
28. Turning to a different topic involving decontamination, the plaintiffs elicited testimony from Chief Daniel Coulombe that seemed to be for the purpose of pointing to a failure on the part of the defendants to decontaminate school facilities. 1/27/15 at 37–39; 200–01. However, although Chief Coulombe testified that chemical spray can contaminate the space in which it is deployed, id. at 37–39, the only concrete example he provided involved the lingering effects of chemical spray in an apartment with thick carpet a month after officers used the spray to diffuse a hostage situation, id. at 200–01. Because of the anecdotal nature of Chief Coulombe’s testimony, the dissimilarity of the situation he described to the facts in this case, and, most importantly, because not one witness at this trial contended that he or she suffered ill effects from residual Freeze +P in a school facility, the court declines to give this theory further attention.
Conclusions of Law
The plaintiffs raise individual claims pursuant to 42 U.S.C. § 1983 and Alabama tort law and a class claim for injunctive relief. See doc. 188. The court will address the plaintiffs’ individual claims before turning to their class claim.
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III. Conclusions of Law Related to the Plaintiffs’ Individual Claims
A. The Plaintiffs’ Constitutional Claims
The plaintiffs contend that the S.R.O.s violated their constitutional rights and that the S.R.O.s are consequently liable to them pursuant to 42 U.S.C. § 1983. Doc. 188 at 60–75. The court’s analysis, therefore, begins with § 1983, which provides that:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . . The plaintiffs’ claim alleges violations of their rights under the Fourth Amendment, which guarantees an individual’s “freedom from unreasonable searches and seizures.” Lee v. Ferraro, 284 F.3d 1188, 1197 (11th Cir. 2002). This guarantee “encompasses the plain right to be free from the use of excessive force in the course of an arrest.” Id. (citing Graham v. Connor, 490 U.S. 386, 395–95 (1989)).
The plaintiffs’ constitutional claims raise two distinct questions. The first is whether the defendant S.R.O.s violated their Fourth Amendment rights by spraying them with Freeze +P. As to some of the plaintiffs, the answer to this question is yes, as to some, the answer is no. The second question is whether the defendant S.R.O.s
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violated the plaintiffs’ Fourth Amendment rights by failing to properly decontaminate
them. The answer to that question is unequivocally yes.
1. The Initial Sprayings
The plaintiffs can only succeed in their claims against the defendant S.R.O.s
if the officers are not entitled to qualified immunity.36 “‘Qualified immunity offers
complete protection for government officials sued in their individual capacities as
long as their conduct violates no clearly established statutory or constitutional rights
of which a reasonable person would have known.’” Mercado v. City of Orlando, 407
F.3d 1152, 1156 (11th Cir. 2005) (quoting Ferraro, 284 F.3d at 1193–94). “Qualified
immunity allows government employees to carry out their discretionary duties
without fear of litigation, ‘protecting from suit all but the plainly incompetent or one
who is knowingly violating the federal law.’” Id. (quoting Ferraro, 284 F.3d at 1194).
36 The parties submitted briefs to assist the court in resolving this matter. See docs. 274, 275, and 279. The defendant S.R.O.s contend that because the plaintiffs failed to address qualified immunity in their brief, they abandoned any argument that the defendant S.R.O.s are not entitled to qualified immunity. Doc. 279 at 5 (citing Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004)). While it is clearly established that “a party seeking to raise a claim on appeal must plainly and prominently so indicate,” Access Now, 385 F.3d at 1330, and, similarly, that failing to raise an argument in response to a motion for summary judgment results in its abandonment, Fischer v. Fed. Bureau of Prisons, 349 F. App’x 372, 375 n. 2 (11th Cir. 2009) (citing Transamerica Leasing, Inc. v. Inst. of London Underwriters, 267 F.3d 1303, 1308 n. 1 (11th Cir. 2001)), the defendants have presented the court with no authority that dictates a similar result with regard to briefs filed in association with bench trials. Because the plaintiffs raised the issue in their pretrial submissions and because the court believes the correct question here is whether the evidence presented at trial establishes that the defendant S.R.O.s are entitled to qualified immunity, it rejects the defendant S.R.O.s argument that the plaintiffs abandoned the issue.
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“‘Qualified immunity balances two important interests—the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.’” Case v. Eslinger, 555 F.3d 1317, 1325 (11th Cir. 2009) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)).
For the defendant S.R.O.s to invoke qualified immunity, they “must first establish that [they were] acting within the scope of [their] discretionary authority.” Id. at 1325. This point is not in dispute. “The burden then shifts to the plaintiff[s] to overcome the defense of qualified immunity.” Id. (citing Bates v. Harvey, 518 F.3d 1233, 1239 (11th Cir. 2008)). Once the burden shifts, a plaintiff must show that (1) the defendants violated a constitutional right, and (2) this right was clearly established at the time of the alleged violation. Pearson v. Callahan, 555 U.S. at 236.
As explained above, the Fourth Amendment guarantees that citizens be “secure in their persons . . . against unreasonable . . . seizures.” Graham, 490 U.S. at 394. “At the core of the Fourth Amendment is the understanding that officers cannot unnecessarily harm suspects in the course of arresting or otherwise seizing them.” M.D. ex rel. Daniels v. Smith, 504 F. Supp. 2d 1238, 1251 (M.D. Ala. 2007) (citing Ferraro, 284 F.3d at 1200; Priester v. City of Riviera Beach, Fla., 208 F.3d 919, 926–27 (11th Cir. 2000); Smith v. Mattox, 127 F.3d 1416, 1419 (11th Cir. 1997)).
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Claims alleging that an officer used excessive force during the course of an arrest or other “seizure” are analyzed under an objective reasonableness standard. Graham, 490 U.S. at 388; see also Hadley v. Gutierrez, 526 F.3d 1324, 1329 (11th Cir. 2008). If “‘the nature and quality of the intrusion on the [plaintiffs’] Fourth Amendment interests’” outweigh “the countervailing government interests at stake,” the seizures violated the plaintiffs’ constitutional rights. Graham, 490 U.S. at 396 (quoting Tennessee v. Garner, 471 U.S. 1, 8 (1985).
In the Eleventh Circuit, courts determine whether the “nature and quality of the intrusion” on Fourth Amendment interests surpasses the government interests at stake by considering “1) the need for the application of force, 2) the relationship between the need and the amount of force used, and 3) the extent of the injury inflicted.” Vinyard v. Wilson, 311 F.3d 1340, 1347 (11th Cir. 2002) (citing Leslie v. Ingram, 786 F.2d 1533, 1536 (11th Cir. 1986)). To evaluate the need for the application of force, courts follow the factors laid out in Graham—“the severity of the crime, the danger to the officer, and the risk of flight.” Ferraro, 284 F.3d at 1198. The guiding principle in excessive force cases is that “‘gratuitous use of force when a criminal suspect is not resisting arrest constitutes excessive force.’” Brown v. City of Huntsville, 608 F.3d 724, 738 (11th Cir. 2010) (quoting Hadley, 526 F.3d at 1330).
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This circuit first considered whether an officer’s use of chemical spray during
the course of an arrest constituted excessive force in Vinyard v. Wilson, in which the
court concluded that a deputy sheriff inflicted excessive force when he sprayed the
plaintiff with pepper spray while the plaintiff was sitting, handcuffed, albeit
screaming and cursing loudly, in the back seat of his patrol car. 311 F.3d at 1348. In
evaluating the plaintiff’s claim, the court noted that the charges against her, disorderly
conduct and obstruction, “were of minor severity,” id. at 1347, she “was a nuisance[,]
but not a threat to [the deputy], herself or others,” id. at 1347–48, she neither resisted
the initial arrest nor attempted to flee, and “at the time of the force . . . [the plaintiff]
was under arrest and secured with handcuffs and in the back seat of the patrol car,”
id. at 1348.
In addition to its analysis of the specific facts before it, the Vinyard court noted
that in the context of an arrest,
[c]ourts have consistently concluded that using pepper spray is excessive force in cases where the crime is a minor infraction, the arrestee surrenders, is secured, and is not acting violently, and there is no threat to the officers or anyone else.37 Courts have consistently concluded that using pepper spray is reasonable, however, where the plaintiff was either resisting arrest or refusing police requests, such as requests to enter a patrol car or go to the hospital.38
37 Citing Headwaters Forest Def. v. Cnty. of Humboldt, 276 F.3d 1125, 1129–30 (9th Cir. 2002); Park v. Shiflett, 250 F.3d 843, 852–53 (4th Cir. 2001); LaLonde v. Cnty. of Riverside, 204 F.3d 947, 961 (9th Cir. 2000); Adams v. Metiva, 31 F.3d 375, 386 (6th Cir. 1994).
38 Citing Jackson v. City of Bremerton, 268 F.3d 646, 652–53 (9th Cir. 2001); Wagner v. Bay City, 227 F.3d 316, 324 (5th Cir. 2000); Monday v. Oullette, 118 F.3d 1099, 1104–05 (6th
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Id. (footnotes omitted). These principles have guided this circuit’s jurisprudence as it evaluates the constitutionality of officers’ use of chemical spray and similar weapons during the course of an arrest. To be clear, “this [circuit] has noted that the use of pepper spray is not excessive force in situations where the arrestee poses a threat to law enforcement officers or others, uses force against officers, physically resists arrest, or attempts to flee, . . . .” Brown, 608 F.3d at 739. However, in situations where the suspect faces only minor charges, does not pose a risk to anyone’s safety, and is not resisting arrest or attempting to flee, an officer’s use of chemical spray is generally excessive. See Hawkins v. Carmean, 562 F. App’x 740, 743 (11th Cir. 2014) (officer used excessive force when she sprayed motorist stopped on suspicion of a tag light violation who neither threatened anyone’s safety nor attempted to flee); Fils v. City of Aventura, 647 F.3d 1272, 1288–89 (11th Cir. 2011) (officer used excessive force when he shot a bystander to an arrest with a taser39 after the bystander remarked “‘they’re overreacting, these motherfuckers are overreacting’—‘they’ presumably meaning the police”; the charges the bystander
Cir. 1997); Ludwig v. Anderson, 54 F.3d 465, 471 (8th Cir. 1995); Fernandez v. City of Cooper City, 207 F. Supp. 2d 1371, 1380 (S.D. Fla. 2002); Gainor v. Douglas Cnty., 59 F. Supp. 2d 1259, 1287–88 (N.D. Ga. 1998); Griffin v. City of Clanton, 932 F. Supp. 1359, 1369 (M.D. Ala. 1996).
39 Although Fils involved a taser, not chemical spray, the court found “no meaningful distinction between the two under the [present] circumstances.” 647 F.3d at 1289 (comparing Draper v. Reynolds, 369 F.3d 1270, 1278 (11th Cir. 2004) (stating that, while a taser shock is “unpleasant,” it “did not inflict any serious injury” on the plaintiff) with Vinyard, 311 F.3d at 1348 (describing pepper spray as “generally of limited intrusiveness)).
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ultimately faced, disorderly conduct and resisting arrest without force, were not serious,40 the bystander did not pose a threat to anyone’s safety, and he did not resist arrest41 or attempt to escape); Brown, 608 F.3d at 739–40 (officer used excessive
force when he pepper sprayed the plaintiff who was suspected of playing music too
loudly and slammed her to the pavement when plaintiff posed no threat and was
attempting to exit her vehicle so the officer could arrest her); Howell v. Sheriff of
Palm Beach Cnty., 349 F. App’x 399, 405 (11th Cir. 2009) (officer used excessive
force when he pepper sprayed the plaintiff after approaching him about a violation
of a noise ordinance, and although the plaintiff “responded to [the officer’s]
confrontational tone with an equally brash one, . . . he was not acting in a physically
aggressive manner,” and the evidence suggested the plaintiff was neither resisting
arrest nor attempting to flee); Reese v. Herbert, 527 F.3d 1253, 1274 (11th Cir. 2008)
(“In view of the fact that Reese was lying face down on the ground, was not suspected of having committed a serious crime,42 did not pose an immediate threat of harm to
anyone, and was not actively resisting or evading arrest, the defendants’ use of
40 More specifically, the court noted that “[d]isorderly conduct is not a serious offense,” Fils, 647 F.3d at 1288 (citing Vinyard, 311 F.3d at 1347), and that “resisting arrest without force does not connote a level of dangerousness that would justify a greater use of force,” id.
41 The court noted that the bystander faced charges of resisting arrest without force, he “did not ignore any verbal instructions, nor did he attempt to free himself” from the officer after the officer tazed him. Fils, 647 F.3d at 1289.
42 Reese faced charges of “misdemeanor obstruction[, . . .] a crime of ‘minor severity’ for which less force is generally appropriate.” Reese, 527 F.3d at 1274 (citing Vinyard, 311 F.3d at 1348–49).
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[chemical spray] was a wholly disproportionate response to the situation.”).
There is a final consideration in the present matter that potentially distinguishes
it from the previous cases: the defendant S.R.O.s inflicted the alleged excessive force
at issue here on students in schools. It is well-established that “the constitutional
rights of students in public school are not automatically coextensive with the rights
of adults in other settings.” Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 682
(1986) (citing New Jersey v. T.L.O., 469 U.S. 325, 340–42 (1985)). “[W]hile children
assuredly do not ‘shed their constitutional rights at the schoolhouse gate,’ the nature
of those rights is what is appropriate for children in school.” Vernonia Sch. Dist. 47J
v. Action, 515 U.S. 646, 655–56 (1995) (quoting Tinker v. Des Moines Indep. Cmty.
Sch. Dist., 393 U.S. 503, 506 (1969)). In particular, courts have routinely determined
that under certain circumstances, public school students enjoy reduced rights pursuant to the First and Fourth Amendments.43 In the Fourth Amendment context, the
Supreme Court has held that, in the public school setting, “a search will be
permissible in its scope when the measures adopted are reasonably related to the
43 See e.g., Morse v. Frederick, 551 U.S. 393, 410 (2007) (holding that the First Amendment does not guarantee a student’s right to display a message that could reasonably be interpreted as promoting drug use at a school event); Vernonia Sch. Dist. 47J, 515 U.S. at 655–56 (holding that random drug testing for student athletes did not violate their Fourth Amendment rights); Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 276 (1988) (holding that a principal did not impinge students’ First Amendment rights by censoring articles in a high school newspaper); Fraser, 478 U.S. at 686 (holding that the First Amendment did not guarantee a student’s right to deliver a sexually explicit speech at an assembly); New Jersey v. T.L.O., 469 U.S. 325, 342 (1985) (holding that a search of a student’s purse that was not based on probable cause did not violate the Fourth Amendment). The court notes that these cases involve alleged constitutional violations by school officials, not law enforcement officers.
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objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.” New Jersey v. T.L.O., 469 U.S. 325, 342 (1985). The Eleventh Circuit has extended this rule to seizures by school-based police officers. Gray ex rel. Alexander v. Bostic, 458 F.3d 1295, 1305 (11th Cir. 2006).
The defendants argue that because the incidents giving rise to this lawsuit occurred in schools and involve students, “the [c]ourt should not analyze the force applied to [the p]laintiffs as it would were it applied to an average citizen stopped on the street as Graham envisions, but instead, the [c]ourt must balance the government’s interest in ‘maintaining order in the schools’ and [the p]laintiffs’ reduced Fourth Amendment expectations.” Doc. 273 at 35–36. In other words, the defendants seem to take the eyebrow-raising position that school children are less deserving of protection from harm at the hands of overzealous law enforcement officers than adults when the harm occurs at school. In support of their stance, the defendants direct the court to a number of cases in which courts have recognized that the Fourth Amendment rights of children are reduced in the public school setting. Id. at 33–36.44 The problem with these cases is that while they do examine the limitations
44 Citing Vernonia Sch. Dist., 515 U.S. at 655–56; T.L.O., 469 U.S. at 342; Gates v. Tex. Dep’t of Protective & Regulatory Servs., 537 F.3d 404, 432 (5th Cir. 2008) (social workers permissibly seized a child from a public school to interview him in a safe place; seizing the child from his home would not have been); Shuman ex rel. Shertzer v. Penn Manor Sch. Dist., 422 F.3d 141, 148 (3d Cir. 2005) (school officials permissibly “seized” a student by detaining him in a conference room for several hours while investigating allegations that he was involved in an incident of sexual misconduct); Wallace by Wallace v. Batavia Sch. Dist. 101, 68 F.3d 1010, 1015 (7th Cir. 1995) (a teacher who briefly held a student by the elbow while escorting her out of
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of students’ Fourth Amendment expectations regarding searches and seizures, none
of them involve allegations of excessive force pursuant to the Fourth Amendment.45
Absent a clear directive from binding authority,46 the court declines to adopt the
position that children in public schools have a reduced expectation of being free from
the classroom did not conduct an illegal seizure per the Fourth Amendment); Edwards v. Rees, 883 F.2d 882, 884 (10th Cir. 1989) (seizure of student for questioning about a bomb threat was reasonable).
45 The only case that comes close, Wallace by Wallace v. Batavia Sch. Dist. 101, is distinguishable from the present matter both factually and legally. In Wallace, the defendant, a teacher, briefly grasped the plaintiff by the wrist and elbow and guided her toward the classroom exit. 68 F.3d at 1011. The plaintiff halted and told the defendant to let go. Id. The defendant complied. Id. The plaintiff subsequently brought a claim against the defendant for wrongful seizure, pursuant to the Fourth Amendment, and unlawful excessive corporal punishment, pursuant to the Fourteenth Amendment. Although the court applied T.L.O.’s reasonableness standard to the plaintiff’s Fourth Amendment claim, its inquiry was limited to the reasonableness of the seizure itself, not of the degree of force. Id. at 1015. To the extent that Wallace raised a claim of excessive force, she did so in the context of excessive corporal punishment in violation of the Fourteenth Amendment, which is not a legal issue in this case. Id. at 1016.
The court also notes the following language in Wallace:
Because a student is at least as much seized when a school official administers corporal punishment as Wallace was here, corporal punishment may be evaluated under the Fourth Amendment standard. Therefore, even assuming that Cliffe’s actions constituted corporal punishment, we reject Wallace’s theory of recovery under the Fourteenth Amendment as we have done under the Fourth Amendment.
Wallace, 68 F.3d at 1016. Lest this provoke confusion, the court provides the following clarification. The same behavior—the defendant’s brief seizure of the plaintiff’s elbow and wrist—gave rise to both the plaintiff’s Fourth and her Fourteenth Amendment claims. The threshold for finding that a seizure is unreasonable (as the court will subsequently discuss at length) is much lower than for finding a violation of a plaintiff’s substantive due process rights. Because Wallace failed to clear the comparatively low Fourth Amendment threshold, she certainly could not establish a substantive due process violation.
46 Perhaps in recognition of its problematic implications, the Eleventh Circuit has sidestepped the issue. See Gray, 458 F.3d at 1304 (“Gray argues that Deputy Bostic used excessive force in detaining her because he lacked a right to detain her at all. Therefore, her excessive force claim is not an independent claim, but rather is subsumed in her illegal seizure claim.”).
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the infliction of excessive force by law enforcement officers. At any rate, the court’s position is largely academic because the outcome of the plaintiffs’ individual claims against the defendant S.R.O.s is the same whether the court applies T.L.O.’s reasonable-under-the-circumstances test or the factors described in Graham47—which, the court notes, are fairly similar analyses.
With this legal framework in mind, and based on the findings in this case, the court makes the following conclusions of law:
a. K.B.
1. Officer Smith inflicted excessive force on K.B. when he sprayed her with Freeze +P. The crime Officer Smith charged K.B. with, disorderly conduct, was minor. See Fils, 647 F.3d at 1288 (“Disorderly conduct is not a serious offense.”). Although her sobs may have created a disturbance, K.B. was standing still and restrained with handcuffs when Officer Smith sprayed her, and posed no threat to Officer Smith or to L.M., who, more to the point, was no longer present at the scene. K.B. also made no attempt to flee the area.
2. Although Officer Smith may have, at one point, had a legitimate concern—albeit perhaps not one significant enough to outweigh all of the factors that counsel finding against him—about K.B.’s cries provoking other students to fight, he
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testified at his deposition that the crowd that concerned him had dispersed by the time he sprayed K.B.
3. For these reasons, the court concludes there was simply no reason for Officer Smith to spray K.B. with Freeze +P, and when he did so, he caused her to experience a great deal of physical pain. Consequently, the court concludes that when Officer Smith sprayed K.B. with Freeze +P, he violated her right to be free of excessive force, pursuant to the Fourth Amendment.
4. Finally, while all of the facts in this case are disturbing, the court is especially taken aback that a police officer charged with protecting the community’s children considered it appropriate and necessary to spray a girl with Freeze +P simply because she was crying about her mistreatment at the hands of one of her male peers.
b. B.J. 1. No justifiable basis existed for Officer Benson to spray B.J. with Freeze +P. 2. Physical harassment, the crime with which Officer Benson charged B.J., is a minor offense. 3. B.J. did not pose a threat to Officer Benson. Officer Benson stood idly by while B.J. struggled with school officials Gadson and Gates, and by the time she sprayed B.J., he had stopped struggling. More to the point, B.J. was a 135-pound boy
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who two adult men had pinned against a set of lockers, and he posed no risk to Gadson or Gates. In fact, Officer Benson never testified that Gadson and Gates asked for her assistance. Moreover, B.J. was not trying to flee.
4. To the extent B.J. struggled with Gadson and Gates, he did so to resist a search by school officials, not an arrest by a law enforcement officer. There were no non-school-specific concerns associated with this incident, and the incident, which took place in a hallway, away from other students, cannot be characterized as a disturbance to the school environment. By Officer Benson’s own admission, her role as an S.R.O. did not involve enforcing school disciplinary policies. 2/3/15 at 142. In fact, Officer Benson also testified that it would be inappropriate for an S.R.O. to spray a student with Freeze +P for refusing to consent to a search by a school official, 2/3/15 at 181, although that is essentially what she did.
5. As with K.B., there was no reason for Officer Benson to spray B.J. with Freeze +P, much less throw him on the ground and kneel on his back, and when she did so, she caused B.J. to experience a great deal of physical pain. Consequently, the court concludes that when Officer Benson sprayed B.J. with Freeze +P, she violated his right to be free of excessive force, pursuant to the Fourth Amendment.
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c. G.S.
1. As the court has previously stated, physical harassment, G.S.’s purported
offense, is not a serious crime, and the court views G.S.’s resistance as de minimis.
Nonetheless, although G.S. engaged in de minimis resistance, her claim fails because
of the law of the case. In particular, this court’s opinion regarding the defendants’
motion for summary judgment, doc. 196, which, among other things, denied Officer
Clark’s claim that he was entitled to qualified immunity, contained the following
description of G.S.’s encounter with Officer Clark:
On December 8, 2009, as seventeen year old G.S. chased another student across the lawn at Huffman High School, an S.R.O. grabbed G.S. from behind. Before she recognized the individual as an S.R.O., G.S. tried to free herself. Allegedly, S.R.O. A. Clark immediately sprayed chemical spray directly in G.S.’s eyes and face. G.S. contends S.R.O. Clark sprayed her a second time even after she fell to the ground due to the pain caused by the first spray. Id. at 7 (citations omitted). The defendants appealed the court’s denial of qualified
immunity to the Eleventh Circuit, doc. 197, which upheld the court’s findings, doc.
212-1. As to G.S., however, the Eleventh Circuit made the following observation:
With regard to Officer Clark, the denial of qualified immunity is based on the second macing of G.S. Viewing the facts in the light most favorable to G.S., Officer Clark maced G.S. a second time when she was incapacitated, non-resistant, and writhing in pain on the ground. Although the first macing was reasonable due to G.S.’s initial resistance, that resistance does not shield Officer Clark from liability when he used force after the resistance and risk of flight was over. Id. at 11 (emphasis added).
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2. At trial, G.S. did not testify that Officer Clark sprayed her a second time; she only testified that he sprayed her after she tried to pull away from him. 1/20/15 at 140–42. Because the Eleventh Circuit has explicitly ruled that Officer Clark’s actions were reasonable, the court finds that Officer Clark did not inflict excessive force on G.S. when he sprayed her with Freeze +P.
d. B.D. 1. Based on testimony at trial, it seems likely to the court that Officer Henderson, who was 6’1” and weighed 240 pounds at the time, had complete control over B.D., who was 5’4” and weighed only 110 pounds, and consequently that it was unlikely she actually posed a risk to Principal Burrell. 2. Nonetheless, B.D. resisted Officer Henderson by pulling away from him and actively attempted to charge at Principal Burrell who, albeit, was out of harm’s way. However, B.D.’s conduct is an act that in this circuit justifies the use of chemical spray. See Brown, 608 F.3d at 739. Consequently, the court finds that Officer Henderson did not inflict excessive force on B.D. when he sprayed her with Freeze +P.
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e. T.A.P. 1. Based on the trial testimony that T.A.P. swung her bookbag intentionally at Officer Tarrant and then fled, and in light of this circuit’s general principal that fleeing from law enforcement justifies the use of chemical spray, id., the court finds that Officer Tarrant did not inflict excessive force on T.A.P. when he sprayed her with Freeze +P.
f. T.L.P. 1. Officer Nevitt acted justifiably in spraying T.L.P. The incident occurred in a charged setting, and after T.L.P. had beaten E.H. to the ground and was still holding on to E.H.’s hair. Moreover, two, large, adult men were unable to separate T.L.P. and E.H., and T.L.P. ignored Officer Nevitt’s repeated instructions to let go of E.H. The volatility of the situation was highlighted by the fact that although Officer Nevitt tried to spray T.L.P., he mainly sprayed Coach Johnson. In short, T.L.P. was actively harming another person and had ignored officer instructions. 2. Additionally, the court notes that the fight took place in a crowded cafeteria, and by the time Officer Nevitt sprayed T.L.P., other students were growing rowdy and throwing things.
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3. In this circuit, T.L.P.’s actions were sufficient to justify the use of chemical spray. See id; Vinyard, 311 F.3d at 1348. Consequently, the court concludes that Officer Nevitt did not inflict excessive force on T.L.P. when he sprayed her with Freeze +P.
g. J.W.
1. As the court previously explained, an S.R.O. sprayed J.W. and other members of a crowd who were gathered around a pair of fighting students with Freeze +P. If there was ever a dispute regarding whether Birmingham’s S.R.O.s need better training, this incident is the perfect response. Aerko International, Freeze +P’s manufacturer, does not recommend its use for crowd control, 1/26/15 at 134–35, and “‘mere obstinance by a crowd, without any evidence of a potential public safety threat or other law enforcement consideration’ d[oes] not justify [the] use of batons and pepper spray,” Buckley v. Haddock, 292 F. App’x 791, 803 (11th Cir. 2008) (quoting Asociacion de Periodistas de Puerto Rico v. Mueller, 529 F.3d 52, 60 (1st Cir. 2008)).
2. Here, however, although he sought damages in the plaintiffs’ most recent pleading, see doc. 188 at 4, 60–61, at trial, J.W. conceded that he no longer seeks money damages, 1/21/15 at 100 (“Q. You’re not seeking any money damages today, correct? A. No, sir.”). Additionally, the court notes that J.W.’s individual claim fails
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because although he identified the S.R.O. who sprayed the crowd as Officer Nevitt in the plaintiffs’ most recent pleadings, see doc. 188 at 60, at trial, J.W. was unable to identify the officer who sprayed him, see 1/21/15 at 88–91. Therefore, the court finds that J.W. failed to prove his claims.
To summarize, as to the plaintiffs’ individual excessive force claims stemming from being sprayed with Freeze +P, the court finds only in favor of K.B. and B.J. Therefore, because the court concludes that Officers Smith and Benson violated K.B. and B.J.’s Fourth Amendment rights by spraying them with Freeze + P, the court turns next to the second prong of its qualified immunity inquiry: were those rights clearly established at the time the violation occurred. In this circuit, courts use “two methods to determine whether a reasonable officer would know that his conduct is unconstitutional.” Fils, 647 F.3d at 1291. “The first method looks at the relevant case law at the time of the violation; the right is clearly established if ‘a concrete factual context [exists] so as to make it obvious to a reasonable government actor that his actions violate federal law.’” Id. (quoting Hadley, 526 F.3d at 1333. “This method does not require that the case law be ‘materially similar’ to the officer’s conduct; ‘officials can still be on notice that their conduct violates established law even in novel factual circumstances.’” Id. (quoting Hope v. Pelzer, 536 U.S. 730, 741 (2002)). “But, where the law is stated in broad propositions, ‘a very high degree of
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prior factual particularity may be necessary.’” Id. (quoting Hope, 536 U.S. at 740–41).
“The second method looks not at case law, but at the officer’s conduct, and inquires whether that conduct ‘lies so obviously at the very core of what the Fourth Amendment prohibits that the unlawfulness of the conduct was readily apparent to [the officer], notwithstanding the lack of fact-specific case law.’” Id. (quoting Vinyard, 311 F.3d at 1355) (alteration in the original). “This method—termed ‘obvious clarity,’—is a ‘narrow exception’ to the normal rule that only case law and specific factual scenarios can clearly establish a violation.” Id. (citations omitted) (citing Lee, 284 F.3d at 1198–99). “Concrete facts are generally necessary to provide an officer with notice of the ‘hazy border between excessive and acceptable force.’” Id. at 1291 (citing Lee, 284 F.3d at 1198–99). “But, where the officer’s conduct is so outrageous that it clearly goes ‘so far beyond’ these borders, qualified immunity will not protect him even in the absence of case law.” Id. at 1291–92 (quoting Reese, 527 F.3d at 1274.
Therefore, as to the clearly established rights inquiry of the qualified immunity analysis, the court makes the following conclusions of law:
1. Officers Smith and Benson were on notice under either test. Similar to Vinyard, where the Eleventh Circuit concluded that the officer inflicted excessive
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force on the plaintiff when he sprayed her with pepper spray, even though she was
screaming and cursing at him, because the plaintiff was under arrest for a crime of
minor severity, was restrained, and posed no danger to the officer, herself, or anyone
else, 311 F.3d at 1349, K.B. and B.J. were arrested for minor offenses (disorderly
conduct and physical harassment), restrained (K.B. was handcuffed and B.J. was held
against a row of lockers by two adult men), and neither posed a danger to the officer,
themself, or anyone else.48 By Officers Smith and Benson’s own accounts, both
children were making a scene—K.B. was crying hysterically and B.J. was cursing at
Gadson and Gates. However, as the Eleventh Circuit noted in Vinyard, being a
nuisance is not synonymous with being a threat. Id. at 1347–48.
2. Because the facts here are almost identical to those in Vinyard, it should
have been obvious to Officers Smith and Benson that their actions constituted
excessive force. Consequently, they are not entitled to qualified immunity.49
48 K.B. never posed a threat to anyone, and, to the extent that B.J. posed a threat to Gadson and Gates by struggling with them when they attempted to search him, by the time Officer Benson sprayed him with Freeze +P, B.J. had ceased struggling.
49 Fils also counsels in favor of a finding that clearly established law proscribed Officers Smith and Benson’s actions. Although Fils postdates the incidents giving rise to K.B. and B.J.’s individual claims against Officers Smith and Benson and cannot serve as clearly established law in and of itself, the Fils court found that Vinyard, along with Priester, a case in which a police officer set his attack dog on the plaintiff, who had obeyed the officer’s commands and was lying prone on the ground, “establish that such force is excessive when the suspect is non-violent and has not resisted arrest,” and that consequently the Fils defendant was on notice that tazing an unrestrained crowdmember who had criticized police was excessive. Fils, 647 F.3d at 1292 (citing Vinyard, 311 F.3d at 1347–48; Priester, 208 F.3d at 927). If those cases were sufficient to place the Fils defendant on notice, they were sufficient to place Officers Smith and Benson on notice as well.
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3. Additionally, in both Vinyard and Fils, the Eleventh Circuit noted that the behavior of the defendant officers “clearly [went] so far beyond” the “hazy border between excessive and acceptable force” that it met the “obvious clarity” standard described above. Fils, 647 F.3d at 1291, 1292 (internal quotation marks omitted); Vinyard, 311 F.3d at 1355. Because Officers Smith and Benson violated clearly established law, the court need not rely on this standard, but it notes that their actions were so factually similar to those at issue in Vinyard and Fils that they meet the obvious clarity standard as well. In other words, their behavior was “so far beyond the hazy border between excessive and acceptable force that every objectively reasonable officer had to know he was violating the Constitution even without caselaw on point.” Id. (citing Priester, 208 F.3d at 926; Smith, 127 F.3d at 1419).
2. Adequate Decontamination
The plaintiffs contend that by failing to adequately decontaminate them, the defendant S.R.O.s violated their Fourth Amendment rights. As a preliminary matter, the defendants contend that because the plaintiffs were in custody at the time the purportedly inadequate decontamination occurred, these claims allege violations of the Fourteenth Amendment, not the Fourth Amendment. Doc. 273 at 40–42 (citing Cottrell v. Caldwell, 85 F.3d 1480, 1490 (11th Cir. 1996), which the defendants contend “analyz[ed] the conduct of officers during [an] arrest under [the Fourth
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Amendment] and, after placing the suspect in the vehicle, under Fourteenth
Amendment substantive due process”).50 Consequently, the defendants contend the
court should not consider the plaintiffs’ decontamination claims because they were
improperly pleaded,51 id. at 41, or, in the alternative, that the court should analyze
whether the decontamination measures taken by the defendant S.R.O.s “shock the
conscience” under the Fourteenth Amendment rather than whether they run afoul of
50 The court’s reading of Cottrell is not so clear-cut. Cottrell involved an arrestee who died from positional asphyxia while officers transported him in the back of a police car following his arrest. 85 F.3d at 1488. The administrator of the arrestee’s estate filed a mistreatment in custody claim and an excessive force claim. Id. at 1489, 1492. As to the mistreatment in custody claim, the court noted that “[c]laims involving the mistreatment of arrestees or pretrial detainees in custody are governed by the Fourteenth Amendment’s Due Process Clause instead of the Eighth Amendment’s Cruel and Unusual Punishment Clause, which applies to such claims by convicted prisoners.” Id. at 1490. However, as to the excessive force claim, the court noted that, unlike the mistreatment in custody claim, “the proper standard for judging Fourth Amendment excessive force claims . . . is one of objective reasonableness.” Id. at 1492. The court did not, however, indicate that the mistreatment in custody claim was the plaintiff’s sole claim regarding his post-arrest treatment; put differently, the court did not limit the plaintiff’s excessive force claim to his pre-arrest treatment, and applied the Fourth Amendment reasonableness standard to the entire claim. Discussing Cottrell, Judge Myron Thompson noted that:
[i]n reversing the district court’s denial of summary judgment on both claims, the appellate court did not specifically address whether the Fourth Amendment ‘reasonableness’ test was the appropriate standard for all post-arrest, pre-detention excessive-force claims. However, by analyzing and rejecting the plaintif’s excessive-force claim without further commenting on the relevant standard, it at least implicitly acknowledged that the Fourth Amendment provided the appropriate constitutional framework in that particular post-arrest case.
Calhoun v. Thomas, 360 F. Supp. 2d 1264, 1273 (M.D. Ala. 2005).
51 The court notes that while the plaintiffs pleaded their individual claims against the defendant S.R.O.s under the Fourth and Fourteenth Amendment, see, e.g., doc. 188 at 62–63, the pretrial order clearly indicates that the plaintiffs’ decontamination claims are pursuant to the Fourth Amendment. See e.g., Doc. 270-1 at 12 (“Defendant Clark further subjected Plaintiff G.S. to an illegal seizure in violation of the Fourth Amendment when he failed to commence adequate decontamination procedures after he sprayed her.”).
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the Fourth Amendment’s prohibition on unreasonable seizures, id. at 41–42; Cnty. of Sacramento v. Lewis, 523 U.S. 833, 847 (1998) (quoting Collins v. Harker Heights, 503 U.S. 115, 128 (1992)) (“[T]he substantive component of the Due Process Clause is violated by executive action only when it ‘can properly be characterized as arbitrary, or conscience shocking . . . .’”).
Based on the evidence and the case law, the court makes the following conclusions of law with respect to the decontamination claim:
1. “‘[T]he precise point at which a seizure ends (for purposes of Fourth Amendment coverage) and at which pretrial detention begins (governed until a conviction by the Fourteenth Amendment) is not settled in this Circuit.’” Nasseri v. City of Athens, 373 F. App’x 15, 17 n. 2 (11th Cir. 2010) (quoting Hicks v. Moore, 422 F.3d 1246, 1253 n. 7 (11th Cir. 2005)).
2. In Hicks, the Eleventh Circuit faced facts regarding timing similar to those currently before the court. The Hicks plaintiff alleged that, following her arrest, a police officer touched her in a sexual manner while fingerprinting her at the jail during the booking process. Hicks, 422 F.3d at 1253 n. 7. Noting that the plaintiff contended this behavior violated the Fourth, not the Fourteenth Amendment, the Eleventh Circuit assumed for the purpose of deciding Hicks that at the time of the
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fingerprinting, the plaintiff was still being seized,52 and analyzed the claim under the Fourth Amendment.53 Id.

3. Turning to the present matter, the purported excessive force at issue—the defendants’ alleged failure to decontaminate the plaintiffs—is substantively, temporally, and logistically less removed from the initial seizure, i.e. the exposure to Freeze +P, than was the case in Hicks. The defendants’ failure to decontaminate the

52

“[A] number of appellate courts have applied the Fourth Amendment to incidents

of excessive force occurring after the moment of arrest by adopting the

‘continuing seizure’ approach to defining when seizure ends and pretrial detention

begins. Under this analysis, a Fourth Amendment seizure is treated as extending

beyond the actual moment of arrest to the ensuing period of intermittent custody

in the hands of the arresting officers.”

Calhoun, 360 F. Supp. 2d at 1272 (citing Fontana v. Haskin, 262 F.3d 871, 879–80 n. 5 (9th Cir. 2001); Torres v. McLaughlin, 163 F.3d 169, 174 (3d Cir. 1998); Cox v. Treadway, 75 F.3d 230, 235 (6th Cir. 1996); Austin v. Hamilton, 945 F.2d 1155 (10th Cir. 1991) (overruled on other grounds); Powell v. Gardner, 891 F.2d 1039, 1044 (2d Cir. 1989)). See Judge Thompson’s Calhoun opinion for a thorough survey of ‘continuing seizure’ jurisprudence, along with a convincing explanation as to why “the Eleventh Circuit’s own case law, in addition to the case law of a number of other circuits and the Supreme Court, suggests that an analysis under the Fourth Amendment is appropriate, if not required, in post-seizure, pre-detention allegations of excessive force.” Id. at 1274.
53 But see Nasseri, 373 F. App’x at 17 n. 2 (analyzing arrestee’s excessive force claim as an alleged Fourteenth Amendment violation). A police officer exposed the Nasseri plaintiff to chemical spray during the booking process, and the plaintiff subsequently brought a claim for both the initial spraying and the officer’s failure to properly decontaminate him. Id. at 18. In analyzing the plaintiff’s claim pursuant to the Fourteenth Amendment’s shocks-the-conscience standard, the court noted that:

Nasseri filed his claim solely under the Fourteenth Amendment, specifically identified himself as a pre-trial detainee, and indicated that the constitutional violation was for cruel and unusual punishment. Nasseri first attempted to assert a Fourth Amendment excessive force claim in his opposition to summary judgment. However, this assertion was too late, and we consider the claim only under the Fourteenth Amendment.

Id. at 17 n. 2.

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plaintiffs commenced immediately after they subdued the plaintiffs with Freeze +P,
at the schools where the defendants sprayed the plaintiffs, and was directly related to
the plaintiffs’ exposure to Freeze +P. In contrast, the Hicks plaintiff objected to
alleged behavior that took place hours after her initial seizure, at a different location
than her initial seizure, and was wholly unrelated to her initial seizure.
4. Consequently, the court concludes that there is no impropriety in considering
the defendants’ failure to decontaminate the plaintiffs as part of an ongoing seizure
that it should evaluate pursuant to the Fourth, rather than the Fourteenth
Amendment.54
5. The Fourteenth Amendment is relevant to the court’s inquiry, however,
because the Eleventh Circuit has addressed the specific behavior currently before the
54 Because the court concludes that the plaintiffs’ decontamination claims properly allege Fourth Amendment violations, the defendants’ argument that the claims should have been pleaded as Fourteenth Amendment violations fails. However, the court notes that, in the alternative, were it to adopt the defendant’s position that the claims allege Fourteenth Amendment violations, the plaintiffs would still prevail. First, the defendant’s claim that they lacked notice of the plaintiffs’ decontamination claim is remarkable in light of the thorough and impassioned defense of their decontamination policy they presented at trial. “When an issue not raised by the pleadings is tried by the parties’ express or implied consent, it must be treated in all respects as if raised in the pleadings. A party may move—at any time, even after judgment—to amend the pleadings to conform them to the evidence and to raise an unpleaded issue.” Fed. R. Civ. P. 15(b)(2). Second, the defendants could hardly argue that they would be prejudiced were the court to apply the Fourteenth Amendment’s more stringent shocks-the-conscience standard rather than the Fourth Amendment’s reasonableness standard. See Fennell v. Gilstrap, 559 F.3d 1212, 1217 (11th Cir. 2009) (“The standard for showing excessive force in violation of the Fourteenth Amendment . . . is higher than that required to show excessive force in violation of the Fourth Amendment.”). Third, as the court will subsequently explain, the defendants’ failure to adequately decontaminate the plaintiffs violated the plaintiffs’ Fourteenth Amendment right as established by binding Eleventh Circuit precedent.
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court, i.e. failing to decontaminate a subject whom law enforcement has exposed to chemical spray, in the Fourteenth Amendment context. In Danley v. Allen, the plaintiff alleged that after spraying him with chemical spray, jail guards confined him in a small, poorly ventilated cell for twenty minutes, then allowed him to take a twominute shower, which was not long enough for him to effectively decontaminate himself, before confining him with a group of inmates in another poorly ventilated cell. 540 F.3d 1298, 1304 (11th Cir. 2008), overruled on other grounds as recognized by Randall v. Scott, 610 F.3d 701 (11th Cir. 2010). “Because he had not been permitted to adequately decontaminate himself, pepper spray still clung to Danley and his clothes. Within thirty minutes of being placed in the group cell, Danley’s cellmates began complaining that their eyes were burning because of the residue left on him.” Id. Both before and after the guards permitted him to shower, Danley repeatedly complained that he was having trouble breathing and that his skin was burning, and asked for medical attention. Id. at 1304–05. The guards ignored his requests and made fun of his distress by, among other things, laughing at him and holding their hands to their necks in a mock-choking gesture. Id. at 1304. Danley finally obtained treatment from his doctor when the jail released him after twelve or thirteen hours of confinement. Id. at 1305.
6. As explained above, “[w]hether a jailer’s use of force is excessive, and thus violates [an] inmate’s Fourteenth Amendment right to be free from cruel and unusual
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punishment, depends on whether the jailer’s act ‘shocks the conscience,’” id. at 1307, rather than the reasonableness standard the court will apply in this case.
7. Evaluating the merits of Danley’s claim, the Eleventh Circuit noted that “[w]hen jailers continue to use substantial force against a prisoner who has clearly stopped resisting—whether because he has decided to become compliant, he has been subdued, or he is otherwise incapacitated—that use of force is excessive.” Id. at 1309 (citing Bozeman v. Orum, 422 F.3d 1265, 1272 (11th Cir. 2005)). In Danley’s case, the court determined that the guards’ initial use of chemical spray was permissible because Danley failed to follow instructions and was creating a disturbance. Id. at 1308. The court went on, however, to find that the guards’ failure to decontaminate Danley violated his right to be free from excessive force. Id. at 1309. More specifically, the court noted that “[t]he use of force in the form of extended confinement in the small, poorly ventilated, pepper spray-filled cell, when there were other readily available alternatives, was excessive.” Id. The court also noted that by mocking Danley’s distress, the guards exhibited malicious intent, and that while they “eventually did permit Danley to shower, they did not allow him the amount of time required by jail policy.” Id. at 1309–10, 1310.
8. The Eleventh Circuit returned to the decontamination issue in Nasseri v. City of Athens. In that case, a guard who was responding to a jailhouse fight sprayed
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Nasseri with pepper spray after Nasseri, a bystander, told the guard to “stop that mess.” 373 F. App’x at 18. The circuit held that, while eyebrow-raising, this initial “use of pepper spray . . . does not shock the conscience.” Id. What happened next did. Because ambient pepper spray had contaminated the entire jail facility, guards were forced to move detainees and inmates who also were exposed to the spray into the jail yard and allowed them access to fresh air and water from a hose. Id. However, the defendant placed Nasseri in the back of a police car, where he remained for an hour. Id. Nasseri repeatedly tried to place his head through an eight to ten inch opening in a rear window, and yelled for help, claiming he could not breathe. Id. Evaluating these facts, the court found that the
confinement of [Nasseri] in an unventilated patrol car without decontamination constituted excessive force. Under this version, after being sprayed, Nasseri was cooperating, was not posing a threat to himself, the officers, or other detainees, and repeatedly cried out for medical help. . . . It is excessive force for a jailer to continue using force against a prisoner who already has been subdued. Id. at 19. Critical to the present analysis, unlike the defendants in Danley, who maliciously took pleasure in Danley’s distress by laughing at him, the court did not point to similar behavior on the part of the Nasseri defendant.
9. In contrast to Danley and Nasseri, in Scroggins v. Davis, the Eleventh Circuit found that corrections officers’ failure to decontaminate Scroggins did not rise to the level of a Fourteenth Amendment violation. The corrections officers sprayed
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Scroggins with chemical spray after he “disobeyed a direct order[,] . . . got involved in a scuffle with the guards, [and] made an aggressive move toward one of them.” 236 F. App’x 504, 505 (11th Cir. 2009). Scroggins attempted to base an excessive force claim on Danley, noting that corrections officers placed him in restraints for three hours and fifteen minutes after they sprayed him and that none of them washed the spray off of him. Id. at 505–06. The court distinguished Danley for a number of reasons. Unlike in Nasseri, the court noted that in Danley, the guards made fun of the Danley’s distress, and Scroggins did not make similar allegation. Id. at 506.This was not, however, the primary reason the court found Danley did not apply. Danley, it noted “was not a restraint case and it did not involve a dangerous, high risk inmate.” Id. at 505–06. Most importantly, although Scroggins based his excessive force claim in part on the defendants’ failure to decontaminate him,
[t]he only time Scroggins mentioned to anyone feeling any discomfort from the O.C. spray was when he told the nurse who checked him immediately after he was put in four-point restraints, which was soon after he had been sprayed. One would expect some discomfort from the spray soon after it had been administered. Scroggins was checked every fifteen minutes thereafter during the time he was restrained but never again did he mention the slightest discomfort from the O.C. spray. . . . An inmate cannot keep his suffering to himself and then complain about jailers not doing anything to alleviate it. Id. at 506.
10. Although it is not on point with the present facts, Scroggins is relevant to the court’s present analysis because it illustrates that failure to decontaminate is not
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a per se constitutional violation; there are circumstances, such as the risk posed by a dangerous adult inmate that may outweigh the harm caused by failing to decontaminate an individual who law enforcement have exposed to chemical spray.
11. Taken together, Danley, Nasseri, and Scroggins stand for the premise that, absent exigent circumstances, failing to decontaminate an individual after exposing him to chemical spray shocks the conscience and is a violation of the Fourteenth Amendment. Logically, it follows that the cases also stand for the premise that the same conduct is an unreasonable seizure and is a violation of the Fourth Amendment as well. This is because the courts in Danley, Nasseri, and Scroggins subjected the prison guards’ behavior in those cases to a higher degree of scrutiny than the degree of scrutiny to which the defendants in this case are entitled, both because they analyzed the plaintiffs’ claims under the Fourteenth Amendment and because the claims arose in the penal context. After all, “[t]he standard for showing excessive force in violation of the Fourteenth Amendment . . . is higher than that required to show excessive force in violation of the Fourth Amendment.” Fennell v. Gilstrap, 559 F.3d 1212, 1217 (11th Cir. 2009); see also Hicks, 422 F.3d at 1253 n. 7 (noting that as opposed to the Fourteenth Amendment’s standard, “the Fourth Amendment standard . . . is commonly an easier standard for a plaintiff to meet”). Put differently, if behavior shocks the conscience, it certainly also exceeds the lower threshold of unreasonable.
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12. Ultimately, the crux of the matter is this: in light of Danley and its progeny, finding that a failure to decontaminate, under the circumstances of this case, does not violate the Fourth Amendment would require the court to conclude that school children are less deserving of protection against excessive force than adult pretrial arrestees or criminals. The court will not take such an untenable position.
13. Having concluded that, absent extenuating circumstances, failing to adequately decontaminate an individual who officers have exposed to chemical spray is excessive force and violates the Fourth Amendment, the court now turns to the question of whether the defendants adequately decontaminated the plaintiffs. The court’s task here is eased, somewhat, by the fact that, with regard to most of the plaintiffs, the defendants did absolutely nothing other than call Birmingham Fire Rescue, whose paramedics, in turn, did nothing to ease the plaintiffs’ pain. The plaintiffs’ descriptions of being forced to sit in interior offices without airflow or in police cars with the windows rolled up or access to water is roughly analogous to the situations endured by Danley and Nasseri, who, similarly, were confined in enclosed spaces with no airflow and no access to water. While the defendant S.R.O.s testified that the B.P.D. trained them to believe that time and air are the best decontamination techniques, their actions fall short even of that. They clearly did not adequately decontaminate the plaintiffs. Moreover, while the court fully acknowledges that situations may exist in which decontamination is not feasible, such as when an officer
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does not have access to blowing air or copious amounts of water, that was not the case here. The court heard testimony that the schools where these incidents occurred were equipped with showers in the locker rooms and eye wash stations in the chemistry labs. They also had bathrooms with sinks, and, presumably, soap. At a minimum, the officers could have taken the plaintiffs outside and exposed them to fresh air, as Officer Henderson did with B.D. There was simply no good reason for the defendant officers not to attempt to alleviate the plaintiffs’ discomfort.
14. There were two exceptions55 to this complete lack of effort to help the plaintiffs. T.A.P and Officer Tarrant testified that Officer Tarrant rolled down the windows of her patrol car while transporting T.A.P. to Cooper Green and Family Court so that the moving air would afford T.A.P. some relief. 1/22/15 at 174. Like the two-minute shower in Danley, however, this measure was too little, and, additionally here, too late. By the time Officer Tarrant transported T.A.P. to Cooper Green, ninety minutes had elapsed since Officer Tarrant sprayed T.A.P. Id. More to the point, by T.A.P.’s own account, the moving air did not alleviate her pain. Id. at 190.
55 The court acknowledges that two of the defendant S.R.O.s, Officers Nevitt and Benson, testified that the offices where they took T.L.P. and B.J. after spraying them with Freeze +P were air conditioned, and seemed to take the position that this was adequate exposure to air. 2/2/15 at 234; 2/3/15 at 162. In light of the defendants’ own expert’s testimony that wind or a fan are proper sources of air for decontamination purposes, and in the absence of any testimony that Officers Nevitt and Benson sat T.L.P. and B.J. directly in front of an open air conditioning vent or testimony from T.L.P. and B.J. that the air conditioning alleviated their discomfort, the fact that the offices were air conditioned has no bearing on the court’s decontamination analysis.
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15. The second exception deserves more attention. Both B.D. and Officer Henderson testified that immediately after Officer Henderson sprayed B.D. with Freeze + P, he took her outside so that she could sit in fresh air while waiting for paramedics to arrive. Determining whether Officer Henderson’s measures were sufficient to rise to the level of adequate decontamination turns the court’s attention to what, somewhat puzzlingly, has emerged as a key point of contention between the parties, namely, whether, as the defendants contend, time and/or air are adequate measures, or, as the plaintiffs contend, whether water is necessary as well. Based on several factors, the court believes that the plaintiffs are correct and that, if practicable, access to copious amounts of flowing water is necessary for adequate decontamination after exposure to chemical spray.
16. First, Freeze +P’s manufacturer, Aerko International, advocates using water for decontamination. Freeze +P’s Material Safety Data Sheet states that the effects of Freeze +P “can be relieved with running water and soap for cleanup.” Pl. Ex. 9 at 2. The Material Safety Data Sheet further states that Freeze +P’s effect on eyes can be relieved by “[f]lushing eyes with large quantities of water to speed recovery[, f]acing [a] subject into wind or forced air source such as fans or air conditioning outlet[, and w]ashing face with mild soap,” and that its effect on skin can be relieved by “[r]emov[ing] contaminated clothing[, and w]ash[ing] affected area with soap and water to transfer to more sensitive areas.” Id.
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17. Second, Dr. Tanen’s testimony is very convincing. Based on annual personal exposure for training purposes during his twenty-year career in the Navy, 1/28/15 at 14–15, he testified his first choice method for his personal decontamination would be to wash with copious amounts of water and soap, followed by access to a fan. Id.
18. Dr. Tanen also testified that ideal decontamination after exposure to Freeze +P includes the passage of time, exposure to wind or a fan, and washing with copious amounts of water and soap. Id. at 34. He noted, though, that ideal decontamination is possible only in a controlled environment, such as a police training scenario, where spraying is anticipated, or a school environment where officers are permitted to deploy Freeze +P and consequently its use can be anticipated much like at a police academy. Id. He further testified that S.R.O.s should provide students who are intentionally sprayed with water to decontaminate as soon as the situation is safe. Id. at 122.
19. Principal Lyons echoed Dr. Tanen’s assessment of the practicality of decontamination in the school setting by testifying that it would not be difficult for an S.R.O to take a student to a location like a chemistry lab where the student could flush her face. 2/4/15 at 118.
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20. Aerko International’s instructions regarding decontamination and Dr. Tanen’s testimony about his personal experience convince the court that, absent exigent circumstances, students who S.R.O.s spray with Freeze +P should receive access to copious amounts of water and soap. The court also notes two additional facts that, while not weighing strongly on the court’s decision, support it nonetheless. First, based on the S.R.O.s’ testimony, it appears that Birmingham police trainees receive an opportunity to wash their faces after they are exposed to Freeze +P during training.56 2/2/15 at 143; 2/3/15 at 94. Second, based on the court’s review of cases involving law enforcement spraying arrestees and inmates with chemical spray, it appears that showers are a fairly common, if not standard, decontamination technique. See Danley, 540 F.3d at 1304; Vinyard, 311 F.3d at 1344. As the court has previously indicated, it is inconceivable that accommodation afforded to police trainees, arrestees, and inmates are denied to school children.
21. While the court acknowledges that Officer Henderson made more of an effort to alleviate B.D.’s pain than his fellow S.R.O.s did toward the other plaintiffs, there was simply no reason under the circumstances for him not to provide B.D. access to copious amounts of water and soap. Consequently, he, like the other
56 Officers Nevitt and Smith both testified that applying water to their faces after being exposed to Freeze +P during training made the burning sensation worse. 2/2/15 at 143; 2/3/15 at 94. However, Officer Nevitt admitted that he only splashed his face with water for ten or fifteen seconds, 2/2/15 at 191, and the court repeatedly heard testimony indicating that a small amount of water exacerbates the burning sensation caused by Freeze +P, see e.g., 1/28/15 at 32. Officer Smith did not testify regarding how much water he applied to his face.
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S.R.O.s, inflicted excessive force on B.D. when he failed to adequately decontaminate her after spraying her with Freeze +P.
22. In sum, except as to J.W. and P.S., the court finds that the defendant S.R.O.s inflicted excessive force on the plaintiffs when they failed to adequately decontaminate them after spraying them with Freeze +P.
B. The Plaintiffs’ State Law Claims
Plaintiffs G.S., T.L.P., B.D., K.B., B.J., and T.A.P. contend that by spraying them with Freeze +P the defendant S.R.O.s committed the Alabama torts of assault and battery and outrage. Doc. 188 at 85–102. The defendant S.R.O.s contend that they are entitled to state-agent immunity. Under Alabama law,
“A State agent shall be immune from civil liability in his or her personal capacity when the conduct made the basis of the claim against the agent is based upon the agent’s
. . . exercising judgment in the enforcement of the criminal laws of the State, including, but not limited to, law-enforcement officers’ arresting or attempting to arrest persons, or serving as peace officers under circumstances entitling such officers to immunity pursuant to § 6–5–338(a), Ala. Code 1975.”57 Ex Parte City of Midfield, 161 So. 3d 1158, 1163 (Ala. 2014) (quoting Hollis v. City of Brighton, 950 So. 2d 300, 309 (Ala. 2006)).
57 Section 6-5-338(a) provides peace officers with “immunity from tort liability arising out of his or her conduct in performance of any discretionary function within the line and scope of his or her law enforcement duties.”
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The plaintiffs do not appear to dispute that the defendant S.R.O.s were acting within the scope of their law enforcement duties. Therefore, to prevail, the plaintiffs must present evidence that the defendant S.R.O.s fall into one of the exceptions to state-agent immunity. See Midfield, 2014 WL 2619862 at *4 (citing Ex parte Cranman, 792 So. 2d 392, 405 (Ala. 2000)). The only potential exception in this case provides that “‘a State agent shall not be immune from civil liability in his or her personal capacity . . . when the State agent acts willfully, maliciously, fraudulently, in bad faith, beyond his or her authority, or under a mistaken interpretation of the law.’” Id. at *4–*5 (quoting Cranman, 792 So. 2d at 405). Based on the evidence at trial, the plaintiffs failed to meet this burden. The court emphasizes that it does not condone the defendant S.R.O.s’ behavior. Trial testimony revealed a culture of cavalier Freeze +P use by S.R.O.s and indifference to the pain the product caused Birmingham school students. However, the evidence did not show that the defendant S.R.O.s acted maliciously. Put differently, the court heard no convincing evidence58 that persuaded it to conclude that the defendant S.R.O.s exposed the plaintiffs to Freeze +P solely for the purpose of inflicting pain upon the plaintiffs. Consequently,
58 If the court were to credit T.A.P.’s account of her encounter with Officer Tarrant, specifically that Officer Tarrant taunted her before spraying her with Freeze +P, 1/22/15 at 172, the court would reach a different conclusion regarding T.A.P.’s claim. However, as the court previously explained, it is basing its finding on Officer Tarrant’s account of events, to the extent they differ from that of T.A.P.
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the court finds that the defendant S.R.O.s are entitled to state-agent immunity
regarding the plaintiffs’ individual assault and battery claims.59
IV. Conclusions of Law Regarding the Plaintiffs’ Class Claim
Two plaintiffs, K.B. and P.S., bring a claim against Chief Roper in his official
capacity as named plaintiffs representing a class of “all current future high school
students of Birmingham City Schools.” Doc. 187 at 1. They allege violations of their
Fourth Amendment rights and seek declaratory and injunctive relief. Doc. 188 at
56–57. The class representatives fall into two distinct categories: (1) intentionally
59 Because the court concludes that the defendant S.R.O.s are entitled to state-agent immunity with regard to the plaintiffs’ state law tort claims, it need not examine the merits of those claims. The court notes, however, that, with regard to the plaintiffs’ outrage claim, that Alabama courts have recognized the tort only in regard to three, arguably four, kinds of conduct: “wrongful conduct in the family-burial context,” Little v. Robinson, 72 So. 3d 1168, 1172 (Ala. 2011) (citing Whit v. Hulsey, 519 So. 2d 901) (Ala. 1987)), “barbaric methods employed to coerce an insurance settlement,” id. (citing Nat’l Sec. Fire & Cas Co. v. Bowen, 447 So. 2d 133 (Ala. 1983), and “egregious sexual harassment,” id. (citing Busby v. Tuswal Sys. Corp., 551 So. 2d 322 (Ala. 1989)); see also O’Rear v. B.H., 69 So. 3d 106, 118–19 (Ala. 2011) (affirming an outrage judgment against a physician who, when asked by a teenage boy’s mother to counsel the boy about the unhappiness he experienced as a result of his parents’ divorce, instead began exchanging addictive prescription drugs for sex for a number of years, resulting in the boy’s drug addiction). While the court has indicated that the tort of outrage is not limited to these circumstances, Little, 72 So. 3d at 1172–73, they are markedly different from in kind and degree from the incidents giving rise to this case, and the plaintiffs have not presented evidence to the court to make such a broad deviation from Alabama case law as would be the case were it to conclude the plaintiffs’ exposure to Freeze +P constituted the tort of outrage. Additionally, the court believes that the same lack of evidence that the defendant S.R.O.s’ actions were motivated by ill will toward the plaintiffs that supported the court’s conclusion that the defendant S.R.O.s are entitled to state agent immunity also counsels against finding the defendants’ behavior amounted to conduct “‘so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized world.’”Id. at 1173 (quoting Horne v. TGM Assocs., L.P., 56 So. 3d 615, 631 (Ala. 2010) (defining the tort of outrage).
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sprayed (K.B.)60 and (2) innocent bystanders (P.S.)61 accidentally exposed to the effects of chemical spray. Id. at 6. As a preliminary matter, the court will first address Chief Roper’s contention that the plaintiffs’ claim lacks justiciability. The court will then address the merit of the plaintiffs’ claim before finally turning to the plaintiffs’ contention that they are entitled to injunctive relief.

A. Justiciability

Chief Roper contends that the court lacks subject matter jurisdiction over the

plaintiffs’ class claim because it fails to present a justiciable case or controversy. Doc.

273 at 4–10.

“The objection that a federal court lacks subject-matter jurisdiction

may be raised by a party . . . at any stage in the litigation, even after trial and the entry

of judgment.” Arbeaugh v. Y&H Corp., 546 U.S. 500, 506 (2006) (citing Fed. R. Civ.

P. 12(b)(1)). Consequently, the court is obligated to examine Chief Roper’s

contention that the plaintiffs lack standing and that their claim is moot even though

60 B.D. and T.A.P. assert only individual claims against the defendant S.R.O.s. See doc. 188 at 6–7. T.L.P., B.D., and G.S. were named class representatives, but can no longer be since the court determined they did not suffer a constitutional injury when it concluded their claim failed on the merits. See Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2550 (2011) (quoting E. Tex. Motor Freight Sys., Inc., 431 U.S. 395, 403 (1977) (“[A] class representative must be part of the class and ‘possess the same interest and suffer the same injury’ as the class members.’”). Moreover, it does not appear that T.L.P., B.D., and G.S. were Birmingham City School students at the time of class certification. See doc. 274 at 3.
61 J.W. also asserted a class claim on behalf of bystanders. However, in light of the court’s finding that J.W.’s individual claim fails and because it does not appear he was a student at the time the court certified the class, see doc. 274 at 3, he has no standing to act as a class representative.
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the facts supporting the contentions were established and obvious by, at the absolute latest, August 31, 2012, when the court certified the plaintiffs’ class.62 See doc. 187.
Standing is “perhaps the most important of [the jurisdictional] doctrines.” Am.
Civil Liberties Union of Fla., Inc. v. Dixie Cnty., 690 F.3d 1244, 1249 (11th Cir.
2012) (alteration in original) (quoting Allen v. Wright, 468 U.S. 737, 750).
The three prerequisites for standing are that: (1) the plaintiff have suffered an “injury in fact”—an invasion of a judicially cognizable interest, which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical; (2) there be a causal connection between that injury and the conduct complained of—the injury must be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court; and (3) it be likely, not merely speculative, that the injury will be redressed by a favorable decision. 31 Foster Children v. Bush, 329 F.3d 1255, 1263 (11th Cir. 2003) (citing Bennett v.
Spear, 520 U.S. 154, 162 (1997)). “These three elements ‘constitute[ ] the core of
Article III’s case-or-controversy requirement.’” Id. (citing Steel Co. v. Citizens for a
Better Env’t, 523 U.S. 83, 103–04 (1998)). This is critical because “[t]he exercise of
jurisdiction by the federal courts ‘depends upon the existence of a case or
controversy.’” Id. (quoting North Carolina v. Rice, 404 U.S. 244, 246 (1971)).
Additionally, and relevant here, “‘a case is moot when the issues presented are no
longer live or the parties lack a legally cognizable interest in the outcome.’” Id.
(quoting Powell v. McCormack, 395 U.S. 486, 496 (1969)). “‘Put another way, [a]
62 As to the bystander plaintiffs, the basis for arguing that they lack standing has existed since the inception of this lawsuit in 2010.
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case is moot when it no longer presents a live controversy with respect to which the court can give meaningful relief.’” Fla. Ass’n of Rehab. Facilities, Inc. v. Fla. Dep’t of Health & Rehabilitative Servs., 225 F.3d 1208, 1217 (11th Cir. 2000).
With these general principles in mind, the court makes the following conclusions of law:
1. The plaintiffs’ class claim is not moot. Chief Roper’s position to the contrary is premised on the fact that “none of the named plaintiffs were currently enrolled as students in Birmingham City Schools at the time this litigation proceeded to trial.” Doc. 273 at 5. As a result, Chief Roper contends that “all of their claims were, at a minimum, moot.” Id. The implication—a logical one—is that because all of the named plaintiffs are no longer enrolled in Birmingham City schools, none of them will benefit from the injunction they seek. In spite of the argument’s logic, however, Chief Roper’s position is baffling because in the preceding paragraph, he recites, verbatim, the proper rule governing mootness in a class action: “‘In a class action, the claim of the named plaintiff, who seeks to represent the class, must . . . be live both at the time he brings suit and when the district court determines whether to certify the putative class.’”63 Id. (emphasis added) (quoting Tucker v. Phyfer, 819 F.2d 1030,
63 In the briefing on the defendants’ Rule 52(c) motion, Chief Roper “do[es] not concede” that this rule applies to him, but offers no reason for this stance, other than that the plaintiffs have not argued the rule applies. Doc. 273 at 5. This position carries no weight because courts are “obliged to consider standing sua sponte even if the parties have not raised the issue.” AT&T Mobility, LLC v. Nat’l Ass’n for Stock Car Auto Racing, Inc., 494 F.3d 1356, 1360 (11th Cir.
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1033 (11th Cir. 1987)); see also Sosna v. Iowa, 419 U.S. 393, 402 (1975); Murray v.
Auslander, 244 F.3d 807, 810 (11th Cir. 2001); McKinley v. Kaplan, 177 F.3d 1253,
1256 (11th Cir. 1999).
2. By Chief Roper’s own admission, K.B. and P.S. “were Birmingham City
Schools students at the time the complaint was filed and at the time of certification.”
Doc. 273 at 6. Consequently, because one member of each subset of named plaintiffs
would have benefitted from the relief they seek at the time they filed the complaint
and at the time this court certified their class, the plaintiffs’ class claim is not moot.
3. Alternatively, Chief Roper contends that the plaintiffs lack standing to
represent a class. Chief Roper is partially correct. P.S. cannot serve as a named
plaintiff because Officer Clark did not violate her Fourth Amendment rights. P.S.
2007) (citing Bochese v. Town of Ponce Inlet, 405 F.3d 964, 975 (11th Cir. 2005)). Then, after the close of trial, Chief Roper filed a motion to decertify the class and dismiss all claims against him in his official capacity. Doc. 276. In it, he again notes the rule regarding class action mootness should not apply to this case because the plaintiffs have failed to invoke it. Id. at 4. He also argues that the rule should not apply to this action because it is brought pursuant to 42 U.S.C. § 1983 and that the Supreme Court implicitly overruled the rule in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011). Id. at 4 n. 1. The court agrees with the plaintiffs that the motion is repetitive of Chief Roper’s earlier filings, but because it raises jurisdictional questions, the court must address it. Arbeaugh v. Y&H Corp., 546 U.S. 500, 506 (2006). The court cannot make heads or tails of Chief Roper’s § 1983 argument; it is clear that he believes the class action mootness rule should not apply to the case because it is brought pursuant to § 1983, but not why that is the case. His argument that the Wal-Mart Stores implicitly overruled the rule is undermined by the fact that the Court cited the rule as good law in a case published two years after Wal-Mart Stores. See Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523, 1530 (2013) (“In Sosna, the Court held that a class action is not rendered moot when the named plaintiff’s individual claim becomes moot after the class has been certified.”). As to the rest of Chief Roper’s motion, because the court agrees with the plaintiffs that Chief Roper is essentially rehashing arguments he raised in opposition to class certification in 2012, the motion is denied.
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testified at trial that she was standing nearby when Officer Clark sprayed her sister, G.S., with Freeze +P, and that he inadvertently exposed her to the spray.
4. In Brower v. County of Inyo, the Court stated that:
a Fourth Amendment seizure does not occur whenever there is a governmentally caused termination of an individual’s freedom of movement (the innocent passerby), nor even whenever there is a governmentally caused and governmentally desired termination of an individual’s freedom of movement (the fleeing felon), but only when there is a governmental termination of freedom of movement through means intentionally applied. 489 U.S. 593, 596–97. As Judge Thompson of the Middle District of Alabama has explained, “[s]ince Brower, lower courts addressing the issue of when a ‘seizure’ has occurred have distinguished between situations where officers’ actions are directed toward the particular individual alleging the Fourth Amendment violation, and those in which an injury is instead the ‘unintended consequence of government action.’” Green v. Freeman, 434 F. Supp. 2d 1172, 1175 (M.D. Ala. 2005) (quoting Ansley v. Heinrich, 925 F.2d 1339, 1344 (11th Cir.1991)). “These courts have consistently held that an injury sustained under the former circumstances constitutes a Fourth Amendment seizure, but that one suffered under the latter does not.” Id. Relevant to the facts before the court in Green, Judge Thompson noted that several circuit courts have concluded that, pursuant to Brower, “no Fourth Amendment ‘seizure’ occurs where a hostage is wounded by bullets intended for his or her captor.” Id. (citing Childress v. City of Arapaho, 210 F.3d 1154 (10th Cir. 2000); Medeiros v. O’Connell,
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150 F.3d 164 (2d Cir. 1998); Rucker v. Harford Cnty., 946 F.2d 278 (4th Cir. 1991); Landol-Rivera v. Cosme, 906 F.2d 791 (1st Cir. 1990)).
5. While the Eleventh Circuit has never considered a set of facts as cut-and-dry as those described in these hostage scenarios, its cases too require directed, intentional government action to support a finding of a Fourth Amendment seizure. See Ansley v. Heinrich, 925 F.2d 1339, 1344 (11th Cir. 1991) (“unintended consequences of government action [cannot] form the basis for a [F]ourth [A]mendment violation . . . [c]onsequently, . . . negligent conduct alone absent any intentional government conduct [cannot] form the basis of a section 1983 claim premised on the [F]ourth [A]mendment”).
6. Returning to the facts of this case, while unfortunate, the incident involving P.S. and Officer Clark is roughly analogous to those involving the plaintiffs in Green and the other hostage cases. Like the hostage plaintiffs, P.S. had the misfortune to be in the vicinity of the intended target of a display of force by law enforcement and felt its effects. But, because the law is clearly established that “unintended consequence of government [cannot] form the basis for a [F]ourth [A]mendment violation,” Ansley, 925 F.2d at 1334, any injuries P.S. suffered because Officer Clark accidentally exposed her to Freeze +P do not amount to a Fourth Amendment violation.
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7. Because “‘a class representative must be part of the class and possess the same interest and suffer the same injury as the class members,’” Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2550 (2011) (quoting E. Tex. Motor Freight Sys., Inc. v. Rodriguez, 431 U.S. 395, 403 (1977)), P.S. cannot serve as a named plaintiff for the purpose of representing a class of Birmingham City School students.
8. On the other hand, K.B. has standing to pursue injunctive relief because, as of the time of class certification, she had established a real and immediate threat of future injury as defined by Eleventh Circuit case law.
9. “Because injunctions regulate future conduct, a party has standing to seek injunctive relief only if the party alleges, and ultimately proves, a real and immediate—as opposed to a merely conjectural or hypothetical—threat of future injury.” Church v. City of Huntsville, 30 F.3d 1332, 1337 (11th Cir. 1994) (emphasis in original) (citing City of Los Angeles v . Lyons, 461 U.S. 95, 102 (1983)).
10. Chief Roper argues that, pursuant to City of Los Angeles v. Lyons, K.B. has failed to show that, as of the time of class certification, a sufficient risk existed that an S.R.O. would, again, spray K.B. with Freeze +P for a court to confer standing on K.B., and that, consequently, K.B. cannot represent similarly situated plaintiffs. Doc. 273 at 7–9. In Lyons, police officers stopped Lyons for committing a traffic violation. Lyons, 461 U.S. at 97. Although Lyons did not resist or provoke the officers, they
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subjected him to a chokehold that rendered him unconscious and damaged his larynx. Id. at 97–98. Lyons sued for damages and an injunction to bar future police use of chokeholds absent an immediate threat of deadly force. Id. at 98. The district court granted the preliminary injunction, which the Ninth Circuit affirmed, but the Supreme Court reversed. A sharply divided Court reasoned that Lyons’ assertion of standing rested on mere speculation that police might stop him in the future, and if they did, they might subject him to the challenged chokehold. Id. at 108. The Court concluded that:
[i]n order to establish an actual controversy in this case, Lyons would have had not only to allege that he would have another encounter with the police but also to make the incredible assertion either (1) that all police officers in Los Angeles always choke any citizen with whom they happen to have an encounter, whether for the purpose of arrest, issuing a citation, or for questioning, or (2) that the City ordered or authorized police officers to act in such a manner. Id. at 105–06.
11. The court agrees with Chief Roper that, superficially, Lyons has much in common with the present matter. Both cases involve a plaintiff seeking to enjoin a certain kind of use of force by law enforcement. But, after a close review of Lyons and its treatment in this circuit, the court believes Lyons is distinguishable. In reaching this conclusion, the court is guided by two of this circuit’s cases, Church v. City of Huntsville and 31 Foster Children v. Bush, which distinguished Lyons based on factors that are present in this case. First, in Church, the plaintiffs brought a “[§]
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1983 class action lawsuit . . . on behalf of the homeless residents of Huntsville, Alabama.” 30 F.3d at 1335. The plaintiffs alleged that Huntsville had “deprived them of various constitutional rights as part of a concerted effort to drive them out of the City.” Id. They sought, among other relief, injunctive relief prohibiting Huntsville from “implementing a policy of isolating and/or removing members of the defined class from the City of Huntsville simply because of their status as homeless persons” and “harassing, intimidating, detaining or arresting members of the defined class, solely because of their status as homeless persons, for walking, talking, sleeping, or gathering in parks or other public places in the City of Huntsville.” Id. Over Huntsville’s objections that Lyons controlled the case, the court found the plaintiffs had standing to pursue the injunctive relief they sought. Id. at 1339.
In the second case, 31 Foster Children v. Bush, the plaintiffs filed a suit on behalf of themselves and a state-wide class of foster children contending that various aspects64 of Florida’s foster care system violated their constitutional rights and other federal laws. 329 F.3d 1255, 1261 (11th Cir. 2003). The plaintiffs sought extensive injunctive relief. Id. at 1262. The court considered whether Lyons forestalled the
64 The plaintiffs alleged the defendants’ practices denied and threatened the plaintiffs’ rights to “safe care that meets their basic needs, prompt placements with permanent families, and services extended after their eighteenth birthdays, as guaranteed by substantive due process,” “procedural due process in determining the services they will receive,” “family association with siblings,” “prompt placement with permanent families and to have their medical and educational backgrounds provided to their care givers,” “health screening and followup,” and, “in the case of the black plaintiff foster children, freedom from racial discrimination in the provision of care and services.” 31 Foster Children v. Bush, 329 F.3d 1255, 1261 (11th Cir. 2003).
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plaintiffs’ claims, id. at 1266, before determining that the case was “more like Church v. City of Huntsville than Lyons,” and, relying heavily on Church, determined that the plaintiffs largely65 had standing to pursue the injunctive relief they sought, id.
The Church and 31 Foster Children courts pointed to two factors that they found distinguished those cases from Lyons. The first is that while Lyons involved a member of the general public who had an unfortunate encounter with a police officer, the plaintiffs in Church and 31 Foster Children were involuntary members of a specific group of people who, by definition, had an increased risk of exposure to the challenged behavior. As the Church court explained, “[t]he tenor of the plaintiffs’ complaint . . . is that they are homeless involuntarily. Because of the allegedly involuntary nature of their condition, the plaintiffs cannot avoid future ‘exposure to the challenged course of conduct’ in which the City allegedly engages.” 30 F.3d at 1338. Similarly, the 31 Foster Children court noted that the plaintiffs in that case were “in the custody of the defendants involuntarily and will be until they are returned to their parents, are adopted, or reach the age of majority. They cannot avoid exposure to the defendants’ challenged conduct.” 329 F.3d at 1266.
65 The outcome of 31 Foster Children is not as cut-and-dry as Church because of the number of plaintiffs, the differences in the facts of their circumstances, and the variety of different legal avenues via which they sought relief. The court found that some of the plaintiffs lacked standing because they were no longer in the custody of the state, because they did not adequately plead the elements of a procedural due process claim, and because they failed to satisfy timing requirements necessary to pursue a claim under the Adoption Assistance and Child Welfare Act. 31 Foster Children, 329 F.3d at 1267.
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The second factor that swayed the Church and 31 Foster Children courts is
that, unlike Lyons, the challenged actions in Church and 31 Foster Children were
allegedly the results of official policy. Church, 30 F.3d at 1339; 31 Foster Children,
329 F.3d at 1266 (“The alleged systemic deficiencies in the Florida foster care system
are similar to an injurious policy, and different from the random act at issue in Lyons.
The alleged pattern and practice in this case presents a substantial likelihood that the
alleged injury will occur.”). “When the threatened acts that will cause injury are
authorized or part of a policy, it is significantly more likely that the injury will occur
again.” 31 Foster Children, 329 F.3d at 1266. As the Church court explained, that
was not the case in Lyons:
Lyons alleged that municipal policy authorized the use of chokeholds in situations where the officers are threatened by far less than deadly force. However, that allegation was insufficient to confer standing on Lyons, because it did not necessarily follow that the City either orders or authorizes application of the chokeholds when there is no resistance or other provocation—which is what had happened to Lyons. Instead, the evidence showed that police officers were instructed to use chokeholds only when lesser degrees of force do not suffice and then only to gain control of a suspect who is violently resisting the officer or trying to escape. Because Lyons had not resisted police—and there was no indication he would do so if stopped again in the future—he had no basis to challenge a policy that only authorized use of chokeholds against suspects who resist arrest. Church, 30 F.3d at 1339.
12. Church and 31 Foster Children counsel in favor of finding that K.B. has
presented evidence that, at the time the class was certified, she was at sufficiently
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imminent risk of being exposed to Freeze +P again to have standing to pursue injunctive relief. Like the homeless in Church and the foster children in 31 Foster Children, she is an involuntary member of a specific group that is at an increased risk of exposure to the challenged behavior. School attendance is compulsory.66 S.R.O.s are stationed in all Birmingham public high schools. They carry Freeze +P and have no qualms about using it, even against a group of students who engage in the basic teenage act of gathering around to watch other students fight. These facts align K.B. more closely with the plaintiffs in Church and 31 Foster Children than with Lyons. Moreover, the court heard Chief Roper testify repeatedly that the S.R.O.s acted pursuant to B.P.D. policy when they exposed the plaintiffs, including K.B., to Freeze +P. Consequently, the challenged behavior here, in the words of the 31 Foster Children court, is the product of “injurious policy, and different from the random act at issue in Lyons.” 329 F.3d at 1266.
13. The court turns next to Chief Roper’s contention that it should find that K.B. lacks standing because “[c]ourts must generally be ‘unwilling to assume that the party seeking relief will repeat the type of misconduct that would once again place
66 See Ala. Code § 16-28-3 (“[E]very child between the ages of six and 17 years shall be required to attend a public school, private school, church school, or be instructed by a competent private tutor for the entire length of the school term in every scholastic year . . . .”). While the court acknowledges that students can and do drop out of school, the obvious public policy grounds for encouraging teenagers to complete their high-school education counsels against finding that K.B. lacks standing to represent a class because she could have dropped out of high school, and thus eliminated the possibility of being sprayed with Freeze +P by an S.R.O.
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him or her at risk of that injury.’” Doc. 273 at 8 (citing Honig v. Doe, 484 U.S. 305, 320 (1988)). Chief Roper’s argument traces its origin to O’Shea v. Littleton, in which the Supreme Court first indicated that it “assume[s] that [individuals] will conduct their activities within the law and so avoid prosecution and conviction.” 414 U.S. 488, 497 (1974). The Court in Littleton largely based its decision that the plaintiffs, who sought to enjoin a county magistrate and judge from engaging in illegal bond setting, sentencing, and jury fee practices, failed to make an adequate showing that they were at risk of imminent injury on this assumption. Id. However, this circuit indicated that there are limits to Littleton’s assumption in Georgia Latino Alliance for Human Rights v. Governor of Georgia., a case that involved a challenge to a Georgia law targeting illegal immigration. Among other things, the law
authorize[d] Georgia law enforcement officers to investigate the immigration status of an individual if the officer has probable cause to believe the individual has committed another crime and the individual cannot provide one of the pieces of identification listed in the statute. If the officer verifies that the individual is not lawfully present in the United States, the officer “may take any action authorized by state and federal law,” including detaining the person, transporting the person to a detention facility, or notifying the Department of Homeland Security. 691 F.3d 1250, 1256 (11th Cir. 2012). One of the Georgia Latino Alliance plaintiffs was an undocumented immigrant who resided “permissibly in the United States but ha[d] not acquired the requisite documentation to stave off the investigatory detention permitted by” the challenged law. Id. at 1258. She contended that she “face[d] a
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credible threat of detention . . . as she possesse[d] none of the listed documentation to prove that she ha[d] permission to remain temporarily in the United States.” Id. at 1258–59. Because the challenged law empowered law enforcement to “investigate the immigration status of an individual [only] if the officer ha[d] probable cause to believe the individual has committed another crime,” the defendants argued that the court should be unwilling to find the undocumented worker had standing to pursue injunctive relief because it “must assume that [the p]laintiff[] ‘will conduct [her] activities within the law and so avoid prosecution and conviction.’” Id. at 1259 (quoting Littleton, 414 U.S. at 497). The court rejected this argument, noting that “[w]hereas in Littleton the alleged unconstitutional conduct could only result from an actual legal violation, prosecution, and conviction for that crime, here all that is necessary for application is an officer’s finding of probable cause that a legal violation has occurred.” Id. (emphasis in original). The court further noted that “uncontradicted declarations from three experienced law enforcement officers . . . confirm that any minor traffic violation such as failure to use a turn signal or failure to come to a complete stop can provide the requisite probable cause.” Id.
14. K.B. is more like the Georgia Latino Alliance plaintiffs than the Littleton plaintiffs, in that K.B.’s encounter with Officer Smith demonstrates that a minor disturbance is the only thing necessary to trigger the injury K.B. fears. That is a far cry from the lengthy, specific chain of events that the Lyons and Littleton courts
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rejected as too attenuated to confer standing. Indeed, the circumstances under which the S.R.O.s sprayed the plaintiffs in this case with Freeze + P demonstrate that a variety of normal adolescent behavior is sufficient to result in S.R.O.s spraying students with Freeze +P.
15. To the extent that Chief Roper raises concerns that by conferring standing on K.B., the court will be sanctioning behavior that falls outside the confines of the law, the court notes that while the question of whether K.B. committed a crime is not an issue in this case, the court doubts very much that by standing outside a school building and sobbing, K.B. behaved unlawfully. Moreover, as Georgia Latino Alliance illustrates, all that is necessary for K.B.’s feared injury to occur is for an S.R.O. to believe K.B. poses a sufficient threat to justify the use of Freeze +P, even though K.B.’s behavior may actually be perfectly innocuous. See 691 F.3d at 1259 (“[H]ere all that is necessary for application is an officer’s finding of probable cause that a legal violation has occurred.”).
16. The fact that although K.B. was arrested, she—nor indeed, any of the plaintiffs—did not face legal ramifications for the behavior that caused Officer Smith to spray her with Freeze +P is a further indication that her actions were within the confines of the law. Additionally, the court notes that at trial, it heard disturbing testimony from Officer Henderson and Nevitt that seemed to suggest that they always
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arrest students they spray with Freeze +P as a post-hoc justification of their use of force. 2/3/15 at 5; 2/2/15 at 60.
17. In sum, because K.B. is an involuntary member of a group of people who have an increased risk of being exposed to Freeze +P compared to the population at large and because the S.R.O.s’ use of Freeze +P is pursuant to B.P.D. policy, the court finds that, based on this circuit’s precedent, she has standing to pursue injunctive relief against Chief Roper.
B. K.B.’s class claim against Chief Roper
K.B. pursues a claim against Chief Roper in his official capacity on behalf of herself and a certified class of Birmingham City Schools students for municipal liability under 42 U.S.C. § 1983. Doc. 188 at 57–58. “[A] suit against a governmental officer ‘in his official capacity’ is the same as a suit ‘against [the] entity of which [the] officer is an agent,’” McMillian v. Monroe Cnty., 520 U.S. 781, 785 n. 2 (1997) (quoting Kentucky v. Graham, 473 U.S. 159, 165 (1985)). Moreover, “municipal officials who have ‘final policymaking authority’ may by their actions subject the government to § 1983 liability.” City of St. Louis v. Praprotnik, 485 U.S. 112, 123 (1988). The parties do not dispute that Chief Roper is the final policymaker of the B.P.D. 2/3/15 at 19. Consequently, Chief Roper’s official actions subject the B.P.D. to liability.
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“A municipality may be liable under § 1983 for the actions of its police officers only if the municipality is ‘found to have itself caused the constitutional violation at issue; it cannot be found liable on a vicarious liability theory.’”67 Ludaway v. City of Jacksonville, Fla., 245 F. App’x 949, 951 (11th Cir. 2007) (quoting Skop v. City of Atlanta, Ga., 485 F.3d 1130, 1145 (11th Cir. 2007)). “‘It is only when the execution of the government’s policy or custom . . . inflicts the injury that the municipality may be held liable under § 1983.’” Id. (quoting Gold v. City of Miami, 151 F.3d 1346, 1350 (11th Cir. 1998)). “Thus, to establish municipal liability under § 1983, [a] plaintiff must show that: (1) his constitutional rights were violated, (2) the municipality had a custom or policy that constituted deliberate indifference to his constitutional rights, and (3) the policy or custom caused the violation of his constitutional rights.” Id. (citing McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir. 2004)).
67 K.B. seems to argue that her municipal liability claim should be evaluated with the far easier to satisfy standard than the court uses to evaluate § 1983 claims against individual defendants. Doc. 274 at 26 (quoting Bannum, Inc. v. City of Fort Lauderdale, 901 F.2d 989, 997 (11th Cir. 1990)) (“To prevail on a § 1983 claim, Plaintiffs must show ‘(1) that the act or omission deprived plaintiff of a right, privilege or immunity secured by the Constitution or laws of the United States, and (2) that the act or omission was done by a person acting under color of law.’”). This position is disingenuous for two reasons. First, K.B. is well aware of the thirty-five years of jurisprudence beginning with Monell v. Dep’t of Soc. Servs. of City of N.Y. in which the Supreme Court has developed and refined a heightened standard for municipal liability under § 1983. Second, the case K.B. cites in support of her erroneous position discusses that heightened standard. See Bannum, 901 F.2d at 997.
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K.B. advances two theories of municipal liability against Chief Roper. The first is that Chief Roper violated her Fourth Amendment rights “[b]y promulgating an unconstitutional policy as applied in the Birmingham schools and by condoning unconstitutional customs and practices with respect to the use of chemical weapons in the Birmingham Schools.” Doc. 188 at 57. The second is that Chief Roper violated her Fourth Amendment rights “[b]y failing to train, supervise, and monitor the use of Freeze +P by S.R.O.s in the Birmingham schools.” Id. at 59. As will become apparent, there is a great deal of overlap between the two theories, but because they implicate slightly different facts, the court will address each in turn.
1. K.B.’s Policy and Custom Claim
K.B. first contends that Chief Roper rendered the city of Birmingham liable for violating her Fourth Amendment rights by promulgating an unconstitutional policy or custom. For the purposes of our analysis here, “‘[a] policy is a decision that is officially adopted by the municipality, or created by an official of such rank that he or she could be said to be acting on behalf of the municipality.’” Cooper v. Dillon, 403 F.3d 1208, 1221 (11th Cir. 2005) (quoting (quoting Sewell v. Town of Lake Hamilton, 117 F.3d 488, 489 (11th Cir. 1997)). “‘A custom is a practice that is so settled and permanent that it takes on the force of law.’” Id. (quoting Sewell, 117 F.3d at 489 (11th Cir. 1997)). If, as here, “a facially-lawful municipal action is alleged to
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have caused a municipal employee to violate a plaintiff’s constitutional rights, the plaintiff must establish ‘that the municipal action was taken with “deliberate indifference” as to its known or obvious consequences.’” Am. Fed’n of Labor and Cong. of Indus. Orgs. v. City of Miami, Fla., 637 F.3d 1178, 1187 (11th Cir. 2011) (quoting Bd. of Cnty. Comm’rs of Bryan Cnty., Okla. v. Brown, 520 U.S. 397, 404 (1997)). “‘[D]eliberate indifference’ is a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action.” Brown, 520 U.S. at 410. It may be shown through “‘evidence of a history of widespread prior abuse,’” Gold v. City of Miami, 151 F.3d 1346, 1351 (11th Cir. 1998) (quoting Wright v. Shepherd, 919 F.2d 665, 674 (11th Cir. 1990)), or “prior incident[s] in which constitutional rights were similarly violated.” Id. (citing Church, 30 F.3d at 1332)). Similarly,
To prove § 1983 liability against a municipality based on custom, a plaintiff must establish a widespread practice that, “although not authorized by written law or express municipal policy, is so permanent and well settled as to constitute a custom or usage with the force of law.” Brown v. City of Fort Lauderdale, 923 F.2d 1474, 1481 (quoting City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988)). Finally, “‘it is not sufficient for a government body’s policy to be tangentially related to a constitutional deprivation.’ The policy must be the ‘moving force’ behind the constitutional injury.”Am. Fed’n of Labor, 637
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F.3d at 1187 (quoting Cuesta v. Sch. Bd. of Miami–Dade Co., 285 F.3d 962, 967 (11th Cir. 2002)).
The court makes the following conclusions of law:
1. The defendant S.R.O.s made a number of remarkable comments at trial. On cross-examination, it came to light that Officer Smith made an off-color joke during his deposition that chemical spray benefits the victim because it is an effective nasal decongestant. 2/3/15 at 233–34. Officer Benson testified that she never tried to separate students who were fighting because she feared that she would hurt herself. 2/3/15 at 183–84. On cross-examination, Officer Benson also confirmed that she testified in a deposition that she arrested students for cursing. Id. at 178. Officer Nevitt testified that he considers mace safer than hands-on techniques when small, female students are involved because of the size differential. 2/2/15 at 125–26; c.f. Pl. Ex. 1 at 7 (Revision 9, which states that “[w]hile soft empty hand techniques may inflict pain to gain control, they generally will not cause any form of bruising or injury to the subject”); 1/26/15 at 141 (Chief Coulombe’s testimony that he used similar controls hundreds if not thousands of times during his thirty-year career, and he never injured anyone).
2. These remarks are worth mentioning, but ultimately they bear little on the court’s analysis, which is simple. At trial, the court heard testimony from multiple
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defendant S.R.O.s and, most importantly, Chief Roper, that Birmingham police officers are allowed to respond to a given level of resistence with a degree of force up to two levels higher than the resistance at issue. 1/23/15 at 150; 2/2/15 at 166; 2/3/15 at 54. Chief Roper explicitly testified that this practice meant that chemical spray, a Level 4 use of force, is a permissible response to verbal noncompliance, which is Level 2 resistance. 1/23/15 at 128. In short, the interplay between B.P.D. policy and custom explicitly permitted Officer Smith to spray K.B. with Freeze +P, which the court previously determined was excessive force.
3. As disturbing as all of this is, as explained above, Chief Roper is not liable for maintaining this state of affairs unless K.B. can point to evidence of a history of widespread prior abuse or similar prior incidents in which S.R.O.s violated constitutional rights. At trial, the plaintiffs submitted into evidence 110 use-of-force reports describing incidents in which S.R.O.s sprayed Birmingham City Schools students with Freeze +P between 2006 and March 2014. The incidents, which involve some in which the students made verbal threats, include:
• Officer Joel Davis, who is not a defendants in this case, spraying a student because he “was very loud and boisterous and created a big commotion.” Pl. Ex. 15 at 0052. In the arrest narrative, Officer Davis noted that the student “had to be maced because he was completely out of control.” Id. But, it appears from the report that the student was merely, albeit loudly and profanely, arguing with an assistant principal and that Officer Davis was physically restraining the student when he sprayed him. Id.
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• Officer Tarrant spraying a student for cursing and refusing to leave a classroom. Id. at 0082.
• Officer Tarrant spraying a student who said “Fuck you motherfucker mace me” and was “using abusive and obscene language . . . in a loud and boisterous manner.” Id. at 0116.
• Officer Eric Poole, who is not a defendant in this case, spraying a student for refusing to leave an area. Id. at 0137.
• Officer Victor Langford, who is not a defendant in this case, spraying a student for refusing to stop cursing at an assistant principal. Id. at 0158.
• Officer C. Thomas, who is not a defendant in this case, spraying a student for being “unusually loud and boisterous [and] disrupting the educational environment.” Id. at 0210.
• Officer Tarrant spraying a student for cursing loudly about police. Id. at 0229.
• Officer Venus Feagins, who is not a defendant in this case, spraying a student for “being irate and disorderly in the classroom.” Id. at 0298.
• Officer Feagins spraying a student for refusing to stop cursing at another student. Id. at 0332.
4. The recurring theme here is S.R.O.s using Freeze +P to subdue students who,
to be sure, are loudly misbehaving, but who do not pose an immediate threat of
physical harm to other students and school staff, the officers, or themselves. In fact,
except for one student, none of the other students in the 110 incidents had any
weapons.68 While using Freeze +P may be a faster and easier way to subdue a “loud
and boisterous” teenager than other techniques, speed and convenience to the officer
are not factors that influence whether an officer’s use of force is excessive. Rather,
68 In one incident, an S.R.O. confiscated a box cutter from a student, then subsequently sprayed her with Freeze +P when she attempted to attack another student. Pl. Ex. 15 at 0159.
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as the court has previously explained, the inquiry is whether the force was reasonable.
Here, the reports describe a pattern of incidents in which S.R.O.s used force in a manner that was disproportionate to the threat posed by the student at issue.69 In short,
they describe S.R.O.s using excessive force in violation of the Fourth Amendment.
5. At trial, Chief Roper testified that he reviews all use-of-force reports.70
1/23/15 at 86. Consequently, the court finds that he was aware of a pattern of ongoing
constitutional violations that resulted from B.P.D. policy or custom and nonetheless
continued to maintain the policy or custom. To the extent that the significant
shortcomings described above are more aptly characterized as the later, the court
finds that the use-of-force reports establish “a widespread practice that, ‘although not
authorized by written law or express municipal policy, is so permanent and well
settled as to constitute a custom or usage with the force of law.’” Brown v. City of
Fort Lauderdale, 923 F.2d at 1481 (quoting Praprotnik, 485 U.S. at 127).
69 In this circuit, courts evaluate Fourth Amendment excessive force claims by considering “1) the need for the application of force, 2) the relationship between the need and the amount of force used, and 3) the extent of the injury inflicted.” Vinyard, 311 F.3d at 1347 (citing Leslie, 786 F.2d at 1536). While the reports, not surprisingly, are silent as to the pain experienced by the students the S.R.O.s sprayed, the court finds, based on the testimony by the plaintiffs in this case about the pain they experienced after S.R.O.s sprayed them with Freeze +P, that it was not so de minimus as to counsel tipping the balancing test in Chief Roper’s favor, especially given the court’s conclusion that the amount of force used here significantly exceeded the amount needed.
70 “[M]unicipal policymakers cannot evade liability for unconstitutional acts by delegation.” Bannum, Inc. v. City of Fort Lauderdale, 901 F.2d 989, 998 (11th Cir. 1990) (citing Praprotnik, 485 U.S. at 127).
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6. Since the use-of-force reports more or less make or break K.B.’s claim
against Chief Roper, he unsurprisingly raises several objections to them.71 First, Chief
Roper contends that the incidents described in the use of force reports are
insufficiently similar to establish deliberate indifference.72 See doc. 273 at 19 (quoting
Mercado v. City of Orlando, 407 F.3d 1152, 1162 (11th Cir. 2005)) (“[P]rior
incidents demonstrating notice must have ‘involved factual situations that are
substantially similar to the case at hand.’”). Here, K.B. alleges that Officer Smith
inflicted excessive force on her by spraying her with Freeze +P because she was
verbally non-compliant. The use-of-force reports describe incidents in which, based
on the content of the reports, S.R.O.s inflicted excessive force on students by
spraying them with Freeze +P because they were verbally noncompliant. They are
sufficiently similar to establish deliberate indifference.
71 In addition to the cases discussed supra, perhaps in an attempt to highlight a circumstance where a report generated by a municipality was nonetheless insufficient to put the municipality on notice of unconstitutional behavior, Chief Roper also points to Church v. City of Huntsville. In Church, the Eleventh Circuit found a demographic study commissioned by the city noting that “street people in Huntsville had been ‘rousted’ with some regularity by police and other city officials,” insufficient to put final policymakers on notice of allegedly unconstitutional use of force against the homeless. 30 F.3d at 1347. However, Church is not particularly relevant to the present matter. The Church court found the report failed to establish deliberate indifference because “there is no evidence from which a trier of fact could conclude that ‘roust[ing]’ involved a violation of the plaintiffs’ constitutional rights,” “[t]he study’s use of the single word ‘rousted’ provides no information on the circumstances in which force was used, nor the amount of force applied,” and, most importantly, “the fact that the study was commissioned by an unidentified City department does not demonstrate that the final policymakers, here the City Council and the Mayor, were aware of its content.” Id. In contrast, the use-of-force reports here are not vague (nor does Chief Roper raise that contention) and Chief Roper was indisputably aware of them.
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7. Next, Chief Roper directs the court to Brooks v. Scheib, in which the court found ten citizen complaints about an officer’s propensity to use excessive force were insufficient to put municipal officers on notice of past police misconduct. 813 F.2d 1191, 1193 (11th Cir. 1987). The problem with applying Brooks to the present matter is that the Brooks court found the complaints insufficient notice of problematic behavior not because of their number, but because they were citizen complaints. See id. (“Indeed, the number of complaints bears no relation to their validity.”). As the Brooks court noted,
[i]n Scheib’s case, for example, there is a logical explanation as to why a large number of complaints have been lodged against him: Officer Scheib patrolled a high crime area. A significant percentage of those Scheib arrested were continually in trouble with the law. These experienced “customers” frequently use citizens’ complaints as a means of harassing officers who arrest them. Id. Speaking more generally, the court notes that people who believe they have suffered a wrong at the hands of law enforcement are more likely to complain and they have an incentive to exaggerate or lie outright. Perhaps seeking to leverage his position, Chief Roper notes that “B.P.D.’s internal report of the use of force are not sustained findings of the unconstitutional use of excessive force. Thus they are insufficient to show notice as a matter of law.” Doc. 279 at 5 (citing Brooks, 813 F.2d at 1193). While Chief Roper is technically correct that the use-of-force reports are unsubstantiated, he glosses over the fundamental difference between the reports and the complaints deemed insufficient evidence of notice in Brooks: the use-of-force
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reports were prepared by the S.R.O.s who sprayed students with Freeze +P. They had no incentive to exaggerate the details of the circumstances under which they used Freeze +P so as to make it appear that they had inflicted excessive force when in fact they had not; to the contrary, just as the citizens in Brooks had a motive for exaggerating about the officer’s alleged misconduct, the S.R.O.s had a motive for minimizing the amount of force they reported using and exaggerating the student behavior that warranted its use. In other words, to the extent that the use-of-force reports are inaccurate, because they were self-prepared by the S.R.O.s who sprayed students with Freeze +P, they are more likely to describe the S.R.O.s as less culpable rather than more culpable than they actually were. Consequently, neither Brooks nor the unsubstantiated nature of the use-of-force reports counsels against finding that the reports put Chief Roper on notice of S.R.O.s’ unconstitutional use of Freeze +P.
8. To the extent that Chief Roper seeks to establish that K.B. must overcome a certain numerical threshold, the court notes that in Depew v. City of St. Marys, Ga., the Eleventh Circuit upheld a jury verdict for municipal liability against the defendant based on four or five incidents of police brutality, finding that
[t]he evidence revealed several incidents involving the use of unreasonable and excessive force by police officers. Therefore, the city had knowledge of improper police conduct, but failed to take proper remedial action. The continued failure of the city to prevent known constitutional violations by its police force is precisely the type of informal policy or custom that is actionable under section 1983.
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787 F.2d 1496, 1499 (11th Cir. 1986); see also Church, 30 F.3d at 1345 (citing Depew approvingly). Three of the alleged victims testified, and testimony was elicited from city council members regarding the other two. Id. at 1497–98. In light of Depew, the court finds that eleven incidents—those involving K.B. and B.D., in addition to the nine described above—are sufficient to establish that S.R.O.s’ use of excessive force when spraying students with Freeze +P was sufficiently widespread to trigger municipal liability under § 1983.
9. Moving away from the use-of-force reports, Chief Roper contends that K.B.’s policy or custom claim fails because K.B. has failed to establish a direct causal link between the challenged policy or custom and the deprivation of her rights. Doc. 273 at 21–23. Although Chief Roper is correct that “[a] municipality cannot be liable unless its ‘policy or allegedly inadequate training was the “moving force” behind the plaintiffs’ injuries,’” id. at 21 (citing Best v. Cobb Cnty., Ga., 239 F. App’x 501, 504 (11th Cir. 2007), Chief Roper fails to explain how the policy or custom failed to cause K.B.’s injuries or point to an alternative cause. “Issues raised in a perfunctory manner, without supporting arguments and citation to authorities, are generally deemed to be waived.” Cont’l Tech Serv., Inc. v. Rockwell Int’l Corp, 927 F.2d 1198, 1199 (11th Cir. 1991).
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10. More to the point, the court cannot conceive how Officer Smith’s decision to spray K.B. with Freeze +P can be anything other than inextricably intertwined with a policy or custom that explicitly permitted him to spray her under the circumstances. It logically follows that the custom caused Officer Smith to consider spraying K.B. with Freeze +P to be an appropriate use of force.
11. In sum, the interplay between the B.P.D.’s use of force classifications and its custom of permitting officers to respond to resistance with a use of force two steps higher than that resistance caused K.B.’s injury. Moreover, the court finds that the use-of-force reports generated in connection with each use of Freeze +P put Chief Roper on notice of ongoing excessive use of force by S.R.O.s, and by maintaining the status quo, he expressed deliberate indifference to the constitutional rights of Birmingham City Schools students. Consequently, the court concludes that Chief Roper rendered the city of Birmingham liable to K.B. and the class she represents.
12. The court now turns it attention to the decontamination portion of K.B.’s claim against Chief Roper. As the court explained above, by failing to promptly decontaminate K.B., Officer Smith subjected her to excessive force.
13. At the outset, the court notes that it agrees with K.B. that the policy is vague and somewhat contradictory. On one hand, the policy states the “[t]he effects of chemical spray will begin to lessen in 10–15 minutes, with no treatment being
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administered,” Pl. Ex. 3 at 3, which could reasonably signal to an officer that no decontamination efforts are necessary. On the other hand, on the same page, the policy states that “[f]ollowing the use of chemical spray the officer will ensure that the subject receives adequate decontamination as soon as practical.” Id. Problematically, the policy provides officers with no guidance on what constitutes “adequate decontamination.”
14. At trial, Chief Roper offered some clarification:
The policy requires officers to take adequate decontamination efforts. And so under decontamination, that can be water. That can be time. That can be air. Our policies also requires [sic] the officers to notify the Birmingham Fire and Rescue73. . . . [I]f you’re asking me does the policy specifically say large qualities of water, then the policy does not say that. 1/23/15 at 68. In other words, Chief Roper testified that officers have the opportunity to rely on “time” as an adequate decontamination effort. The problem with this is that the court heard no testimony at trial indicating that a meaningful distinction exists between “relying on time” and “doing nothing.”
15. The court certainly acknowledges that there are many situations in which time may be the only decontamination effort available to an officer; the officer may not have access to copious amounts of water or briskly moving air, or a subject’s
73 It was undisputed at trial that Birmingham Fire Rescue Services personnel did nothing to decontaminate the plaintiffs. Moreover, the defendant S.R.O.s conceded that this was generally the case. See e.g., 2/3/15 at 97.
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continued resistance may pose such a danger to the officer, bystanders, or the subject himself that decontamination is not safe or practical.
16. Those concerns, however, were not at play with regard to the plaintiffs in this case, nor are they concerns in schools generally. After the defendant S.R.O.s sprayed the plaintiffs with Freeze +P, the plaintiffs became compliant, and the incidents occurred in school facilities where there was access to multiple sources of copious amounts of flowing water.
17. Because the court has determined that adequate decontamination after exposure to Freeze +P, absent the exigent circumstances described above, requires exposure to briskly moving air and an opportunity to wash with copious amounts of flowing water, whereas B.P.D. policy permits an officer to take no measures at all, the court concludes that B.P.D.’s policy regarding decontamination permits the unconstitutional infliction of excessive force.
18. Generally in the municipal liability context, courts must infer from the evidence whether the requisite municipal officials were on notice of an unconstitutional custom. In light of Chief Roper’s testimony, however, the court faces no such challenge here.
19. Here, Officer Smith imposed excessive force on K.B. by failing to adequately decontaminate her after spraying her with Freeze +P. In fact, the court
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heard no testimony indicating that Officer Smith did anything to decontaminate K.B. He did so in reliance on a subpar policy that permits S.R.O.s to spray students with Freeze +P and then do nothing to alleviate their pain. In other words, the policy caused K.B.’s injury. Chief Roper knew of the custom and condoned it. Taken together, these facts are sufficient for the court to hold the B.P.D. liable through Chief Roper for Officer Smith’s failure to decontaminate K.B.
2. K.B.’s Failure-To-Train Claim
K.B. also contends that Birmingham is liable to her and the class she represents through Chief Roper for B.P.D.’s failure to adequately train its officers. Doc. 188 at 58. A failure-to-train claim is a kind of deficient policy or custom claim. See City of Canton, Ohio v. Harris, 489 U.S. 378, 389 (1989) (“Only where a municipality’s failure to train its employees in a relevant respect evidences a ‘deliberate indifference’ to the rights of its inhabitants can such a shortcoming be properly thought of as a city ‘policy or custom’ that is actionable under § 1983.”). Consequently, as with traditional policy or custom claims,
[i]f a program does not prevent constitutional violations, municipal decisionmakers may eventually be put on notice that a new program is called for. Their continued adherence to an approach that they know or should know has failed to prevent tortious conduct by employees may establish the conscious disregard for the consequences of their action—the “deliberate indifference”—necessary to trigger municipal liability.
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Brown, 520 U.S. at 407 (citing Cannon, 489 U.S. at 1209 (O’Connor, J. concurring
and dissenting in part) (“[M]unicipal liability for failure to train may be proper where
it can be shown that policymakers were aware of, and acquiesced in, a pattern of
constitutional violations . . . .”)).74
The court makes the following conclusions of law:
1. With regard to the defendant S.R.O.s’ initial use of Freeze +P, the court
heard testimony suggesting several potential shortcomings in B.P.D.’s training
74 K.B. also seems to argue that Birmingham is liable under a failure-to-train theory because Chief Roper was “on notice of ‘the likelihood that the situation will recur and the predictability that an officer lacking specific tools to handle that situation will violate citizens’ rights.’” Doc. 274 at 50 (quoting Brown, 520 U.S. at 409). This language from Brown is an allusion to the Court’s indication in City of Canton that, in combination with a failure to train, a single constitutional violation could potentially give rise to municipal liability if “in light of the duties assigned to specific officers or employees the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need.” 489 U.S. at 390. In other words, under those circumstances, a plaintiff would not need to show a pattern of unconstitutional behavior to meet the deliberate indifference requirement for municipal liability.
However, the Court has distanced itself from the position it took in Canton:
In leaving open in Canton the possibility that a plaintiff might succeed in carrying a failure-to-train claim without showing a pattern of constitutional violations, we simply hypothesized that, in a narrow range of circumstances, a violation of federal rights may be a highly predictable consequence of a failure to equip law enforcement officers with specific tools to handle recurring situations.
Brown, 520 U.S. at 409. As the Eleventh Circuit has noted, “to date, the Supreme Court has given only a hypothetical example of a need to train being ‘so obvious’ without prior constitutional violations: the use of deadly force where firearms are provided to police officers.” Gold, 151 F.3d at 1352. Although it seems “obvious” in the layman’s sense of the word that the circumstances at issue in this case would lead to an unconstitutional use of force, in light of the Court’s unwillingness to apply its aside in Canton in other cases and K.B.’s alternative avenues to relief, the court declines to base its conclusion on an obvious need for training.
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regimen that have a connection to officers’ use of force. In particular, half of the defendant S.R.O.s testified that they had not received training in soft empty hand and pressure point techniques since their initial training at the police academy. See 2/2/15 at 47; 2/3/15 at 166; id. at 236. This fact is relevant because the plaintiffs contend that these techniques are an appropriate alternative to chemical spray, and, as Chief Coulombe testified, they are a skill set that officers need to maintain over time. 1/27/15 at 63. The court also heard testimony that the B.P.D. either failed to educate its officers about the differences between Revision 9 and Revision 10, or waited for over a year after the implementation of Revision 10 to do so. 2/2/15 at 49, 54–55; id. at 162; 2/3/15 at 184. This is relevant here because Revision 10, unlike Revision 9, explicitly instructs officers to take into account, among other factors, an individual’s age and size when determining whether a given degree of force is appropriate. Pl. Ex. 2 at 11. More generally, some of the defendant S.R.O.s’ testimony called into question whether they had received adequate S.R.O.-specific training, 2/2/15 at 60, and, in particular, id. at 205, whether they had received adequate training regarding adolescent-specific deescalation techniques.
2. While the court agrees with the plaintiffs that these deficiencies, especially with regards to the lack of soft hands and pressure point techniques training, are problematic, it is not convinced that they are the “moving force” behind the plaintiffs’ injuries. See Best, 239 F. App’x at 504. None of the defendant S.R.O.s testified that
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they sprayed students because they felt they did not know how to employ lesser degrees of force. Rather, they testified that they sprayed students, even those engaging solely in verbal resistance, because B.P.D. policy allowed them to do so. As explained above, it seems clear to the court that, with regard to Officer Smith’s initial use of Freeze +P, the “moving force” behind K.B.’s injuries was that, per B.P.D. policy or custom, officers are allowed to respond to verbal noncompliance with Freeze +P. In sum, K.B.’s failure-to-train argument is really just another way of getting at her policy-or-custom claim, and because this approach lacks sufficient causation, the court rejects it.
3. With regard to the decontamination component of K.B.’s claim, five of the six75 defendant S.R.O.s testified that, based on their training, they believed that the appropriate methods for decontamination were time, air, and calling Birmingham Fire Rescue Services. 2/2/15 at 12; id. at 262; 2/3/15 at 30; id. at 225; 2/4/15 at 70. As the court previously explained, however, absent circumstances that make its use impractical, providing affected students with copious amounts of water and soap is a necessary component of decontamination. Consequently, the S.R.O.s’ training was
75 At trial, rather than ask Officer Benson what decontamination measures an S.R.O. was supposed to undertake after spraying a student with Freeze +P, counsel for the plaintiffs referenced Officer Benson’s deposition testimony that she “did not have any understanding of the appropriate procedures for decontamination of someone who has been sprayed.” 2/3/15 at 189.
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constitutionally inadequate.76 Nonetheless, this claim is fundamentally no different that K.B.’s policy or custom claim—in the policy or custom claim, the policy was unconstitutional, and here, the S.R.O.s were trained pursuant to the unconstitutional policy. Therefore, in light of the court’s findings with respect to the policy or custom claim, the court finds that K.B.’s failure to train claim is subsumed by that claim.
C. K.B.’s claim for injunctive relief
K.B. seeks an injunction requiring Chief Roper and his agents, employees, and all persons acting in concert with them to cease their unconstitutional use of Freeze +P. More specifically, K.B. seeks “a temporary injunction barring the use of chemical spray in Birmingham City high schools until and unless Chief Roper authorizes policies, training, and supervision that conform with constitutional norms, including the input from the [p]laintiffs and oversight by the [c]ourt.” Doc. 274 at 53.
According to well-established principles of equity, a plaintiff seeking a permanent injunction must satisfy a four-factor test before a court may grant such relief. A plaintiff must demonstrate: (1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.
76 Moreover, the court notes that in spite of testifying that time and air were sufficient decontamination measures, of the six defendant S.R.O.s, only Officer Henderson took a student outside after spraying her with Freeze +P.
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eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 390 (2006) (citing Weinberger v. Romero—Barcelo, 456 U.S. 305, 311–313 (1982); Amoco Prod. Co. v. Gambell, 480 U.S. 531, 542 (1987)).
Chief Roper contends that Lyons, which the court previously discussed in its standing analysis, bars K.B. from seeking injunctive relief. Doc. 273 at 24. In Lyons, after concluding Lyons lacked standing because his contention that the police were likely to subject him to an allegedly unconstitutional chokehold in the future did not allege a sufficiently imminent injury, the Court stated that:
Lyons fares no better if it be assumed that his pending damages suit affords him Article III standing to seek an injunction as a remedy for the claim arising out of the October 1976 events. The equitable remedy is unavailable absent a showing of irreparable injury, a requirement that cannot be met where there is no showing of any real or immediate threat that the plaintiff will be wronged again—a likelihood of substantial and immediate irreparable injury. The speculative nature of Lyons’ claim of future injury requires a finding that this prerequisite of equitable relief has not been fulfilled. Lyons, 461 U.S. at 111. However, in this circuit, “[a]lthough the irreparable-injury requirement cannot be met absent a real or immediate threat that the plaintiff will be wronged again,” Thomas v. Bryant, 614 F.3d 1288, 1318 (11th Cir. 2010) (citing Lyons, 461 U.S. at 111), “it is also well-established that injunctive relief is appropriate ‘to prevent a substantial risk of serious injury from ripening into actual harm,’” id. (citing Farmer v. Brennan, 511 U.S. 825, 845 (1994)). “In such circumstances, the irreparable-injury requirement may be satisfied by demonstrating
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a history of past misconduct, which gives rise to an inference that future injury is imminent.” Id. (citations omitted).
Consistent with these cases, the court makes the following conclusions of law.
1. At trial, the court heard testimony and the parties submitted evidence that between 2006 and 2014, at a bare minimum, S.R.O.s have sprayed eleven Birmingham City School students solely for verbal noncompliance. In fact, the defendant S.R.O.s readily admit that they consider the use of Freeze +P as an appropriate response to students who refuse their commands, for example, to stop crying, or who simply challenge them by backtalking or cursing at them. Moreover, based on the defendant S.R.O.s’ testimony about their decontamination practices and Chief Roper’s testimony about the B.P.D.’s decontamination policy, the court finds it reasonable to assume that during the same period, S.R.O.s failed to adequately decontaminate any of the 199 students they sprayed with Freeze +P. Critically, the defendant S.R.O.s uniformly testified that they believed their actions were permissible, both with regard to the initial spraying77 and with regard to decontamination. Chief Roper concurred. In short, K.B. has submitted evidence establishing a history of misconduct, and based on the defendants’ attitudes at trial,
77 Policing is certainly a challenging profession that exposes officers to many dangers. Officers are repeatedly called upon to make split second decisions to protect citizens, their colleagues, and themselves. Still, one has to question whether a police department should have as standard practice a policy that permits officers in a school setting to use Freeze +P to respond to general verbal non-compliance by teenagers.
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that misconduct is unlikely to cease without the court’s intervention. Consequently, K.B. has satisfied the injury requirement for injunctive relief.
2. Chief Roper next contends that K.B. is not entitled to injunctive relief because damages afford her an adequate remedy at law. Doc. 273 at 25. This stance ignores both the pattern of misconduct at issue here and the class nature of this action. If the court adopts Chief Roper’s position, S.R.O.s can continue to commit constitutional violations with impunity as long as they are willing to pay damages. Because the damages available with this kind of claim are relatively minor, the S.R.O.s will be further disincentivized from modifying their behavior. For this reason, the court does not believe that damages afford K.B. an adequate remedy at law.
In sum, K.B. has standing to pursue a municipal liability claim against the B.P.D. through Chief Roper. The remaining plaintiffs, including the bystander plaintiffs who either did not bring individual claims for damages or disclaimed damages, do not. K.B. is due to prevail on her municipal liability claim because Officer Smith sprayed her with Freeze +P and then failed to decontaminate her pursuant to B.P.D.’s unconstitutional policy or custom. Finally, K.B. has made a sufficient showing to render her entitled to injunctive relief. III. Damages and Equitable Relief.
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In light of the court’s findings, the court turns finally to the relief portion of its ruling.
A. Damages
Six of the eight plaintiffs are entitled to monetary damages. First, G.S., B.D., T.L.P., and T.A.P. are each entitled to $5,000 in damages on their failure to decontaminate claims. While the S.R.O. who sprayed them with Freeze +P had legitimate reasons for doing so and have prevailed on that aspect of the plaintiffs’ claims, the officers nonetheless had an obligation to adequately decontaminate these plaintiffs afterward and failed to do so.78
Second, K.B. and B.J. are entitled to $5,000 each from Officers Smith and Benson respectively because Officers Smith and Benson inflicted excessive force on K.B. and B.J. when they sprayed K.B. and B.J. with Freeze +P, and an additional $5,000 each for their failure to decontaminate claims.
78 J.W. is not entitled to damages because he disavowed any claim to money damages, see 1/21/15 at 100, and, more importantly, was unable to identify the officer who sprayed him, id. at 88–91. P.S. is also not entitled to damages because, as the court previously explained, only deliberate conduct by a government actor can give rise to a Fourth Amendment violation, and Officer Clark did not intend to spray P.S. with Freeze +P. Moreover, there is no evidence before the court that P.S. conveyed her exposure or discomfort to Officer Clark.
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B. Equitable Relief
As previously stated, the plaintiffs ask the court to temporarily enjoin the use of Freeze +P in Birmingham City high schools until Chief Roper, the plaintiffs, and the court can craft policy changes aimed at addressing the constitutional violations at the center of this case. Doc. 274 at 53. However, because the plaintiffs concede that there are scenarios when it is appropriate for S.R.O.s to use Freeze +P in the school setting, doc. 105 at 5, the court declines at this juncture to ban its use in schools for any duration because such a ban would create a safety risk for students, faculty and officers.79
Nonetheless, it is clear that the current system is flawed. At a minimum, better training reflecting the unique character and challenges of school-based policing is needed for S.R.O.s. As part of this training, Chief Roper needs to remind S.R.O.s that enforcement of school discipline is not part of their job description and that Freeze +P is not suited for general crowd control. Therefore, court ORDERS the parties to meet and confer, engage in fruitful discussions and compromise, and develop and jointly submit to the court on November 15, 2015 a training and procedures plan80
79 This conclusion nullifies Chief Roper’s argument that injunctive relief would create a public disservice because it “would remove an important intermediary weapon from [S.R.Os].” Doc. 273 at 28.
80 So there is no misunderstanding, the court expects one (1) plan from the parties. Page 118 of 120

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that will address the current deficiencies and form the template for S.R.O.s’ use of Freeze +P going forward.81
In contrast, the relief regarding the decontamination portion of K.B.’s municipal liability claim is simple: S.R.O.s must decontaminate all students they spray with Freeze +P. As the parties craft an appropriate decontamination plan, here are some general practices to guide them: (1) unless doing so would endanger the student, officer, or bystanders, after an S.R.O. 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 S.R.O.s 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 S.R.O. must then place the student in front of a fan; (4) Chief Roper must ensure that S.R.O.s 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
81 B.P.D.’s involvement in crafting this portion of K.B.’s equitable relief will address Chief Roper’s concerns that in pursuing an injunction, K.B. “seeks to have the [c]ourt impermissibly interfere with the inner workings of the Birmingham Police Department.” Doc. 273 at 27. The court, of course, has the right to act to enforce its orders, and in that respect, disagrees with Chief Roper that its involvement will amount to “impermissibl[e] interfere[nce].”
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available at the start of each week is always the same as the initial number agreed on by the parties. Finally, because of Freeze +P’s impact on nearby students and to generally educate students about its effects, the parties are also directed to jointly draft, by November 15, 2015, 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.
The court will issue an order and judgment, including taxing costs, after November 15, 2015.
DONE this 30th day of September, 2015.
________________________________ ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE
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 Case 2:10-cv-03314-AKK Document 316-1 Filed 11/27/18 Page 1 of 58 Case: 15-14669 Date Filed: 09/24/2018 Page: 1 of 57

FILED
2018 Nov-27 AM 09:50 U.S. DISTRICT COURT
N.D. OF ALABAMA

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 15-14669 ________________________

D.C. Docket No. 2:10-cv-03314-AKK

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,
versus
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,

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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.
________________________
Appeals from the United States District Court for the Northern District of Alabama ________________________
(September 24, 2018) Before ED CARNES, Chief Judge, JORDAN, Circuit Judge, and LAMBERTH,* District Judge.
PER CURIAM:
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
* Honorable Royce C. Lamberth, United States District Judge for the District of Columbia, sitting by designation.
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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,
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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
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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 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
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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.
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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 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 conclude that the September 30 order is final under § 1291, and as a result we need not address whether it is also appealable as an injunction under § 1292(a)(1).
Generally speaking, an order must be “final” to be appealable. See 28 U.S.C. § 1291; see also Carson v. Am. Brands, Inc., 450 U.S. 79, 83 (1981) (“The first Judiciary Act . . . established the general principle that only final decisions of the federal district courts would be reviewable on appeal.”). An order, however, does not have to be the last one issued for it to be final under § 1291. See Alabama, 828 F.2d at 1536. Because finality is “frequently so close a question that decision of that issue either way can be supported with equally forceful
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arguments,” Gillespie v. U.S. Steel Corp., 379 U.S. 148, 152 (1964), we disdain a formalistic test and employ a pragmatic approach, which is “essential to the achievement of the ‘just, speedy, and inexpensive determination of every action,’” Alabama, 828 F.2d at 1537 (quoting Brown Shoe Co. v. United States, 370 U.S. 294, 306 (1962)).
A district court order in a § 1983 case requiring one or more of the parties to submit a remedial plan, without more, is not final. See id. at 1538. But such an order is immediately appealable when it “contains other injunctive relief” or “when the content of the plan to be submitted has already been substantially prescribed by the district court.” Id. (holding that a district court order requiring the submission of a remedial desegregation plan was final under § 1291 because it “substantially prescribed” the requirements of the plan—the order resolved every issue, gave detailed instructions, and “le[ft] [the] defendants with little flexibility” in drafting the plan); accord Groseclose v. Dutton, 788 F.2d 356, 358–61 (6th Cir. 1986); Spates v. Manson, 619 F.2d 204, 209 (2d Cir. 1980).
The September 30 order “substantially prescribed” the requirements of the training and procedure plan the parties were directed to jointly submit, and is therefore appealable under § 1291. In its order, the district court made detailed factual findings about the challenged conduct, concluded that the constitutional rights of certain students had been violated, and specified the amount of damages
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that those students were entitled to. The court also ruled that class-based injunctive relief was warranted as to the students’ spraying and decontamination claims. Although it declined to issue permanent injunctive relief, the court ordered the parties to meet, confer, and submit a proposed training and procedure plan that would remedy the constitutional problems identified in its order. Significantly, the court listed a series of “general practices” (quoted earlier) to guide the parties in formulating the decontamination aspect of the plan. For example, the SROs have to provide each student they spray “with an opportunity to decontaminate with water, either in the form of a shower, washing at a sink, or using an eye wash station.” D.E. 282 at 119. Chief Roper, for his part, has to provide sufficient sweat suits at each high school for students who are exposed to Freeze +P, and must ensure that the SROs “have available sealable plastic and/or garbage bags that an affected student can use to store her contaminated clothing.” Id. And, as noted above, the parties are also required to create a one-page flyer for students that explains the effects of Freeze +P and details how to obtain relief after exposure. Id. at 120.
On balance, we are satisfied that the September 30 order, in practical terms, is final under our precedent. See Alabama, 828 F.3d at 1537–38; Morales v. Turman, 535 F.2d 864, 867 n.6 (5th Cir. 1976), rev’d on other grounds, 430 U.S. 322 (1977). We therefore turn to the merits.
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II. QUALIFIED IMMUNITY We first take up the qualified immunity appeal of the SROs who were held individually liable on the decontamination claims. See, e.g., Vaughan v. Cox, 343 F.3d 1323, 1333 (11th Cir. 2003) (explaining that a defendant can assert “a qualified immunity defense at trial”); Alexander v. Fulton County, 207 F.3d 1303, 1320 (11th Cir. 2000) (reviewing denial of qualified immunity after trial), overruled on other grounds by Manders v. Lee, 338 F.3d 1304 (11th Cir. 2003) (en banc). As noted earlier, the district court found in favor of six of the students on their decontamination claims and awarded them $5,000 each in damages. The court ruled that certain SROs violated the clearly established Fourth Amendment rights of these students by failing to adequately decontaminate them after spraying them with Freeze +P. See D.E. 282 at 65 n.54, 76. We review de novo the court’s qualified immunity ruling. Harris v. Bd. of Educ., 105 F.3d 591, 595 (11th Cir. 1997). To provide context for the district court’s rulings, and for the parties’ arguments, we set out the evidence presented at trial concerning Freeze +P and decontamination. We then return to the court’s specific findings concerning the SROs and the six students.
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A. Trial Evidence About Freeze +P and BPD’s Decontamination Procedures
Freeze +P is a chemical designed to temporarily incapacitate a person by
causing pain and intense tissue irritation (burning of the eyes, skin, mouth, and
airway, tearing, reflexive closing of the eyes, coughing, gagging, and difficulty
breathing). According to one of the defense experts, Freeze +P works because it
results in “severe pain.” D.E. 282 at 31.
The material safety data sheet for Freeze +P describes emergency and first
aid procedures for exposure to the spray as follows:
EYES: Flush eyes with large quantities of water to speed recovery. Face subject into wind or forced air source such as fans or air conditioning outlet. Wash face with mild soap.
SKIN CONTACT: Remove contaminated clothing. Wash affected area with soap and water to avoid transfer to more sensitive areas. Burning sensation with skin contact in most areas. Use no creams or salves. Persons with preexisting skin disorders may be more susceptible to the effects of this agent.
INHALATION: Irritant, stimulation of facial nerves causes feeling of restricted airway. No danger exists for asphyxiation. Remove persons to fresh air.
INGESTION: Severe burning heartburn sensation may cause nausea. Seek medical attention if nausea persists.
D.E. 282 at 37.
Training materials from Aerko International, the manufacturer of Freeze +P,
say the following about proper treatment for those exposed to the spray:
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While there are no medical practitioners on the staff of Aerko International, the following regimen is suggested based on documents of the United States Chemical Warfare Service and our experience overseeing hundreds of exposures, both intentional during training or accidental as a result of production mishaps.
A wash may be prepared utilizing approximately 100 to 120 grams of sodium bisulfate in four gallons of cool water. Subjects experience some relief when splashing this solution on [a]ffected areas.
When running water is available, a softly flowing stream from a hose should be applied to the face and eyes. Copious amount[s] of cool water will give some relief.
After initial treatment with water or wash, the subject should be moved to fresh air and faced into the wind. The time to recovery is directly proportionate to the speed of the air stream. Fans or air conditioning outlets provide an excellent source of relief. In the event running water or the [s]odium [b]isulfate solution is not available[,] excellent field treatment results may be obtained by placing the subject in the front section of a vehicle and directing the air conditioning vent into his face.
D.E. 282 at 37–38.
In 2006, prior to the incidents in question, the BPD published rules and
regulations concerning what police officers (including SROs) should do after they
use a chemical spray like Freeze +P. These rules and regulations explain, in
relevant part, that chemical spray “is primarily an inflammatory agent” which
causes the “[i]nvoluntary closing of the eyes,” the “[s]welling of the mucous
membranes, which results in shallow breathing ability,” and “[i]ntense burning on
sensitive parts of the body.” Plaintiff’s Ex. 3 at 3 (Birmingham Police Department,
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Chemical Spray Subject Restraint: Non-Deadly Use of Force, Revision 5 (Feb. 10, 2006)). According to the rules and regulations, the “effects of chemical spray will begin to lessen in 10–15 minutes with all effects disappearing in approximately 45 minutes, with no treatment being administered.” Id. SROs and other police officers are instructed that following the use of chemical spray, “the officer will ensure that the subject receives adequate decontamination as soon as practical. The officer should supply immediate medical attention if requested by the subject.” Id. In addition, “Birmingham Fire and Rescue will be called and will determine whether or not the subject needs further medical attention or hospital treatment.” Id. at 4.
BPD training materials state that the effects of chemical spray “are temporary,” that eyes can open in 10–20 minutes after treatment with “[c]ool air or water,” that respiratory effects diminish in 10–30 minutes, and that effects on the skin may persist for 45–60 minutes and “up to hours” for some “sensitive subjects.” D.E. 282 at 32. Chief Roper explained that SROs and other BPD officers are required to undertake “adequate” decontamination efforts—which can be water, time, and/or air—and to notify Birmingham Fire and Rescue. See id. at 38. One of the defense experts, however, testified that if he were sprayed with a chemical, his “first choice method of decontamination would be to wash with copious amounts of water and soap, and if neither were available, he would want
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access to a fan.” Id. at 39. That same expert also opined that SROs should provide students who are intentionally sprayed with water to decontaminate as soon as the situation is safe. Id. One of the high school principals testified that in the school setting it would not be difficult for an SRO to take a student exposed to chemical spray to a location like a chemistry lab to wash or flush his or her face. See id. at 74.
The district court found that all BPD officers are trained on the Department’s rules and regulations at the police academy and receive periodic retraining in various forms. See id. at 25. The court also found that training for cadets at the police academy includes “describing the chemical components of Freeze +P, reviewing the Chemical Policy, spraying the cadets with Freeze +P in an outdoor environment, and answering cadet questions. Cadets are instructed to wash their faces with warm, soapy water 30 minutes to an hour after exposure.” Id. at 30. “Although cadets are personally instructed to use warm soapy water for their own exposure, [they] are trained that the appropriate methods for decontaminating an individual sprayed with Freeze +P are time, air, and calling Birmingham Fire and Rescue.” Id.
B. The District Court’s Qualified Immunity Ruling The district court, citing Fourteenth Amendment decontamination cases such as Danley v. Allen, 540 F.3d 1298, 1304 (11th Cir. 2008), overruled on other
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grounds as recognized by Randall v. Scott, 610 F.3d 701 (11th Cir. 2010), based its Fourth Amendment ruling on several subsidiary conclusions: (1) an officer’s failure to decontaminate a person after subjecting him or her to chemical spray, absent extenuating circumstances or lack of feasibility, is a violation of the Fourth Amendment; (2) students who are sprayed with chemical spray should receive access to copious amounts of water and soap; and (3) time and/or air alone are inadequate decontamination measures. See id. at 73–75.
The district court considered the SROs’ decontamination efforts wholly inadequate as to the six students sprayed and found that in most cases the officers “did absolutely nothing other than call Birmingham Fire and Rescue.” See id. at 71. The SROs, the court found, did not give the students access to any airflow and/or give them an opportunity to wash their faces or shower, and did not provide them with clothes that were not contaminated with Freeze +P. See id. at 9 (SRO Anthony Clark/G.S.), 11 (SRO Jeremiah Nevitt/T.L.P.), 14 (SRO Douglas Henderson/B.D.), 17 (SRO Silburn Smith/K.B.), 20–21 (SRO Marion Benson/B.J.), and 23 (SRO Ricky Tarrant/T.A.P.). Even when the SRO in question tried to provide some assistance to the student—such as in the cases of B.D. and T.A.P.—the court found those efforts to be constitutionally insufficient. See id. at 72.
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C. Qualified Immunity Analysis In actions brought under 42 U.S.C. § 1983, the doctrine of qualified immunity offers complete protection for government officials whose conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” White v. Pauly, 137 S. Ct. 548, 551 (2017) (citations and internal quotation marks omitted). To be entitled to qualified immunity, an official must first show that he was acting within his discretionary authority when the allegedly wrongful acts occurred. See Gray ex rel. Alexander v. Bostic, 458 F.3d 1295, 1303 (11th Cir. 2006). Once the defendant makes that initial showing, the burden shifts to the plaintiff to demonstrate that qualified immunity should not be granted. See id. The plaintiff must show (1) that the defendant violated one of his constitutional rights, and (2) that the right was clearly established at the time of the wrongful conduct. See Valderrama v. Rousseau, 780 F.3d 1108, 1112 (11th Cir. 2015). There is no dispute in this case that the SROs were acting in their discretionary authority in the moments following their deployment of Freeze +P. So the question is whether the district court properly denied qualified immunity to the SROs for failing to adequately decontaminate the six students who were awarded damages. For the reasons that follow, we conclude that the district court erred in denying the SROs qualified immunity.
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The SROs argue that the students improperly asserted their decontamination claims under the Fourth Amendment. As the SROs see it, the students should have proceeded under the Fourteenth Amendment because they were arrestees and/or pre-trial detainees after they were sprayed. See Appellants’ Br. at 31–32. The students respond that the Fourth Amendment provides the correct framework to analyze their excessive force claims because the inadequate decontamination occurred during the process of arrest, “moments after the seizure began[,] . . . prior to any formal booking, and before pretrial detention began.” Appellees’ Br. at 23.
Generally, the Fourth Amendment protects against the use of excessive force during investigatory stops and arrests, while the Fourteenth Amendment guards against the use of excessive force against arrestees and pretrial detainees. See, e.g., Graham v. Connor, 490 U.S. 386, 387 (1989); Cottrell v. Caldwell, 85 F.3d 1480, 1490 (11th Cir. 1996). Although the Supreme Court has held that “all claims that law enforcement officers have used excessive force . . . in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth Amendment,” Graham, 490 U.S. at 395, neither we nor the Supreme Court has decided whether the Fourth Amendment continues to provide individuals with protection from excessive force beyond the point at which an arrest ends and pretrial detention begins, let alone in the school context, see id. at 395 n.10; Wright v. Whiddon, 951 F.2d 297, 300 (11th Cir. 1992); see also Kinglsey v. Hendrickson,
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135 S. Ct. 2466, 2479 (2015) (Alito, J., dissenting) (“[W]e should decide whether a pretrial detainee can bring a Fourth Amendment claim based on the use of excessive force . . . .”).
We need not decide whether the Fourth Amendment or the Fourteenth Amendment governs the students’ decontamination claims to resolve the SROs’ qualified immunity arguments. Assuming that those claims are properly brought under the Fourth Amendment, and that the SROs violated the Fourth Amendment by not adequately decontaminating the students, the relevant law was not clearly established at the time of the SROs’ conduct. See Fils v. City of Aventura, 647 F.3d 1272, 1287 (11th Cir. 2011) (“[I]f the law was not clearly established, we need not decide if the Defendants actually violated the Plaintiffs’ rights[.]”).
To determine whether a right is clearly established, we ask whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted. See Vinyard v. Wilson, 311 F.3d 1340, 1350 (11th Cir. 2002) (recognizing that “fair and clear notice” is the cornerstone of the qualified immunity analysis). There are various ways to evaluate whether a right is clearly established. See id. at 1350–53. First, the plaintiff can point to a materially similar case decided at the time of the relevant conduct by the Supreme Court, the Eleventh Circuit, or the relevant state supreme court. The first method looks at the relevant case law at the time of the alleged violation that would have made it
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obvious to the officer that his actions violated federal law. See Gaines v. Wardynski, 871 F.3d 1203, 1208 (11th Cir. 2017). The prior case law need not be directly on point, but “existing precedent must have placed the statutory or constitutional question beyond debate.” White, 137 S. Ct. at 551 (citations and internal quotation marks omitted). Second, the plaintiff can identify a broader, clearly established principle that should govern the novel facts of the situation. See Gaines, 871 F.3d at 1208. Third, the plaintiff can show that the conduct at issue so obviously violated the Constitution that prior case law is unnecessary. See id. The plaintiff must establish that the conduct “lies so obviously at the core of what the alleged constitutional amendment prohibits that the unlawfulness of the conduct was readily apparent to the officer, notwithstanding the lack of fact-specific case law.” See Fils, 647 F.3d at 1291. This third method, often referred to as the “obvious clarity” scenario, is a “narrow exception” to the “normal rule that only case law and specific factual scenarios can clearly establish a violation.” Id.
The students argue that they had a Fourth Amendment right to be adequately decontaminated after they were sprayed with Freeze +P and that this right was clearly established at the time of the SROs’ conduct in 2009, 2010, and 2011. See, e.g., Appellees’ Br. at 46 (referring to the “right to be free from the excessive force of [an officer’s] fail[ure] to decontaminate”). But the Supreme Court has told us “not to define clearly established law at a high level of generality” because the
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“dispositive question is whether the violative nature of particular conduct is
clearly established.” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (citations and
internal quotation marks omitted). As a result, the “inquiry must be undertaken in
light of the specific context of the case, not as a broad general proposition. Such
specificity is especially important in the Fourth Amendment context, where the
[Supreme] Court has recognized that [i]t is sometimes difficult for an officer to
determine how the relevant legal doctrine, here excessive force, will apply to the
factual situation the officer confronts.” Id. (citations and internal quotation marks
omitted).
The question for us, therefore, is whether the “state of the law” in 2009,
2010, and 2011 “gave the [SROs] fair warning that their . . . treatment of [the
students]” as to decontamination “was unconstitutional.” Hope v. Pelzer, 536 U.S.
730, 741 (2002). The students rely on our 2008 decision in Danley to argue that their right to adequate decontamination was clearly established.1
Mr. Danley was a pre-trial detainee who was arrested for driving under the
influence and taken to jail, where he was ultimately pepper sprayed for failing to
1 The students also cite to an unpublished Fourteenth Amendment case, Nasseri v. City of Athens, 373 F. App’x 15 (11th Cir. 2010)—where qualified immunity was denied to officers who kept a pretrial detainee confined to a poorly-ventilated space after he was pepper sprayed—to bolster their qualified immunity argument. See Appellees’ Br. at 46–47. Unpublished cases, however, do not serve as binding precedent, see 11th Cir. R. 36-2, and cannot be relied upon to define clearly established law, see Gilmore v. Hodges, 738 F.3d 266, 277 (11th Cir. 2013) (“[W]e look only to binding precedent—holdings of cases drawn from the United States Supreme Court, this Court, or the highest court of the state where the events took place.”).
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comply with certain commands. See 540 F.3d at 1303. He alleged in his complaint that, after spraying him, the officers placed him in a small, poorlyventilated cell, prevented him from washing off the pepper spray for approximately 20 minutes, mocked him as he begged for help, and then gave him insufficient time to shower. See id. at 1304. He also alleged that he was ultimately put in a group cell, where other detainees complained that their eyes were burning due to the residue on him. See id. After suffering for 12–13 hours, he was released and able to see a doctor for treatment. See id. at 1305.
We held in Danley that the district court correctly denied the officers’ motion to dismiss the complaint on qualified immunity grounds because Mr. Danley had alleged sufficient facts to make out a violation of his Fourteenth Amendment right to be free from cruel and unusual punishment. Using a multifactor test to apply the “shocks the conscience” standard, we concluded that once Mr. Danley was disabled due to the pepper spray, “the use of force in the form of extended confinement in the small, poorly ventilated pepper spray-filled cell, when there were other readily available alternatives, was excessive.” Id. at 1308–09. We also concluded that Mr. Danley had sufficiently alleged that the officers acted maliciously and sadistically for the purpose of causing harm. According to the complaint, the officers mocked Mr. Danley while he was suffering from the effects of the pepper spray and did not give him enough time to shower (they gave him
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two minutes when the jail policy dictated that the shower should be fifteen minutes). See id. at 1309–10.
As relevant here, we also held in Danley that the district court properly denied the officers’ motion to dismiss Mr. Danley’s Eighth Amendment claim for deliberate indifference to his serious medical needs. Id. at 1310–13. Mr. Danley was not merely suing based on the immediate effects of pepper spray, and had sufficiently alleged that he suffered chemical conjunctivitis and bronchospasms due to the effects of prolonged exposure to pepper spray without adequate decontamination (e.g., the delay in allowing him a shower and the inadequate length of the shower). Id. at 1310. We said, in part, that “[if] a shower is the only treatment that is required, then an adequate shower is required.” Id. at 1311. And we concluded that the officers were not entitled to qualified immunity for the Eighth Amendment deliberate indifference claim: “This is a case in which general legal principles announced by our decisions in this area of law are enough to make the right violated clearly established. . . . Danley alleged both a serious medical need and the jailers’ deliberate indifference to it.” Id. at 1313.
Danley certainly holds that, under certain circumstances in a prison setting, an officer violates the Fourteenth Amendment if he does not timely and adequately decontaminate (or provide timely and adequate decontamination services to) a prisoner who is suffering from the prolonged effects of an incapacitating chemical
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spray. For a couple of reasons, however, we do not believe that Danley provided fair and clear notice to the SROs that their decontamination efforts (or lack thereof) violated the students’ Fourth Amendment rights.
The first reason is legal in nature. Danley did not set out the minimum decontamination procedures that the Constitution requires an officer to pursue or provide for all persons in custody (including those in a school setting) after the use of chemical spray. Although the “ultimate touchstone of the Fourth Amendment is reasonableness,” Kentucky v. King, 563 U.S. 452, 459 (2011) (citation and internal quotation marks omitted), the students here, beyond alleging that the SROs’ decontamination efforts were constitutionally lacking, have not attempted to explain why the additional steps that they want taken are a Fourth Amendment requirement, see Appellees’ Br. at 46 (referring only to the “right to be free from the excessive force of [an officer’s] fail[ure] to decontaminate”). And, as we explain below, the record developed at trial shows that the paramedics who examined the students chose not to administer any treatment and in two cases told the students not to wash with water.
The second reason why Danley does not provide adequate notice is more factual than legal. The students here, after being sprayed with Freeze +P, felt like their faces, eyes, and noses were burning, and they experienced trouble breathing. See, e.g., D.E. 282 at 31–32. But, as the students recognize, see Appellees’ Br. at
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43, what happened to Mr. Danley is more severe than what they experienced after being subjected to Freeze +P, and the conduct of the SROs here is different than what the officers in Danley were alleged to have done. On this record, those differences matter for purposes of qualified immunity. See, e.g., Hadley v. Gutierrez, 526 F.3d 1324, 1332 (11th Cir. 2008) (“For a right to be ‘clearly established,’ previous case law must have developed it in a concrete factual context so as to make it obvious to a reasonable government actor that his actions violate federal law.”).
Starting with SRO Nevitt and T.L.P., the Freeze +P hit T.L.P. in the mouth and caused her to cough, but did not affect her eyes, her nose, or her breathing. SRO Nevitt took T.L.P. to the assistant principal’s office, which had air conditioning, and called the paramedics. At the office T.L.P. was not in pain, see D.E. 304 at 161, and when they arrived, the paramedics asked her a few questions but did not provide any treatment. SRO Nevitt then transported T.L.P. to family court. Given the limited impact of Freeze +P on T.L.P., her lack of pain at the office, and the paramedics’ decision not to provide treatment, SRO Nevitt would not have been placed on notice by Danley that his conduct violated the Fourth Amendment.
As for the remaining SROs, we agree with the district court that they did not give the students an opportunity to wash or shower—as indicated (or at the very
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least suggested) by Aerko International’s safety data sheet and as permitted by the BPD’s rules and regulations—and did not provide them with clothes that were uncontaminated. And, like the district court, we are troubled by the fact that some of these SROs (SRO Smith/K.B., SRO Henderson/B.D., SRO Benson/B.J.) drove the students away from school with the windows of their police cars rolled up, thereby denying them an additional source of air which could have helped speed up the decontamination process.
Nevertheless, we conclude that SROs Clark, Henderson, Smith, Benson and Tarrant are entitled to qualified immunity. First, as we understand the record, the students were exposed to fresh air or air conditioning in an office or in the school building after the spraying. See D.E. 282 at 8 & D.E. 296 at 148 (G.S.); D.E. 282 at 13 (B.D.); D.E. 296 at 110 (K.B.); D.E. 298 at 184 (T.A.P.); D.E. 282 at 20 (B.J.). Second, the students were seen shortly afterwards by paramedics. In each and every case, these independent medical professionals who evaluated the students chose not to provide them with any treatment. See D.E. 282 at 8 (G.S.), 13 (B.D.), 16 (K.B.), 22 (T.A.P.); D.E. 305 at 156 (B.J.). Indeed, in a couple of cases, the paramedics told the students that putting water on their faces would make their burning symptoms worse. See D.E. 282 at 8 (G.S.), 16–17 (K.B.). On this record, the SROs were entitled to rely, at least in part, on the independent medical judgment of the paramedics, and their failure to use all of the
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decontamination options listed in Aerko International’s materials and/or in the BPD’s training materials did not make any Fourth Amendment violation apparent. Cf. Taylor v. Threadgill, 221 F.3d 1254, 1259 (11th Cir. 2000) (explaining, in a Fourteenth Amendment case involving the alleged denial of medical care to a pretrial detainee, that “failure to follow procedures does not, by itself, rise to the level of deliberate indifference because doing so is at most a form of negligence”).
The district court, we think, understandably determined that the SROs did not engage in best practices, and that they could have done more for the students in their decontamination efforts. But assuming that their failure to go further violated the Fourth Amendment, the rights of the students to be decontaminated to the degree demanded were not clearly established under the circumstances presented.
Alternatively, the students argue that the SROs’ conduct was “so far beyond the hazy border between excessive and acceptable force” that they had to have known that they were violating the Constitution even in the absence of “factspecific case law.” Vinyard, 311 F.3d at 1355 & n.18. Although we empathize with the students, two of whom vomited after being sprayed with Freeze +P, we are not persuaded by their argument.
The students’ complaint is that the SROs did not do enough to decontaminate them. Again, we agree with them, and with the district court, that the SROs did not do all that they could have done. They did not, for example,
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provide the students with access to water to wash or shower. But it is not fair to characterize the SROs’ conduct as the complete failure to take any decontamination action at all. The SROs provided the students with some fresh air or air conditioning following the use of Freeze +P, and the students were seen by paramedics who chose not to administer treatment (and who on two occasions told the students not to put water on their faces). For purposes of qualified immunity, it is not insignificant that the methods used by the SROs—passage of time, exposure to fresh air, and evaluation by paramedics—were at least partially consistent with their training and, at least to some degree, with the instructions provided by Aerko International, the manufacturer of Freeze +P. Again, assuming that the SROs fell short of the Fourth Amendment minimum, they were not faced with an “obvious clarity” scenario.
Recognizing that cases from other lower federal courts cannot create clearly established law for qualified immunity purposes, we note, as well, that the other chemical spray cases we have found—mostly in the prisoner/denial of medical care context—have arisen in different factual scenarios and do not set out definitive or minimum constitutional standards for the decontamination of those who suffer from exposure. So, even if we could look outside the Eleventh Circuit and the Alabama Supreme Court, the published case law would not have provided the SROs with “obvious clarity” about the purported unconstitutionality of their
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conduct. See, e.g., Iko v. Shreve, 535 F.3d 225, 241–43 (4th Cir. 2008); Clement v. Gomez, 298 F.3d 898, 904–06 (9th Cir. 2002).
III. CLASS-BASED CLAIMS As relevant here, K.B. asserted two claims for injunctive relief under § 1983 against Chief Roper, in his official capacity, on behalf of herself and a class of “all current [and] future high school students” of Birmingham schools. See D.E. 188 at 4, 56–59. The first class claim was that Chief Roper violated the Fourth Amendment rights of K.B. and the class by promulgating unconstitutional use-ofspray and decontamination policies. See id. at 56–57; D.E. 246 at 7–8. The second class claim was that Chief Roper failed to train and monitor the SROs’ use of chemical spray. See D.E. 188 at 58–59. The class was certified before trial, see D.E. 187, and after trial the district court ruled that the class was entitled to injunctive relief, see D.E. 282 at 118–20. The district court concluded that Chief Roper’s actions rendered the City of Birmingham liable on both aspects of the policy/custom claim, but not as to the failure-to-train claim. See id. at 98–109. As to the failure-to-train claim, the court rejected the use-of-spray portion and concluded that the decontamination portion
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was subsumed by K.B.’s policy/custom claim because the SROs were trained pursuant to an unconstitutional policy. See id. at 109–13.2
Several facts, according to the district court, supported standing for the class claims: school attendance was mandatory; the SROs acted pursuant to BPD policy; and the SROs subjected the students to the spray for engaging in “a variety of normal adolescent behavior.” See id. at 93. The court, guided by our decisions in Church v. City of Huntsville, 30 F.3d 1332 (11th Cir. 1994), and 31 Foster Children v. Bush, 329 F.3d 1255 (11th Cir. 2003), rejected Chief Roper’s argument that City of Los Angeles v. Lyons, 461 U.S. 95 (1983), precluded injunctive relief. See, e.g., D.E. 282 at 113–16.
Chief Roper argues that the district court should have dismissed the class policy/custom claims for lack of standing. Exercising plenary review, see, e.g., Ga. Latino All. for Human Rights v. Governor of Ga., 691 F.3d 1250, 1257 (11th Cir. 2012), and for the reasons that follow, we agree as to the spraying claim and the decontamination claim.3
2 The students have not appealed the adverse ruling on the failure-to-train claim. 3 The district court concluded that under cases like City of St. Louis v. Praprotnik, 485 U.S. 112, 113 (1988), Chief Roper was the final policy maker of the BPD for municipal liability purposes. See D.E. 282 at 94. Because that ruling is not challenged on appeal, we do not address it further.
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A. Article III Standing Requirements Article III standing is a prerequisite to a federal court’s exercise of subjectmatter jurisdiction. See Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2341 (2014). To have standing, a plaintiff must show that he suffered an injury, that there is a sufficient causal connection between the injury and the conduct complained of, and that there is a likelihood that the injury will be redressed by a favorable legal decision. See id. Because standing “is not dispensed in gross,” a “plaintiff must demonstrate standing for each claim and for each form of relief that is sought.” Town of Chester, N.Y. v. Laroe Estates, 137 S. Ct. 1645, 1650 (2017) (citations and internal quotation marks omitted). “A party has standing to seek injunctive relief only if the party alleges, and ultimately proves, a real and immediate—as opposed to a merely conjectural or hypothetical—threat of future injury.” Church, 30 F.3d at 1337. Past wrongs serve as evidence of whether there is a real and immediate threat of future injury, but “past exposure to illegal conduct does not demonstrate a present case or controversy if unaccompanied by any continuing, present adverse effects.” Id. (quoting Lyons, 461 U.S. at 102). Whether a future injury is likely to occur in part depends on whether the misconduct alleged is authorized by or part of a government policy. See, e.g., 31 Foster Children, 329 F.3d at 1266. When alleged misconduct is “authorized or
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part of a policy, it is significantly more likely that the injury will occur again.” Id. On the other hand, if future injury is based on the occurrence of a random or unauthorized act, then the injury is “too speculative” for standing purposes. Id.
In assessing whether a future injury is likely to occur, we consider whether the plaintiff is likely to have another encounter with a government officer due to the same conduct that caused the past injury. See, e.g., Honig v. Doe, 484 U.S. 305, 320 (1988). “We generally have been unwilling to assume that the party seeking relief will repeat the type of misconduct that would once again place him or her at risk of that injury.” Id. at 319. This hesitation, however, does not apply in circumstances where the plaintiff is unable to control or prevent the behavior that prompted the alleged misconduct. See id. at 320 (“It is respondent Smith’s very inability to conform his conduct to socially acceptable norms that renders him ‘handicapped’ within the meaning of the EHA.”). In those situations, it is reasonable to expect that the individual will engage in the misconduct. See id.
We have explained that “[i]ndividual standing requirements must be met by anyone attempting to represent [her] own interest or those of a class.” Lynch v. Baxley, 744 F.2d 1452, 1456 (11th Cir. 1984). That means K.B. must establish standing to proceed with her claim for class-based relief, even though she is no longer a student at a high school in Birmingham. See County of Riverside v. McLaughlin, 500 U.S. 44, 51–52 (1991) (considering whether the named plaintiffs
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had standing based on the allegations in their complaint, even though their claims had since been rendered moot by the time of their appeal).4
B. Standing for the Spraying Claim
For a number of reasons, we conclude that K.B. did not have standing to
seek declaratory and injunctive relief on her use-of-spray claim. K.B. did not
demonstrate that there was a real and immediate threat that she would be subjected
to excessive force by the SROs because of the BPD’s use-of-spray policy. We
discuss Lyons and then turn to the evidence before the district court.
In Lyons, Los Angeles police had employed a chokehold on Lyons even
though he did not resist the initial stop. See 461 U.S. at 97–98. Lyons alleged that
the City of Los Angeles routinely authorized and encouraged this method of
control, and sought, in addition to damages, injunctive relief barring the use of
chokeholds except in situations where the subject reasonably appeared to threaten
the use of deadly force. His complaint alleged that at least ten chokehold-related
deaths had occurred, and by the time the case reached the Supreme Court there had
4 As the district court correctly explained, see D.E. 282 at 81–82, the fact that K.B. is no longer a student does not mean that the class-based claims for injunctive relief disappear. K.B. was a student at the time suit was filed, and at the time the class was certified. That her own claims for injunctive relief have become moot does not doom the claims of the class. See, e.g., McLaughlin, 500 U.S. at 51 (“It is true, of course, that the claims of the named plaintiffs have since been rendered moot[.] . . . Our cases leave no doubt, however, that by obtaining class certification plaintiffs preserved the merits of the controversy for our review.”); Sosna v. Iowa, 419 U.S. 393, 401 (1975) (“Although the controversy is no longer alive as to appellant Sosna, it remains very much alive for the class of persons she has been certified to represent.”).
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been another five such deaths. The district court granted Lyons a preliminary injunction preventing the Los Angeles police from using chokeholds under circumstances in which there was a threat of death or serious bodily injury. See id. at 95–100.
Citing a number of its prior decisions, the Supreme Court reversed the district court’s preliminary injunction and held that Lyons “failed to demonstrate a case or controversy with the City that would justify the equitable relief sought.” Id. at 105. The Supreme Court explained: “In order to establish an actual controversy . . . Lyons would have had not only to allege that he would have another encounter with the police but also to make the incredible assertion either, (1) that all police officers in Los Angeles always choke any citizen with whom they happen to have an encounter . . . or, (2) that the City ordered or authorized police officers to act in such a manner.” Id. at 105–06.
Although Lyons asserted that he may be subject to a chokehold again, the Supreme Court rejected the notion that the “odds” that he would be stopped again for a traffic infraction, and also subjected to a chokehold without provocation, sufficed to “make out a federal case for equitable relief”: “[I]t may be that among the countless encounters between the police and the citizens of a great city like Los Angeles, there will be certain instances in which strangleholds will be illegally applied and injury and death unconstitutionally inflicted on the victim. As we have
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said, however, it is no more than conjecture to suggest that in every instance of a traffic stop, arrest, or other encounter . . . the police will act unconstitutionally and inflict injury without provocation or legal excuse.” Id. at 108. Because nothing in the policy of the Los Angeles police “suggest[ed] that . . . chokeholds . . . are authorized absent some resistance or other provocation by the arrestee or other suspect,” the Supreme Court concluded that Lyons had not established a “real and immediate threat” that he would be stopped and choked again. Id. at 105, 110.
Chemical spray can be properly deployed under the Fourth Amendment when the subject uses or threatens force, physically resists, or attempts to flee. See, e.g., Vinyard, 311 F.3d at 1348 (“Pepper spray is generally of limited intrusiveness and it is designed to disable a suspect without causing permanent physical injury.”) (citation and internal quotation marks omitted). It cannot, of course, be used indiscriminately or without cause on students (or for that matter, on anyone else), see, e.g., Brown v. City of Huntsville, 608 F.3d 724, 738–39 (11th Cir. 2010) (officer violated Fourth Amendment by using pepper spray on driver whose offense was playing music too loudly and was not threatening or attempting to flee), but its use is not always unconstitutional in the school setting, cf. Gray, 458 F.3d at 1307 (“Every reasonable officer would have known that handcuffing a compliant nine-year-old child for purely punitive purposes is unreasonable.”). Indeed, the district court ruled that the use of Freeze +P against some of the
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students did not constitute excessive force. See D.E. 282 at 55 (B.D.), 56 (T.A.P. and T.L.P.).
At the time of the events in question in this case, the BPD’s policies provided that SROs could use chemical spray as a means of control when a subject demonstrated defensive resistance (a Level IV category of resistance), such as pulling away or pushing away; engaged in active aggression (a Level V category of resistance), such as challenging, punching, kicking, and grabbing; or used lethal force (a Level VI category of resistance), which included the use of firearms, knives, or any force that the officer believes could cause serious bodily injury or death. See id. at 26 (Revision 9 to BPD’s Use of Force Policy, Procedure No. 113– 3). And Chief Roper testified that at that earlier time SROs had the discretion to use chemical spray for lesser behavior, such as passive resistance (a Level III category of resistance), which includes dead weight; and verbal non-compliance (a Level II category of resistance), which includes blank stares, clenching of fists, and tightening of jaws. See id. at 26–27.
By the time of trial, however, the BPD had revised its policies concerning the use of control mechanisms. Significantly, the revised policy, which became effective in 2012, required SROs to consider a number of specific factors when determining the appropriate amount of control for a given situation, including the seriousness of the crime committed by the subject; the subject’s size, age, and
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weight; the apparent physical ability of the subject; the number of subjects present; the weapons possessed or available to the subject; the subject’s known history of violence; the presence of innocent or potential victims; and the possible destruction of evidence. See id. at 27–28 (summarizing Revision 10 to BPD, Use of Force Rules and Regulations, No. 113–3); see also id. at 29 (“[C]hemical spray may be used in an arrest situation where the weapon’s use offers the possibility of lessening the likelihood of physical injury to the arresting officer, citizens on the scene, and/or the suspect.”) (quoting BPD, Chemical Spray Subject Restraint: Non-Deadly Use of Force, Revision 5 (Feb. 10, 2006)).
The request for declaratory and injunctive relief has to be assessed in light of the revised BPD policies that were in place at the time of trial, see Kerr v. City of West Palm Beach, 875 F.2d 1546, 1549 n.8 (11th Cir. 1989), and those policies— which permit the use of chemical spray across a broad range of scenarios—are not facially unconstitutional. For example, to the extent they permit the use of Freeze +P on subjects who are trying to use force or weapons against an officer (or others), the policies conform to the Fourth Amendment. See generally Brown, 608 F.3d at 738–39 (surveying Eleventh Circuit cases on the use of chemical spray).
K.B., therefore, could not establish standing for injunctive relief merely by showing that SROs will use Freeze +P on students in Birmingham schools pursuant to the BPD’s policies. She had to show a sufficient likelihood (a “real
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and immediate threat” in the words of Lyons) that the SROs would use Freeze +P on her in an unconstitutional way due to or because of the BPD’s policies. See Church, 30 F.3d at 1337 (explaining the Supreme Court’s reasoning in Lyons). We conclude that she did not meet her burden.
The circumstances here, we think, are very much like those in Kerr, a case involving plaintiffs who had been seriously injured when bitten by police dogs in the course of their arrests by West Palm Beach police officers. We affirmed the district court’s denial of declaratory and injunctive relief under Lyons because the police department’s use of canines was not facially unconstitutional and “encompassed a broad range of action.” Kerr, 875 F.2d at 1553. Although that policy might “permit unconstitutional seizures in some circumstances, [it] d[id] not require its officers to act unconstitutionally.” Id. at 1554. “[S]uch general policies,” we said, “are not unconstitutional on their face; [the plaintiffs] therefore have no standing to seek injunctive or declaratory relief against the policy’s continued usage.” Id.
The district court here found a pattern of incidents in which SROs used pepper spray in response to students who did not pose an immediate threat, see D.E. 282 at 101, and pointed to 11 examples of students who were sprayed solely for verbal noncompliance, see id. at 99–100, 115, but the evidence at trial demonstrated that SROs generally considered on a continuum the level of control
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they could impose based on the circumstances presented and factors indicating that a more dangerous situation was developing. See D.E. 299 at 160; D.E. 304 at 173, 178; D.E. 305 at 57–58. This evidence was in line with the policies in place at the time of the incidents and was more clearly emphasized in the policy revisions that came later and were in place at the time of trial. See Pl. Ex. 1 at 3 (recognizing that, depending on the “dynamics of a situation,” varying degrees of control are justified); Pl. Ex. 2 at 11 (stating that “each officer/citizen confrontation should flow in a logical and legal consequence of cause and effect”).
Under Lyons “there is no per se rule denying standing to prevent probabilistic injuries,” Florida State Conference of N.A.A.C.P. v. Browning, 522 F.3d 1153, 1162 (11th Cir. 2008), but here the likelihood of future constitutional injury from spraying is too speculative. At trial, there was no evidence that many Birmingham students who were disciplined by SROs would be sprayed with Freeze +P. Nor did the evidence show that many such uses of Freeze +P would be unconstitutional. The evidence, in fact, demonstrated that the use of chemical spray in Birmingham high schools had been infrequent. At the time of trial the eight high schools in Birmingham served approximately 7,000 to 8,000 students a year, and there were a total of only 16 SROs stationed in all eight high schools. See D.E. 298 at 160–61; D.E. 299 at 186; D.E. 303 at 221. The use-of-force reports and other evidence indicated that from 2006 to 2014 SROs used chemical
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spray approximately 110 times, impacting roughly 199 students, out of an estimated total of 70,676 students enrolled during that eight-year timespan. See D.E. 282 at 31; DE 298 at 160–61. So during that eight-year period the spray was deployed an average of only 1.7 times a year at each school. One of the students’ experts testified that a Birmingham student has a 0.4%, or 4 out of a 1000, chance of being intentionally sprayed. See D.E. 298 at 160–61.5
Allegations of intentional chemical spraying that also constitutes excessive force were even more rare. In the eight years from 2006 to 2014, there were only 16 complaints alleging that spraying had constituted excessive force because it was an improper use of Freeze +P. See D.E. 83-5 at 9. The record is silent about exactly how many of those actually involved—instead of only were claimed to involve—the improper use of Freeze +P. If we use as a barometer the 11 times that SROs sprayed students with Freeze +P solely for verbal non-compliance, see D.E. 282 at 115, then out of the 70,676 students there is only a .016%, or 1.6 out of 10,000, chance of being unconstitutionally sprayed. And the probability of being unconstitutionally sprayed may even be smaller than that. Of the six instances that were litigated at trial, the district court concluded that excessive force was used in
5 We note that the expert testified that a Birmingham student has a “.004 percent” chance of being intentionally sprayed. We recognize, however, that the expert misspoke—he must have meant to say that there is a 0.4% chance, or four-tenths of one percent chance. The expert testified that there had been 70,676 total students between 2006 and 2014 of which 298 were intentionally sprayed. See D.E. 298 at 160–61. If you divide 298 by 70,676, the result is .004 or 4 out of 1000. It is not .004% or 4 out of 100,000.
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only two of them: one against K.B. and the other against B.J. (who was not a plaintiff for the class claims). See D.E. 282 at 2, 4, 58. Two students out of 70,676 would mean that there is only a .003%, or 3 out of 100,000, chance of being unconstitutionally sprayed. Either way, those miniscule probabilities mean that the likelihood of future injury is far too speculative to support standing.
We do not suggest that Freeze +P will never be used against a student in an unconstitutional way by any SRO in the future, and we do not minimize the discomfort or pain (however temporary) suffered by students who are sprayed. The record, though, does not show that the probability of future instances of unconstitutional spraying is sufficient to provide standing to obtain declaratory and injunctive relief. See 31 Foster Children, 329 F.3d at 1266 (“As Lyons illustrates, future injury that depends on either the random or unauthorized acts of a third party is too speculative to satisfy standing requirements.”).
The district court concluded that standing for injunctive relief existed in part due to the involuntary nature of the students’ position. The court reasoned that the students were in the same position as the plaintiffs in 31 Foster Children and Church, and the students echo that rationale on appeal. See D.E. 282 at 86–94; Appellees’ Br. at 36–38, 38 n.9.
We disagree. The plaintiffs in 31 Foster Children and Church could not avoid exposure to the conduct they challenged because their own behavior or
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situation, which drove the challenged conduct, was involuntary. “[F]or reasons beyond [their] control” they were “unable to avoid repeating the conduct that led” to their injuries. See Church, 30 F.3d at 1338. In 31 Foster Children, the plaintiffs were foster care children who were in the state’s custody involuntarily and would be until they were adopted or reached the age of majority. See 329 F.3d at 1266. Because they were legally required to be in the state foster care system, the children could not “avoid exposure to the . . . challenged conduct,” which consisted of “alleged systematic deficiencies” and the resulting harms. See id. The same type of involuntariness was present in Church, where we recognized that the plaintiffs’ homelessness was an involuntary status and the City of Huntsville’s alleged policy of harassment and arrest was incited by that homelessness. See 30 F.3d at 1338–39. The plaintiffs in those two cases could expect to be future victims of more of the same harms they had alleged because they faced those harms due to circumstances they could not change.
Although we recognize that school attendance in Alabama is mandatory, see Ala. Code § 16–28–3, and that Birmingham students attend schools where SROs are present, the students have not explained how they are likely to be unconstitutionally sprayed with Freeze +P simply because of their status as students, cf. Lyons, 461 U.S. at 108 (“[I]t is no more than conjecture to suggest that in every instance of a traffic stop, arrest, or other encounter between the police and
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a citizen, the police will act unconstitutionally and inflict injury without provocation or legal excuse.”). Students may misbehave or act defiantly from time to time, but they can control their own behavior. Cf. Lynch, 744 F.2d at 1456–57 & 1457 n.7 (concluding that the plaintiff had standing because he suffered from an involuntary mental condition that made it likely that he would be incarcerated again and subjected to an allegedly unconstitutional policy). As a result, we conclude that K.B. did not have standing to bring her class claim for declaratory and injunctive relief as to the use-of-spray policy.
C. Standing for the Decontamination Claim K.B.’s class-based claim against Chief Roper also alleged that he violated the Fourth Amendment rights of K.B. and the class by promulgating unconstitutional decontamination policies. Although the district court focused its standing analysis primarily on K.B.’s spraying claim, we also address whether K.B. can seek class-based relief for her claim that Chief Roper’s decontamination policies are unconstitutional. Our holding that K.B. lacks standing under Lyons to pursue relief on the spraying claim compels the conclusion that she also lacks standing to pursue classbased relief on her decontamination claim. The probability that a student will be decontaminated (properly or improperly) hinges on the likelihood of being sprayed or exposed to the spray; if a student is not sprayed or otherwise exposed to the
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spray, then there will be no need for decontamination. The record indicates that a
total of 70,676 students were enrolled in the eight Birmingham high schools during
the eight-year time span between 2006 and 2014. And out of those 70,676
students, 1,250 of them were exposed to the spray — intentionally or
unintentionally — during that time period. Even if we assume that every one of
those 1,250 students was improperly decontaminated — unlikely as that seems —
there is still only a 1.77% chance (1,250 ÷ 70,676) that a given student would be
exposed to spray and improperly decontaminated.
A 1.77% chance is not enough under Lyons. To state the same thing from a
different direction, a 1.77% chance of being improperly decontaminated means
there is a 98.23% chance of not being improperly decontaminated (because not
sprayed at all).6 In addition, the odds of being improperly decontaminated depend
6 The dissent notes that standing does not depend on the merits of K.B.’s claim, and that we must accept her contention that the decontamination measures are constitutionally inadequate. Dissenting Op. at 1. We agree and do accept her contention by assuming that the officers improperly decontaminated all of the 1,250 students who were sprayed or otherwise exposed to it. (We do not reach the issue of whether the officers’ decontamination measures are constitutionally adequate because we have concluded that qualified immunity is proper on the ground that the law was not clearly established.)
The dissent also sees support for its position in the Lyons decision or some extraordinary variation of its facts, one in which every police officer applied a chokehold to every citizen the officer encountered, no matter what. Dissenting Op. at 2. But in the real world, the Supreme Court held that the plaintiff in Lyons lacked standing because police officers in Los Angeles did not chokehold every citizen they encountered and the city had no policy ordering or authorizing them to do so. See Lyons, 461 U.S. at 105–06 (“In order to establish an actual controversy in this case, Lyons would have had not only to allege that he would have another encounter with the police but also to make the incredible assertion either, (1) that all police officers in Los Angeles always choke any citizen with whom they happen to have an encounter, whether for the purpose
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not only on the acts of the misbehaving students that lead to the spraying, but on the intentional acts of the SROs (spraying students and then improperly decontaminating them). And because the 1.77% figure also encompasses students who are inadvertently exposed to the spray when an officer intentionally sprays another student, it also depends to some extent on the random act of being in the vicinity of a misbehaving student who is the target of the spraying. “As Lyons illustrates, future injury that depends on either the random or unauthorized acts of a third party is too speculative to satisfy standing requirements.” 31 Foster Children, 329 F.3d at 1266.
Our dissenting colleague contends that we are improperly framing the standing inquiry as a quantitative one rather than a qualitative one, and that if we properly framed it as qualitative one the 1.77% figure is somehow not unlikely enough to defeat K.B.’s standing argument. Dissenting Op. at 2–3. To support that position, the dissent quotes one sentence from our Browning opinion: “How likely is enough is necessarily a qualitative judgment . . . .” 522 F.3d at 1161. To begin with, Browning explained that a “qualitative judgment” focuses the standing inquiry on whether the future injury is “probabilistic in nature.” Id. at 1162. And
of arrest, issuing a citation or for questioning or, (2) that the City ordered or authorized police officers to act in such manner.”). Likewise, in this case, the SROs did not pepper spray and improperly decontaminate every student they encountered, nor were they ordered or authorized to do so. Instead of supporting the dissent’s position in this case, Lyons runs counter to it.
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it illustrated what that meant by citing a case in which “there [was] every
likelihood” and “it [was] highly likely” that the plaintiff would be injured in the
future. Id. at 1162 (quoting Lynch, 744 F.2d at 1457). A 1.77% chance is not in
“every likelihood” or “highly likely.”7
The dissent admits that Browning is “not controlling because of its different
facts,” Dissenting Op. at 4, and a deeper dive into Browning’s standing analysis
shows why. Browning involved a group of organizational plaintiffs which worked
to increase voter registration for racial and ethnic minorities. 522 F.3d at 1158.
The organizational plaintiffs challenged a state voter registration law, which
required a person registering to vote for the first time in the state to disclose on the
registration application her driver’s license number or the last four digits of her
social security number, and that number had to match up with the number for the
voter contained in the state driver’s license database or the Social Security
Administration’s database. Id. at 1155, 1158. We determined that the “odds that
7 The dissent adds to its reliance on Browning a “see also” citation to a Ninth Circuit decision. See Sample v. Johnson, 771 F.2d 1335, 1343 (9th Cir. 1985). But the Sample decision actually contradicts the dissent’s position, as the very language the dissent quotes from shows: “[B]ecause the conceptions of probability that have arisen in jurisprudence and in other branches of learning have far from achieved a perfect congruence, we prefer to describe ‘probability’ qualitatively, as requiring a very significant possibility, and not quantitatively, as mandating a ‘greater than fifty percent’ likelihood.” Id. (emphasis added) (citation omitted). And the court used those terms in discussing whether the test for standing “should be one of more likely than not, i.e. in instances reducible to percentages . . . or whether the test should be one where probability, in the strict sense, is not required, but merely some significant possibility.” Id. A 1.77% chance that a future injury will occur is not “a very significant possibility” or “some significant possibility,” which is what the Ninth Circuit required in Sample. And using the label “qualitative” does not change that.
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any given application [would] be rejected because of a mismatch” was one percent. Id. at 1163. In considering standing, we stated that the organizational plaintiffs had to show only that “at least one member face[d] a realistic danger of having his or her application rejected due to a mistaken mismatch” to establish standing Id. (emphasis added).
We concluded that the organizational plaintiffs in Browning had established standing because it was nearly certain that at least one member would have her voter registration application rejected because of an inevitable error in transcribing numbers. Id. (“Given that the [organizational plaintiffs] collectively claim around 20,000 members state-wide, it is highly unlikely — even with only a one percent chance of rejection for any given individual — that not a single member will have his or her application rejected due to a mismatch.”). The dissent in this case highlights that one percent error rate to argue that standing exists in this case, Dissenting Op. at 4–6, but that figure does not tell the whole story. Applying that error rate in Browning, we hypothesized that if “200 individuals among the 20,000 members of the [organizational plaintiffs were] first-time registrants and thus subject to the [law’s] matching requirement,” then the probability of at least one member being rejected was 87%. Id. at 1163 n.13. (And using the two percent error rate applicable to Latinos and African-Americans, the “likelihood that at least one person . . . [would] fail to match increase[d] to over ninety-eight percent.” Id.)
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So the chance that at least one member of the organizations would be harmed was not one percent, but at least 87%. An 87% probability of injury unquestionably qualifies as “highly likely.” Id. at 1162.
The core distinction is that Browning is an association or organization case, while this case is a class action. All that an association must do to establish the injury element of standing is show a realistic danger that at least one member of the association will suffer future injury unless relief is granted. Id. at 1163. By contrast, the Supreme Court has stated that whether a suit is a class action “adds nothing to the question of standing, for even named plaintiffs who represent a class must allege and show that they personally have been injured.” Spokeo, Inc. v. Robins, 578 U.S. __, 136 S. Ct. 1540, 1547 n.6 (2016) (quotation marks omitted); see also City of Hialeah v. Rojas, 311 F.3d 1096, 1101 (11th Cir. 2002) (“This Court requires that a plaintiff who wishes to bring a lawsuit on behalf of a class of individuals . . . must . . . have standing to bring the claim. . . .”) (quotation marks omitted).8 And because K.B. sought injunctive relief, she was required to “allege[], and ultimately prove[], a real and immediate — as opposed to a merely conjectural or hypothetical — threat of future injury” to her. Church, 30 F.3d at
8 As stated above, K.B. is no longer a student, but we still examine whether she, as the named plaintiff, had standing to represent the class. See McLaughlin, 500 U.S. at 51–52 (considering whether the named plaintiffs had standing based on the allegations in their complaint, even though their claims had since been rendered moot by the time of their appeal).
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1337 (class action); see also Lyons, 461 U.S. at 102 (stating that a claim for injunctive relief requires the plaintiff to show that she is “immediately in danger of sustaining some direct injury as the result of the challenged official conduct and the . . . threat of injury must be both real and immediate, not conjectural or hypothetical”) (quotation marks omitted); Lynch, 744 F.2d at 1457 (concluding in a class action that the named plaintiff had standing where it was “highly likely” that he would suffer future injury). A 1.77% claim that K.B. would be sprayed and improperly decontaminated is closer to “highly unlikely” than to “highly likely.”
Finally, insofar as Browning’s standing analysis is relevant to this case, Browning was guided by how the Lyons Court had relied on several factors to deny standing. 522 F.3d at 1162. First, it pointed out, “the [Lyons] Court noted that for the threatened injury to occur, a sequence of individually improbable events would have to occur:” (1) Lyons would have had to do something to cause another encounter with the police, (2) the city “would have had to have authorized all police officers to use choke holds unnecessarily,” (3) the officers “in that specific encounter would have had to use a choke hold,” and (4) “the use in that situation would have to have been unnecessary.” Id. “Second, the threatened injury in Lyons was predicated on the plaintiff first doing something that at least would give an officer probable cause to detain or arrest him.” Id. And third, “there was an
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adequate remedy at law for the threatened injury in Lyons, namely a damages suit
against the [c]ity and police.” Id.
Those three factors support the denial of standing in this case. As for the
first factor, the likelihood of improper decontamination depends on a similar
“sequence of individually improbable events”: (1) the students would have to do
something to cause an encounter with the officers, (2) the officers must be
authorized to decontaminate the students improperly, (3) the officers in that
specific encounter would have to decontaminate the students improperly (we
assume that this factor favors the students), and (4) the improper decontamination
would have to be unnecessary. See id. at 1162 (“Each event’s occurrence [in
Lyons] was spatially and temporally indeterminate, as opposed to being fixed to
either occur or not occur at some time and place. This open-endedness and the
number of independent events needed to bring about the alleged injury combined to cast the injury into the realm of conjecture and speculation.”).9 About the
second and third factors, as in Lyons the threatened injury here (improper
9 In contrast, we explained in Browning that the injuries to the organizational plaintiffs were “foreseeable and the expected results of unconscious and largely unavoidable human errors in transcription” and that, “unlike in Lyons, the chain of events leading to the eventual injury does not begin with an assumption that someone will commit an illegal act; the chain begins when people try to register to vote.” Id. at 1163–64. And we were careful to distinguish Lyons by stating that the “odds of an injury occurring in this case does not depend on conjecture about how individuals will intentionally act in the future.” Id. at 1163 (quotation marks omitted). But in this case the odds of being improperly decontaminated do depend on the SROs’ intentional acts and the students’ intentional, unauthorized acts (as well as the acts or decisions of students that put them in the vicinity of a student who is intentionally sprayed).
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decontamination) is based on a student behaving in a way that warrants spraying or on the chance of being in the vicinity of a student who does. And if a student is unlawfully sprayed or unlawfully decontaminated (or both) then she may pursue a damages action against the city and the officer, as this case illustrates.10
From a quantitative and qualitative perspective, K.B. does not have standing to pursue her decontamination claim. A 1.77% chance of being improperly decontaminated is not enough to establish standing. That low likelihood reflects the qualitative fact that K.B.’s standing claim depends on open ended, independent, and unpredictable events that “cast the injury into the realm of conjecture and speculation.” Id.
IV. CONCLUSION The district court’s order of September 30, 2015, is final under our decision in Alabama, 828 F.2d at 1537–38, because it contained extensive findings of fact and conclusions of law concerning the alleged constitutional violations, and because it provided specific directions for the parties to follow in submitting a
10 The dissent also relies on the Fourth Circuit’s decision in Kenny v. Wilson, 885 F.3d 280 (4th Cir. 2018), to support its argument that K.B.’s standing to pursue her decontamination claim does not depend on conjecture about how students and officers will act in the future. That court held that students had standing to challenge on vagueness grounds a law which prohibited causing a disturbance in school and a disorderly conduct law. Id. at 284. But that decision relied partly on considerations unique to vagueness challenges (such as deprivation of notice and arbitrary enforcement) that are not present here. Id. at 284, 288.
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remedial plan for class-based injunctive relief. We therefore have jurisdiction to entertain the appeal.
The six SROs who were held individually liable on the students’ § 1983 Fourth Amendment decontamination claims are entitled to qualified immunity, and we therefore reverse the judgments entered against them.
Because the named plaintiff for the class lacks standing under Lyons, 461 U.S. at 107–10, and Kerr, 875 F.2d at 1554–55, to seek declaratory and injunctive relief for the spraying claim, and also lacks standing under Lyons to pursue injunctive relief for the decontamination claim, we reverse in full the district court’s order providing equitable relief and requiring the parties to take any action.
REVERSED.
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JORDAN, Circuit Judge, concurring in part and dissenting in part. With one exception, I concur in and join the majority’s opinion. My
disagreement concerns the plaintiffs’ standing to pursue class-based injunctive relief on the claim that the decontamination protocol of the Birmingham Police Department is unconstitutional. As I see things, there is a substantial likelihood that students in Birmingham high schools will—assuming the validity of the plaintiffs’ claim—be improperly decontaminated in the future, and I would hold that the plaintiffs have standing to seek an injunction.
For purposes of standing, we must accept the plaintiffs’ claim that the Constitution requires SROs to decontaminate all students exposed to chemical spray by providing access to water, ventilation, and a clean change of clothes—and that SROs were not and are not doing all of these things due to the BPD’s unconstitutional decontamination protocol. See Warth v. Seldin, 422 U.S. 490, 500 (1975) (“Standing in no way depends on the merits of the plaintiff’s contention that particular conduct is illegal[.]”). In contrast to the spraying claim, the adequacy of the decontamination protocol is not dependent on the constitutional validity of the use of Freeze +P in the first instance.
I generally agree with the majority that the likelihood that a student will need to be decontaminated hinges on the likelihood of being sprayed or being exposed secondarily to spray. We know, however, that students will continue to
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encounter SROs at school. See, e.g., D.E. 299 at 186 (discussing the number of SROs stationed at Birmingham high schools). And we also know that SROs will continue to use Freeze +P on students, which means that SROs will necessarily have to engage in decontamination efforts that will presumably be dictated by the BPD’s protocol. It is therefore inevitable that, absent an injunction, SROs will continue to decontaminate students in an allegedly unconstitutional manner. The inadequate and allegedly unconstitutional decontamination protocol is akin to an unconstitutional policy that requires police officers to apply a chokehold to all citizens that they encounter. Cf. City of Los Angeles v. Lyons, 461 U.S 95, 105–06 (1983) (“To establish an actual controversy in this case, Lyons would have had . . . to allege (1) that all police officers in Los Angeles always choke any citizen with whom they encounter . . . or (2) that the city ordered or authorized police officers to act in such a manner.”).
The majority holds that a 1.77% likelihood of being sprayed (and of having to be decontaminated) is insufficient as a matter of law to satisfy Lyons, 461 U.S at 108. I am not convinced. Although tempting, it is unsound to reduce the “substantial likelihood” requirement for seeking injunctive relief to a purely quantitative (i.e., mathematical) analysis. Indeed, we have held that standing exists to prevent probabilistic injuries so long as those injuries are substantially likely to come to pass, and have framed the inquiry as qualitative: “How likely is enough [to
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satisfy the substantial likelihood of future injury requirement] is necessarily a qualitative judgment[.]” Fla. State Conf. of N.A.A.C.P. v. Browning, 522 F.3d 1153, 1162 (11th Cir. 2008). See also Sample v. Johnson, 771 F.2d 1335, 1343 (9th Cir. 1985) (“[B]ecause the conceptions of probability that have arisen in jurisprudence and in other branches of learning have far from achieved a perfect congruence, we prefer to describe ‘probability’ qualitatively, as requiring a very significant possibility, and not quantitatively, as mandating a ‘greater than fifty percent’ likelihood.”) (internal citation omitted).
Using the statistics presented at trial, on average about 138 Birmingham high school students have been sprayed or exposed to spray every year from 20062014—some without having done anything wrong—and have therefore been subject to allegedly unconstitutional decontamination efforts due to the BPD’s protocol. See D.E. 298 at 164, 168. “Past behavior is the best predictor of future behavior,” Cordova v. Aragon, 569 F.3d 1183, 1205 (10th Cir. 2009) (O’Brien, J., concurring in part and dissenting in part), and those yearly instances of injury over an eight-year period constitute a fair predictor of future harm. After all, “what’s past is prologue.” William Shakespeare, The Tempest, act 2, sc. 1 (1611). Cf. Melendres v. Arpaio, 695 F.3d 990, 998 (9th Cir. 2012) (holding that Latino plaintiffs had standing to pursue class-based injunctive relief on their claim that the defendants had a practice, based on racial profiling, of detaining persons on
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suspicion of being unlawfully in the United: “[A]lthough . . . the likelihood of a future stop of a particular individual plaintiff may not be ‘high,’ we are not convinced that the district court erred in determining that future injury was nevertheless ‘sufficiently likely,’ given the defendants’ stated policy and practice.”).
Though not controlling because of its different facts, our decision in Browning is informative. In that case, organizations representing minority interests challenged a Florida voter registration statute which required each applicant to disclose specific identifying information that was then verified with information maintained by the state. 522 F.3d at 1156. If the information provided did not match, the applicant would not be registered to vote unless certain corrective measures were timely taken. The organizations alleged that the voter registration procedure left applicants with too little time to fix the matching error before voter rolls closed in advance of an upcoming election, and sued to enjoin enforcement of the statute. Id. at 1157.
With respect to the standing of the organizations, we first explained that “there is no per se rule denying standing to prevent probabilistic injuries.” Id. at 1162. Then, recognizing that there was a mere one-percent chance that any given applicant would be rejected due to mismatched information, id. at 1163, we affirmed the district court’s ruling that the organizations had standing to seek
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injunctive relief, even though they had not identified any specific applicants whose registrations were rejected. “Given that the NAACP and SVREP collectively claim around 20,000 members state-wide, it is highly unlikely—even with only a one percent chance of rejection for any given individual—that not a single member will have his or her application rejected due to a mismatch.” Id. We distinguished the insufficient threat of future injury in Lyons because the odds of an injury occurring due to the registration statute did not depend on conjecture about how individuals would intentionally act in the future. “[T]he injuries are foreseeable and the expected results of unconscious and largely unavoidable human errors in transcription.” Id. at 1163. In addition, the chain of events “leading to the eventual injury” did “not begin with an assumption that someone will commit an illegal act.” Id. at 1164.
The same, I submit, is true here. As explained above, the decontamination claim does not depend on conjecture about how students or SROs will intentionally act in the future. SROs can constitutionally use Freeze +P on students under certain circumstances, but not all of their deployments of spray have been appropriate. See D.E. 282 at 52 (“[T]he court concludes that there was simply no reason for Officer Smith to spray K.B. with Freeze +P. . . . No justifiable basis existed for Officer Benson to spray B.J. with Freeze +P.”). But regardless of how a student has behaved, or whether an SRO has properly chosen to spray a student,
56

Case 2:10-cv-03314-AKK Document 316-1 Filed 11/27/18 Page 57 of 58 Case: 15-14669 Date Filed: 09/24/2018 Page: 57 of 57
decontamination of some kind will be necessary after Freeze +P is used, and SROs will resort to and follow the BPD’s allegedly unconstitutional protocol. Cf. Lyons, 461 U.S. at 106 (explaining that a plaintiff could seek an injunction against police misconduct where the government “ordered or authorized police officers” to enforce an unconstitutional policy); Kenny v. Wilson, 885 F.3d 280, 290 (4th Cir. 2018) (rejecting argument that students lacked standing under Lyons to challenge “disturbing schools” and “disorderly conduct” laws in part because they alleged “that there will be future encounters with officers at school and that the statutes in question authorize defendants to violate their rights to due process and free speech”).
In my view, there is a substantial likelihood that, absent an injunction, SROs will continue to decontaminate Birmingham high school students in an allegedly unconstitutional manner. I would therefore hold that the plaintiffs have standing to pursue class-based injunctive relief with respect to their decontamination claim.
57

Case 2:10-cv-03314-AKK Document 316-1 Filed 11/27/18 Page 58 of 58 Case: 15-14669 Date Filed: 09/24/2018 Page: 1 of 1

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

ELBERT PARR TUTTLE COURT OF APPEALS BUILDING 56 Forsyth Street, N.W. Atlanta, Georgia 30303

David J. Smith Clerk of Court

September 24, 2018

MEMORANDUM TO COUNSEL OR PARTIES
Appeal Number: 15-14669-EE Case Style: JW, et al v. A. Roper, et al District Court Docket No: 2:10-cv-03314-AKK

For rules and forms visit www.ca11.uscourts.gov

This Court requires all counsel to file documents electronically using the Electronic Case Files ("ECF") system, unless exempted for good cause. Enclosed is a copy of the court's decision filed today in this appeal. Judgment has this day been entered pursuant to FRAP 36. The court's mandate will issue at a later date in accordance with FRAP 41(b).

The time for filing a petition for rehearing is governed by 11th Cir. R. 40-3, and the time for filing a petition for rehearing en banc is governed by 11th Cir. R. 35-2. Except as otherwise provided by FRAP 25(a) for inmate filings, a petition for rehearing or for rehearing en banc is timely only if received in the clerk's office within the time specified in the rules. Costs are governed by FRAP 39 and 11th Cir.R. 39-1. The timing, format, and content of a motion for attorney's fees and an objection thereto is governed by 11th Cir. R. 39-2 and 39-3.

Please note that a petition for rehearing en banc must include in the Certificate of Interested Persons a complete list of all persons and entities listed on all certificates previously filed by any party in the appeal. See 11th Cir. R. 26.1-1. In addition, a copy of the opinion sought to be reheard must be included in any petition for rehearing or petition for rehearing en banc. See 11th Cir. R. 35-5(k) and 40-1 .

Counsel appointed under the Criminal Justice Act (CJA) must submit a voucher claiming compensation for time spent on the appeal no later than 60 days after either issuance of mandate or filing with the U.S. Supreme Court of a petition for writ of certiorari (whichever is later) via the eVoucher system. Please contact the CJA Team at (404) 335-6167 or cja_evoucher@ca11.uscourts.gov for questions regarding CJA vouchers or the eVoucher system.

Pursuant to Fed.R.App.P. 39, costs taxed against the appellees.

Please use the most recent version of the Bill of Costs form available on the court's website at www.ca11.uscourts.gov.

For questions concerning the issuance of the decision of this court, please call the number referenced in the signature block below. For all other questions, please call Elora Jackson, EE at (404) 335-6173.
Sincerely,
DAVID J. SMITH, Clerk of Court
Reply to: Djuanna Clark Phone #: 404-335-6161

OPIN-1A Issuance of Opinion With Costs

 
 Case: 2:10-cv-3314 As of: 01/30/2019 11:51 AM CST 1 of 38
CLOSED,PROTECTIVE ORDER
U.S. District Court Northern District of Alabama (Southern) CIVIL DOCKET FOR CASE #: 2:10−cv−03314−AKK

J W et al v. Birmingham Board of Education et al Assigned to: Judge Abdul K Kallon Case in other court: 11th Circuit, 12−15551−D
USCA 11th Circuit, 15−14669−E Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 12/01/2010 Date Terminated: 12/14/2018 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

J W by and through his next friend, Tammy Williams

represented by Brooke Menschel SOUTHERN POVERTY LAW CENTER 400 Washington Avenue Montgomery, Al 36104 202−332−2033 Email: brookemenschel@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jerri Katzerman SOUTHERN POVERTY LAW CENTER 400 Washington Avenue Montgomery, AL 36104 334−956−8200 Fax: 334−956−8481 Email: jerri.katzerman@splcenter.org TERMINATED: 08/28/2017 LEAD ATTORNEY

Dominique Nong SOUTHERN POVERY LAW CENTER 400 Washington Avenue Montgomery, AL 36104 334−956−8200 Fax: 334−956−8481 Email: dominique.nong@splcenter.org TERMINATED: 12/16/2011 ATTORNEY TO BE NOTICED

Ebony G Howard FEDERAL PUBLIC DEFENDERS OFFICE NORTHERN DISTRICT OF ALABAMA 505 20th Street North Suite 1425 Birmingham, AL 35203 205−208−7170 Fax: 205−307−2567 Email: Ebony_Howard@fd.org TERMINATED: 08/28/2017 ATTORNEY TO BE NOTICED

Jadine C Johnson SOUTHERN POVERY LAW CENTER 400 Washington Avenue Montgomery, AL 36104 334−956−8200 Fax: 334−956−8481 Email: jadine.johnson@splcenter.org TERMINATED: 04/11/2014 ATTORNEY TO BE NOTICED

Case: 2:10-cv-3314 As of: 01/30/2019 11:51 AM CST 2 of 38

Plaintiff
G S by and through her next friend, LaTonya Stearnes

Kristi L Graunke SOUTHERN POVERTY LAW CENTER 150 E. Ponce de Leon Ave. Suite 340 Atlanta, GA 30030 404−521−6700 Fax: 404−221−5857 Email: kristi.graunke@splcenter.org TERMINATED: 01/04/2013 ATTORNEY TO BE NOTICED
Maria V Morris SOUTHERN POVERTY LAW CENTER 400 Washington Avenue Montgomery, AL 36104 334−956−8200 Fax: 334−956−8481 Email: maria.morris@splcenter.org ATTORNEY TO BE NOTICED
Mary Catherine Bauer SOUTHERN POVERTY LAW CENTER 400 Washington Avenue Montgomery, AL 36104 334−956−8200 Fax: 334−956−8481 Email: mary.bauer@splcenter.org TERMINATED: 05/30/2013 ATTORNEY TO BE NOTICED
represented by Brooke Menschel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jerri Katzerman (See above for address) TERMINATED: 08/28/2017 LEAD ATTORNEY
Dominique Nong (See above for address) TERMINATED: 12/16/2011 ATTORNEY TO BE NOTICED
Ebony G Howard (See above for address) TERMINATED: 08/28/2017 ATTORNEY TO BE NOTICED
Jadine C Johnson (See above for address) TERMINATED: 04/11/2014 ATTORNEY TO BE NOTICED
Kristi L Graunke (See above for address) TERMINATED: 01/04/2013 ATTORNEY TO BE NOTICED
Maria V Morris (See above for address)

Case: 2:10-cv-3314 As of: 01/30/2019 11:51 AM CST 3 of 38

ATTORNEY TO BE NOTICED

Mary Catherine Bauer (See above for address) TERMINATED: 05/30/2013 ATTORNEY TO BE NOTICED

Plaintiff
P S by and through her next friend, LaToyna Stearnes

represented by Brooke Menschel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jerri Katzerman (See above for address) TERMINATED: 08/28/2017 LEAD ATTORNEY

Dominique Nong (See above for address) TERMINATED: 12/16/2011 ATTORNEY TO BE NOTICED

Ebony G Howard (See above for address) TERMINATED: 08/28/2017 ATTORNEY TO BE NOTICED

Jadine C Johnson (See above for address) TERMINATED: 04/11/2014 ATTORNEY TO BE NOTICED

Kristi L Graunke (See above for address) TERMINATED: 01/04/2013 ATTORNEY TO BE NOTICED

Maria V Morris (See above for address) ATTORNEY TO BE NOTICED

Mary Catherine Bauer (See above for address) TERMINATED: 05/30/2013 ATTORNEY TO BE NOTICED

Plaintiff
T L P by and through her next friend, Tarra Pritchett

represented by Brooke Menschel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jerri Katzerman (See above for address) TERMINATED: 08/28/2017 LEAD ATTORNEY

Dominique Nong (See above for address) TERMINATED: 12/16/2011 ATTORNEY TO BE NOTICED

Ebony G Howard

Case: 2:10-cv-3314 As of: 01/30/2019 11:51 AM CST 4 of 38

(See above for address) TERMINATED: 08/28/2017 ATTORNEY TO BE NOTICED

Jadine C Johnson (See above for address) TERMINATED: 04/11/2014 ATTORNEY TO BE NOTICED

Kristi L Graunke (See above for address) TERMINATED: 01/04/2013 ATTORNEY TO BE NOTICED

Maria V Morris (See above for address) ATTORNEY TO BE NOTICED

Mary Catherine Bauer (See above for address) TERMINATED: 05/30/2013 ATTORNEY TO BE NOTICED

Plaintiff
T A P by and through her next friend, Barbara Pettaway, individually

represented by Brooke Menschel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jerri Katzerman (See above for address) TERMINATED: 08/28/2017 LEAD ATTORNEY

Dominique Nong (See above for address) TERMINATED: 12/16/2011 ATTORNEY TO BE NOTICED

Ebony G Howard (See above for address) TERMINATED: 08/28/2017 ATTORNEY TO BE NOTICED

Jadine C Johnson (See above for address) TERMINATED: 04/11/2014 ATTORNEY TO BE NOTICED

Kristi L Graunke (See above for address) TERMINATED: 01/04/2013 ATTORNEY TO BE NOTICED

Maria V Morris (See above for address) ATTORNEY TO BE NOTICED

Mary Catherine Bauer (See above for address) TERMINATED: 05/30/2013 ATTORNEY TO BE NOTICED

Plaintiff

Case: 2:10-cv-3314 As of: 01/30/2019 11:51 AM CST 5 of 38

B J by and through his next friend, Renee Howard

represented by Brooke Menschel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jerri Katzerman (See above for address) TERMINATED: 08/28/2017 LEAD ATTORNEY

Dominique Nong (See above for address) TERMINATED: 12/16/2011 ATTORNEY TO BE NOTICED

Ebony G Howard (See above for address) TERMINATED: 08/28/2017 ATTORNEY TO BE NOTICED

Jadine C Johnson (See above for address) TERMINATED: 04/11/2014 ATTORNEY TO BE NOTICED

Kristi L Graunke (See above for address) TERMINATED: 01/04/2013 ATTORNEY TO BE NOTICED

Maria V Morris (See above for address) ATTORNEY TO BE NOTICED

Mary Catherine Bauer (See above for address) TERMINATED: 05/30/2013 ATTORNEY TO BE NOTICED

Plaintiff
B D by and through her next friend, Angela Davis

represented by Brooke Menschel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jerri Katzerman (See above for address) TERMINATED: 08/28/2017 LEAD ATTORNEY

Dominique Nong (See above for address) TERMINATED: 12/16/2011 ATTORNEY TO BE NOTICED

Ebony G Howard (See above for address) TERMINATED: 08/28/2017 ATTORNEY TO BE NOTICED

Jadine C Johnson (See above for address) TERMINATED: 04/11/2014 ATTORNEY TO BE NOTICED

Case: 2:10-cv-3314 As of: 01/30/2019 11:51 AM CST 6 of 38

Plaintiff
K B by and through her next friend, Maddie West, on behalf of themselves and all similarly situated individuals

Kristi L Graunke (See above for address) TERMINATED: 01/04/2013 ATTORNEY TO BE NOTICED
Maria V Morris (See above for address) ATTORNEY TO BE NOTICED
Mary Catherine Bauer (See above for address) TERMINATED: 05/30/2013 ATTORNEY TO BE NOTICED
represented by Brooke Menschel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jerri Katzerman (See above for address) TERMINATED: 08/28/2017 LEAD ATTORNEY
Dominique Nong (See above for address) TERMINATED: 12/16/2011 ATTORNEY TO BE NOTICED
Ebony G Howard (See above for address) TERMINATED: 08/28/2017 ATTORNEY TO BE NOTICED
Jadine C Johnson (See above for address) TERMINATED: 04/11/2014 ATTORNEY TO BE NOTICED
Kristi L Graunke (See above for address) TERMINATED: 01/04/2013 ATTORNEY TO BE NOTICED
Maria V Morris (See above for address) ATTORNEY TO BE NOTICED
Mary Catherine Bauer (See above for address) TERMINATED: 05/30/2013 ATTORNEY TO BE NOTICED

V.
Defendant
Birmingham Board of Education TERMINATED: 07/20/2011

represented by Mark S Boardman Boardman, Carr, Petelos, Watkins & Ogle, P.C. 400 Boardman Drive Chelsea, AL 35043−8211

Case: 2:10-cv-3314 As of: 01/30/2019 11:51 AM CST 7 of 38

205−678−8000 Fax: 205−678−0000 Email: mboardman@boardmancarr.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Clay R Carr BOARDMAN, CARR, BENNETT, WATKINS, HILL & GAMBLE, P.C. 400 Boardman Drive Chelsea, AL 35043−8211 205−678−8000 Fax: 205−678−0000 Email: ccarr@boardmancarr.com ATTORNEY TO BE NOTICED

Defendant
Craig Witherspoon in his individual and official capacity as Superintendent of the Birmingham City School District TERMINATED: 07/29/2011

represented by Mark S Boardman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Clay R Carr (See above for address) ATTORNEY TO BE NOTICED

Defendant
A C Roper in his individual and official capacity as Chief of the Birmingham Police Department

represented by Eddie T Ramey BURR & FORMAN LLP 420 North 2th Street Suite 3400 Birmingham, AL 35203 205−458−5489 Fax: 205−244−5729 Email: tramey@burr.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Frederic L Fullerton , II CITY OF BIRMINGHAM Legal Department 710 North 20th Street Room 600 Birmingham, AL 35203 205−254−2369 Fax: 205−254−2502 Email: flfulle@ci.birmingham.al.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert H Rutherford , Jr BURR & FORMAN LLP 420 North 20th Street Suite 3400 Birmingham, AL 35203 205−251−3000 Fax: 205−244−5704 Email: robert.rutherford@Burr.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth Bosquet Shirley BURR & FORMAN LLP 420 North 20th Street, Suite 3100

Case: 2:10-cv-3314 As of: 01/30/2019 11:51 AM CST 8 of 38
Birmingham, AL 35203 205−251−3000 Fax: 205−458−5100 Email: bshirley@burr.com ATTORNEY TO BE NOTICED
Forrest S Latta BURR & FORMAN LLP P O Box 2287 Mobile, AL 36652 251−344−5151 Fax: 251−344−9696 Email: flatta@burr.com TERMINATED: 11/12/2015 ATTORNEY TO BE NOTICED
Javan J Patton CITY OF BIRMINGHAM Department of Law 710 North 20th Street Room 600 Birmingham, AL 35203 205−254−2369 Fax: 205−254−2502 Email: javan.patton@birminghamal.gov ATTORNEY TO BE NOTICED
Julien Mitchell Relfe BURR & FORMAN LLP 420 North 20th Street, Ste. 3400 Birmingham, AL 35203 205−458−5318 Fax: 205−244−5622 Email: mrelfe@burr.com TERMINATED: 02/05/2016 ATTORNEY TO BE NOTICED
Mark M Lawson BURR & FORMAN LLP 420 North 20th Street, Suite 3400 Birmingham, AL 35203 205−251−3000 Fax: 205−244−5668 Email: mlawson@burr.com TERMINATED: 11/12/2015 ATTORNEY TO BE NOTICED
Michael K K Choy BURR & FORMAN, LLP 420 North 20th Street Suite 3400 Birmingham, AL 35203 205−251−3000 Fax: 205−458−5616 Email: mchoy@burr.com ATTORNEY TO BE NOTICED
Nicole E King CITY OF BIRMINGHAM LAW DEPT. 710 North 20th Street Room 600 Birmingham, AL 35203 205−254−2369 Fax: 205−254−2502 Email: nicole.king@birminghamal.gov

Case: 2:10-cv-3314 As of: 01/30/2019 11:51 AM CST 9 of 38

ATTORNEY TO BE NOTICED

Thomas Bentley , III CITY OF BIRMINGHAM LAW DEPARTMENT 710 North 20th Street Room 600 Birmingham, AL 35203 205−254−2369 Fax: 205−254−2502 Email: thomas.bentley@birminghamal.gov ATTORNEY TO BE NOTICED

Defendant
J Nevitt Officer, in his individual capacity

represented by Eddie T Ramey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Frederic L Fullerton , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert H Rutherford , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth Bosquet Shirley (See above for address) ATTORNEY TO BE NOTICED

Forrest S Latta (See above for address) TERMINATED: 11/12/2015 ATTORNEY TO BE NOTICED

Javan J Patton (See above for address) ATTORNEY TO BE NOTICED

Julien Mitchell Relfe (See above for address) TERMINATED: 02/05/2016 ATTORNEY TO BE NOTICED

Mark M Lawson (See above for address) TERMINATED: 11/12/2015 ATTORNEY TO BE NOTICED

Michael K K Choy (See above for address) ATTORNEY TO BE NOTICED

Nicole E King (See above for address) ATTORNEY TO BE NOTICED

Thomas Bentley , III (See above for address) ATTORNEY TO BE NOTICED

Case: 2:10-cv-3314 As of: 01/30/2019 11:51 AM CST 10 of 38

Defendant
A Clark Officer, in his individual capacity

represented by Eddie T Ramey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Frederic L Fullerton , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert H Rutherford , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth Bosquet Shirley (See above for address) ATTORNEY TO BE NOTICED

Forrest S Latta (See above for address) TERMINATED: 11/12/2015 ATTORNEY TO BE NOTICED

Javan J Patton (See above for address) ATTORNEY TO BE NOTICED

Julien Mitchell Relfe (See above for address) TERMINATED: 02/05/2016 ATTORNEY TO BE NOTICED

Mark M Lawson (See above for address) TERMINATED: 11/12/2015 ATTORNEY TO BE NOTICED

Michael K K Choy (See above for address) ATTORNEY TO BE NOTICED

Nicole E King (See above for address) ATTORNEY TO BE NOTICED

Thomas Bentley , III (See above for address) ATTORNEY TO BE NOTICED

Defendant
Anthony Moss Assistant Principal, in his individual capacity TERMINATED: 04/16/2013

represented by Mark S Boardman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Clay R Carr (See above for address) ATTORNEY TO BE NOTICED

Defendant

represented by

Case: 2:10-cv-3314 As of: 01/30/2019 11:51 AM CST 11 of 38

R Tarrant Officer, in his individual capacity

Eddie T Ramey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Frederic L Fullerton , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert H Rutherford , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth Bosquet Shirley (See above for address) ATTORNEY TO BE NOTICED

Forrest S Latta (See above for address) TERMINATED: 11/12/2015 ATTORNEY TO BE NOTICED

Javan J Patton (See above for address) ATTORNEY TO BE NOTICED

Julien Mitchell Relfe (See above for address) TERMINATED: 02/05/2016 ATTORNEY TO BE NOTICED

Mark M Lawson (See above for address) TERMINATED: 11/12/2015 ATTORNEY TO BE NOTICED

Michael K K Choy (See above for address) ATTORNEY TO BE NOTICED

Nicole E King (See above for address) ATTORNEY TO BE NOTICED

Thomas Bentley , III (See above for address) ATTORNEY TO BE NOTICED

Defendant
M Benson Officer, in her individual capacity

represented by Eddie T Ramey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Frederic L Fullerton , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert H Rutherford , Jr (See above for address) LEAD ATTORNEY

Case: 2:10-cv-3314 As of: 01/30/2019 11:51 AM CST 12 of 38

ATTORNEY TO BE NOTICED

Elizabeth Bosquet Shirley (See above for address) ATTORNEY TO BE NOTICED

Forrest S Latta (See above for address) TERMINATED: 11/12/2015 ATTORNEY TO BE NOTICED

Javan J Patton (See above for address) ATTORNEY TO BE NOTICED

Julien Mitchell Relfe (See above for address) TERMINATED: 02/05/2016 ATTORNEY TO BE NOTICED

Mark M Lawson (See above for address) TERMINATED: 11/12/2015 ATTORNEY TO BE NOTICED

Michael K K Choy (See above for address) ATTORNEY TO BE NOTICED

Nicole E King (See above for address) ATTORNEY TO BE NOTICED

Thomas Bentley , III (See above for address) ATTORNEY TO BE NOTICED

Defendant
D Henderson Officer, in his individual capacity

represented by Eddie T Ramey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Frederic L Fullerton , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert H Rutherford , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth Bosquet Shirley (See above for address) ATTORNEY TO BE NOTICED

Forrest S Latta (See above for address) TERMINATED: 11/12/2015 ATTORNEY TO BE NOTICED

Javan J Patton (See above for address)

Case: 2:10-cv-3314 As of: 01/30/2019 11:51 AM CST 13 of 38

ATTORNEY TO BE NOTICED

Julien Mitchell Relfe (See above for address) TERMINATED: 02/05/2016 ATTORNEY TO BE NOTICED

Mark M Lawson (See above for address) TERMINATED: 11/12/2015 ATTORNEY TO BE NOTICED

Michael K K Choy (See above for address) ATTORNEY TO BE NOTICED

Nicole E King (See above for address) ATTORNEY TO BE NOTICED

Thomas Bentley , III (See above for address) ATTORNEY TO BE NOTICED

Defendant
S Smith Officer, in his individual capacity

represented by Eddie T Ramey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Frederic L Fullerton , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert H Rutherford , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth Bosquet Shirley (See above for address) ATTORNEY TO BE NOTICED

Forrest S Latta (See above for address) TERMINATED: 11/12/2015 ATTORNEY TO BE NOTICED

Javan J Patton (See above for address) ATTORNEY TO BE NOTICED

Julien Mitchell Relfe (See above for address) TERMINATED: 02/05/2016 ATTORNEY TO BE NOTICED

Mark M Lawson (See above for address) TERMINATED: 11/12/2015 ATTORNEY TO BE NOTICED

Michael K K Choy

Case: 2:10-cv-3314 As of: 01/30/2019 11:51 AM CST 14 of 38
(See above for address) ATTORNEY TO BE NOTICED
Nicole E King (See above for address) ATTORNEY TO BE NOTICED
Thomas Bentley , III (See above for address) ATTORNEY TO BE NOTICED

Date Filed 12/01/2010
12/01/2010 12/09/2010
12/22/2010
01/07/2011 01/07/2011 01/07/2011 01/07/2011
01/12/2011 01/12/2011 01/12/2011 01/12/2011 01/12/2011

# Docket Text
1 COMPLAINT against M Benson, Birmingham Board of Education, A Clark, Anthony Moss, J Nevitt, A C Roper, R Tarrant, Craig Witherspoon (Filing fee $ 350, rcpt #B4601017871), filed by P S, B J, G S, J W, T A P, T L P.(FNC) (Entered: 12/01/2010)
2 Summons Issued as to M Benson, Birmingham Board of Education, A Clark, Anthony Moss, J Nevitt, A C Roper, R Tarrant, Craig Witherspoon. Returned to pltf for service. (FNC) (Entered: 12/01/2010)
3 SUMMONS Returned Executed by B J, G S, J W, T A P, T L P. M Benson served on 12/8/2010, answer due 12/29/2010; Birmingham Board of Education served on 12/8/2010, answer due 12/29/2010; A Clark served on 12/8/2010, answer due 12/29/2010; Anthony Moss served on 12/8/2010, answer due 12/29/2010; J Nevitt served on 12/8/2010, answer due 12/29/2010; A C Roper served on 12/8/2010, answer due 12/29/2010; R Tarrant served on 12/8/2010, answer due 12/29/2010; Craig Witherspoon served on 12/8/2010, answer due 12/29/2010. (KAM, ) (Entered: 12/13/2010)
4 First MOTION for Extension of Time for Plaintiffs to file Amended Complaint and for Defendants to Respond by B J, M Benson, Birmingham Board of Education, A Clark, G S, J W, Anthony Moss, J Nevitt, P S, A C Roper, T A P, T L P, R Tarrant, Craig Witherspoon. (Attachments: # 1 Agreed Order)(Howard, Ebony) (Entered: 12/22/2010)
5 NOTICE of Appearance by Mark S Boardman on behalf of Birmingham Board of Education (Boardman, Mark) (Entered: 01/07/2011)
6 NOTICE of Appearance by Clay R Carr on behalf of Birmingham Board of Education (Carr, Clay) (Entered: 01/07/2011)
7 NOTICE by B J, G S, J W, P S, T A P, T L P Notice of Filing Plaintiffs' First Amended Complaint (Howard, Ebony) (Entered: 01/07/2011)
8 AMENDED COMPLAINT Plaintiffs' First Amended Complaint against M Benson, Birmingham Board of Education, A Clark, Anthony Moss, J Nevitt, A C Roper, R Tarrant, Craig Witherspoon, filed by P S, B J, G S, J W, T A P, T L P.(Howard, Ebony) (Entered: 01/07/2011)
9 ANSWER to Amended Complaint by A C Roper.(Fullerton, Frederic) (Entered: 01/12/2011)
10 ANSWER to Amended Complaint by J Nevitt.(Fullerton, Frederic) (Entered: 01/12/2011)
11 ANSWER to Amended Complaint by M Benson.(Fullerton, Frederic) (Entered: 01/12/2011)
12 ANSWER to Amended Complaint by R Tarrant.(Fullerton, Frederic) (Entered: 01/12/2011)
13 ANSWER to Amended Complaint by A Clark.(Fullerton, Frederic) (Entered: 01/12/2011)

Case: 2:10-cv-3314 As of: 01/30/2019 11:51 AM CST 15 of 38

01/21/2011 01/21/2011 01/21/2011
01/31/2011 01/31/2011
02/14/2011
02/14/2011
02/14/2011
02/28/2011 03/03/2011 05/02/2011 05/03/2011 05/03/2011
05/03/2011 05/11/2011 05/11/2011 05/11/2011

14 MOTION to Dismiss by Birmingham Board of Education, Anthony Moss, Craig Witherspoon. (Carr, Clay) (Entered: 01/21/2011)
15 Brief re 14 MOTION to Dismiss. (Carr, Clay) (Entered: 01/21/2011)
16 SUBMISSION ORDER re 14 MOTION to Dismiss filed by Birmingham Board of Education, Anthony Moss, Craig Witherspoon; opposition due 2/14/11, dfts' reply due 2/28/11; Setting Hearing on 14 MOTION to Dismiss: Motion Hearing set for 4/21/2011 03:00 PM in Hugo L Black US Courthouse, Birmingham, AL before Chief Judge Sharon Lovelace Blackburn; Signed by Chief Judge Sharon Lovelace Blackburn on 1/21/2011. (BST, ) (Entered: 01/21/2011)
17 First MOTION to Continue April 21, 2010 Hearing Date by B J, G S, J W, P S, T A P, T L P. (Howard, Ebony) (Entered: 01/31/2011)
18 ORDER, granting 17 First MOTION to Continue April 21, 2010 Hearing Date Hearing set for 5/19/2011 03:00 PM in Hugo L Black US Courthouse, Birmingham, AL before Chief Judge Sharon Lovelace Blackburn.. Signed by Chief Judge Sharon Lovelace Blackburn on 1/31/2011. (KAM, ) (Entered: 01/31/2011)
19 First MOTION to Amend/Correct 8 Amended Complaint, 1 Complaint Plaintiffs' Motion to File Second Amended Complaint and Incorporated Memorandum of Law by B J, G S, J W, P S, T A P, T L P. (Attachments: # 1 Text of Proposed Order Proposed Order on Plaintiff's Miotn to File Second Amended Complaint)(Howard, Ebony) (Entered: 02/14/2011)
20 AMENDED COMPLAINT Plaintiffs' Second Amended Complaint against M Benson, Birmingham Board of Education, A Clark, Anthony Moss, J Nevitt, A C Roper, R Tarrant, Craig Witherspoon, filed by P S, B J, G S, J W, T A P, T L P.(Howard, Ebony) (Entered: 02/14/2011)
21 RESPONSE in Opposition re 14 MOTION to Dismiss Plaintiffs' Response in Opposition to the Motion to Dismiss of Defendants Birmingham Board of Education, Witherspoon, and Moss filed by B J, G S, J W, P S, T A P, T L P. (Howard, Ebony) (Entered: 02/14/2011)
22 REPLY to Response to Motion re 14 MOTION to Dismiss filed by Birmingham Board of Education, Anthony Moss, Craig Witherspoon. (Carr, Clay) (Entered: 02/28/2011)
23 REPORT of Rule 26(f) Planning Meeting. (Carr, Clay) (Entered: 03/03/2011)
24 NOTICE by Birmingham Board of Education, Anthony Moss, Craig Witherspoon Notice of Service of Interrogatories and Requests for Production (Carr, Clay) (Entered: 05/02/2011)
25 Third MOTION to Amend/Correct Plaintiffs' Complaint by B J, G S, J W, P S, T A P, T L P. (Attachments: # 1 Plaintiffs' Third Amended Complaint, # 2 Text of Proposed Order)(Howard, Ebony) (Entered: 05/03/2011)
26 First MOTION to Certify Class by G S, J W, P S, T A P. (Attachments: # 1 Memorandum in Support of Motion for Class Certification, # 2 Exhibit 1 to Memorandum, # 3 Exhibit 2 to Memorandum, # 4 Exhibit 3 to Memorandum)(Howard, Ebony) (Entered: 05/03/2011)
27 First MOTION to Seal Document by B J, G S, J W, P S, T A P, T L P. (Attachments: # 1 Text of Proposed Order)(Howard, Ebony) (Entered: 05/03/2011)
28 MOTION to Strike Exhibits to Plaintiffs' Motion to File Documents Under Seal by Birmingham Board of Education, Anthony Moss, Craig Witherspoon. (Carr, Clay) (Entered: 05/11/2011)
29 First MOTION for Leave to Appear Pro Hac Vice , Kristi L. Graunke by B J, G S, J W, P S, T A P, T L P. (Attachments: # 1 Text of Proposed Order)(Graunke, Kristi) (Entered: 05/11/2011)
30 MOTION to Strike by M Benson, A Clark, J Nevitt, A C Roper, R Tarrant. (Fullerton, Frederic) (Entered: 05/11/2011)

Case: 2:10-cv-3314 As of: 01/30/2019 11:51 AM CST 16 of 38

05/12/2011 05/12/2011 05/13/2011 05/16/2011 05/19/2011 05/24/2011 05/26/2011 05/26/2011 05/27/2011
05/27/2011
05/31/2011
06/01/2011 06/03/2011 06/08/2011 06/08/2011
06/08/2011 06/09/2011

31 MOTION to Strike Exhibits to Plaintiffs' Motion for Class Certification by Birmingham Board of Education, Anthony Moss, Craig Witherspoon. (Carr, Clay) (Entered: 05/12/2011)
PHV Fee paid for Kristi L. Graunke: $50, receipt number B4601022938 (CVA) (Entered: 05/25/2011)
32 RESPONSE to Discovery Request by M Benson, A Clark, J Nevitt, A C Roper, R Tarrant.(Fullerton, Frederic) (Entered: 05/13/2011)
33 Motion for Briefing Schedule filed by Birmingham Board of Education, Anthony Moss, Craig Witherspoon. (Attachments: # 1 Text of Proposed Order)(Carr, Clay) Modified on 5/18/2011 (KAM, ). (Entered: 05/16/2011)
34 ORDER OF RECUSAL. Chief Judge Sharon Lovelace Blackburn recused. Case reassigned to Judge Abdul K Kallon for all further proceedings. Signed by Chief Judge Sharon Lovelace Blackburn on 5/19/2011. (KAM) (Entered: 05/19/2011)
35 MOTION for Protective Order by Birmingham Board of Education, Anthony Moss, Craig Witherspoon. (Attachments: # 1 Text of Proposed Order)(Carr, Clay) (Entered: 05/24/2011)
ORDER granting 29 Motion for Leave to Appear Pro Hac Vice. Attorney Kristi L. Graunke added.Signed by Judge Abdul K Kallon on 05/26/11. (CVA) (Entered: 05/26/2011)
36 PROTECTIVE ORDER. Signed by Judge Abdul K Kallon on 05/26/11. (CVA) (Entered: 05/26/2011)
37 ALND UNIFORM INITIAL ORDER GOVERNING ALL FURTHER PROCEEDINGS reminding parties of their obligations under FRCP26(f) and LR26.1(d)− with appendices attached. Signed by Judge Abdul K Kallon on 5/27/2011. (KSS) (Entered: 05/27/2011)
38 First MOTION for Extension of Time to File Response/Reply as to 30 MOTION to Strike, 28 MOTION to Strike Exhibits to Plaintiffs' Motion to File Documents Under Seal, 31 MOTION to Strike Exhibits to Plaintiffs' Motion for Class Certification by B J, G S, J W, P S, T A P, T L P. (Attachments: # 1 Text of Proposed Order)(Howard, Ebony) (Entered: 05/27/2011)
ORDER granting 38 Plaintiffs' Motion for Extension of Time. Plaintiffs may respond to Defendants' respective motions to strike, 28 , 30 , and 31 by Wednesday, June 8, 2011. Defendants' replies, if any, are due Monday, June 13. Signed by Judge Abdul K Kallon on 05/31/11. (CVA) (Entered: 05/31/2011)
39 First MOTION for Protective Order by B J, G S, J W, P S, T A P, T L P. (Attachments: # 1 Plaintiffs' Proposed Protective Order)(Howard, Ebony) (Entered: 06/01/2011)
40 PROTECTIVE ORDER. Signed by Judge Abdul K Kallon on 6/3/11. (ASL) (Entered: 06/03/2011)
41 MOTION for Protective Order or in the Alternative to Strike Plaintiffs' Discovery Requests by Birmingham Board of Education, Anthony Moss, Craig Witherspoon. (Carr, Clay) (Entered: 06/08/2011)
42 RESPONSE in Opposition re 28 MOTION to Strike Exhibits to Plaintiffs' Motion to File Documents Under Seal, 31 MOTION to Strike Exhibits to Plaintiffs' Motion for Class Certification of Defendants Birmingham Board of Education, Witherspoon, and Moss filed by B J, G S, J W, P S, T A P, T L P. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Howard, Ebony) (Entered: 06/08/2011)
43 RESPONSE in Opposition re 30 MOTION to Strike of Defendants' Roper, Nevitt, Clark, Tarrant, and Benson filed by B J, G S, J W, P S, T A P, T L P. (Attachments: # 1 Exhibit 1)(Howard, Ebony) (Entered: 06/08/2011)
44 MOTION to Withdraw 41 MOTION for Protective Order or in the Alternative to Strike Plaintiffs' Discovery Requests by Birmingham Board of Education, Anthony Moss, Craig Witherspoon. (Carr, Clay) (Entered: 06/09/2011)

Case: 2:10-cv-3314 As of: 01/30/2019 11:51 AM CST 17 of 38

06/10/2011 06/10/2011 06/30/2011 07/07/2011 07/20/2011 07/20/2011
07/20/2011
07/20/2011
07/29/2011 07/29/2011 08/02/2011
08/11/2011 08/11/2011 08/11/2011

ORDER finding as moot 41 Motion for Protective Order; granting 44 Motion to Withdraw. Signed by Judge Abdul K Kallon on 06/10/11. (CVA) (Entered: 06/10/2011)
45 NOTICE of Appearance by Dominique Nong on behalf of All Plaintiffs (Nong, Dominique) (Entered: 06/10/2011)
46 NOTICE by Birmingham Board of Education, Anthony Moss, Craig Witherspoon Notice of Service of Personnel Records (Carr, Clay) (Entered: 06/30/2011)
47 NOTICE by Birmingham Board of Education, Anthony Moss, Craig Witherspoon Notice of Service of Discovery Documents (Carr, Clay) (Entered: 07/07/2011)
48 MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 07/20/11. (CVA) (Entered: 07/20/2011)
49 ORDER GRANTING IN PART AND DENYING IN PART 14 MOTION to Dismiss filed by Birmingham Board of Education, Anthony Moss and Craig Witherspoon in accordance with the Memorandum Opinion. The counts are DISMISSED WITHOUT PREJUDICE. Plaintiffs may file their Third Amended Complaint on or before 7/29/11. Signed by Judge Abdul K Kallon on 07/20/11. (CVA) (Entered: 07/20/2011)
50 ORDER: In accordance with the Memorandum Opinion and Order ( 48 and 49 ), and in anticipation of the Plaintiffs' Anticipated Third Amended Complaint (pursuant to the granting of 25 ), the following is ORDERED with respect to the parties' outstanding motions: 4 and 19 are found to be MOOT; 26 is DENIED WITHOUT PREJUDICE to refiling on or before 9/30/11; 27 , 28 , 30 , 31 and 33 are found to be MOOT. The court anticipates considering some or all of the parties' respective assertions in the aforementioned motions via renewed motions once plaintiffs' provide added clarity to this case by way of their Third Amended Complaint. Signed by Judge Abdul K Kallon on 07/20/11. (CVA, ) (Entered: 07/20/2011)
51 SCHEDULING ORDER: that certain time limits apply as set out in order: Amended Pleadings due by 8/19/2011. Discovery due by 1/13/2012 (9/13/11 for class cert). Dispositive motions due by 2/17/2012. Motions and briefs for class cert are due on/before 9/30/11. Class Certification Hearing set for 12/1/2011 at 9:00 AM in Hugo L Black US Courthouse, Birmingham, AL before Judge Abdul K Kallon. Mediation order 12/13/11; object before 12/6/11. Signed by Judge Abdul K Kallon on 07/20/11. (CVA) (Entered: 07/20/2011)
52 AMENDED COMPLAINT Third Amended Complaint against All Defendants, filed by P S, B J, G S, J W, T A P, T L P.(Howard, Ebony) (Entered: 07/29/2011)
53 Unopposed Motion to Amend 51 The Scheduling Order by B J, G S, J W, P S, T A P, T L P. (Howard, Ebony) Modified on 7/29/2011 (CVA). (Entered: 07/29/2011)
54 AMENDED SCHEDULING ORDER: 53 First MOTION to Amend/Correct 51 Scheduling Order, is GRANTED. Certain time limits apply as set out in order: EXTENSIONS FOR THE DEADLINES SET FOR DISCOVERY CUTOFF AND DISPOSITIVE MOTIONS WILL NOT BE EXTENDED. Discovery for class certification due 10/14/11; for other issues 3/13/12. Amended parties and pleadings due by 10/18/11. Dispositive motions due by 4/13/12. Motions and briefs in support of class certification due 10/21/11. This case is set for a class certification hearing in front of Judge Abdul K. Kallon in the Hugo Black Federal Courthouse in Birmigham, AL on 12/1/11 at 9:00 am. Final list of witnesses/exhibits for the class cert hearing due on or before 11/1/11. Mediation order 2/13/12. Signed by Judge Abdul K Kallon on 08/02/11. (CVA) (Entered: 08/02/2011)
55 Defendant Anthony Moss' ANSWER to Amended Complaint by Anthony Moss.(Carr, Clay) (Entered: 08/11/2011)
56 MOTION to Dismiss Third Amended Complaint by Birmingham Board of Education. (Carr, Clay) (Entered: 08/11/2011)
57 ANSWER to Amended Complaint by A C Roper.(Fullerton, Frederic) (Entered: 08/11/2011)

Case: 2:10-cv-3314 As of: 01/30/2019 11:51 AM CST 18 of 38

08/11/2011 08/11/2011 08/11/2011 08/11/2011 08/11/2011 08/11/2011 08/16/2011 08/17/2011 09/09/2011 09/12/2011
09/13/2011 09/16/2011
09/21/2011 09/26/2011 09/26/2011 09/26/2011 09/27/2011 10/03/2011 10/04/2011 10/19/2011

58 ANSWER to Amended Complaint by J Nevitt.(Fullerton, Frederic) (Entered: 08/11/2011)
59 ANSWER to Amended Complaint by A Clark.(Fullerton, Frederic) (Entered: 08/11/2011)
60 ANSWER to Amended Complaint by R Tarrant.(Fullerton, Frederic) (Entered: 08/11/2011)
61 ANSWER to Amended Complaint by M Benson.(Fullerton, Frederic) (Entered: 08/11/2011)
62 ANSWER to Amended Complaint by D Henderson.(Fullerton, Frederic) (Entered: 08/11/2011)
63 ANSWER to Amended Complaint by S Smith.(Fullerton, Frederic) (Entered: 08/11/2011)
64 Defendants' Notice of Supplemental Discovery(Fullerton, Frederic) Modified on 8/16/2011 (CVA). (Entered: 08/16/2011)
65 NOTICE by Birmingham Board of Education, Anthony Moss, Craig Witherspoon of Service of Defendant Anthony Moss' Answers to Plaintiff's Interrogatories and Requests for Production (Carr, Clay) (Entered: 08/17/2011)
66 MOTION to Quash Subpoenas and for Protective Order by Birmingham Board of Education. (Attachments: # 1 Affidavit Affidavit of Emanuel Ford)(Carr, Clay) (Entered: 09/09/2011)
ORDER setting a briefing schedule on 66 MOTION to Quash Subpoenas and for Protective Order filed by Birmingham Board of Education. Response due by 9/16/11, reply due by 9/21/11. Signed by Judge Abdul K Kallon on 09/12/11. (CVA) (Entered: 09/12/2011)
67 AFFIDAVIT in Support re 66 MOTION to Quash Subpoenas and for Protective Order filed by Birmingham Board of Education. (Carr, Clay) (Entered: 09/13/2011)
68 RESPONSE in Opposition re 66 MOTION to Quash Subpoenas and for Protective Order filed by B D, B J, G S, J W, K B, P S, T A P, T L P. (Attachments: # 1 Declaration of Ebony Howard and Corresponding Exhibits)(Howard, Ebony) (Entered: 09/16/2011)
69 REPLY to Response to Motion re 66 MOTION to Quash Subpoenas and for Protective Order filed by Birmingham Board of Education. (Carr, Clay) (Entered: 09/21/2011)
70 NOTICE by Birmingham Board of Education, Anthony Moss Notice of Service of Notice of Deposition of T.A.P. and Barbara Pettaway (11/1/11) (Carr, Clay) (Entered: 09/26/2011)
71 MOTION to Strike 69 Reply to Response to Motion by B D, B J, G S, J W, K B, P S, T A P, T L P. (Howard, Ebony) (Entered: 09/26/2011)
72 Memorandum in Support of 71 , Motion to Strike by B D, B J, G S, J W, K B, P S, T A P, T L P. (Howard, Ebony) Modified on 9/26/2011 (CVA). (Entered: 09/26/2011)
ORDER setting briefing schedule on 71 MOTION to Strike 69 . Response due by 10/3/11; reply due by 10/6/11. Signed by Judge Abdul K Kallon on 09/27/11. (CVA) (Entered: 09/27/2011)
73 RESPONSE in Opposition re 71 MOTION to Strike 69 Reply to Response to Motion filed by Birmingham Board of Education. (Carr, Clay) (Entered: 10/03/2011)
74 REPLY Brief filed by Plaintiffs B D, B J, G S, J W, K B, P S, T A P, T L P re: 73 Response in Opposition to Motion filed by B D, B J, G S, J W, K B, P S, T A P, T L P. (Howard, Ebony) (Entered: 10/04/2011)
75 MOTION to Certify Class by B D, G S, J W, K B, P S, T L P. (Attachments: # 1 Memorandum in Support of Plaintiffs' Motion for Class Certification, # 2 Ex. 1 to Plaintiffs' Motion for Class Cert., # 3 Ex. 2 to Plaintiffs' Motion for Class Cert., # 4

Case: 2:10-cv-3314 As of: 01/30/2019 11:51 AM CST 19 of 38

10/20/2011 10/20/2011 10/24/2011 10/25/2011 10/28/2011 11/01/2011 11/01/2011 11/02/2011 11/09/2011 11/09/2011
11/09/2011
11/09/2011 11/15/2011 11/21/2011 11/21/2011 11/21/2011 11/21/2011 11/22/2011

Ex. 3 to Plaintiffs' Mot. for Class Cert., # 5 Ex. 4 to Plaintiffs' Motion for Class Cert., # 6 Ex. 5 to Plaintiffs' Motion for Class Cert., # 7 Ex. 6 to Plaintiffs' Motion for Class Cert., # 8 Ex. 7 to Plaintiffs' Motion for Class Cert., # 9 Text of Proposed Order)(Howard, Ebony) (Entered: 10/19/2011)
ORDER setting briefing schedule on 75 MOTION to Certify Class. Response due 11/2/11; reply due 11/9/11. Signed by Judge Abdul K Kallon on 10/20/11. (CVA) (Entered: 10/20/2011)
ORDER AMENDING BRIFING SCHEDULE on 75 MOTION to Certify Class. Response due 11/9/11, reply due 11/23/11. Signed by Judge Abdul K Kallon on 10/20/11. (CVA) (Entered: 10/20/2011)
76 NOTICE by Anthony Moss of Service of Second Request for Production of Documents (Carr, Clay) (Entered: 10/24/2011)
77 NOTICE by Birmingham Board of Education of Service of Response to Plaintiffs' Subpoenas (Carr, Clay) (Entered: 10/25/2011)
78 Witness List and Exhibit List for Class Certification by M Benson, A Clark, D Henderson, J Nevitt, A C Roper, S Smith, R Tarrant. (Fullerton, Frederic) (Entered: 10/28/2011)
79 Witness List and Exhibit List for Class Certification by Anthony Moss. (Carr, Clay) (Entered: 11/01/2011)
80 Witness List and Exhibit List by B D, G S, J W, K B, P S, T L P. (Howard, Ebony) (Entered: 11/01/2011)
81 MOTION to Clarify Order 54 by B D, B J, G S, J W, K B, P S, T A P, T L P. (Attachments: # 1 Affidavit of Ebony Howard on Request for Clarification)(Howard, Ebony) Modified on 11/2/2011 (CVA). (Entered: 11/02/2011)
82 MOTION to Strike 75 MOTION to Certify Class by M Benson, A Clark, D Henderson, J Nevitt, A C Roper, S Smith, R Tarrant. (Fullerton, Frederic) (Entered: 11/09/2011)
83 RESPONSE in Opposition re 75 MOTION to Certify Class Redacted Corrected filed by M Benson, A Clark, D Henderson, J Nevitt, A C Roper, S Smith, R Tarrant. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7 Part 1, # 8 Exhibit 7 Part 2)(Fullerton, Frederic) (Entered: 11/09/2011)
ORDER: Motions terminated: 81 MOTION to Clarify Request for Clarification on Class Certification Hearing. Pursuant to the Parties' agreement, the class certification hearing on 12/1/11 will be an oral argument. Signed by Judge Abdul K Kallon on 11/09/11. (CVA) (Entered: 11/09/2011)
84 Opposition to re 75 Defendant's Opposition to Motion for Class Certification filed by Anthony Moss. (Carr, Clay) (Entered: 11/09/2011)
85 Opposition to re 80 filed by Anthony Moss. (Carr, Clay) (Entered: 11/15/2011)
86 REPLY to re 84 , 85 filed by B D, B J, G S, J W, K B, P S, T A P, T L P. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit)(Howard, Ebony) (Entered: 11/21/2011)
87 RESPONSE to re 82 Defendants Motion to Strike Exhibits filed by B D, B J, G S, J W, K B, P S, T A P, T L P. (Howard, Ebony) (Entered: 11/21/2011)
88 REPLY to Declaration of Ebony Howard filed by B D, B J, G S, J W, K B, P S, T A P, T L P. (Howard, Ebony) (Entered: 11/21/2011)
89 MOTION to Seal Document by B D, B J, G S, J W, K B, P S, T A P, T L P. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit)(Howard, Ebony) (Entered: 11/21/2011)
90 MOTION to Strike 86 REPLY (other) by M Benson, A Clark, D Henderson, J Nevitt, A C Roper, S Smith, R Tarrant. (Fullerton, Frederic) (Entered: 11/22/2011)

Case: 2:10-cv-3314 As of: 01/30/2019 11:51 AM CST 20 of 38

11/23/2011 11/28/2011 11/29/2011 11/29/2011 11/29/2011 11/30/2011
11/30/2011 12/06/2011 12/15/2011 12/16/2011 12/21/2011 12/21/2011 12/28/2011 12/30/2011 01/03/2012
01/03/2012

ORDER granting 89 Motion for Leave to File Document Under Seal. Signed by Judge Abdul K Kallon on 11/23/11. (CVA) (Entered: 11/23/2011)
91 MOTION to Amend/Correct 86 REPLY (other) to Defendants' Opposition Briefs on the Motion for Class Certification by B D, G S, J W, K B, P S, T L P. (Attachments: # 1 Ex. 1 − Plaintiffs' Corrected Reply Brief)(Howard, Ebony) (Entered: 11/28/2011)
ORDER granting 91 Motion to Amend/Correct. Plaintiffs are directed to file attachment to 91 as a separate document. Signed by Judge Abdul K Kallon on 11/29/11. (CVA) (Entered: 11/29/2011)
ORDER: Class certification hearing set for 12/1/11 is RESET for 12/6/2011 at 9:00 AM in Hugo L Black US Courthouse, Birmingham, AL before Judge Abdul K Kallon. Signed by Judge Abdul K Kallon on 11/29/11. (CVA) (Entered: 11/29/2011)
92 NOTICE by Birmingham Board of Education Of Service of Supplemental Response to Plaintiffs' Subpoenas (Carr, Clay) Modified on 11/29/2011 (CVA). (Entered: 11/29/2011)
94 REPLY Brief filed by Plaintiffs B D, G S, J W, K B, P S, T L P re: 86 REPLY (other), 83 Response in Opposition to Motion, 84 Opposition (other) Plaintiffs' Corrected Reply to Defendants Opposition to the Motion for Class Certification filed by B D, G S, J W, K B, P S, T L P. (Attachments: # 1 Ex. 1 − Peoples Dep., # 2 Ex. 2 − Lyons Dep., # 3 Ex. 3 − Nevitt Dep., # 4 Ex. 4 − Glindmeyer Dec., # 5 Ex. 5 − Clark Dep., # 6 Ex. 6 − Tarrant Dep., # 7 Ex. 7 − Benson Dep.)(Howard, Ebony) (Entered: 11/30/2011)
95 RESPONSE in Opposition re 90 MOTION to Strike 86 REPLY (other) Plaintiffs' Response to Defendants' Motion to Strike Exhibit #4 to Plainitffs' Reply Brief filed by B D, G S, J W, K B, P S, T L P. (Attachments: # 1 Ex. 1 − Glindmeyer Dec.)(Howard, Ebony) (Entered: 11/30/2011)
Minute Entry for proceedings held before Judge Abdul K Kallon: Class Certification Hearing held on 12/6/2011. (Court Reporter Sabrina Lewis) (KSS) (Entered: 12/06/2011)
96 Plaintiffs' Unopposed Motion to Withdraw Dominique Nong as Counsel by B D, B J, G S, J W, K B, P S, T A P, T L P. (Attachments: # 1 Text of Proposed Order)(Howard, Ebony) (Entered: 12/15/2011)
ORDER granting 96 Motion to Withdraw as Attorney. Attorney Dominique Nong terminated. Signed by Judge Abdul K Kallon on 12/16/11. (CVA) (Entered: 12/16/2011)
97 MOTION (Unopposed) for Extension of Time until 12/30/11 to File Response/Reply Discovery Responses by M Benson, A Clark, D Henderson, J Nevitt, A C Roper, S Smith, R Tarrant. (Fullerton, Frederic) Modified on 12/21/2011 (CVA). (Entered: 12/21/2011)
ORDER granting 97 Motion for Extension of Time to File Response/Reply. Defendants' discovery response due by 12/30/2011. Signed by Judge Abdul K Kallon on 12/21/11. (CVA) (Entered: 12/21/2011)
98 MOTION for Leave to Conduct Deposition Pursuant to Fed. R.Civ.P. 30(a)(2)(B) by M Benson, A Clark, D Henderson, J Nevitt, A C Roper, S Smith, R Tarrant. (Fullerton, Frederic) Modified on 12/28/2011 (CVA) (Entered: 12/28/2011)
99 Defendants' Notice of Discovery (Fullerton, Frederic) Modified on 12/30/2011 (CVA). (Entered: 12/30/2011)
100 NOTICE by B D, B J, G S, J W, K B, P S, T A P, T L P Plaintiffs' Notice of Filing of Expert Report (Attachments: # 1 Expert Report of D. Glindmeyer, M.D., # 2 Exhibit A − Glindmeyer CV, # 3 Exhibit B − pt 1, # 4 Exhibit B − pt 2, # 5 Exhibit B − pt 3, # 6 Exhibit B − pt 4, # 7 Exhibit B − pt 5, # 8 Exhibit B − pt 6, # 9 Exhibit B − pt 7, # 10 Exhibit B − pt 8)(Howard, Ebony) (Entered: 01/03/2012)
101 NOTICE by B D, B J, G S, J W, K B, P S, T A P, T L P Plaintiffs' Notice of Filing of Expert Report (Attachments: # 1 Expert Report of Michael Cohen, M.D., # 2 Exhibit A − Cohen Resume, # 3 Exhibit B − Bibliography)(Howard, Ebony) (Entered:

Case: 2:10-cv-3314 As of: 01/30/2019 11:51 AM CST 21 of 38

01/03/2012 01/03/2012
01/12/2012 01/17/2012
01/17/2012
01/17/2012 01/17/2012 01/24/2012 01/27/2012 01/31/2012 02/07/2012 02/15/2012 02/15/2012 02/16/2012 02/21/2012

01/03/2012)
102 NOTICE by B D, B J, G S, J W, K B, P S, T A P, T L P Plaintiffs' Notice of Filing Expert Declaration (Attachments: # 1 Declaration of A. Kupchik, # 2 Exhibit A − Kupchik CV, # 3 Exhibit B − Bibliography)(Howard, Ebony) (Entered: 01/03/2012)
103 NOTICE by B D, B J, G S, J W, K B, P S, T A P, T L P Plaintiffs' Notice of Filing of Expert Declaration (Attachments: # 1 Expert Declaration of Peter Leone, # 2 Exhibit A − Leone CV, # 3 Exhibit B − 1, # 4 Exhibit B − 2, # 5 Exhibit B − 3, # 6 Exhibit B − 4, # 7 Exhibit B − 5, # 8 Exhbit B − 6, # 9 Exhbit B − 7)(Howard, Ebony) (Entered: 01/03/2012)
104 NOTICE by Anthony Moss of Service of Defendant's Second Request to T.A.P. for Production of Documents (Carr, Clay) (Entered: 01/12/2012)
105 Transcript of Proceedings held on 12/06/11 before Judge Abdul K. Kallon. Court Reporter/Transcriber Sabrina Lewis. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. NOTICE: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. (A copy can be obtained at http://www.alnd.uscourts.gov/local/court forms/transcripts/Transcript Redaction Policy.pdf) See Transcript Redaction Policy Redaction Request due 2/7/2012. Redacted Transcript Deadline set for 2/17/2012. Release of Transcript Restriction set for 4/16/2012. (CVA) (Entered: 01/17/2012)
106 NOTICE by B D, B J, G S, J W, K B, P S, T A P, T L P re 83 Response in Opposition to Motion, Notice of Newly Acquired Evidence (Attachments: # 1 Exhibit Transcript of December 6, 2011 Hearing, # 2 Exhibit Declaration of Maria Morris, # 3 Exhibit December 16, 2011 Letter from Howard to Fullerton, # 4 Exhibit December 16−28, 2011 Email Exchange, # 5 Exhibit January 6, 2012 Letter from Howard to Fullerton, # 6 Exhibit January 10, 2012 Letter from Fullerton to Howard)(Howard, Ebony) (Entered: 01/17/2012)
107 NOTICE by B D, B J, G S, J W, K B, P S, T A P, T L P re 106 Notice (Other) Notice of Filing Documents Under Seal Pursuant to Plaintiffs' Protective Order (Howard, Ebony) Modified on 1/17/2012 (CVA). (Entered: 01/17/2012)
ORDER granting 98 Motion for Discovery. Signed by Judge Abdul K Kallon on 01/17/12. (CVA) (Entered: 01/17/2012)
109 NOTICE by Birmingham Board of Education, Anthony Moss, Craig Witherspoon of Service of Audio Recording of 2/28/11 Disciplinary Hearing of B.D. (Carr, Clay) (Entered: 01/24/2012)
110 NOTICE by M Benson, A Clark, D Henderson, J Nevitt, A C Roper, S Smith, R Tarrant Objection to Mediation (Fullerton, Frederic) (Entered: 01/27/2012)
111 RESPONSE to re 110 Response to Defendants' Objection Regarding Mediation filed by B D, B J, G S, J W, K B, P S, T A P, T L P. (Howard, Ebony) (Entered: 01/31/2012)
112 NOTICE by Anthony Moss of Service of Defendant's Expert Disclosures (Carr, Clay) (Entered: 02/07/2012)
113 NOTICE by Anthony Moss of Service of Supplemental Disclosures (Carr, Clay) (Entered: 02/15/2012)
114 NOTICE by Birmingham Board of Education of Service of Response to Subpoena for Student Records of T.A.P. (Carr, Clay) (Entered: 02/15/2012)
115 NOTICE of Appearance by Jadine C Johnson on behalf of All Plaintiffs (Johnson, Jadine) (Entered: 02/16/2012)
116 First MOTION to Compel or in Alternative Motion to Dismiss Plaintiff BJ by M Benson, A C Roper. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Fullerton, Frederic) (Entered: 02/21/2012)

Case: 2:10-cv-3314 As of: 01/30/2019 11:51 AM CST 22 of 38

02/21/2012 02/21/2012 02/21/2012
02/22/2012 03/01/2012 03/01/2012 03/01/2012 03/06/2012 03/12/2012 03/16/2012 03/19/2012 03/27/2012 03/28/2012 03/29/2012
03/29/2012

117 NOTICE by Anthony Moss of Service of Third Request to Plaintiffs for Production of Documents (Carr, Clay) (Entered: 02/21/2012)
ORDER setting briefing schedule on 116 First MOTION to Compel or in Alternative Motion to Dismiss Plaintiff BJ filed by M Benson and A C Roper. Response due 3/1/12; reply due 3/6/12. Signed by Judge Abdul K Kallon on 02/21/12. (CVA) (Entered: 02/21/2012)
118 MOTION to Compel Discovery Responses from Police Defendants by B D, B J, G S, J W, K B, P S, T A P, T L P. (Attachments: # 1 Plaintiffs Memorandum in Support of Motion to Compel Discovery Responses from Police Defendants, # 2 Exhibit Ex. A Dec. of Ebony Howard, # 3 Exhibit Ex. 1 to Dec. of E. Howard (Discovery Requests and Responses), # 4 Exhibit Ex. 2 to Dec. of E. Howard (Counsel Correspondence), # 5 Exhibit Ex. 3 to Dec. of E. Howard (Dec. of Jenna Roberts), # 6 Exhibit Ex. B Kennedy−Peoples Depo., # 7 Exhibit Ex. C B. Pettaway Depo., # 8 Exhibit Ex. D Meet and Confer Certification)(Howard, Ebony) (Entered: 02/21/2012)
ORDER setting briefing schedule on 118 MOTION to Compel Discovery Responses from Police Defendants. Response due 3/1/12; reply due 3/6/12. Signed by Judge Abdul K Kallon on 02/22/12. (CVA) (Entered: 02/22/2012)
119 RESPONSE to Motion re 116 First MOTION to Compel or in Alternative Motion to Dismiss Plaintiff BJ filed by B D, B J, G S, J W, K B, P S, T A P, T L P. (Attachments: # 1 Exhibit Declaration of Ebony Howard, # 2 Exhibit Correspondence between Counsel)(Howard, Ebony) (Entered: 03/01/2012)
120 Defendants' Notice of Service of Discovery. (Fullerton, Frederic) Modified on 3/1/2012 (CVA). (Entered: 03/01/2012)
121 RESPONSE in Opposition re 118 MOTION to Compel Discovery Responses from Police Defendants filed by M Benson, A Clark, D Henderson, J Nevitt, A C Roper, S Smith, R Tarrant. (Fullerton, Frederic) (Entered: 03/01/2012)
122 REPLY Brief filed by Plaintiffs B D, B J, G S, J W, K B, P S, T A P, T L P re: 118 MOTION to Compel Discovery Responses from Police Defendants filed by B D, B J, G S, J W, K B, P S, T A P, T L P. (Howard, Ebony) (Entered: 03/06/2012)
123 NOTICE by Birmingham Board of Education, Anthony Moss of Service of Response to Second Request for Production (Carr, Clay) (Entered: 03/12/2012)
124 MOTION for Leave to Continue Expert Deposition of Anthony Moss by B D, B J, G S, J W, K B, P S, T A P, T L P. (Attachments: # 1 Exhibit Declaration of Ebony Howard, # 2 Exhibit Letter from Carr to Howard Designating Moss as Expert, # 3 Exhibit Notice of Deposition of Moss)(Howard, Ebony) (Entered: 03/16/2012)
125 BRIEFING SCHEDULE ORDER re 124 MOTION to Continue Expert Deposition of Anthony Moss filed by plas; response due by 3/27/12; reply due by 3/30/12. Signed by Judge Abdul K Kallon on 3/19/12. (ASL) (Entered: 03/19/2012)
126 RESPONSE in Opposition re 124 MOTION Request to Complete Expert Deposition of Anthony Moss filed by Anthony Moss. (Attachments: # 1 Exhibit 1 − Affidavit of Clay Carr)(Carr, Clay) (Entered: 03/27/2012)
127 MOTION (Opposed in Part) to EXTEND DISPOSITIVE MOTION DEADLINE by M Benson, A Clark, D Henderson, J Nevitt, A C Roper, S Smith, and R Tarrant. (Fullerton, Frederic) Modified on 3/28/2012 (CVA). (Entered: 03/28/2012)
128 CONSOLIDATED ORDER ON DISCOVERY MOTIONS: Discovery now due by 5/31/2012. Dispositive motions now due by 6/22/2012. AS FURTHER SET OUT IN ORDER: 66 , Motion to Quash, is GRANTED; 71 , Motion to Strike, is DENIED; 116 , Motion to Compel, is DENIED and the parties are ORDERED to make the necessary arrangements with the relevant individuals in New York to conduct BJ's deposition by 5/31/12; 118 , Motion to Compel Discovery is GRANTED as specifically set out in order; and 127 , is GRANTED. Signed by Judge Abdul K Kallon on 03/29/12. (CVA) (Entered: 03/29/2012)
129 ORDER finding as moot 56 , Motion to Dismiss Third Amended Complaint in light of 48 , the Court's Memorandum Opinion. Signed by Judge Abdul K Kallon on 03/29/12. (CVA) (Entered: 03/29/2012)

Case: 2:10-cv-3314 As of: 01/30/2019 11:51 AM CST 23 of 38

03/30/2012
04/12/2012
04/13/2012
04/23/2012 04/25/2012 04/25/2012 04/25/2012 04/26/2012 04/26/2012
04/30/2012 05/04/2012 05/08/2012 05/18/2012 05/18/2012
05/22/2012 05/23/2012 05/23/2012 05/24/2012

130 REPLY to re 124 , 126 Reply to Defendant's Response to Motion for Leave to Continue Expert Deposition of Anthony Moss filed by B D, B J, G S, J W, K B, P S, T A P, T L P. (Attachments: # 1 Ex. A − Moss 3/9/12 Depo., # 2 Ex. B − Plaintiff P.S. Depo.)(Howard, Ebony) (Entered: 03/30/2012)
131 MOTION to Take Deposition from Birmingham Board of Education Member Virginia Volker by B D, B J, G S, J W, K B, P S, T A P, T L P. (Attachments: # 1 Subpoenas, # 2 Deposition Notice BOE 30(b)(6) 2/29/12, # 3 Deposition of C. Witherspoon, # 4 Correspondence)(Howard, Ebony) (Entered: 04/12/2012)
132 BRIEFING SCHEDULE: Defendants' response to 131 , MOTION to Take Deposition from Birmingham Board of Education Member Virginia Volker, is due by 4/23/12; plaintiffs' reply due by 4/26/12. Signed by Judge Abdul K Kallon on 04/13/12. (CVA) (Entered: 04/13/2012)
133 Opposition to re 131 filed by Birmingham Board of Education. (Attachments: # 1 Exhibit Exhibit 1)(Carr, Clay) (Entered: 04/23/2012)
134 REPLY to re 131 , 133 Reply to the Opposition of the Birmingham Board of Education to Motion for Leave to Depose Virginia Volker filed by B D, B J, G S, J W, K B, P S, T A P, T L P. (Howard, Ebony) (Entered: 04/25/2012)
135 MOTION to Quash Subpoena to Fire & Rescue Service by M Benson, A Clark, D Henderson, J Nevitt, A C Roper, S Smith, R Tarrant. (Attachments: # 1 Exhibit 1)(Fullerton, Frederic) (Entered: 04/25/2012)
136 BRIEFING SCHEDULE: Plaintiffs' response to 135 , MOTION to Quash Subpeona to Fire & Rescue Service, is due by 5/4/12; defendants' reply is due by 5/9/12. Signed by Judge Abdul K Kallon on 04/25/12. (CVA) (Entered: 04/25/2012)
137 MOTION for Leave to File Supplement to Opposition to Plaintiffs' Motion to Depose Virginia Volker by Birmingham Board of Education, Anthony Moss. (Attachments: # 1 Affidavit Affidavit of Virginia Volker)(Carr, Clay) (Entered: 04/26/2012)
138 ORDER granting 137 Motion for Leave to File Supplement in Opposition to Plaintiff's Motion to Depose Virginia Volker. The Board is directed to file the affidavit of Virginia Volker as a separate document. Signed by Judge Abdul K Kallon on 04/26/12. (CVA) (Entered: 04/26/2012)
139 NOTICE of Compliance with 128 , Court Order, by Defendants.(Fullerton, Frederic) Modified on 4/30/2012 (CVA). (Entered: 04/30/2012)
140 RESPONSE in Opposition re 135 MOTION to Quash Subpeona to Fire & Rescue Service filed by B D, B J, G S, J W, K B, P S, T A P, T L P. (Howard, Ebony) (Entered: 05/04/2012)
141 NOTICE of Appearance by Maria V Morris on behalf of B D, B J, G S, J W, K B, P S, T A P, T L P (Morris, Maria) (Entered: 05/08/2012)
142 MOTION to Compel Documents from Birmingham Fire and Rescue Service by B D, B J, G S, J W, K B, P S, T A P, T L P. (Attachments: # 1 Exhibit Subpoena−Birmingham Fire and Rescue)(Howard, Ebony) (Entered: 05/18/2012)
143 BRIEFING SCHEDULE: Defendants' response to 142 , MOTION to Compel Documents from Birmingham Fire and Rescue Service, is due by 5/29/12; plaintiffs' reply is due by 6/1/12. Signed by Judge Abdul K Kallon on 05/18/12. (CVA) (Entered: 05/18/2012)
144 NOTICE by Anthony Moss of Service of Additional Special Education Records of T.A.P. (Carr, Clay) (Entered: 05/22/2012)
145 REQUEST for Production of Documents by M Benson, A Clark, D Henderson, J Nevitt, A C Roper, S Smith, R Tarrant.(Fullerton, Frederic) (Entered: 05/23/2012)
146 REQUEST for Admissions by M Benson, A Clark, D Henderson, J Nevitt, A C Roper, S Smith, R Tarrant.(Fullerton, Frederic) (Entered: 05/23/2012)
147 ANSWER to Interrogatories from Defendants by M Benson, A Clark, D Henderson, J Nevitt, A C Roper, S Smith, R Tarrant.(Fullerton, Frederic) (Entered: 05/24/2012)

Case: 2:10-cv-3314 As of: 01/30/2019 11:51 AM CST 24 of 38

05/25/2012 05/29/2012 05/30/2012 05/31/2012
05/31/2012
06/01/2012 06/11/2012 06/12/2012 06/12/2012 06/15/2012 06/15/2012 06/20/2012

148 RESPONSE in Opposition re 142 MOTION to Compel Documents from Birmingham Fire and Rescue Service filed by M Benson, A Clark, D Henderson, J Nevitt, A C Roper, S Smith, R Tarrant. (Fullerton, Frederic) (Entered: 05/25/2012)
149 REPLY Brief filed by Plaintiffs B D, B J, G S, J W, K B, P S, T A P, T L P re: 148 Response in Opposition to Motion, 143 Order, 142 MOTION to Compel Documents from Birmingham Fire and Rescue Service filed by B D, B J, G S, J W, K B, P S, T A P, T L P. (Howard, Ebony) (Entered: 05/29/2012)
150 NOTICE by Anthony Moss of Services of Defendant's Objections to Request for Admissions; Defendant's Objections and Response to 2nd Request for Production; Additional Special Ed Records of T.A.P. (Carr, Clay) (Entered: 05/30/2012)
151 MOTION to Compel REQUESTED DOCUMENTS FROM THE BIRMINGHAM CITY SCHOOLS AND AN INCORPORATED MEMORANDUM OF LAW by B D, B J, G S, J W, K B, P S, T A P, T L P. (Attachments: # 1 Exhibit Plaintiffs' First Request for Production of Documents, # 2 Exhibit Defendant Birmingham Board of Education's Responses to Plaintiffs' First Set of Interrogatories and Requests for Production of Documents, # 3 Exhibit 9/27/2011 Letter from Ebony Howard to Afrika Parchman, # 4 Exhibit Subpoena to Birmingham Board of Education, # 5 Exhibit 2/15/2012 Letter from Clay Carr to Ebony Howard, # 6 Exhibit 5/24/2012 Email from Maria Morris to Clay Carr)(Howard, Ebony) (Entered: 05/31/2012)
152 MOTION to Compel Motion to Compel Discovery Responses from Police Defendants by B D, B J, G S, J W, K B, P S, T A P, T L P. (Attachments: # 1 Memorandum in Support of Motion to Compel Discovery Requests from Police Defendants, # 2 Ex. A Plaintiffs First, Second, and Third Sets of Interrogatories and Requests for Production of Documents, # 3 Ex. B July 27, 2011 email exchange between Ebony Howard and Frederic Fullerton II, # 4 Ex. C April 23, 2012 Letter from Ebony Howard to Frederic Fullerton II, # 5 Ex. D Declaration of Ebony Howard, # 6 Ex. E March 8, 2012 Deposition of Lieutenant Cathy Kennedy−Peoples, # 7 Ex. F Deposition of Lieutenant Dennis Shepard, # 8 Ex. G Deposition of Sergeant Gary Clark, # 9 Ex. H Deposition of Officer Jason Lawley, # 10 Ex. I November 4, 2011 Deposition of Lieutenant Cathy Kennedy−Peoples)(Howard, Ebony) (Entered: 05/31/2012)
153 BRIEFING SCHEDULE: Defendants' response to 151 , MOTION to Compel Requested Documents and 152 , Motion to Compel Discovery Responses, is due by 6/12/12. Plaintiffs' reply is due by 6/15/12. Signed by Judge Abdul K Kallon on 06/01/12. (CVA) (Entered: 06/01/2012)
154 Plaintiffs' Motion for Status Conference by B D, B J, G S, J W, K B, P S, T A P, T L P. (Howard, Ebony) Modified on 6/11/2012 (CVA). (Entered: 06/11/2012)
155 RESPONSE in Opposition re 152 MOTION to Compel Motion to Compel Discovery Responses from Police Defendants filed by M Benson, A Clark, D Henderson, J Nevitt, A C Roper, S Smith, R Tarrant. (Fullerton, Frederic) (Entered: 06/12/2012)
156 RESPONSE to Motion re 151 MOTION to Compel REQUESTED DOCUMENTS FROM THE BIRMINGHAM CITY SCHOOLS AND AN INCORPORATED MEMORANDUM OF LAW filed by Birmingham Board of Education. (Carr, Clay) (Entered: 06/12/2012)
157 REPLY Brief filed by Plaintiffs B D, B J, G S, J W, K B, P S, T A P, T L P re: 151 MOTION to Compel REQUESTED DOCUMENTS FROM THE BIRMINGHAM CITY SCHOOLS AND AN INCORPORATED MEMORANDUM OF LAW, 156 Response to Motion filed by B D, B J, G S, J W, K B, P S, T A P, T L P. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Howard, Ebony) (Entered: 06/15/2012)
158 REPLY to re 155 , 152 Response of Police Defendants' to Plaintiffs' Motion to Compel filed by B D, B J, G S, J W, K B, P S, T A P, T L P. (Attachments: # 1 Exihibit 1 − Declaration of E. Howard, # 2 Exhibit 2, pt. 1 − Tarrant Depo, # 3 Exhibit 2, pt. 2 − Tarrant Depo, # 4 Exhibit 3, pt. 1 − A. Clark Depo, # 5 Exhibit 3, pt. 2 − A. Clark Depo)(Howard, Ebony) (Entered: 06/15/2012)
159 MOTION for Summary Judgment by M Benson, A Clark, D Henderson, J Nevitt, A C Roper, S Smith, R Tarrant. (Fullerton, Frederic) (Entered: 06/20/2012)

Case: 2:10-cv-3314 As of: 01/30/2019 11:51 AM CST 25 of 38

06/20/2012
06/21/2012 06/22/2012
06/25/2012 06/28/2012 07/12/2012 07/12/2012 07/12/2012 07/13/2012
07/16/2012 07/16/2012 07/16/2012 07/16/2012 07/17/2012

160 Brief re 159 MOTION for Summary Judgment. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9a Part 1, # 10 Exhibit 9b Part 2, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Exhibit 16, # 18 Exhibit 17, # 19 Exhibit 18, # 20 Exhibit 19, # 21 Exhibit 20, # 22 Exhibit 21)(Fullerton, Frederic) Modified on 6/21/2012 (CVA). (Entered: 06/20/2012)
161 BRIEFING SCHEDULE: Plaintiff's response to 159 , MOTION for Summary Judgment, is due by 7/12/12; defendants' reply due by 7/23/12. Signed by Judge Abdul K Kallon on 06/21/12. (CVA) (Entered: 06/21/2012)
162 MOTION for Summary Judgment by Anthony Moss. (Attachments: # 1 Brief in Support of Motion for Summary Judgment, # 2 Exhibit Exhibit A − Depo of T.A.P., # 3 Exhibit Exhibit B − Depo of Anthony Moss, # 4 Exhibit Exhibit C − Depo of Ricky Tarrant, # 5 Exhibit Exhibit D − Affidavit of Anthony Moss)(Carr, Clay) (Entered: 06/22/2012)
163 BRIEFING SCHEDULE: Plaintiffs' response to 162 , MOTION for Summary Judgment filed by Anthony Moss, is due by 7/13/12; defendant's reply due by 7/24/12. Signed by Judge Abdul K Kallon on 06/25/12. (CVA) (Entered: 06/25/2012)
164 Defendants' Notice of Filing Redacted Documents in Support of Motion for Summary Judgment. (Attachments: # 1 Exhibit 10, # 2 Exhibit 11, # 3 Exhibit 12, # 4 Exhibit 13, # 5 Exhibit 14, # 6 Exhibit 16, # 7 Exhibit 17)(Fullerton, Frederic) Modified on 6/28/2012 (CVA). (Entered: 06/28/2012)
165 Plaintiffs' MOTION to Amend 52 , Amended Complaint, by Interlineation and Incorporated Memorandum of Law. (Howard, Ebony) Modified on 7/12/2012 (CVA). (Entered: 07/12/2012)
166 Plaintiffs' MOTION to Strike Statements of Fact in 160 , Defendants' Brief in Support of 159 MOTION for Summary Judgment. (Howard, Ebony) Modified on 7/12/2012 (CVA). (Entered: 07/12/2012)
167 RESPONSE in Opposition re 159 MOTION for Summary Judgment filed by B D, B J, G S, J W, K B, P S, T A P, T L P. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit D, # 4 Exhibit E, # 5 Exhbit F, # 6 Exhibit G, # 7 Exhibit H, # 8 Exhibit I, # 9 Exhibit J, # 10 Exhibit K, # 11 Exhibit C)(Howard, Ebony) (Entered: 07/12/2012)
168 RESPONSE in Opposition re 162 MOTION for Summary Judgment filed by B D, B J, G S, J W, K B, P S, T A P, T L P. (Attachments: # 1 Exhibit A Deposition of Barbara Pettaway, # 2 Exhibit B Deposition of Materia Gipson, # 3 Exhibit C Birmingham Board of Education Policy on Corporal Punishment)(Howard, Ebony) (Entered: 07/13/2012)
169 Defendants' MOTION to Strike 167 , Exhibits A, J and K and Legal Arguments Associated Therein in Plaintiffs' Response to Defendants' Motion for Summary Judgment by M Benson, A Clark, D Henderson, J Nevitt, A C Roper, S Smith, and R Tarrant. (Fullerton, Frederic) Modified on 7/16/2012 (CVA). (Entered: 07/16/2012)
170 Defendants' RESPONSE in Opposition re 166 MOTION to Strike Statements of Fact from 160 Brief in Support of 159 MOTION for Summary Judgment filed by M Benson, A Clark, D Henderson, J Nevitt, A C Roper, S Smith, and R Tarrant. (Fullerton, Frederic) Modified on 7/16/2012 (CVA). (Entered: 07/16/2012)
171 REPLY Brief filed by Defendants M Benson, A Clark, D Henderson, J Nevitt, A C Roper, S Smith, R Tarrant re: 159 MOTION for Summary Judgment filed by M Benson, A Clark, D Henderson, J Nevitt, A C Roper, S Smith, R Tarrant. (Fullerton, Frederic) (Entered: 07/16/2012)
172 BRIEFING SCHEDULE: Defendants' responses to 165 , Motion to Amend Through Interlineation, and 166 , Motion to Strike Statements of Fact in Defendants' Brief in Support of Motion for Summary Judgment, are due by 7/23/12; plaintiffs' replies are due by 7/26/12. (CVA) (Entered: 07/16/2012)
173 BRIEFING SCHEDULE: Plaintiffs' Response to 169 , MOTION to Strike Exhibits A, J, and K in 167 , is due by 7/24/12; defendants' reply due by 7/27/12. Signed by Judge Abdul K Kallon on 07/17/12. (CVA) (Entered: 07/17/2012)

Case: 2:10-cv-3314 As of: 01/30/2019 11:51 AM CST 26 of 38

07/20/2012
07/24/2012
07/24/2012 07/31/2012 07/31/2012 08/02/2012
08/08/2012 08/13/2012 08/14/2012 08/16/2012 08/24/2012 08/24/2012 08/30/2012 08/30/2012
08/31/2012

174 REPLY Brief filed by Plaintiffs B D, B J, G S, J W, K B, P S, T A P, T L P re: 170 Response in Opposition to Motion, 166 MOTION to Strike 160 Brief,, 159 MOTION for Summary Judgment Motion to Strike Statement of Facts from Defendants Motion for Summary Judgment filed by B D, B J, G S, J W, K B, P S, T A P, T L P. (Howard, Ebony) (Entered: 07/20/2012)
175 RESPONSE to Motion re 169 MOTION to Strike 167 Response in Opposition to Motion, MOTION to Strike 167 Response in Opposition to Motion, filed by B D, B J, G S, J W, K B, P S, T A P, T L P. (Attachments: # 1 Exhibit Declaration of E. Howard, # 2 Exhibit Subpoena to Aerko Intl, # 3 Exhibit Ltr from F. Fullerton to E. Howard)(Howard, Ebony) (Entered: 07/24/2012)
176 REPLY to Response to Motion re 162 MOTION for Summary Judgment filed by Anthony Moss. (Carr, Clay) (Entered: 07/24/2012)
177 MOTION to Strike Evidentiary Submissions by Plaintiffs by Anthony Moss. (Carr, Clay) (Entered: 07/31/2012)
178 BRIEFING SCHEDULE: Plaintiffs' Response to 177 , MOTION to Strike Evidentiary Submissions by Plaintiffs, is due by 8/8/12; defendant Moss' reply due by 8/13/12. Signed by Judge Abdul K Kallon on 07/31/12. (CVA) (Entered: 07/31/2012)
179 ORDER: 154 , Plaintiffs' Motion for Status Conference, is GRANTED. Status Conference set for 8/16/2012 at 9:30 AM in Hugo L Black US Courthouse, Birmingham, AL before Judge Abdul K Kallon. Signed by Judge Abdul K Kallon on 08/02/12. (CVA) (Entered: 08/02/2012)
180 RESPONSE to Motion re 177 MOTION to Strike Evidentiary Submissions by Plaintiffs filed by B D, B J, G S, J W, K B, P S, T A P, T L P. (Howard, Ebony) (Entered: 08/08/2012)
181 REPLY to Response to Motion re 177 MOTION to Strike Evidentiary Submissions by Plaintiffs filed by Anthony Moss. (Carr, Clay) (Entered: 08/13/2012)
182 MOTION to Dismiss CLAIM OF PLAINTIFF J.W. AGAINST DEFENDANT NEVITT by B D, B J, G S, J W, K B, P S, T A P, T L P. (Howard, Ebony) (Entered: 08/14/2012)
Minute Entry for proceedings held before Judge Abdul K Kallon: Status Conference held on 8/16/2012. (KSS) (Entered: 08/16/2012)
Minute Entry for proceedings held before Judge Abdul K Kallon: Telephone Conference held on 8/24/2012. (KSS) (Entered: 08/24/2012)
183 NOTICE of Appearance by Javan J Patton on behalf of M Benson, A Clark, D Henderson, J Nevitt, A C Roper, S Smith, R Tarrant (Patton, Javan) (Entered: 08/24/2012)
184 ORDER GRANTING 165 , Motion to Amend Through Interlineation. Plaintiffs shall file a corrected Third Amended Complaint by 9/10/12 as set out in order. Signed by Judge Abdul K Kallon on 08/30/12. (CVA) (Entered: 08/30/2012)
185 ORDER: Consistent with 182 , the partial Motion to Dismiss of Plaintiffs J.W. et al., it is ORDERED that Count Four of the Third Amended Complaint, alleging a claim for excessive force in violation of the Fourth and Fourteenth Amendments to the United States Constitution by Plaintiff J.W. against Defendant Jamarah Nevitt, is DISMISSED WITH PREJUDICE. Signed by Judge Abdul K Kallon on 08/29/12. (CVA) (Entered: 08/30/2012)
186 CONSOLIDATED ORDER ON DISCOVERY MOTIONS: As further set out in order, 124 , Motion for Leave to Continue Expert Deposition of Anthony Moss is GRANTED. Moss is ORDERED to finish the deposition and to answer Plaintiffs' questions. 131 , Motion for Leave to Depose Virginia Volker is GRANTED. 135 , Motion to Quash Subpoena to Birmingham Fire and Rescue Services is DENIED. 142 , Motion to Compel Requested Documents from the Birmingham Fire and Rescue Service is GRANTED. The Birmingham Fire and Rescue Service is ORDERED to produce or to make available to Plaintiffs for inspection documents as set out in order. 151 and 152 , Motions to Compel, are DENIED. Signed by Judge Abdul K Kallon on 08/31/12. (CVA) (Entered: 08/31/2012)

Case: 2:10-cv-3314 As of: 01/30/2019 11:51 AM CST 27 of 38

08/31/2012 09/10/2012 09/19/2012 09/19/2012 09/20/2012 09/25/2012
09/25/2012 09/26/2012 09/26/2012 10/03/2012
10/25/2012 10/25/2012 10/26/2012
10/26/2012 11/02/2012 11/02/2012 11/06/2012

187 MEMORANDUM OPINION AND ORDER: As further set out in order, 75 , Motion for Class Certification, is GRANTED. 82 and 90 , Motions to Strike, are found to be MOOT. Signed by Judge Abdul K Kallon on 08/31/12. (CVA) (Entered: 08/31/2012)
188 AMENDED COMPLAINT Corrected Third Amended Complaint against All Defendants, filed by P S, J W, T A P, B J, G S, K B, T L P, B D.(Howard, Ebony) (Entered: 09/10/2012)
189 NOTICE by M Benson, A Clark, D Henderson, J Nevitt, A C Roper, S Smith, R Tarrant (Attachments: # 1 Exhibit Attachment)(Choy, Michael) (Entered: 09/19/2012)
190 MOTION to Stay Further Class Action Proceedings by M Benson, A Clark, D Henderson, J Nevitt, A C Roper, S Smith, R Tarrant. (Choy, Michael) (Entered: 09/19/2012)
191 MOTION to Disclose Information from Status Conference by B D, B J, G S, J W, K B, P S, T A P, T L P. (Howard, Ebony) (Entered: 09/20/2012)
192 ORDER: 190 , Motion to Stay Further Class Action Proceedings pending the resolution of Defendants' appeal, is DENIED. However, the issue is MOOT at this juncture since the court previously informed the parties at the August 24, 2012 status conference that, in light of the court's conclusion that Defendants' motions for summary judgment on immunity grounds are due to be denied, it intends to stay all proceedings in this case to afford Defendants the full opportunity to exhaust their qualified immunity defenses on appeal. Also, as further set out in order, 191 , Plaintiffs' Motion to Disclose information in opposition to Defendants' Rule 23(f) appeal, is GRANTED. Signed by Judge Abdul K Kallon on 09/25/12. (CVA) (Entered: 09/25/2012)
193 ANSWER to 188 Amended Complaint by Anthony Moss.(Carr, Clay) (Entered: 09/25/2012)
194 ANSWER to 188 Amended Complaint by M Benson, A Clark, D Henderson, J Nevitt, A C Roper, S Smith, R Tarrant.(Fullerton, Frederic) (Entered: 09/26/2012)
195 MOTION to Clarify Scope of Previous Order 192 by Anthony Moss. (Carr, Clay) Modified on 9/26/2012 (CVA). (Entered: 09/26/2012)
196 MEMORANDUM OPINION AND ORDER granting in part and denying in part 159 Motion for Summary Judgment; granting in part and denying in part 162 Motion for Summary Judgment; finding as moot 166 Motion to Strike ; finding as moot 169 Motion to Strike ; finding as moot 177 Motion to Strike ; finding as moot 195 Motion to clarify;. Signed by Judge Abdul K Kallon on 10/3/2012. (KAM, ) (Entered: 10/03/2012)
197 NOTICE OF APPEAL by Anthony Moss (as to 196 ). Filing fee $ 455, receipt number 1126−1789402 (NDAL Receipt No. B4601038204). (Carr, Clay) Modified on 10/25/2012 (CVA). Modified on 10/26/2012 (CVA). (Entered: 10/25/2012)
Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 197 Notice of Appeal. (CVA) (Entered: 10/25/2012)
198 NOTICE OF APPEAL (as to 196 ) by M Benson, A Clark, D Henderson, J Nevitt, A C Roper, S Smith, and R Tarrant. Filing fee $455, receipt number 1126−1790174 (NDAL Receipt No. B4601038233). (Choy, Michael) Modified on 10/26/2012 (CVA). Modified on 10/26/2012 (CVA). (Entered: 10/26/2012)
Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 198 Notice of Appeal. (CVA) (Entered: 10/26/2012)
199 USCA Case Number 12−15551−D for 197 Notice of Appeal filed by Anthony Moss. (CVA) (Entered: 11/02/2012)
200 USCA Case Number 12−15551−D for 198 Notice of Appeal, filed by M Benson, D Henderson, A C Roper, R Tarrant, A Clark, J Nevitt, and S Smith. (CVA) (Entered: 11/02/2012)
201 TRANSCRIPT REQUEST by M Benson, A Clark, D Henderson, J Nevitt, A C Roper, S Smith, R Tarrant (Choy, Michael) (Entered: 11/06/2012)

Case: 2:10-cv-3314 As of: 01/30/2019 11:51 AM CST 28 of 38

11/08/2012 11/09/2012 11/09/2012 11/09/2012 01/03/2013 01/04/2013 02/22/2013 04/15/2013 04/16/2013
05/29/2013 05/30/2013 11/08/2013
11/08/2013 11/15/2013 11/15/2013 12/16/2013

202 TRANSCRIPT REQUEST by Anthony Moss (Carr, Clay) (Entered: 11/08/2012)
203 TRANSCRIPT REQUEST PART II AND III (Court Reporter Acknowledgment and Notification that Transcript has Been Filed in District Court) for 201 . (CVA) (Entered: 11/09/2012)
204 TRANSCRIPT REQUEST PART II AND III (Court Reporter Acknowledgment and Notification that Transcript has Been Filed in District Court) for 202 . (CVA) (Entered: 11/09/2012)
Pursuant to F.R.A.P. 11(c), the Clerk of the District Court for the Northern District of Alabama certifies that the record is complete for purposes of this appeal re: 197 and 198 , Notices of Appeal, Appeal No. 12−15551−D. The entire record on appeal is available electronically. (CVA) (Entered: 11/09/2012)
205 MOTION to Withdraw as Attorney Kristi Graunke by B D, B J, G S, J W, K B, P S, T A P, T L P. (Howard, Ebony) (Entered: 01/03/2013)
206 ORDER granting 205 , Motion to Withdraw as Attorney. Attorney Kristi L Graunke terminated. Signed by Judge Abdul K Kallon on 01/04/13. (CVA) (Entered: 01/04/2013)
207 ORDER of USCA as to 197 , Notice of Appeal filed by Anthony Moss: ENTRY OF DISMISSAL issued as mandate: Pursuant to Appellant Moss's Motion for Voluntary Dismissal, the appeal is dismissed as to Appellant Moss only effective 2/22/13. (CVA) (Entered: 02/22/2013)
208 STIPULATION of Dismissal of Claims of Plaintiff T.A.P. Against Defendant Anthony Moss by B D, B J, G S, J W, K B, Anthony Moss, P S, T A P, T L P. filed by B D, B J, G S, J W, K B, Anthony Moss, P S, T A P, T L P (Howard, Ebony) (Entered: 04/15/2013)
209 ORDER OF DISMISSAL: Having been informed that the parties have amicably settled and consistent with the Joint Stipulation of Dismissal submitted by Plaintiff T.A.P. and Defendant Anthony Moss, 208 , it is ORDERED that Plaintiff T.A.P.'s claims against Defendant Moss are DISMISSED WITH PREJUDICE. Each party bears its own costs, attorneys' fees and expenses. Signed by Judge Abdul K Kallon on 04/16/13. (CVA) (Entered: 04/16/2013)
210 MOTION to Withdraw as Attorney by B D, B J, G S, J W, K B, P S, T A P, T L P. (Bauer, Mary) (Entered: 05/29/2013)
211 ORDER granting 210 Motion to Withdraw as Attorney. Attorney Mary Catherine Bauer terminated. Signed by Judge Abdul K Kallon on 05/30/2013. (CVA) (Entered: 05/30/2013)
212 MANDATE of USCA as JUDGMENT as to 198 Notice of Appeal, filed by M Benson, D Henderson, A C Roper, R Tarrant, A Clark, J Nevitt, S Smith, 197 Notice of Appeal filed by Anthony Moss. We AFFIRM the district court's denial of the Resource Officers' motion for qualified immunity, and DISMISS Chief Roper's appeal, as well as the Officers' state−law appeals, for lack of appellate jurisdiction. (Attachments: # 1 Opinion)(PSM) (Entered: 11/08/2013)
213 ORDER SETTING SCHEDULING CONFERENCE This case is SET for a TELEPHONIC Scheduling Conference at 9:30 a.m. on November 15, 2013. The parties are directed to initiate the call and to connect the court as set out in order. Signed by Judge Abdul K Kallon on 11/8/2013. (PSM) (Entered: 11/08/2013)
Minute Entry for proceedings held before Judge Abdul K Kallon: Telephone Conference held on 11/15/2013. Parties are to submit to the court a proposed discovery calendar by January 6, 2014. (KSS) (Entered: 11/15/2013)
214 ORDER Pursuant to the November 15 scheduling conference in this matter, the court ORDERS the parties to submit a joint proposed schedule for the remainder of this matter by January 6, 2014. Signed by Judge Abdul K Kallon on 11/15/2013. (PSM) (Entered: 11/15/2013)
215 NOTICE of Appearance by Michael K K Choy on behalf of M Benson, A Clark, D Henderson, J Nevitt, A C Roper, S Smith, R Tarrant (Choy, Michael) (Entered:

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12/16/2013 01/06/2014 01/06/2014 01/10/2014 01/15/2014 01/17/2014 02/20/2014
04/11/2014 06/26/2014 06/30/2014
07/18/2014 07/21/2014
07/30/2014 07/30/2014 07/30/2014 08/11/2014

12/16/2013)
216 NOTICE of Appearance by Elizabeth Bosquet Shirley on behalf of M Benson, A Clark, D Henderson, J Nevitt, A C Roper, S Smith, R Tarrant (Shirley, Elizabeth) (Entered: 12/16/2013)
217 NOTICE by M Benson, A Clark, D Henderson, J Nevitt, A C Roper, S Smith, R Tarrant re 214 Order Parties' Proposed Discovery Schedule (Choy, Michael) (Entered: 01/06/2014)
218 NOTICE by B D, B J, M Benson, A Clark, G S, D Henderson, J W, K B, J Nevitt, P S, A C Roper, S Smith, T A P, T L P, R Tarrant re 214 Order Parties' Joint Proposed Discovery Schedule (Choy, Michael) (Entered: 01/06/2014)
219 MOTION for Status Conference by B D, B J, G S, J W, K B, P S, T A P, T L P. (Howard, Ebony) (Entered: 01/10/2014)
220 ORDER This case is set for a telephonic status conference on Friday, January 17 at 8:00 a.m. Parties are to connect to the court as set out in order. Signed by Judge Abdul K Kallon on 1/15/2014. (PSM) (Entered: 01/15/2014)
Minute Entry for proceedings held before Judge Abdul K Kallon: Telephone Conference held on 1/17/2014. Re: Discovery. (KSS) (Entered: 01/17/2014)
221 MOTION to Withdraw as Attorney of Record by B D, B J, G S, J W, K B, P S, T A P, T L P. (Attachments: # 1 Text of Proposed Order Proposed Order Granting Jadine C. Johnson's Motion to Withdraw as Counsel of Record)(Johnson, Jadine) (Entered: 02/20/2014)
222 ORDER Plaintiffs' Motion to Withdraw as Counsel as to Jadine C. Johnson is GRANTED. 221 . Signed by Judge Abdul K Kallon on 4/10/2014. (PSM) (Entered: 04/11/2014)
Minute Entry for proceedings held before Judge Abdul K Kallon: Telephone Conference held on 6/26/2014. Revised and amended scheduling order to be entered by the court. (KSS) (Entered: 06/26/2014)
223 SCHEDULING ORDER: That certain deadlines and other time limits apply as set out in order Discovery due by 10/31/2014. Final Pretrial Conference set for 11/21/2014 10:00 AM in Hugo L Black US Courthouse, Birmingham, AL before Judge Abdul K Kallon. Bench Trial set for 1/20/2015 9:00 AM in Hugo L Black US Courthouse, Birmingham, AL before Judge Abdul K Kallon. Signed by Judge Abdul K Kallon on 6/30/2014. (PSM) (Entered: 06/30/2014)
224 Consent MOTION for Extension of Time Expert Deadlines by M Benson, D Henderson, J Nevitt, A C Roper, S Smith, R Tarrant. (Shirley, Elizabeth) (Entered: 07/18/2014)
225 ORDER The defendants' unopposed motion for an extension of time to designate experts and/or to supplement their previously disclosed expert reports, 224 , is GRANTED. The deadline for the parties to designate experts or to supplement their previously disclosed expert reports is extended until August 11, 2014. The deadline for any counter−designations or responses is extended until September 12, 2014. Signed by Judge Abdul K Kallon on 7/21/2014. (PSM) (Entered: 07/21/2014)
226 MOTION for Leave to Appear Pro Hac Vice by B D, B J, G S, J W, K B, P S, T A P, T L P. (Attachments: # 1 Exhibit A − Certificate of Good Standing, # 2 Text of Proposed Order)(Howard, Ebony) (Entered: 07/30/2014)
PHV Fee paid: $ 50. (Howard, Ebony) (Entered: 07/30/2014)
227 ORDER Plaintiffs' Unopposed Motion for Admission Pro Hac Vice of Brooke Menschel 226 is GRANTED. Signed by Judge Abdul K Kallon on 7/30/2014. (PSM) (Entered: 07/30/2014)
228 NOTICE by B D, B J, G S, J W, K B, P S, T A P, T L P re 102 Notice (Other) of Supplemental Expert Declaration of Aaron Kupchik (Attachments: # 1 Supplemental Expert Declaration of Aaron Kupchik, # 2 Exhibit 1, # 3 Exhibit 2 − Part A, # 4 Exhibit 2 − Part B, # 5 Exhibit 2 − Part C (1 of 13), # 6 Exhibit 2 − Part C (2 of 13), #

Case: 2:10-cv-3314 As of: 01/30/2019 11:51 AM CST 30 of 38

08/11/2014
08/13/2014 08/15/2014 08/20/2014
08/29/2014 09/02/2014 09/04/2014 09/04/2014 09/12/2014
09/12/2014
09/12/2014 09/26/2014 09/26/2014
10/03/2014 10/06/2014

7 Exhibit 2 − Part C (3 of 13), # 8 Exhibit 2 − Part C (4 of 13), # 9 Exhibit 2 − Part C (5 of 13), # 10 Exhibit 2 − Part C (6 of 13), # 11 Exhibit 2 − Part C (7 of 13), # 12 Exhibit 2 − Part C (8 of 13), # 13 Exhibit 2 − Part C (9 of 13), # 14 Exhibit 2 −Part C (10 of 13), # 15 Exhibit 2 − Part C (11 of 13), # 16 Exhibit 2 − Part C (12 of 13), # 17 Exhibit 2 − Part C (13 of 13), # 18 Exhibit 2 − Part D, # 19 Exhibit 2 − Part E (1 of 2), # 20 Exhibit 2 − Part E (2 of 2))(Howard, Ebony) (Entered: 08/11/2014)
229 NOTICE by B D, B J, G S, J W, K B, P S, T A P, T L P of Filing of Expert Report of Daniel J. Coulombe (Attachments: # 1 Expert Report of Daniel J. Coulombe, # 2 Exhibit 1, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9 − Part A, # 10 Exhibit 9 − Part B, # 11 Exhibit 10)(Menschel, Brooke) (Entered: 08/11/2014)
230 NOTICE of Appearance by Brooke Menschel on behalf of B D, B J, G S, J W, K B, P S, T A P, T L P (Menschel, Brooke) (Entered: 08/13/2014)
231 MOTION to Compel Plaintiffs to Appear for Psychological Assessments by M Benson, A Clark, D Henderson, J Nevitt, A C Roper, S Smith, R Tarrant. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Choy, Michael) (Entered: 08/15/2014)
232 ORDER Before the court is the defendants' motion to compel. 231 . The plaintiffs' response to the motion is due Friday, August 29, 2014. The defendants' reply, if any, is due Tuesday, September 2, 2014. Additionally, this matter is set for a telephonic status conference on September 4, 2014 at 8:00 a.m. Signed by Judge Abdul K Kallon on 8/20/2014. (PSM) (Entered: 08/20/2014)
233 Opposition to re 231 Defendants' Motion to Compel Plaintiffs to Appear for a Psychological Examination filed by B D, B J, G S, J W, K B, P S, T A P, T L P. (Howard, Ebony) (Entered: 08/29/2014)
234 REPLY to re 231 in Further Support of Motion to Compel Plaintiffs to Appear for Psychological Assessments filed by A C Roper. (Choy, Michael) (Entered: 09/02/2014)
Minute Entry for proceedings held before Judge Abdul K Kallon: Telephone Conference held on 9/4/2014. Written order to be entered by the court. (KSS) (Entered: 09/04/2014)
235 ORDER denying 231 Motion to Compel. Signed by Judge Abdul K Kallon on 9/4/2014. (PSM) (Entered: 09/04/2014)
236 NOTICE by B D, B J, G S, J W, K B, P S, T A P, T L P of Filing Expert Rebuttal Report of Daphne Glindmeyer, MD (Attachments: # 1 Affidavit Report of Dr. Glindmeyer in rebuttal to Dr. Tanen, # 2 Appendix Bibliography)(Menschel, Brooke) (Entered: 09/12/2014)
237 NOTICE by B D, B J, G S, J W, K B, P S, T A P, T L P of Filing Expert Rebuttal Report of Michael Cohen, MD (Attachments: # 1 Affidavit Report of Dr. Cohen in Rebuttal to Dr. Tanen, # 2 Exhibit Exhibit A)(Menschel, Brooke) (Entered: 09/12/2014)
238 NOTICE by B D, B J, G S, J W, K B, P S, T A P, T L P of Filing Expert Rebuttal Report of Daniel J. Coulombe (Attachments: # 1 Affidavit Report of Daniel J. Coulombe in Rebuttal to Steven Ashley)(Menschel, Brooke) (Entered: 09/12/2014)
239 NOTICE by B D, B J, G S, J W, K B, P S, T A P, T L P of Request for Discovery Hearing (Morris, Maria) (Entered: 09/26/2014)
240 ORDER Per the plaintiffs' request, 239 , this case is set for a telephonic discovery hearing on Friday, October 3, 2014 at 3:30 p.m. The parties are directed to initiate the telephone call between themselves and to connect the court as set out within. Signed by Judge Abdul K Kallon on 9/26/2014. (PSM) (Entered: 09/26/2014)
Minute Entry for proceedings held before Judge Abdul K Kallon: Telephone Conference held on 10/3/2014. (KSS) (Entered: 10/03/2014)
241 Second MOTION to Take Deposition from B.J. by M Benson, A Clark, D Henderson, J Nevitt, A C Roper, S Smith, R Tarrant. (Fullerton, Frederic) (Entered: 10/06/2014)

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10/10/2014 10/10/2014
10/30/2014
11/04/2014 11/21/2014 11/21/2014
11/25/2014
12/01/2014 12/03/2014 12/04/2014 12/05/2014
12/19/2014 12/19/2014
12/19/2014 12/31/2014 01/05/2015 01/05/2015

242 NOTICE by B D, B J, G S, J W, K B, P S, T A P, T L P of Request for Discovery Hearing (Morris, Maria) (Entered: 10/10/2014)
243 NOTICE by M Benson, A Clark, D Henderson, J Nevitt, A C Roper, S Smith, R Tarrant of Hearing Concerning Plaintiffs' Objections to Defendants' Interrogatories 12 and 1 and First Request for Production of Documents (Shirley, Elizabeth) (Entered: 10/10/2014)
244 MOTION (Unopposed) for Extension of Time to Complete Discovery by B D, B J, G S, J W, K B, P S, T A P, T L P. (Attachments: # 1 Exhibit A − First Amended Deposition Notice for BPD 30(b)(6) Representative)(Menschel, Brooke) Modified on 10/30/2014 (PSM). (Entered: 10/30/2014)
245 ORDER granting 244 Motion for Extension of Time. Signed by Judge Abdul K Kallon on 11/4/2014. (PSM) (Entered: 11/04/2014)
Minute Entry for proceedings held before Judge Abdul K Kallon: Final Pretrial Conference held on 11/21/2014. Pretrial order to be entered by the court. (KSS) (Entered: 11/21/2014)
246 PRETRIAL ORDER This case is set for Non−Jury trial on the following dates: January 20−23, 2015, January 26−30, 2015 (1:30 p.m. start on January 30), February 9, 11−13, 2015, and February 23−27, 2015 in Birmingham, AL Signed by Judge Abdul K Kallon on 11/21/2014. (PSM) Modified on 12/11/2014 (PSM). (Entered: 11/21/2014)
247 MOTION to Quash Subpoenas by B D, B J, G S, J W, K B, P S, T A P, T L P. (Attachments: # 1 Exhibit A − Email from Helen Eckinger to Counsel for the Parties, # 2 Exhibit B − Subpoenas to Cooper Green and UAB, # 3 Exhibit C − Subpoenas to Schaffer and Trinity Eye Centers)(Howard, Ebony) (Entered: 11/25/2014)
248 ORDER denying 247 Motion to Quash. Signed by Judge Abdul K Kallon on 12/1/2014. (PSM) (Entered: 12/01/2014)
249 MOTION for Leave to Appear Pro Hac Vice by B D, B J, G S, J W, K B, P S, T A P, T L P. (Attachments: # 1 Exhibit A − Certificate of Good Standing, # 2 Text of Proposed Order)(Howard, Ebony) (Entered: 12/03/2014)
250 RESPONSE to Motion re 249 MOTION for Leave to Appear Pro Hac Vice of Jerri Katzerman filed by M Benson, A Clark, D Henderson, Anthony Moss, J Nevitt, A C Roper, S Smith, R Tarrant, Craig Witherspoon. (Choy, Michael) (Entered: 12/04/2014)
251 ORDER With the expectation that movant Ebony Howard will fully instruct Jerri Katzerman on the undersigned's trial procedures, the motion for admission pro hac vice, 249 , is GRANTED. Signed by Judge Abdul K Kallon on 12/5/2014. (PSM) (Entered: 12/05/2014)
252 Witness List Defendants by M Benson, A Clark, D Henderson, J Nevitt, A C Roper, S Smith, R Tarrant. (Fullerton, Frederic) (Entered: 12/19/2014)
253 Plaintiffs' Witness List, Exhibit List, and Claims for Equitable Relief and Itemization of Damages (Attachments: # 1 Plaintiffs' Witness List, # 2 Plaintiffs' Exhibit List, # 3 Plaintiffs' Claims for Equitable Relief and Itemization of Damages)by B D, B J, G S, J W, K B, P S, T A P, T L P(Menschel, Brooke) Modified on 12/22/2014 (PSM). (Entered: 12/19/2014)
254 Exhibit List of Defendants by M Benson, A Clark, D Henderson, J Nevitt, A C Roper, S Smith, R Tarrant.. (Shirley, Elizabeth) (Entered: 12/19/2014)
255 First MOTION for Plaintiff B.J. to Testify by Videoconference by B D, B J, G S, J W, K B, P S, T A P, T L P. (Menschel, Brooke) (Entered: 12/31/2014)
256 MOTION in Limine Defendants Objection to Plaintiffs Exh and Witnesses by M Benson, A Clark, D Henderson, J Nevitt, A C Roper, S Smith, R Tarrant. (Fullerton, Frederic) (Entered: 01/05/2015)
257 MOTION to Amend/Correct 246 Pretrial Order, and to Amend/Correct Claims for Equitable Relief and Itemization of Damages, by B D, B J, G S, J W, K B, P S, T A P, T L P. (Attachments: # 1 Exhibit Amended Pretrial Order, # 2 Exhibit Amended

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01/05/2015 01/06/2015
01/07/2015 01/07/2015 01/07/2015 01/09/2015 01/13/2015 01/13/2015 01/13/2015
01/13/2015 01/13/2015 01/15/2015 01/16/2015
01/20/2015 01/20/2015
01/21/2015 01/22/2015

Claims for Equitable Relief and Itemization of Damages)(Howard, Ebony) (Entered: 01/05/2015)
258 NOTICE by B D, B J, G S, J W, K B, P S, T A P, T L P of filing Plaintiffs' Objections to Defendants' Exhibit List (Attachments: # 1 Exhibit Plaintiffs' Objections to Defendants' Exhibit List)(Menschel, Brooke) (Entered: 01/05/2015)
259 MOTION to Amend/Correct 253 Notice (Other), Plaintiffs' Exhibit List by B D, B J, G S, J W, K B, P S, T A P, T L P. (Attachments: # 1 Exhibit Plaintiffs' Amended Exhibit List, # 2 Exhibit Jan. 2, 2015 Email Exchange between Counsel for Plaintiffs and Defendants)(Menschel, Brooke) (Entered: 01/06/2015)
260 ORDER granting 259 Motion to Amend Witness List. The pltfs are instructed to file their amended witness list immediately. Signed by Judge Abdul K Kallon on 1/7/2015. (AVC) (Entered: 01/07/2015)
261 ORDER granting 255 Motion to allow Plaintiff B.J. to testify by videoconference. Signed by Judge Abdul K Kallon on 1/7/2015. (AVC) (Entered: 01/07/2015)
262 Plaintiffs' Amended Exhibit List by B D, B J, G S, J W, K B, P S, T A P, T L P re 260 Order on Motion to Amend/Correct (Attachments: # 1 Exhibit Plaintiffs' Amended Exhibit List)(Menschel, Brooke) Modified on 1/8/2015 (PSM). (Entered: 01/07/2015)
263 Exhibit List (Amended) by M Benson, A Clark, D Henderson, J Nevitt, A C Roper, S Smith, R Tarrant.. (Shirley, Elizabeth) (Entered: 01/09/2015)
264 MOTION In Limine to Protect Class Members' Privacy Interests by B D, B J, G S, J W, K B, P S, T A P, T L P. (Howard, Ebony) (Entered: 01/13/2015)
265 MOTION In Limine to Limit in Time Evidence Regarding Chemical Spray Incidents by B D, B J, G S, J W, K B, P S, T A P, T L P. (Howard, Ebony) (Entered: 01/13/2015)
266 MOTION in Limine to Exclude Evidence Received Through Third−Party Subpoenas by B D, B J, G S, J W, K B, P S, T A P, T L P. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Menschel, Brooke) (Entered: 01/13/2015)
267 MOTION in Limine by M Benson, A Clark, D Henderson, J Nevitt, A C Roper, S Smith, R Tarrant. (Choy, Michael) (Entered: 01/13/2015)
268 Brief re 267 MOTION in Limine filed by M Benson, A Clark, D Henderson, J Nevitt, A C Roper, S Smith, R Tarrant. (Choy, Michael) (Entered: 01/13/2015)
269 ORDER granting 257 Motion to Amend/Correct. Signed by Judge Abdul K Kallon on 1/15/2015. (PSM) (Entered: 01/15/2015)
270 NOTICE by B D, B J, G S, J W, K B, P S, T A P, T L P re 269 Order on Motion to Amend/Correct of Filing Plaintiffs' Corrected Pretrial Order and Claims for Equitable Relief and Itemization of Damages (Attachments: # 1 Exhibit Corrected Pretrial Order, # 2 Exhibit Corrected Claims for Equitable Relief and Itemization of Damages)(Menschel, Brooke) (Entered: 01/16/2015)
271 TRIAL BRIEF −Defendants' Opening Statement by M Benson, A Clark, D Henderson, J Nevitt, A C Roper, S Smith, R Tarrant. (Choy, Michael) (Entered: 01/20/2015)
Minute Entry for proceedings held before Judge Abdul K Kallon: BENCH TRIAL begun on 1/20/2015. Plas' testimony begun. Doc # 271 placed under−seal for the duration of the trial−seal will be lifted at end of trial. Daily adj. (Court Reporter Sabrina Lewis) (KSS) (Entered: 01/20/2015)
Minute Entry for proceedings held before Judge Abdul K Kallon: BENCH TRIAL CONTINUED on 1/21/2015. Plas' testimony resumed. Daily adj. (Court Reporter Sabrina Lewis) (KSS) (Entered: 01/21/2015)
Minute Entry for proceedings held before Judge Abdul K Kallon: BENCH TRIAL CONTINUED on 1/22/2015. Plas' testimony resumed; Hearing held on alleged intimidations; Dfts' exhibit 94 offered and admitted. Daily adj. (Court Reporter

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01/23/2015
01/26/2015 01/26/2015 01/27/2015 01/27/2015
01/28/2015 01/29/2015 02/02/2015 02/03/2015 02/04/2015 02/09/2015 02/09/2015
02/11/2015
02/24/2015 02/24/2015
02/26/2015

Sabrina Lewis) (KSS) (Entered: 01/22/2015)
Minute Entry for proceedings held before Judge Abdul K Kallon: BENCH TRIAL CONTINUED on 1/23/2015. Plas' testimony resumed. Dfts' Motion in Limine as it relates to documents/reports (pla's exhibit #20) is denied. Daily adj. (Court Reporter Sabrina Lewis) (KSS, ) (Entered: 01/23/2015)
272 NOTICE of Appearance by Julien Mitchell Relfe on behalf of All Defendants (Relfe, Julien) (Entered: 01/26/2015)
Minute Entry for proceedings held before Judge Abdul K Kallon: BENCH TRIAL CONTINUED on 1/26/2015. Plas' testimony resumed. Daily adj. (Court Reporter Sabrina Lewis) (KSS) (Entered: 01/26/2015)
273 MOTION for Judgment on Partial Findings by M Benson, A Clark, D Henderson, J Nevitt, A C Roper, S Smith, R Tarrant. (Choy, Michael) (Entered: 01/27/2015)
Minute Entry for proceedings held before Judge Abdul K Kallon: BENCH TRIAL CONTINUED on 1/27/2015. Plas' testimony resumed. Plas' rests. Dfts' Oral and Written Motion for Judgment on Partial Findings (doc #273) filed−arguments heard on motion−court to carry motion with case. Daily adj.(Court Reporter Sabrina Lewis) (KSS) (Entered: 01/27/2015)
Minute Entry for proceedings held before Judge Abdul K Kallon: BENCH TRIAL CONTINUED on 1/28/2015. Dfts' testimony begun. (Court Reporter Sabrina Lewi) (KSS) (Entered: 01/29/2015)
Minute Entry for proceedings held before Judge Abdul K Kallon: BENCH TRIAL CONTINUED on 1/29/2015. Dfts' testimony resumed. Daily adj. (Court Reporter Sabrina Lewis) (KSS) (Entered: 01/29/2015)
Minute Entry for proceedings held before Judge Abdul K Kallon: BENCH TRIAL CONTINUED on 2/2/2015. Dfts' testimony resumed. Daily adj. (Court Reporter Sabrina Lewis) (KSS) (Entered: 02/02/2015)
Minute Entry for proceedings held before Judge Abdul K Kallon: BENCH TRIAL CONTINUED on 2/3/2015. Dfts' testimony resumed. Daily adj. (Court Reporter Sabrina Lewis) (KSS) (Entered: 02/03/2015)
Minute Entry for proceedings held before Judge Abdul K Kallon: BENCH TRIAL CONTINUED on 2/4/2015. Dfts' testimony resumed. Daily adj. (Court Reporter Sabrina Lewis) (KSS) (Entered: 02/04/2015)
274 TRIAL BRIEF by B D, B J, G S, J W, K B, P S, T A P, T L P. (Menschel, Brooke) (Entered: 02/09/2015)
Minute Entry for proceedings held before Judge Abdul K Kallon: BENCH TRIAL CONTINUED on 2/9/2015. Dfts' testimony resumed; Dfts' rests; Dfts' Oral and Written Renewed Motion for Judgment on Partial Findings (Doc. # 273)−carry with case. Daily adj. (Court Reporter Sabrina Lewis) (KSS) (Entered: 02/09/2015)
275 Evidentiary Material Rebuttal Testimony by Designation of Lieutenant Dennis Shepard's Deposition Testimony. (Attachments: # 1 Exhibit Joint Exhibit 1 − Designations from Deposition of Lt. Dennis Shepard)(Howard, Ebony) (Entered: 02/11/2015)
276 MOTION to Dismiss all Claims Against Chief Roper in His Official Capacity and Decertify Plaintiffs' Class by A C Roper. (Choy, Michael) (Entered: 02/24/2015)
277 ***** STRICKEN REPLY Brief filed by Defendants M Benson, A Clark, D Henderson, J Nevitt, A C Roper, S Smith, R Tarrant re: 274 Trial Brief, 273 MOTION for Judgment on Partial Findings filed by M Benson, A Clark, D Henderson, J Nevitt, A C Roper, S Smith, R Tarrant. (Choy, Michael) STRICKEN ***** on 2/26/2015 per 278 (PSM). (Entered: 02/24/2015)
278 ORDER the court STRIKES the defendants' reply brief 277 without prejudice to filing a reply that complies with the court's orders. Signed by Judge Abdul K Kallon on 2/26/2015. (PSM) (Entered: 02/26/2015)

Case: 2:10-cv-3314 As of: 01/30/2019 11:51 AM CST 34 of 38

03/04/2015 03/06/2015
03/10/2015 09/30/2015 10/16/2015
10/20/2015 10/20/2015 10/20/2015 10/30/2015 10/30/2015 10/30/2015 11/03/2015 11/10/2015 11/10/2015 11/12/2015
11/13/2015 11/13/2015 12/07/2015

279 Defendants' AMENDED REPLY to Plaintiffs' 274 Response to Defendants' 273 Rule 52(c) Motion. (Choy, Michael) (Entered: 03/04/2015)
280 Motion to strike and RESPONSE in Opposition re 276 MOTION to Dismiss all Claims Against Chief Roper in His Official Capacity and Decertify Plaintiffs' Class filed by B D, B J, G S, J W, K B, P S, T A P, T L P. (Howard, Ebony) Modified on 3/6/2015 (KAM, ). (Entered: 03/06/2015)
281 Dft Roper's REPLY Brief in Support of His 276 Motion to Decertify and Dismiss Plffs' Class Claims, filed by Defendant A C Roper. (Choy, Michael) Modified on 3/12/2015 (YMB). (Entered: 03/10/2015)
282 FINDINGS OF FACT AND CONCLUSIONS OF LAW−The court will issue an order and judgment after 11/15/2015 Signed by Judge Abdul K Kallon on 9/30/2015. (AVC) Modified on 10/8/2015 (KSS). (Entered: 09/30/2015)
283 NOTICE OF APPEAL by M Benson, A Clark, D Henderson, J Nevitt, A C Roper, S Smith, R Tarrant. Filing fee $505.00, receipt number 1126−2493418 (NDAL credit card receipt no. B4601066031). Appeal Record due by 10/30/2015. (Choy, Michael) Modified on 10/19/2015 (YMB). (Entered: 10/16/2015)
284 NOTICE of Transmittal re 283 Notice of Appeal. (YMB) (Entered: 10/20/2015)
285 Transmission of 283 Notice of Appeal, 282 Findings of Fact and Conclusions of Law, 187 Memorandum Opinion and Order, and Docket Sheet to US Court of Appeals. (YMB) (Entered: 10/20/2015)
286 USCA Case Number 15−14669−E for 283 Notice of Appeal, filed by M Benson, D Henderson, A C Roper, R Tarrant, A Clark, J Nevitt, S Smith. (YMB) (Entered: 10/21/2015)
287 TRANSCRIPT REQUEST by M Benson, A Clark, D Henderson, J Nevitt, A C Roper, S Smith, R Tarrant (Choy, Michael) (Entered: 10/30/2015)
288 NOTICE of Appearance by Eddie T Ramey on behalf of M Benson, A Clark, D Henderson, J Nevitt, A C Roper, S Smith, R Tarrant (Ramey, Eddie) (Entered: 10/30/2015)
289 NOTICE of Appearance by Robert H Rutherford, Jr on behalf of M Benson, A Clark, D Henderson, J Nevitt, A C Roper, S Smith, R Tarrant (Rutherford, Robert) (Entered: 10/30/2015)
290 AMENDED Appeal Transcript Request by M Benson, A Clark, D Henderson, J Nevitt, A C Roper, S Smith, R Tarrant. (Choy, Michael) Modified on 11/3/2015 (YMB). (Entered: 11/03/2015)
291 Court Reporter Acknowledgment. (YMB) (Entered: 11/10/2015)
292 NOTICE of Withdrawal of Mark McCarroll Lawson and Forest Stephen Latta (as attys of record for dfts) by M Benson, A Clark, D Henderson, J Nevitt, A C Roper, S Smith, R Tarrant (Choy, Michael) Modified on 11/12/2015 (YMB). (Entered: 11/10/2015)
293 ORDER GRANTING dfts' 292 Notice of Withdrawal of Attys Forrest S Latta and Mark M Lawson as to dfts M Benson, D Henderson, A C Roper, R Tarrant, A Clark, J Nevitt, and S Smith. Signed by Judge Abdul K Kallon on 11/12/2015. (YMB) (Entered: 11/12/2015)
294 Joint MOTION for Extension of Time to Submit the Training and Procedures Plan by B D, B J, G S, J W, K B, P S, T A P, T L P. (Howard, Ebony) (Entered: 11/13/2015)
295 ORDER GRANTING 294 Joint Motion for Extension of Time to Submit the Training and Procedures Plan. The joint plan is now due by 12/15/2015. Signed by Judge Abdul K Kallon on 11/13/2015. (YMB) (Entered: 11/13/2015)
296 Transcript of Proceedings held on 1/20/2015, before Judge USDJ Abdul K. Kallon. Court Reporter/Transcriber Sabrina Lewis, Telephone number 515.3101. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. NOTICE: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this

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transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. (A copy can be obtained at http://www.alnd.uscourts.gov/local/court%20forms/transcripts/Transcript% 20Redaction%20Policy.pdf) See Transcript Redaction Policy. Redaction Request due 12/28/2015. Redacted Transcript Deadline set for 1/7/2016. Release of Transcript Restriction set for 3/6/2016. (YMB) (Entered: 12/07/2015)
297 Transcript of Proceedings held on 1/21/2015, before Judge USDJ Abdul K. Kallon. Court Reporter/Transcriber Sabrina Lewis, Telephone number 205.515.3101. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. NOTICE: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. (A copy can be obtained at http://www.alnd.uscourts.gov/local/court%20forms/transcripts/Transcript% 20Redaction%20Policy.pdf) See Transcript Redaction Policy. Redaction Request due 12/28/2015. Redacted Transcript Deadline set for 1/7/2016. Release of Transcript Restriction set for 3/6/2016. (YMB) (Entered: 12/07/2015)
298 Transcript of Proceedings held on 1/22/2015, before Judge USDJ Abdul K. Kallon. Court Reporter/Transcriber Sabrina Lewis, Telephone number 205.515.3101. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. NOTICE: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. (A copy can be obtained at http://www.alnd.uscourts.gov/local/court%20forms/transcripts/Transcript% 20Redaction%20Policy.pdf) See Transcript Redaction Policy. Redaction Request due 12/28/2015. Redacted Transcript Deadline set for 1/7/2016. Release of Transcript Restriction set for 3/6/2016. (YMB) (Entered: 12/07/2015)
299 Transcript of Proceedings held on 1/23/2015, before Judge USDJ Abdul K. Kallon. Court Reporter/Transcriber Sabrina Lewis, Telephone number 205.515.3101. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. NOTICE: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. (A copy can be obtained at http://www.alnd.uscourts.gov/local/court%20forms/transcripts/Transcript% 20Redaction%20Policy.pdf) See Transcript Redaction Policy. Redaction Request due 12/28/2015. Redacted Transcript Deadline set for 1/7/2016. Release of Transcript Restriction set for 3/6/2016. (YMB) (Entered: 12/07/2015)
300 Transcript of Proceedings held on 1/26/2015, before Judge USDJ Abdul K. Kallon. Court Reporter/Transcriber Sabrina Lewis, Telephone number 205.515.3101. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. NOTICE: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. (A copy can be obtained at http://www.alnd.uscourts.gov/local/court%20forms/transcripts/Transcript% 20Redaction%20Policy.pdf) See Transcript Redaction Policy. Redaction Request due 12/28/2015. Redacted Transcript Deadline set for 1/7/2016. Release of Transcript Restriction set for 3/6/2016. (YMB) (Entered: 12/07/2015)
301 Transcript of Proceedings held on 1/27/2015, before Judge USDJ Abdul K. Kallon. Court Reporter/Transcriber Sabrina Lewis, Telephone number 205.515.3101. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. NOTICE: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically

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available to the public without redaction after 90 calendar days. (A copy can be obtained at http://www.alnd.uscourts.gov/local/court%20forms/transcripts/Transcript% 20Redaction%20Policy.pdf) See Transcript Redaction Policy. Redaction Request due 12/28/2015. Redacted Transcript Deadline set for 1/7/2016. Release of Transcript Restriction set for 3/6/2016. (YMB) (Entered: 12/07/2015)
302 Transcript of Proceedings held on 1/28/2015, before Judge USDJ Abdul K. Kallon. Court Reporter/Transcriber Sabrina Lewis, Telephone number 205.515.3101. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. NOTICE: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. (A copy can be obtained at http://www.alnd.uscourts.gov/local/court%20forms/transcripts/Transcript% 20Redaction%20Policy.pdf) See Transcript Redaction Policy. Redaction Request due 12/28/2015. Redacted Transcript Deadline set for 1/7/2016. Release of Transcript Restriction set for 3/6/2016. (YMB) (Entered: 12/07/2015)
303 Transcript of Proceedings held on 1/29/2015, before Judge USDJ Abdul K. Kallon. Court Reporter/Transcriber Sabrina Lewis, Telephone number 205.515.3101. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. NOTICE: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. (A copy can be obtained at http://www.alnd.uscourts.gov/local/court%20forms/transcripts/Transcript% 20Redaction%20Policy.pdf) See Transcript Redaction Policy. Redaction Request due 12/28/2015. Redacted Transcript Deadline set for 1/7/2016. Release of Transcript Restriction set for 3/6/2016. (YMB) (Entered: 12/07/2015)
304 Transcript of Proceedings held on 2/2/2015, before Judge USDJ Abdul K. Kallon. Court Reporter/Transcriber Sabrina Lewis, Telephone number 205.515.3101. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. NOTICE: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. (A copy can be obtained at http://www.alnd.uscourts.gov/local/court%20forms/transcripts/Transcript% 20Redaction%20Policy.pdf) See Transcript Redaction Policy. Redaction Request due 12/28/2015. Redacted Transcript Deadline set for 1/7/2016. Release of Transcript Restriction set for 3/6/2016. (YMB) (Entered: 12/07/2015)
305 Transcript of Proceedings held on 2/3/2015, before Judge USDJ Abdul K. Kallon. Court Reporter/Transcriber Sabrina Lewis, Telephone number 205.515.3101. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. NOTICE: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. (A copy can be obtained at http://www.alnd.uscourts.gov/local/court%20forms/transcripts/Transcript% 20Redaction%20Policy.pdf) See Transcript Redaction Policy. Redaction Request due 12/28/2015. Redacted Transcript Deadline set for 1/7/2016. Release of Transcript Restriction set for 3/6/2016. (YMB) (Entered: 12/07/2015)
306 Transcript of Proceedings held on 2/4/2015, before Judge USDJ Abdul K. Kallon. Court Reporter/Transcriber Sabrina Lewis, Telephone number 205.515.3101. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. NOTICE: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. (A copy can be

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12/11/2015 12/15/2015 12/15/2015 02/04/2016 02/05/2016 03/31/2016 08/22/2017 08/22/2017 08/28/2017 11/27/2018 11/30/2018 12/14/2018

obtained at http://www.alnd.uscourts.gov/local/court%20forms/transcripts/Transcript% 20Redaction%20Policy.pdf) See Transcript Redaction Policy. Redaction Request due 12/28/2015. Redacted Transcript Deadline set for 1/7/2016. Release of Transcript Restriction set for 3/6/2016. (YMB) (Entered: 12/07/2015)
307 Transcript of Proceedings held on 2/9/2015, before Judge USDJ Abdul K. Kallon. Court Reporter/Transcriber Sabrina Lewis, Telephone number 205.515.3101. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. NOTICE: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. (A copy can be obtained at http://www.alnd.uscourts.gov/local/court%20forms/transcripts/Transcript% 20Redaction%20Policy.pdf) See Transcript Redaction Policy. Redaction Request due 12/28/2015. Redacted Transcript Deadline set for 1/7/2016. Release of Transcript Restriction set for 3/6/2016. (YMB) (Entered: 12/07/2015)
308 Transcript Information Form − Part III. Notification that Transcript has been Filed in District Court. (YMB) (Entered: 12/11/2015)
309 NOTICE of Compliance with the Court's 282 and 295 Orders by B D, B J, G S, J W, K B, P S, T A P, T L P. (Attachments: # 1 Exhibit Joint Proposed Training and Procedures Plan)(Howard, Ebony) Modified on 12/16/2015 (YMB). (Entered: 12/15/2015)
310 Reservation of Objections and Preservation of Issues on Appeal filed by M Benson, A Clark, D Henderson, J Nevitt, A C Roper, S Smith, R Tarrant. (Choy, Michael) Modified on 12/16/2015 (YMB). (Entered: 12/15/2015)
311 MOTION to Withdraw as Attorney by M Benson, A Clark, D Henderson, J Nevitt, A C Roper, S Smith, R Tarrant. (Relfe, Julien) (Entered: 02/04/2016)
312 ORDER GRANTING dfts' 311 Motion to Withdraw as Counsel. Attorney Julien Mitchell Relfe terminated. Signed by Judge Abdul K Kallon on 2/5/2016. (YMB) (Entered: 02/05/2016)
Pursuant to F.R.A.P. 11(c), the Clerk of the District Court for the Northern District of Alabama certifies that the record is complete for purposes of 283 Notice of Appeal, Appeal No. 15−14669−E. The entire record on appeal is available electronically. (YMB) (Entered: 03/31/2016)
313 MOTION to Withdraw as Attorney for Jerri Katzerman by B D, B J, G S, J W, K B, P S, T A P, T L P. (Howard, Ebony) (Entered: 08/22/2017)
314 MOTION to Withdraw as Attorney for Ebony Howard by B D, B J, G S, J W, K B, P S, T A P, T L P. (Howard, Ebony) (Entered: 08/22/2017)
315 ORDER granting 313 Motion to Withdraw as Attorney Jerri Katzerman; 314 Motion to Withdraw as Attorney Ebony Howard; The Plaintiffs'Motions to Withdraw as to Jerri Katzerman and Ebony Howard are GRANTED (Docs. 313 and 314 ). Signed by Judge Abdul K Kallon on 08/28/2017. (KBB) (Entered: 08/28/2017)
316 USCA JUDGMENT as to 283 Notice of Appeal; Before ED CARNES, Chief Judge, JORDAN, Circuit Judge, Reversing the decision of the District Court. Issued as mandate November 27, 2018 with per curiam opinion attached. (Attachments: # 1 Opinion)(AFS) (Entered: 11/27/2018)
317 ORDER this matter is SET for a telephone conference on 12/13/2018 04:00 PM. Counsel shall dial 888−557−8511 and enter access code 4541204, five minutes prior to the designated call time. Signed by Judge Abdul K Kallon on 11/30/2018. (AFS) (Entered: 11/30/2018)
318 FINAL JUDGMENT Consistent with the mandate issued on 11/27/2018, 316 , judgment is hereby entered in favor of K.B. and B.J. for $5,000 each on their excessive force claims against Officer S. Smith and Officer M. Benson, respectively. Judgment is entered in favor of the defendants on all other claims. Therefore, this case is DISMISSED WITH PREJUDICE. Signed by Judge Abdul K Kallon on 12/14/2018.

Case: 2:10-cv-3314 As of: 01/30/2019 11:51 AM CST 38 of 38 (AFS) (Entered: 12/14/2018)