In a statement of interest about the matter, which was captured on video, the U.S. Department of Justice undermined Douglas County's motion to dismiss the case by contending that it had wrongly interpreted the Americans With Disabilities Act, on which much of the county's argument was based.
ACLU of Colorado legal director Mark Silverstein admits that the DOJ document doesn't guarantee victory for A.V., his young client. But, he says, "the Justice Department's view is certainly helpful to the plaintiff's case."
The handcuffing of young children had already made headlines in 2019 before the A.V. incident. That June, the Denver School Board banned the use of handcuffs on elementary school students, with the exception of those displaying a deadly weapon, after a family publicly shared the story of a campus safety officer putting cuffs on a seven-year-old. Shortly thereafter, Denver Public Schools released data revealing that 65 handcuffings had taken place in the district over the previous two years, with one fifth-grader getting the treatment four times over a twelve-month span.
Cut to August 29, when A.V. — who is Hispanic and was part of an affective-needs classroom at Sagewood Middle School — reacted to a fellow student writing on him with a marker by poking the boy with his pencil.
According to the lawsuit, A.V. subsequently left the classroom voluntarily after calming down. But shortly thereafter, school resource officers got involved; in addition to the Douglas County School District, the suit names Sidney Nicholson, Lyle Peterson and Daniel Coyle, as well as Douglas County Sheriff Tony Spurlock, who was not present but is cited in his official capacity. The boy became severely agitated after the cuffs were placed on him, and once he was put in the patrol car, he banged his head repeatedly, causing a range of injuries.
"When we saw him, his forehead and arms were so swollen and bruised," his mother, Michelle Hanson, recalls in a statement. "A.V. doesn’t head-bang. He must have been extremely dysregulated. After we bailed him out, he wouldn’t eat, wouldn’t speak. A.V. was — is — definitely traumatized. We all are."
Here's the video released by the ACLU:
The ACLU contends that Douglas County and other educational institutions in the state have a record of "disproportionately putting children with disabilities and children of color into restraints and seclusion, and referring these students to law enforcement." Exhibit A is a Colorado Department of Education report showing that "during the 2018–2019 school year, special education students were nearly three times as likely to be referred to law enforcement than those with no special education needs. The study also showed that Latinx students were more than five times as likely to be referred to law enforcement than non-Latinx students," according to the filing.
After the suit was filed in March, the school district and sheriff's office asked the U.S. District Court for the District of Colorado to toss it out. But the Justice Department statement maintains that "in their motions to dismiss," the defendants "misinterpret Title II of the ADA. Specifically, Defendants misconstrue their obligation under Title II to make reasonable modifications during an arrest when necessary to avoid disability discrimination," even if such modifications are not specifically requested by the subject — in this case, an autistic child.
As for the contention of the school district and the sheriff's office that they can't be held liable for damages, the DOJ points out that "courts have repeatedly and correctly held public entities liable for the discriminatory actions (and deliberate indifference) of their employees and agents, including officers’ actions, during arrest and post-arrest proceedings."
Silverstein summarizes the impact of these opinions: "The statement of interest represents the official views of the Justice Department on some of the legal standards that the court should apply in our case. I think it's significant in part because it means our case is viewed as important enough that the Civil Rights division is watching it, even though it's not one of the department's cases. But it's also significant because [the DOJ has] seen the motion to dismiss and partly corrects what it views as misconceptions about the scope of the Americans With Disabilities Act."
The Justice Department "says it's not weighing in on the other side," Silverstein acknowledges, "and, of course, they're not weighing in on the facts. But the department is saying the defendants are taking too narrow of a view of the scope of potential responsibility for disability discrimination. The defendants have suggested that perhaps the ADA does not even apply when officers are carrying out an arrest, and the Justice Department said, 'Yes indeed, the ADA applies to law enforcement when they're carrying out arrests.' Their obligation is to make reasonable accommodations to someone's disabilities."
Still, he continues, "the motion to dismiss hints that even if there's a duty to make reasonable accommodations, it was incumbent on the person with the disability to ask for those accommodations. But sometimes the need for accommodations is obvious, especially if the person suffers from a disability where they're unable to advocate for themselves and ask for the accommodation. And that's the case with our young client with autism."
Although the statement of interest was issued in late June, the court has not yet ruled on the motions to dismiss the case. The Douglas County School District has not responded to questions regarding the statement, but back in March, the DCSD said this regarding the lawsuit: "The District does not comment on active litigation and will have no comment to make outside of the court proceedings."
In the meantime, Douglas County Sheriff Tony Spurlock notes, "Per our policy, we do not comment on pending litigation" — but adds that a response to the Justice Department statement has been submitted to the court.
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Michael Roberts has written for Westword since October 1990, serving stints as music editor and media columnist. He currently covers everything from breaking news and politics to sports and stories that defy categorization.