Jerry L. Steering Wins Landmark "Special Needs School Arrest" Case In 9th Circuit Court of Appeals

A San Bernardino County sheriff’s deputy violated the Fourth Amendment rights of a group of Etiwanda Intermediate students when he arrested them because he thought they were uncooperative in a bullying investigation, a federal appeals court ruled Monday, Sept. 10.

“The summary arrest, handcuffing, and police transport to the station of the middle school girls was a disproportionate response to the school’s need, which was dissipation of what the school officials characterized as an ‘ongoing feud’ and ‘continuous argument’ between the students,” Judge Jacqueline H. Nguyen wrote in the opinion for the 9th U.S. Circuit Court of Appeals’ three-judge panel.

“No reasonable officer could have reasonably believed that the law authorizes the arrest of a group of middle schoolers in order to teach them a lesson or to prove a point,” the opinion said. The case goes back to Oct. 8, 2013, when a group of seventh-grade girls, ages 12 and 13, were handcuffed, arrested and driven from the school to the police station.

Balbina Kendall, then the school’s assistant principal, had asked the school resource officer, San Bernardino County sheriff’s Deputy Luis Ortiz for help with a group of girls who had been involved in bullying and fighting at school.

The seven girls were put in a classroom together. According to Nguyen’s opinion, Ortiz intended to verify what he had been told about the incidents by school administrators, but found the girls  “unresponsive and disrespectful.”

According to the court, an audio tape has some whispering and quiet giggling from some of the girls. The two girls who appear to have been the aggressors in the bullying, told Ortiz that they would not stop their behavior. But the other girls didn’t say anything until after Ortiz had started making arrests and asked if they needed to be handcuffed.

Ortiz told the girls he was arresting them because he was not “playing around” and was taking them to jail to “prove a point” and “make (them) mature a lot faster,” according to the opinion.

He did not care who was at fault, he told the girls, because it was the “same ticket, same pair of handcuffs.” According to the mother of one of the girls, Kendall said it was school policy to suspend any student involved in a fight, regardless of who was at fault.

The San Bernardino County Sheriff’s Department declined to comment on Tuesday, with a spokeswoman citing “continuing mediation and litigation.”

Ultimately, the school did not discipline any of the seven girls, and no criminal charges were filed.

The Fourth Amendment to the U.S. Constitution protects the public from “unreasonable search or seizure” or arrest without probable cause.

“The district follows its discipline policies and the California Education Code with respect to student discipline,” Etiwanda School District Superintendent Shawn Judson wrote in a statement Monday. “We partner with local law enforcement agencies to keep our schools safe. This approach has not changed significantly in the last five years; however, we continually review our policies and practices to ensure they effectively serve our students and school community.”

The families of three of the girls sued the arresting deputies and the County of San Bernardino for unlawful arrest in violation of state laws and the Fourth Amendment. (The suit against one of the deputies was later dropped.)

The district court denied the defendants qualified immunity and granted summary judgment in favor of the students.

“This is a published opinion. It’s not just an appeal. It’s going to have a really big impact on schools anywhere west of Utah,” said Newport Beach attorney Jerry Steering, who represented the families. “The people they have as school resource officers are not well-trained. This guy was a bad egg.”

A year after he arrested the girls at Etiwanda Intermediate,  Ortiz made headlines in 2014 when he accused a bullying victim of being an aggressor in a report. The student was suspended until video later emerged showing that the Etiwanda High victim had not fought back.

Now that the 9th Circuit Court has weighed in, the case will likely return to U.S. District Court Judge Virginia Phillips to determine damages, either through settlement or a special jury. In his original 2014 lawsuit, Steering had asked for $10 million in punitive damages and $10 million in compensatory damages.

Staff writers Ryan Hagen and Joe Nelson contributed to this story.