The Officer Was Not Seriously Hurt

When a student has special needs, there are two things that run through a school administrator’s head: it’s going to cost money and it’s going to require someone to exert some effort. Neither of these things makes an administrator happy, but good schools are resigned to their duty to provide a Free and Public Education.  Others demonstrate little to no grasp of what that means.

In the case of 5-year-old Michael Davis, who suffered from ADHD with behavioral issues, his IEP should have included a behavioral intervention plan, an individualized means of addressing the behavioral issues raised by special needs students to manage problems, address negative and support positive behaviors. It’s hard work.  Instead, the Rio Calaveras Elementary in Stockton, California decided to try the hammer method first. Hey, you never know, right?  Maybe we can just “scare straight” the kid and, well, problem solved?  What could go wrong?

On the one hand, Lieutenant Frank Fordo was ill-equipped for the task he was asked to perform.  Cops expect people to obey them, or at the very least not to facially challenge them unless they’re looking for trouble. He was a hammer. Little MIchael was a nail.

Lieutenant Frank Fordo wrote in the police report that, after placing his hand on Davis, the boy “pushed my hand away … pushed papers off the table, and kicked me in the right knee.”

Not acceptable conduct as far as a cop is concerned.  Unless the person engaged in this conduct is 5 years old. And suffers from ADHD. And can’t control his impulsivity.

This isn’t to excuse Fordo, as no slightly-intelligent adult, even a cop, can conceivably be such a tool as to place a child in zip ties and charge him with battery.  On the bright side, Fordo’s reaction was limited to defensive conduct, meaning he didn’t tase Michael, beat him for the kick to his shins because Fordo feared for his safety or fire his weapon after the 5-year-old touched him.  Police really hate the idea of someone touching them, and had Michael been a few years old, the possibility of serious force would be quite real.

But the fact that anyone at the school thought this was an appropriate means of  addressing Michael’s behavioral issues is beyond comprehension.  This is where we expect teachers and administrators to have some minimum level of competency, of understanding, of empathy, to deal with children.

Naturally, no one is speaking about it. They hide behind the “no comment as the matter is under investigation” lie, since there is never a reluctance to comment when matters are under investigations that don’t involve them.

In the comments to the HuffPo post, commenter Peter Atwood provides background about the school district’s failure.

The mother had asked the district to assess the kid.  The district would not do so, violating 34 CFR 104.35, which requires a kid with a disability to be assessed.  They also violated 34 CFR 104.32, which requires them to find and offer to assess kids with suspected disabilities.  As the Office for Civil Rights (OCR) said, the district failed to provide a free appropriate public education (FAPE).

If this is true, then it’s an outrage aside from bringing in Fordo to scare Michael into submission. This is not merely a legal duty imposed on districts, but a moral imperative in dealing with children.  Sorry it’s hard to deal with special needs students, but they aren’t thrilled with having disabilities either. Yet, as another commenter notes:

Not to condone this action, but there is a great deal of frustration on the part of educators when it comes to dealing with disruptive kids. Physical punishment means nothing to kids who are beaten at home, and the parents tend to care less as long as no one bothers them over their children’s misbehavior. You can’t talk to these kids, because they no longer trust adults. Again, I don’t condone this, but I understand the reaction to do something excessive. There are few options, and no support from the higher-ups.

If it sounds to you like the excuse of a guy who beats his wife because she just won’t listen, you’re not alone.  Note that the comment doesn’t mention teachers, but “educators,” a pompous affectation spread within schools to create the impression of professionalism.  Educators educate. Educators give a damn about the children under their care. Educators don’t call in the cops to do their job because it’s too hard for them to do it themselves.

And if you wonder what a story like this is doing on a criminal law blog, rather than an educational law blog, consider this comment:

Yes its time to severely punish these delinquent 5 year olds, they are a real danger to society and must be bound and hogtied to protect the poor innocent police officers, who are only doing their duty.

Thankfully, the officer wasn’t seriously hurt in the performance of his duty.


22 thoughts on “The Officer Was Not Seriously Hurt

  1. Jim Majkowski

    Thanks for this post, whose content I hope will be widely broadcast to other “educators” and to law enforcement commanders and trainers. But, was not the last quoted comment made as sarcastically as the post’s last sentence?

  2. spekode

    Such extensive editorial-ism might drive up page-views but it undermines the message.

    No child needs to be zip-tied, restrained, by (many) adults many times their size.

    When did he pose a threat that necessitated this action? That’s all your have to do; Ask that question. The rest undermines the question that needs to be asked. Yak yak yak. Enjoy the page-views.

    1. SHG Post author

      I assume this is your first time here, which would explain the inanity of your comment. But if you don’t care for the “editorial-ism,” then you don’t have to read here. Problem solved.

      1. spekode

        I didn’t understand that you don’t care about the substance of stories you post and prefer sensationalism. I’ll avoid you in the future. Ok? I’d be ashamed of myself if I were you. That’s all.

        I’m leaving and I won’t be back. You’re welcome.

          1. Sgt. Schultz

            Page views? That’s a new one. I still don’t understand why you post these idiotic comments. This has to violate at least a half dozen rules.

    2. Steve

      This is a law blog. SJ is one of the foremost criminal defense blogs in the blawgosphere, and certainly the most widely read. Your suggestion that SHG has written this (or anything else) to get page views is absurd. While it is understandable that you, as a non-lawyer, are unaware of this and have made a foolish assumption, your rudeness is not.

      This post is not just about a child being zip tied and restrained by an adult. Once again, as a non-lawyer, it’s understandable that most of the post (what you call “editorial-ism”) flew over your head, but what is most unfortunate is that instead of making an effort to grasp things far beyond your comprehension, you have chosen to play the fool, insult the host and remind the great many lawyer who read SJ how many people out there are too stupid to understand significant problems that happen around them.

      So yes, someone is a disagrace. It’s not SHG. I, for one, thank you for not coming back. I only wish you never came in the first place. You will neither be noticed nor missed.

  3. Jake DiMare

    I was a precocious kid who approached authority, constraints, and education with a level of creativity and energy that often put me on the wrong side of educators and occasionally the local PD. It genuinely saddens me to learn things are getting worse for youngsters like this one.

    1. SHG Post author

      This kid wasn’t a precocious trouble-maker, but suffers from ADHD with apparent behavioral issues requiring an intervention plan. It’s not merely that the school (and police) handled him poorly, but utterly disregarded their legal obligation to him and put him at obvious risk by trying this insane “scared straight” nonsense with an officer who was utterly unqualified and inappropriate for the situation. Schools can be bad with precocious kids; they violate a specific legal duty when they neglect special needs students.

  4. Curtis Steeves

    Aren’t you supposed to have at least a modicum of intelligence to be promoted to Lieutenant? I guess the First Rule of Policing applies when dealing with 5 years.

    1. SHG Post author

      Forget promoted to lieutenant. What about reaching majority? It’s nearly inconceivable that any adult would have acted this way with a 5-year-old child.

      1. Curtis Steeves

        And yet this Lieutenant is in a leadership role. Geez I wonder if that is an institutional problem? Thankfully up in the Great White North we cannot prosecute those under the age of 12.

  5. JTM

    “Naturally, no one is speaking about it. They hide behind the ‘no comment as the matter is under investigation’ lie, since there is never a reluctance to comment when matters are under investigations that don’t involve them.”

    The school district is prohibited by federal and state law from disclosing information about a student without the written consent of the parents (with some limited exceptions that don’t apply here). The school may have a very different story about what happened, but we’re never going to hear it.

    1. SHG Post author

      No, no, no. FERPA prohibits the school from disclosing personal information about the child, not about its own misconduct. And it’s disingenuous for the school (which it didn’t, but if it did) to hide behind adherence to FERPA when it failed to otherwise adhere to its legal duties.

      As the child’s mother has disclosed the child’s name and disability, the school is free to address the situation under FERPA that the mother has already disclosed. It chooses not to.

      1. JTM

        FERPA and the corresponding California statutes and regulations prohibit the disclosure of pupil records, or any personally identifiable information they contain, without the written consent of the student’s parents. Pupil records are any materials that contain information directly related to a student that are maintained by the school district. That means that the school district cannot provide any information about whether Michael’s parents requested an assessment, whether the school assessed Michael, whether he has an IEP or 504 plan, whether he has a behavior plan, or what behaviors he exhibited that caused the District to call the police.

        It doesn’t matter whether Michael’s parents discuss their child’s disabilities publicly, that doesn’t have any bearing on FERPA’s prohibitions on disclosure. Without their written consent the District can’t provide information about Michael. That’s actually one of the more frustrating aspects of FERPA for school districts, since it prevents them from responding in kind to public accusations.

        FERPA does exempt records created and maintained by a school district’s police department, so some of that information might be available, but I’m not familiar with California laws governing access to law enforcement records or information.

        1. SHG Post author

          That was the point, that FERPA in no way prohibits the district from responding to allegations that Michael [or, “unnamed male youth” if you prefer] “refused a lawful order” and “violently assaulted” the officer, and was then zip-tied, restrained, arrested and taken to a psychiatric hospital by the Lieutenant. None of this involves any FERPA disclosure.

  6. Michael McNutt

    Couldn’t the nice policeman just tased, beat, handcuffed, zip tied and arrested the teachers and other school folk for breaking 34 CFR 104.2 as well as 104.5? I mean he seems to be missing out on lots of fun here….

    1. SHG Post author

      I’m thinking the Lieutenant could have engaged in a bit of self-help under 34 CFR 104.6, but then if he had a clue, he wouldn’t have been there in the first place and would have told whoever called him from the school that this was an issue for “educators,” not police.

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