Two girls got into a fight on the school bus on their way to East Salisbury Elementary School in Salisbury, Maryland. The bus driver suspended them both from the bus for three days, but the school decided more was needed. They called their school resource officer, sheriff’s deputy Rosemary Dolgos, who spoke with both girls.
After determining that one girl, A.W., had slight bruising, Dolgos moved on to speak with the second, E.W., about the fight. Because E.W. didn’t seem concerned enough, Dolgos opted to teach the fourth-grader a lesson by handcuffing her.
Dolgos told E.W. that she was there to discuss what took place on the bus. But, in Dolgos’s estimation, “E.W. [did not] seem to care.” J.A. 23. E.W. explained, “A.W. stepped on my shoe so I kicked her and started to hit her.” J.A. 23. Dolgos attempted to emphasize to E.W. the seriousness of the situation and the possible repercussions, telling her that adults could be jailed for such behavior. Still, in Dolgos’s opinion, “E.W. continued to act as if the situation simply was not a ‘big deal.’” J.A. 23. Dolgos then decided to take E.W. into custody.
Dolgos placed E.W. in handcuffs from behind and reseated her. Dolgos inserted two fingers between the handcuffs and E.W.’s wrists to ensure that they were not too tight. In her affidavit, Dolgos stated that she was concerned about the physical safety of herself and the school administrators because of both the incident she observed in the surveillance and E.W.’s apathy. Dolgos expressed concern in the affidavit that E.W. might act violently against her or someone else if she attempted to walk E.W. from the school to her patrol car. Dolgos also admitted, however, that she had no idea whether E.W. had “any past or current behavioral issues or past involvements with law enforcement.”
Yes, that’s correct: Dolgos claimed she was concerned about her safety although there were two other adults in the room and she had more than a slight edge on E.W. physically.
According to Dolgos, E.W. stood 4’4” and weighed about 95 pounds, while Dolgos stands 5’4” and weighs 155 pounds.
The Fourth Circuit, which hears federal appeals from Maryland, North Carolina, South Carolina, Virginia, and West Virginia, determined that handcuffing E.W. violated her Fourth Amendment rights. (In fact, handcuffing children is just about uniformly unconstitutional.)
Dolgos claimed that having a basis for arresting E.W. made it reasonable to handcuff her. Not so, said the Fourth Circuit.