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,
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, 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 D.C. Docket No.
ED CARNES, Chief Judge, JORDAN, Circuit Judge, and LAMBERTH,
Resource Officers employed by the Birmingham Police
Department and stationed at schools have the authority to use
Freeze , an incapacitating chemical spray, on students
under certain circumstances. A number of Birmingham high
school students who were sprayed with or exposed to Freeze
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
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.
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.
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 , 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 on any of the
students except to discuss the availability of class-based
declaratory and injunctive relief.
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 , and awarded each of them $5, 000 in damages. The
SROs found liable on the decontamination claims now appeal,
arguing that they are entitled to qualified immunity on the
students' Fourth Amendment claims.
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
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.
taken us a long time following oral argument to go through
the record in this complex case, including the lengthy trial
transcript and documentary 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 , 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 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.
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 had to "address
the current deficiencies and form a template for [SROs']
use of Freeze 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
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 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
Id. at 119-20. Finally, "because of Freeze
'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 and the
suggested methods to use to obtain relief in the event a
student is exposed to Freeze ." Id. at
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.
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).
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 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)).
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.
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 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 , 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 and
details how to obtain relief after exposure. Id. at
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.
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 . 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).
provide context for the district court's rulings, and for
the parties' arguments, we set out the evidence presented
at trial concerning Freeze and decontamination. We then
return to the court's specific findings concerning the
SROs and the six students.
Trial Evidence About Freeze and BPD's Decontamination
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
works because it results in "severe pain." D.E.
282 at 31.
material safety data sheet for Freeze describes emergency
and first aid procedures for exposure to the spray as
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.
282 at 37.
materials from Aerko International, the manufacturer of
Freeze , say the following about proper treatment for those
exposed to the 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
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.
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 . 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, 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.
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 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.
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 , reviewing the Chemical Policy,
spraying the cadets with Freeze 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] ...