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J.W. v. Birmingham Board of Education

United States Court of Appeals, Eleventh Circuit

September 24, 2018

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. 2:10-cv-03314-AKK

          Before ED CARNES, Chief Judge, JORDAN, Circuit Judge, and LAMBERTH, [*] District Judge.

          PER CURIAM.

         Student 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.

         Following 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.

         With 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.

         The 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.

         On the 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 injunction.

         Chief 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.

         It has 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.


         The 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 the parties.

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 119-20.

         The 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.

         Given 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).

         Generally 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)).

         A 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. 1980).

         The 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 120.

         On 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.


         We 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).

         To 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.

         A. Trial Evidence About Freeze and BPD's Decontamination Procedures

         Freeze 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.

         The material safety data sheet for Freeze describes emergency and first aid procedures for exposure to the spray as follows:

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.

         D.E. 282 at 37.

         Training 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 production mishaps.
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.

         In 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.

         BPD 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.

         The 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] ...

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