A federal judge has granted immunity to a Denver Public Schools bus driver who blocked students from exiting during a chaotic encounter in which parents surrounded the bus and one mother climbed on board, resulting in an exchange of blows with staff.

Bystander video footage captured the Sept. 18, 2019 incident in which bus driver Thomas Pelkey had pulled his school bus over twice to address students’ rowdy behavior as they rode home from Denver Green School Northfield. At the second stop, some parents gathered outside the bus. A dispatcher told Pelkey not to release the passengers until he took down all of their names.

But after the back door to the bus opened and Pelkey barred students from evacuating, Brandi Martin climbed into the bus to retrieve her daughter. The subsequent lawsuit Martin filed in federal court alleged Pelkey violated the Fourth Amendment’s prohibition on unreasonable searches and seizures by detaining her daughter on the bus and using unreasonable force to do so.

U.S. District Court Judge Daniel D. Domenico decided last week that Martin’s allegations did not establish a constitutional violation, and granted Pelkey qualified immunity.

“Ms. Martin is right that school officials can be held liable for unreasonable searches and seizures,” wrote Domenico, but “the cases are clear that what may be impermissible in other contexts is not necessarily so under school auspices.”

Qualified immunity is a judicial doctrine meant to shield government employees from civil liability if they are acting in good faith. In practice, courts grant qualified immunity unless a prior judicial decision involving similar facts happens to find a government official’s conduct violates clearly-established law.

Domenico also declined to take up Martin’s claims under state law against Pelkey and the school district. Those included allegations of assault, battery and negligence. Domenico advised Martin to turn to the Colorado state courts instead.

One year after the incident, Martin, of Aurora, filed a lawsuit that described the events leading up to her boarding Pelkey’s bus on Sept. 18. Reportedly, her daughter and two other middle school students were singing at the back of the bus, prompting DPS paraprofessional Ernest Makowsky to tell them to “tone it down.” At one point, Makowsky asked Pelkey to stop the bus, prompting students to scream and call their parents using their cell phones.

When Pelkey resumed driving, Makowsky reportedly told everyone he needed to take down their names at the next stop, and no student was allowed to leave. When the bus stopped again in the 2900 block of North Kearney Street in North Park Hill, parents surrounded the bus and asked for their children to be let off.

“What hurts me the most are the screams,” Martin told The Denver Channel afterward. “I can hear them in my dreams.”

A dispatcher allegedly told Pelkey to get the names of students before releasing them, and Pelkey and Makowsky physically restrained passengers from leaving. At one point, the bus’s back door opened and Pelkey attempted to both shut the door amid resistance from the adults and to hold back the students. It was then that Martin jumped on board, prompting the DPS staff to grab her and causing Martin to attempt to fight them off.

Denver police arrested Martin, but prosecutors declined to pursue the case.

“The DPS employees were in a difficult situation and believed they were handling matters as best they could,” District Attorney Beth McCann said at the time. “Criminal charges are not warranted although I hope that the parties are able to move forward and recognize the respective positions of those involved.”

Martin alleged in her lawsuit that she and her daughter suffered “fear, anxiety, embarrassment, indignity, public disgrace, impairment of their reputations, personal humiliation, inconvenience, and mental pain, anguish, and suffering,” among other harms.

Lawyers for Pelkey and the school district argued that higher courts have not established that Pelkey’s actions – a verbal order not to leave the bus and using his arm as a barricade to prevent evacuation – amounted to an unconstitutional seizure. Martin countered that the DPS staff limited her daughter’s movement far beyond what is typically acceptable in a school setting.

Domenico agreed with the school district. 

“While Ms. Martin alludes to excessive force in her Complaint, there are no allegations that Mr. Pelkey actually touched or otherwise used actual force against [Martin’s daughter]. Without application of force, a viable excessive force claim is hard to envision,” he wrote in an Oct. 27 order.

The judge added that the U.S. Supreme Court has not yet clearly articulated how a school bus driver’s response to an on-board disturbance may violate students’ rights. In the absence of a clear dividing line between constitutional and unconstitutional actions, Pelkey deserved immunity.

Denver Public Schools did not immediately respond to a request for comment, but then-Superintendent Susana Cordova said at the time that staff did not “effectively de-escalate this situation.”

The case is Martin v. De nver Public Schools et al.