A federal judge has declined to dismiss a lawsuit against Douglas County sheriff’s personnel for allegedly violating the Americans with Disabilities Act by arresting an autistic child and leaving him in a patrol car to inflict harm on himself.

The ACLU of Colorado helped to file suit against Sheriff Tony Spurlock and three school resource officers in March of last year. The plaintiff is a student named A.V. who attended Sagewood Middle School at the time of his Aug. 29, 2019 arrest.

On Feb. 18, U.S. District Court Judge William J. Martínez partially denied the request from the sheriff and his deputies to dismiss A.V.’s claims against them. A.V. had plausibly alleged that the officers violated his rights under the ADA by wrongfully seeing the effects of his disability as criminal activity, the judge found.

“To be sure, the Complaint sets forth allegations suggesting that Plaintiff had committed a battery against another student, which could give rise to probable cause supporting Plaintiff’s arrest,” Martínez cautioned in his order. However, A.V. had raised the possibility “that Defendants only decided to arrest Plaintiff after misperceiving his subsequent lawful conduct.”

To the allegations that the school resource officers used excessive force against A.V., Martínez granted qualified immunity to the sheriff’s personnel after determining A.V. failed to state a claim.

The judge nevertheless allowed A.V. to file an amended version of the lawsuit more precisely detailing his injuries from the arrest, which could rise to the level of a constitutional violation. Martínez indicated he was curious to hear the parties’ views on whether children may incur less-serious injuries and still have a viable excessive force claim.

Mark Silverstein, the legal director of the ACLU of Colorado, said A.V.’s attorneys would amend the complaint to address the areas Martínez felt were lacking. Lawyers for both sides indicated to the court on Friday that they would evaluate whether to settle after seeing the amended complaint. 

According to the lawsuit, A.V. was 11 years old and in sixth grade at the time of his arrest. He was autistic and had a “serious emotional disability.” One of A.V.’s classmates wrote on A.V. with a marker, causing him to become “escalated.” A.V. responded by poking the classmate with a pencil, resulting in a minor cut on the boy’s arm.

In response, Sagewood’s principal and dean of students removed A.V. from the classroom, where he “de-escalated” while listening to music in headphones. While A.V. was sitting with the school psychologist, school resource officers Sidney Nicholson and Lyle Peterson arrived, asking A.V. if he would come to talk in their office. A.V. shook his head no.

Nicholson, who discussed the situation with the principal and originally said it was “fine” if if A.V. did not want to come with the officers, allegedly handcuffed A.V. with Peterson after the boy’s refusal. Body-worn camera footage showed A.V. crying, screaming for the officers to stop and slamming his own head into the wall.

The officers, who were deputies in the sheriff’s department, then reportedly “paraded” him through the hallways and into a patrol car. 

“I’m not asking you anymore. I’m telling you what we’re doing. Do you understand. Do you understand?” the officers barked at A.V. as they forced him into the vehicle.

Once in the car, A.V. “was banging his head repeatedly on the plexiglass and window of the patrol car. Both SROs Peterson and Nicholson saw and heard A.V. banging his head forcefully while sitting handcuffed in the patrol car,” the lawsuit described. The officers reportedly did nothing about A.V.’s self-harm, which resulted in a bruise on his forehead.

After A.V.’s stepfather arrived, he labeled the continued detention of A.V. as “crazy” and requested that A.V. be taken to a hospital. Instead, after spending two hours handcuffed in the patrol car, A.V. was taken to a juvenile detention center. The charges against him included misdemeanor assault, misdemeanor harassment, and felony assault on a police officer. 

The lawsuit sought to hold the sheriff’s employees and the school district liable for A.V.’s injuries. The district and Spurlock himself were allegedly responsible for failing to train and supervise the school resource officers on how to handle children with disabilities.

“Additionally, the 2019-2020 school year was the first year that SROs were assigned specifically to Douglas County middle schools, and despite this, neither the School District nor the DCSO provided training to SROs in interacting with middle-school aged children with disabilities,” wrote attorneys for A.V.

The defendants moved to dismiss the lawsuit. The Douglas County School District argued that the sheriff’s deputies were not district employees, and there was no evidence the district had authority over them. The sheriff’s employees argued that Nicholson and Peterson had probable cause to arrest A.V. based on what they knew about his conduct, unrelated to his disability.

“Plaintiff assaulted another student in his classroom and was subsequently arrested for doing so. The allegations do not establish that the Deputies misperceived Plaintiff’s lawful conduct to be criminal activity; to the contrary, Plaintiff engaged in assaultive conduct that was not lawful,” wrote the Douglas County Attorney’s Office. 

In an unusual move, the U.S. Department of Justice’s Civil Rights Division submitted a statement to the court explaining the responsibility of law enforcement agencies under the ADA. Police violate the law by failing to provide reasonable accommodations during an arrest, if doing so would not “fundamentally alter” their activities. Because the school resource officers were aware of A.V.’s disability, they could be held liable for failing to take A.V. out of handcuffs, let his stepfather see him, or intervening when A.V. was banging his head, the Justice Department argued.

Martínez described in his order that there were two ways police could be responsible for a wrongful arrest under the ADA: if officers arrest someone because they see the effects of the person’s disability as criminal activity, or if they do not reasonably accommodate the person’s disability during an investigation or arrest and cause injury as a result.

Under the first theory, the school resource officers, viewing the facts in A.V.’s favor, could have taken the boy into custody only after he declined to speak with them in their office, a decision attributable to his disability. In the second circumstance, a jury could find the officers did not prevent A.V.’s self-harm or get him medical attention.

“While it is true that mere knowledge of Plaintiff’s diagnosis, without more, would not necessarily make the SROs aware that Plaintiff needed an accommodation,” Martínez acknowledged, “there are sufficient allegations set forth in the Complaint to suggest that Plaintiff had an obvious need of an accommodation in the manner that he was arrested, handcuffed, and transported and that the SROs failed to reasonably accommodate him.”

Given the alleged lack of training for school resource officers on how to interact with children with disabilities, the judge also agreed the lawsuit could continue against Spurlock. He dismissed the school district from the lawsuit, however, because the sheriff’s office was the sole employer of the deputies.

Following the May 2019 slaying of a student at STEM School Highlands Ranch, Douglas County approved $3 million for extra school resource officers. The Denver Post reported that five new officers went to the district’s middle schools as a consequence. The increase happened three years after the U.S. secretary of education warned that districts choosing to use school resource officers “should incorporate them responsibly into school learning environments and ensure that they have no role in administering school discipline.”

Martínez issued a March 18 deadline for filing an amended complaint.

The case is A.V. v. Douglas County School District RE-1 et al.