Two Timnath police officers may be sued for allegedly violating the rights of a disabled 11-year-old by forcing him to the ground and handcuffing him as school staff were in the middle of de-escalation, a federal judge ruled last month.

Officers Andrew Tope and Gabriela Ponce were stationed at Bethke Elementary School as school resource officers when they encountered a boy, identified as M.P., acting out. They allegedly “rushed into” the room, took down M.P. physically and caused him to be charged with criminal offenses.

The defendants attempted to dismiss M.P.’s subsequent lawsuit by arguing they had probable cause to suspect M.P. of a crime: “interfering with the educational process.”

But in a Sept. 12 order, U.S. District Court Chief Judge Philip A. Brimmer found that even if M.P.’s behavior was disruptive as alleged, a reasonable officer would not have viewed it as criminal.

“Defendants claim that M.P.’s return to his regular classroom, contrary to staff instruction, refusal to leave that classroom, and swinging of his jacket constitute probable cause to arrest M.P.,” Brimmer wrote. “The Court disagrees.”

M.P. initially sued the Poudre School District R-1, but the parties settled those claims last year and dismissed the district from the lawsuit. Brimmer also dismissed M.P.’s failure-to-train claims against Terence “Terry” Jones, the police chief in Timnath, because M.P. failed to show Jones was on notice that his officers were liable to commit constitutional violations.

Last year, CBS News reported that nearly one-third of all students arrested recently in Colorado schools were disabled, according to state data. Research funded by the U.S. Department of Education recommended against using school resource officers to manage non-criminal behavior, or to intervene with students who have specific behavioral protocols.

According to his lawsuit, M.P. has attention-deficit/hyperactivity disorder and an emotional disability, placing him under the protections of the Americans with Disabilities Act. In January 2020, M.P. disobeyed the instructions of school staff to stay out of his regular classroom, prompting the principal to ask the two school resource officers to make sure M.P. did not try to leave the building out of frustration.

Tope chose to stand by the classroom door and encountered M.P. leaving with his teacher. M.P. allegedly took off his jacket and started “swinging it around,” so Tope grabbed M.P. and carried him to a separate room.

Teachers then attempted to calm M.P. down using de-escalation techniques. They were allegedly successful, but M.P. would “briefly escalate” again.

“Not being trained or experienced in responding to the behavioral challenges of a child like M.P. with disabilities,” the lawsuit alleged, Tope and Ponce “rushed into the room unannounced and violently forced M.P. to the ground and placed him in handcuffs. Both SROs then carried M.P. out of the school building as he was writhing and crying in pain, and placed him in the back of their patrol car.”

An ambulance transported M.P. to the hospital for physical injuries, and he was allegedly charged with assaulting Tope, obstruction and interfering with the educational process. The lawsuit did not disclose the outcome of M.P.’s prosecution. M.P. reportedly continues to suffer from post-traumatic stress disorder, psychiatric distress and anxiety.

M.P. and his parents sued Tope and Ponce for excessive force, unlawful seizure and violating his rights under federal disability law.

The officers moved to dismiss the lawsuit, arguing it was unclear how they should have recognized M.P. was disabled. Moreover, they acted reasonably by performing a “generic takedown” and “standard handcuffing” in response to M.P.’s alleged misdemeanor offense of refusing to leave his classroom and then swinging his jacket around.

“Therefore, probable cause existed to arrest M.P. for interfering with the educational process,” wrote the officers’ attorneys.

M.P.’s lawyer countered that Tope and Ponce wrongly concluded M.P.’s disability-related behavior was threatening and needed to be dealt with forcefully.

“If this were the law, any student’s failure to strictly abide by a teacher’s direction could potentially be a criminal offense,” warned attorney Jack D. Robinson.

Brimmer agreed with M.P. As alleged, none of the child’s actions fell under the crime of interfering with the educational process, he explained, so no probable cause existed to arrest M.P. 

“The complaint contains no allegations indicating that M.P. posed a threat, put up resistance, or was attempting to flee when the SROs executed the takedown,” continued Brimmer in declining to dismiss the excessive force claim.

Brimmer noted there are two possible disability discrimination claims that stem from arrests: Officers perceiving disability-related behavior as criminal conduct and officers causing a disabled person to suffer greater “indignity” during their arrest. He found M.P. had credibly alleged both types of discrimination occurred and allowed the claims to proceed.

The case is M.P. et al. v. Jones et al.