Officers in schools -- are they "officers" -- or not?

First, let me say something I should state as a warning in every blog about civil liability / section 1983 -- if you ever read that an officer got "qualified immunity" there is nothing wrong with feeling good for him.

But the decision is not good for you.

"Qualified immunity" means the officer violated the citizen's right(s) -- but since there was no case or doctrine on point to give the officer notice that he was violating the right, he shouldn't be punished.

Please remember that as it is very important.

The case where the officer got qualified immunity puts you / officers on notice that the officer violated the constitution, so if you do the same thing the officer did, you can be successfully sued.

In other words, that officer took the one bite of the apple.

Now to make a short story long about an interesting new case --

This is mainly an Arizona / 9th Circuit type case -- but for many reasons (which I will not go into now), I think this is an important case for all officers as this case does represent a trend IMO --

Here are the facts --
Officers had very good reason (maybe even PC) to believe that a man, Nimrod (what a name!) Greene, was a child molester.

The child protective case worker, and an officer, went to the elementary school where Greene's daughter attended. They took the child from class and questioned her for two hours. The child denied the allegations for about and hour -- then admitted that they were true. The case worker then took the child for a medical exam.

Here is the ruling --
The 9th Circuit ruled that when non-school, government officials (i.e. police and case workers) take people from class and put them in a room, that is a seizure under the 4th Amendment.

The court held that officers / the case workers must have a warrant / court order, exigency, emergency, or the parent's consent to seize a child in this circumstance. In this case there was no exigency / emergency as the case worker waited three days after notification to "seize" the child for questioning.

Both the officer and case worker got qualified immunity with respect to the fourth amendment claims in this case.

(The case worker did not get qualified immunity for requiring the medical examination without notifying the mother.)

Ok -- Here's what concerns me about this case --
Around the country, officers think that if they are just present with a teacher, or a case worker, etc, then the Fourth Amendment prohibitions do not apply in the case.

More and more courts and cases are saying that an officer's presence can create the same rules as in the case of a non-student.

In the Greene case above, the officer did nothing but observe -- but he did have a uniform and gun.

So if you are from Texas, Illinois -- or any other state, I would hesitate to be around when a student is seized or searched, unless there is the requisite suspicion / theory to search or seize a non-student in the same circumstances.

Note
The above rule (that an officer must get a court order) does not apply if an officer has reasonable suspicion or probable cause to believe that the student committed a crime.

Best -

DA