Handcuffing a 5-year old

Joanne Jacobs has this post about the handcuffing incident in Florida of a 5 year old girl. You can also view the videos provided by the family's attorney. I have a lot of mixed feelings about this incident. This will be a long post-so you are hereby warned.

First, it is obvious that the child was completely out of control. For all those people out there who said the teachers should have done more to control the child, listen carefully to the sound when you hear someone off-camera saying not to touch the child. Florida does not allow teachers and administrators to touch kids other than to keep the child safe--so physical restraint is out.

Which leads me to my first suggestion--the schools need to be able to physically restrain a child. The lack of discipline in the classroom is related to the fact that teachers have no means of enforcing the discipline. Sure they can talk to kids, they can put kids in a corner, but they can't restrain a child for any reason other than to protect teh child's safety--to do otherwise invites a lawsuit. In this case, the lawsuit is already coming.

I also think that that idea of corporal punishment needs to come back. While I would prefer a disciplined classroom based on respect for the teacher and other students, a discipline classroom based a little on fear is not such a bad thing. It is in our nature to fear pain, that is how we learn not to put our hand in a fire, for example. Thus, if a student behaves because they fear the pain of corporal punishment, then I am fine with that.

Before getting to the legal stuff, I would like to point out that I think the police officers did exactly the right thing in one respect. One officer said some to the effect that the child had been warned that she would be handcuffed if she crossed the line again. You cannot threaten a child with consequences and not follow through. My daughter knows if she misbehaves repeatedly after being warned, then the consequence is she loses toys. If I don't carry through on the threat she learns quickly that the threat is meaningless and will continue to misbehave. I don't think the cops needed to put handcuffs on the child, but I will guarantee you this, the child will always associate those handcuffs with her bad behavior and if that serves as a deterrent, I am fine with that as well.

Onto the legal stuff. The police crossed a line and there should be a consequence, albeit a minor one. I would imagine that the parents are going to sue the police for several thousands of dollars in damages. However, if I were the police department, I would ask for a trial, admit liability and ask for the award of just $1.00 in damages. The parents of this child should not get a windfall because they cannot teach their child to respect authority. The police need to be better controlled and shouldn't have to resort to the threat of handcuffs for a 5 year old, but once made they carried it out which is fine with me. I realize that the position sounds a little wishy-washy, but that is the case. The officer should be reprimanded, but again in a light manner.

But here is the capper, if I were the attorney for the school system, I would be filing a suit against the parents for vandalism, battery and possibly assault. The theory of liability is based in part on the theory of liability that dog owners have when the dog bites someone. I am not suggesting treating the child like a dog, but the logic, I believe is sound.

Under tort law, if you own a dog that bites someone, the first bite is more or less free. However, the dog owner is considered to be on notice that their dog bites people. It is the owner's duty to train their dog not to bite humans, restrain the dog, or prevent contact between the dog and other people. If the dog bites someone again, the owner is liable. They had a duty to prevent the second biting and failure to do so is a tort for which the owner is liable, even though the dog did what was, in some respects natural.

There have been tort cases where children as young as six or seven and their parents have been held liable for the conduct of kids, for actions such as pulling a chair out from under someone as they sit down or hitting someone with a baseball bat. So there is precedent for holding young kids liable for their torts. (Thanks to Prof. Kelly at Catholic University for teaching me that).

But a better theory is the "dog owner theory." From reports I have heard, this is not the child's first outburst. Thus the parents have been put on notice that the child's behavior is in appropriate. Even five year olds can be taught some modicum of self-control. The parents have a duty to ensure their child does not hit other people or destroy other people's property. I have a three year old daughter who knows that hitting other people or breaking other people's things is not approriate behavior and will be punished with a nose to nose view of the wall followed by apologies to all involved. As a result, she knows when she has crossed the line. The child in Florida has had no such instruction despite the parent's knowledge that the child is prone to such behavior.

To prove a tort, a plaintiff must show a duty existed, the duty had been breached, a harm resulted and the breach of the duty cause the harm. I think it is pretty clear that the parents had a duty to teach the child to respect the authority of the teachers and principals at the child's school. The parents had notice that the child is prone to outbursts, including striking others. The parents, like the dog owner who bit someone, had a duty to teach their child to respect authority and not hit someone, restrain the child or keep the child out of such situation. Since the parents can't physically restrain the child while she is at school and probably can't keep her out of school. Thus instruction is their only option.

The breach seems pretty obvious, the child acted out, thus the parents failed in their duty to prevent such behavior. Like the dog owner, liability is imputed to the parents even if the actions of their child are, to some extent, the natural behavior of a child.

The failure of the parents to follow through with their duty is the cause of the harms. If the child had been taught to behave and respect authority, respect people in general and their belongings, then but for the child's behavior and the parents' delinquency in their duty, the harms to the teacher, the child's classmates and the assistant principle would not have occured.

So what are the harms, simple--the child disrupted the class and the class had to leave the room! That means those kids had their day disrupted. There was damage to the classroom and the principal's office that needed to be cleaned up (the vandalism). That means the teacher, the principal and probably the school's janitorial staff had to clean up after the child, meaning time and money spent cleaning when they could have been doing something else. While the child may not have been strong enough to actually harm the assistant principal, she did batter the woman. Battery is the unwanted touching of a person by another. Intent to harm is not required for a battery. Finally, as a policy matter, no teacher or school administrator should have to suffer the indignity of being struck by a student, no matter what the child's age.

As to damages, we probably aren't talking much, maybe a few hundred dollars of time and supplies to repair the vandalism. But the damages are not the point.

Tort lawsuit are used regularly to change behavior, often successfully. A few lawsuits by the schools against parents for failing to teach their children proper behavior will induce parents to teach their children not to hit people or destroy property.

For far too long, parents have abdicated their responsiblity for teaching responsible behavior to the schools. The schools have a role to play in proper social behavior, but for the most part, schools are their to educate children.

One final note, the extremity of the case is what makes news. If this had been a ten year old child, or 13 or 16, then we would not be having this discussion. But just because the child is five does not absolve her or her parents from responsibility. I sincerely hope the school sues the parents.