Three Honolulu police officers can be sued on excessive force claims for their part in handcuffing and arresting a 10-year-old girl at Honowai Elementary School in 2020, according to a recent decision by a panel of judges for the 9th U.S. Circuit Court of Appeals.

The officers — Christine Nevez, Warren Ford and Corey Perez — appealed to the 9th Circuit after a federal judge rejected their requests for qualified immunity, a judicial doctrine that protects public officials, such as police officers, from individual liability. The officers were named along with the City and County of Honolulu and the Hawaii Department of Education in a federal lawsuit filed by the girl’s mother, Tamara Taylor, in 2022.

Taylor Brack, staff attorney with the ACLU of Hawaii which is representing Taylor, said the June 26 decision was a “big deal” as the plaintiffs were able to overcome the barrier of qualified immunity in this case.

“It tends to be a very, very powerful tool used by government defendants to lessen the ability of plaintiffs to sue them,” she said.

Qualified immunity is often held up as a necessary way to protect officers from liability as they carry out the duties of their risky jobs, but activist organizations, like the Innocence Project, have said it can prevent victims of government misconduct from seeking justice and shield officers from consequences when they transgress.

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The protection, though, can be stripped in cases where it’s shown that the public official violated a “clearly established” right.

In Taylor’s case, 9th Circuit judges Consuelo Callahan, Andrew Hurwitz and Holly Thomas wrote in their decision that “no reasonable official could have believed that the level of force employed against” the 10-year-old student was necessary.

Honolulu police Chief Joe Logan said in a statement that the department does not agree with the court’s decision and stands by its officers’ actions. All three officers remain on full duty.

The girl, identified in court documents as “N.B.”, was arrested after school administrators reported her to the police for making an “offensive” drawing, according to Taylor’s complaint, which was filed Jan. 7, 2022.

The drawing depicted a girl colored in blue and red holding what appeared to be a cartoon firearm with a head on the ground and various scribbles and words, according to court documents.

But the girl made the drawing with other students and did so as a coping method after experiencing bullying, the complaint says. N.B., who is Black and has ADHD, was the only student punished for the incident.

When officers were called to the school on Jan. 10, 2020, they “interrogated” N.B. without her mother present, handcuffed her and brought her to the Pearl City police station, according to the complaint. Between being questioned at school and the police station, she was in HPD custody for more than four hours and had marks on her wrists from the handcuffs after they were removed.

The complaint, which accuses the defendants of discriminating against N.B. because of her race and says the officers used excessive force, seeks damages for her injuries and trauma. The incident also left her with a fear of interacting with police officers, the complaint says.

The 9th Circuit decision calls the officers’ choice to use handcuffs on the girl, “completely unnecessary and excessively intrusive.”

At the time of her arrest, she was in a secluded office surrounded by adults, was calm and compliant and did not resist arrest or attempt to flee, the decision says.

The officers, though, are entitled to qualified immunity as it applies to the plaintiffs’ claim of false arrest, according to the judges’ decision. The officers may have had probable cause to arrest the girl, and she did not have a clearly established right to be free of an arrest, they wrote.

Even though the officers were denied qualified immunity on the excessive force claim, it doesn’t mean they’ll have to personally pay for any future settlement. Police are almost always indemnified, meaning governments pay settlements recovered by plaintiffs in lawsuits against officers, according to a 2014 study by Joanna Schwartz, a law professor at UCLA.

But overcoming qualified immunity does make it easier for a plaintiff to get paid, even if it’s the taxpayers who end up footing the bill, said Ken Lawson, co-director of the Hawaii Innocence Project. If the officers in this case were shielded by qualified immunity, the plaintiffs could still sue the city, but they would have to come back with a different theory that would hold the city at fault for the actions of the individual officers.

The ACLU is in the process of finalizing a settlement with the Department of Education in the Taylor case but has not yet reached a settlement with the City and County of Honolulu, according to Jongwook Kim, legal director of the ACLU.

Derek Inoshita, spokesman for the DOE, deferred a request for comment to the Attorney General’s Office. Toni Schwartz, spokeswoman for the AG’s office, said the office would not comment on the status of litigation.

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This story was originally published by Honolulu Civil Beat and distributed through a partnership with The Associated Press.