It is critical that the Fifth Circuit Court of Appeals clarify that the Fourth Amendment applies to the use of force against schoolchildren. J.W. v. Paley involves Fourteenth and Fourth Amendment claims stemming from a police officer tasing a high school student with disabilities who was attempting to exit the school building to calm down following an incident with another student. The district court dismissed the Fourteenth Amendment claim based on precedent, but allowed the Fourth Amendment claim to proceed, denying qualified immunity to the officer. The Fifth Circuit, however, reversed the lower court’s decision regarding the Fourth Amendment claim, ultimately leaving schoolchildren without any constitutional protection from excessive force by law enforcement in the Fifth Circuit.

In early 2014, Alexander Baxter was bitten by a police dog that was unleashed on him while he was sitting with his hands in the air, having surrendered to police. He sued for excessive force, but in late 2018, a federal appeals court ruled that his claim should be thrown out under the doctrine of “qualified immunity.”

Whether the Ninth Circuit’s “provocation rule” that police officers may be held liable for using force when they provoked a threatening reaction with a Fourth Amendment violation is consistent with the Supreme Court’s use of force analysis in Graham v. Connor and subsequent cases?