Will Texas Protect Students from Police Aggression?
Nov. 20, 2013, a school day in Texas’ Bastrop County, starts like any other for 17-year-old Noe NiÃ±o de Rivera and his family.
The sun rises a little before 7 a.m. and first period at Cedar Creek High School, the home of the “Eagles,” starts an hour later. The day is no scorcher – an even 74 degrees with 90 percent humidity you could swim through.
If you live outside of Texas, you’d have to zoom in pretty closely on Google Maps to see Bastrop County. The area in the Southwest is home to about 70,000 people and is located about 20 miles southeast of Austin. It is also home for the NiÃ±o de Rivera family.
On this day, the teenager has no idea that he will put Bastrop County, Texas on the map. The day prompted a storm of media coverage and launched a national debate beyond any youth’s imagination. That debate and questions remain.
“They are a very close family, a very loving family, a very religious family,” Adam Loewy, the family’s Austin-based attorney, said. “They are of very limited means. Both parents came from Mexico. But they do the best they can raising five kids.”
As another academic year at Cedar Creek High School – a “Campus of Distinction” as the Texas Education Agency has declared it – unfolds and Nov. 20, 2014 approaches, there is no doubt that the youth’s parents, Oscar NiÃ±o de Rivera and Maria Acosta, are continuing to do their best.
A Call for Help
On that day last year, Randy McMillan and Timothy Stalcup, law enforcement officers serving the campus, would receive a call requesting assistance to diffuse an altercation. Two female students were fighting in a hallway at Cedar Creek High.
Noe NiÃ±o de Rivera also was there in the hallway. The youth with a thin frame stepped in to break up what had erupted before him. He feared the situation would escalate before the school resource officers arrived, according to court documents.
By the time the officers showed up, Rivera had diffused the situation.
But as captured on video from the school’s surveillance system, when McMillan and Stalcup – who are Bastrop County Sheriff’s Office deputies and resource officers for the Bastrop Independent School District – arrived, they instructed the unarmed teenager to step away.
He did. He also raised his hands in the air, his family said in court papers.
For a reason that has yet to be made fully clear in public, McMillan drew his taser, a device formally known as a TASER Conducted Electrical Weapon (CEW), stepped toward the teenager and incapacitated him with it, according to court papers.
The youth’s parents said their son was unconscious when the handcuffs were locked around his wrists.
McMillan thought that the teenager had taken an “aggressive stance” and that the taser was a more preferable response in the situation, given that pepper spray could have hit other students in the crowded hallway, according to media reports.
A taser works by sending an electrical stimulation to a person. Law enforcement, correctional, military and professional security personnel use the device when they believe, at least in general terms, that an individual is a threat to people in the immediate vicinity and overall public safety.
Those who support the use of the device say it is an alternative to using deadly force.
TASER, the company that makes the device, describes it this way: “The probes deployed from a TASER CEW carry fine wires that connect to the target and deliver the TASER into his neural network. These pulses delivered by the TASER CEW overwhelm the normal nerve traffic, causing involuntary muscle contractions and impairment of motor skills.”
During tests and demonstrations, the device is used on volunteers who first sign a waiver form. On the company’s form, which outlines possible safety risks, there is a note relating to its use on young people.
“No minor will be exposed to a TASER CEW as part of a training course, demonstration or otherwise,” it says.
In the Hallway
When the shock from the taser hit NiÃ±o de Rivera, he collapsed. His head hit the concrete floor in the hallway. He was knocked unconscious.
In court papers, his family contends that schools officials delayed in calling medics. Eventually, school officials called for medical assistance.
The teenager was airlifted to St. David’s Medical Center, about 25 miles away, where he was rushed into emergency surgery because of a severe brain hemorrhage. Doctors placed Rivera in a medical-induced coma. He remained in it for 52 days.
When his parents turned to the sheriff’s office and the school district for answers — and for someone to be held accountable — they heard replies that they found unsatisfactory. In their eyes, no public official took responsibility.
Their son’s medical bills, though, rocketed to $1.3 million. Even after Medicaid paid a sizable chunk of it, the family still faced a formidable sum with their name on it.
Loewy, the family’s attorney, filed a federal lawsuit last year against the deputy, the county and the Bastrop school district.
Civil Rights Groups Enter
Legal advocates in Texas also took note of the case.
For Deborah Fowler of Texas Appleseed, there is an incongruity of tasers being permissible for use by law enforcement officials in the state’s public schools when they “are not authorized for use in any of our juvenile justice facilities in Texas.”
As the deputy director of the legal aid group, she focuses on school discipline and juvenile justice issues.
In a Dec. 4, 2013 letter to the Texas Commission on Law Enforcement, the ACLU of Texas, Texas Appleseed and five other organizations requested that the commission bar the use of tasers, stun guns and pepper spray on students in public schools in the state.
“They told us they did not have the authority to issue any restrictions — even though they are the licensing and regulatory agency for law enforcement in Texas,” Fowler said.
Texas Appleseed and other advocates went to the Texas Education Agency (TEA).
But officials at the agency that helps guide and monitor programs related to public education in the state said they also lack the authority to enact such a ban.
“That is a conversation that has to take place among local elected officials,” TEA spokeswoman Debbie Ratcliffe told the Houston Chronicle.
This year, in February and April, after tasing incidents by school officers at a Houston-area school and an Austin-area school, the ACLU of Texas, Texas Appleseed and other organizations sent a letter to Gov. Rick Perry asking him to place a moratorium on the use of tasers and pepper spray by police officers in Texas schools.
In their letter, the groups wrote that video footage shows that NiÃ±o de Rivera was walking away from McMillan when the taser struck him.
The organizations never heard back from Perry directly, but in media reports the governor said the issue was a matter of local control.
Fowler said individual school boards can get together and set policy on use of tasers and pepper spray, but educators tend to defer to their local police chief. Advocates in Texas held a public forum on the issue earlier this year, but so far it’s prompted no change.
“The school [Cedar Creek High School] has not talked about it,” Fowler said.
In May, after a grand jury failed to secure an indictment and charge McMillan with use of excessive force in the incident, the ACLU of Texas, Texas Appleseed and the Texas Criminal Justice Coalition issued in a joint statement.
“Today’s decision makes it clear that we need more accountability for tragic incidents of this kind and more training for officers who are assigned to schools across Texas, armed with tasers, and provided little if any instruction on de-escalation techniques that lessen the reliance on force to break up fights,” they wrote.
Use of Tasers at Schools Elsewhere
In other parts of the country, the use of tasers by school resource officers also has surfaced.
The New York Civil Liberties Union is suing the Syracuse Police Department on behalf of two students, who were on the receiving end of tasers at their high schools.
An August report by the ACLU in Nebraska criticized police use of tasers. The legal group cited a November 2013 incident in which a Kearney police officer used a taser on a student on campus.
In a statement to Central Nebraska News, Kearney police said they will review the report to see if they can improve the use of less lethal force.
Last week, police in Indiana used a taser on a 10-year-old boy who was at school in the city of Fishers and who reportedly had behavior problems, WTHR.com reported.
Fowler pointed out her concern of what might happen in Texas if current policies remain.
“Eventually, we’ll see a student who is killed by a taser or pepper spray use in public school,” she said.
As for the NiÃ±o de Rivera case, Bastrop County in August settled the federal lawsuit brought by the youth’s family.
As part of the agreement, the county paid the family $775,000. The county does not admit fault in the case.
McMillan has returned to his work as a deputy, Loewy said, noting that he has been cleared in the case.
“Noe is still recovering, and he will need continued treatment for years,” Loewy added.
The family’s lawsuit said the teenager’s brain injuries are permanent.
And the FBI, Fowler said, is looking into the case.
Amy Roe, Equal Voice News reporter, contributed to this story. Equal Voice News contacted the Bastrop Independent School District, the Bastrop County Sheriff’s Office and Gov. Rick Perry’s office for comment and will include their responses when they are received. This story has been updated since it was first posted.