The Arbitrary Practice of Handcuffing US Children: Why Ratifying the UN Convention on the Rights of a Child is Crucial for Children Rights
The US Government should implement a more compassionate approach to policing children. Recently, the Sacramento Police Department released body-worn camera footage of a 10-year-old crying, “I’m scared. I’m scared. I’m scared, Mommy. I’m scared. I don’t know what to do. I don’t know what to do,” after a Sacramento officer placed her in handcuffs.
If you think the Sacramento case is an isolated incident of a child handcuffed by police in the US, you be sadly mistaken. Based on the reporting of Yaron Steinbuch, “nearly 30,000 children under the age of 10—and a staggering 228,017 kids between the ages of 10 and 12—have been arrested” in the US during a recent five-year span[1] and placed in handcuffs.
6 Incidents Where Children Have Been Handcuffed
2007 Handcuff Incident—Law enforcement officers handcuffed a 6-year-old girl after she had a temper tantrum at school.[2] It was disturbing to learn that law enforcement officers took the 6-year-old girl to jail, where she was given a mugshot.[3] Reports further indicate law enforcement officers had placed handcuffs around the young girl’s biceps because her wrists were so small.[4]
2013 Handcuff Incident—An impoverished family sent their 5-year-old son to school with painted shoes to observe the school’s dress code. However, the family’s creativity resulted in law enforcement placing the 5-year-old in handcuffs. He was later escorted away in the back of a police car.[5]
2019 Handcuff Incident—A Douglas County Sherriff handcuffed an 11-year-old boy with autism while he banged his head against the wall. Although Douglas County initially charged the boy with misdemeanor assault, misdemeanor harassment, misdemeanor resisting arrest, and second-degree felony assault of a police officer, all charges against the boy have since been dropped.[6]
This wasn’t the only incident where a child with autism was restrained. In 2020, a school resource officer handcuffed a 7-year-old boy and left him restrained on the floor for nearly 40 minutes.[7]
2021 Handcuff Incident—A New York police officer handcuffed, pepper-sprayed and violently subdued a 9-year-old girl, which inspired protest across the city.[8]
2023 Handcuff Incident—A Walpole police officer handcuffed a 9-year-old boy with functional needs while he was having a mental health crisis in his third grade classroom.[9] A disturbing trend between 2016 and 2017 illustrated more than 9,000 public school students were physically restrained at schools across Massachusetts.[10]
Handcuffing of Children in International Law
While there may be circumstances when handcuffs are necessary to effect the arrest and transport of a child,[11] in my opinion, the circumstances above do not meet such a test.
First, handcuffs on children have been shown to invoke feelings of fear, inferiority and anxiety.[12]
Second, handcuffing a child may rise to the level of degrading treatment. In Ireland v. United Kingdom, the Court held that treatment arousing fear, anguish, or inferiority capable of humiliating or breaking the resistance of a person will amount to degrading treatment.[13]
While this case initially dealt with the treatment of adult suspects by authorities, Tobin argues the case’s underlying principle remains applicable to the treatment of children in a range of circumstances where they remain under the control of another person.[14]
Handcuffing Children May Not Meet the Rational Connection Test
Handcuffing a child must pursue a legitimate aim; be undertaken pursuant to a valid law, and must meet the rational connection test and the minimal impairment principle.[15]
Essentially, the rational connection test means the limit of rights must be rationally connected to the objective.[16] There must be a causal link between the impugned measure and the pressing and substantial objective.[17]
It is clear the Sacramento officers were conducting raid on a home. However, the Sacramento Police Department have yet to release to the public evidence that the 10-year-old girl was the subject of their investigation.
A review of the body-worn camera footage further illustrate the 10-year-old girl was not ‘combative’ nor ‘belligerent.’ Therefore, the Sacramento officer’s handcuffing of the young girl was not an appropriate action to achieve a proper purpose: the execution of the alleged search warrant.
Handcuffing Children May Not Meet the Minimum Impairment Test
Sacramento officer’s handcuffing of the young girl also fails the minimum impairment test. In Carter v. Canada (Attorney General), [2015] 1 S.C.R. 331,[18] the Court stated the limit must impair the right or freedom no more than is reasonably necessary to accomplish the objective.
Sacramento Police officers cannot demonstrate there were no less rights-impairing means available to achieve their objective “in a real and substantial manner,”[19] when they handcuffed the young girl to get access to the home.
It is worth stating at this point that law enforcement officers cannot handcuff a child who do not pose an imminent threat of injury to themselves or others.[20] Even when children may pose an imminent threat of injury to themselves or others, law enforcement officers must still show all other means of control have been exhausted.[21] Indeed, the General comment makes clear that handcuffs should never be used on children to secure compliance or as a means of punishment.[22]
Handcuffing a Child Constitutes Detention
Article 37(b) of the UN Convention on the Rights of the Child provides that the principle of last resort and shortest appropriate period is associated with arrest, detention, and imprisonment.[23] When law enforcement officers handcuff a child they are fundamentally placing the child under their custodial care (i.e., detention).
The US Government may argue that handcuffing children is contemplated under domestic law and is therefore consistent with the requirement that any deprivation of liberty is lawful. However, Tobin makes clear that compliance with domestic law alone is insufficient.[24] Moreover, any deprivation of liberty must be consistent with international law.[25]
The Arbitrary Practice of Handcuffing US Children: Why Ratifying the UN Convention on the Rights of a Child is Crucial for Children Rights
The US is the only country that has not ratified the UN Convention on the Rights of the Child. While this critique of the US will be ineffective, ratification indicates that a State consents to be bound to a treaty. One of the most important benefits of ratifying the UN Convention on the Rights of the Child is the protection against arbitrary and caprious practices by those with rank.
In light of this fact, I would urge the US to strongly consider ratifying the UN Convention on the Rights of the Child to protect those most vulnerable from abuses of authority.
References
[1] Steinbuch, Yaron. “Nearly 30,000 US Kids under Age 10 Have Been Arrested in the Past 5 Years.” New York Post, 30 Sept. 2019, nypost.com/2019/09/30/nearly-30000-us-kids-under-age-10-have-been-arrested-in-the-past-5-years/.
[2] Trounstine, Jean, et al. “Keep Kids Out of Handcuffs.” Truthout, 15 May 2015, truthout.org/articles/keep-kids-out-of-handcuffs/.
[3] Id.
[4] Id.
[5] Id.
[6] Ockerman, Emma. “Cops Allegedly Handcuffed an 11-Year-Old with Autism While He Banged His Head against the Wall.” VICE, 10 Mar. 2021, www.vice.com/en/article/akdm9g/cops-allegedly-handcuffed-an-11-year-old-with-autism-while-he-banged-his-head-against-the-wall.
[7] Burke, Minyvonne. “7-Year-Old Boy with Autism Handcuffed, Held on Floor by School Resource Officer.” NBCNews.Com, 13 Oct. 2020, www.nbcnews.com/news/us-news/7-year-old-boy-autism-handcuffed-held-floor-school-resource-n1243168.
[8] Abrams, Laura S., and Elizabeth S. Barnert. “Children in Distress Aren’t Criminals. Stop Handcuffing Them.” The Washington Post, 24 Feb. 2021, www.washingtonpost.com/opinions/2021/02/24/children-distress-arent-criminals-stop-handcuffing-them/.
[9] Jarmanning, Ally. “A Black 9-Year-Old Was Handcuffed in His Classroom, Walpole Family Says.” WBUR News, 5 May 2023, www.wbur.org/news/2023/05/04/massachusetts-black-child-special-needs-handcuffs.
[10] Id, this includes physical holds like bear hugs, straps or belts.
[11]Tobin, John W. “Time to remove the shackles: The legality of restraints on children deprived of their liberty under international law”. The International Journal of Children’s Rights 9.3 (2001): 213-239, see p. 230, https://doi.org/10.1163/15718180120494946 Web.
[12] Id., p. 228.
[13] Ireland v. UK (n 66) para 162.
[14] Tobin, John W. “Article 37: Protection against Torture, Capital Punishment, and Arbitrary Deprivation of Liberty”. The UN Convention on the Rights of the Child: A Commentary. Oxford University Press (2019): p. 1459.
[15] Tobin, John W. “Article 16: The Right to Protection of Privacy, Family, Home, Correspondence, Honour, and Reputation”. The UN Convention on the Rights of the Child: A Commentary. Oxford University Press (2019): p.563.
[16] Government of Canada, Department of Justice. “Section 1 – Reasonable Limits.” Charterpedia, 14 Apr. 2022, www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/check/art1.html#shr-pg0.
[17] Id.
[18] Carter v. Canada (Attorney General), [2015] 1 S.C.R. 331, at paragraph 102; citing Hutterian Brethren, [2009] 2 S.C.R. 567, at paragraph 55
[19] Id.
[20] United Nations. “General Comment No. 24 (2019) on Children’s Rights in the Child Justice System.” United Nations General Assembly, CRC/C/GC/24, 18 Sept. 2019, para. 9, support.microsoft.com/en-us/windows/find-my-downloads-in-windows-10-de903ee9-7d37-256b-9145-f0f016c5aed8.
[21] Id.
[22] Id.
[23] Supra, note 14, p. 1473.
[24] Supra, note 11, p. 222.
[25] Id.
