Wearing a "Military-Style" Tactical Vest to School Isn't a Crime

The Eighth Circuit held that plaintiffs had adequately alleged that school resource officers lacked probable cause to arrest them; note that nothing in the court's decision casts doubt on the school's ability to investigate or even briefly detain the students short of arrest.

From Evans v. Cabot School Dist., decided Thursday by Eighth Circuit Judge Michael Melloy, joined by Judges James Loken and Jonathan Kobes:

Two high school brothers were arrested for disorderly conduct after wearing {military-style} tactical vests to school. {Kameron's vest had a "U.S. Army" patch on it. The parties agree that the vests were not real tactical or military vests, nor were they bulletproof. Kameron's vest was mostly obscured under a large winter coat he was wearing. Noah did not have his coat on over his vest. Kameron also carried a green duffle bag that he used to carry his ROTC equipment. The Officers describe the bag as a "military-style duffle bag," but the Evanses dispute that the duffle bag was military-style. Kameron alleges that he regularly used the bag to carry his marching band and ROTC equipment, in addition to his Airsoft war game equipment.}

The brothers were acquitted, and sued the school resource officers; the court held that the officers weren't entitled to qualified immunity on the brothers' claim that they were arrested without probable cause in violation of the Fourth Amendment:

"Probable cause exists when the totality of circumstances at the time of arrest would lead a reasonable person to think the defendant committed or is committing a crime." … The Officers begin by arguing they had "probable cause to arrest Kameron and Noah for disorderly conduct based on what they wore to school on that particular day." The Arkansas disorderly conduct statute states in part:

(a) A person commits the offense of disorderly conduct if, with the purpose to cause public inconvenience, annoyance, or alarm or recklessly creating a risk of public inconvenience, annoyance, or alarm, he or she:

(1) Engages in fighting or in violent, threatening, or tumultuous behavior; …

(4) Disrupts or disturbs any lawful assembly or meeting of persons[.]

The Officers argue that the Evanses purposely or, at the very least, recklessly caused alarm by wearing tactical vests on a day when the school was screening an active-shooter video. The Officers do not expressly identify which of the enumerated disorderly acts the Evanses allegedly engaged in, though they seem to contend that the brothers' conduct disrupted a lawful assembly. For their part, the Evanses deny that they even knew about the active-shooter video.

Regardless of whether the Evanses purposely or recklessly wore their vests to school, there was no disruption of a lawful assembly. The Officers present no evidence that the Evanses were disruptive. The Officers were only aware of Noah's vest because Ms. Evans informed them, and Kameron's teacher would not have known about the vest under his coat absent two students quietly bringing it to her attention after class.

Officers argue that because two students reported Kameron's vest, the Evanses disrupted a lawful assembly. But students tell on other students all the time. Moreover, Ms. McGhee testified that Kameron's vest did not cause disruption in her class or during passing periods. The Officers also stated that the Evanses were respectful during their search and interrogation. In fact, Officer Dodd considered sending Kameron back to class with his vest.

Cases interpreting Arkansas' disorderly conduct statute further support the conclusion that the Officers were not objectively reasonable in arresting the Evanses for disrupting a lawful assembly. For example, in Holloway v. State, a man was convicted of disrupting a lawful assembly after attending a basketball game between two rival high school teams where the man threw soda, hamburgers, and French fries onto the floor of the gymnasium and swore and yelled at a game official. Although there was no evidence that spectators left on account of his behavior, the Arkansas Court of Appeals nonetheless held that the defendant had disrupted a lawful assembly because "the game had to be stopped to clean up the spilled soft-drink." Likewise, the Arkansas Supreme Court opined in dicta that a loud confrontation between defendants and a pastor in the middle of church services disrupted a lawful assembly, citing as authority disorderly conduct cases that predated Arkansas Code § 5-71-207. In both cases, the defendants' conduct interrupted an organized group gathering. No similar circumstances are present here. Accordingly, based on the totality of the circumstances and the facts viewed in the light most favorable to the Evanses, we cannot say as a matter of law that the Officers had probable cause to arrest both Kameron and Noah for disrupting a lawful assembly….

The Officers argue they had arguable probable cause to believe the Evanses wore tactical vests to school "with the purpose to communicate a threat at school in a way that would cause alarm and/or disrupt a lawful assembly," in violation of sections 5-71-207(a)(1) and (a)(4). Officers argue that the Evanses' attire alone disrupted a lawful assembly and support their contention by citing McIntosh, where we found the defendant's attire contributed to a disorderly conduct violation. But there, we found that the officers' decision to arrest the plaintiff rested on more than just the defendant's "outlandish and comical dress." Indeed, in McIntosh, the defendant had attempted to interrupt a private fundraising banquet attended by then–Vice President George H.W. Bush.

We determined that the officers had probable cause to believe that the defendant was about to engage in disorderly conduct because he openly "intended to disrupt the banquet, refused to heed the officers' warning, and was attracting attention and creating a disturbance by his dress, his agitation, and his raised voice." Similar facts are absent here. The Evanses did not disrupt class, and they did not disrupt passing period. They politely and respectfully followed the Officers' instructions. They did not raise their voices and did not create a disturbance through their dress. Moreover, their dress did not violate the Cabot High School dress code, and the school had previously allowed other students to wear tactical vests.

The Officers also allege they had arguable probable cause to believe the Evanses engaged in threatening behavior. Although the Officers do not expressly allege what threatening behavior the Evanses engaged in, we can presume that the threatening behavior was wearing a tactical-style vest on a day that Cabot High School was screening a school shooter training video. Cases show that threatening physical behavior constitutes disorderly conduct. For example, one court found that a patient who "engage[d] in the conduct of hitting the nurse and threatening her and the doctor's lives to create public inconvenience, annoyance or alarm" violated the Arkansas disorderly conduct statute. Likewise, another court concluded that "erratic behavior, cursing, flailing … arms, and [a violent] demeanor" may amount to threatening behavior.

By contrast, another court denied qualified immunity on a motion for summary judgment where an officer arrested a Walmart customer he believed was engaging in, or about to engage in, threatening disorderly conduct. The officer claimed that he believed the customer "was becoming unruly in violation of Arkansas's disorderly conduct statute, including raising his voice to a level where he attracted people's attention, stiffening his posture, and bowing up like he might be confrontational." The customer, on the other hand, argued that, even though he refused to provide the officer with identification, he was responsive to the officer's questioning, "stayed relatively still[,] and wasn't loud or obnoxious." Based on the parties' conflicting accounts, the district court concluded that a jury needed to decide whether the customer "was becoming disorderly."  …

[T]he Evanses were cooperative, quiet, and polite. The only evidence the Officers present as threatening are the vests that the brothers wore. Furthermore, the Officers' own actions undermine their argument that the Evanses engaged in threatening behavior. After searching Kameron, the Officers permitted him to walk unrestrained on their way to Principal Hawkins' office and likewise sit outside of Principal Hawkins' office while they met inside. The Officers even considered allowing Kameron to continue wearing or carrying his vest and duffle bag throughout the remainder of the day. For Noah, there is even less support he engaged in threatening behavior. In fact, the Officers present no evidence that Noah acted threatening in any way.

Finally, the Officers do not argue they made a contemporaneous determination that probable cause was established at the time of the arrests. By their own testimony, they made the arrest at the direction of Principal Hawkins. Taking the evidence in the light most favorable to the Evanses, Principal Hawkins' concern was not about disruption caused by wearing the vests, but rather Kameron's support of Colin Kaepernick and the Black Lives Matter movement.

In today's climate of school shootings, school officials and police officers are justified in having heightened concern around attire that might suggest a student is armed. But context matters, and schools have many mechanisms to discipline students.

Cabot High School, where the Officers work, is a place that had previously tolerated students wearing military gear, without discipline. After searches of the Evanses revealed they were not armed or in any way threatening, the Officers nonetheless decided to arrest both brothers at the direction of the school principal. These facts, viewed in the light most favorable to the Evanses, do not support a finding of arguable probable cause. Accordingly, because the district court did not err in denying the Officers' motion for summary judgment and qualified immunity on the Evanses' unlawful arrest claim, we affirm.

Judge Kobes concurred as to a separate question that wasn't discussed in the excerpt above.

Paul J. James, John Clayburn Fendley, and Theresa L. Caldwell represented the Evanses.