He was a high-school honor student, a senior and a member of the Army National Guard.
Nevertheless, say his parents, Clark County School District police and a high-school principal who didn’t like his Facebook page detained him, illegally, for over three hours.
The family’s ordeal began two days before Christmas break when the father received a phone call from Northwest Career and Technical Academy’s Dean Karen Galindo, informing him the school was concerned about pictures posted on his son’s Facebook.
Was he aware, the father was asked, of the content on the student’s Facebook page? Certain other students had become frightened, said the dean, upon seeing pictures of the young soldier wearing military clothes, plus another picture of the youth, as a 14-year-old, three years earlier, holding a dummy rocket launcher at a public “Aviation Nation” event held at Nellis Air Force Base.
Yes, replied the father, he was entirely aware of the Facebook pictures and saw them as in no way inappropriate for a young soldier. The Facebook pictures, the father explained to Galindo, are related to his son’s National Guard activities, air-show enthusiasm and other civil service endeavors — including Scouts and the Civil Air Patrol.
“Our son is an active member of the Army National Guard,” explains the father. “He takes pictures of himself in foxholes, with tanks, wearing military gear and things of that nature.”
Maj. April Conway, a spokesperson for the Nevada National Guard, tells Nevada Journal there are no rules against soldiers posting pictures of themselves in uniform or participating in drill.
“If they want to post a picture,” says Conway, “to say, ‘look at me at drill last week,’ that’s just fine.”
“Foxholes,” says the dad, with unmistakable father’s pride, “is what our son does on weekends.”
“We thought that was the end of it,” says the mom.
The next day, however, the family would find themselves thrust into a realm where the very Constitutional rights their son had sworn to support and defend were treated as inconsequential. His ardor and commitment to service, borne from a long lineage of military servicemen and women — Navy Dad, Air Force and Army grandparents, and Navy great-grandparents — tarred him as suspect, in some minds, and marked him as a possible school shooter.
It was Dec. 21, the day of the popularly predicted Mayan Apocalypse — an odd fact that turns out to actually be relevant.
NWCTA’s principal, Kimberly Bauman, unexpectedly interrupted the student’s third period class and pulled him out, taking the student’s backpack as they exited the classroom. Two school police officers were waiting in the hallway.
Assuming this was about his Facebook page, the young man took out his military ID to show the officers and Bauman that he really was in the Army National Guard.
CCSD police officers immediately confiscated the ID card.
As the foursome continued across campus, the student asked to call his parents and talk to a lawyer. “I also asked if they had a warrant, since they took my backpack,” he told Nevada Journal.
“We will talk about this when we get where we are going,” one of the officers replied, says the student.
However, as he tells it, they never did.
Instead, once behind closed doors in Bauman’s office, says the student, Bauman emptied his backpack onto the floor — without a warrant or consent — and, as CCSD police looked on, rifled through his binders and other personal effects.
Among the personal items CCSD police found suspicious and seized were pages from a classroom assignment requiring students to form a team, then design and build a human powered vehicle to compete in a competition.
“They pulled out one of my papers that had a team roster,” says the student, “and prices for materials on the back, and team positions.” Also on the paper was a draft sketch for a proposed team uniform. “Each team has a uniform,” he explains, and so “we had drawn … what we want our uniform to look like.”
No one ever told the student why he was detained or what they were searching for, he says. However, printouts from his Facebook account were sitting on the table when he entered the principal’s office — leading him and his family to believe his detainment was about the Facebook call to the father the night before.
The frame of reference within which CCSD police were operating, however, had little to do with class assignments or Facebook.
According to an arrest statement by school police officer Deric A. Hall, school police were actually investigating a report relayed by the Las Vegas FBI “indicating that associates of former student Steven Fernandez [sic] were possibly involved in a plot against the school.”
Steven Fernandes, according to an October Las Vegas Review-Journal report, had been the subject of court papers filed by Assistant U.S. Attorneys Nicholas Dickinson and Patrick Walsh. The court documents said the FBI had an email from Fernandes, a recent Northwest Career-Tech graduate, in which he described himself as the commanding officer of the “327th Nevada Militia,” an urban survivalist unit with six or seven members. Also, according to federal authorities, Fernandes had stockpiled guns and explosives and spoken about staging mass casualty attacks.
According to the police report filled out by Hall following the arrest of one Jake Benton Howell, when CCSD officers asked Principal Bauman the morning of Dec. 21 for a list of known Fernandes associates at the school, she had included on her list the name of the senior honors student.
But the National Guard student says he only knew of Steven Fernandes because they were in the same program area the prior year, but had never spoken with him.
According to the Hall statement:
Bauman advised Burgess that she became concerned about [Redacted] due to his recent behavior. [Redacted] sent an email to one of his teachers requesting permission to wear camouflage gear to school on December 21, 2012. [Redacted] indicated in the email that he and another student wanted to guard the front of the school as students arrived for the school day.
However, according to the relevant emails, there appears to have actually been no request “to wear camouflage gear to school.”
What Bauman apparently did not tell CCSD police, or what CCSD police failed to report, was that Dec. 21 at Northwest Career and Technical Academy was “History Ball Day,” when students were supposed to come to school dressed as an historical character for their History and Government classes.
Aware of rising apprehension among other students, given the arrival on Dec. 21 of the so-called Mayan Apocalypse — when the world was, according to Internet doomsday sites, supposedly to end — the youth had an idea, about which he asked his government teacher.
Perhaps he and another senior classmate, also in the National Guard, could wear their “military uniforms,” rather than their costumes, and stand at NWCTA’s entrance before school the morning of the 21st “to make students feel safer, and let them know that there [are] people watching over them.”
In that email conversation, the teacher replied, “This is something that has to be approved by the principal.” And, in a later response to the student, she wrote:
I asked the administration and they said that you need [to] be in your history ball costume. They are not allowing anyone to stand out front. I know you guys are trying to do a good thing and I think that’s awesome.
See you tomorrow!
The next day, based on Bauman’s characterization of the student, CCSD police officers had him removed from class.
The family doubts there really ever was an issue with the email.
They report they never were informed of any concerns regarding the email — not during the dean’s Facebook call, during the police questioning, nor during any later conversation. Indeed, they weren’t even aware of the matter until Nevada Journal, in mid-January, gave them a copy of Hall’s statement.
“When you read the reports and you listen to what everyone said, and read the report from the principal,” said the father, himself a retired police detective, “it’s obvious: At some point, somewhere, they decided to . . . put a story together that they could use to cover their butts and all the stuff they had done.”
CCSD police officials, when interviewed by Nevada Journal in late December, did not dispute that the National Guard student was detained, searched and questioned or that his papers were seized.
“To kind of give you an overall of what was going on,” said CCSD police Capt. Ken Young in a sit-down interview, “that was one of several schools [where] we heard of rumors of possible violence.
“This individual, a juvenile,” said Young, “came to the attention of officers based on information from other students. So they made contact with him and looked at him for weapons, threats and things like that.”
However, as detailed above, Hall’s sworn statement — its existence unknown to the family and Nevada Journal at the time of the interview — contradicted Young.
Contrary to Young’s explanation, school police were not at NWCTA as just “one of several schools” where officials heard “rumors.” Rather, school police were, according to Hall, on campus investigating FBI reports of a possible plot against the school and the school’s principal had implicated the young National Guardsman as a suspect.
Thus, school police did not learn of the student through “other students” as Young told Nevada Journal.
When Nevada Journal asked Young at the end of the interview if there were any public records available relevant to the student’s detainment, Young did not come forward with Hall’s sworn statement — despite having released the report to other media outlets ten days earlier at a Dec. 21 press conference.
“They are juvenile records,” Young told Nevada Journal. “You would have to go through the process.”
A few days later when the publication learned of the nexus between the honor student and Howell’s arrest, Young denied releasing the police report to the media and sent Nevada Journal’s reporter on a day-long trek all over town to locate the record. Each entity Nevada Journal spoke with said the same thing: “It’s not our record. School police released the report, not us.”
Nevada Journal ultimately obtained the report through other sources.
During the interview, when asked about the status of the student’s detainment, Young described the situation as “fluid” with “no absolutes.”
“It depends. It depends on what was said,” said Young. “It’s a very fluid situation. There are no absolutes. There’s no A is always A. It’s not that.”
As to the idea of fluid custody, Allen Lichtenstein attorney for the ACLU of Nevada says he’s never heard of such a thing.
“Either you’re free to go,” says Lichtenstein, “or you’re not free to go.”
The issue of custody is paramount, here, because — just like Henderson or Metro police — school police, too, must meet Fourth Amendment probable-cause standards.
Under Nevada law, also, parents must be notified when juveniles are detained and searched.
Clark County School District Police Department General Order 450, Search and Seizure, states officers are “to work within the framework of the U.S. Constitution when conducting searches and seizures.”
According to Young, “at some point,” there would have been probable cause for the student’s detainment, although he would not specify any particulars, indicating the student may have been a witness at some point, or detained for his own safety at some point.
When pressed on the issue of custody, Young refused to provide any clarifying answer:
Nevada Journal: So, did CCSD at anytime move to transport the student to juvenile facilities?
Young: He was not taken into custody to — he was not removed from that particular setting.
Nevada Journal: But he was in custody?
Young: He was detained for questioning.
. . . .
Nevada Journal: Was he free to leave?
Young: At that particular time that he was being questioned, he was not free to leave.
Nevada Journal: Was he free to leave when they locked him the room with your officers?
Young: That I don’t know.
Nevada statutes mandate that when taking a juvenile into custody, a police officer, including CCSD officers, “shall” contact the child’s parent “without undue delay,” and must release the child to a parent or guardian.
CCSD-PD General Order 420, Handling Juveniles, also directs school officers that a “child’s parents/guardians be promptly notified when the child is in police custody.”
Describing the student’s custody status as, “Some of it was administrative. Some of it was police,” Young would only say the parents were contacted, deflecting Nevada Journal’s multiple attempts to discuss when.
The family says parents were not contacted for three hours and only after the mother began frantically calling her son when he didn’t show up after school.
Cell phone records show the mom began texting her son a few minutes before school let out. A little while later, she made multiple calls to her son — seven calls in one six-minute span. School-district documents confirm the family’s account, showing that school officials didn’t contact the parents until 2:10 pm — minutes shy of three hours after their son had been detained.
Under school-district policy, school administrators — as distinct from police — do not need probable cause to detain or search a student. Nor are they required to call parents when detaining a student. However, searches must be “reasonable.”
“Reasonableness,” says CCSD Regulation 5144, “requires that the search be justified prior to its commencement and be related to the circumstance giving rise to the search.”
“Absent extraordinary circumstances,” states the policy, a student’s person and possessions may be subject to search on school property only if “the student voluntarily consents to the search.” Or, if “prior to a search there is an individualized, reasonable suspicion that the student is hiding evidence of a wrongdoing,” and the “search is necessary to maintain school discipline, order or safety, and to prevent the removal or destruction of evidence.”
In this instance, says the student, he was not asked for consent until after the search was conducted. At which time — 35 minutes later — as noted on the consent-to-search form, the student refused to sign.
“The search,” says CCSD policy, “shall be limited to the evidence declared to be the objective of the search.” Which, in this case, according to the consent-to-search form, was limited to the broad scope of “Anything He Could Not Have At School.”
“That’s problematic — singling out a particular student for search for no specificity whatsoever, for ‘anything not allowed at school,’” says ACLU attorney Allen Lichtenstein.
“What was their justification for that?” asked Lichtenstein.
“Reasonable Suspicion” was the only reason noted on the search-consent form.
According to Lichtenstein, a person cannot just say, “I’m suspicious. I feel suspicious.” That, he says, is too subjective.
“If basing a search on reasonable suspicion,” says Lichtenstein, “then, the question is of what. And they have not articulated that.”
There’s an irony here that’s not lost on the family: The items seized by officers — pens, pencils and homework papers — are precisely what students are required to have at school.
Also not lost on the family is the fact that CCSD policy does not require school administrators to contact — or even attempt to contact — parents unless a student’s “person” is searched.
Indeed, in not one of the school district’s 16 student-discipline related policies and regulations, as they apply to secondary students, is there a requirement for school officials to contact parents when interviewing or questioning students. In fact, even the district’s policies and regulations on student suspension and expulsion only require a written notice to parents — after the fact.
It is precisely this leeway, says Young, which is why CCSD police used Bauman to conduct the search.
Nevada Journal: The search consent form is very specific, saying “reasonable suspicion,” and so my understanding from department policy is that reasonable suspicion is different from, and doesn’t require, probable cause. Is that correct?
Young: This is why the administrator would assist in that. They have a little more leeway as it relates to reasonable suspicion versus the officer who has probable cause. So that would answer the question as to why the administrator did the search. They did an administrative search.
School files received by the family weeks later, would also confirm that school police used Bauman as their agent to initiate contact and detain the student.
“The Officer told [the student] that Ms. Bauman had not initiated the school police contact with [him] today,” an NWCTA administrator wrote in the student’s discipline file, “but was following CCSD police requests.” (Emphasis added.)
Part 2 of this story is available here.