High school administrators found photos of student’s National Guard service alarming. Illegal search.
CCSD police and principal illegal search… 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, illegal, 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 Journalthere 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 offormer 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 andNevada 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 toldNevada 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’smultiple 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.)
While Nevada law and CCSD-PD general orders require that school police “shall” contact parents “without undue delay” and must release a student to his parents, CCSD police did neither.
Instead, according to district records, they used high-school Principal Kimberly Bauman as their agent in an official police investigation that detained the Northwest Career and Technical Academy student for over three hours …. without ever informing his parents.
Because NWCTA Principal Bauman acted as the police officers’ agent, the officers apparently hoped they were out from under Clark County School District Police Department General Order 450, Search and Seizure, which states school police officers are “to work within the framework of the U.S. Constitution when conducting searches and seizures.”
That rule, department officials acknowledge, requires probable cause. However, under CCSD policy, administrators are not obligated to contact a student’s parents so long as a youth’s “person” is not searched.
School district policy also says school administrators may detain and search students if the administrator has “reasonable suspicion” the student is “hiding evidence of a wrongdoing.”
“Reasonable suspicion” is a looser legal standard than probable cause. And that is the reason,says CCSD Police Capt. Ken Young, that CCSD police used Bauman to conduct the search.
But was there, in fact, even reasonable suspicion?
According to the student, while searching his backpack, Bauman removed three papers from his binders and handed them to the two CCSD officers present.
The officers, Daniel Burgess and Deric A. Hall, then began questioning the student — despite multiple requests to call a lawyer and his parents.
According to General Order 420, Handling Juveniles, when CCSD police conduct an interrogation, “the questioning of a juvenile who is suspected of a status or criminal offense,” the child is “entitled to be accompanied by an attorney upon request” and officers must administer the Miranda warning prior.
In his late-December interview, Young did not deny that the student asked for an attorney or that he was never administered the Miranda warning.
“What is the Viper Squad?” asked Burgess as he held up one of student’s seized homework pages.
Viper Squad, explained the student, was the name chosen by his alternative-fuels classworkgroup for their human-powered vehicle team. The school project required students to form a team to first design, then build, a human powered vehicle, with which they were to compete against other teams.
The document’s purpose could have easily been substantiated, says the family.
And the student notes that Burgess “could have gone to either one of my shop [or] technology teachers and said, ‘What is this?’”
“They would have answered,” he continued, “and this could have all been done with.”
Instead, school police continued to hold the student in a locked room with the officers for over two more hours.
Ten to 15 minutes after Burgess questioned him regarding the Viper Squad sheets and other papers, the young man recalls, Bauman left the room, locking the door behind her.
Asked how he knew the door was locked, he explains that, “Every time someone wanted in, they would knock on the door, and Officer Hall — he’s the one that stayed with me all of the time — went and opened the door.”
Then, says the student, officers began questioning him about Steven Fernandes, a former NWCTA student.
According to an October Las Vegas Review-Journal report, Fernandes had been the subject of court papers filed by Assistant U.S. Attorneys Nicholas Dickinson and Patrick Walsh. The documents said FBI agents with the Southern Nevada Joint Terrorism Task force had found bomb-making materials and devices in the bedroom of Fernandes, a recent Northwest Career-Tech graduate. Describing himself as the commanding officer of the “327th Nevada Militia,” an urban survivalist unit with six or seven members, Fernandes had allegedly spoken about staging mass casualty attacks.
At last report, Fernandes remained in federal custody. Nevertheless, said Hall, the FBI believed his associates might be plotting an attack on the school.
“I told [the officer] I knew who [Fernandes] was, because he was a senior in my program area last year,” the student says he told the officers. “That’s as far as I know this Steven Fernandes.”
Officer Hall, however, stated — in a sworn declaration describing the arrest of ex-student Jake Benton Howell — that the National Guard student had said “he was an acquaintance of Steven Fernandez [sic] but has not regularly associated with him.”
According to Hall’s statement, Bauman had earlier also implicated Jake Howell as a “current student known to associate” with Fernandes, and then later, noticing Howell on campus, had pointed him out to school police.
Howell, who told CCSD police he’d come to campus to visit two favorite teachers, was later arrested for having an unloaded rifle and other weapons in his car, which was parked in the school parking lot. He told police that he’d “brought the rifle with him to Las Vegas to show his friends,” and that he’d “loaded his vehicle with various survival gear items to be prepared for the ‘society collapse’ that was rumored to occur on Dec. 21, 2012,” the date of the so-called Mayan Apocalypse.
The father, referring to his own training as a former police detective, says he’s appalled by what he has seen.
“The police,” explains the father, “should have realized that we have a Fifth Amendment issue here — we need to contact the parents.
“The school police are police,” he continued. “They’re POST certified. So, I have questions about a school police officer not understanding court decisions pertaining to juveniles in custody for questioning. They should understand it better than me.”
Officers then continued questioning him, says the student, asking if he knew anything about the kid who brought a gun to school.
“I didn’t know someone brought a firearm to school,” explained the student, who asked the officer, “Somebody brought a gun to school?” Officers asked no other questions about the gun, he says.
For over two more hours, after being searched and questioned by police, the student was detained in the room with Hall, without any parental contact.
About 1:15 pm — when the teen attempted to call his mother — Officer Hall confiscated his mobile phone.
“I asked to call my mom,” recalls the student. “He said, ‘no, let me call me my supervisor.’” Then, says the student, Hall took his phone, which was sitting on the table, and walked to the doorway “and called whoever he called.” After making the phone call, says the student, Hall denied his request and kept his phone, placing it in his cargo pocket.
In his interview, Young tells Nevada Journal the student “was never denied access to his parents.”
Even when the mom arrived at the office she was not immediately taken to her son, she says.
Approaching a crowd of police, school administrators and FBI agents, the mother told the group she was there to get her son. She was then led into a room followed by the school principal, a Metro police officer and an FBI agent.
“I was not allowed to see my son at that time,” the mother told Nevada Journal.
Instead, she says, Bauman informed her that her son had been suspended because he told the principal in front of another student that she was “[F’d] up” and had “[f’d] up the school.”
Bauman then, says the mom, stormed out of the room.
Now as she was crying hysterically, says the mother, a Metro sergeant and FBI agent got her tissue and a bottle of water.
After she had “calmed down just a little,” the mother says, “they asked me for permission to talk to [my son].”
She called her husband, who spoke with the Metro officer.
“I was still crying and asked [my husband] to come down,” the mother relates. “I told him there were police and FBI and the principal had told me they were holding [our son] and [she] was [suspending him].”
“I was scared and didn’t know what to do,” she explained.
“Imagine”, says the father to Nevada Journal, “you can’t find your son. He didn’t show up after school. He’s not returning your texts or calls. Then, you arrive to the school and see a lot of officers from multiple police agencies and FBI agents grouping around the office. And, still they won’t let you see your son.”
That, says the father, is what happened to his wife, who now makes her son pull over every day and text her on his way home from school just so she can breathe, knowing he made it away safely.
Arrangements, said the family, were made with Metro for parents to bring their son in later for questioning.
Not allowed in the room where school police were detaining her son, the mother says she overheard the Metro sergeant state twice, “No, his mother is here. You need to let him go.”
Escorted to the main front desk, the mother says her son was finally brought to her from one of the other offices.
“This was the first time I was allowed to see or speak to my son. I was happy to see him,” she says.
As mother and son walked away, Bauman stopped them, handing the mother suspension papers for her signature. Bauman also gave the mother a copy of the consent-to-search, noting the student had refused to sign it.
The family questions Bauman’s statement and their son’s suspension entirely.
The student was temporarily removed from school, according to the suspension notice, for “Insubordination/Disrespect, Profanity, Campus Disturbance.”
The written summary in the student’s discipline file, however, provided to parents on Jan. 9, shows the student made the alleged comments as part of a conversation with officers, while he was detained in Bauman’s office — and not in front of another student or out on campus as indicated by Bauman.
Furthermore, says the family, the school can’t create an abusive situation where a stressed student uses profanity to a police officer, and then uses that as “the reason for a suspension.”
“You look at the reason why he was [suspended],” explains the father, “that developed during the time he was in custody. And the time he was being questioned was when they developed a reason to [suspend] him. They had no reason to do anything to him prior to that.
“In my opinion,” he continues, “they created that reason by continuing to hold somebody, not telling him what was going on, and not allowing him to contact parents or representation.”
At the subsequent Jan. 9 reinstatement conference, says the family, NWCTA Dean Karen Galindo informed them their son was being referred to the district’s Department of Student Threat Evaluation and Crisis Response for evaluation as a possible school shooter.
Galindo, says the family, was very “non-committal” about what happened to their son, when the family tried to get into the details. However, they say, “She was very definite that she was going to call the assessment center and give them [our son’s] name.”
School district officials tell Nevada Journal Bauman cannot comment on the situation, because it involves a student. Multiple requests to speak generally with Bauman went unanswered.
Requests to school officials regarding the frequency in which school administrators are used in police investigations were shuffled off to the CCSD police and legal departments. Neither department has responded.
Likewise, multiple requests to school-district officials inquiring about CCSD’s lack of policy mandating parental notification have received no response.
“I don’t think we ever will [see] the truth out of all of this,” said the father recently.
CCSD police officials, said the father, didn’t think his son’s future was important enough to set the matter straight. Instead, he said, their primary goal was to cover up their incompetence.
“Their application of the law,” he tells Nevada Journal, “is atrocious, here.”
“CCSD police are a classified police organization,” the father explains. “They are POST certified by the State of Nevada training organization,” he continued. “Thus, they are supposed to apply the law.
“We run into a problem when we see things like what happened to my son. They were not applying the law.”
He then referred to a legislative bill-draft request, from Assemblyman Richard Carrilo, that would expand the jurisdiction and authority of school police.
“I will definitely be happy to go to Carson City, or wherever I have to go,” says the father, “to discuss the fact that I don’t think these people are competent to have that kind of police authority.”
