Temporary Restraining Order Motion
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
PAULA WILLIAMS-PIAZZESE and
LOUIS PIAZZESE, as parents and next
friends of KARA R. WILLIAMS a minor,
Plaintiffs,
No. CIV
STEPHANIE BELMORE, Vice Principal
of Rio Rancho High School, GARY TRIPP,
Principal, Rio Rancho High School,
SUE CLEVELAND, Superintendent of
RIO RANCHO PUBLIC SCHOOLS,
all in their individual and official capacities,
and RIO RANCHO PUBLIC SCHOOLS,
Defendants.
PLAINTIFFS' MOTION FOR TEMPORARY RESTRAINING ORDER
AND PRELIMINARY INJUNCTION
Paula Williams-Piazzese and Louis Piazzese, as parents and next friends
of Kara Williams, through their counsel, hereby move the Court for a
temporary restraining order and a preliminary injunction. In support
of this Motion, Plaintiffs state:
1. Pursuant to FED. R. CIV. P. 65( b), Plaintiffs have filed a Verified
Complaint against Defendants, under 42 U.S.C. § 1983, alleging violations
of the Fourteenth and Fourth Amendments to the United States Constitution.
As more fully set forth in the Verified Complaint:
1. 1. On March 30, 2001, Defendant vice principal Stephanie Belmore
["Belmore"] caused a search of Plaintiff Kara Williams ["Kara"],
a ninth-grader at Rio Rancho High School ["RRHS"], based on
vague information that two unidentified female students had smoked marijuana
in a bathroom at RRHS the day before. Belmore had no evidence that Kara
had smoked or possessed marijuana, or possessed any other prohibited
substance or item.
2. The school security officer who searched Kara found in Kara's purse
within her backpack a key ring with a swiss-army style penknife attached.
The one and one-quarter inch long penknife contains a small blade, just
over an inch long; a plastic toothpick; a pair of tweezers; a nail file,
and a pair of scissors. The penknife was closed. Kara's step-father,
Louis Piazzese, had recently given Kara the key ring with the penknife
after she lost her house key.
3. Belmore immediately suspended Kara under the Defendant RRPS's so-called "zero
tolerance" policy, and proposed long-term suspension.
4. Kara had no intent, plan or thought of using the penknife in any
threatening or harmful manner, either when she put the key ring into
her backpack before she came to school, or at any other time.
5. There was and is no evidence, presented at the suspension hearing
or otherwise, that Kara had any intent, plan or thought of using the
penknife in any threatening or harmful manner.
6. Defendants knew and know that there was and is no evidence that Kara
had any intent, plan or thought of using the penknife in any threatening
or harmful manner.
7. Belmore charged Kara with violation of the Defendant Rio Rancho Board
of Education's Policy 336-3.A.1.a.(10)(b) (possession of firearms or
other weapons), contained in the RRPS Board of Education Policies and
Procedures ["Board Policies"].
1. 8. The RRHS Student Handbook contains the Student Code of Conduct,
which lists twenty-seven prohibited acts and activities, including "possession
of weapons." The word "weapon" is not defined or explained
in the RRHS Student Handbook, or in any other document that is distributed
to RRPS students or their parents.
9. The Board Policies, which are not distributed to students or their
parents, contains the only written definition of "weapon" that
exists within RRPS:
For purposes of this policy, a "weapon" is any firearm, knife,
explosive, or other object, even if manufactured for a nonviolent purpose,
that has a potentially violent use . . . if, under the surrounding circumstances,
the purpose of keeping or carrying the object is for use, or threat of
use, as a weapon.
10. The so-called "zero-tolerance" policy is not written,
defined, or described in any written document within RRPS.
11. The long-term suspension hearing was held on April 18, 2001.
12. Both Belmore and Tripp testified that the so-called zero-tolerance
policy prohibits consideration by any school official or administrator
of any circumstances regarding a student's possession of a "weapon," and
that under the zero-tolerance policy, possession of a swiss-army style
knife, no matter what the circumstances, mandated long-term suspension
with no allowance of discretion by any school official or administrator.
13. Accordingly, Belmore and Tripp both testified that they did not,
could not, and would not consider any circumstances regarding Kara's
possession of the penknife, including that she had no violent history;
that she had never threatened anyone with the penknife or otherwise;
that she had never displayed the penknife; or that she had not presented
any risk or threat to the safety of the students or staff at RRHS by
virtue of having the penknife on her key ring.
14. The first time Kara or her parents ever saw the Board Policies,
including the one-and-one-half page RRPS Policy No. 347-1, "Weapons
Policy," was at the April 18, 2001 suspension hearing.
1. 15. On April 23, 2001, Kara and her parents received the Decision
of Hearing Officer ["Decision"]. The Decision states in part:
The Hearing Officer finds that the conduct of Kara violated Board Policy
336-3A.1.a.(10)(b) and the Rio Rancho High School [Student] Handbook
relating to the Weapons Policy.
2. To obtain a temporary restraining order or a preliminary injunction,
the movant must establish that: "(1) the movant will suffer irreparable
harm unless the injunction issues; (2) there is a substantial likelihood
the movant ultimately will prevail on the merits; (3) the threatened
injury to the movant outweighs any harm the proposed injunction may cause
the opposing party; and (4) the injunction would not be contrary to the
public interest." American Civil Liberties Union v. Johnson, 194
F.3d 1149 (10th Cir. 1999) (citing Kiowa Indian Tribe of Oklahoma v.
Hoover, 150 F.3d 1163, 1171 (10th Cir. 1998)).
3. Plaintiffs can satisfy each of those requirements. First, under long-term
suspension, Kara will not receive credit for at least two of her four
classes for this semester, and possibly all the classes. As a result,
her graduation from high school may be delayed. Additionally, under the
suspension, she may not attend school social and athletic programs. Finally,
she will be irreparably harmed by the obvious stigma attached to being
suspended from school for " possession of firearms or other weapons," which
her files will reflect.
4. Second, the harm to Kara if the restraining order or injunction is
not issued greatly outweighs any potential harm to Defendants, who will
suffer no conceivable harm by being required to reinstate Kara.
1. 5. Third, the restraining order or injunction not only would not
harm the public interest, but would uphold the public's interest in protecting
public school students from unconstitutional conduct.
6. Finally, there is a substantial likelihood that Plaintiffs will succeed
on the merits of their claim. Defendants have no legitimate basis for
their actions; they have failed to provide adequate notice of the proscribed
conduct, including by formally promulgating the policy which they have
applied to Kara, as required by state law; and they have acted ultra
vires.
7. Counsel for Plaintiffs has been in regular communication with the
attorneys for Rio Rancho Public Schools over the matters giving rise
to Plaintiffs' Verified Complaint and this Motion; has given them advance
notice that Plaintiffs would file this Verified Complaint and Motion;
and has served them with a copy of Plaintiffs' Verified Complaint and
Motion.
8. An immediate hearing on Plaintiffs' Motion is necessary in order
to prevent further harm to Kara as a result of the continuing violation
of her constitutional rights, and to prevent further deprivation of her
educational opportunities.
WHEREFORE, Paula Williams-Piazzese and Louis Piazzese, as parents and
next friends of Kara Williams, respectfully request that this Court grant
a temporary restraining order ordering Defendants to rescind the suspension
and to fully reinstate Kara to Rio Rancho High School, and such further
relief as this Court deems just and proper.
Respectfully submitted,
_______________________________
Jane Gagne
108 Wellesley Drive, S.E.
Albuquerque, N.M. 87106
(505) 262-2039 or 265-6199
Cooperating Attorney for New Mexico
Civil Liberties Foundation
Maureen A. Sanders, Co-Legal Director
ACLU of New Mexico
Sanders & Westbrook, P.C.
102 Granite N.W.
Albuquerque, N.M. 87102
(505) 243-2243
Of Counsel
I hereby certify that a copy of the
foregoing was forwarded by facsimile
and mail on April 30, 2001 to the following
attorney for the Defendants:
Charlotte H. Hetherington
Cuddy, Kennedy, Hetherington, Albetta & Ives, LLP
P.O. Box 4160
Santa Fe, NM 87502-4160
Facsimile: (505) 954-7373
__________________________
JANE GAGNE
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