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Each and everyday, law enforcement officers
throughout the United States come into contact with persons
who are suffering from some disability. Some of these persons
are suffering from a disability that would make them eligible
for protection under the Americans with Disabilities Act
(ADA). i Some of these individuals would not meet the criteria
for protection under the ADA but do suffer from some injury
or illness that may make certain police tactics more dangerous
to them. This article focuses on police contacts with persons
suffering from a disability in the broader sense, in other
words, those who would be eligible for protection under
the ADA as well as those who, while not meeting the ADA,
should be treated differently by law enforcement due to
a stated, observable or obvious disability.
At the outset it must be recognized that
law enforcement personnel often encounter individuals in
the midst of a
dynamic and violent circumstance. In such cases, officers
must first gain control of the incident before any steps
can be taken to provide additional services to the person
encountered. Where an officer encounters a dynamic and
violent situation, the officer should use his or her subject
control
tactics in order to bring the situation under control.
Where, however, the situation is not dynamic or violent,
officers
should take their time and consider the options available
to them for dealing with these individuals. Officers should
also recognize that if their actions are the catalyst
for the dynamics and violence, then the officer’s
conduct may be criticized as creating the circumstances
that led
to a use of force.
Disability in the Broad Sense
One of the most
frequently occurring circumstances are when officers deal
with persons who have pre-existing injuries
that make a common police tactic more dangerous in light
of the injury. Aceto v. Kachajian and Lavoie provides
an example. ii In Aceto, the United States District Court
of
Massachusetts considered a lawsuit that challenged the
handcuffing of an arrestee who had informed the arresting
officers of
a pre-existing injury that was not visible to the officers.
Michelle
Aceto, described by the court as a small woman, was arrested
on May 23, 2000 for an outstanding warrant
for failure to pay a fine for speeding. The warrant was
thirteen-years-old, having been issued in 1987. Aceto,
informed the arresting officers that she had recently suffered
an
injury while playing hockey and could not be handcuffed
behind her back without suffering further injury. The
arresting officers handcuffed Aceto in the front and took
her to their
station for booking. After being in the police station
for approximately forty-five minutes, Officer Kachajian
began
the process of transporting Aceto to court. Aceto informed
the officer of her pre-existing injury as she had done
with the arresting officer and provided the officer with
the
names of her two doctors who could be called to verify
the injury. Kachajian indicated that he would check her
documentation.
A short time later, Kachajian returned and ordered Aceto
to place her hands behind her back to be handcuffed. iii
While Officer Kachajian, assisted by Officer Lavoie, handcuffed
Aceto “something popped.” Aceto was later
diagnosed with a herniated disk.
In analyzing the facts
of this case, the court noted that
handcuffing a non-threatening, non-flight risk and cooperative
arrestee who has been arrested for a minor crime and who
has informed the police of a pre-existing injury may constitute
excessive force. The court cited numerous court decisions
from jurisdictions holding that where police are aware
of a pre-existing injury to an arrestee; the injury must
be
taken into account before requiring the arrestee to be
handcuffed behind his or her back. The court allowed the
case to go
forward to trial and refused to grant the officer qualified
immunity. The court rejected qualified immunity by citing
cases dating back to 1993 as well as the department policy
in this case as placing the officers on notice regarding
constitutionality of their conduct. It should be noted
that there are numerous cases on point dealing with police
handcuffing
of persons with pre-existing injuries or disabilities
where handcuffing may exacerbate the pre-existing injury
or cause
a new injury. iv It should be noted that these cases are
generally examined as 4th Amendment use of force cases
since in many of the cases the person injured does not meet
the
criteria of a disabled person under the ADA and because
the courts have been reluctant to use the ADA under these
circumstances.
A case from the United States Court of Appeals
for the 10th Circuit involved injuries suffered by a quadriplegic
during a car stop. v Clarence Paul, a partial quadriplegic
was riding as a passenger in Lloyd Gildon’s auto.
Gildon’s wife had reported the vehicle stolen. Officer
Gilpatrick of the Altus, Oklahoma Police Department stopped
the vehicle. During the stop, the officer ordered Paul
out of the vehicle. Paul responded that he was paralyzed
and
unable to get out. The officer then allegedly chambered
a round into his shotgun. Paul then rolled down the window
and again informed the officer that he was paralyzed and
could not get out of the car.
Paul testified that two officers
grabbed him by the neck and pulled him from the vehicle.
Officer Gilpatrick placed
his knee on Paul’s neck and back while he handcuffed
him. During this ordeal Clarence Paul urinated on himself
and became unconscious. He asked the officers to call him
an ambulance. Paul was taken to the hospital where it was
determined that his neck was fractured and his hip was sprained.
Paul filed a lawsuit alleging that the police department
improperly trained officers to place their knees on suspect’s
neck while handcuffing them. The city introduced training
materials from the Council of Law Enforcement Educational
Training that specifically included instructions not to
place a knee on a suspect’s neck “for obvious
medical reasons.” The city took the position that
if Officer Gilpatrick did put his knee on Paul’s neck
he acted in violation of this training.
It should be noted
that the plaintiff in this case actually would meet the
ADA category of a disability as well as the
broad sense of a disability. In this case, Paul was unable
to comply with the commands of the officer because he
was unable to move. According to the facts considered by
the
court, Paul informed the officers of his inability to
follow their commands due to his condition, yet they ignored
this
information.
The court refused to grant the city’s request for
summary judgment after reviewing an incident report left
by one of the officers at the scene. The report asserted: “Gilpatrick
then brought the subjects (sic) right arm around the middle
of his back and had his knee on the subject’s neck.
The way we’re instructed to handcuff in the felony
prone position.” The court concluded that there
was an issue of fact as to what the officers were actually
trained
to do.
Officers should be aware that their actions
may be subjected to scrutiny in two ways, first, the control
tactic or use
of force may be criticized due to its application in light
of the subject’s condition, where that condition is
known to the officer at the time. In other words, if a reasonable
officer would know that the particular tactic may be more
dangerous to an individual because of that individual’s
condition, the officer should consider alternatives. What
may be perfectly reasonable force on a person who is not
suffering from a disability may be unreasonable in light
of subject’s known condition. Thus, the officer’s
actions may be scrutinized under a straight use of force
analysis, adding in the person’s condition as a factor
known to the officer at the time the force was used. Additionally,
where a person suffers from a disability that meets the
criteria of the ADA, the officer may also face scrutiny
with respect to a failure to accommodate the person’s
disability under the ADA. It should be reiterated that claims
under the ADA with respect to use of force, rather than
as Fourth Amendment use of force claims, have not received
favorable treatment by the courts.
The ADA Application to
Law Enforcement
Under the Americans with Disabilities Act,
it is unlawful for any public entity to discriminate against
a person with
a disability. Disabilities are narrowly defined by the
act.
A “disability” is defined as “a physical
or mental impairment that substantially limits one or more
of the major life activities of such individual; a record
of such an impairment; or being regarded as having such
an impairment.” “Physical or mental impairment” is
(1) “[a]ny physiological disorder or condition, cosmetic
disfigurement, or anatomical loss affecting one or more
of the following body systems: [n]eurological, musculoskeletal,
special sense organs . . .”; or (2) “[a]ny mental
or psychological disorder such as mental retardation, organic
brain syndrome, emotional or mental illness, and specific
learning disabilities.” “Physical or mental
impairment” specifically includes: visual, speech,
and hearing impairments; mental retardation; emotional
illness; and certain learning disabilities. vi
In order
for an individual to make a claim under the ADA,
they must establish that:
- They have a disability meeting the definition of ADA;
- They were deprived of a benefit or service that is generally
provided by a public entity or they were discriminated
against by a public entity;
- The person was otherwise qualified to receive the benefit
or service;
- They did not receive the service or they were discriminated
against because of their disability.
The mental or physical impairment must also substantially
limit a major life activity before a person will qualify
under the ADA or the law enforcement agency must treat the
person as if impaired with respect to a major life function.
Major life activities include, seeing, hearing, mobility,
or caring for one’s self.
A case from the Federal District
Court of Utah provides an example of the fact that the
substantial limitation is
a prerequisite to a claim. In Foote v. Spiegel, vii a
trial court reviewed the arrest of Mrs. Foote for DUI. Mrs. Foote
was stopped by a Utah State Trooper for motor vehicle
violations. A drug recognition expert who responded to the scene arrested
her. At the station it was determined that Mrs. Foote’s
condition which included slurred speech, unstable balance
and poor coordination, was not the result of alcohol or
drugs, but rather that she suffered from a neurological
disorder.
Mrs. Foote filed a lawsuit claiming that she
had been discriminated against due to her neurological
condition. While the court
acknowledged that she may have a disability which would
be recognized, that disability did not substantially limit
a major life activity and therefore she was not protected
by the ADA.
Another example is provided in Zhai v. Cedar
Grove, viii which began with a motor vehicle violation.
Ms. Zhai was driving an unregistered and unregistered motor
vehicle when
pulled over by the police. Due to the fact that the car
was not registered, the officer ordered that it be impounded.
Upon telling Zhai to exit the vehicle, she reported to
the officer that she suffered from Post-Traumatic Stress
Syndrome as well as brain tumor and therefore he should let her
go. When Zhai refused to exit the vehicle the officer alleged
pepper-sprayed her and with the aid of another officer,
dragged her from the vehicle. Zhai was charged with multiple
offenses and pled guilty to resisting arrest.
Zhai subsequently
sued the officers for, among other things a violation
of the ADA based on her Post-Traumatic Stress
Syndrome as a disability. In examining the claim, the
United States Court of Appeal for the 3rd Circuit asserted: “Relief
under Title II of the of the Americans with Disabilities
Act, 42 U.S.C. § 12131, and section 504 of the Rehabilitation
Act of 1973, 29 U.S.C. § 794, requires Zhai to show
that she has an impairment that substantially limits at
least one major life activity. As Zhai did not allege that
she was limited in any major life activity, the District
Court properly granted summary judgment on those claims.” Thus,
not only must the person show a disability, it must be
a disability which impairs a major life activity.
While
courts have generally not applied an ADA analysis
to use of force claims, they have been willing to apply
this analysis to cases where a person’s conduct, which
appears criminal in nature, is actually the result of his
or her disability.
The courts have recognized two types of
claims with respect to law enforcement and the ADA. “The first is that
police wrongly arrested someone with a disability because
they misperceived the effects of that disability as criminal
activity. The second is that, while police properly investigated
and arrested a person with a disability for a crime unrelated
to that disability, they failed to reasonably accommodate
the person’s disability in the course of investigation
or arrest, causing the person to suffer greater injury or
indignity in that process than other arrestees.” ix
An
example of the ADA application to law enforcement cases
can be seen in Jackson v. Town of Sanford, x which involved
a drunk-driving arrest. Police responded to an accident
scene where a party to the accident reported that Jackson,
the other driver, was drunk. The officer approached Jackson,
who appeared confused, was unsteady on his feet and slurred
his words. Jackson informed the officer that his conduct
was the result of a stroke that he previously suffered.
The officer conducted a field sobriety test which Jackson,
due to his disability failed. Jackson was arrested for
DUI. At the station, it was determined that Jackson was
not drunk, but rather his appearance, which did not impact his ability
to drive, was in fact the result of his disability.
Jackson
filed several claims against the officer and the
Town of Sanford, Maine. The court dismissed 4th Amendment
claims relating to the officer’s use of force and
the arrest itself. The court refused to dismiss the claims
brought under the Americans with Disabilities Act. The court
concluded that clearly the Town of Sanford Police Department
was a “public entity” which had to comply with
the ADA. Secondly the court concluded that this type of
claim fell squarely within Title II of the ADA. The court
cited a congressional note to the act which used this type
of arrest as an example. The House Judiciary Committee asserted: "In
order to comply with the nondiscrimination mandate, it is
often necessary to provide training to public employees
about disability. For example, persons who have epilepsy,
and a variety of other disabilities, are frequently inappropriately
arrested and jailed because police officers have not received
proper training in the recognition of and aid of seizures.
Such discriminatory treatment based on disability can be
avoided by proper training." xi
It is important to
note that the officers in Jackson v. Sanford, were found
to have acted with probable cause and
thus, constitutionally under the 4th Amendment, yet the
agency was denied relief from the claim under the Americans
with Disabilities Act for their failure to train officers
to recognize symptoms of a disability that may be mistaken
as criminal conduct.
Persons who are deaf are protected
under the ADA. There are numerous cases involving persons
who are deaf make claims
alleging improper accommodation by law enforcement that
leads to arrest or that forms the basis of an improper
investigation.
In Lewis v. City of Richmond, xii Charles
Lewis was arrested after police officers entered his home
to remove his granddaughter
from the house for the Department of Social Services.
The 9-month old had been placed in the custody of David Lewis,
who claimed it was his child by a detective who was investigating
the mother’s suicide. The maternal grandparents had
gone to the Richmond Police over the custody of the baby.
Officers who had responded to the Lewis’ home never
checked with the detective who was handling the suicide
case before going to get the baby.
When police came for
the child, Charles Lewis, who is deaf, sought an explanation
for the removal of the child. Charles
told his son David, the father of the child that he should
not cooperate with the police because he believed the officers
lacked the authority to take the child. The officers indicated
that they did not need any kind of court authorization since
David had kidnapped the child. During this interaction it
is alleged that the officers attacked Charles. The officers
were told by a number of persons present that Charles was
deaf and they would have to write him notes to communicate
with him. They refused to do so. One of the officers present
also had prior knowledge of Charles’ condition since
he had assisted with the installation of special 911 teletype
equipment in Charles’ home.
Charles made two allegations
under the ADA. First he argued that the police had an
obligation to communicate with him
in a manner that took into account the fact that he was
deaf and explain why they were taking the child. The court
dismissed this claim because as the grandfather of the
child, Charles had no right under state law to be informed as to
his grandchild. Charles’ second allegation was that
the police should have accommodated his inability to hear
their instructions prior to making their decision to arrest
him and use force. His arrest for resisting law enforcement
actions was based upon his refusal to comply with instructions
by the officers. Charles claimed that if the officers had
taken into account his inability to hear and had communicated
their instructions in a way that he would understand he
would have followed them. The court concluded that the officers,
with knowledge that Charles was deaf should have taken steps
to communicate with him non-verbally before arresting him
for not following verbal instructions that he could not
hear. Thus, Charles Lewis’ ADA claim went forward
against the officers.
A second type of ADA claim is one
which follows an arrest and includes the manner in which
an arrestee who has a disability,
qualifying under the ADA is treated.
Olsen v. Layton Hills
Mall, xiii involved what the court concluded may have
been the unlawful arrest of Mr. Olsen,
who attempted to use a credit card at the Layton Hills
Mall. Mr. Olsen, who had been shopping with his sons attempted
to make a purchase using his parents’ credit card
that he was authorized to use. The parents had been issued
a new credit card; thus, the card in Mr. Olsen’s
possession was no longer valid. Mr. Olsen informed the
clerk that he
would be back to pay with a check and he left the store.
The clerk, believing the card to subject to fraud called
mall security. When Mr. Olsen returned to the mall he
was arrested. The arrest itself was scrutinized by the
court
which indicated that the officer relied on the security
officers at the mall, failed to conduct his own investigation,
failed to establish that Mr. Olsen had committed any fraudulent
act, including failing to ask if Mr. Olsen had ultimately
paid for the merchandise, which he did, and therefore
the officer had made an arrest without probable cause.
Mr.
Olsen made the officer as well as the booking officers
at the jail that he suffered from obsessive compulsive
disorder which caused him an extreme fear of germs and for
which he was on medication. He told the booking officers that
he would need his medication to avoid panic attacks. The
booking officer demanded that Mr. Olsen remove his shoes
and socks at the jail. Due to his concern over germs,
Mr. Olsen suffered a panic attack and was not allowed to
take his medication. The officers at the jail also forced Mr.
Olsen to be fingerprinted without any accommodation of
his concerns for cleanliness. The Davis County jail provides
no training or policy to its employees for persons taken
into custody who may have OCD or be subject to panic attacks.
The
court concluded that the jail may have liability in this
case. The court asserted: “At the jail, Appellant
reported his OCD for the standard medical screening sheet;
it appeared as ‘CDC.’ Besides the facts that
Appellant also disclosed his panic attack syndrome, a pre-booking
officer "seems" to recall Appellant's having
asked for his medication because he was having a panic
attack.
The pre-booking officers, however, took away Appellant's
medication, even after he informed them that he required
it.
Given the frequency of the disorder, Davis County's
scant procedures on dealing with mental illness and the
pre-booking
officers' apparent ignorance to his requests for medication,
a violation of federal rights is quite possibly a 'plainly
obvious consequence’ of Davis County's failure to
train its pre-booking officers to address the symptoms.”
The key issue with all of these cases and concepts is
that officers should be aware that a person’s condition,
whether a disability under the ADA or some other disability,
which puts them in a greater position of vulnerability
during a police contact, should be considered by the officer. Officer
should, where possible, take steps to accommodate these
disabilities as long as doing so can be accomplished without
unreasonably jeopardizing the safety of the officer or
other
persons.
Citations:
- 42 U.S.C. §12101 thru 12213.
- Aceto v. Kachajian, 240 F.Supp. 2d 121 (Dist. Mass.
2003).
- This matter was on summary judgment, thus the
court is considering the facts as reported by Aceto
to be true, the officers in the case indicated that Aceto was
actually handcuffed in front of her body.
- See e.g., Bermudez v. Ahrens, 2002 U.S. Dist. LEXIS
14367 (N.Dist. ILL. 2002); and Eason v. Anoka-Hennepin
East Metro Narcotics and Violent Crimes Task Force, 2002 U.S.
Dist. LEXIS 10645 (2002).
- Paul v. City of Altus, 1998 U.S. App. LEXIS 3911 (10th
Cir. 1998) ( A jury found for the officers in a jury
trial and the case against the city was ultimately dismissed).
- “Arrests and the Impact of ADA” (Excerpt)
Matthew Stone Esq. Atlanta, GA. 2005.
- Foote v. Spiegel, 36 F. Supp. 2d 1320 (Central Dist.
Utah 1999).
- Zhai v. Cedar Grove, 2006 U.S. App. LEXIS 12899 (3rd
Cir. 2006).
- See, Gohier v. Enright, 186 F.3d 1216, 1220-21 (10th
Cir. 1999) conceptually recognizing that Title II of
the ADA would be implicated for claims of this type.
- Jackson v. Town of Sanford, 1994 U.S. Dist. LEXIS 15367
(D. Me. 1994).
- H.R. Rep. No. 101-485(III), 101st Cong., 2nd Sess.
50, reprinted in 1990 U.S.C.C.A.N. 473.
- Lewis v. City of Richmond, 960 F. Supp. 175 (S.Dist.
Indiana 1997).
- Olsen v. Layton Hills Mall, 312 F.3d 1304 (10th Cir.
2002)
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