Police liability redux: ADA, Excessive Force, failure to intervene

I have been blogging now for almost 3 years. We recently passed the 50,000 views mark. Thanks!! The holy grail of legal blogs is the American Bar Association Blawg 100. They are taking nominations now and the deadline is August 8. The nomination form can be found here. If you really like what you see here, please take a moment to nominate me; the nomination form is very easy to fill out. I so much appreciate your support and readership!

One of the things that I have written about previously is the liability of police forces for disability discrimination. It started in this post with a comment to my service dog v. therapy dog post, where I talked about a case where the police made the wrong decision with respect to ADA compliance involving a person trying to access a chain restaurant. I also talked about it with respect to the ADA as well as to other theories of liability here and here.

I
Facts

In this particular case, Lynn v. City of Indianapolis, 2014 U.S. Dist. Lexis 96286 (S.D. Ind. July 16, 2014), the plaintiff, a long-standing epileptic, often had seizures, which was commonly triggered by exposure to intense light, such as sunlight, reflection of light off of snow or ice, or flashing lights. On the night of February 1, 2011 there was a snowstorm in Indianapolis. After the plaintiff was done clearing snow and ice from the doorway of a smoke shop managed by his sister, he left the smoke shop for the 15 to 20 minute walk home. The next memory is being placed in an ambulance. Sometime during the walk home he had a seizure. Turns out that a taxicab driver had called 911 stating there was a man lying down in the parking lot looking like he was having convulsions or seizures or something like that. The 911 dispatcher stated over the police radio that a person was down and that the subject down was possibly having a seizure and that emergency medical services was in route. The dispatcher also sent a message to the Indianapolis Metropolitan Police Department officers over the computer-assisted dispatch system stating that there was a man down possibly having a seizure. Officer Challis was approximately a mile away from the location when the call came in and responded to dispatcher that he was en route. However, the officer did not remember looking at the computer screen to see the message dispatched by the computer-assisted dispatch system. Another officer, Officer Huddlestone, who was even closer than that one, also proceeded to the scene after he heard the dispatcher statement and saw the message on his computer. Here are some of the specific things that happened after that:

1. Plaintiff walked up to Officer Huddlestone but not saying anything to him. Officer Huddlestone told the plaintiff that he needed to sit down because he was afraid the plaintiff was going to fall and that he didn’t want him to walk into the street. The plaintiff did not verbally respond to sit down as requested;

2. Officer Huddlestone believed that he saw blood and white substances over the plaintiff’s clothes and nose and that in combination with the plaintiff’s extreme strength concluded that the plaintiff was on narcotics;

3. Officer Challis then arrived on the scene, relieved a bus driver that was rendering assistance to Officer Huddlestone in subduing the plaintiff, and then as part of the effort to subdue the plaintiff tased the plaintiff, but that did not have the desired effect on him. When that didn’t work, the plaintiff was tased again.

4. That led to a struggle over the Taser between Officer Challis and the plaintiff leading Officer Huddlestone to hit the plaintiff on the side of his head three times while yelling at the plaintiff to let go of the Taser. When the plaintiff was not cooperative, Officer Challis then tased him again, which again did not appear to have a dramatic effect. In all, while the officer said the plaintiff was only tased on three occasion for five seconds the time, the Taser report from the Officer Challis’ Taser said that it was used five times for a total of 27 seconds;

5. Officer Challis did not notice any white substance on the plaintiff’s face nor did he notice any blood on the plaintiff. The only white powdery substance he noticed was snow located on his clothes. This was backed up by a lieutenant from the Indianapolis police force who arrived at the scene shortly after the altercation concluded and agreed with what Officer Challis saw.

6. The plaintiff was charged with resisting law enforcement and public intoxication, but all three of the charges were eventually dismissed.

7. Plaintiff brought suit alleging violation of title II of the ADA, fourth amendment (excessive force), § 1983 (failure to intervene), and state law claims.

II
Issues:

1. In this situation, is it possible for the police to be liable for violating the ADA?

2. Regardless of whether it is possible to be liable for violating the ADA, is their liability for excessive force in violation of the fourth amendment?

3. Regardless of whether it is possible to be liable for violating the ADA, is their liability for failure to intervene in violation of § 1983?

III
Court’s reasoning

1. With respect to excessive force, the key is assessing whether the seizure at a given moment in time is reasonable. Therefore, a seizure in the chain of events may be reasonable at one point in time but the chain of events may evolve so that the seizure was no longer reasonable at another point in time. In other words, a chain of events may be such that the amount of force used would be reasonable at one point but as the situation evolved became no longer reasonable.

2. The individual police officers claim qualified immunity, but the court wasn’t having it because they believed a reasonable jury could conclude that the plaintiff was an innocent citizen undergoing a medical emergency who was subject to force by law enforcement without any provocation whatsoever.

3. With respect to the failure to intervene claim, the court denied a grant of summary judgment because the court simply felt that it could not adequately assess, based upon the facts and arguments it had before it, whether either officer had a realistic opportunity to intervene to prevent the harm from occurring.

4. With respect to the ADA, the court found a Fifth Circuit case persuasive. In particular, the Southern District of Indiana agreed with the Fifth Circuit that title II does not apply to an officer’s on the street responses to reported disturbances or other similar incidents prior to the officer securing the scene and ensuring there is no threat to human life. In essence, the reasoning goes that law enforcement personnel conducting field investigations already have the very difficult task of having to instantaneously identify assess and react to potential life-threatening situations. Requiring officers in that situation to factor in whether their actions are going to comply with the ADA when faced with a variety of exigent situations and prior to securing their own safety, the safety of other officers, or nearby civilians, poses an unnecessary risk to innocents.

IV
Takeaways:

1. Police doing their training need to be aware of what is said on the computer-assisted dispatch systems. If they hear one thing or think they hear one thing, they should back that up with the information on their computer assisted dispatch system before throwing themselves into the situation. If they are working with a partner, they should have a system so that one of the partners at least knows what is on the computer-assisted dispatch system.

2. Police also need to be aware of the standards utilized by courts when trying to determine whether a failure to intervene claim or a claim for excessive force claim can proceed.

3. When a policeman or policewoman is doing his or her job, he or she needs to be aware of the evidence as it comes before him or her and not presuppose what the evidence is. Failure to do so runs the real risk of individual liability.

4. Just because an ADA claim may not fly (as you can see from the blog entries linked to above, courts are all over the place here), that doesn’t mean the police officers will be individually immune from liability nor does it mean necessarily that the police force is off the hook. Assuming ADA liability is not possible, which again may be a big assumption depending upon the facts, other theories of liability may be possible. Those theories include, malicious prosecution, excessive force, and failure to intervene to name a few.

5. Police forces need to have thorough training programs, which includes information on how to deal with persons with disabilities in the field under a variety of situations.

Is pregnancy a disability? The true false version

Three of my colleagues, Robin Shea, Eric Meyer, and Jon Hyman have written excellent blog entries on the latest EEOC guidance dealing with pregnancy discrimination. There is also a section of that guidance dealing with how pregnancy may also constitute disability discrimination under certain circumstances. I thought it would be informative if I did a bit of a different take from my colleagues on this by focusing on the disability discrimination aspects of the enforcement guidance in a true false format. So here goes:

1. Pregnancy is a disability

Answer: False

Pregnancy by itself is not a disability. However, if a pregnancy involves a physical or mental impairment that substantially limits one or more major life activities, then it is. You don’t think of pregnancy as being a physical or mental impairment. However, depending upon the pregnancy, it certainly can lead to a physical or mental impairment. The next question is whether a substantial limitation on one or more of life’s major activities is involved. This raises two other questions. First, what does it mean to be substantially limited? The EEOC in their final regulations defined substantially limits as being a matter of whether the person is substantially limited in a major life activity as compared to most people in the general population. Also, keep in mind that under the amendments to the ADA an impairment that is episodic or in remission is still considered a disability if it substantially limits a major life activity when active. Second, what is a major life activity? Under the amendments to the ADA, 42 U.S.C. § 12102(2), major life activities can include many different things (this list is not exhaustive): 1) caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working; and 2) including the operation of major bodily functions, such as but not limited to: functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions (the EEOC in its final regulations at 29 C.F.R. § 1630.2(I)(i),(ii) added the major life activities of sitting, reaching, and interacting with others). The EEOC in their guidance gives some examples of pregnancy related impairments that may substantially limit major life activities, such as but most certainly not limited to: pelvic inflammation, which may substantially limit the ability to walk; pregnancy related carpal tunnel syndrome, which may substantially limit the ability to lift or to perform manual tasks; disorders of the uterus or cervix necessitating certain physical restrictions to enable a full term pregnancy or resulting limitation following childbirth; pregnancy related sciatica, which may substantially limit musculoskeletal functions; gestational diabetes, which may substantially limit endocrine functions; and preeclampsia, which may substantially limit cardiovascular and circulatory functions.

In short, while pregnancy itself is not a disability, it is quite conceivable that pregnancy, the nature of it being what it is, will lead to a physical or mental impairment that substantially limits one or more major life activities.

2. There is no requirement under the ADA as amended that an impairment must last a particular length of time to be considered substantially limiting.

Answer: True

It is absolutely true that a temporary disability can be a disability under the ADA as I discussed in this blog entry. But you say, a disability has to last at least six months before it is considered a disability. That is not correct. The six-month provision only applies to allegations of being regarded as having a disability and in that situation the disability has to be both transitory and minor for the six-month rule to apply. If the disability does not satisfy both criteria, then the six-month rule, assuming allegations of regarded as, would not apply. If a person is alleging an actual disability, then the six-month rule doesn’t apply at all.

So what is an employer to do? Good question. First, as a preventive measure, the employer should strongly consider treating all disabilities, temporary or otherwise, as they would a permanent disability if that disability satisfies the actual disability prong of the ADA. Second, it has to be remembered that a person with a disability also needs to be qualified, i.e. capable of performing the essential functions of the job with or without reasonable accommodations, so that needs to be factored in as well.
3. How a person became impaired is irrelevant to the determination of whether an impairment is a disability.

Answer: True

People get disabilities for all kinds of reasons. Some are born with them and others get them later. The only question under the ADA is not how they got the disability, but rather whether they have a physical or mental impairment that substantially limits one or more major life activities. The EEOC and Department of Justice regulations specifically state this as well.

4. A reasonable accommodation is having someone perform an aspect of the employee’s essential job functions.

Answer: False

In this respect, I have to take issue with example 22 of the EEOC enforcement guidance. In particular, the example they give is this one:

“A warehouse manager who developed pregnancy related carpal tunnel syndrome was advised by her physician that she should avoid working at a computer keyboard. She is responsible for maintaining the inventory records at the site and completing a weekly summary report. The regional manager approved a plan whereby at the end of the week, the employee’s assistants input the data required for the summary report into the computer based on the employee’s dictated notes, with the employee ensuring that the entries are accurate.”

The critical question here is whether inputting the data required for the summary report into the computer is an essential function of the job. If it is not, then having someone else complete the task is not a problem. However, if it is, the employer is under no obligation to have someone else do that job for the employee. That said, under the ADA that person has to be a able to do the job with or without reasonable accommodations. If this is an essential function of the job, then the employer has to consider if there is a reasonable accommodation available. One that comes to mind, is voice dictation, particularly since the reference to carpal tunnel implies a problem with typing. What other reasonable accommodations might work would involve getting more information pertaining to why did the doctors say she should avoid working at a computer keyboard. Was it because she couldn’t type, which is what the examples seem to imply, or was it because of the sitting, or something else?

5. An employer is required to waive a workplace policy if a person with a disability cannot satisfy it.

Answer: False

It should be pointed out that there is a contradiction between the questions and answers about the EEOC’s enforcement guidance on pregnancy discrimination related issues and the actual enforcement guidance. That is, the question-and-answer in example 25 suggests that an employer has to allow a water bottle at a workstation even where water bottles at workstations are prohibited by company policy for good reasons. On the other hand, in one of the examples in 22 of the enforcement guidance, it says that the employer arranged for a person who needed regular intake of water because of a pregnancy related kidney condition to have a table placed just outside the file room where the employee could easily access water. The former, assuming following the policy is an essential function of the job, would not be a reasonable accommodation while the latter would be.

6. Granting leave in addition to what an employer would normally provide under a sick leave policy for reasons related to disability is a reasonable accommodation.

Answer: Maybe. Wait a minute, I can’t answer a true or false question with maybe can I? Okay, then I guess I have to say probably false. There I go again. Okay, I am going to say false because it would depend on the circumstances. Whew…….

We know that the family medical leave act grants 12 weeks of leave to care for a serious medical health condition. We also know that leave beyond that amount of time may also be a reasonable accommodation providing a person can give a definite date of when they will return to work. We also know that one court has said that anything more than six months of leave total is unreasonable as a matter of law. The thing about family medical leave is that there are requirements before a person is eligible to take that leave. For one thing, they have to work a certain number of hours in a calendar year. For another, the employer has to have at least 50 employees within a certain radius. So, the EEOC is saying that if a person does not have FMLA coverage or does not have sufficient sick leave coverage, it is a reasonable accommodation to grant leave, which may be unpaid, to deal with the pregnancy related disability. I don’t think the answer is so simple (see the link in this paragraph above). This will definitely depend upon the facts and circumstances of the situation.

7. It is a reasonable accommodation to temporarily assign an employee with a disability to light duty.

Answer: True

However, that assumes that the employer has a light-duty system. They are under no obligation to create such a system if they don’t have one. Also, it assumes that the person cannot do the essential functions of his or her job with or without reasonable accommodations. Finally, it assumes that the person can do the essential functions of the light-duty position with or without reasonable accommodations. One last thing, the employer may want to consider reassigning that person to a job where she can do the essential functions of the position with or without reasonable accommodation rather than a light-duty position (see the discussion of this blog entry).

BUT Don’T FORGET ABOUT THE PREGNANCY DISCRIMINATION ACT

The EEOC says in their enforcement guidance that if a pregnant employee needs light-duty (temporary work less physically demanding than her normal duties), the employer is required under the Pregnancy Discrimination Act to provide it because an employer cannot treat pregnant workers differently from employees were similar in their ability or inability to work based on the cause of their limitations. This I find terribly problematic. What this arguably says is that if you have a pregnant employee who does not have a disability, light-duty may still be demanded under the Pregnancy Discrimination Act because light-duty might be required in that situation if the person has a disability. If this is the reasoning, this is very bizarre. It is possible that this is not what is intended at all because the example that the EEOC mentions is that an employer may not deny light-duty to a pregnant employee based on a policy limiting light-duty to employees with on-the-job injuries. If the example is what the EEOC is trying to address by the confusing language, then I see no problem with it. Since the ADA does not care a hoot about how a person got a disability, I never understood policies that treat people differently depending upon how they got the disability and the same should go for pregnancy. Unfortunately, the literal reading of the language seem to suggest something else. At a minimum, this language creates a very confusing distinction between pregnancies and disabilities (I recognize that considering how broadly disability is defined under the amendment to the ADA the distinction may be more theoretical than practical. That said, the language is terribly confusing).

9. The EEOC enforcement guidance on pregnancy discrimination related issues is likely to be adopted by the courts.

Answer: Probably False

I believe the answer is false for several reasons, though I am hedging with probably since you never know what courts are going to do. First, when it comes to enforcement guidances, they have not gone through the proper rulemaking process. As a result, the courts are free to use them or not and many times they choose not to (for example, the Supreme Court in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), specifically rejected EEOC enforcement guidances in reaching their decision. True, the amendments to the ADA specifically overruled this decision, but the point remains that when it comes to EEOC enforcement guidances, a court is free to accept or reject them as they wish because they have not gone through the proper rulemaking process. Second, some of the things in the guidances are problematic, as discussed here and by my colleagues mentioned above, and that may give courts pause. Third, this enforcement guidance was not adopted unanimously. In fact, it was only on a narrow 3-2 decision that it was adopted. Finally, the Supreme Court of the United States recently granted certiorari on a case where disability discrimination in the context of pregnancy could very well could come up.

In summary, I never liked guidances, with one exception. Guidances to my mind are often a crutch for attorneys and prevent deeper level reasoning. They also can make things unnecessarily confusing and promote even more litigation. With respect to what was discussed in this blog entry, I would expect both to become true. At any rate, dealing with pregnancy just got a lot more complicated.

Is a person with a disability entitled to an attorney in a civil matter as a reasonable accommodation under title II of the ADA or under state law?

One of my more popular blog entries is the blog entry that discusses suing a state court system for disability discrimination. I also have a second blog entry following up on that blog entry.

This blog entry explores a related topic. Let’s say a person with a disability finds themselves in the court system in a civil matter. The person with a disability because of their disability simply cannot access the court system properly without an attorney. Does the ADA or, for that matter, a state antidiscrimination law, mandate that an attorney be appointed for that person with a disability much in the same way as an attorney is appointed for someone who cannot afford an attorney in a criminal matter? A case that doesn’t specifically address this question, but raises this issue is, Weems v. Bd. of Indus. Ins. Appeals, 2014 Wash. App. LEXIS 1659 (Wash. Ct. App. July 8, 2014).

As is my usual practice, I have the blog entry divided into sections. These sections for this blog entry are: facts, court’s holding, what the court wanted to know more about, and takeaways. The reader is free to focus on any or all of the categories of this blog entry.

I
Facts

In 1973, the plaintiff suffered an on-the-job injury where he was struck in the head by a cable, broke cartilage in his nose, and bruised his nose and face. Over the years, the plaintiff suffered other injuries as well, including falling 75 feet off a water tower and having his face strike a wall at home in 1997. In 2007, the plaintiff applied to reopen his claim due to the worsening of injuries caused by the 1973 accident. From here, the facts get a little complicated. Suffice to say, what happened is at the trial level, the workers compensation system in the State of Washington made clear that he should have an attorney, but that it would have to be at his own expense. His wife tried to assist through the process, but was clearly uncomfortable and made it clear that the plaintiff did not have the ability to understand and participate in the proceedings the way he needed to without legal counsel. She expressed quite a bit of unhappiness that counsel would not be appointed for them. The plaintiff himself did not seem to want legal counsel, but on this point, the facts were murky. At any rate, what happened is once the lower-level decision was appealed, counsel was appointed for the plaintiff, but that obligation ended once the case got sent back down to the lower levels. This happened twice in the same way. After the second time, an appeal was taken into the state court system where the plaintiff claimed that the Superior Court erred because the Board discriminated against the plaintiff in violation of the ADA and the Washington Law against Discrimination.

II
Court’s Holding

The court said that they could not review the claim because the record lacked findings of facts on material issues.

III
What the Court Wanted to Know More About

The court wanted to know the following things:

1. Was the plaintiff a person with a disability as defined by the ADA as amended and under the Washington Law Against Discrimination?

2. Did the plaintiff requests that the Board appoint him counsel as an accommodation for his disability? If not, was the plaintiff’s need for accommodation obvious to the Board?

3. The Superior Court needed to figure out whether the Board’s alternative to the appointment of counsel at public expense (such as plaintiff’s ability to hire an attorney on a contingency fee basis, the plaintiff’s wife assistance as a lay representative, and the industrial appeals Judge’s questioning of witnesses), either: A. failed to provide the plaintiff with the level of service comparable to that enjoyed by nondisabled claimants; or B. deliberately failed to accommodate plaintiff’s disability so as to discriminate against him.

4. Would appointment of counsel at public expense unduly burden the Board?

IV
Takeaways:

1. If you are running a state court system or even a federal court system, make sure you have an ADA compliance manual that informs everyone what their obligations are. The Illinois Attorney General has developed an excellent one in this area, though it is not perfect. Regardless of the compliance manual that you use, it is worthwhile to have that compliance manual reviewed by an attorney with expertise in the ADA so that any gaps in the compliance manual can be filled in.

2. If a person has a disability and is involved in the state court system, judges and court personnel need to be on the lookout to decide whether that person’s disability is something in need of accommodation. If so, the court system should initiate the interactive process.

3. Keep in mind, that a court system failing to engage a person with a disability in order to make sure that they can access the court system, runs the real risk of not only violating title II of the ADA but also violating the equal protection clause of the 14th amendment because when it comes to accessing the courts, persons with disabilities are at least in the intermediate scrutiny or higher class for equal protection jurisprudence per Tennessee v. Lane, 541 U.S. 509, 533-34 (2004). In English, this means a state court system violating title II of the ADA also probably violates a person with a disability’s equal protection rights as well.