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.
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)