In a prior blog entry, I discussed a situation where the police intentionally aggravated a person with a disability pre-existing condition eventually leading to that person’s death. The court in that case held that the police force could be liable for violating title II of the ADA. This particular blog entry will once again look at liability for violating title II when it comes to a police response. It will also look at liability that the police force may have under other theories, such as § 1983 (a claim for violating a person’s constitutional rights).
In this case, Glover v. City of Wilmington, 2013 WL 4035253 (D. Del. August 7, 2013), an unpublished decision, the plaintiff was a passenger in her own vehicle when her car was struck by a drunk driver. When an officer arrived on the scene, the plaintiff informed the officer that she was not driving the vehicle when the collision occurred and that she was having a panic attack. Another officer subsequently arrived on the scene and she told that officer the same thing. The officer believing that the symptoms of plaintiff’s panic attack showed she was intoxicated administered a portable breath test, which showed a blood-alcohol concentration of 0.000. Plaintiff did tell one of the officers she had taken Percocet the day before and that it might still be in her system. One of the officers asked the plaintiff whether she wanted an ambulance and the plaintiff refused. That officer then told her she was being arrested for refusing medical care. She was then handcuffed and pushed to the ground violently causing her to sustain deep cuts on her knees. The plaintiff was then transported to the police station and imprisoned for several hours while she continued to have panic attacks. She was later charged with resisting arrest, but the state in the end filed a nolle prosequi thereby terminating the prosecution. The plaintiff sued both the City of Wilmington and one of the officers for violating title II of the ADA, § 504 of the Rehabilitation Act, fourth amendment malicious prosecution, fourth amendment unlawful detention, fourth amendment use of excessive force, 14th amendment equal protection, a Monell claim, failure to provide medical care, and state malicious prosecution. Both defendants filed a motion for summary judgment.
The court wound up granting summary judgment as to some of the claims and denying it as to to others. The court got there in the following way. The first thing the court had to do was figure out whether the police officer had qualified immunity from suit. Law enforcement officers get qualified immunity from suit when their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. In making that determination the relevant question is whether a reasonable officer could have believed that his or her conduct was lawful in light of the clearly established law and the information in the officer’s possession. The court concluded that the officer did not have probable cause to arrest the plaintiff for DUI because based upon the information that the plaintiff had told the officer that arrived prior to him as well as the information the plaintiff had told him, no probable cause existed because there was no probable cause that she had driven the vehicle. However, that isn’t the end of the matter, because the court goes on to say that the officer did have enough information to have a reasonable suspicion that the plaintiff was driving under the influence. After all, the plaintiff owned the car and she had the car key shortly after the accident. Reasonable suspicion gives the officer the right to take the plaintiff to the police station for further investigation. However, Delaware law says that such a period of detention cannot exceed two hours and she was in custody for more than four hours, which violated Delaware state law. Accordingly, the court held that the officer was not entitled to qualified immunity on plaintiff’s § 1983 claim.
The court then moved on to federal and state malicious prosecution claims. With respect to malicious prosecution under both federal and Delaware state law the elements are the same. Those elements include: 1) the initiation of a criminal proceeding; 2) the criminal proceeding ending in the plaintiff’s favor; 3) the proceeding being initiated without probable cause; 4) the defendant acting maliciously or for a purpose other than bringing the plaintiff to justice; and 5) the plaintiff suffering deprivation of liberty consistent with the concept of seizure as a consequence of the legal proceedings. The only issue was whether the criminal proceeding ended favorably for the plaintiff. On this, federal and state law differ. Under federal law, nolle prosequi does not result in a favorable decision for the plaintiff so to speak unless the reason is indicated for the nolle prosequi. On the other hand, under Delaware law, nolle prosequi does mean a favorable decision for the plaintiff. Accordingly, the court granted summary judgment with respect to the federal malicious prosecution claim but denied it with respect to the malicious prosecution claim based on state law.
With respect to the unlawful detention claim under § 1983 (under § 1983, an arrestee has a claim for false imprisonment based on detention from an arrest where the police lacked probable cause to make that arrest), the court denied defendants motion for summary judgment because, as mentioned above, a jury could reasonably conclude that the officer did not have probable cause to arrest the plaintiff for DUI, and while the officer did have reasonable suspicion, as mentioned above, he did not have the authority to detain her for more than two hours.
Turning to excessive force, the plaintiff’s arguments carried the day but the plaintiff still lost. The court noted that both the plaintiff and the person who was the driver of the vehicle said that the officer pushed the plaintiff after she was handcuffed and that the officer was rough with putting the cuffs on. Assessing the facts, the court believed that a reasonable jury could include that the plaintiff was not a serious threat to the officer or to others and that it could be reasonably concluded that the officer pushed the plaintiff without provocation while she was handcuffed and suffering from a panic attack. In short, it would be reasonable for a jury to conclude that the officers reaction to the plaintiff was not warranted. Even though the plaintiff’s argument carried the day, the court wound up granting summary judgment to the defendant on this claim because the plaintiff had waived her claim since it was not addressed in her responsive brief to the officer’s motion for summary judgment.
Turning to the ADA and § 504 of the Rehabilitation Act, the court denied the officer’s and the city’s motion for summary judgment on both claims. The court reasoned as follows. First, the court said that the ADA simply doesn’t apply to a police officer’s on the street response to a reported disturbance prior to the police having the situation under control. That said, once the situation is under control the police do have a duty to accommodate that disability. Under the facts of this case, the situation was secured before any of the problematic action took place. With respect to the vicarious liability of the city (holding the city liable for the actions of the officer), the plaintiff was able to show that the officer knew or should have known that she was disabled; that she was arrested because he confused her disability with criminal activity; and that she had a disability. Determining whether all of these elements are satisfied (the court said enough evidence existed to show that the officer should have known the plaintiff was a person with a disability and also that the officer mistakenly arrested her), necessarily assumes that the officers are given the resources to figure out how to deal with persons with disabilities in a variety of situations. The court said that they were simply unconvinced the evidence offered by the City, containing conclusory descriptions of training, was sufficient to show training meeting the minimal standard that could be reasonably said to allow officers to have an understanding of what they need to know in order to make informed judgments while performing their jobs.
Finally, the court granted the defendants motion for summary judgment with respect to a failure to provide medical care (no evidence was submitted that she requested medical treatment after she was taken into custody or that any such request was denied), and it also denied the Monell claim because while there certainly was a lack of training that is not the same thing as saying that the city from on high had a policy of carrying out unconstitutional discrimination.
Takeaways: So what does this case tell us? First, it says that there can be a myriad of consequences where a police force takes action against a person with a disability and that either leads to a wrongful arrest and/or failure to accommodate. In addition to violating title II of the ADA or §504 of the Rehabilitation Act, there may be constitutional and state law claims, such as what was seen in this case, filed as well. Second, police forces need to be trained in how to deal with persons with disabilities. It would be a good idea if such training included actual role-playing rather than just lectures. Failure to have such training may result in personal liability to the officer as well as in vicarious liability to the officer’s employer. Third, the police also need to be trained on just what are their legal obligations under the Americans With Disabilities Act (title II), and § 504 to Rehabilitation Act.
Finally, police forces still have some slack. For example, until the scene is secured, the police force has the ability to do what it needs to do. Also, the police may have more freedom from liability if it is not their own actions involved but rather is a situation as what was the case in Gipson v. Popeye’s Chicken and Biscuits, _F. Supp. 2d_, 2013 WL 1737208 (N.D. Ga. April 22, 2013), which dealt with the police erroneously interpreting the law as it applies to a person with a disability and a private entity. While this distinction may be something that a court would accept, on a preventive level, it would certainly behoove the police force to train its personnel on the obligations of title III entities with respect to persons with disabilities. After all, why take the chance that this distinction will be followed by a court considering the expense of litigation?