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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.
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.
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?
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.
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.