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Selected 2012 Cases for Police Psychologists Compiled by the AELE Law Enforcement Legal Center |
Discovery of FFDEs
FFDE Test-taker Cooperation
Impoundment of Firearms During a FFDE or Treatment Period
Medical Examinations (ADA)
Schizophrenic Inmates
Suicide Related
For a menu of prior documents, see http://www.aele.org/psych
Discovery of FFDEs
The Supreme Court recognized a privilege that protects confidential communications between a licensed psychotherapist or psychologist and a patient in the course of diagnosis or treatment. Jaffee v. Redmond, 518 U.S. 1 (1996). Some courts have extended the privilege to confidential communications made between a police officer and an examining psychotherapist in the course of a fitness for duty evaluation. See, Scott v. Edinburg, 101 F.Supp.2d 1017 (N.D. Ill. 2000).
In a wrongful death action, the plaintiff sought evaluations of two Rockford, Illinois, police officers. A federal Magistrate Judge denied discovery of any FFDEs, but concluded that no patient relationship exists when an employee is applying for disability benefits. Barmore v. City of Rockford, #09-C-50236, 2012 U.S. Dist. Lexis 14413 (N.D. Ill. 2/7/2012).
The supervising District Judge overturned that holding. He wrote:
The dispositive question is whether a fitness evaluation such as those conducted with [the defendants] involve the diagnosis and treatment of the officers for the purpose of restoring their mental health. The court finds the answer to be no. The purpose of the fitness evaluations was to assist the police department in deciding whether these officers were in sufficient mental health to continue their official duties.
The District Judge concluded that the FFDEs were not for the purpose of treatment or a diagnosis related to treatment. Barmore v. City of Rockford, #09-C-50236, 2012 U.S. Dist. Lexis 66604 (N.D. Ill. 5/11/2012).
Following that ruling, it was learned the fitness-for-duty and disability evaluators had collected, reviewed, potentially incorporated, and may have even relied upon some information from [the officers] treaters in conjunction with their fitness evaluations.
Based on a belief that the use of treaters notes and medical records opened the door to discovery of all examined records, the plaintiffs counsel issued broad subpoenas seeking mental health records and depositions from five psychotherapists. The Magistrate Judge quashed those subpoenas, writing that:
... the mere fact that the evaluators may have reviewed certain documents from an officers past or present treater does not automatically constitute a waiver of the clearly established psychotherapist-patient privilege. To find otherwise would place law enforcement personnel in a difficult position: either defy your employers requirement to sit for a full fitness-for-duty evaluation, or agree to the terms of the evaluation and effectively surrender your psychotherapist-patient privilege in exchange for the possibility of keeping your job.
The Magistrate Judge found that the underlying records or conversations from the officers treaters, even if relied upon by the evaluators, were not discoverable. Barmore v. City of Rockford, #09-C-50236, 2012 U.S. Dist. Lexis 123718 (N.D. Ill. 8/29/2012).
To summarize these three rulings:
1. A FFDE is not privileged from discovery actions in civil rights cases, because an employee was not evaluated for the purpose of treatment.
2. A medical or psychological evaluation for workers comp. or disability pension purposes is not privileged from discovery actions in civil rights cases, because the employee was not evaluated for the purpose of treatment.
3. Even if the FFDE or benefits evaluator had access to and even relied on earlier reports that were compiled by treatment providers, those reports are not discoverable, and the treatment providers may not be deposed.
FFDE Test-taker Cooperation
A Chinese-American campus police officer had complained of racist and derogatory remarks made by three fellow officers. Later, the chief placed the officer on administrative leave and ordered him to submit for a fitness-for-duty evaluation. A university professor of clinical psychiatry and behavioral sciences conducted the FFDE over three days. He administered the MMPI-2, the PAI, and the M-Pulse. Each of those tests contains a built-in validity scale to determine whether the test taker is being truthful in his answers. The officers scores on the validity scales indicated that he was not answering the questions honestly and candidly.
The professor ultimately concluded that the officer was faking good, i.e., overstating positive traits beyond which is typically endorsed in an FFDE, and therefore not fully cooperating with the administration of the tests. As a result, the test results were invalid and the professor was unable to draw a conclusion as to whether he was fit for duty.
The officer was terminated for insubordination for failing to comply with the FFDE. In the lawsuit that followed, the Judge noted that while the chief's decision to terminate the officer, rather than order retesting, may have been "imprudent" it was not a pretext for unlawful discrimination. The Judge wrote:
...whether Dr. Friedmans conclusions were accurate has no bearing on the propriety of Chief Lewiss reliance on these conclusions. Chief Lewis is not a psychologist, and Northwestern employed Dr. Friedman to assist Chief Lewis in making an informed determination as to [officer] Lees fitness for duty. The issue before the Court is not whether Lee was actually insubordinate, but whether Chief Lewis reasonably believed that he was. Lee has not offered any evidence to suggest that Chief Lewiss reliance on Dr. Friedmans conclusions was misplaced.
The Court granted summary judgment to the defendant on all federal claims. Lee v. Northwestern University, 10-C-1157, 2012 U.S. Dist. Lexis 72521 (N.D. Ill. 5/24/2012).
Impoundment of Firearms During a FFDE or Treatment Period
Fellow officers reported that that the plaintiff, an African-American officer, made statements to the effect that superiors were recording his conversations and following him. Other officers reported that the plaintiff would ask them to take the batteries out of their cell phones when they were with him.
Concerned about potentially paranoid behavior, management ordered him to take a FFDE. They also required him to turn over all personally owned firearms. A civil rights suit was filed in federal court. As for the disarming sequence, the Judge wrote:
The Court has serious reservations as to whether the temporal deprivation of Plaintiff's firearms pending a mental health evaluation rises to the level of constitutional violation, particularly given the significant supervisory responsibilities police departments have for officers given the nature of their employment and the frequency and potential volatility of their contact with the public.
Even if the deprivation violated his constitutional rights, he failed to object or file a grievance or appeal, thus waiving such a claim. Glenn v. Lawrence Township Police Dept., Civ. #10-3121, 2012 U.S. Dist. Lexis 37241 (Unpub. D.N.J.).
Medical Examinations (ADA)
The 11th Circuit concluded that a countys Wellness Program fell within an ADA safe harbor. A three-judge panel affirmed a lower court decision that offered a financial incentive for completing a biometric screening or health assessment as part of a group health plan wellness program.
It did not violate the prohibition on medical examinations and disability-related inquiries under the Americans with Disabilities Act. The panel wrote that:
1. Even if the wellness programs requirements were not identified in written plan documents as part of the group health plan, those requirements were terms of the plan; and
2. The wellness program fell within the ADAs bona fide benefit plan safe harbor, which exempts certain plans from the ADAs prohibition on medical examinations and disability-related inquiries.
Seff v. Broward County, #11-12217, 2012 U.S. App. Lexis 17501 (11th Cir.).
Schizophrenic Inmates Psychogenic Polydipsia
An inmate was found dead in his cell. A frothy pink discharge was seen near his mouth. Autopsies would later reveal that he died of acute cardiac arrhythmia triggered by a lethal decline in the sodium level in his blood, which was in turn caused by his excessive consumption of water in the hours prior to his death.
Psychogenic polydipsia, a disorder characterized by excessive thirst and compulsive water drinking, is a poorly understood phenomenon that occurs in between six and twenty percent of patients with psychiatric disorders, and most commonly is seen in patients with schizophrenia.
The Seventh Circuit ruled that while his estate could pursue claims concerning the sanitary condition of his cell (despite the fact that he may have helped cause the conditions), based on his mental incompetence, there was no basis that any of the defendants were liable for his death, absent evidence that put them on notice that he might compulsively engage in water drinking to the extent that it would endanger his life. Estate of Rice v. Correctional Medical Services, #09-2804, 675 F.3d 650, 2012 U.S. App. Lexis 5728 (7th Cir.).
Suicide Related CPTSD
The widow of a detective lieutenant who committed suicide argued that he had done so because of undiagnosed cumulative post-traumatic stress disorder (CPTSD).
Her civil rights lawsuit against the department and its officials failed to establish that the defendants provided inadequate training on suicide prevention, suicide risk assessment, or the effects of CPTSD, in deliberate indifference to a known problem. Robischung-Walsh v. Nassau County Police Dept., #10-1596, 421 Fed. Appx. 38, 2011 U.S. App. Lexis 8856 (Unpub. 2nd Cir.).