Legal Update for Police Psychologists 2006
International Association
of Chiefs of Police, Inc.
Police Psychological Services Section
Annual Conference - Boston, MA
October, 2006
Compiled by
Wayne W. Schmidt
AELE Law Enforcement Legal Center
Topics
Annual Medical Exams
Contracts, Consultants and Outsourcing
Handicap Discrimination Psychiatric
Mental Examinations
Psychological Exams Fitness for Duty
Stress Disability Reinstatement Rights
Stress Disability Line of Duty Retirement
Suicide Related
Digest of Cases (Links)
Annual Medical Exams
New Jersey appellate court holds that a compulsory annual medical examination of police officers, which requires disclosure of medical history as well as blood and urine testing, does not violate the state or federal constitutions, and is less intrusive on privacy than random drug and alcohol testing.
An annual medical exam conducted by the New Jersey Transit Corporation to determine if transit police are physically capable of performing their duties does not violate the Fourth Amendment or its New Jersey counterpart.
The test had multiple components including a medical history; blood count with differential; liver function; cardiac profile; electrolytes; urine; pulmonary function; electrocardiogram; drug and alcohol testing; Mantoux [tuberculin] test; vision and hearing screens and lead testing.
The presiding judge noted that while an adverse determination may result in termination, no officer has the right to hide his or her lack of fitness by asserting a privacy interest as a barrier to a physical examination.
The judge added, more importantly, no officer who is unfit for the position has the right to remain in the position.
The testing fell within the exception for administrative searches of pervasively regulated industries pursuant to a substantial government interest. Law enforcement is highly regulated, and management has a strong interest in ensuring that police officers can perform their jobs.
However, the court found that the agencys confidentiality provision was inadequate and ordered management to develop security provisions with an express policy prohibiting unauthorized disclosure of confidential medical information.
The court also noted that it has previously held that medical examinations are nonnegotiable management rights in the public employment bargaining context, citing Bridgewater v. PBA L-174, 196 N.J. Super. 258 (App. Div. 1984). Moreover, a medical exam does not require individualized reasonable suspicion, citing ATU v. Cambria City Transit Auth., 691 F.Supp. 898 (W.D. Pa. 1988). The judge added:
Police officers are members of a highly regulated industry and are therefore subject to the practice of suspicionless drug testing to monitor their physical fitness and capabilities.
New Jersey Transit PBA L-304 v. New Jersey Transit, #A-5628-03T2, 384 N.J. Super. 512; 895 A.2d 472, 2006 N.J. Super. Lexis 108 (App. Div. 2006).
Click here to view the opinion on the Internet.
Contracts, Consultants and Outsourcing
Federal jury in Tucson awards a psychologist and a therapist almost $2.9 million after finding that the former police Chief and others conspired not to renew their contract to provide counseling services.
A five-year contract totaling $550,000 was for counseling for Tucson police officers and training in hostage negotiation and psychological profiling. The city had been a defendant but was dropped before the case went to trial.
One of the defendants supposedly admitted that he was under orders from the ex-chief to deny the plaintiffs bid to renew a psychological services contract. The reported reason was that the principal plaintiff had criticized the chiefs management style in a deposition.
The contact was awarded to a competing firm that had less experience.
Compensatory and punitive damages totaled $2,873,450 for loss of business, emotional distress, and damage to reputations. Gilmartin v. City of Tucson, #4:00-cv-00352 (D. Ariz. 2006).
Note: Several post verdict documents have been sealed. Click here to view the judgment amounts.
Handicap Discrimination - Psychiatric
Can an employer legally fire a worker for lying in his job application and then violate the ADA by not giving him his job back? A divided federal appeals court affirms a jury award for a rejected reinstatement applicant that had been acquitted of attempted murder because of insanity.
The plaintiff was fired when the employer learned that he had lied about his criminal history a conviction for battery on a police officer 13 years earlier.
The plaintiff asked to be reinstated after getting the conviction expunged. But the employer did not rehire him because he was in a mental institution between 1982 and 1985. The institutionalization stemmed from a 1982 acquittal by reason of insanity for attempting to murder a quadriplegic.
He sued under the ADA, claiming discrimination because of his prior mental illness.
During the trial, the determinative issue before the jury was whether the employer refused to reinstate the plaintiff because it regarded him as having a mental illness that might result in future acts of violence or because of the violent acts he had previously committed. In affirming a verdict for the plaintiff, the majority wrote:
[The jury] heard evidence that ... employees considered [the plaintiff] unemployable because he had spent time in a mental ward and might go off on a customer. ... The jury found that [the employer] regarded [the plaintiff] mental disorder as substantially limiting his ability to work in a broad range of jobs.
One judge dissented, noting that the majority now requires an employer to reinstate a person it believes may pose a danger to others. Josephs v. Pacific Bell, #03-56412, 432 F.3d 1006, 2005 U.S. App. Lexis 28737, 17 AD Cases (BNA) 678 (9th Cir. 2005).
Click here to view the opinion on the Internet.
Mental Examinations
Plaintiff, in a wrongful fatal shooting lawsuit, demanded that a law enforcement officer submit to a mental examination; the federal court agreed to the demand. On review, the 5th Circuit holds that interim discovery orders are not appealable.
A Houston area deputy constable stopped a bicyclist for riding on the wrong side of the road. A struggle followed, and the deputy fatally shot the man when he thought the he was reaching for a weapon in his back pocket.
During the discovery phase of the civil rights lawsuit for excessive force, a federal judge granted the plaintiffs request that the deputy submit a psychological examination. See Goodman v. Harris County, #4:03-cv-4198, Document 58 (S.D. Tex. 10/08/2004).
The
deputy appealed the Order to the Fifth Circuit. A three-judge panel ruled that
an Order for a Mental Examination was not appealable, and sent the action back
to the trial court. Goodman v. Harris
County, #04-20859, 443 F.3d 464,
2006
Click link to view the 2004 discovery order on the AELE website, and the 2006
Fifth Circuits opinion on the Internet.
Psychological Exams and Standards --
Fitness for Continued Duty or a Return to Active Duty
Appellate court sustains a verdict for negligent retention/assignment. Officer with a propensity for violence was retained after he passed a psychological fitness exam, because management failed to submit prior exam results or his disciplinary record to the evaluating psychologist.
After a spousal abuse complaint, a Newark, NJ police officer was referred for a Fitness For Duty Exam (FFDE). He passed the FFDE and continued in active service.
A year later, in 1997, he got into a dispute with an inmate. The officer responded by punching the inmate, applying a choke hold, and throwing him to the ground. The inmate suffered bruises and swelling around his right eye and face, blurred vision and soreness.
In the lawsuit that followed, a jury awarded $75,000 in damages. The judge added counsel fees of $117,804, but reduced the award to $30,000. Both parties appealed.
During the course of the litigation, it was learned that the FFDE had been rendered without benefit of viewing previous psychological evaluations or his past history of disciplinary charges. When the officer first applied in 1985 he had been rejected on the basis of a psychological evaluation that found possible negative feelings towards blacks as well as a tendency towards impulsivity and a history of aggressiveness. It also noted that he had many hidden angers and resentments.
That evaluation concluded that if appointed as a police officer he could constitute a danger in the community. It is definitely recommended that he not be appointed. However, he was eventually hired when he passed a second psychological exam.
Then, in 1994, the officer was indicted for first-degree aggravated sexual assault, first-degree kidnapping, third-degree aggravated criminal sexual contact and second-degree official misconduct. He was subsequently acquitted of all criminal charges and was reinstated in 1995.
In the FFDE following the spousal abuse complaint, the psychologist was not provided with the officers disciplinary file or the psychological evaluations. This was consistent with the Departments usual practice of forwarding ... only the reasons for the referrals.
The appellate court noted, that without this background, the FFDE psychologist had only a partial picture. The psychologist later stated that he would not have recommended that the officer return to full duty as a police officer and would have advised that he be restricted to a desk job where he would not interact with the public, receive counseling for at least six months, and then a re-evaluation.
In affirming the award, they wrote:
A reasonable jury could review the disciplinary history of [the defendant] and conclude that this assignment decision of the Police Departments top decision-maker was deliberately indifferent to the safety of the public. ...
Moreover, a reasonable jury could conclude that this incomplete record undermined the evaluation process to such an extent that it placed the public at risk of harm from officers who were returned to duty and rearmed on the basis of incomplete and perhaps misleading recommendations. Given the importance of reliable evaluations to protecting the public from violent officers, the deficient policy of the City regarding the evaluations could be considered by a reasonable jury as constituting both deliberate indifference to the public welfare and as a moving force behind the assault of [the plaintiff] by [the defendant].
In upholding liability, the appellate panel concluded that assigning an officer known to have violent propensities to a position that would place detainees in the jail at risk for harm ... may be said to constitute deliberate indifference to the civil rights of prison detainees. They also affirmed the reduction of damages to $30,000.
Colon v. City of Newark, #A-3260-03T23260-03T2, 2006 WL 1194230 (N.J.A.D. 2006).
Click here to view the opinion on the Internet.
Editors Note: The IACP Police Psychological Services Section has adopted Fitness for Duty Evaluation Guidelines (2004). They state, in pertinent part:
10. In the course of conducting the FFDE, it is usually necessary for the examiner to receive background and collateral information regarding the employees past and recent performance, conduct, and functioning. The information might include, but is not limited to, performance evaluations, previous remediation efforts, commendations, testimonials, internal affairs investigations, formal citizen/public complaints, use-of-force incidents, reports related to officer-involved shootings, civil claims, disciplinary actions, incident reports of any triggering events, medical records, or other supporting or relevant documentation related to the employees psychological fitness for duty. In some cases, examiners may ask the examinee to provide medical/psychological treatment records and other data for the examiner to consider. (Emphasis added)
Additionally, the examining psychologist should give a qualified opinion, such as:
If the [agency name] has withheld prior disciplinary records or other indicia of misconduct, or has failed to furnish the results of earlier fitness exams, you should be aware that the missing information might have resulted in different recommendations or conclusions.
Stress Disability - Reinstatement Rights
Although a pension board found that a police officer was not longer disabled, the NYPD was justified in rejecting his return to duty for psychological reasons.
In 1999, the N.Y. City Employee Retirement System found that a police officer, who had been on a stress pension since 1992, was no longer psychologically disabled and certified him for reinstatement.
During the screening process, two psychologists reported that he had continued problems with stress tolerance and that he posed too high a risk to carry a firearm and was not qualified for the duties of a police officer.
The officer appealed to the Civil Service Commission. In a 2-to-1 decision, the Commission ordered his reinstatement. The Police Commissioner sought judicial review. The states highest court reversed, writing:
The sole question before us therefore is whether the [Civil Service] Commissions reinstatement determination was rational. While the Commission had evidence that petitioner was no longer psychologically disabled, there was no evidence that -- given his background and lack of any employment for a decade (or more) -- he was fit for the stresses of police work.
The reinstatement determination was not rational. Ciacciullo v. Kelly; City of N.Y. v. NYC Civ. Serv. Cmsn., #50, 6 N.Y.3d 855, 849 N.E.2d 942, 816 N.Y.S.2d 719, 2006 N.Y. Lexis 958 (N.Y. 2006).
Click here to view the opinion.
Comment: Because the elevated physical and psychological requirements for firefighters and law enforcement and correctional officers, an employee might be rejected for active duty, but is ineligible for initial or continuing disability benefits.
The latter determination might be based on a finding that while the employee is unfit for public safety service, he or she is not disabled from other government jobs or private sector employment.
In some states, an injury or disabling condition arising in the line of duty is defined differently for firefighters, correction officer and police officers. A pension board must apply the appropriate standard for each category of a disability applicant. Jensen v. E. Dundee Fire Prot. Dist. Pension Fund, #2-05-0301, 839 N.E.2d 670, 2005 Ill. App. Lexis 1162 (2nd Dist. 2005).
In Illinois, an appellate court recently held that a civil service board decision to medically discharge a firefighter for neck and back injuries was not barred by a prior denial by the Pension Board of a disability application. Neither res judicata nor collateral estoppel applies ... [and] it is reasonable to conclude that the [legislature] deliberately set the bar lower for a municipality seeking to discharge an unfit firefighter than for a firefighter to obtain a disability pension. Dowrick v. Vil. of Downers Grove, #2-05-0054, 840 N.E.2d 785, 2005 Ill. App. Lexis 1257 (2005).
Stress Disability - Line of Duty Retirement
Illinois appellate court affirms a line-of-duty pension for an officer who had stressful confrontations with the police chief.
A Chicago suburb appealed a ruling of its police pension board after it awarded duty-related retirement benefits to a detective who suffered panic attacks and had a series of stressful shouting sessions with the police chief. Supposedly, the police chief approached a crime victim and offered her gifts in exchange for filing a sexual assault case against the detective.
In Illinois, courts have held that stress resulting from difficulties with ones boss or supervisor does not entitle an employee to a duty-related disability pension. They also have held that stress resulting from the general trauma associated with being a police officer is not a valid reason to award a duty-related disability pension. A duty-related medical pension is 30% higher than an ordinarily disability pension.
In this case, the detective said that panic attacks began in 1996 when he was doing undercover narcotics work. He testified his interactions with the chief of police caused further attacks and caused his condition to worsen. He described incidents in which the chief told him to ignore missing evidence, advised him to discontinue his investigation of a rape case, and initiated an investigation of the detective for sexual harassment.
The detectives testimony was supported by all three doctors who examined him. They found that his disability was duty-related. A three-judge appellate panel agreed, writing:
Although civilians regularly suffer stress in their employment resulting from conflicts with their superiors ... ordinary citizens do not engage in undercover narcotics transactions, are not responsible for the preservation of evidence such as drugs and weapons, and do not investigate rape charges.
They said the detective faced risks not ordinarily encountered by civilians in the performance of his duties. Moreover, appellate court justices may not substitute their judgment for that of a pension board.
They noted that there have been no instances in which a boards decision to award an officer a duty-related disability pension has been overturned on appeal. Village of Stickney v. Bd. of Police Pension Fund of Stickney, #1-05-1238, 2005 Ill. App. Lexis 1268 (1st App. Dist. 2005).
Click here to view the opinion on the Internet.
Editors Note: Subsequently a federal jury awarded the detective $1,767,497 in compensatory damages against the village and $1 million in punitive damages each from the mayor and chief. Hare v. Zitek, #1:02-cv-03973, Pacer Docs 186 & 187 (N.D. Ill. 2006). Interim rulings at 2006 U.S. Dist. Lexis 50269 and 2006 U.S. Dist. Lexis 55042 (N.D. Ill. 2006).
Suicide Related
Federal court rejects and ADA and FMLA challenge to the termination of a police sergeant that threatened to kill himself.
An Arkansas police officer called a friend and told him to send the coroner to my house. The sergeant was found in the shower, holding his service revolver to his forehead; he eventually surrendered the weapon. At the time that he threatened suicide, he was on a two-day suspension for failing to attend firearm qualification.
The sergeant was fired while on medical leave. He then sued under the ADA and the FMLA. He claims that he has no recollection of his suicide threat and does not remember notifying his supervisors of a need for medical leave.
The District Court dismissed the action, noting that it is unlikely that he alleged a prima facie case under the ADA because depression, if controlled by medication, is not a disability.
Even if he made his prima facie case by showing disability, a city may legitimately terminate a police officer for attempting suicide. The court cited an Eighth Circuit case with nearly identical facts, Spades v. City of Walnut Ridge, #98-4119, 186 F.3d 897 (8th Cir. 1999). A three-judge panel wrote in that case:
The City articulated a nondiscriminatory reason for his termination-increased likelihood of liability. ... Claims of negligent hiring, supervision, and retention loom large in the minds of employers and their lawyers. Thus, [the plaintiff] has advanced no factual or legal argument, beyond mere conjecture and conclusion, that the Citys stated reason for discharging him was a pretext for discrimination.
Prichard v. City
of Bryant, 4:04-cv-00660,
2006 WL 751296, 2006
Click here to view the opinion on the AELE website.
Digest of Cases of Interest to Police Psychologists
Psychological Exams and Standards
http://www.aele.org/law/Digests/empl165.html
Psychological Counseling
http://www.aele.org/law/Digests/empl164.html
Stress Related Claims and Defenses
http://www.aele.org/law/Digests/empl209.html
Suicide Related
http://www.aele.org/law/Digests/empl211.html
Menu of all police employment and labor law case summaries
http://www.aele.org/law/Digests/emplmenu.html
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