Recent Trends in Police Liability: A Discussion of Important Case Decisions Ranging from Use of Force to the Americans with Disabilities Act Eric M. Ziporin, Esq. Senter Goldfarb & Rice, L.L.C Broadway, Suite 1700 Denver, Colorado © 2012 Senter Goldfarb & Rice, L.L.C.

Use of Force Graham v. Connor, 490 U.S. 386 (1989)  Still the standard bearer in all use of force cases  Courts look at: Severity of crime Threat to officers or others Active resistance or attempting to elude/escape

Impact of Video on Use of Force Cases  More and more common that one exists  With the good comes the bad  Training: awareness  Training: every video will be piece of evidence in court one day

Impact of Video on Use of Force Cases  Surveillance cameras Detention settings In-custody death use of force events

Impact of Video on Use of Force Cases  In-car cameras Traffic stops Pursuits Allegations of conspiracy when don’t work

Impact of Video on Use of Force Cases  TASER cameras  Limited value with video  Value with the audio

Scott v. Harris, 550 U.S. 372 (2007)  Pursuit case with in-car camera  FACTS  Motorist paralyzed after officer ran into plaintiff’s car

Scott v. Harris  Court below relied on Tennessee v. Garner to find force excessive  No imminent risk to officer/others at moment force used  USSC disagrees

Scott v. Harris  “Garner did not establish a magical on/off switch that triggers rigid preconditions whenever an officer’s actions constitute ‘deadly force.’”  Garner was simply an application of the “reasonableness test” to the use of a particular type of force in a particular situation.

Scott v. Harris  Courts must consider type of force applied – was that force likely or certain to cause death?  Relying on video, USSC found...  Subject, himself, initiated a lengthy, dangerous pursuit which put lives at serious risk of injury and the conduct was reasonable.

Scott v. Harris  Motion for summary judgment – facts in light most favorable to plaintiff  USSC – not when we have a video that refutes plaintiff’s version of the facts

Tenth Circuit’s Application of Scott v. Harris  Cordova v. Aragon, 569 F.3d 1183 (10th Cir. 2009)  FACTS (no video)

Cordova v. Aragon Imminent danger to the officer?  One bullet hit the front; the rest hit the side of the truck  Fatal shot entered the truck from the side (suggesting that plaintiff had already turned the truck away from officer)  Officer created own danger by attempting to deploy stop sticks

Cordova v. Aragon  District court found that officer was not in imminent danger when shots were fired and officer created the need for force BUT  Court also held that danger posed by plaintiff to others and general public justified the use of deadly force

Cordova v. Aragon Tenth Circuit:  Reliance on Scott v. Harris  District court was in error in finding that plaintiff posed a risk to fellow motorists – no facts to show that any motorists were in the vicinity

Cordova v. Aragon Tenth Circuit:  Potential risk of future harm not enough to justify certain death of plaintiff HOWEVER...  Officer prevailed on qualified immunity because law was not clearly established

Americans with Disabilities Act  Trending up  Little to no case law in the Tenth Circuit  Uncertainty of where the law is headed

Title II of the ADA  Applies to public entities  No liability for public employees

To prove a violation, a plaintiff must prove: 1. He is a qualified individual with a disability 2. He was either excluded from participating in or denied the benefits of some public entity’s services, programs, or activities, or was otherwise discriminated against by the public entity; and 3. Such exclusion, denial of benefits, or discrimination was by reason of his disability

Three Available Theories of Liability  Wrongful arrest theory  Failure to accommodate during the course of an investigation  Failure to train officers on how to interact with those with disabilities

Wrongful Arrest Theory  Officer wrongfully arrested suspect because he misperceived the effects of that disability as criminal conduct  Gohier v. Enright, 186 F.3d 1216 (10th Cir. 1999)

Gohier v. Enright Facts:  Officer responds to a disturbance (car hit with baseball bat)  Encounters the presumed suspect  Suspect looks angry: “Charles Manson” like expression  Officer orders him to stop; suspect fails to comply  Suspect starts walking toward officer with object in his hand  Suspect again fails to comply with commands  Officer thinks suspect is likely mentally ill  Suspect then steps toward/lunges toward officer (making a stabbing motion)  Officer shoots suspect two times

Gohier v. Enright  Officer did not misperceive effects of disability as criminal conduct  Unlike a case when suspect arrested for DUI but had a prior stroke  Unlike a case where officers used force and arrested a deaf man who ignored commands  Recognition of exigent circumstances – officer’s need to defend himself

Gohier v. Enright  Court noted that the plaintiff could have brought a failure to train claim against the city  Failure to properly train officers with the identification of a disability  Failure to investigate and arrest in a manner that reasonably accommodates the disability

Failure to Accommodate  Concept is ensuring same level of access as non-disabled person  Person suffered greater injury or loss of dignity  Hearing impaired person arrested cannot communicate because of handcuffs  Failure to provide an ASL interpreter to communicate basis of arrest, detention, etc.  Ulibari v. City and County of Denver, 742 F.Supp.2d 1192 (D. Colo. 2010)

Cases That We Have Seen  Mentally disabled suspect trashing apartment; officers arrive on scene; suspect is ignoring commands to come inside away from a high level deck; officers use baton and TASER in attempt to control suspect; suspect falls backward off of deck

Failure to Train  Not officially recognized by the Tenth Circuit  Other circuits have declined to adopt theory

Cases That We Have Seen  Failure to accommodate hearing- impaired arrestees on scene with an interpreter (Colorado Cross- Disability Coalition)

Cases That We Have Seen  Alleged mentally disabled (mild mental retardation) alleges that he was falsely arrested because officers should have recognized that he lacked the mental capacity to commit credit card fraud

Practical Considerations  Policies current?  Training current?  Involvement of the Department of Justice (be proactive to avoid)

Payment of Arrestee’s Medical Bills  Aggressive recovery efforts by Denver Health  Supported by suspect case from the Colorado Court of Appeals  Impact on arrest decisions

C.R.S. § No unlawful means of any kind shall be used to obtain a statement, admission, or confession from any person in custody

History  Eighth Amendment  Estelle v. Gamble, 429 U.S. 97 (1976)

C.R.S. § Persons arrested or in custody shall be treated humanely and provided with adequate food, shelter, and if required, medical treatment. Anyone receiving medical treatment while held in custody may be assessed a medical treatment charge as provided in section , C.R.S.

Statute Inequity  C.R.S. § (3)  County jail is not primarily responsible for the payment of the cost of medical care for a condition that was pre-existing prior to the time a person is in the peaceable custody of the county’s officers

Case Law  Poudre Valley Health Care, Inc. v. City of Loveland, 85 P.3d 558 (Colo. App. 2003)  FACTS

Denver Health (and others’) Agenda  Expansion of Poudre Valley  To include injuries which occur prior to custody  Regardless of whether injury caused by officer

Poudre Valley  Relying on C.R.S. § (2)  Court of Appeals determined that the city was liable for medical costs incurred in the treatment and care of a “pretrial detainee” who was injured after he had already been placed in custody

The Future...  Eventual challenge of Poudre Valley to the Court of Appeals and/or Colorado Supreme Court  Find the right test case