3 RD ANNUAL CHIEF BEN THOMPSON LAW ENFORCEMENT SYMPOSIUM NOVEMBER 3, 2011 Charles P. Bauer, Esquire Gallagher, Callahan & Gartrell, P.C. 214 North Main Street Concord, NH Geaux Tigers! 1

EMERGING TRENDS IN POLICE CIVIL LITIGATION HANDLING THE EMOTIONALLY DISTURBED INDIVIDUAL & PERSONS WITH DISABILITIES 2

COMMON PROBLEMS TO LAW ENFORCEMENT  Persons with disabilities (PWD)  Emotionally disturbed individuals (EDI)  Primary goals 1.Serve & provide equal & impartial police services to PWD/EDI 2.Protect PWD/EDI from inequitable treatment based on disability 3.Accommodate PWD/EDI without jeopardizing safety 3

AMERICANS WITH DISABILITIES ACT & NH LAW  ADA – Title II – 1990 federal law protects PWD  RSA 354-A – NH state law protects PWD  Equal opportunity to gov’t services (i.e. police services), employment, public accommodations, transportation, telecommunications 4

DEFINITIONS  Disability – physical or mental impairment  Substantially limits  1 or more major life activities  OR is regarded / perceived as having a disability 5

POLICIES & TRAINING – PWD/EDI  Written policies  Training – with experts  Sensitivity & awareness  Communication & assistance with supervisors  Report writing  Failure to train / supervise 6

PROTECTIVE CUSTODY  RSA 135-C:28, III  Probable cause  Demonstrated immediate danger of injury to self or others  Medical referral, mental health referral, or arrest  Official & Qualified Immunity 7

ARREST & DETENTION- EDI/PWD  Totality of the Circumstances – mental state is 1 factor  Probable Cause / reasonable suspicion – articulate & report facts  Official & Qualified Immunity 8

ARREST & DETENTION- EDI/PWD cont’d  Visually impaired  Mobility impaired  Hearing & Speech impaired  “Undue financial burden” 9

USE OF FORCE – EDI/PWD  Graham factors: 1.Severity of crime at issue 2.Poses an immediate threat to safety 3.Actively resisting 4.Attempting to evade arrest by flight 10

USE OF FORCE – EDI/PWD cont’d  When dealing with PWD, consider whether particular control/restraint tactic is more dangerous/unreasonable in light of disability  Can steps be taken to accommodate the disability w/o jeopardizing safety? 11

USE OF FORCE – EDI/PWD cont’d  PWD/EDI - Demonstrates Threatening Conduct  Police officers may/must respond appropriately to real & immediate threats to safety, even if the result of disability or emotional disturbance  Important - trained to distinguish between conduct that creates real and immediate threat to safety  Important – conduct resulting from a disability not be criminalized where no crime committed 12

BEST PRACTICES  Take time to asses situation  De-escalate  Calming attitude-speech & actions – sirens, lights, crowd  Stay non-judgmental & non-threatening  Do not threaten arrest, weapons, conviction  Open 2-way communication  Avoid certain topics 13

BEST PRACTICES cont’d  Allow person to vent  Do not approach too quickly or too soon – move slowly – do not excite  Provide assurance of support & assistance  Try to be truthful  Consider options  Request back up  Communicate with Supervisor 14

THANK YOU. 15