2000 Conference materials
Legal Officers Section
International Assn. of Chiefs of Police


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IACP
Police Psychological Services Section
Annual Conference
Legal Update

Annual Conference - November 12, 2000
San Diego, Cal.
Martin J. Mayer, J.D.
Law Offices of Mayer & Coble
Long Beach, California


CONTENTS

Fitness for Duty Evaluations and ADA
Negligent Retention & Supervision
Pre-Employment Psychological Evaluations
Negligent Hiring
Psychological Evaluations and Privacy Issues
Psychologist Licensing
Discipline and Psychological Evaluations


FITNESS FOR DUTY EVALUATION AND ADA

KROCKA V. BRANSFIELD, 969 F.Supp. 1073 (1997)

A city police officer sued the city for disability discrimination under the Americans with Disabilities Act (ADA) and Civil Rights of 1991, and he sued police department's former chief surgeon under § 1983 for deprivation of his constitutional and statutory rights. Both plaintiff and defendant moved for summary judgment. The Court held the following:

1) Fact question as to whether officer's depression was substantially limiting disability, and whether the city perceived him as disabled, precluded summary judgment as to whether officer was disabled under ADA;

2) Automatic placement of officer into monitoring program because he was taking particular psycho tropic medication was adverse employment action and was not justified by safety concerns;

3) Officer was not denied reasonable accommodation in response to his shift assignment;

4) Officer failed to establish retaliation claim based upon justified disciplinary action;

5) State-ordered blood test served no public interest and violated Fourth Amendment, and formal departmental surgeon who ordered test was not entitled to qualified immunity from civil rights claims arising from unlawful testing; and

6) Blood test violated ADA provision prohibiting inquiries into severity or nature of employee's disability, although fact question still remained as to whether officer was disabled under ADA.

Plaintiff filed discrimination charges with the EEOC and a state court complaint alleging slander, intentional infliction of emotional distress and handicap discrimination. On April 15, 1994, while still on medical roll plaintiff appeared as an attorney at an arbitration which is prohibited by the CPD's rules and regulations. The matter was investigated and plaintiff received a 5 day suspension. Plaintiff then filed an action alleging violations of the Americans with Disabilities Act and various state law claims.

The Court held that "when an employer orders a medical exam to determine how disabled --or not disabled--an employee is, he runs the risk of violating the ADA unless a legitimate, job-related reason for the exam exists. In addressing the issue of qualified immunity, the Court stated that "if the law is clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct." Further "it is clear from the case law that ordering a blood test--even if conducted in the patient's own doctor's office--is permissible only instances where the government can articulate an important governmental interest furthered by the intrusion that would be placed in jeopardy by a requirement of individualized suspicion."

GARNER V. GWINNETT, 1998 WL 1048471 (N.D.Ga. 1998)

Plaintiff a police officer brought suit under the ADA. Plaintiff began to experience job-related stress and sought the assistance of a psychologist. The psychologist Dr. Gonzales referred him to Dr. Stone, who he told of his homicidal ideation towards his supervisor and other members of the department. Drs. Stone and Gonzales agreed that Officer Garner was not fit for duty. Garner was place on thirty days leave. Garner terminated his relationship with Dr. Gonzales. Dr. Stone felt he had a duty to warn the supervisor of Garner's "homicidal ideation". Plaintiff was ordered to undergo a fitness for duty evaluation by Dr. Stephen who concluded that Garner should not be carrying a gun.

Plaintiff was evaluated by a fourth doctor who stated that he was fit for duty. Armed with this information, Garner requested his original position. The department did not re-institute him for fear of his past behavior. Garner was instead assigned to animal control. Garner refused to take the oath for the animal control position.

The Court held that "as a matter of law, plaintiff's perceived impairment did not substantially limit any major life activity and thus that the impairment does not constitute a disability within the meaning of ADA." Further "the ADA did not require the defendants to ignore this information (that plaintiff fantasized about killing his supervisor), rely on therapists, and take the risk that plaintiff would injure his co-workers or a member of the public once reinstated. In fact, arguably it would have been reckless to reinstate an employee defendants perceived to pose a threat to the community."

ALBERT V. RUNYON, 6 F.Supp.2d 57 (1998)

An employee out on medical leave sued the Postal Service, claiming that the Service's failure to reinstate her unless she submitted to a fitness for duty medical examination was a violation of the Family and Medical Leave Act. Both sides requested summary judgment. The District Court held that: (1) the Service violated the FMLA by refusing to accept letters from the employee's treating psychologist that she was fit to return for work as a basis for reinstating her without further medical examination; (2) there was no basis under the FMLA for the Service to insist upon a second opinion; (3) to the extent of a conflict, the FMLA and its regulations allowing for fitness testing of an employee at any time; (4) following reinstatement the Service could order fitness testing only for post-reinstatement behavior; and (5) the Americans with Disabilities Act (ADA) provision allowing for fitness determinations where there was a business need for them, did not support further medical testing of an employee certified to return to work under the FMLA, in the absence of a showing of additional business need.

NEGLIGENT RETENTION AND SUPERVISION

ROBLES V. HOYOS, 151 F.3d 1 (1998)

Arrestee brought action against police officials and psychiatrists who evaluated arresting officer. The District Court denied defendants' motions for summary judgment on the ground of qualified immunity. Defendants appealed. The Court of Appeals held that psychiatrists were not entitled to absolute or qualified immunity, and police officials were not entitled to qualified immunity.

Officer Martinez attempted to park in a space reserved for judges at the Bayamon Judicial Center. Camilo-Robles, a security guard told Officer Martinez that he could not park there. Officer Martinez responded by placing his hand on his gun, arresting, handcuffing and shoving Camilo-Robles into a police cruiser not to mention pushing and slapping him.

Camilo-Robles sued high-ranking officials and two psychiatrists who worked for the police department for depriving him of his civil rights by their deliberate indifference in carrying out their supervisory responsibilities (with the result that Diaz-Martinez, a demonstrably unstable officer, was allowed to remain active duty).

Martinez joined the police department in March 1984. In December of the same year he was suspended for assault. He became a regular officer and served for the next five years. The Court counted at least 18 disciplinary infractions involving violent and/or threatening behavior.

In August 1989 Martinez assaulted his wife and entered the Catano police station, took a shotgun and held several officers hostage. Thereafter, Martinez was committed to a psychiatric hospital and diagnosed as schizophrenic. The hospital discharged him and the police psychiatrist recommended that he be separated from the force and given a civilian position. Martinez was suspended in 1990 and expelled in 1991.

Martinez appealed his termination and was reinstated in May 1993. Next, he assaulted a civilian while on desk duty. Despite this incident, Drs. Hoyos and Gonalez found Martinez free from mental illness and fit for duty without restrictions. The department assigned him to work in a high tension duty area. The day after his return, Martinez was involved in an altercation with two law abiding residents that resulted in the injury and death of the residents. Thereafter, the department confiscated his weapon.

Martinez returned to desk duty and threatened to kill a fellow officer. He was then transferred to Bayamon CIC. The doctors re-examined him and found him ready for unrestricted active duty and fit to carry a weapon. The department rearmed him.

In deciding the issue of qualified immunity, the Court noted that while the psychiatrists did not have official authority to rearm Martinez they were aware that their certification would most likely return Martinez to active duty. The Court held that "the psychologists eschewed easily accessible steps to forestall the rearming of Martinez and instead certified his fitness for unrestricted active duty. Because this is an adequate showing of causation to support a denial of qualified immunity, the psychiatrists' fallback position avail them naught."

PRE-EMPLOYMENT PSYCHOLOGICAL EVALUATIONS

VARNAGIS V. CITY OF CHICAGO, 1997 WL 361150 (N.D.Ill. 1997)

Police officer applicants brought an action alleging that the city violated ADA and state law by rejecting their applications for police officer positions based on written and oral psychological tests. The District Court held that:

1) whether applicants' alleged perceived psychological impairments rendered them disabled could not be decided on motion to dismiss;

2)whether employer violated ADA's prohibition on pre-offer psychological examinations could not be decided on motion to dismiss; and

3) applicants failed to comply with requirement that complaint set forth short and plain statement giving fair notice of state claims.

LAMBLEY V. KAMENY, 43 Mass.App.Ct. 277 (1997)

A Job applicant sued the psychiatrist who examined the applicant at the request of a prospective employer. The job applicant claimed that he was passed over for a job on the basis that the psychiatrist erroneously diagnosed him as psychologically unfit. The Court dismissed the claim based on the medical malpractice tribunal's finding that applicant's offer of proof was insufficient. The applicant appealed. The Appeals Court held that: (1) applicant's claims that the psychiatrist was negligent in his examination and the diagnosis of applicant were within medical malpractice tribunal's jurisdiction, and (2) applicant's offer of proof to tribunal presented litigable issue as to psychiatrist's liability.

ROSARIO V. CITY OF NEW HAVEN, 1998 WL 51786 (D.Conn. 1998)

Plaintiff brought a civil rights action claiming that she was denied her due process rights under the Fourteenth Amendment when she was rejected for consideration as a police officer applicant for the New Haven Police Department based on the results of a psychological evaluation. The Court held that: (1) plaintiff had only a unilateral expectation of becoming a supernumerary police officer, not a legitimate claim to it; (2) even assuming that plaintiff's placement on the eligibility list created a property interest in employment as a police officer, plaintiff must also demonstrate by a preponderance of the evidence that the testing procedures or the results obtained were arbitrary, conscience-shocking or oppressive in a constitutional sense; (3) The tests were validated for the purpose of pre-employment screening of police officers (pre-employment tests must be shown to bear a demonstrable relationship to successful performance of the jobs for which it is used); (4) Plaintiff failed to demonstrate by a preponderance of the evidence that the written tests produced arbitrary, capricious or irrational results. (5) The results of the interview confirmed the hypotheses generated by the written tests.

NEGLIGENT HIRING

GROS V. CITY OF GRAND PRAIRIE, 209 F.3d 431 (2000)

Plaintiffs (sexual assault victims) brought a section 1983 suit alleging that the city and police chief violated their constitutional rights by hiring and failing to supervise an officer and by having a hiring policy that allowed persons with propensity toward violent behavior into the police department.

"The claim for inadequate training and supervision relies heavily on the department psychologists evaluation that officer has a tendency to be apprehensive and may be tense and driven which may require further scrutiny by his field training officer. This evidence was not contained in the officers pre-employment file from past employer and is not relevant to the initial decision to hire the officer. The Court of Appeals held that the police chief was not deliberately indifferent to plaintiffs' constitutional rights in hiring officer and exercise of pendant appellate jurisdiction over plaintiffs' appeal was not justified.

BRONX COUNTY PUBLIC ADMINISTRATOR V. CITY OF NEW YORK, 706 N.Y.S.2d 40 (2000)

The administrator of the estate of a wife of a probationary city police officer, who was fatally shot by officer with service revolver in apparent murder-suicide, brought a wrongful death action against the city. The New York Supreme Court held that the city exercised its governmental discretion in screening, hiring, training, and retaining officer, and in considering whether to allow him to keep his firearm, and thus was entitled to immunity.

PSYCHOLOGICAL EVALUATION AND PRIVACY ISSUES

SCOTT V. EDINBURG, 101 F.Supp.2d 1017 (2000)

Officer Edinburg shot and killed Phillip Scott. Scott's estate brought a wrongful death action against the officer. Plaintiffs sought to obtain documents concerning psychological evaluation that the officer underwent at the direction of the police chief after the shooting. The District Court held that the psychotherapist-patient privilege did not apply to statements in documents and official/executive privilege did not apply to the statements and the documents were discoverable material.

CAVER V. CITY OF TRENTON, 192 F.R.D. 154 (2000)

A group of black officers brought a civil rights action. Plaintiffs filed a motion to compel the production of the psychological records and reports of a white officer and four non-party white officers. The District Court held that psychological reports and records of defendant police officer and four non-party officers were protected by the psychotherapist-patient privilege and officers' privacy interest far outweighed the plaintiffs' need for the information, warranting the issuance of a protective order.

PSYCHOLOGIST LICENSING

NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF PSYCHOANALYSIS V. CALIFORNIA BOARD OF PSYCHOLOGY, 2000 WL 1434626 (9th Cir.Cal. 2000)

The national association and individual psychoanalysts brought a civil rights action for determination that California licensing scheme for mental health professionals violated their First Amendment and due process rights. The District Court dismissed the complaint for the failure to state a cause of action upon which relief could be granted.. The plaintiff appealed. The Court of Appeals held that: (1) California's mental health licensing laws did not implicate any fundamental rights, and could be upheld from due process challenge as long as they bore a rational relationship to legitimate state interest; (2) California licensing scheme for mental health professions was rationally related to California's interest in protecting mental health and safety of its citizens; and (3) Scheme was valid, content-neutral exercise of California's police power which, even if speech interest was implicated, did not violate First Amendment.

DISCIPLINE AND PSYCHOLOGICAL EVALUATIONS

JONES V. CITY OF CHICAGO POLICE BOARD, 297 Ill.App.3d 922 (1998)

A police officer sought review of the decision of the city police board and police superintendent to terminate his employment. The Court affirmed. The officer appealed. The Appellate Court held that: (1) board's findings that officer violated various police department rules in connection with incident in which he engaged in physical altercation with two citizens while off duty were not against the manifest weight of evidence; (2) such findings provided sufficient basis for officer's termination ; (3) hearing officer properly allowed psychologist's testimony which was based on examination conducted 14 months earlier; (4) hearing officer did not err in granting city continuance ; and (5) officer was not prejudiced by witnesses' expressed hesitancy to testify against him..

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The Law Offices of Mayer & Coble is located in the City of Long Beach. The firm basically limits its practice to representing cities, counties and the State as legal advisor to their Chiefs of Police or Sheriffs and in that capacity represents approximately seventy agencies throughout the California. In addition, it serves as the City Prosecutor for seven municipalities. Prior to establishing the law firm, Mr. Mayer worked with the League of California Cities for four years as Director of its Criminal Justice Planning Unit.

Mr. Mayer lectures extensively on matters involving civil liability and law enforcement on behalf of the California POST Commission, California Peace Officer's Association, California State Sheriff's Association, the Department of Justice, and Americans for Effective Law Enforcement.