Legal Update for Police Psychologists – 2006
International
Association
of
Chiefs of Police, Inc.
Police Psychological
Services Section
Annual
Conference -
October, 2006
––
Compiled
by
Wayne
W. Schmidt
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
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 agency’s 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
• Click here to view the opinion on the Internet.
Contracts, Consultants and Outsourcing
Federal jury in
A five-year contract totaling $550,000 was for counseling
for
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 chief’s 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
• 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
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
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
During
the discovery phase of the civil rights lawsuit for excessive force, a federal
judge granted the plaintiff’s request that the deputy submit a psychological
examination. See Goodman v.
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.
• Click link to view the 2004 discovery order
on the AELE website, and the 2006
Fifth
Circuit’s 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
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 officer’s disciplinary file or the
psychological evaluations. This was “consistent with the Department’s 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
Department’s 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.
• Click here to view the opinion on the Internet.
Editor’s 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 employee’s 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 employee’s 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 state’s highest court reversed, writing:
“The sole
question before us therefore is whether the [Civil Service] Commission’s
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
In
Stress
Disability - Line of Duty Retirement
A
In
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 detective’s 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 board’s
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.
Editor’s
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.
Suicide
Related
Federal court
rejects and
An
The sergeant was fired while on medical leave. He then sued under
the
The District Court dismissed the action, noting that it is
unlikely that he alleged a prima facie case under the
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
City’s stated reason for discharging him was a pretext for discrimination.”
• 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