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.
1700 Broadway, Suite 1700
Denver, Colorado 80290
© 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:

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






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 hearingimpaired arrestees on scene with an
interpreter (Colorado CrossDisability 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. § 16-3-401
1.
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. § 16-3-401
2. 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 17-26-104.5,
C.R.S.
Statute Inequity


C.R.S. § 17-26-104.5(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. § 16-3-401(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