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Wednesday, July 27, 2011

Light duty assignments involving law enforcement personnel

Light duty assignments involving law enforcement personnel
Cripe v City of San Jose, CA9, 99-15253

The Cripe's case considers the mandates of the Americans With Disabilities Act [ADA] in terms of the obligations of a law enforcement agency to keep disabled police officers in the “main stream” for the purposes of making assignments consistent with the needs of the agency and the abilities of the disabled officer.

The San Jose [California] Police Department has more than 1,300 sworn officers. Officers were assigned to one of three types of positions: beat-patrol assignments; modified-duty assignments -- positions specifically set aside for disabled officers; and specialized assignments. Specialized assignments consist of all sworn officer assignments other than beat-patrol and modified-duty assignments.*About one half of the force work in “beat assignments.”

Six City of San Jose police officers with neck and back injuries that prevented them from serving as patrol officers sued the Department alleging that the Department placed them in “a small number of undesirable positions” and did not consider them for “special assignment” posts. This Department policy, they alleged, violated the ADA.

The Department's response: “public safety would be compromised if officers with physical limitations that prevented them from forcibly arresting suspects were permitted to perform more than the prescribed handful of modified duty jobs that had been made available to them.” According to the Department, the six officers did not qualify as “disabled” within the meaning of the ADA because:

1. They cannot perform the “essential functions” of the positions they seek because they could not effect a forcible arrest or subdue a fleeing suspect;

2. It would impose an “undue hardship” on the City to require it to accommodate the plaintiffs by waiving the disputed policies; and

3. The modified-duty assignment policy is a reasonable accommodation satisfying the ADA's mandate.

The Circuit Court disagreed, holding that the Department's policy violated the ADA. The court said that “relegating [the disabled officers] to unsatisfactory jobs in which they have little or no possibility for promotion simply cannot be reconciled with the ADA's 'clear and comprehensive national mandate' to eliminat[e] ... discrimination against individuals with disabilities.”

The Circuit Court decided that the ADA requires the employer to find ways to bring the disabled into its ranks, even when doing so imposes some costs and burdens. The San Jose Police Department, said the court, must participate in this process, as long as it can do so in a manner that will not compromise public safety.

The crux of the matter: was making a forcible arrests and subduing fleeing suspects an “essential function” of all specialized-assignment positions in the San Jose Police Department. According to the ruling, “an employer may not turn every condition of employment which it elects to adopt into a job function, let alone an essential job function.” The Circuit Court concluded that a requirement that officers be physically capable of making forcible arrests does not reflect an essential function for all specialized assignment police officers.

In other words, the court ruled that the disabled officers were qualified individuals with a disability who, with or without reasonable accommodation, can perform the essential functions of the position that such individuals hold or desire, including, presumably, certain “special assignment.”

As examples, the decision notes that the disabled officers presumably would make good background investigators, good internal affairs investigators, and good recruiters or training officers, assignments that do not typically involve making forcible arrests or subduing fleeing suspects.

The bottom line: the Circuit Court ruled that there is a factual dispute as to whether the ability to make a forcible arrest is an essential function of all the specialized-assignment positions that the disabled officer seek the opportunity to fill, notwithstanding the job descriptions that the Department has prepared. In the words of the court:

We conclude that the [disabled officers] are not categorically unable to perform the essential functions of the “specialized assignments” they seek, even though they may be unable to make forcible arrests and subdue suspects. They are, rather, for purposes of this appeal, “qualified individual[s] with ... disabilit[ies].”

In another light duty case, Champ v Baltimore County, Md., [95-2061], the U.S. Circuit Court of Appeals, Fourth Circuit, ruled that a Baltimore County police officer who lost 100% of the use of his left arm was not entitled to a permanent light-duty assignment.

Significantly, the department defined the essential duties of a police officer as including the ability to make a forcible arrest, drive vehicles during an emergency and correctly aim a firearm while using two hands. Officer James Champ, who was severely injured in an off-duty motorcycle accident, could not show that he could perform any of these tasks.

In this unpublished decision, Judges Donald Russell, Sam Ervin III and William Wilkins Jr. said the ADA was not violated when the county placed Champ on disability retirement because he was not able to demonstrate he could perform the essential functions of the job of police officer, with or without reasonable accommodation.

In Stone v City of Mount Vernon, CA2, 96-7976, decided June 30. 1997, the U.S. Circuit Court of Appeals observed that the proper way to analyze the merits of a claim under the federal disability statutes is to focus on the fundamental job duties of the specific position an individual with a disability desires, rather than on the title .

* Specialized assignments are viewed as very desirable by department personnel. In consideration of this, the Department and San Jose Peace Officers Association negotiated an elaborate procedure for selecting personnel for these preferred jobs.


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