Police Must Accommodate ADA Needs During Arrest
By Jeff Mordock
Delaware Law Weekly August 14, 2013
A woman suffering a panic attack that was mistaken by a Wilmington police officer for driving under the influence can proceed with her claims that the city and officer violated the Americans with Disabilities Act and Rehabilitation Act by arresting her and failing to inquire about her condition, a federal judge has ruled.
In issuing the opinion, the U.S. District Court for the District of Delaware ruled that, under federal law, officers must accommodate an individual’s disability after they secure the area, and are required to ask about an individual’s medical issues, even if that individual refuses medical treatment.
“As discussed in more detail below, the evidence does not support a finding that Officer Connor was required to ask plaintiff if she required medical assistance after she refused it on the scene,” said U.S. District Judge Richard G. Andrews of the District of Delaware. “That does not mean, however, that at some later point, some officer should not have asked her about her condition.”
Andrews issued the opinion in Glover v. City of Wilmington.
In July 2009, Dorotheia Glover’s car was struck by a drunken driver, according to court documents. A Wilmington police officer arrived on the scene and Glover informed the officer that she suffers from panic attacks, a disability covered under the Americans with Disabilities Act, or ADA. Officer Gerald J. Connor, also a Wilmington police officer and a defendant in the case, arrived on the scene and began questioning Glover.
Glover alleged she also told Connor about her panic attacks, but he believed the attack’s symptoms were a sign of intoxication and administered a portable breath test, according to the court’s opinion. The breath test did not detect any alcohol in her system, but Glover informed the police officer that she had taken a Percocet the previous day for the panic attacks and it could still be in her blood. Glover also told the officer that she was only a passenger in the car and her friend, June Goldborough, was driving at the time of the accident.
Connor asked Glover if she wanted an ambulance, but she declined, according to court documents. He then told her that she was being arrested for refusing medical care.
In addition, Glover contends that she suffered minor injuries during the arrest.
Connor asserted that Glover, at first, admitted to driving and then later backtracked and said she was not driving, according to court documents. He also testified that he observed Glover slurring, mumbling and unable to stand without swaying or stumbling. When Connor asked Glover to recite the alphabet, she responded she was having a panic attack.
After Glover admitted that she took a Percocet, Connor believed she was using a panic attack to mask her intoxication, according to the court’s opinion. He arrested Glover and transported her back to the station.
Glover was charged with driving under the influence and resisting arrest. However, both charges were later dropped.
In 2011, Glover filed a complaint in federal court against both the city of Wilmington and Connor. The lawsuit asserted Fourth Amendment violations for malicious prosecution, unlawful detention, and excessive force under Chapter 42, Section 1983 of the U.S. Code, as well as violations of the ADA and Section 504 of the Rehabilitation Act, or RA.
Connor claimed qualified immunity because he had reasonable suspicion that Glover was driving under the influence. However, Andrews refused to grant qualified immunity, ruling that Connor did not have probable cause to arrest the plaintiff for DUI and detain her for four hours under Title 11, Section 1902 of the Delaware Code.
“While detaining her, by its terms, Section 1902 only allows detention for up to two hours,” Andrews said. “Plaintiff was in custody for more than four hours. Thus, the evidence that would have permitted Officer Connor to detain her for a period of time would not justify a four-hour detention. Officer Connor knew this. Therefore, crediting plaintiff’s version of the facts, Officer Connor knew his conduct was unlawful and he cannot be found to have shown that he had qualified immunity on plaintiff’s Section 1983 claims.”
Andrews also allowed Glover’s claims to move forward on the grounds that her arrest may have violated both the ADA and the RA because Connor did not take the proper steps to accommodate her disability. The judge ruled that under Hainze v. Richards, a 2000 ruling by the U.S. Court of Appeals for the Fifth Circuit, Connor should have made an effort to accommodate Glover’s disability once she was in custody.
“The ADA does not apply to a police officer’s on-the-street response to a reported disturbance, whether or not the call involves subjects with mental disabilities, prior to securing the scene,” Andrews said. “It appears, however, as though the scene in this case was secured before any of the complained actions took place.”
Andrews also permitted Glover’s ADA and RA claims to move forward under the “wrongful arrest theory,” a legal doctrine in which police mistake legal conduct caused by the disability as illegal conduct.
The judge also permitted Glover’s unlawful detention claim to move forward because she could only be held for two hours if there was no probable cause to arrest her for DUI.
Andrews, however, did bar Glover’s excessive force claims, ruling that she waived her right to that issue when her counsel failed to address it in a response brief to Connor’s motion for summary judgment. He called the counsel’s decision “the essence of a waiver.”
Glover also alleged a Monell claim, asserting that the city of Wilmington developed and maintained policies that exhibit “deliberate indifference” to its citizens’ constitutional rights. Her claim was denied because Andrews ruled that even if the Wilmington Police Department had unconstitutional customs, these were not the cause of the injuries she claimed to sustain during her arrest. A Monell claim, named after Monell v. Department of Social Services of the City of New York, a 1978 U.S. Supreme Court decision, is when an individual alleges that an agency’s policies and practices violate an individual’s constitutional rights. Stephen Price Norman, a Dagsboro attorney who represented Glover, said that he is planning to file a motion for reargument on the Monell claim, but declined to comment on the rest of the court’s opinion.
Rosamaria Tassone-DiNardo, an attorney with the city of Wilmington, represented the city and Connor. Neither attorney immediately returned calls seeking comment.