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November 22, 2010
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Ed Flosi Taking Training to the Next Level
with Ed Flosi

Keys to handling suspects with physical disabilities

Is it reasonably foreseeable that an officer in your agency will have to search and/or handcuff somebody with a physical disability? This is a question that defensive tactics instructors should be asking themselves when deciding what topics to include in their curriculum. If the answer is yes (and I believe the answer for all of us will be yes), then your agency should be training your officers in methods to search and handcuff persons with physical disabilities. To decide not to conduct this training could lead to a finding of deliberate indifference if the agency and/or the trainer were sued in a failure-to-train claim.

Training is Key
The U.S. Supreme Court set guidelines for failure-to-train claims in Canton v. Harris. In this case the Court found agency liability only when the inadequate training amounted to “deliberate indifference to the rights of the persons with whom the police come in contact.” The Court said deliberate indifference “will occur when the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need.”

The agency’s liability hinged on the adequacy of the training program in relation to the tasks that officers must perform and not the performance of an individual officer.

As the current lead instructor for the San Jose (Calif.) Police Department Defensive Tactics (DT) and Arrest Control Techniques (ACT) Program, it is my responsibility to periodically review the curriculum and delivery of the program. One of the many criteria used to evaluate the curriculum is to look into legislative mandates and current legal trends. One such trend that has recently surfaced is the need to train officers in the area of the Americans with Disabilities Act (ADA) as it pertains to DT/ACT programs. Although the ADA covers both mental and physical disabilities, this article will address those persons with physical disabilities only.

Americans with Disabilities Act
The Americans with Disabilities Act of 1990 was signed into law by President George H. W. Bush. It is the purpose of the ADA to:

1.) provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities
2.) provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities
3.) ensure that the Federal government plays a central role in enforcing the standards established in this act on behalf of individuals with disabilities
4.) invoke the sweep of Congressional authority, including the power to enforce the 14th Amendment and to regulate commerce, in order to address the major areas of discrimination faced day to day by people with disabilities

Title II of the ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.”

“Discrimination” under the statute includes “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability․”

In the context of arrests in Title II claims, courts have recognized an officer’s failure to make reasonable accommodations to a physically disabled person. This claim would rise from a situation where police properly arrest a suspect but fail to reasonably accommodate his disability during the investigation or arrest, causing him to suffer greater injury or indignity than other arrestees.

Making Reasonable Accommodations
It should be clear based on this analysis that agencies and trainers must train their officers how to search and handcuff while making reasonable accommodations to persons with physical disabilities. This training should be done to at least the awareness level where the topic is discussed openly with the trainees and reasonable options are explored.

If time and resources permit, the officers can be given directions to role play amongst themselves to find and practice reasonable solutions — under the guidance of the instructor — to various types of situations they may encounter. These situations might include dealing with:

1.) a person in a wheelchair
2.) a person with an amputated limb without a prosthetic
3.) a person with an amputated limb with a prosthetic
4.) a person with an obvious or known physical disability that cannot be handcuffed in a traditional manner

This adult learning technique is highly effective as the learner finds the solution on their own — sometimes with a little facilitation from the instructor.

Without exploring the subject, no reasonable solutions will pre-exist in the officer’s stored memories, forcing the officer to come up with a solution under stress. It makes much more sense to have officers understand the issues and to have a plan in place before having to use it than to have the student just “figure it out” in an actual situation.

To this point, I once had a student decide a reasonable accommodation to handcuffing a man with an arm that was amputated at the elbow would be to handcuff the other arm to the man’s belt (ok so far…) and then use multiple layers of duct tape fully encircling the man’s amputated arm and his torso (not so much ok anymore). The student was serious in his efforts to explain how this would definitely secure the arm. After some discussion he realized this would not be a reasonable solution.

Is it predictable that officers might make poor decisions in the field without proper training? Would it not be better to train for the reasonably foreseeable events in order to mitigate liability? I believe the answer to each question is obviously “yes.” In the words of risk management expert Gordon Graham, “If it is predictable, it is preventable.” As trainers we owe it to ourselves and our students to provide training to promote success, and limit the risks of liability to the officer, the agency, and to ourselves.

 


In part two of this article, we will explore some of the specific techniques that have been taught in how to search and handcuff persons with physical disabilities.

 


About the author

Ed Flosi is a retired police sergeant in San Jose (Calif.). He has been in law enforcement for more than 27 years. Ed has a unique combination of academic background and practical real world experience including patrol, special operations and investigations. Ed was the lead instructor for use-of-force training, as well as defense and arrest tactics for the San Jose Police Department. He has been retained in several cases to provide testimony in cases when an officer was alleged to have used excessive force. He has assisted the California Commission on Peace Officer Standards and Training (POST) in providing expertise on several occasions related to use-of-force training. He has a Master of Science degree from California State University Long Beach and holds an Adult Learning Teaching Credential from the State of California. He teaches in the Administration of Justice Department at West Valley College.  He is currently the Principle Instructor for PROELIA Defense and Arrest Tactics.

Contact Ed Flosi.





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