3 rd Annual Chief Ben Thompson Law Enforcement Symposium

1. 3rd Annual Chief Ben Thompson Law Enforcement Symposium November 3, 2011 Charles P. Bauer, Esquire Gallagher, Callahan & Gartrell, P.C. 214 North Main Street Concord, NH 03301 bauer@gcglaw.com Geaux Tigers!

2. Emerging trends in police civil litigation HANDLING THE EMOTIONALLY DISTURBED INDIVIDUAL & PERSONS WITH DISABILITIES

3. Common problems to law enforcement • Persons with disabilities (PWD) • Emotionally disturbed individuals (EDI) • Primary goals • Serve & provide equal & impartial police services to PWD/EDI • Protect PWD/EDI from inequitable treatment based on disability • Accommodate PWD/EDI without jeopardizing safety

4. Americans with disabilities act & NH Law • ADA – Title II – 1990 federal law protects PWD • RSA 354-A – NH state law protects PWD • Equal opportunity to gov’t services (i.e. police services), employment, public accommodations, transportation, telecommunications

5. DEFINITIONS • Disability – physical or mental impairment • Substantially limits • 1 or more major life activities • OR is regarded / perceived as having a disability

6. POLICIES & TRAINING – PWD/eDI • Written policies • Training – with experts • Sensitivity & awareness • Communication & assistance with supervisors • Report writing • Failure to train / supervise

7. PROTECTIVE CUSTODY • RSA 135-C:28, III • Probable cause • Demonstrated immediate danger of injury to self or others • Medical referral, mental health referral, or arrest • Official & Qualified Immunity

8. ARREST & DETENTION - EDI/PWD • Totality of the Circumstances – mental state is 1 factor • Probable Cause / reasonable suspicion – articulate & report facts • Official & Qualified Immunity

9. ARREST & DETENTION - EDI/PWD cont’d • Visually impaired • Mobility impaired • Hearing & Speech impaired • “Undue financial burden”

10. USE OF FORCE – EDI/PWD • Graham factors: • Severity of crime at issue • Poses an immediate threat to safety • Actively resisting • Attempting to evade arrest by flight

11. USE OF FORCE – EDI/PWD cont’d • When dealing with PWD, consider whether particular control/restraint tactic is more dangerous/unreasonable in light of disability • Can steps be taken to accommodate the disability w/o jeopardizing safety?

12. USE OF FORCE – EDI/PWD cont’d • PWD/EDI - Demonstrates Threatening Conduct • Police officers may/must respond appropriately to real & immediate threats to safety, even if the result of disability or emotional disturbance  • Important - trained to distinguish between conduct that creates real and immediate threat to safety • Important – conduct resulting from a disability not be criminalized where no crime committed

13. BEST PRACTICES • Take time to asses situation • De-escalate • Calming attitude-speech & actions – sirens, lights, crowd • Stay non-judgmental & non-threatening • Do not threaten arrest, weapons, conviction • Open 2-way communication • Avoid certain topics

14. BEST PRACTICES cont’d • Allow person to vent • Do not approach too quickly or too soon – move slowly – do not excite • Provide assurance of support & assistance • Try to be truthful • Consider options • Request back up • Communicate with Supervisor

15. Thank You.