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	<title>Chief&#039;s Counsel Archives - Police Chief Magazine</title>
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		<title>Chief’s Counsel: Providing Equal Access During Police Interactions with Individuals with Disabilities</title>
		<link>https://www.policechiefmagazine.org/chiefs-counsel-providing-equal-access-during-police-interactions-individuals-disabilities/</link>
					<comments>https://www.policechiefmagazine.org/chiefs-counsel-providing-equal-access-during-police-interactions-individuals-disabilities/#respond</comments>
		
		<dc:creator><![CDATA[David Teodosio]]></dc:creator>
		<pubDate>Sat, 01 Feb 2025 13:00:23 +0000</pubDate>
				<category><![CDATA[Chief's Counsel]]></category>
		<category><![CDATA[Columns]]></category>
		<category><![CDATA[Human & Civil Rights]]></category>
		<category><![CDATA[Americans with Disabilities Act (ADA)]]></category>
		<category><![CDATA[chief's counsel]]></category>
		<category><![CDATA[disabilities]]></category>
		<category><![CDATA[disability]]></category>
		<category><![CDATA[equal opportunity commission]]></category>
		<category><![CDATA[intellectual and developmental disabilities]]></category>
		<guid isPermaLink="false">https://www.policechiefmagazine.org/?p=89069</guid>

					<description><![CDATA[<p><strong><span style="color: #0071b9;">The Americans with Disabilities Act of 1990 (ADA) is a U.S. civil rights law that protects the rights of individuals with disabilities. Title II of the ADA prohibits public entities from excluding any qualified individual with a disability from participating in or denying them benefits of the services, programs, or activities of the entity, or subjecting them to discrimination, based on their disability.<sup>1</sup></span></strong></p>
<p>This law applies to all services, programs, and activities that state and local law enforcement agencies provide to the public, regardless of the entity’s size or receipt of federal funding.<sup>2</sup> Law enforcement services, programs, and activities include, but are not limited to, interactions with the public such as taking and responding to calls for service, stops, detentions, interviews, and arrests, and custodial interactions with incarcerated persons.</p>
<p>&#160;</p>
<p><strong><span style="color: #0071b9;">In order to access the rest of the article <a href="https://www.policechiefmagazine.org/nimble-auth/login/?redirect=https://www.policechiefmagazine.org/">sign in</a> with your IACP or Subscriber credentials.</span></strong></p>
<p>The post <a href="https://www.policechiefmagazine.org/chiefs-counsel-providing-equal-access-during-police-interactions-individuals-disabilities/">Chief’s Counsel: Providing Equal Access During Police Interactions with Individuals with Disabilities</a> appeared first on <a href="https://www.policechiefmagazine.org">Police Chief Magazine</a>.</p>
]]></description>
										<content:encoded><![CDATA[<p><strong><span style="color: #0071b9;"><img fetchpriority="high" decoding="async" class="alignleft wp-image-89073" src="https://www.policechiefmagazine.org/wp-content/uploads/GettyImages-995288064-300x200.jpg" alt="Wheelchair using young man and his girlfriend travelling around a modern city" width="457" height="304" srcset="https://www.policechiefmagazine.org/wp-content/uploads/GettyImages-995288064-300x200.jpg 300w, https://www.policechiefmagazine.org/wp-content/uploads/GettyImages-995288064-1024x683.jpg 1024w, https://www.policechiefmagazine.org/wp-content/uploads/GettyImages-995288064-768x512.jpg 768w, https://www.policechiefmagazine.org/wp-content/uploads/GettyImages-995288064-1536x1024.jpg 1536w, https://www.policechiefmagazine.org/wp-content/uploads/GettyImages-995288064-2048x1365.jpg 2048w, https://www.policechiefmagazine.org/wp-content/uploads/GettyImages-995288064-272x182.jpg 272w" sizes="(max-width: 457px) 100vw, 457px" />The Americans with Disabilities Act of 1990 (ADA) is a U.S. civil rights law that protects the rights of individuals with disabilities. Title II of the ADA prohibits public entities from excluding any qualified individual with a disability from participating in or denying them benefits of the services, programs, or activities of the entity, or subjecting them to discrimination, based on their disability.<sup>1</sup></span></strong></p>
<p>This law applies to all services, programs, and activities that state and local law enforcement agencies provide to the public, regardless of the entity’s size or receipt of federal funding.<sup>2</sup> Law enforcement services, programs, and activities include, but are not limited to, interactions with the public such as taking and responding to calls for service, stops, detentions, interviews, and arrests, and custodial interactions with incarcerated persons.</p>
<p>ADA litigation against law enforcement agencies by the U.S. Department of Justice and private attorneys has increased in recent years. These actions can lead to costly attorney’s fees, construction alterations, and detailed settlement agreements or injunctions.</p>
<h1><strong><span style="color: #0071b9;">Qualified Individual with a Disability</span></strong></h1>
<p>The ADA broadly defines a “qualified individual with a disability” as “an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.”<sup>3</sup></p>
<p>A disability is “a physical or mental impairment that substantially limits one or more of the major life activities of such individual; a record of such an impairment; or being regarded as having such an impairment.”<sup>4</sup> The ADA does not include an exhaustive list of disabilities, but the following are some examples of physical and mental impairments that can be a covered disability under the ADA: visual, speech, and hearing impairments; epilepsy; diabetes; intellectual disability; emotional illness; dyslexia and other specific learning disabilities; HIV infection; drug addiction or alcoholism; and gender dysphoria.<sup>5</sup></p>
<h1><span style="color: #0071b9;"><strong>Reasonable Modifications to Policies, Practices, and Procedures</strong></span></h1>
<p>Public entities are required to make reasonable modifications in policies, practices, or procedures when necessary to avoid discrimination on the basis of disability.<sup>6</sup> The law does allow exceptions if the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.<sup>7</sup> This includes denying or removing a modification for individualized safety or security reasons.<sup>8</sup></p>
<p>Reasonable modifications are a primary component of providing access to persons with disabilities. The following are some examples of modifications that law enforcement may need to make:</p>
<ul>
<li>Modifying restraints, use of force, and search methods during the arrest of an individual with a mobility disability. This includes providing the individual with access to their mobility device during arrest, transport, and holding.</li>
<li>Allowing persons with service animals to access all areas of a facility where members of the public, participants in services, programs or activities, or invitees, are allowed to go.<sup>9</sup></li>
<li>Providing access to mobility devices and other health care appliances in detention facilities.<sup>10</sup></li>
</ul>
<h1><span style="color: #0071b9;">Effective Communication</span></h1>
<p>The ADA includes specific requirements related to ensuring that communications with persons with disabilities are as effective as communications with persons without disabilities.<sup>11</sup> One requirement is that agencies are required to provide auxiliary aids and services to qualified individuals with disabilities in order to provide them with an equal opportunity to participate in and enjoy the benefits of a service, program, or activity of a public entity.<sup>12</sup> The type of auxiliary aid or service necessary varies based on the method of communication used by the individual; the nature, length, and complexity of the communication involved; and the context of the communication.<sup>13</sup></p>
<blockquote><p><strong><span style="color: #0071b9;">&#8220;Routine policies and procedures may require modification to ensure that persons with disabilities are not denied effective communication.&#8221;</span></strong></p></blockquote>
<p>Effective communication requirements generally apply to persons with disabilities that impact a person&#8217;s ability to receive, process, or convey information to another person, including but not limited to vision, hearing, speech, learning, or cognitive disabilities. Providing access to in-person or virtual qualified sign language interpreters is just one example of providing effective communication to persons who are deaf or hard of hearing and use sign language.</p>
<p>Adopting an effective communication policy is one way to ensure that employees are aware of and comply with effective communication requirements. Additionally, routine policies and procedures may require modification to ensure that persons with disabilities are not denied effective communication. One example is modifying handcuffing policies and training to ensure that individuals with hearing disabilities who communicate with their hands are handcuffed in a manner that permits them to communicate, absent an individualized safety concern.</p>
<p>The September 2024 settlement agreement between the U.S. and the Wisconsin Department of Corrections (WDOC) provides an example of common allegations and settlement terms related to providing effective communication in a detention facility.<sup>14</sup> The U.S. conducted an investigation after receiving complaints from incarcerated individuals at three WDOC facilities, alleging that WDOC failed to provide auxiliary aids and services, effective communication, and timely repair and return hearing aids to incarcerated individuals with hearing disabilities, preventing them from participating in programs. The U.S. and WDOC agreed to settle without litigation. The settlement agreement includes a $15,000 monetary payment and identifies specific ways in which WDOC will provide effective communication, including but not limited to: maintaining contracts to ensure that qualified interpreter services are available 24/7; screening every incarcerated individual for hearing disabilities as part of the intake process; creating a communication plan for every incarcerated individual with a hearing disability; creating a centralized database of incarcerated individuals with hearing disabilities that is available to all custody and program staff; policy modifications; and annual staff training. The agreement also requires WDOC to send the U.S. status reports at specific intervals and identifies a process for the U.S. to enforce the agreement in federal court in the event of noncompliance.<sup>15</sup></p>
<h1><span style="color: #0071b9;">Construction</span></h1>
<p>Agencies are required to follow specific architectural standards when building new construction or altering existing buildings.<sup>16</sup> The specific standard that applies relies on the starting date of the construction. All newly constructed or altered public buildings that began physical construction on or after March 15, 2012, must comply with the 2010 ADA Standards for Accessible Design.<sup>17</sup></p>
<p>As it relates to existing buildings, a public entity is required to operate each service, program, or activity so that, when viewed in its entirety, it is readily accessible to and usable by individuals with disabilities.<sup>18</sup> Agencies may be required to make construction modifications to ensure service, program, or activity accessibility.<sup>19</sup></p>
<h1><span style="color: #0071b9;">Recommendations</span></h1>
<p>It is recommended that law enforcement agencies review their policies, practices, procedures, and training to ensure that employees know how to provide reasonable modifications during interactions with persons with disabilities. It is also recommended that law enforcement agencies evaluate their physical buildings and transportation methods for accessibility. States and local entities may have additional laws that provide greater or equal protections to persons with disabilities. <span style="font-family: Webdings;">d</span></p>
<aside class="pullout pullout--wide alignleft"></p>
<p><img decoding="async" class="alignleft wp-image-89071 size-thumbnail" src="https://www.policechiefmagazine.org/wp-content/uploads/Kamphoefner-scaled-e1738161385380-150x150.jpeg" alt="" width="150" height="150" srcset="https://www.policechiefmagazine.org/wp-content/uploads/Kamphoefner-scaled-e1738161385380-150x150.jpeg 150w, https://www.policechiefmagazine.org/wp-content/uploads/Kamphoefner-scaled-e1738161385380-300x300.jpeg 300w, https://www.policechiefmagazine.org/wp-content/uploads/Kamphoefner-scaled-e1738161385380-1024x1024.jpeg 1024w, https://www.policechiefmagazine.org/wp-content/uploads/Kamphoefner-scaled-e1738161385380-768x768.jpeg 768w, https://www.policechiefmagazine.org/wp-content/uploads/Kamphoefner-scaled-e1738161385380-1536x1536.jpeg 1536w, https://www.policechiefmagazine.org/wp-content/uploads/Kamphoefner-scaled-e1738161385380-400x400.jpeg 400w, https://www.policechiefmagazine.org/wp-content/uploads/Kamphoefner-scaled-e1738161385380-600x600.jpeg 600w, https://www.policechiefmagazine.org/wp-content/uploads/Kamphoefner-scaled-e1738161385380.jpeg 1792w" sizes="(max-width: 150px) 100vw, 150px" /><strong>Mandy Kamphoefner</strong>, JD, is a legal advisor to San Diego County, California, Sheriff Kelly Martinez. She currently advises the sheriff’s office on matters related to disability rights laws. She previously advised the sheriff’s office on matters related to the Law Enforcement Services Bureau, public records requests, subpoenas, and discovery. </aside>
<p><b><span data-contrast="auto">Notes:</span></b><span data-ccp-props="{&quot;201341983&quot;:0,&quot;335559740&quot;:480}"> </span><br />
<span data-contrast="auto"><sup>1</sup>42 U.S.C. § 12132; 28 C.F.R. § 35.130(a).</span><span data-ccp-props="{&quot;201341983&quot;:0,&quot;335559739&quot;:0,&quot;335559740&quot;:480}"> </span><br />
<span data-contrast="auto"><sup>2</sup>42 U.S.C. § 12131(a); 28 C.F.R. §§ 35.103, 35.104.</span><span data-ccp-props="{&quot;201341983&quot;:0,&quot;335559739&quot;:0,&quot;335559740&quot;:480}"> </span><br />
<span data-contrast="auto"><sup>3</sup>42 U.S.C. § 12131(b); 28 C.F.R. § 35.104.</span><span data-ccp-props="{&quot;201341983&quot;:0,&quot;335559739&quot;:0,&quot;335559740&quot;:480}"> </span><br />
<span data-contrast="auto"><sup>4</sup>28 CFR § 35.108 (a)(1).</span><span data-ccp-props="{&quot;201341983&quot;:0,&quot;335559739&quot;:0,&quot;335559740&quot;:480}"> </span><br />
<span data-contrast="auto"><sup>5</sup>28 C.F.R. § 35.108(b); </span><i><span data-contrast="auto">Jane Doe v. Georgia Department of Corrections</span></i><span data-contrast="auto">, 1:23-cv-5578-MLB, Statement of Interest of the United States, </span><a href="https://www.justice.gov/crt/media/1333226/dl"><span data-contrast="none">https://www.justice.gov/crt/media/1333226/dl</span></a><span data-contrast="auto">; </span><i><span data-contrast="auto">U.S. v. The State of Utah, The Utah Department of Corrections, and The Utah Department of Health and Human Services</span></i><span data-contrast="auto">, 2:24-cv-00241, </span><a href="https://www.justice.gov/crt/media/1346436/dl"><span data-contrast="none">https://www.justice.gov/crt/media/1346436/dl</span></a><span data-contrast="none">.</span><span data-ccp-props="{&quot;201341983&quot;:0,&quot;335559739&quot;:0,&quot;335559740&quot;:480}"> </span><br />
<span data-contrast="auto"><sup>6</sup>28 C.F.R. § 35.130(b)(7).</span><span data-ccp-props="{&quot;201341983&quot;:0,&quot;335559739&quot;:0,&quot;335559740&quot;:480}"> </span><br />
<span data-contrast="auto"><sup>7</sup>28 C.F.R. § 35.130(b)(7).</span><span data-ccp-props="{&quot;201341983&quot;:0,&quot;335559739&quot;:0,&quot;335559740&quot;:480}"> </span><br />
<span data-contrast="auto"><sup>8</sup>28 C.F.R. § 35.130(h).</span><span data-ccp-props="{&quot;201341983&quot;:0,&quot;335559739&quot;:0,&quot;335559740&quot;:480}"> </span><br />
<span data-contrast="auto"><sup>9</sup>28 C.F.R. § 35.136(c).</span><span data-ccp-props="{&quot;201341983&quot;:0,&quot;335559739&quot;:0,&quot;335559740&quot;:480}"> </span><br />
<span data-contrast="auto"><sup>10</sup>28 C.F.R. § 35.152.</span><span data-ccp-props="{&quot;201341983&quot;:0,&quot;335559739&quot;:0,&quot;335559740&quot;:480}"> </span><br />
<span data-contrast="auto"><sup>11</sup>28 C.F.R. § 35.160.</span><span data-ccp-props="{&quot;201341983&quot;:0,&quot;335559739&quot;:0,&quot;335559740&quot;:480}"> </span><br />
<span data-contrast="auto"><sup>12</sup>42 U.S.C. § 12103; 28 C.F.R. § 35.160.</span><span data-ccp-props="{&quot;201341983&quot;:0,&quot;335559739&quot;:0,&quot;335559740&quot;:480}"> </span><br />
<span data-contrast="auto"><sup>13</sup>28 C.F.R. § 35.160.</span><span data-ccp-props="{&quot;201341983&quot;:0,&quot;335559739&quot;:0,&quot;335559740&quot;:480}"> </span><br />
<span data-contrast="auto"><sup>14</sup>Settlement Agreement between the United States of America and Wisconsin Department of Corrections Under the Americans with Disabilities Act, DJ# 204-85-131, </span><a href="https://www.justice.gov/crt/media/1371371/dl"><span data-contrast="none">https://www.justice.gov/crt/media/1371371/dl</span></a><span data-contrast="auto">.</span><span data-ccp-props="{&quot;201341983&quot;:0,&quot;335559739&quot;:0,&quot;335559740&quot;:480}"> </span><br />
<span data-contrast="auto"><sup>15</sup>Settlement Agreement between the United States of America and Wisconsin Department of Corrections Under the Americans with Disabilities Act, DJ# 204-85-131, </span><a href="https://www.justice.gov/crt/media/1371371/dl"><span data-contrast="none">https://www.justice.gov/crt/media/1371371/dl</span></a><span data-contrast="auto">.</span><span data-ccp-props="{&quot;201341983&quot;:0,&quot;335559739&quot;:0,&quot;335559740&quot;:480}"> </span><br />
<span data-contrast="auto"><sup>16</sup>28 C.F.R. §§ 35.151-35.152; 2010 ADA Standards for Accessible Design, </span><a href="https://www.ada.gov/law-and-regs/design-standards/2010-stds"><span data-contrast="none">https://www.ada.gov/law-and-regs/design-standards/2010-stds</span></a><span data-contrast="auto">.</span><span data-ccp-props="{&quot;201341983&quot;:0,&quot;335559739&quot;:0,&quot;335559740&quot;:480}"> </span><br />
<span data-contrast="auto"><sup>17</sup>28 C.F.R. §§ 35.151.</span><span data-ccp-props="{&quot;201341983&quot;:0,&quot;335559739&quot;:0,&quot;335559740&quot;:480}"> </span><br />
<span data-contrast="auto"><sup>18</sup>28 C.F.R. §§ 35.150.</span><span data-ccp-props="{&quot;201341983&quot;:0,&quot;335559739&quot;:0,&quot;335559740&quot;:480}"> </span><br />
<span data-contrast="auto"><sup>19</sup>28 C.F.R. §§ 35.150.</span><span data-ccp-props="{&quot;201341983&quot;:0,&quot;335559739&quot;:0,&quot;335559740&quot;:480}"> </span></p>
<hr />
<p>Please cite as:<br />
Mandy Kamphoefner, “Providing Equal Access During Police Interactions with Individuals with Disabilities,” Chief’s Counsel, <em>Police Chief</em> 92, no. 2 (February 2025): 15–17.</p>
<p>The post <a href="https://www.policechiefmagazine.org/chiefs-counsel-providing-equal-access-during-police-interactions-individuals-disabilities/">Chief’s Counsel: Providing Equal Access During Police Interactions with Individuals with Disabilities</a> appeared first on <a href="https://www.policechiefmagazine.org">Police Chief Magazine</a>.</p>
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		<item>
		<title>Chief’s Counsel: Visa Programs Designed for Cooperative Victims and Witnesses</title>
		<link>https://www.policechiefmagazine.org/chiefs-counsel-visa-programs-designed-cooperative-victims-witnesses/</link>
					<comments>https://www.policechiefmagazine.org/chiefs-counsel-visa-programs-designed-cooperative-victims-witnesses/#respond</comments>
		
		<dc:creator><![CDATA[David Teodosio]]></dc:creator>
		<pubDate>Wed, 01 Jan 2025 13:00:00 +0000</pubDate>
				<category><![CDATA[Chief's Counsel]]></category>
		<category><![CDATA[Columns]]></category>
		<category><![CDATA[chief's counsel]]></category>
		<category><![CDATA[immigration]]></category>
		<category><![CDATA[immigration enforcement]]></category>
		<category><![CDATA[T visa]]></category>
		<category><![CDATA[U visa]]></category>
		<guid isPermaLink="false">https://www.policechiefmagazine.org/?p=88263</guid>

					<description><![CDATA[<p><strong><span style="color: #0071b9;">The U.S. government does not intend for a victim of a crime who is in the United States unlawfully to be shuttled across borders by the federal immigration authority when that victim is needed for the prosecution of a crime.</span></strong></p>
<p>The U.S. Department of Homeland Security (DHS), which oversees immigration enforcement, has three programs specifically designed to allow victims or witnesses to lawfully remain in the United States when they are assisting the police in a criminal investigation.</p>
<p>&#160;</p>
<p><strong><span style="color: #0071b9;">In order to access the rest of the article <a href="https://www.policechiefmagazine.org/nimble-auth/login/?redirect=https://www.policechiefmagazine.org/">sign in</a> with your IACP or Subscriber credentials.</span></strong></p>
<p>The post <a href="https://www.policechiefmagazine.org/chiefs-counsel-visa-programs-designed-cooperative-victims-witnesses/">Chief’s Counsel: Visa Programs Designed for Cooperative Victims and Witnesses</a> appeared first on <a href="https://www.policechiefmagazine.org">Police Chief Magazine</a>.</p>
]]></description>
										<content:encoded><![CDATA[<p><img decoding="async" class="alignleft wp-image-88267" src="https://www.policechiefmagazine.org/wp-content/uploads/GettyImages-1266429167-300x200.jpg" alt="Close up of american visa label in passport. SHallow depth of field." width="397" height="264" srcset="https://www.policechiefmagazine.org/wp-content/uploads/GettyImages-1266429167-300x200.jpg 300w, https://www.policechiefmagazine.org/wp-content/uploads/GettyImages-1266429167-1024x683.jpg 1024w, https://www.policechiefmagazine.org/wp-content/uploads/GettyImages-1266429167-768x512.jpg 768w, https://www.policechiefmagazine.org/wp-content/uploads/GettyImages-1266429167-1536x1024.jpg 1536w, https://www.policechiefmagazine.org/wp-content/uploads/GettyImages-1266429167-2048x1365.jpg 2048w, https://www.policechiefmagazine.org/wp-content/uploads/GettyImages-1266429167-272x182.jpg 272w" sizes="(max-width: 397px) 100vw, 397px" /></p>
<p><strong><span style="color: #0071b9;">The U.S. government does not intend for a victim of a crime who is in the United States unlawfully to be shuttled across borders by the federal immigration authority when that victim is needed for the prosecution of a crime.</span></strong></p>
<p>The U.S. Department of Homeland Security (DHS), which oversees immigration enforcement, has three programs specifically designed to allow victims or witnesses to lawfully remain in the United States when they are assisting the police in a criminal investigation.</p>
<p>A visa allows a person to lawfully be present in the United States so long as the visa is valid. While there are more than 50 different kinds of temporary visa programs, chiefs and sheriffs should understand what the U Visa, T Visa, and S Visa programs do for crime victims or witnesses, as these visas are meant as law enforcement tools so officers can address serious crimes in their communities.</p>
<p>The basic idea of these three visa programs as “police tools” makes sense because, otherwise, a criminal actor preying on an immigrant (who is lawfully or unlawfully present) could call DHS or U.S. Immigration and Customs Enforcement (ICE) and try to have their victim deported so the victim won’t be around to assist police with the investigation. Without some education for detectives and victim outreach organizations about these programs, a criminal’s simple threats to report a person to ICE may be enough to silence an otherwise cooperative victim or witness mid-case.</p>
<h1><strong><span style="color: #0071b9;">U Visa (Visa for Victims of Crime)</span></strong></h1>
<p>The U Visa is designed for victims of crimes who have suffered mental or physical abuse and who are helpful to the police in the investigation of criminal activity. Only certain crimes qualify for this visa, but, generally, it is meant for any crime against the person, whether felony or misdemeanor.<sup>1</sup> To support a victim’s U Visa application, a law enforcement official must provide a certification form confirming the victim’s cooperation and helpfulness during the case process.<sup>2</sup></p>
<p>Many in policing mistakenly think this certification confers citizenship or legal alien status (“just giving the person a green card”), when that is not the case at all. All this certification does is state that the agency certifies the victim was helpful during the criminal case. Agencies can define for themselves what “helpful” means, but, generally, DHS wants to know if the person was willing to report the crime and/or testify if needed. Because it can be complicated to measure whether a victim was “helpful” to the case, most agencies consult with the handling officer on this fact since that officer has the best knowledge regarding the person’s cooperation as a victim.</p>
<blockquote><p><span style="color: #0071b9;"><strong>&#8220;An agency who understands how to effectively use these visas may see an increased willingness among the community to report serious crimes&#8221;</strong></span></p></blockquote>
<p>Signing the certification for that victim’s cooperation by the agency is one part of a multistep process. The victim still must fill out all the DHS application forms, have a thorough background check completed, and comply with all the DHS rules and regulations. Practically, the police certification is not meant to be taken as the agency’s support for a victim to get lawful status. The form’s significance is the equivalent of when a citizen needs a copy of a no-fault police report to give their insurance in order to show a traffic accident occurred. The agency is providing only a record that the accident happened, but giving the report is not the agency commenting on whether insurance should pay out on a claim—the insurance company does their own investigation, and the report is one piece of what they review. The police certification for a U Visa is similar in that it informs DHS that the victim is or was helpful to an investigation the agency conducted and allows DHS to consider the rest of the application in their normal process.</p>
<h1><span style="color: #0071b9;"><strong>T Visa (Visa for Victims of Trafficking)</strong></span></h1>
<p>The T Visa is specifically for victims of human trafficking, which could include either labor trafficking or sex trafficking. To qualify for the visa, the victim must demonstrate to DHS that they have been a victim of a severe form of trafficking and are willing to assist the police in the investigation or prosecution of traffickers. Typically, for either a U Visa or T Visa, the application is prepared for the victim with the help of an immigration attorney who prepares an affidavit detailing what cooperation the victim provided. Alternatively, for a T Visa, some attorneys will prepare a form similar to the form used for a U Visa; however, again, the agency is affirming only that the person was helpful to the case and the crime investigated was related to labor or sex trafficking.<sup>3</sup></p>
<p>A T Visa application, however, is not always related to major criminal operations. While the typical T Visa applications concern a victim involved in human smuggling or prostitution rings, it can also include those in a one-on-one domestic relationship who are being sexually abused or forced into criminal acts, and the abuser uses their immigration status to require the person to obey or be complicit.</p>
<h1><strong><span style="color: #0071b9;">S Visa (Visa for Witnesses and Informants)</span></strong></h1>
<p>The S Visa is granted to individuals who possess critical information about criminal activities and are willing to proactively assist the police as informants. It is meant for people who are helping an agency investigate criminal activity, but their ability to be deported may mean losing the information or case. It also could be used for those witnesses or informants who, because of their willingness to inform, are now in danger of being harmed if deported to their home country. Because of the danger typically associated with an S Visa applicant, this process needs to be kept highly confidential.</p>
<p>Unlike the other two visas used as policing tools, the S Visa is actually sought by the police agency itself for the immigrant applicant, and there are many steps to follow before it is granted. The police agency will first need to meet with the local U.S. Attorney’s Office and provide them the initial application for their review.<sup>4</sup> Once the local U.S. Attorney’s Office is on board, they certify the police application and send it to the U.S. Department of Justice (DOJ) to review. If DOJ approves, the application is forwarded to the U.S. Citizen and Immigration Services for approval and then to the U.S. State Department. This complicated process of governmental review is likely one reason the S Visa is virtually unknown in policing circles; however, it may be the only way to lawfully keep a confidential informant safely in the United States to assist in an investigation.</p>
<h1><span style="color: #0071b9;">Conclusion</span></h1>
<p>An agency’s use of these three visa programs not only helps their cases but also shows the community that solving crime is the agency’s first priority. Proactively understanding these programs and having clear policies on how they are used builds trust with a portion of the community who is very wary of interacting with the police. As a result, an agency who understands how to effectively use these visas may see an increased willingness among the community to report serious crimes, which gives officers the chance to investigate and keeps all of the citizens the agency is charged with protecting a little safer.</p>
<aside class="pullout pullout--wide alignleft"></p>
<p><img loading="lazy" decoding="async" class="alignleft wp-image-88164 size-thumbnail" src="https://www.policechiefmagazine.org/wp-content/uploads/Derden-e1734621745517-150x150.png" alt="" width="150" height="150" srcset="https://www.policechiefmagazine.org/wp-content/uploads/Derden-e1734621745517-150x150.png 150w, https://www.policechiefmagazine.org/wp-content/uploads/Derden-e1734621745517-300x300.png 300w, https://www.policechiefmagazine.org/wp-content/uploads/Derden-e1734621745517-400x400.png 400w, https://www.policechiefmagazine.org/wp-content/uploads/Derden-e1734621745517.png 423w" sizes="auto, (max-width: 150px) 100vw, 150px" /><strong>Terry R. Derden</strong> is the chief legal advisor for the Ada County, Idaho, Sheriff’s Office, serving as in-house counsel to provide the Sheriff and his deputies legal advice on issues concerning patrol and jail operations while also drafting agency policy and providing legal training to deputies. </aside>
<p><strong>Notes:</strong><br />
<sup>1</sup>The list of qualifying crimes can be found at U.S. Citizenship and Immigration Services (USCIS), “Victims of Criminal Activity: U Nonimmigrant Status,” <a href="https://www.uscis.gov/humanitarian/victims-of-criminal-activity-u-nonimmigrant-status">https://www.uscis.gov/humanitarian/victims-of-criminal-activity-u-nonimmigrant-status.</a><br />
<sup>2</sup>An example of USCIS Form I-918 Supplement B can be found at <a href="https://www.uscis.gov/sites/default/files/document/forms/i-918supb.pdf">https://www.uscis.gov/sites/default/files/document/forms/i-918supb.pdf.</a><br />
<sup>3</sup>USCIS, “Victims of Human Trafficking: T Nonimmigrant Status,” <a href="https://www.uscis.gov/humanitarian/victims-of-human-trafficking-t-nonimmigrant-status">https://www.uscis.gov/humanitarian/victims-of-human-trafficking-t-nonimmigrant-status.</a><br />
<sup>4</sup>An example USCIS Form I-854A, to be completed by law enforcement, can be found at h<a href="https://www.uscis.gov/sites/default/files/document/forms/i-864a.pdf">ttps://www.uscis.gov/sites/default/files/document/forms/i-854a.pdf</a>.</p>
<hr />
<p>Please cite as</p>
<p style="padding-left: 40px;">Terry Derden, “Visa Programs Designed for Cooperative Victims and Witnesses,” Chief’s Counsel, <em>Police Chief</em> 92, no. 1 (January 2025): 10–11.</p>
<p>The post <a href="https://www.policechiefmagazine.org/chiefs-counsel-visa-programs-designed-cooperative-victims-witnesses/">Chief’s Counsel: Visa Programs Designed for Cooperative Victims and Witnesses</a> appeared first on <a href="https://www.policechiefmagazine.org">Police Chief Magazine</a>.</p>
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		<title>Chief’s Counsel: What Hath the Court Wrought? </title>
		<link>https://www.policechiefmagazine.org/what_hath_the_court_wrought/</link>
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		<dc:creator><![CDATA[David Teodosio]]></dc:creator>
		<pubDate>Sun, 01 Dec 2024 13:00:26 +0000</pubDate>
				<category><![CDATA[Chief's Counsel]]></category>
		<category><![CDATA[Columns]]></category>
		<category><![CDATA[Legal]]></category>
		<category><![CDATA[chief's counsel]]></category>
		<category><![CDATA[drug trafficking]]></category>
		<category><![CDATA[supreme court]]></category>
		<guid isPermaLink="false">https://www.policechiefmagazine.org/?p=87551</guid>

					<description><![CDATA[<p>The past year, 2024, has seen the U.S. Supreme Court issue several decisions of importance to police leaders—not just as police officers but as employers and government employees. And there is more to come.<span data-ccp-props="{&#34;201341983&#34;:0,&#34;335559740&#34;:480}"> </span></p>
<h1><span style="color: #0071b9;"><b>Social Media and Public Officials</b> </span></h1>
<p><span data-contrast="auto">When is a public official’s social media account “private” or “government”? The question matters because, on a private account, the public official can ban, block, and censor posts. On a government account, however, the First Amendment places great restrictions on account holder’s ability to control content. As Supreme Court Justice Amy Coney Barrett put it in </span><i><span data-contrast="auto">Lindke v. Freed</span></i><span data-contrast="auto">, </span><span data-ccp-props="{&#34;201341983&#34;:0,&#34;335559740&#34;:480}"> </span></p>
<p>&#160;</p>
<p><strong><span style="color: #0071b9;">In order to access the rest of the article <a href="https://www.policechiefmagazine.org/nimble-auth/login/?redirect=https://www.policechiefmagazine.org/">sign in</a> with your IACP or Subscriber credentials.</span></strong></p>
<p>The post <a href="https://www.policechiefmagazine.org/what_hath_the_court_wrought/">Chief’s Counsel: What Hath the Court Wrought? </a> appeared first on <a href="https://www.policechiefmagazine.org">Police Chief Magazine</a>.</p>
]]></description>
										<content:encoded><![CDATA[<figure id="attachment_87605" aria-describedby="caption-attachment-87605" style="width: 660px" class="wp-caption aligncenter"><img loading="lazy" decoding="async" class="size-large wp-image-87605" src="https://www.policechiefmagazine.org/wp-content/uploads/GettyImages-1431365270-1024x683.jpg" alt="WASHINGTON, DC - OCTOBER 07: United States Supreme Court (front row L-R) Associate Justice Sonia Sotomayor, Associate Justice Clarence Thomas, Chief Justice of the United States John Roberts, Associate Justice Samuel Alito, and Associate Justice Elena Kagan, (back row L-R) Associate Justice Amy Coney Barrett, Associate Justice Neil Gorsuch, Associate Justice Brett Kavanaugh and Associate Justice Ketanji Brown Jackson pose for their official portrait at the East Conference Room of the Supreme Court building on October 7, 2022 in Washington, DC. The Supreme Court has begun a new term after Associate Justice Ketanji Brown Jackson was officially added to the bench in September. (Photo by Alex Wong/Getty Images)" width="660" height="440" srcset="https://www.policechiefmagazine.org/wp-content/uploads/GettyImages-1431365270-1024x683.jpg 1024w, https://www.policechiefmagazine.org/wp-content/uploads/GettyImages-1431365270-300x200.jpg 300w, https://www.policechiefmagazine.org/wp-content/uploads/GettyImages-1431365270-768x512.jpg 768w, https://www.policechiefmagazine.org/wp-content/uploads/GettyImages-1431365270-1536x1024.jpg 1536w, https://www.policechiefmagazine.org/wp-content/uploads/GettyImages-1431365270-2048x1365.jpg 2048w, https://www.policechiefmagazine.org/wp-content/uploads/GettyImages-1431365270-272x182.jpg 272w" sizes="auto, (max-width: 660px) 100vw, 660px" /><figcaption id="caption-attachment-87605" class="wp-caption-text">Photo by Alex Wong/Staff/Getty Images</figcaption></figure>
<p>&nbsp;</p>
<p><span data-contrast="auto">The past year, 2024, has seen the U.S. Supreme Court issue several decisions of importance to police leaders—not just as police officers but as employers and government employees. And there is more to come.</span><span data-ccp-props="{&quot;201341983&quot;:0,&quot;335559740&quot;:480}"> </span></p>
<h1><span style="color: #0071b9;"><b>Social Media and Public Officials</b> </span></h1>
<p><span data-contrast="auto">When is a public official’s social media account “private” or “government”? The question matters because, on a private account, the public official can ban, block, and censor posts. On a government account, however, the First Amendment places great restrictions on account holder’s ability to control content. As Supreme Court Justice Amy Coney Barrett put it in </span><i><span data-contrast="auto">Lindke v. Freed</span></i><span data-contrast="auto">, </span><span data-ccp-props="{&quot;201341983&quot;:0,&quot;335559740&quot;:480}"> </span></p>
<p><strong><span style="color: #0071b9;">&#8220;<i>There are approximately 20 million state and local government employees across the Nation, with an extraordinarily wide range of job descriptions—from Governors, mayors, and police chiefs to teachers, healthcare professionals, and transportation workers. Many use social media for personal communication, official communication, or both—and the line between the two is often blurred</i>.&#8221;<sup>1</sup> </span></strong></p>
<p><span data-contrast="auto">A person claiming a government employee violated the First Amendment by blocking or deleting posts on the employee’s social media account has to show two things: the employee “(1) had actual authority to speak on behalf of the State on a particular matter, and (2) purported to exercise that authority in the relevant posts.”<sup>2</sup> </span></p>
<p><span data-contrast="auto">One of the lessons to be taken is the importance of separating the private from the professional. Justice Barrett offered this bit of advice: “A public official who fails to keep personal posts in a clearly designated personal account therefore exposes himself to greater potential liability.”<sup>3</sup></span></p>
<h1><span style="color: #0071b9;"><b>Drug Trafficking and Police Experts</b> </span></h1>
<p><span data-contrast="auto">Police detectives have long played a crucial role in prosecuting drug traffickers. A properly qualified detective is allowed to provide expert opinion testimony, including an opinion that drug traffickers “generally do not entrust large quantities of drugs to people who are unaware that they are transporting them.” In </span><i><span data-contrast="auto">Diaz v. United States</span></i><span data-contrast="auto">, the Supreme Court held, “An expert’s conclusion that ‘most people’ in a group have a particular mental state is not an opinion about” the mental state of the defendant on trial and, therefore, does not violate the rules of evidence.<sup>4</sup> </span></p>
<h1><span style="color: #0071b9;"><b>Malicious Prosecution Claims</b> </span></h1>
<p><span data-contrast="auto">In very broad terms, a person suing a police officer for malicious prosecution or false arrest must prove that the officer did not have probable cause to charge the person. What happens if an officer charges a person for committing multiple crimes and only one of those charges lacks probable cause? In </span><i><span data-contrast="auto">Chiaverini v. City of Napoleon</span></i><span data-contrast="auto">, the Supreme Court held that the lawsuit can go forward.<sup>5</sup> The court explicitly refused to determine if a plaintiff has to show that the charge without probable cause </span><i><span data-contrast="auto">caused</span></i><span data-contrast="auto"> a person’s detention.</span><span data-ccp-props="{&quot;201341983&quot;:0,&quot;335559740&quot;:480}"> </span></p>
<h1><span style="color: #0071b9;"><b>First Amendment Retaliation Claims</b> </span></h1>
<p><span data-contrast="auto">Police officers frequently make arrests following, or during, the arrestee’s exercise of a First Amendment right. Officers are not allowed to make an arrest </span><i><span data-contrast="auto">because</span></i><span data-contrast="auto"> of the First Amendment activity; to do so constitutes unlawful “First Amendment retaliation.” In 2019, in </span><i><span data-contrast="auto">Nieves v. Bartlett</span></i><span data-contrast="auto">, the Supreme Court had held that, in order to succeed on a First Amendment retaliation claim, the plaintiff must prove the absence of probable cause for the arrest.<sup>6</sup> Put another way, if an officer has probable cause to believe the plaintiff committed an offense, the officer wins.</span><span data-ccp-props="{&quot;201341983&quot;:0,&quot;335559740&quot;:480}"> </span></p>
<p><i><span data-contrast="auto">Nieves</span></i><span data-contrast="auto"> included an important exception to that rule: the First Amendment retaliation claim can go forward if the plaintiff can produce evidence that similarly situated people not engaged in First Amendment activity do not get arrested. The court gave jaywalking as an example: a jaywalker arrested after complaining about police conduct has a claim if jaywalkers are otherwise not arrested.</span><span data-ccp-props="{&quot;201341983&quot;:0,&quot;335559740&quot;:480}"> </span></p>
<p><span data-contrast="auto">In </span><i><span data-contrast="auto">Gonzalez v. Trevino</span></i><span data-contrast="auto">, Ms. Gonzalez was prosecuted for removing a governmental record in violation of Texas law.<sup>7</sup> Gonzalez claimed the charge was retaliation for her political conduct but could not point to anybody who had removed a government record and was not prosecuted. Gonzalez did, however, have evidence that nobody had ever been prosecuted for that offense before she was, which was enough for her suit to go forward.</span><span data-ccp-props="{&quot;201341983&quot;:0,&quot;335559740&quot;:480}"> </span></p>
<h1><span style="color: #0071b9;"><b>Second Amendment</b> </span></h1>
<p><span data-contrast="auto">In </span><i><span data-contrast="auto">United States v. Rahimi</span></i><span data-contrast="auto">, the Supreme Court held that 18 U.S.C. §922(g)(8), which prohibits possession of firearms by respondents in domestic violence restraining orders, is consistent with the principles underlying the Second Amendment.<sup>8</sup></span><span data-ccp-props="{&quot;201341983&quot;:0,&quot;335559740&quot;:480}"> </span></p>
<h1><span style="color: #0071b9;"><b>Coming Soon: Prosecutors and Attorney Generals</b> </span></h1>
<p><span data-contrast="auto">On October 9, 2024, the Supreme Court heard oral argument in </span><i><span data-contrast="auto">Glossip v. Oklahoma.</span></i><span data-contrast="auto"><sup>9</sup> The state attorney general “confessed error” that two local prosecutors had failed to disclose </span><i><span data-contrast="auto">Brady</span></i><span data-contrast="auto"> evidence regarding the co-defendant’s (and State’s witness) use of lithium and mental health issues.<sup>10</sup> Specifically, the attorney general claimed that handwritten notes taken during an interview of the co-defendant contained references to lithium and mentioned a treating doctor. An Oklahoma appellate court upheld Glossip’s death sentence, noting, “The State’s concession is not based in law or fact.” In an amicus curiae (friend of the court) brief filed on behalf of the victim’s family, the prosecutors maintain that the attorney general failed to properly interview them and their notes reflect what the witness said he told Glossip’s defense attorneys.</span><span data-ccp-props="{&quot;201341983&quot;:0,&quot;335559740&quot;:480}"> </span></p>
<p><span data-contrast="auto">Most of the argument in </span><i><span data-contrast="auto">Glossip</span></i><span data-contrast="auto"> involves procedural issues and whether the Oklahoma court’s decision rested on Oklahoma, and not federal, law. However, the case raises interesting issues about the ability of an attorney general’s office (or a prosecutor’s office) to concede misconduct without thoroughly investigating the alleged misconduct.<sup>11</sup></span><span data-ccp-props="{&quot;201341983&quot;:0,&quot;335559740&quot;:480}"> </span></p>
<h1><span style="color: #0071b9;"><b>Coming Soon: Use of Force</b> </span></h1>
<p><span data-contrast="auto">On the U.S. Supreme Court’s agenda is a deadly force case out of the Fifth Circuit, </span><i><span data-contrast="auto">Barnes v. Felix</span></i><span data-contrast="auto">.<sup>12</sup> Officer Felix conducted a traffic stop of a Toyota Corolla driven by Mr. Barnes for outstanding toll violations. When the car began to move, Officer Felix “stepped onto the car with his weapon drawn and pointed at Barnes.” When the car started to move, “Officer Felix shot inside the vehicle with ‘no visibility’ as to where he was aiming. The next second, Officer Felix fired another shot while the vehicle was still moving.” Mr. Barnes “was pronounced dead at the scene.”<sup>13</sup></span><span data-ccp-props="{&quot;201341983&quot;:0,&quot;335559740&quot;:480}"> </span></p>
<p><span data-contrast="auto">The Fifth Circuit affirmed summary judgment for the officer. The court focused the analysis on whether the officer was “in danger ‘</span><i><span data-contrast="auto">at the moment of the threat</span></i><i><span data-contrast="auto">’</span></i><span data-contrast="auto"> that caused him to use deadly force against Barnes.” Accordingly, the officer’s own actions (such as drawing his gun and stepping on the running board) leading up to the deadly force were not considered. The Supreme Court has taken up the case to review this “at the moment of the threat” standard. </span><span data-ccp-props="{&quot;201341983&quot;:0,&quot;335559740&quot;:480}"> </span></p>
<h1><span style="color: #0071b9;"><b>Importance of Body-Worn and In-Car Cameras</b> </span></h1>
<p><span data-contrast="auto">Ever since the Supreme Court decided </span><i><span data-contrast="auto">Scott v. Harris</span></i><span data-contrast="auto">, courts have used police video evidence to decide suits before a jury is convened.<sup>14</sup> Time and again, body-worn and dash cam videos have shown complaints against police officers to be exaggerated or simply false. There were several appellate decisions in 2024 where officers won on motions to dismiss or summary judgment based on video. Here are just two examples:</span><span data-ccp-props="{&quot;201341983&quot;:0,&quot;335559740&quot;:480}"> </span></p>
<p><span data-contrast="auto">In </span><i><span data-contrast="auto">Hodge v. Engleman</span></i><span data-contrast="auto">, the Fifth Circuit upheld a summary judgment decision in favor of an officer who used deadly force based on videos.<sup>15</sup></span><span data-ccp-props="{&quot;201341983&quot;:0,&quot;335559740&quot;:480}"> </span></p>
<p><strong><span style="color: #0071b9;">&#8220;<i>The videos cover the entire event…. Further, they show [plaintiff] Hodge raising a gun and pointing it at [officer] Engleman, as well as the gun lying on the ground next to his hand after the officers had shot him. Thus, the videos “blatantly contradict” the allegations of the complaint</i>.&#8221;<sup>16</sup> </span></strong></p>
<p><span data-contrast="auto">In </span><i><span data-contrast="auto">Johnson v. City of Atlanta</span></i><span data-contrast="auto">, the plaintiff alleged that an officer used excessive force on him even though the plaintiff had been nothing but cooperative.<sup>17</sup> “The body camera and dashcam footage that [the officer] attached to his answers tell a different story than the one Johnson alleged in his complaint.”<sup>18</sup></span><span data-ccp-props="{&quot;201341983&quot;:0,&quot;335559740&quot;:480}"> </span></p>
<p><span data-contrast="auto">Of course, the videos are not always conclusive. Judge Don Willett of the Fifth Circuit described police videos this way:</span><span data-ccp-props="{&quot;201341983&quot;:0,&quot;335559740&quot;:480}"> </span></p>
<p><span style="color: #0071b9;"><strong>&#8220;<i>Videos from police body and dashboard cameras and bystanders&#8217; smartphones play a front-and-center role in many excessive-force cases. For police officers, <span style="color: #0071b9;">body-worn</span> video cameras, like badges and firearms, are becoming standard-issue equipment. Sometimes the captured footage convincingly shows an officer&#8217;s actions were justified (limiting police liability), sometimes the footage convincingly shows the opposite (enhancing police accountability)—and sometimes the footage is less convincing than confounding.&#8221;</i><sup>19</sup></strong></span><span data-ccp-props="{&quot;201341983&quot;:0,&quot;335559740&quot;:480}"> </span></p>
<p><span data-contrast="auto">The events of </span><i><span data-contrast="auto">Barnes v. Felix</span></i><span data-contrast="auto"> were captured on a dash cam. The Supreme Court will doubtless rely on the video when deciding how to evaluate Officer Felix’s use of force.</span><span data-ccp-props="{&quot;201341983&quot;:0,&quot;335559740&quot;:480}"> </span></p>
<h1><span style="color: #0071b9;"><b>Conclusion</b></span></h1>
<p><span data-contrast="auto">The U.S. Supreme Court only accepts around 80 cases each term, but those 80 cases can have important repercussions for the policing profession.[20] Each year sees new rules about what officers and agency leaders may and may not do and new guidance on how lower courts are to evaluate police actions. Keeping abreast of Supreme Court decisions is vital.</span><span data-ccp-props="{&quot;201341983&quot;:0,&quot;335559740&quot;:480}"> <span style="font-family: Webdings;">d</span></span></p>
<p><span data-contrast="auto"><aside class="pullout alignleft"> The legal landscape is constantly evolving, and things can change quickly. The information in this column is accurate at the time of publication, but it is advisable that chiefs consult with counsel on legal matters and stay abreast of changes in state or federal law. </aside></span></p>
<aside class="pullout pullout--wide alignleft">
<p><img loading="lazy" decoding="async" class="alignleft wp-image-87607 size-thumbnail" src="https://www.policechiefmagazine.org/wp-content/uploads/Spencer-1-150x150.jpg" alt="" width="150" height="150" srcset="https://www.policechiefmagazine.org/wp-content/uploads/Spencer-1-150x150.jpg 150w, https://www.policechiefmagazine.org/wp-content/uploads/Spencer-1-300x300.jpg 300w, https://www.policechiefmagazine.org/wp-content/uploads/Spencer-1-1024x1024.jpg 1024w, https://www.policechiefmagazine.org/wp-content/uploads/Spencer-1-768x768.jpg 768w, https://www.policechiefmagazine.org/wp-content/uploads/Spencer-1-400x400.jpg 400w, https://www.policechiefmagazine.org/wp-content/uploads/Spencer-1-600x600.jpg 600w, https://www.policechiefmagazine.org/wp-content/uploads/Spencer-1.jpg 1500w" sizes="auto, (max-width: 150px) 100vw, 150px" /><br />
<strong>Attorney Jerome Spencer</strong> is the general counsel for the Charles County, Maryland, Sheriff’s Office, where he provides criminal law and procedure training. Previously, he was a prosecutor for 16 years and served as an associate judge of the Circuit Court for Charles County. He is currently a board member for the IACP Legal Officers Section.</aside><br />
<b><span data-contrast="auto">Notes:</span></b><span data-ccp-props="{&quot;201341983&quot;:0,&quot;335559740&quot;:480}"> </span><br />
<span data-contrast="auto"><sup>1</sup>Lindke v. Freed, 601 U.S. 187 (2024) at 197.</span><span data-ccp-props="{&quot;201341983&quot;:0,&quot;335559739&quot;:0,&quot;335559740&quot;:480}"> </span><br />
<span data-contrast="auto"><sup>2</sup></span><i><span data-contrast="auto">Lindke</span></i><span data-contrast="auto">, 601 U.S. at 204.</span><span data-ccp-props="{&quot;201341983&quot;:0,&quot;335559739&quot;:0,&quot;335559740&quot;:480}"> </span><br />
<span data-contrast="auto"><sup>3</sup></span><i><span data-contrast="auto">Lindke</span></i><span data-contrast="auto">, 601 U.S. at 204.</span><span data-ccp-props="{&quot;201341983&quot;:0,&quot;335559739&quot;:0,&quot;335559740&quot;:480}"> </span><br />
<span data-contrast="auto"><sup>4</sup>Diaz v. United States, 144 S. Ct. 1727 (2024).</span><span data-ccp-props="{&quot;201341983&quot;:0,&quot;335559739&quot;:0,&quot;335559740&quot;:480}"> </span><br />
<span data-contrast="auto"><sup>5</sup>Chiaverini v. City of Napoleon, 602 U.S. 1727, 1736___ (2024).</span><span data-ccp-props="{&quot;201341983&quot;:0,&quot;335559739&quot;:0,&quot;335559740&quot;:480}"> </span><br />
<span data-contrast="auto"><sup>6</sup>Nieves v. Bartlett, 587 U.S. 391 (2019).</span><span data-ccp-props="{&quot;201341983&quot;:0,&quot;335559739&quot;:0,&quot;335559740&quot;:480}"> </span><br />
<span data-contrast="auto"><sup>7</sup>Gonzalez v. Trevino, 144 S. Ct. 1663 (2024) per curiam.</span><span data-ccp-props="{&quot;201341983&quot;:0,&quot;335559739&quot;:0,&quot;335559740&quot;:480}"> </span><br />
<span data-contrast="auto"><sup>8</sup>United States v. Rahimi, 144 S.Ct. 1889 (2024).</span><span data-ccp-props="{&quot;201341983&quot;:0,&quot;335559739&quot;:0,&quot;335559740&quot;:480}"> </span><br />
<span data-contrast="auto"><sup>9</sup>The state court decision can be found at Glossip v. State, 529 P.3d 218 (Okla. 2023).</span><span data-ccp-props="{&quot;201341983&quot;:0,&quot;335559739&quot;:0,&quot;335559740&quot;:480}"> </span><br />
<span data-contrast="auto"><sup>10</sup>Brady v. Maryland, 373 U.S. 83 (1963).</span><span data-ccp-props="{&quot;201341983&quot;:0,&quot;335559739&quot;:0,&quot;335559740&quot;:480}"> </span><br />
<span data-contrast="auto"><sup>11</sup>To be fair, the attorney general’s position is only that Glossip should receive a new trial, not that he is innocent or should have his case dismissed altogether.</span><span data-ccp-props="{&quot;201341983&quot;:0,&quot;335559739&quot;:0,&quot;335559740&quot;:480}"> </span><br />
<span data-contrast="auto"><sup>12</sup>Barnes v. Felix, 91 F.4th 393(5th Cir. 2024). The Supreme Court will hear oral arguments on January 22, 2025. </span><span data-ccp-props="{&quot;201341983&quot;:0,&quot;335559739&quot;:0,&quot;335559740&quot;:480}"> </span><br />
<span data-contrast="auto"><sup>13</sup></span><i><span data-contrast="auto">Barnes</span></i><i><span data-contrast="auto">, </span></i><span data-contrast="auto">91 F.4th at 395.</span><span data-ccp-props="{&quot;201341983&quot;:0,&quot;335559739&quot;:0,&quot;335559740&quot;:480}"> </span><br />
<span data-contrast="auto"><sup>14</sup>Scott v. Harris, 550 U.S. 372 (2007).</span><span data-ccp-props="{&quot;201341983&quot;:0,&quot;335559739&quot;:0,&quot;335559740&quot;:480}"> </span><br />
<span data-contrast="auto"><sup>15</sup>Hodge v. Engleman, 90 F.4th 840 (5th Cir. 2024).</span><span data-ccp-props="{&quot;201341983&quot;:0,&quot;335559739&quot;:0,&quot;335559740&quot;:480}"> </span><br />
<span data-contrast="auto"><sup>16</sup></span><i><span data-contrast="auto">Hodge</span></i><span data-contrast="auto">,</span> <span data-contrast="auto">90 F.4th at 846.</span><span data-ccp-props="{&quot;201341983&quot;:0,&quot;335559739&quot;:0,&quot;335559740&quot;:480}"> </span><br />
<span data-contrast="auto"><sup>17</sup>Johnson v. City of Atlanta, 107 F.4th 1292 (11th Cir. 2024).</span><span data-ccp-props="{&quot;201341983&quot;:0,&quot;335559739&quot;:0,&quot;335559740&quot;:480}"> </span><br />
<span data-contrast="auto"><sup>18</sup></span><i><span data-contrast="auto">Johnson</span></i><span data-contrast="auto">, 107 F.4th at 1296.</span><span data-ccp-props="{&quot;201341983&quot;:0,&quot;335559739&quot;:0,&quot;335559740&quot;:480}"> </span><br />
<span data-contrast="auto"><sup>19</sup>Spiller v. Harris County, 113 F.4th 573, 580 (5th Cir. 2024) Willett, J., concurring.</span><span data-ccp-props="{&quot;201341983&quot;:0,&quot;335559739&quot;:0,&quot;335559740&quot;:480}"> </span><br />
<span data-contrast="auto"><sup>20</sup>Supreme Court of the United States, “</span><a href="https://www.supremecourt.gov/about/faq_general.aspx"><span data-contrast="none">About the Court: Frequently Asked Questions—General information</span></a><span data-contrast="auto">.”</span><span data-ccp-props="{&quot;201341983&quot;:0,&quot;335559739&quot;:0,&quot;335559740&quot;:480}"> </span></p>
<hr />
<p>Please cite as</p>
<p style="padding-left: 40px;">Jerome Spencer, “What Hath the Court Wrought?: A Review of the U.S. Supreme Court’s 2024 Decisions,” Chief’s Counsel, <em>Police Chief</em> 91, no. 12 (December 2024): 14–16.</p>
<p>The post <a href="https://www.policechiefmagazine.org/what_hath_the_court_wrought/">Chief’s Counsel: What Hath the Court Wrought? </a> appeared first on <a href="https://www.policechiefmagazine.org">Police Chief Magazine</a>.</p>
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		<title>Chief’s Counsel: Officers’ Duty to Intervene</title>
		<link>https://www.policechiefmagazine.org/chiefs-counsel-officers-duty-intervene/</link>
					<comments>https://www.policechiefmagazine.org/chiefs-counsel-officers-duty-intervene/#respond</comments>
		
		<dc:creator><![CDATA[David Teodosio]]></dc:creator>
		<pubDate>Fri, 01 Nov 2024 12:00:38 +0000</pubDate>
				<category><![CDATA[Chief's Counsel]]></category>
		<category><![CDATA[Columns]]></category>
		<category><![CDATA[Crime & Violence]]></category>
		<category><![CDATA[interaction]]></category>
		<category><![CDATA[intervention]]></category>
		<category><![CDATA[law enforcement]]></category>
		<category><![CDATA[use of force]]></category>
		<guid isPermaLink="false">https://www.policechiefmagazine.org/?p=86875</guid>

					<description><![CDATA[<p class="Departments_Department-paragraph ParaOverride-3">A review of federal court decisions during 2023 confirms that the same principles enunciated in the leading case on the subject, <span class="CharOverride-68">Byrd v. Brishke</span>, which was decided over 50 years ago, are still in place.<span class="CharOverride-95"><sup>2</sup></span> In that case, the plaintiff couldn’t identify which Chicago, Illinois, officers were the ones he contended beat and swore at him and which ones were bystanders. He alleged that all the defendant officers were liable <span class="CharOverride-68">either</span> for assaulting him <span class="CharOverride-68">or</span> for failing to intervene and protect him from the officers who committed the assault. On appeal, the court found that § 1983 allows for “liability… both for misfeasance and for nonfeasance.”</p>
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<p>&#160;</p>
<p>The post <a href="https://www.policechiefmagazine.org/chiefs-counsel-officers-duty-intervene/">Chief’s Counsel: Officers’ Duty to Intervene</a> appeared first on <a href="https://www.policechiefmagazine.org">Police Chief Magazine</a>.</p>
]]></description>
										<content:encoded><![CDATA[<figure id="attachment_86876" aria-describedby="caption-attachment-86876" style="width: 536px" class="wp-caption alignright"><img loading="lazy" decoding="async" class="wp-image-86876 " src="https://www.policechiefmagazine.org/wp-content/uploads/GettyImages-623637662-scaled.jpg" alt="" width="536" height="357" srcset="https://www.policechiefmagazine.org/wp-content/uploads/GettyImages-623637662-scaled.jpg 2560w, https://www.policechiefmagazine.org/wp-content/uploads/GettyImages-623637662-300x200.jpg 300w, https://www.policechiefmagazine.org/wp-content/uploads/GettyImages-623637662-1024x683.jpg 1024w, https://www.policechiefmagazine.org/wp-content/uploads/GettyImages-623637662-768x512.jpg 768w, https://www.policechiefmagazine.org/wp-content/uploads/GettyImages-623637662-1536x1024.jpg 1536w, https://www.policechiefmagazine.org/wp-content/uploads/GettyImages-623637662-2048x1365.jpg 2048w, https://www.policechiefmagazine.org/wp-content/uploads/GettyImages-623637662-272x182.jpg 272w" sizes="auto, (max-width: 536px) 100vw, 536px" /><figcaption id="caption-attachment-86876" class="wp-caption-text">Photo by Grace Beahm-Pool/Getty Images</figcaption></figure>
<p class="Departments_Department-First-Paragraph"><span style="color: #0071b9;"><strong><span class="CharOverride-93">In the United States, the rule has been clear for decades: police and correctional officers have an affirmative duty to intervene to protect the constitutional rights of citizens from infringement by other law enforcement officers in their presence.</span><span class="CharOverride-94"><sup>1</sup></span></strong></span></p>
<p class="Departments_Department-paragraph ParaOverride-3">A review of federal court decisions during 2023 confirms that the same principles enunciated in the leading case on the subject, <em><span class="CharOverride-68">Byrd v. Brishke</span></em>, which was decided over 50 years ago, are still in place.<span class="CharOverride-95"><sup>2</sup></span> In that case, the plaintiff couldn’t identify which Chicago, Illinois, officers were the ones he contended beat and swore at him and which ones were bystanders. He alleged that all the defendant officers were liable <em><span class="CharOverride-68">either</span> </em>for assaulting him <em><span class="CharOverride-68">or</span> </em>for failing to intervene and protect him from the officers who committed the assault. On appeal, the court found that § 1983 allows for “liability… both for misfeasance and for nonfeasance.”</p>
<p class="Departments_Department-paragraph ParaOverride-3">Excessive force claims under § 1983 must link to a specific constitutional right, such as the Fourth Amendment’s prohibition of unreasonable seizure, the Eighth Amendment’s prohibition of cruel and unusual punishment, or the Fourteenth Amendment’s due process prohibition of force that amounts to punishment.<span class="CharOverride-95"><sup>3</sup></span> The vast majority of cases against individual officers for failing to intervene are brought in federal court under 42 U.S.C. § 1983 and the Eighth Amendment and involve alleged use of excessive force situations.<span class="CharOverride-95"><sup>4</sup></span></p>
<blockquote><p><span style="color: #0071b9;">Negligence is not sufficient to establish an officer’s liability for failure to intervene.</span></p></blockquote>
<p class="Departments_Department-paragraph ParaOverride-3">While such cases generally involve using force against a person in custody, some courts appear to be open to considering other forms of constitutional violations. These include claims of extracting a false confession, as well as malicious prosecution, procedural due process rights violations, and failure to intervene.<span class="CharOverride-95"><sup>5</sup></span> Based on the small number of such reported cases, it appears that officers in many parts of the United States may lack a clearly defined duty to intervene outside of the excessive force context.</p>
<p class="Departments_Department-paragraph ParaOverride-3">One largely unclarified area is what form of intervention is required. For example, is physically restraining the offending officer required? Or perhaps intervention entails placing oneself between the offending officer and the victim? Or is a verbal word of caution sufficient? Again, because so few cases have involved anything but use of excessive force, it is difficult to identify a rule of thumb that all courts are likely to adopt.</p>
<h2 class="Departments_Department-Subhead-All-cap"><span style="color: #0071b9;">Definition of Duty to Intervene</span></h2>
<p class="Departments_Department-paragraph ParaOverride-3">There are slight differences in wording but generally not in meaning among federal courts and state statutes when defining the duty to intervene under § 1983. If a police officer, whether supervisory or not, fails or refuses to intervene when a constitutional violation takes place in their presence, the officer is directly liable under 42 U.S.C. § 1983, as well as for violating laws in some states. This liability, however, arises only when the officer is in a position to intervene and fails to do so. Some courts add that another element is that a reasonable person in the officer’s position would know that the victim’s constitutional rights were being violated.<span class="CharOverride-95"><sup>6</sup></span></p>
<blockquote><p><span style="color: #0071b9;">The vast majority of courts have simply stated that officers were liable for failing to intervene when they had an opportunity to do so.</span></p></blockquote>
<p class="Departments_Department-paragraph ParaOverride-3">Some courts have pointed out that liability failure-to-intervene is also not clearly established in the context of a coerced confession and/or malicious prosecution. Negligence is not sufficient to establish an officer’s liability for failure to intervene.<span class="CharOverride-95"><sup>7</sup></span> In a case from New Mexico, the court also dismissed Officer Damian Lujan as a defendant in the case, primarily because he was a police service aide, and did not qualify as a “law enforcement officer” who would have had knowledge of constitutional rights and issues sufficient to attribute to him a duty to intervene.<span class="CharOverride-95"><sup>8</sup></span></p>
<h2 class="Departments_Department-Subhead-All-cap"><span style="color: #0071b9;">Qualified Immunity</span></h2>
<p class="Departments_Department-paragraph ParaOverride-3">With the widespread notoriety of the legislative and court decisions enshrining the duty to intervene, at least in excessive use-of-force cases, the likelihood of a grant of qualified immunity on the basis that the law was not “clearly established” seems low.</p>
<h2 class="Departments_Department-Subhead-All-cap"><span style="color: #0071b9;">Circuit Court Decisions in Other Than Excessive Force Cases</span></h2>
<p class="Departments_Department-paragraph ParaOverride-3">Not all circuit courts appear to have weighed in on the duty to intervene in other than an excessive use-of-force situation. In some cases, this appears to stem from the U.S. Supreme Court’s admonition that, unless there is widespread agreement on a legal principle, lower courts should not treat it as “clearly established” for the purpose of denying qualified immunity.</p>
<h2 class="Departments_Department-Subhead-All-cap"><span style="color: #0071b9;">What Intervention Is Required?</span></h2>
<p class="Departments_Department-paragraph ParaOverride-3">While some departments’ policies require both verbal and physical intervention, most court cases do not address precisely what is needed to avoid liability, since they generally involve situations where no intervention was attempted. Very few cases have stated specifically that both verbal and, if necessary, physical intervention were required.<span class="CharOverride-95"><sup>9</sup></span> Rather, the vast majority of courts have simply stated that officers were liable for failing to intervene when they had an opportunity to do so.<span class="CharOverride-95"><sup>10</sup></span> One exception was where the court found that an officer should have told other officers to stop throwing rocks at a cornered perpetrator or possibly have stepped between the officers and the individual.</p>
<p class="Departments_Department-paragraph ParaOverride-3">Following the death of George Floyd, the Minneapolis, Minnesota, Police Department updated its policies to provide in part that “any sworn employee who observes another employee use any prohibited force, or inappropriate or unreasonable force… must attempt to safely intervene by <em><span class="CharOverride-68">verbal and physical means</span></em>.”[emphasis added]<span class="CharOverride-95"><sup>11</sup></span></p>
<p class="Departments_Department-paragraph ParaOverride-3">The prosecutors handling the federal criminal litigation arising from George Floyd’s death seem to have concluded that verbal intervention is enough, at least for purposes of criminal liability. They decided not to charge one of the officers present at the scene who asked, as Officer Derek Chauvin knelt on Floyd’s neck, “Should we roll him on his side?”</p>
<h2 class="Departments_Department-Subhead-All-cap"><span style="color: #0071b9;">Opportunity to Intervene</span></h2>
<p class="Departments_Department-paragraph ParaOverride-3">In order to find liability on a failure-to-intervene claim, “there must have been a realistic opportunity to intervene to prevent the harm from occurring.”<span class="CharOverride-95"><sup>12</sup></span></p>
<p class="Departments_Department-paragraph ParaOverride-3">Whether an officer had sufficient time to intercede or was capable of preventing the harm being caused by another officer is an issue of fact for the jury unless, considering all the evidence, a reasonable jury could not possibly conclude otherwise. For instance, in <em><span class="CharOverride-68">Mascuzzio v. City of New York</span></em>, the court ruled that “no reasonable jury could conclude that there was enough time to intervene, so the claim must fail. Until the officer’s fist landed on the plaintiff’s temple, no other officer could have known whether the force of the hit would be excessive or whether the punching officer intended to grab the plaintiff instead of striking him. Even assuming the velocity of the officer’s punch was visibly unconstitutional, no officer could have reacted rapidly enough to prevent the injury.”</p>
<p class="Departments_Department-paragraph ParaOverride-3">The following are some recent examples where a court determined that an officer was not in a position or did not have an opportunity to intervene:</p>
<ul>
<li class="Departments_Department-Bullet"><em><span class="CharOverride-68">T</span><span class="CharOverride-68">ing v. United States</span></em>, 927 F.2d 1504 (9th Cir. 1991): When another officer suddenly and unexpectedly shoots a suspect.</li>
<li class="Departments_Department-Bullet"><em>E<span class="CharOverride-68">nsley v. Soper</span></em>, 142 F.3d 1402 (11th Cir. 1998): When the officer is handling other important duties, such as arresting another person or attending to an injury.</li>
<li class="Departments_Department-Bullet"><em>D<span class="CharOverride-68">utton v. Reynolds</span></em>, 2014 WL 4540161 (M.D. Fla., Sept. 11, 2014) (unpublished): Where the officer in question “was performing other duties which deserved his immediate attention, attending to the seriously injured victim of the crash.”</li>
<li class="Departments_Department-Bullet"><em>F<span class="CharOverride-68">ranklin v. Rogers</span></em>, 2013 WL 796558 (N.D. Ind., Mar. 4, 2013) (unpublished): Where officers were attending to other duties, such as video recording the incident.</li>
<li class="Departments_Department-Bullet"><em>C<span class="CharOverride-68">ampbell v. City of Yonkers</span></em>, 2023 U.S. Dist. LEXIS 131985: Where the shooting took place in a matter of seconds and no officer warned he was going to shoot before opening fire.</li>
<li class="Departments_Department-Bullet"><em>M<span class="CharOverride-68">errill v. Fell</span></em>, 2023 U.S. App. LEXIS 33862: Where there was no realistic chance to intervene since simply pointing the laser at the person’s back did not necessarily put Officer 1 on notice that Officer 2 intended to fire as he did.</li>
</ul>
<p class="Departments_Department-paragraph ParaOverride-3">Exactly what type of duty is sufficiently important to exempt an officer from the obligation to intervene is likely a fact-specific question.</p>
<h2 class="Departments_Department-Subhead-All-cap"><span style="color: #0071b9;">Recommendations</span></h2>
<p class="Departments_Department-paragraph ParaOverride-3">Chiefs should check with their legal advisers to determine whether court decisions or laws in their state extend the duty to intervene beyond excessive force cases. Any department polices should remind officers of such duties and, even if not legally required, may impose a duty to intervene in other cases such as false arrest, illegal searches, and other constitutional rights violations.</p>
<p class="Departments_Department-paragraph ParaOverride-3">Training is essential so that all officers are aware of their duties. Moreover, a commitment should be made to ensure that the culture of the department is in keeping with officers’ obligations to intervene to prevent all forms of deprivation of constitutional rights. <span style="font-family: Webdings;">d</span></p>
<aside class="pullout pullout--wide alignleft"></p>
<p><img loading="lazy" decoding="async" class="alignleft wp-image-86879 size-thumbnail" src="https://www.policechiefmagazine.org/wp-content/uploads/Jack-Collins-e1730131581989-150x150.png" alt="" width="150" height="150" srcset="https://www.policechiefmagazine.org/wp-content/uploads/Jack-Collins-e1730131581989-150x150.png 150w, https://www.policechiefmagazine.org/wp-content/uploads/Jack-Collins-e1730131581989-300x300.png 300w, https://www.policechiefmagazine.org/wp-content/uploads/Jack-Collins-e1730131581989.png 703w" sizes="auto, (max-width: 150px) 100vw, 150px" /></p>
<p><strong>Attorney Jack Collins</strong> is a former assistant district attorney and has served as special labor counsel and town counsel for various towns in Massachusetts. He also served as general counsel for the Massachusetts Chiefs of Police Association and its research and training affiliate, the Municipal Police Institute, for over 40 years.</aside>
<p class="Departments_Department-paragraph ParaOverride-3">
<p class="Departments_Notes-head"><strong>Notes:</strong></p>
<p class="Departments_Notes"><span class="CharOverride-95"><sup>1</sup></span>Cornell v. Vill. of Clayton, 2023 U.S. Dist. LEXIS 162919, quoting Martinez v. City of N.Y., 564 F. Supp. 3d 88, 106 (E.D.N.Y. 2021), quoting Anderson v. Branen, 17 F. 3d 552, 557 (2d Cir. 1994).</p>
<p class="Departments_Notes"><span class="CharOverride-95"><sup>2</sup></span>Byrd v. Brishke, 466 F.2d 6 (7th Cir. 1972).</p>
<p class="Departments_Notes"><span class="CharOverride-95"><sup>3</sup></span>See Graham v. Connor, 490 U.S. 386, 394 109 S. Ct. 1865, 104 L.Ed.2d 443 (1989); U.S. v. Walsh, 194 F.3d 37, 48-50 (2d Cir. 1999).</p>
<p class="Departments_Notes"><span class="CharOverride-95"><sup>4</sup></span>Corbin v. Prummell, 655 F. Supp. 3d 1143 (2023).</p>
<p class="Departments_Notes"><span class="CharOverride-95"><sup>5</sup></span>Peterson v. Heymes, 931 F.3d 546 (6th Cir. 2019).</p>
<p class="Departments_Notes"><span class="CharOverride-95"><sup>6</sup></span>Feliciano v. Town of E. Hartford, 2023 U.S. Dist LEXIS 129860 (2d Cir. D Ct.), citing Buari v. City of New York, 530 F. Supp. 3d 356, 392 (S.D.N.Y. 2021) quoting Jean-Laurent v. Wilkinson, 540 F. Supp. 2d 501, 512 (S.D.N.Y. 2008) (citing O’Neill v. Krzeminski, 839 F.2d 9, 11 (2d Cir. 1988).</p>
<p class="Departments_Notes"><span class="CharOverride-95"><sup>7</sup></span>Rascon v. Hardiman, 803 F. Supp. 269, 276-277 (7th Cir. 1986).</p>
<p class="Departments_Notes"><span class="CharOverride-95"><sup>8</sup></span>Mathias v. Redhouse, 2010 U.S. Dist. LEXIS 165122</p>
<p class="Departments_Notes"><span class="CharOverride-95"><sup>9</sup></span>Gonzalez v. Waterbury Police Dept., 199 F. Supp.3d 616 (D. Conn. 2016).</p>
<p class="Departments_Notes"><span class="CharOverride-95"><sup>10</sup></span>For example, Hernandez v. Hodges, 2023 U.S. Dist. LEXIS 144798 (9th Cir. N.D. Cal.); Feliciano v. Town of E. Hartford, 2023 U.S. Dist. LEXIS (2nd Cir. CT); Poulin v. Bush, 650 F. Supp. 3d 1280 (11th Cir. 2023).</p>
<p class="Departments_Notes"><span class="CharOverride-95"><sup>11</sup></span>Minneapolis Police Department, Policy 5-300: Use of Force, <span class="CharOverride-68">The Minneapolis Police Department Policy and Procedure Manual</span> (February 8, 2024): 7.</p>
<p class="Departments_Notes"><span class="CharOverride-95"><sup>12</sup></span>Mascuzzio v. City of New York, 2015 U.S. Dist. LEXIS 196416 quoting Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994). See also, Rock v. Cummings, 2023 U.S. Dist. LEXIS 114442, citing Cunningham v. Gates, 229 F.3rd 1271, 1289 (9th Cir. 2000).</p>
<hr />
<p>Please cite as</p>
<p style="padding-left: 40px;">John Collins, “Officers’ Duty to Intervene,” Chief’s Counsel, <em>Police Chief</em> 91, no. 11 (November 2024): 18–19.</p>
<p>The post <a href="https://www.policechiefmagazine.org/chiefs-counsel-officers-duty-intervene/">Chief’s Counsel: Officers’ Duty to Intervene</a> appeared first on <a href="https://www.policechiefmagazine.org">Police Chief Magazine</a>.</p>
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		<title>Chief’s Counsel: Safe and Secure U.S. Elections</title>
		<link>https://www.policechiefmagazine.org/chiefs-counsel-safe-and-secure-u-s-elections/</link>
					<comments>https://www.policechiefmagazine.org/chiefs-counsel-safe-and-secure-u-s-elections/#respond</comments>
		
		<dc:creator><![CDATA[David Teodosio]]></dc:creator>
		<pubDate>Tue, 01 Oct 2024 12:00:00 +0000</pubDate>
				<category><![CDATA[Chief's Counsel]]></category>
		<category><![CDATA[Columns]]></category>
		<category><![CDATA[Leadership]]></category>
		<category><![CDATA[elections]]></category>
		<category><![CDATA[leadership]]></category>
		<category><![CDATA[security]]></category>
		<guid isPermaLink="false">https://www.policechiefmagazine.org/?p=80213</guid>

					<description><![CDATA[<p class="Departments_Department-First-Paragraph"><strong><span class="CharOverride-54">The 2024 U.S. General Election will be held on </span><span class="CharOverride-54">November 5</span><span class="CharOverride-54"> across all 50 U.S. states. It is impossible to drive down a street, enter a shop, or go for a neighborhood walk without seeing campaign signs advocating for and against various candidates and issues.</span></strong></p>
<p class="Departments_Department-paragraph ParaOverride-26">As election day approaches, it would be wise to heed the advice from the September <span class="CharOverride-6">Police Chief</span> Chief’s Counsel column when encountering political campaign events, protesters, and counter protesters.</p>
<p class="Departments_Department-paragraph ParaOverride-26">Much like our freedoms of assembly and free speech, the right to vote is a bedrock principle in the United States. Although more nuanced than this recitation, the 15th Amendment granted the right to vote to African American men in 1870; the 19th Amendment, ratified in 1920, gave women the right to vote. The 26th Amendment, ratified in 1971, set the voting age at 18. The civil rights acts over the years enshrined many protections for citizens’ right to vote. There are federal laws relating to expat voting and deployed military member voting, as well as accessibility for persons who are elderly or have disabilities, among many other protections.</p>
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<p>&#160;</p>
<p>The post <a href="https://www.policechiefmagazine.org/chiefs-counsel-safe-and-secure-u-s-elections/">Chief’s Counsel: Safe and Secure U.S. Elections</a> appeared first on <a href="https://www.policechiefmagazine.org">Police Chief Magazine</a>.</p>
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										<content:encoded><![CDATA[<figure id="attachment_80221" aria-describedby="caption-attachment-80221" style="width: 700px" class="wp-caption aligncenter"><img loading="lazy" decoding="async" class="wp-image-80221" src="https://www.policechiefmagazine.org/wp-content/uploads/GettyImages-2052731956-1024x683.jpg" alt="" width="700" height="467" srcset="https://www.policechiefmagazine.org/wp-content/uploads/GettyImages-2052731956-1024x683.jpg 1024w, https://www.policechiefmagazine.org/wp-content/uploads/GettyImages-2052731956-300x200.jpg 300w, https://www.policechiefmagazine.org/wp-content/uploads/GettyImages-2052731956-768x512.jpg 768w, https://www.policechiefmagazine.org/wp-content/uploads/GettyImages-2052731956-1536x1024.jpg 1536w, https://www.policechiefmagazine.org/wp-content/uploads/GettyImages-2052731956-2048x1365.jpg 2048w, https://www.policechiefmagazine.org/wp-content/uploads/GettyImages-2052731956-272x182.jpg 272w" sizes="auto, (max-width: 700px) 100vw, 700px" /><figcaption id="caption-attachment-80221" class="wp-caption-text">CHARLOTTE, NORTH CAROLINA &#8211; MARCH 5: Voters arrive and check in on Super Tuesday at Mt. Moriah Primitive Baptist Church, Precinct 11 Mecklenburg County, on March 5, 2024 in Charlotte, North Carolina. 15 States and one U.S. Territory hold their primary elections on Super Tuesday, awarding more delegates than any other day in the presidential nominating calendar. (Photo by Grant Baldwin/Getty Images)</figcaption></figure>
<p class="Departments_Department-First-Paragraph"><span style="color: #0071b9;"><strong><span class="CharOverride-54">The 2024 U.S. General Election will be held on </span><span class="CharOverride-54">November 5</span><span class="CharOverride-54"> across all 50 U.S. states. It is impossible to drive down a street, enter a shop, or go for a neighborhood walk without seeing campaign signs advocating for and against various candidates and issues.</span></strong></span></p>
<p class="Departments_Department-paragraph ParaOverride-26">As election day approaches, it would be wise to heed the advice from the September <span class="CharOverride-6">Police Chief</span> Chief’s Counsel column when encountering political campaign events, protesters, and counter protesters.</p>
<p class="Departments_Department-paragraph ParaOverride-26">Much like our freedoms of assembly and free speech, the right to vote is a bedrock principle in the United States. Although more nuanced than this recitation, the 15th Amendment granted the right to vote to African American men in 1870; the 19th Amendment, ratified in 1920, gave women the right to vote. The 26th Amendment, ratified in 1971, set the voting age at 18. The civil rights acts over the years enshrined many protections for citizens’ right to vote. There are federal laws relating to expat voting and deployed military member voting, as well as accessibility for persons who are elderly or have disabilities, among many other protections.</p>
<p class="Departments_Department-paragraph ParaOverride-26">Article I, Section 4, Clause 1, of the U.S. Constitution sets forth the most basic framework for the U.S. national elections:</p>
<p class="Inline-Quote-Block-Quote"><em>The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing [sic] Senators.</em><span class="CharOverride-77"><sup>1</sup></span></p>
<p class="Departments_Department-paragraph ParaOverride-26">While the clause regarding the “Places of chusing Senators” was effectively nullified by the Seven-teenth Amendment, the balance remains. While federal law reigns supreme over the general election, the states have wide latitude to administer those elections. Each state either has a codified election act or statutes that collectively guide the police’s responses to and obligations during elections. On November 5, 2024, it will be these state laws governing sworn personnel and their responses to issues at polling places.</p>
<blockquote><p><strong><span style="color: #0071b9;">&#8220;[Officers’] political affiliation is to the Constitution and state and local laws&#8221;</span></strong></p></blockquote>
<p class="Departments_Department-paragraph ParaOverride-26">Regardless of the jurisdiction, there are some generally applicable issues relating to elections that are worth adding to an agency’s administrative repertoire with advice of local counsel:</p>
<p class="Departments_Department-paragraph ParaOverride-26"><span style="color: #0071b9;"><strong><span class="CharOverride-78">O</span></strong><span class="CharOverride-78"><strong>fficially, officers have no political position</strong>.</span> </span>No, officers do not surrender all First Amendment rights when they put their uniform on, and not all political speech in the workplace is forbidden. However, there are some restrictions while acting in their official capacity. Beyond relevant state laws, the Hatch Act may well apply to police personnel if the organization accepts federal loans or grants. If so, the agency’s personnel may not use their official authority or position to influence the results of an election (among other restrictions).<span class="CharOverride-77"><sup>2</sup></span> Many states have their own versions of the Hatch Act, as well. This topic warrants its own column, but for general election purposes, it suffices to say that while on duty and/or in uniform on election day, the safest bet is for sworn personnel to consider themselves to be without political affiliation. If officers are responding to a polling location in their official capacity, their political affiliation is to the Constitution and state and local laws.</p>
<p class="Departments_Department-paragraph ParaOverride-26"><span style="color: #0071b9;"><strong><span class="CharOverride-78">P</span></strong></span><span class="CharOverride-78"><span style="color: #0071b9;"><strong>oll Watchers vs. Poll Workers</strong></span>.</span> While this may seem like a semantics issue, it is not. While both are governed by local laws, their roles are quite different. Poll watchers, or poll observers or challengers, depending on the jurisdiction’s terminology, are persons who may be present and observe large portions of the election (privacy rights still apply). They are typically hired by or volunteering for a political party, international observer organizations, exit polling organizations, academic institutions, or even various government entities, among other organizations.<span class="CharOverride-77"><sup>3</sup></span> Poll watchers may “monitor” the election at a polling location, and in some jurisdictions, they may even challenge a ballot or alert officials to anomalies, but they cannot interfere.<span class="CharOverride-77"><sup>4</sup></span> Be sure to know the state’s restrictions on poll watchers. Poll workers (sometimes called election judges or poll officers), however, are, as aptly described by the National Conference of State Legislatures, “the nearly 1 million friends and neighbors who serve temporarily during elections.”<span class="CharOverride-77"><sup>5</sup></span> Sworn personnel should be familiar with the rights, responsibilities, and restrictions governing poll watchers and poll workers in their jurisdiction to effectively and efficiently act should questions arise.</p>
<p class="Departments_Department-paragraph ParaOverride-26"><strong><span class="CharOverride-78" style="color: #0071b9;">E</span></strong><span class="CharOverride-78"><strong><span style="color: #0071b9;">lectioneering</span></strong>.</span> Electioneering is essentially political campaign activity. According to the National Conference of State Legislatures, every state restricts political activities (electioneering) near polling places during voting hours.<span class="CharOverride-77"><sup>6</sup></span> These restrictions vary from state to state, but generally prohibit campaigning, whether it be signs or literature or T-shirts and stickers or attempting to influence voters verbally, within certain statutory distances from the polling place.<span class="CharOverride-77"><sup>7</sup></span> Check with local counsel and the state statutes for specifically applicable rules. Police officers may be called to a polling place to address an allegation of prohibited electioneering. They should know (1) the statutory distances required, and (2) what constitutes electioneering in their jurisdiction.</p>
<p class="Departments_Department-paragraph ParaOverride-26"><span style="color: #0071b9;"><strong><span class="CharOverride-78">A</span></strong></span><span class="CharOverride-78"><span style="color: #0071b9;"><strong>rresting a Registered Voter</strong></span>. </span>In a slim majority of states, voters have some manner of immunity from arrest while traveling to and from the polls. For ex-ample, in Nebraska and Indiana, except in instances of treason, felony, or breach of the peace, registered voters are immune from arrest during attendance at an election and while going to and from a polling site.<span class="CharOverride-77"><sup>8</sup></span> Officers should be familiar with their state’s laws regarding such immunity, if any, and, have a plan for what to do with the drunk driver they pick up who was on their way to the polls.</p>
<p class="Departments_Department-paragraph ParaOverride-26"><span style="color: #0071b9;"><strong><span class="CharOverride-78">F</span></strong></span><span class="CharOverride-78"><span style="color: #0071b9;"><strong>irearms at a Polling Place</strong></span>.</span> There is no generally applicable rule for this issue. A quick survey of state laws via Lexis reveals that only some states expressly restrict firearms at polling places. Some states just recently enacted legislation, including Vermont and New Mexico, with new legislation that became effective in May 2024 that generally bans firearms at a polling place.<span class="CharOverride-77"><sup>9</sup></span> Some have restrictions for concealed firearms but are silent as to open carry (Nebraska, Missouri, and Mississippi, for example).<span class="CharOverride-77"><sup>10</sup></span> Some states restrict open carry and permit licensed concealed carry (Washington and New Mexico, for example).<span class="CharOverride-77"><sup>11</sup></span> Several states prohibit both open and concealed carry of firearms (New York, New Jersey, Maryland, Texas, California, and Virginia, among others).<span class="CharOverride-77"><sup>12</sup></span> Many states have no readily apparent explicit regulations regarding firearms at polling places. Officers should be familiar with the specific state laws that govern firearms at polling places and familiarize themselves with “adjacent” laws that may not prohibit firearms, but do prohibit voter intimidation, for example. While a firearm may be legal at a polling place in a specific jurisdiction, it certainly will be illegal to use it to threaten other voters.</p>
<p class="Departments_Department-paragraph ParaOverride-26">While there are a multitude of election-related laws officers should be briefed on before November 5, 2024, requesting a briefing from the agency’s in-house counsel or the local prosecutor on these particular issues should be at the top of the list. Election-related laws have become increasingly more important in the last few election cycles, and with calls across the political spectrum to ramp up political activity leading up to and on election day, local police will be the frontline response to democracy in action. <span style="font-family: Webdings;">d</span></p>
<p>&nbsp;</p>
<aside class="pullout pullout--wide alignleft"></p>
<p><img loading="lazy" decoding="async" class="alignleft wp-image-80227 size-thumbnail" src="https://www.policechiefmagazine.org/wp-content/uploads/Hutter-150x150.jpg" alt="" width="150" height="150" /></p>
<p><strong>Nicole R. Hutter, JD</strong>, is the Papillion, Nebraska, city attorney, prosecutor, and police legal advisor. She instructs legal courses for the Sarpy Douglas Law Enforcement Academy and is an IACP Legal Officers Section member. Previously an agency legal counsel for the Nebraska State Patrol and a county prosecutor, she has dedicated her career to law enforcement.</aside>
<p>&nbsp;</p>
<p class="Departments_Notes-head">Notes:</p>
<p class="Departments_Notes"><span class="CharOverride-77"><sup>1</sup></span>U.S. Const., art. I, § 4, cl.1.</p>
<p class="Departments_Notes"><span class="CharOverride-77"><sup>2</sup></span>5 U.S.C. § 7323.</p>
<p class="Departments_Notes"><span class="CharOverride-77"><sup>3</sup></span>United States Election Assistance Commission (EAC), “Poll Watchers,” August 12, 2024.</p>
<p class="Departments_Notes"><span class="CharOverride-77"><sup>4</sup></span>EAC, “Poll Watchers.”</p>
<p class="Departments_Notes"><span class="CharOverride-77"><sup>5</sup></span>Wendy Underhill, “The Roles of Poll Workers vs. Poll Watchers,” Elections Defined, video series, National Conference of State Legislatures (NCSL), June 20, 2024.</p>
<p class="Departments_Notes"><span class="CharOverride-77"><sup>6</sup></span>NCSL, “Electioneering Prohibitions Near Polling Places,” updated December 1, 2023.</p>
<p class="Departments_Notes"><span class="CharOverride-77"><sup>7</sup></span>NCSL, “Electioneering Prohibitions Near Polling Places.”</p>
<p class="Departments_Notes"><span class="CharOverride-77"><sup>8</sup></span>Neb. Rev. Stat. § 32-923; IN Code § 3-5-4-4 (2019).</p>
<p class="Departments_Notes"><span class="CharOverride-77"><sup>9</sup></span>17 V.S.A. § 2510; N.M. Stat. Ann. § 1-20-24.</p>
<p class="Departments_Notes"><span class="CharOverride-77"><sup>10</sup>Neb. Rev. Stat. § 69-2441; R.S.Mo. § 571.107; Miss. Code Ann. § 45-9-101.</span></p>
<p class="Departments_Notes"><span class="CharOverride-77"><sup>11</sup>RCW 9.41.284; N.M. Stat. Ann. § 1-20-24.</span></p>
<p class="Departments_Notes"><span class="CharOverride-77"><sup>12</sup>NY CLS Penal § 265.01-e; N.J. Stat. § 2C:58-4.6; Md. Criminal Law Code Ann. § 4-111; Tex. Penal Code § 46.03; Cal. Elec. Code § 18544; Va. Code Ann. § 24.2-604.</span></p>
<p>&nbsp;</p>
<hr />
<p>Please cite as</p>
<p style="padding-left: 40px;">Nicole R. Hutter, “Safe and Secure U.S. Elections: Subtitle,” <em>Police Chief</em> 91, no. 10 (October 2024): 18–19.</p>
<p>The post <a href="https://www.policechiefmagazine.org/chiefs-counsel-safe-and-secure-u-s-elections/">Chief’s Counsel: Safe and Secure U.S. Elections</a> appeared first on <a href="https://www.policechiefmagazine.org">Police Chief Magazine</a>.</p>
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		<title>Chief&#8217;s Counsel: Order in Chaos</title>
		<link>https://www.policechiefmagazine.org/chiefs-counsel-order-in-chaos/</link>
					<comments>https://www.policechiefmagazine.org/chiefs-counsel-order-in-chaos/#respond</comments>
		
		<dc:creator><![CDATA[David Teodosio]]></dc:creator>
		<pubDate>Sun, 01 Sep 2024 12:00:32 +0000</pubDate>
				<category><![CDATA[Chief's Counsel]]></category>
		<category><![CDATA[Columns]]></category>
		<category><![CDATA[challenges]]></category>
		<category><![CDATA[de-escalation training]]></category>
		<category><![CDATA[First Amendment]]></category>
		<category><![CDATA[public events]]></category>
		<guid isPermaLink="false">https://www.policechiefmagazine.org/?p=79096</guid>

					<description><![CDATA[<p>Molotov cocktails exploding, bricks smashing into windshields, and the storming of barricades—these chaotic scenes highlight the challenges faced by police personnel during public order events.</p>
<p>While U.S. citizens hold the constitutional right to peaceably assemble, such violent acts contradict the principles of the First Amendment. Traditionally, U.S. police have operated within the clear boundaries set by the Fourth, Fifth, and Sixth Amendments. However, the evolving nature of public demonstrations requires modern practitioners to expand their expertise.</p>
<p>The post <a href="https://www.policechiefmagazine.org/chiefs-counsel-order-in-chaos/">Chief&#8217;s Counsel: Order in Chaos</a> appeared first on <a href="https://www.policechiefmagazine.org">Police Chief Magazine</a>.</p>
]]></description>
										<content:encoded><![CDATA[<figure id="attachment_79099" aria-describedby="caption-attachment-79099" style="width: 589px" class="wp-caption alignright"><img loading="lazy" decoding="async" class="wp-image-79099 " src="https://www.policechiefmagazine.org/wp-content/uploads/GettyImages-2166149064-300x200.jpg" alt="Demonstrators gather in Newcastle city centre for a Stand Up To Racism counter protest on August 10, 2024 in Newcastle upon Tyne, England. Anti-racism activists have arranged &quot;unity rallies&quot; in response to a series of anti-immigrant protests and riots that swept the country following a deadly knife attack last week in Southport, England." width="589" height="392" srcset="https://www.policechiefmagazine.org/wp-content/uploads/GettyImages-2166149064-300x200.jpg 300w, https://www.policechiefmagazine.org/wp-content/uploads/GettyImages-2166149064-1024x683.jpg 1024w, https://www.policechiefmagazine.org/wp-content/uploads/GettyImages-2166149064-768x512.jpg 768w, https://www.policechiefmagazine.org/wp-content/uploads/GettyImages-2166149064-1536x1024.jpg 1536w, https://www.policechiefmagazine.org/wp-content/uploads/GettyImages-2166149064-2048x1365.jpg 2048w, https://www.policechiefmagazine.org/wp-content/uploads/GettyImages-2166149064-272x182.jpg 272w" sizes="auto, (max-width: 589px) 100vw, 589px" /><figcaption id="caption-attachment-79099" class="wp-caption-text">Photo by Ian Forsyth/Getty Images</figcaption></figure>
<p><span style="color: #0071b9;"><strong>Molotov cocktails exploding, bricks smashing into windshields, and the storming of barricades—these chaotic scenes highlight the challenges faced by police personnel during public order events.</strong></span></p>
<p>While U.S. citizens hold the constitutional right to peaceably assemble, such violent acts contradict the principles of the First Amendment. Traditionally, U.S. police have operated within the clear boundaries set by the Fourth, Fifth, and Sixth Amendments. However, the evolving nature of public demonstrations requires modern practitioners to expand their expertise. To respond constitutionally and effectively, police officers must now navigate the complex landscape of the First Amendment, ensuring both public safety and the protection of individual rights.</p>
<p>While the right of peaceable assembly is “cognate to those of free speech and free press and is equally fundamental,” the freedoms of assembly and speech are not without limits.<sup>1</sup> For instance, incitement to imminent lawless action is unprotected. Incitement includes speech that is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”<sup>2</sup></p>
<p>Responding to public order events in a constitutional manner requires foresight and planning. The following reminders and suggestions can guide effective response strategies for police agencies:</p>
<p><strong>Reasonable time, place, and manner (TPM) restrictions are a police department’s friend, provided they are utilized in an impartial and content-neutral manner.</strong> These restrictions could include imposing limits on noise; capping numbers in certain forums; barring early-morning or late-evening demonstrations; or restricting the size or placement of signs.<sup>3</sup></p>
<p><strong>Viewpoint discrimination is a constitutional “no no.”</strong><sup>4</sup> If speech is otherwise protected and TPM restrictions are adhered to, the government cannot shut down a speaker merely because of their views on a particular topic.</p>
<p><strong>If you don’t want to see it, don’t look.</strong> Unless a person is truly a captive audience, people are required to avert their eyes and ears when exposed to unwanted speech (as opposed to reacting).<sup>5</sup></p>
<p><strong>Consider if police presence is actually warranted</strong>. If there is no immediate public safety issue, immediate enforcement is likely not the best avenue.<sup>6</sup> Consider whether police resources need to be deployed at all.</p>
<blockquote><p><strong><span style="color: #0071b9;">&#8220;The freedoms of assembly and speech are not without limits&#8230;. incitement to imminent lawless action is unprotected.&#8221;</span></strong></p></blockquote>
<p><strong>Sometimes the easiest way is the wrong way.</strong> If a peaceful speaker is confronted by a hostile crowd, the speaker may not be silenced as an easy alternative to containing the lawless behavior of others. If the officer must tactically disengage due to risk of injury, then they should do so. Officers should consider cordoning off the speaker, attempting to disperse the entire crowd if necessary, and any appropriate action to maintain law and order—short of removing the speaker. However, as a last resort, and if all other bona fide attempts at less restrictive means do not quell the violent response, the speaker could be removed for safety.<sup>7</sup></p>
<p><strong>Hate speech may be hated, but it is protected.</strong><sup>8</sup> When coupled with other actions or motivations, however, hate speech can rise to the level of a hate crime. Review local statutes regarding hate crimes to determine what elements are necessary for speech or actions to be considered criminal.</p>
<p><strong>Most assemblies are peaceful and lawful.</strong> However, some may become unlawful, and in rare cases, transform into riots. Be sure to understand the elements necessary to designate a gathering as an unlawful assembly and a riot.</p>
<p><strong>Planning is essential.</strong> Ensure there is a plan in place to declare an unlawful assembly, including what steps must be taken to disperse a crowd (e.g., clear and loud instructions given multiple times, clear pathways and points of egress provided to leave the area, audio and video recording of the dispersal orders, no “kettling”).<sup>9</sup></p>
<p><strong>Crowd management policies need regular updates.</strong> Policies should address preparation and planning, management and organization, general crowd response, response to spontaneous civil disturbances, use of force and approved weapons, crowd dispersal, mass arrests, deactivation, and training.<sup>10</sup> There should be clear guidelines to address each phase of the event, including the pre-event stage, operational stage, and post-event stage.<sup>11</sup></p>
<p>Phone a friend. Consider using mutual aid resources in responding to crowd control events.<sup>12</sup></p>
<p><strong>“We don’t rise to the level of our expectations; we fall to the level of our training.”</strong><sup>13</sup> Provide training to officers who may be deployed at public order events so that they have the tools they need to succeed.<sup>14</sup></p>
<p><strong>Use the Force&#8230;pursuant to policy</strong>. For uses of force at public order events</p>
<ul>
<li>Officers should adhere to their use-of-force policies, including the filing of reports.<sup>15</sup></li>
<li>Rosters should be maintained of all officers assigned to an event.<sup>16</sup></li>
<li>Officers assigned to an event should be required to wear body-worn cameras.<sup>17</sup></li>
<li>Prompt reviews of use-of-force reports should be conducted to ensure compliance.<sup>18</sup></li>
<li>The distribution and deployment of all less-lethal munitions should be tracked.</li>
<li>Only authorized munitions may be utilized and pursuant only to policy and by trained personnel.<sup>19</sup></li>
<li>Nonlethal force, such as pepper spray, may be an effective means to de-escalate potentially violent situations.<sup>20</sup></li>
<li>The force used should match the circumstance.<sup>21</sup></li>
</ul>
<p>A working knowledge of the First Amendment is not just a legal obligation for the police but a moral imperative that underpins the very fabric of U.S. democracy. By upholding citizens’ First Amendment rights, officers can navigate the complexities of public order events lawfully and ethically. As guardians of public order, it is their duty to strike a delicate balance between maintaining safety and protecting the rights of every citizen. With this commitment, the police can ensure that the spirit of the First Amendment thrives even amid the most challenging times.<span style="font-family: Webdings;">d</span></p>
<p>Notes:</p>
<p><sup>1</sup>De Jonge v. Oregon, 299 U.S. 353, 364 (1937).</p>
<p><sup>2</sup>Brandenburg v. Ohio, 395 U.S. 444, 447 (1969).</p>
<p><sup>3</sup>To meet constitutional muster, such restrictions must be: (1) content neutral; (2) narrowly tailored to serve a significant government interest; and (3) leave open ample alternative channels for communicating the speaker’s message. Snyder v. Phelps, 562 U.S. 443 (2011).</p>
<p><sup>4</sup>“If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Texas v. Johnson, 491 U.S. 397, 414 (1989).</p>
<p><sup>5</sup>Cohen v. California, 403 U.S. 15 (1971).</p>
<p><sup>6</sup>Snyder, 562 U.S. 443 (2011).</p>
<p><sup>7</sup>Bible Believers v. Wayne County, 805 F.3d 228 (6th Cir. 2015).</p>
<p><sup>8</sup>Matal v. Tam, 582 U.S. 218 (2017).</p>
<p><sup>9</sup>Nicholas E. Mitchell, <em>The Police Response to the 2020 George Floyd Protests in Denver, an Independent Review</em> (Denver Office of the Independent Monitor, 2020); Baude v. Leyshock, 23 F.4th 1065 (8th Cir. 2022).</p>
<p><sup>10</sup>See the IACP Model Policy on Crowd Management (updated April 2019).</p>
<p><sup>11</sup>Global Justice Information Sharing Initiative, <em>Recommendations for First Amendment-Protected Events for State and Local Law Enforcement Agencies</em> (December 2011).</p>
<p><sup>12</sup>Mitchell, <em>The Police Response to the 2020 George Floyd Protests in Denver</em>.</p>
<p><sup>13</sup>Archilochus, circa 650 BCE.</p>
<p><sup>14</sup>Mitchell, <em>The Police Response to the 2020 George Floyd Protests in Denver</em>.</p>
<p><sup>15</sup>Mitchell, <em>The Police Response to the 2020 George Floyd Protests in Denver</em>.</p>
<p><sup>16</sup>Mitchell, <em>The Police Response to the 2020 George Floyd Protests in Denver</em>.</p>
<p><sup>17</sup>Mitchell, <em>The Police Response to the 2020 George Floyd Protests in Denver</em>.</p>
<p><sup>18</sup>Mitchell, <em>The Police Response to the 2020 George Floyd Protests in Denver</em>.</p>
<p><sup>19</sup>Mitchell, <em>The Police Response to the 2020 George Floyd Protests in Denver</em>; see also United States v. City of Portland, 3:12-cv-02265-SI, Requested Police Review Board Written Critique (March 23, 2021).</p>
<p><sup>20</sup>Laney v. City of St. Louis, 56 F.4th 1153 (8th Cir. 2023).</p>
<p><sup>21</sup>Williamson v. City of National City, 23 F.4th 1146 (9th Cir. 2022).</p>
<hr />
<p>Please cite as:</p>
<p style="padding-left: 40px;">Eric R. Astupenas, “Order in Chaos,” Chief’s Counsel, <em>Police Chief</em> 91, no. 9 (September 2024): 12–13.</p>
<p>The post <a href="https://www.policechiefmagazine.org/chiefs-counsel-order-in-chaos/">Chief&#8217;s Counsel: Order in Chaos</a> appeared first on <a href="https://www.policechiefmagazine.org">Police Chief Magazine</a>.</p>
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		<title>Chief&#8217;s Counsel: EEOC Pregnant Workers Fairness Act Regulations</title>
		<link>https://www.policechiefmagazine.org/chiefs-counsel-eeoc-pregnant-workers-fairness-act-regulations/</link>
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		<dc:creator><![CDATA[Camryn Nethken]]></dc:creator>
		<pubDate>Thu, 01 Aug 2024 12:00:04 +0000</pubDate>
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					<description><![CDATA[<p>The U.S. Equal Employment Opportunity Commission’s (EEOC) Final Regulations interpreting the Pregnancy Workers Fairness Act (PWFA) took effect on June 18, 2024.<sup>1</sup></p>
<p>In addition to actual pregnancy, the final regulations cover a wide range of conditions related to pregnancy, including fertility and infertility treatments, carpal tunnel, menstruation, postpartum depression, lactation (including both breastfeeding and pumping in the workplace), changes in hormone levels, abortion, miscarriage, stillbirth, and preeclampsia. Just about any physical or mental condition with any relationship to pregnancy is considered a pregnancy-related condition.</p>
<p>The post <a href="https://www.policechiefmagazine.org/chiefs-counsel-eeoc-pregnant-workers-fairness-act-regulations/">Chief&#8217;s Counsel: EEOC Pregnant Workers Fairness Act Regulations</a> appeared first on <a href="https://www.policechiefmagazine.org">Police Chief Magazine</a>.</p>
]]></description>
										<content:encoded><![CDATA[<p><img loading="lazy" decoding="async" class="wp-image-78740 alignright" src="https://www.policechiefmagazine.org/wp-content/uploads/GettyImages-1906760202-300x200.jpg" alt="" width="392" height="261" srcset="https://www.policechiefmagazine.org/wp-content/uploads/GettyImages-1906760202-300x200.jpg 300w, https://www.policechiefmagazine.org/wp-content/uploads/GettyImages-1906760202-1024x683.jpg 1024w, https://www.policechiefmagazine.org/wp-content/uploads/GettyImages-1906760202-768x512.jpg 768w, https://www.policechiefmagazine.org/wp-content/uploads/GettyImages-1906760202-1536x1024.jpg 1536w, https://www.policechiefmagazine.org/wp-content/uploads/GettyImages-1906760202-2048x1365.jpg 2048w" sizes="auto, (max-width: 392px) 100vw, 392px" /><strong><span style="color: #0071b9;">The U.S. Equal Employment Opportunity Commission’s (EEOC) Final Regulations interpreting the Pregnancy Workers Fairness Act (PWFA) took effect on June 18, 2024.<sup>1</sup></span></strong></p>
<p>In addition to actual pregnancy, the final regulations cover a wide range of conditions related to pregnancy, including fertility and infertility treatments, carpal tunnel, menstruation, postpartum depression, lactation (including both breastfeeding and pumping in the workplace), changes in hormone levels, abortion, miscarriage, stillbirth, and preeclampsia. Just about any physical or mental condition with <em>any</em> relationship to pregnancy is considered a pregnancy-related condition. This also includes preexisting medical conditions that may be exacerbated by pregnancy or childbirth. Unlike under the Americans with Disabilities Act (ADA), the pregnancy-related condition can be short-term and relatively mild, including morning sickness in the first trimester or swollen ankles, for example.</p>
<p>Public safety departments that have adopted policies or have been complying with requests under various other pregnancy-related laws will have to undertake a review of the PWFA’s requirements and, generally after consultation with knowledgeable labor counsel, adopt or modify policies to comply with the new law’s unique requirements.</p>
<p>Leave can be a reasonable accommodation that an employee requests under the PWFA. Much the same as under the ADA, an employer does not have to provide a reasonable accommodation under the PWFA if it causes the employer an undue hardship. Experience has shown that most governmental employers have not relied on this exception as a reason for denying an accommodation. It will certainly be even less likely that they will be able to do so under the PWFA.</p>
<h2><span style="color: #0071b9;">Expanded Definition of “Qualified”</span></h2>
<p>Under the ADA, an employee or applicant who can perform the “essential functions” of the job with or without a reasonable accommodation is qualified. However, under the PWFA, a “qualified individual” includes one who can perform the essential functions in the near future. In the case of a pregnant employee, the presumption is the employee can perform the essential functions “in the near future,” i.e., within 40 weeks of suspension of the job function. For conditions other than current pregnancy, the regulations do not impose a 40-week limitation. However, a request to indefinitely suspend an essential function is not “in the near future” so as to entitle an employee to an accommodation. Many employees or applicants seeking accommodations will meet this part of the definition because they can perform the job or apply for the position with a reasonable accommodation.</p>
<p>This means that an employee who is temporarily unable to perform one or more essential functions of their job, and who, therefore, needs light duty or a change in their work assignments, may be able to get such a change as a reasonable accommodation.</p>
<h2><span style="color: #0071b9;">Accommodations for “Known Limitations”</span></h2>
<p>The PWFA requires reasonable accommodation for a qualified employee or applicant with a “known limitation” related to “a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions.”</p>
<p>A limitation can be an impediment or problem that is minor or modest and can be episodic (such as migraines or morning sickness). It can be that the employee or applicant needs to take actions for their health or the health of their pregnancy—such as not being around certain chemicals; not working in the heat; or limiting or avoiding certain physical tasks, for example, lifting, bending, walking, standing, or running. It can be that the employee needs to attend health care appointments for the pregnancy, childbirth, or related medical condition.</p>
<h2><span style="color: #0071b9;">Interactive Process</span></h2>
<p>The employer and the employee should engage in the “interactive process,” which means roughly the same thing that it means under ADA. No formal steps need to be followed, and sometimes this interactive discussion will be very brief.</p>
<p>The employer may not require an employee to accept an accommodation that was not arrived at through the interactive process. It is unlawful for the employer to do any of the following without having engaged in the interactive process:</p>
<ul>
<li>require an employee to take a leave of absence as a reasonable accommodation</li>
<li>require an employee to accept light duty as a reasonable accommodation</li>
<li>require an employee to accept any accommodation</li>
<li>choose the employer’s preference of accommodation, even if that accommodation is effective</li>
<li>fail to accommodate an employee if an effective accommodation was available that was not an undue hardship</li>
</ul>
<p>It is unlawful for an employer to</p>
<ul>
<li>require an employee to accept a reasonable accommodation if she doesn’t want one.</li>
<li>have a blanket rule that applies to pregnant employees—for example, banning business travel during the third trimester.</li>
<li>discriminate based on the possibility of maternity leave, or the possibility that there will be a need to accommodate pregnancy-related conditions in the future. (The ADA has a similar provision.)</li>
</ul>
<h2><span style="color: #0071b9;">Requesting Documentation</span></h2>
<p>Unless the pregnancy is obvious and the employee self-confirms the pregnancy, the employer can request documentation confirming that the employee is pregnant. In most cases, a discussion with the applicant or employee may be sufficient and supporting documentation will not be needed. Chiefs also should keep in mind that it may be difficult for a worker to obtain information from a health care professional early in pregnancy. Employers must keep medical information confidential.</p>
<p>The employer can also request documentation confirming that some other medical condition is pregnancy related. Along the same lines, an employer can request documentation that describes the adjustments to the employee’s job duties or work environment that are needed, including an estimate of the length of time that the adjustments may have to be in place. If the condition is episodic (for example, migraine headaches), the employer may not request documentation related to each episode, but only for confirmation of the condition and that it is pregnancy related. The employer has the right to request that this documentation come from a health care provider, although that individual does not have to be the employee’s treating provider. Employers are also not allowed to require the employee to go to a health care provider of the employer’s choice.</p>
<p>An employer may seek medical information from an employee’s health care provider, but under limited circumstances. The employer may not request documentation if it grants the same type of accommodation to non-pregnant employees without requiring documentation. The documentation itself must be “reasonable.” Reasonable is the bare minimum required to confirm the pregnancy or that the condition is related to pregnancy and to describe the accommodations needed and approximate duration.</p>
<p>If the employer is allowed to get documentation from a health care provider, the employer is limited to documentation that simply confirms the physical or mental condition is related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions. Pregnancy, childbirth, or related medical conditions do not have to be the sole, the original, or a substantial cause of the physical or mental condition. The documentation should describe the adjustment or change at work that is needed due to the limitation (for example, no lifting more than 20 pounds for 3 months, the approximate number and frequency of health care appointments, the estimated time off for recovery, additional safety gear, work functions that should be suspended and for how long, or a later start time).</p>
<p>Employers may not require the use of forms under the PWFA, and certainly not the ones used for handling ADA accommodation requests. Making a form optional is lawful, but chiefs should be sure to have separate pregnancy accommodation forms.</p>
<h2><span style="color: #0071b9;">Unlawful Acts under the PWFA</span></h2>
<p>Refusing or failing to accommodate pregnancy or a related condition unless doing so would be an undue hardship violates the PWFA, as do any unnecessary delays in providing pregnancy-related accommodations.</p>
<p>Denying a reasonable accommodation based on lack of supporting documentation is also a violation unless the employer actually asked for reasonable documentation and afforded the individual sufficient time to produce it.</p>
<p>An employer may not require the employee to accept any reasonable accommodation that was not arrived at through the interactive process. Nor may an employer deny equal employment opportunity based on the employee’s need for a reasonable accommodation.</p>
<p>It is a violation of the PWFA to require the employee to take a leave of absence—whether paid or unpaid—if a “working” reasonable accommodation would not be an undue hardship. However, if the employee asks to be placed on a leave of absence, then placing the employee on leave will not violate the law.</p>
<p>As with most antidiscrimination laws, it is a PWFA violation to take adverse action against an employee based on a request for or use of a reasonable accommodation.</p>
<h2><span style="color: #0071b9;">PWFA Intersection with ADA</span></h2>
<p>The “medical inquiry” and “confidentiality” provisions of the ADA apply to all information related to pregnancy and pregnancy-related accommodation requests. In other words, it is a violation of the ADA for an employer to ask about an employee’s medical history, to ask the employee to complete a medical questionnaire, or to ask the employee to provide a medical release to her health care provider for her complete medical record. It also violates the ADA for an employer to ask about preexisting conditions and past requests for reasonable accommodation. The EEOC’s position is that these questions in the context of a request for a pregnancy-related accommodation are not “job related and consistent with business necessity.”</p>
<p>Any information obtained in connection with a request for a pregnancy-related accommodation must be kept confidential, disclosed only as authorized under the ADA, and maintained separately from the employee’s personnel file.</p>
<p>If an employee who needs a pregnancy-related accommodation also has a condition that qualifies as a disability under the ADA, the employer should first follow the law that makes it easier for the employee to get the accommodation. The same is true if a state pregnancy-accommodation law or another federal law also applies.</p>
<p>As with the ADA, employers are not required to furnish personal equipment to pregnant employees as a reasonable accommodation. But if the personal equipment is also job related, then the employer would have to provide it.</p>
<p>If the employer has a light-duty program for employees with on-the-job injuries, it generally has to make light duty available to the pregnant employee as a reasonable accommodation, even though pregnancy is not job-related. However, as already noted, an employer cannot require an employee to go on light duty unless it first goes through the interactive process with the employee.</p>
<h2><span style="color: #0071b9;">Recommendations</span></h2>
<p>Upon any request for accommodation under the PWFA, a chief (or their designee) should engage in the “interactive process” with the employee or applicant. Remember, workers do not need to use specific words to request an accommodation to begin the interactive process. The “interactive process” means simply that the employer and employee communicate, whether by talking or some other way, about the known limitation and the adjustment or change needed at work.</p>
<blockquote><p><span style="color: #0071b9;">If it does not cause an undue hardship to the department’s business, the employer generally has to provide a reasonable accommodation.</span></p></blockquote>
<p>Respond promptly to accommodation requests. If it does not cause an undue hardship to the department’s business, the employer generally has to provide a reasonable accommodation—either what the employee or applicant requests or another effective accommodation.</p>
<p>Train supervisors about the PWFA. First-level supervisors may be particularly likely to receive accommodation requests and should be trained about how to respond, including how to avoid retaliating against those who request or use a reasonable accommodation. For purposes of a retaliation claim, a request for accommodation is one form of “protected activity.” It’s not a defense that the employer’s adverse action did not actually deter the employee from engaging in protected activity.</p>
<p>Limitations may be minor and may be associated with an uncomplicated pregnancy and may require accommodations that are easy to make. Once the employee’s pregnancy-related condition ends, the employer does not have to continue providing the reasonable accommodation, even if the employee wants it.</p>
<aside class="pullout alignleft"><em>Note</em>: Litigation challenging the PWFA has been filed in various courts. As of publication, injunctions apply only to employers in Louisiana and Mississippi. Chiefs should check with labor counsel for updates that might apply in their state.</aside>
<p>A worker may need different accommodations as the pregnancy progresses, they recover from childbirth, or the related medical condition improves or gets worse.</p>
<p>For assistance identifying possible reasonable accommodations, consult the Job Accommodation Network (JAN) (<a href="https://askjan.org">https://askjan.org</a>). JAN is a free, expert, confidential service that helps workers and employers with reasonable accommodations.</p>
<p>Note:</p>
<p><sup>1</sup>U.S. Equal Employment Opportunity Commission, “What You Should Know About the Pregnant Worker’s Fairness Act.”</p>
<hr />
<p>Please cite as:</p>
<p style="padding-left: 40px;">John M. (Jack) Collins, “EEOC Pregnant Workers Fairness Act Regulations,” Chief&#8217;s Counsel, <em>Police Chief</em> 91, no. 8 (August 2024): 12–14.</p>
<p>The post <a href="https://www.policechiefmagazine.org/chiefs-counsel-eeoc-pregnant-workers-fairness-act-regulations/">Chief&#8217;s Counsel: EEOC Pregnant Workers Fairness Act Regulations</a> appeared first on <a href="https://www.policechiefmagazine.org">Police Chief Magazine</a>.</p>
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		<title>Chief&#8217;s Counsel: Protect and Serve</title>
		<link>https://www.policechiefmagazine.org/chiefs-counsel-protect-serve/</link>
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		<dc:creator><![CDATA[Camryn Nethken]]></dc:creator>
		<pubDate>Mon, 01 Jul 2024 12:00:06 +0000</pubDate>
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					<description><![CDATA[<p>The first duty of any civilized government is to protect the life and property of its people through its military and justice functions.<sup>1</sup></p>
<p>Policing’s first duty then is, and must be, to protect communities from domestic lawlessness and danger.<sup>2</sup> Otherwise the exclusive and orderly allocation of police powers to the government would be undermined.</p>
<p>The post <a href="https://www.policechiefmagazine.org/chiefs-counsel-protect-serve/">Chief&#8217;s Counsel: Protect and Serve</a> appeared first on <a href="https://www.policechiefmagazine.org">Police Chief Magazine</a>.</p>
]]></description>
										<content:encoded><![CDATA[<p><strong><span style="color: #0071b9;"><img loading="lazy" decoding="async" class=" wp-image-78274 alignleft" src="https://www.policechiefmagazine.org/wp-content/uploads/GettyImages-56498616-300x158.jpg" alt="" width="507" height="267" srcset="https://www.policechiefmagazine.org/wp-content/uploads/GettyImages-56498616-300x158.jpg 300w, https://www.policechiefmagazine.org/wp-content/uploads/GettyImages-56498616-1024x540.jpg 1024w, https://www.policechiefmagazine.org/wp-content/uploads/GettyImages-56498616-768x405.jpg 768w, https://www.policechiefmagazine.org/wp-content/uploads/GettyImages-56498616-1536x810.jpg 1536w, https://www.policechiefmagazine.org/wp-content/uploads/GettyImages-56498616-2048x1081.jpg 2048w" sizes="auto, (max-width: 507px) 100vw, 507px" />The first duty of any civilized government is to protect the life and property of its people through its military and justice functions.<sup>1</sup></span></strong></p>
<p>Policing’s first duty then is, and must be, to protect communities from domestic lawlessness and danger.<sup>2</sup> Otherwise the exclusive and orderly allocation of police powers to the government would be undermined. The rule of law and this first duty are thus inextricably intertwined.<sup>3</sup> Without policing executing its first duty, and doing so responsibly, the rule of law is weakened.<sup>4</sup> This duty is reflected in the law enforcement oaths taken across the world’s civil societies to the fundamental legal authority that establish their governance. The Declaration of Independence that initiated the formation of the United States of America began with this fundamental principle: “that to <em>secure these rights, Governments are instituted</em> among Men.” (excerpted, emphasis added)<sup>5</sup> The U.S. Constitution further lays out this principle in its Preamble as the very foundation of governance:</p>
<p style="padding-left: 40px;"><em>We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity</em>, do ordain and establish this Constitution for the United States of America. (emphasis added)<sup>6</sup></p>
<p>Law enforcement’s oath is thus more than adherence to the written law of and from this, or any, constitution but also to its principles—justice, domestic tranquility, and individual human rights and freedoms essential to the welfare of the nation—as these and other principles are the basis not only for a country’s founding documents but also for the evolving acts of its legislature and its judiciary’s interpretations of the written laws, which the police are held and sworn to uphold. As a constitution establishes power and responsibilities among its respective components of governance, each operates in fidelity to it as the ultimate will and instrument of the people. The executive, with its police powers, must “take care” that the laws enacted by the representatives of the people in the legislature be “faithfully executed.”<sup>7</sup> As the United States Court of Appeals for the District of Columbia Circuit has ruled, “absent a lack of funds or a claim of unconstitutionality that has not been rejected by final Court order, the Executive must abide by statutory mandates and prohibitions.”<sup>8</sup> Indeed, the executive may not decline to follow the law “simply because of policy objections.”<sup>9</sup> On the other side of that same coin, police powers must be executed “carefully”—in compliance with the law and most importantly—the Constitution and its Bill of Rights.<sup>10</sup></p>
<p>As the judiciary continually interprets and applies these laws, there is continually evolving case law defining and creating governance and compliance points necessitating modern “constitutional policing” (and other) programming to ensure each agency stays out in front of the law.<sup>11</sup> The U.S. Department of Justice (DOJ) Office of Community Oriented Policing Services (COPS Office) and the Police Executive Research Forum (PERF) addressed this necessity at a conference in Washington, DC, entitled Constitutional Policing as a Cornerstone of Community Policing, and the key issues identified by the experts involved warrant repeating:</p>
<ul>
<li>It is critical for law enforcement to integrate constitutional policing strategies into their operations to not only meet the current standards reflected in state and federal case law but also <strong>“anticipate future standards”</strong> and <strong>“other new developments the courts have yet to define.”</strong></li>
<li>Agencies need to consider constitutionality on a deeper level by developing policies and practices that <strong>“advance the broad constitutional goals</strong> of protecting everyone’s civil liberties and providing equal protection under the law.”</li>
<li>Law enforcement should <strong>“continually strive for high levels of legitimacy,”</strong> such as “ensuring that policing is conducted with the consent of the people.”<sup>12</sup></li>
</ul>
<p>An agency’s governance, risk, and compliance picture is in motion. The modern era of policing is defined by constantly and, at times, rapidly changing rules at the local, state, and federal levels coupled with often disruptively changing community perceptions of police legitimacy, creating modern operating environments where “deeply rooted practices and norms are being questioned, and many long-held tenets of public safety are being abandoned and reimagined.”<sup>13</sup> Many high-profile examples exist. In “The Rule of Law, Responsibly,” the June 2023 <em>Police Chief</em> Chief’s Counsel column, this author discussed how police are often assigned the nearly impossible task of addressing calls for service at the intersection of public safety and the homelessness crisis in the United States, which has invoked critical review from many layers of stakeholders and the application of the U.S. Constitution in a (at the time) novel and yet critically important way:</p>
<p style="padding-left: 40px;"><em>The DOJ argued that, in these types of cases, (where) an individual experiencing homelessness literally has nowhere else to go and enforcement of a life sustaining conduct misdemeanor against that person criminalizes them for being homeless. Further, adopting the reasoning of</em> Jones v. City of Los Angeles, <em>the DOJ stated that “it should be uncontroversial that punishing conduct that is a ‘universal and unavoidable consequence of being human’ <strong>violates the Eighth Amendment</strong>” to the U.S. Constitution by effectively criminalizing a person’s status as a homeless individual.</em> (emphasis added)<sup>14</sup></p>
<p>This discussion in “The Rule of Law, Responsibly,” is a good example of the duty to <em>serve</em> intersecting with the duty to <em>protect</em>. This intersection is critical to the police’s ability to stay out in front of evolving oversight and maintain the legitimacy of law enforcement institutions. Policing is not done in a vacuum; it must serve communities through the best policing practices available in relationship with the communities.<sup>15</sup> As this author further advocated in “Accelerating Change,” the September 2022 <em>Police Chief</em> Chief’s Counsel column:</p>
<p style="padding-left: 40px;"><em>Constitutional policing and legitimacy are related, but they are not the same thing. Constitutional policing is “necessary but not sufficient”; it is the “foundation of community policing.” Constitutional violations can be the most serious of all and invoke the most significant forms of accountability and reform, but even perfectly lawful policing may still fall short of what stakeholders expect. Legitimacy is the extent to which the community believes that government actions are “appropriate, proper, and just.” Police legitimacy, therefore, is inextricably intertwined with the quality of a justice system’s rules, the enforcement of those rules, and the compliance achieved in the community.</em><sup>16</sup></p>
<p>For agencies across the world, there are many sources of differing levels of oversight, authority, and guidance as to what is “appropriate, proper, and just.” For example, the United Nations (UN) plays a central role in promoting respect for human rights in policing practices worldwide through its normative framework, monitoring mechanisms, and capacity-building initiatives.<sup>17</sup> The UN Office on Drugs and Crime (UNODC) in Vienna, Austria, publishes the <em>Compendium of UN Standards and Norms in Crime Prevention and Criminal Justice</em>.<sup>18</sup> Part Four addresses “good governance” of law enforcement agencies and a model Code of Conduct for Law Enforcement Officials, adopted by resolution of the UN General Assembly.<sup>19</sup> Article 1 states:</p>
<p style="padding-left: 40px;"><em>Law enforcement officials shall at all times fulfill the duty imposed upon them by law, by</em> serving <em>the community and by</em> protecting <em>all persons against illegal acts, consistent with the </em>high degree of responsibility<em> required by their profession.</em> (emphasis added)<sup>20</sup></p>
<p>The official commentary adopted along with Article 1 states that “this provision (the duty to protect) is intended to not only cover all violent, predatory and harmful acts, but <em>extends to the full range of prohibitions under penal statutes</em>.” (emphasis added)<sup>21</sup> Further, the police’s duty to serve should include providing “assistance to those members of the community who by reason of personal, economic, social or other emergencies” need help.<sup>22</sup> Later articles speak of the mandate to uphold the “human rights” and “human dignity” of all persons, as identified by national and international law, citing several international legal instruments.<sup>23</sup> Even police agencies that recognize how responsibly they protect and serve determines their legitimacy struggle with implementation. For example, one large U.S. agency, amid community demands for police reform after a series of high-profile incidents, commissioned an expert review panel to study the city’s police operations and the need for reform, which made several observations throughout the multiyear process:<sup>24</sup></p>
<p style="padding-left: 40px;"><em>There is broad recognition in the top levels of the Department that policies and practices that encourage community trust are necessary and that the need for police services and how they are provided is evolving. It is our observation that leadership’s vision and the implementation of policies they have promulgated to address legitimacy and trust are lagging and not reflected in most of the police encounters that were reviewed by the Panel. This appears to be an ongoing issue that National Initiative (for Building Community Trust and Justice) experts raised in 2018. The mismatch between the Department’s expressed values and the experience of many members of low-income communities and communities of color creates tension and mistrust that</em> interferes with the Department’s ability to achieve its mission. (emphasis added)<sup>25</sup></p>
<p>The panel noted that the department “is facing a series of challenges aligning its practices of policing with its policies, procedures, and expressed values,” but this is not uncommon as “law enforcement agencies across the country are facing a crisis regarding the use of force, accountability, and legitimacy in all of a jurisdiction’s communities.”<sup>26</sup> The National Initiative for Building Community Trust and Justice experts’ observations, noted that, at that time, the department’s</p>
<p style="padding-left: 40px;"><em>policy language does not provide a clear picture of what community trust-building activities the department is engaged in. The department provided examples of initiatives and units that were working toward this objective, but</em> policy-level descriptions related to specific unit activities, how officers are expected to build community relationships, trainings, or ongoing evaluations of public sentiment do not offer a clear picture of how the department is advancing this objective. (excerpted, emphasis added)<sup>27</sup></p>
<p>As the duty to protect and the duty to serve intersect, agencies must manage that intersection responsibly. The expert panel noted the dual mandate in discussing its own:</p>
<p style="padding-left: 40px;"><em>This review is intended to identify and offer remedies for policy or constitutional violations. We note, however, that it is only one piece of the puzzle. The City and</em> the Department will have to engage with the communities it serves to have hard conversations about what real public safety means and how (the City) can achieve it. (emphasis added)<sup>28</sup></p>
<p>In its final report, the expert panel appropriately noted that “public safety requires a partnership between law enforcement, members of the community, and other public institutions.”<sup>29</sup> Indeed, to protect the members of our communities, police agencies must serve them with the best policing practices available, in partnership with them. Thinking outside the box is not enough—agencies need to be continually deconstructing and constructing the box, so their operations meet and exceed the dual mandate of their duty, in order to stay ahead of the rapid evolution of their governance, risk, and compliance picture and advance their legitimacy.<span style="font-family: Webdings;">d</span></p>
<p>Notes:</p>
<p><sup>1</sup>Steven J. Heyman, “The First Duty of Government: Protection, Liberty and the Fourteenth Amendment,” <em>Duke Law Journal</em> 41, no. 507, citing remarks of Rep. Farnsworth 39th Cong., 2d Sess. (1867) (debating Reconstruction Act of 1867); Jennifer Nedelsky, <em>Private Property and the Limits of American Constitutionalism: The Madisonian Framework and Its Legacy</em> (Chicago, IL: University of Chicago Press, 1990).</p>
<p><sup>2</sup>Heyman, “The First Duty of Government.”; Nedelsky, <em>Private Property and the Limits of American Constitutionalism.</em></p>
<p><sup>3</sup>Joseph Polzak, “The Rule of Law, Responsibly,” Chief’s Counsel, <em>Police Chief</em> 90, no. 6 (June 2023): 12–17.</p>
<p><sup>4</sup>Polzak, “The Rule of Law, Responsibly.”</p>
<p><sup>5</sup>Declaration of Independence of the United States of America (U.S.), July 4, 1776.</p>
<p><sup>6</sup>U.S. Constitution, Preamble.</p>
<p><sup>7</sup>U.S. Constitution, Article II, Section 3.</p>
<p><sup>8</sup>In re Aiken County, 725 F.3d 255, 259 (D.C. Cir. 2013), citing U.S. Constitution Article II, Section 3.</p>
<p><sup>9</sup>In re Aiken County, 725 F.3d 255, 259 (D.C. Cir. 2013), citing U.S. Constitution Article II, Section 3.</p>
<p><sup>10</sup>Police Executive Research Forum (PERF), <em>Constitutional Policing as a Cornerstone of Community Policing: A Report by the Police Executive Forum</em> (Washington, DC: Office of Community Oriented Policing Services, 2015).</p>
<p><sup>11</sup>PERF, <em>Constitutional Policing as a Cornerstone of Community Policing.</em></p>
<p><sup>12</sup>Joseph Polzak, “Accelerating Change,” Chief’s Counsel, <em>Police Chief</em> 89, no. 9 (September 2022): 10-13, citing PERF, <em>Constitutional Policing as a Cornerstone of Community Policing.</em></p>
<p><sup>13</sup>Polzak, “Accelerating Change,” citing Virginia Gleason, “Create a Data Toolbox to Facilitate Meaningful Police Reform,” Chief’s Counsel, <em>Police Chief</em> 89, no. 1 (January 2022): 12–14.</p>
<p><sup>14</sup>Polzak, “The Rule of Law, Responsibly,” citing Statement of Interest of the United States at 6–9, Bell v. City of Boise, No. 1:09-cv-540 (D. Idaho Aug. 6, 2015) at 11, citing Jones v. City of Los Angeles, 444 F.3d 1118, at 1137 (9th Cir. 2006), vacated after settlement, 505 F.3d 1006 (9th Cir. 2007).</p>
<p><sup>15</sup>PERF, <em>Constitutional Policing as a Cornerstone of Community Policing.</em></p>
<p><sup>16</sup>Polzak, “Accelerating Change,” citing PERF, <em>Constitutional Policing as a Cornerstone of Community Policing</em>, 3–4.</p>
<p><sup>17</sup>United Nations website.</p>
<p><sup>18</sup>United Nations Office on Drugs and Crime (UNODC), <em>Compendium of United Nations Standards and Norms in Crime Prevention and Criminal Justice</em> (New York, NY: United Nations, 2016).</p>
<p><sup>19</sup>UNODC, “Code of Conduct for Law Enforcement Officials,” <em>Compendium of United Nations Standards and Norms in Crime Prevention and Criminal Justice</em>, Article 1, 281.</p>
<p><sup>20</sup>UNODC, “Code of Conduct for Law Enforcement Officials.”</p>
<p><sup>21</sup>UNODC, “Code of Conduct for Law Enforcement Officials,” Commentary (d).</p>
<p><sup>22</sup>UNODC, “Code of Conduct for Law Enforcement Officials,” Commentary (c).</p>
<p><sup>23</sup>See UNODC, “Code of Conduct for Law Enforcement Officials,” Article 2 and Commentary (a), noting “the human rights in question are identified and protected by national and international law. Among the relevant international instruments are the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the United Nations Declaration on the Elimination of All Forms of Racial Discrimination, the International Convention on the Elimination of All Forms of Racial Discrimination, the International Convention on the Suppression and Punishment of the Crime of Apartheid, the Convention on the Prevention and Punishment of the Crime of Genocide, the Standard Minimum Rules for the Treatment of Prisoners and the Vienna Convention on Consular Relations.”</p>
<p><sup>24</sup><em>Fort Worth Police Department Expert Review Panel Preliminary Observations and Recommendations</em>, July 31, 2020. The police expert review panel, co-chaired by Dr. Alex del Carmen and Dr. Theron Bowman, presented an interim report to the City Council in August 2020 and prepared a draft final report for city staff review and comment in January 2021. The panel presented its final report to city staff on June 20, 2022.</p>
<p><sup>25</sup><em>Fort Worth Police Department Expert Review Panel Preliminary Observations and Recommendations</em>, 3, 5. Fort Worth was chosen as one of six pilot sites for the Department of Justice’s National Initiative for Building Community Trust and Justice.</p>
<p><sup>26</sup>“Executive Summary,” <em>Fort Worth, Texas Police Department Expert Review Panel Final Report</em> (2022), 2.</p>
<p><sup>27</sup><em>Fort Worth Police Department Expert Review Panel Preliminary Observations and Recommendations</em>, 5, citing Center for Policing Equity, National Justice Database, Policy Review 6 (July 8, 2018).</p>
<p><sup>28</sup><em>Fort Worth Police Department Expert Review Panel Preliminary Observations and Recommendations</em>, 2.</p>
<p><sup>29</sup>“Executive Summary,” <em>Fort Worth, Texas Police Department Expert Review Panel Final Report</em>, 2.</p>
<hr />
<p>Please cite as:</p>
<p style="padding-left: 40px;">Joseph J. Polzak, “Protect and Serve,” Chief&#8217;s Counsel, Police Chief 91, no. 7 (July 2024): 12–15.</p>
<p>The post <a href="https://www.policechiefmagazine.org/chiefs-counsel-protect-serve/">Chief&#8217;s Counsel: Protect and Serve</a> appeared first on <a href="https://www.policechiefmagazine.org">Police Chief Magazine</a>.</p>
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		<title>Chief&#8217;s Counsel: Decision-Making for No-Knock Warrants</title>
		<link>https://www.policechiefmagazine.org/chiefs-counsel-decision-making-for-no-knock-warrants/</link>
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		<dc:creator><![CDATA[Camryn Nethken]]></dc:creator>
		<pubDate>Sat, 01 Jun 2024 12:00:36 +0000</pubDate>
				<category><![CDATA[Chief's Counsel]]></category>
		<category><![CDATA[Columns]]></category>
		<category><![CDATA[chief's counsel]]></category>
		<guid isPermaLink="false">https://www.policechiefmagazine.org/?p=77673</guid>

					<description><![CDATA[<p>In <em>Jimerson v. Lewis</em>, the United States Court of Appeals for the Fifth Circuit brought to the forefront the complexities involved in the decision-making processes of supervisory and command-level officials when leading the execution of high-stakes no-knock warrants, highlighting consequences when such decisions result in irreversible errors.<sup>1</sup></p>
<p>The post <a href="https://www.policechiefmagazine.org/chiefs-counsel-decision-making-for-no-knock-warrants/">Chief&#8217;s Counsel: Decision-Making for No-Knock Warrants</a> appeared first on <a href="https://www.policechiefmagazine.org">Police Chief Magazine</a>.</p>
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										<content:encoded><![CDATA[<p><img loading="lazy" decoding="async" class="wp-image-77919 alignleft" src="https://www.policechiefmagazine.org/wp-content/uploads/GettyImages-92173939-300x200.jpg" alt="" width="444" height="296" srcset="https://www.policechiefmagazine.org/wp-content/uploads/GettyImages-92173939-300x200.jpg 300w, https://www.policechiefmagazine.org/wp-content/uploads/GettyImages-92173939-1024x683.jpg 1024w, https://www.policechiefmagazine.org/wp-content/uploads/GettyImages-92173939-768x512.jpg 768w, https://www.policechiefmagazine.org/wp-content/uploads/GettyImages-92173939-1536x1024.jpg 1536w, https://www.policechiefmagazine.org/wp-content/uploads/GettyImages-92173939-2048x1365.jpg 2048w" sizes="auto, (max-width: 444px) 100vw, 444px" /><span style="color: #0071b9;"><strong>In <em>Jimerson v. Lewis</em>, the United States Court of Appeals for the Fifth Circuit brought to the forefront the complexities involved in the decision-making processes of supervisory and command-level officials when leading the execution of high-stakes no-knock warrants, highlighting consequences when such decisions result in irreversible errors.<sup>1</sup></strong></span></p>
<p>Central to this case was the ensuing aftermath of a misdirected no-knock raid on a civilian’s home, conducted under the authority of the Drug Enforcement Administration (DEA) with assistance from the Lancaster, Texas, Police Department (LPD) and Waxahachie, Texas, Police Department’s (WPD) SWAT team commander, Mike Lewis.</p>
<p>In March 2019, a DEA agent contacted the WPD requesting the assistance of the department’s SWAT team to execute a search warrant at a suspected methamphetamine stash house, located at 573 8th Street. To further an ongoing investigation by the DEA, the operation aimed to dismantle the suspected drug house by conducting a joint raid on the address. In preparation for the raid, WPD SWAT Commander Lewis requested intelligence about the target house to mitigate risks and ensure operational success. Specifically, the commander requested photos of the house and inquired about potential fortifications at the location, the presence of surveillance equipment, identifying information on the methamphetamine seller, prior history involving the LPD at the target address, and whether any exterior factors existed that indicated the possible presence of children. In response, the DEA provided photos depicting the front of the home and indicated that there was surveillance established at the location, that they saw no fortification or surveillance cameras at the property or any evidence of children, and that they had no description of the residents occupying the target house. Lewis entered these data into the (WPD) SWAT’s risk analysis worksheet, which assessed the operation as falling within the “optional SWAT deployment” range, leading Lewis to secure approval from the WPD chief to activate the SWAT team.</p>
<p>Preparations for the raid continued, as Lewis obtained additional information about the property’s details from the Dallas Central Appraisal District website, such as the house’s size, year built, and the presence of a large, extended backyard. He briefed his SWAT officers, planning for six members to enter the main house and three to approach the detached garage and backyard. Just before executing the no-knock warrant, Commander Lewis received real-time intelligence from surveillance officers on scene that “a truck pulling a white box trailer had pulled up in front of the target location.”2 Lewis confirmed the address from the warrant, and LPD Officer Beauchamp led the SWAT team to approach the house with the white trailer in-front, as officers gathered on the porch. However, Commander Lewis noticed that this house differed from the photos of the target house, realizing that the SWAT team was at 583 8th Street instead of the intended 573 8th Street. Lewis looked to the left and identified another house as the target. He based this conclusion on the parallels drawn between the photos of the target house and this house; citing the layout, the window sequence from left to right, and the driveway position. However, this identification proved incorrect; the actual address was 593 8th Street, two doors away from the intended target. This critical error resulted in the execution of the no-knock warrant at the civilian home of Karen Jimerson and James Parks, who lived there with their two young children.</p>
<p>The SWAT team mistakenly deployed a flashbang, broke windows, and breached the door, only to discover their error during the operation. After recognizing the mistake, the SWAT team moved to the correct address. Commander Lewis returned to Jimerson and Parks’ residence, coordinated emergency and repair services, and remained on-site to manage the aftermath of the misdirected raid.</p>
<p>This misidentification prompted Jimerson and Parks to file suit under 42 U.S.C. § 1983, alleging that the mistaken raid infringed upon their Fourth Amendment rights. As the lawsuit progressed through the courts, the question turned to the issue of qualified immunity for SWAT Team Commander Mike Lewis.</p>
<p>The district court denied Commander Lewis’s motion for summary judgment on the issue of qualified immunity, citing a genuine dispute of material facts regarding whether Commander Lewis made the necessary reasonable effort to identify the correct residence and whether his actions were inconsistent with a reasonable effort to ascertain and identify the place intended to be searched.<sup>2</sup> Following the district court’s denial of qualified immunity, Commander Lewis appealed, seeking review by the Fifth Circuit. The Fifth Circuit considered whether Commander Lewis’s conduct was objectively unreasonable in light of clearly established law.</p>
<p>The Fifth Circuit held that while Commander Lewis erred in executing the raid at an incorrect address, his actions did not violate clearly established law because the commander made significant efforts to identify the correct residence. The court’s opinion emphasized that “fair warning” is the cornerstone for this immunity analysis.<sup>3</sup> The Circuit considered the facts of this case in comparison to <em>Rogers v. Hooper</em> and <em>Hartsfield v. Lemacks</em>; the two nonprecedential cases relied upon by the district court.<sup>4</sup></p>
<p>The court relied on the extensive actions that Lewis undertook prior to executing the raid. The opinion cited several considerations that played a decisive role in the court’s decision, noting the commander’s review of the search warrant, his additional research on the target residence that included retrieval of property records and a criminal history search of the occupant living at the address, and his continued communications with the DEA agents. Additionally, the Circuit acknowledged that Lewis was provided with incorrect, real-time intelligence regarding the location of the white trailer and recognized his detailed observations noting the similarities between the external features of both homes. Commander Lewis’s decision to redirect the officers, despite his caution, led to the SWAT team raiding the wrong house.</p>
<p>The court concluded that Lewis’s diligence exhibited by his efforts in planning this raid indisputably exceeded that of officers in the two cases referenced by the district court. Because the plaintiffs failed to cite precedent sufficient to demonstrate that Commander Lewis’s conduct violated clearly established law, the Fifth Circuit reversed the district court’s denial of summary judgement to Commander Lewis and remanded the case for dismissal. <em>Jimerson v. Lewis</em> provides a crucial point of reflection for police chiefs and supervisory personnel, emphasizing the critical role of leadership in guiding and training their teams to successfully navigate the complexities inherent in all operations. This case demonstrates the importance of precision in operational planning and execution for police officials at every level. The repercussions of mistakes, such as those highlighted by this case, extend deeply, affecting the foundational trust and respect necessary for the police to operate effectively within communities.</p>
<p>Notes:</p>
<p><sup>1</sup>Jimerson v. Lewis, 92 F.4th 277 (5th Cir. 2024).</p>
<p><sup>2</sup>The Fifth Circuit’s opinion clarified that this intelligence information was inaccurate. Subsequent investigation confirmed that the white trailer was in front of 583 8th Street—not the target house, located at 573 8th Street</p>
<p><sup>3</sup>Maryland v. Garrison, 480 U.S. 79, 88 (1987).</p>
<p><sup>4</sup>“The central concern when evaluating the immunity question is whether the official has fair warning that his conduct violates a constitutional right.” Delaughter v. Woodall, 909 F.3d 130, 140 (5th Cir. 2018).</p>
<p>The post <a href="https://www.policechiefmagazine.org/chiefs-counsel-decision-making-for-no-knock-warrants/">Chief&#8217;s Counsel: Decision-Making for No-Knock Warrants</a> appeared first on <a href="https://www.policechiefmagazine.org">Police Chief Magazine</a>.</p>
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		<title>Chief&#8217;s Counsel: Disability-Related Inquiries and Medical Examinations by EAP Counselors</title>
		<link>https://www.policechiefmagazine.org/chiefs-counsel-disability-related-inquiries-medical-examinations-eap-counselors/</link>
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		<dc:creator><![CDATA[Camryn Nethken]]></dc:creator>
		<pubDate>Wed, 01 May 2024 12:00:11 +0000</pubDate>
				<category><![CDATA[Chief's Counsel]]></category>
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		<category><![CDATA[Americans with Disabilities Act (ADA)]]></category>
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		<category><![CDATA[EAP]]></category>
		<category><![CDATA[medical examination]]></category>
		<guid isPermaLink="false">https://www.policechiefmagazine.org/?p=77387</guid>

					<description><![CDATA[<p>The Americans with Disabilities Act (ADA) prohibits a covered U.S. employer (which includes police departments) from making disability-related inquiries or requiring medical examinations of job applicants and current employees unless the inquiry or examination is job related and consistent with business necessity.</p>
<p>The post <a href="https://www.policechiefmagazine.org/chiefs-counsel-disability-related-inquiries-medical-examinations-eap-counselors/">Chief&#8217;s Counsel: Disability-Related Inquiries and Medical Examinations by EAP Counselors</a> appeared first on <a href="https://www.policechiefmagazine.org">Police Chief Magazine</a>.</p>
]]></description>
										<content:encoded><![CDATA[<p><span style="color: #0071b9;"><strong>The Americans with Disabilities Act (ADA) prohibits a covered U.S. employer (which includes police departments) from making disability-related inquiries or requiring medical examinations of job applicants and current employees unless the inquiry or examination is job related and consistent with business necessity.</strong></span></p>
<p>Such inquiries cannot be made unless the employee’s ability to perform essential job functions is impaired or the employee poses a direct safety threat to themself or to others. Under the ADA, an employer may not be held liable for medical inquiries made by a third party where the inquiries are not made at the employer’s request. A chief may not have an Employee Assistance Program (EAP) counselor make inquiries on the employer’s behalf.<sup>1</sup> As with many other aspects of the law, e.g., entry and seizure of contraband without a warrant, chiefs may not do through a third person what they cannot lawfully do themselves.</p>
<p><img loading="lazy" decoding="async" class=" wp-image-77507 alignright" src="https://www.policechiefmagazine.org/wp-content/uploads/GettyImages-961107072-300x200.jpg" alt="" width="390" height="260" srcset="https://www.policechiefmagazine.org/wp-content/uploads/GettyImages-961107072-300x200.jpg 300w, https://www.policechiefmagazine.org/wp-content/uploads/GettyImages-961107072-1024x683.jpg 1024w, https://www.policechiefmagazine.org/wp-content/uploads/GettyImages-961107072-768x513.jpg 768w, https://www.policechiefmagazine.org/wp-content/uploads/GettyImages-961107072-1536x1025.jpg 1536w, https://www.policechiefmagazine.org/wp-content/uploads/GettyImages-961107072-2048x1367.jpg 2048w" sizes="auto, (max-width: 390px) 100vw, 390px" />Generally, an EAP is a confidential service designed to assist employees in coping with personal issues (e.g., substance abuse, anger, stress, marital difficulties, grief) that may interfere with their job performance. A common mistake some chiefs make is to request reports from an EAP counselor on an officer’s condition, often asking for any clinical diagnosis and even a fitness-for-duty evaluation. In most cases, an astute counselor will have explained to the chief in advance what confidentiality requires and what limits there are on what may be disclosed to an employer without an employee’s consent. Importantly, however, even though an EAP counselor may be precluded from <em>revealing</em> certain information to an employer, this does not mean that the counselor is precluded from asking about an employee’s medical or psychological condition. Moreover, it is often possible to require an employee to reveal such information as part of a mandated treatment plan. In such cases, refusal to cooperate with the counselor, including the failure to adhere to any follow-up requirements, may be grounds for discipline.<sup>2</sup></p>
<p>An EAP counselor may ask an employee seeking help for personal problems about any physical or mental condition(s) the person may have. Many employers contract with EAP counselors so that employees can voluntarily and confidentially seek professional counseling for personal or work-related problems without having to be concerned that their employment status will be affected because they sought help.<sup>3</sup> An employer is prohibited from making medical inquiries from an employee and disclosing an employee’s medical information, but if the employee voluntarily discloses her medical condition to her employer, the employer is not obligated to keep that information confidential.<sup>4</sup> The limits on what such a counselor may ask are discussed in the U.S. Equal Employment Opportunity Commission’s <em>Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees under the ADA</em> (DRI &amp; ME Guidance).<sup>5</sup> According to such “guidance,” an EAP counselor may ask employees about their medical condition(s) if the counselor: (1) does not act for or on behalf of the employer; (2) is obligated to shield any information the employee reveals from decision-makers; and (3) has no power to affect employment decisions.</p>
<h2><span style="color: #0071b9;">Voluntary Wellness Program</span></h2>
<p>An exception to the requirement that inquiries be job related and consistent with business necessity is when an employer (or someone on its behalf) makes disability-related inquiries or conducts medical examinations as part of its voluntary wellness program. A wellness program is <em>voluntary</em> as long as an employer neither requires participation nor penalizes employees who do not participate. In such cases, the ADA allows employers to make these inquiries as long as any medical records acquired as part of the wellness program are kept confidential and separate from personnel records.<sup>6</sup> These programs often include blood pressure screening, cholesterol testing, glaucoma testing, and cancer detection screening. Employees may be asked disability-related questions and may be given medical examinations pursuant to such voluntary wellness programs. For example, if a program simply promotes a healthier lifestyle, but does not ask any disability-related questions or require medical examinations (e.g., a smoking cessation program that is available to anyone who smokes and asks participants to disclose only how much they smoke), it is not subject to the ADA’s requirements concerning disability-related inquiries and medical examinations.</p>
<p>In a case where the plaintiff voluntarily disclosed to her supervisors that she had been diagnosed with depression and was taking medication, this information was not subject to protection.<sup>7</sup> That is because the plaintiff did not disclose this information in response to a medical inquiry from her employer; rather, she did so voluntarily.</p>
<h2><span style="color: #0071b9;">EAP Referrals and Medical Exams</span></h2>
<p>A referral to an EAP exam does not mean the employee is perceived to be disabled.<sup>8</sup> What constitutes a <em>medical examination</em> or <em>disability-related inquiry</em> sometimes “presents a close question because the ADA leaves these terms undefined.”<sup>9</sup> Presented with this ambiguity, the Sixth Circuit looked to the EEOC’s enforcement guidance, which defines <em>medical examination</em> and<em> disability-related inquiry</em> and offers examples, explaining “[w]e defer to these informal administrative interpretations ‘to the extent of [their] persuasive power,’ acknowledging that our previous cases recognize their ‘very persuasive authority.’”<sup>10</sup></p>
<p><em>Note</em>: An EAP referral cannot be viewed as an adverse employment action nor is it sufficient evidence of severe or pervasive retaliatory harassment by a supervisor. The Sixth Circuit has made clear that to show an adverse employment action, a plaintiff must identify a “materially adverse change” in the terms of their employment situation, and the conduct must be “extreme” to constitute severe or pervasive retaliatory harassment.<sup>11</sup></p>
<p>The relevant EEOC guidance defines “medical examination” as “a procedure or test that seeks information about an individual’s physical or mental impairments or health” and identifies several factors bearing on this determination:</p>
<p style="padding-left: 40px;">(1) whether the test is administered by a health care professional;</p>
<p style="padding-left: 40px;">(2) whether the test is interpreted by a health care professional;</p>
<p style="padding-left: 40px;">(3) whether the test is designed to reveal an impairment or physical or mental health;</p>
<p style="padding-left: 40px;">(4) whether the test is invasive;</p>
<p style="padding-left: 40px;">(5) whether the test measures an employee’s performance of a task or measures their physiological responses to performing the task;</p>
<p style="padding-left: 40px;">(6) whether the test is normally given in a medical setting; and,</p>
<p style="padding-left: 40px;">(7) whether medical equipment is used.<sup>12</sup></p>
<p>“In many cases, a combination of factors will be relevant in determining whether a test or procedure is a medical examination,” but, in others, “one factor may be enough.”<sup>13</sup></p>
<p>Some courts have held that EAP counseling cannot be classified as a medical examination or inquiry.<sup>14</sup> The Seventh Circuit has never firmly decided that an individual without disabilities is entitled to bring a claim under the ADA.<sup>15</sup></p>
<p>The DRI &amp; ME Guidance lists a number of examples, noting that “psychological tests are designed to identify a mental disorder or impairment.” The DRI &amp; ME Guidance also lists examples of procedures and tests that are generally not considered medical examinations, including “psychological tests that measure personality traits such as honesty, preferences, and habits.”<sup>16</sup></p>
<blockquote><p><span style="color: #0071b9;">No one should be referred for such services simply to create a negative employment file and interfere with the individual’s chances of promotion.</span></p></blockquote>
<p>Further, as the Sixth Circuit explained, establishing that an employer mandated a medical examination is not the end of the inquiry, because the statute clearly permits medical examinations, but only in certain limited circumstances. The focus is on the nature of job relatedness and what constitutes a business necessity. The interpretative guidelines to the ADA explain that the statute was intended to prevent against “medical tests and inquiries that do not serve a legitimate business purpose.”<sup>17</sup> Chiefs should be prepared to document the reasons for any referral and should never refer an employee to an EAP as retaliation for exercising rights under any law or to create a “paper trail” as a smoke-screen aimed at diminishing the individual’s chances for advancement.</p>
<p>As the court noted in <em>Henson v. City of Atlanta</em>, “Employers must be able to use reasonable means to ascertain the cause of troubling behavior without exposing themselves to ADA claims.”<sup>18</sup></p>
<p>The following are examples of cases in which a referral to an EAP was justified.</p>
<ul>
<li style="list-style-type: none;">
<ul>
<li>An employee had “conflictive work relationships” that were documented by emails and other records showing that coworkers informed superiors that the employee’s behavior upset and intimidated them, and the employee acknowledged having a conflictive relationship with his supervisor.<sup>19</sup></li>
<li>An employee appeared to be occasionally detached from reality, had intense interactions with his supervisor, and was obsessive and explosive.<sup>20</sup></li>
<li>A firefighter and emergency medical technician in the Atlanta, Georgia, Fire and Rescue Department had a history of altercations with coworkers.<sup>21</sup> (“As a matter of law, a… psychological examination of an employee is both ‘job-related’ and ‘consistent with a business necessity’ if that employee exhibits ‘even mild signs’ of ‘paranoid or agitated behavior’ that causes the [employer] to question the employee’s ability to perform essential job duties.”<sup>22</sup>) Given the undisputed evidence of the employee’s history of confrontations with subordinates and other city employees, the city has shown that the referral was job-related and consistent with a business necessity, and the employee failed to establish that the employer-required EAP counseling alone was an action prohibited by the ADA.<sup>23</sup></li>
</ul>
</li>
</ul>
<h2><span style="color: #0071b9;">Recommendations</span></h2>
<p>In public safety agencies, the threshold for justifying a referral to an EAP is lower than in many other governmental departments. However, chiefs should document reasons for referring an employee to the EAP. No one should be referred for such services simply to create a negative employment file and interfere with the individual’s chances of promotion. Before ordering an officer to participate in an EAP, when in doubt, chiefs should consult with labor counsel and be prepared to justify such action based on whether the employee’s actions or symptoms demonstrated a need for such intervention based on the actual needs of the position and business necessity. Chiefs should not expect an EAP counselor to reveal a medical or psychological diagnosis without an employee’s consent. Confidentiality is the hallmark of an EAP.<span style="font-family: Webdings;">d</span></p>
<p>Notes:</p>
<p><sup>1</sup> Conrad v. Bd. of Johnson County Comm’rs, 237 F. Supp. 2d 1204 (2002).</p>
<p><sup>2</sup> The failure to comply with a condition of continued employment that an employee attend EAP counseling is a legitimate, nondiscriminatory reason for termination. See Walton v. City of Manassas, 162 F.3d 1158, 1998 WL 545895, at *2 (4th Cir. July 28, 1998) (table) (per curiam); Hogan v. Cox Commc’ns, L.L.C., No. 8:04cv368, 2005 U.S. Dist. LEXIS 40447, 2005 WL 3358922, at *5 (D. Neb. Dec. 9, 2005) (holding that the plaintiff’s failure to comply with the EAP was a nondiscriminatory reason for his termination). “Employers are permitted ‘to use reasonable means to ascertain the cause of troubling behavior without exposing themselves to ADA claims.’” Wisbey v. City of Lincoln, Neb., 612 F.3d 667, 673 (8th Cir. 2010) (quoting Cody v. CIGNA Healthcare of St. Louis, Inc., 139 F.3d 595, 599 (8th Cir. 1998)) (finding that a fitness-for-duty exam was a reasonable way of determining if the plaintiff was able to adequately perform her job as an emergency dispatcher), <em>abrogated on other grounds by</em> Torgerson, 643 F.3d at 1058.</p>
<p><sup>3</sup> See, Vardiman v. Ford Motor Co., 981 F. Supp. 1279, 1283, 7 AD Cas. (BNA) 1068, 1072 (E.D. Mo. 1997) (EAP representative had no power to affect employment decisions and, in fact, was obligated to shield the decision-makers from an employee’s personal or substance abuse problems).</p>
<p><sup>4</sup> See Reynolds v. Am. Nat’l Red Cross, 701 F.3d 143, 155 (4th Cir. 2012); Hannah P. v. Coats, 2017 U.S. Dist. LEXIS 118649.</p>
<p><sup>5</sup> U.S. Equal Employment Opportunity Commission (EEOC), <em>Enforcement Guidance: Disability Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (ADA)</em> (EEOC, 2000).</p>
<p><sup>6</sup> See, H.R. Rep. No. 101-485, pt. 2, at 75 (1990) (“As long as the programs are voluntary and the medical records are maintained in a confidential manner and not used for the purpose of limiting health insurance eligibility or preventing occupational advancement, these activities would fall within the purview of accepted activities.”).</p>
<p><sup>7</sup> <em>Hannah</em>, 2017 U.S. Dist.</p>
<p><sup>8</sup> <em>Conrad</em>, 237 F. Supp. 2d 1204 (2002); Pence v. Tenneco Auto. Operating Co., 2005 U.S. Dist. LEXIS 7299; See Terry v. City of Greensboro, 2003 U.S. Dist. LEXIS 869, *12 (M.D.N.C. 2003) (noting that “a request for an evaluation, without more, does not prove that the employer perceives the employee to have an impairment that substantially limits one or more of the employee’s major life activities”); see also Cody, 139 F.3d 595, 599 (8th Cir. 1998).</p>
<p><sup>9</sup> Bates v. Dura Auto. Sys., Inc., 767 F.3d 566, 573 (6th Cir. 2014).</p>
<p><sup>10</sup> E.E.O.C. v. SunDance Rehab. Corp., 466 F.3d 490, 500 (6th Cir. 2006) (citing Skidmore v. Swift &amp; Co., 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944)).</p>
<p><sup>11</sup> Kocsis v. Multi-Care Mgmt., 97 F.3d 876, 885 (6th Cir. 1996); Choulagh v. Holder, 2012 U.S. Dist. LEXIS 98271.</p>
<p><sup>12</sup> EEOC, <em>Enforcement Guidance</em>, Part B.2.</p>
<p><sup>13</sup> EEOC, <em>Enforcement Guidance</em>, Part B.2.</p>
<p><sup>14</sup> Williamson v. Clarke County Dept. of Human Res., 834 F. Supp. 2d 1310 (2011).</p>
<p><sup>15</sup> See Sanders v. Illinois Dept. of Cent. Mgmt. Servs., 530 F. App’x 593, 594 (7th Cir. 2013).</p>
<p><sup>16</sup> EEOC, <em>Enforcement Guidance</em>, Part B.2.</p>
<p><sup>17</sup> 29 C.F.R. § 1630.13(b) App. (1996). See, E.E.O.C. v. Prevo’s Family Market, Inc., 135 F.3d 1089, 1094 (6th Cir. 1998).</p>
<p><sup>18</sup> Henson v. City of Atlanta, 2019 U.S. Dist. LEXIS 238612 Dengel v. Waukesha Cty., 16 F. Supp. 3d 983, 993 (E.D. Wis. 2014) (citation and internal marks omitted).</p>
<p><sup>19</sup> Dundee v. Univ. Hosps. Corp., 2020 U.S. Dist. LEXIS 129443.</p>
<p><sup>20</sup> <em>Dengel</em>, 16 F. Supp. 3d 983 (2014).</p>
<p><sup>21</sup> <em>Henson</em>, 2019 U.S. Dist. LEXIS 238612.</p>
<p><sup>22</sup> Mickens vs. Polk County School Board, 430 F. Supp. 2d at 1280.</p>
<p><sup>23</sup> See Graham v. Boehringer Ingelheim Pharm., Inc., 451 F. Supp. 2d 360, 372 (D. Conn. 2006) (citations omitted); see also Tanner v. BD LaPlace, LLC, CIVIL ACTION NO. 17-5141, 2019 WL 1382302, at *6 (E.D. La. Mar. 27, 2019).</p>
<hr />
<p>Please cite as:</p>
<p style="padding-left: 40px;">John M. (Jack) Collins, “Disability-Related Inquiries and Medical Examinations by EAP Counselors,” Chief&#8217;s Counsel, <em>Police Chief</em> 91, no. 5 (May 2024): 12–15.</p>
<p>The post <a href="https://www.policechiefmagazine.org/chiefs-counsel-disability-related-inquiries-medical-examinations-eap-counselors/">Chief&#8217;s Counsel: Disability-Related Inquiries and Medical Examinations by EAP Counselors</a> appeared first on <a href="https://www.policechiefmagazine.org">Police Chief Magazine</a>.</p>
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