Police Department Can Insist That Officers In Administrative Assignments Be Able To Make Forcible Arrests

On December 5, 2005, San Francisco Police Officer Kenneth Lui suffered a heart attack and had five stents inserted. He was diagnosed with diabetes, high blood pressure, high cholesterol, and coronary artery disease. Following his heart attack, Lui took 11 months’ disability leave at full pay. On November 1, 2006, Lui returned to work in a 365-day temporary modified duty assignment performing light-duty work in the records room.

After a year had passed, Lui’s doctors still opined that he should be in a light-duty assignment. Pursuant to its policy of only allowing light-duty assignments to last one year, the Department terminated Lui. Lui sued the Department under California’s equivalent of the Americans With Disabilities Act, alleging that the Department had the obligation to reasonably accommodate his disability by assigning him to light-duty work.

The California Court of Appeals rejected Lui’s lawsuit. The Court noted that the Department “did not deny there are numerous positions with primarily administrative duties, but does contend that the law does not prohibit the Department from requiring that officers in those assignments be able to perform the duties in the Essential Job Function List for police officers. Lui, on the other hand, points out that disabled officers were accommodated in permanent light-duty assignments prior to the adoption of current policy and disputes the applicability of the job function to the administrative positions he seeks.

“We conclude that the record supports the trial court’s finding that the duties in the job function list are essential functions of the Department’s administrative positions. The duties are essential functions of the administrative positions because there are a limited number of officers available to the Department to perform those functions. Because the Department only has a limited number of full-duty officers, for each officer in a modified-duty assignment, there is one less officer available to be deployed in an emergency. The Department’s chief financial officer testified that, due to budget cuts, the number of full-duty officers employed by the Department will continue to decline.

“The Department needs to be able to mobilize as many full-duty police officers as possible to respond to mass celebrations, demonstrations, and earthquakes and other large-scale emergencies, during which the officers would be required to perform the types of duties listed in the job function. For example, on the day of the 2003 invasion of Iraq there were tens of thousands of protestors and engagements in various parts of San Francisco. All full-duty officers, including those in administrative positions, were mobilized. During such a full mobilization, all days off are canceled and all full-duty officers work mandatory 12-hour shifts. In the event of a large earthquake, the Department must be able to mobilize as many full-duty officers as possible to dig survivors out of collapsed buildings and respond to looting incidents.

“The Department’s preparedness plan calls for ‘a full-scale mobilization, 12-hour shifts for all officers…responding in and handling both calls for service and rescue missions.’ The mobilization would include all full-duty officers in administrative positions. Department resources are also taxed when there are multiple critical incidents in one night. For example, in the event of gang shootings, officers are deployed to saturate certain neighborhoods to prevent retaliatory shootings. Finally, officers in administrative assignments are deployed to special events, such as holiday celebrations, parades, and election night gatherings.

“We conclude the trial court did not err in finding that the duties in the job function list are essential functions of the administrative positions he seeks. Because Lui could not perform a number of those duties, he is not a qualified individual under the protection of the disability law, and the law did not obligate the Department to accommodate Lui by excusing him from the performance of essential functions.”

Lui v. City and County of San Francisco, 150 Cal. Rptr. 3d 385 (Cal. App. 1 Dist. 2012).