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Kohl v. Burbank

United States District Court, D. Utah, Central Division

June 21, 2018

ROBERT KOHL, Plaintiff,


          TENA CAMPBELL, U.S. District Court Judge

         Defendant Salt Lake City (SLC or the City) along with individual Defendants Chris Burbank and Melody Gray have filed a Motion for Summary Judgment asking the court to dismiss former SLC police officer Robert Kohl's claim alleging that the Defendants violated his rights under the Americans with Disabilities Act[1] (ADA).[2] Mr. Kohl contends that the City[3]failed to accommodate his learning disability, which impaired his ability to write clear incident reports. One such report gave rise to an internal affairs (IA) investigation and pre-disciplinary hearing, after which he resigned.

         Defendants assert that Mr. Kohl has not established a prima facie case of failure-to-accommodate because he has not provided evidence to support his claim, and, additionally, the requested accommodation was not plausibly reasonable. For the reasons set forth below, the motion is granted.


         A court must grant summary judgment when the moving party “shows that there is no genuine dispute as to any material fact” and that party “is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Summary judgment should not be granted “if the dispute about a material fact is ‘genuine, ' that is, when the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Birch v. Polaris Indus., Inc., 812 F.3d 1238, 1251 (10th Cir. 2015). A factual dispute is genuine when “there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way.” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998). The court must draw all reasonable inferences from the record in favor of the nonmovant. Id.


         Robert Kohl was a police officer with SLC Police Department from March 11, 2001, until December 12, 2010, when he resigned from the Department. He has dysgraphia, a learning disability that makes it difficult for him to draft written reports necessary for his job, including arrest reports, such as the September 20, 2010 police report at issue here.[4]

         At the beginning of his tenure with SLC, he participated in the Department's officer field training program. During that period, he notified his field training supervisors that he had “a difficult time writing and spelling” and asked them to review his reports and “send [them] back” for clarification or corrections if the reports sounded or looked “weird, ” contained misspellings, or had grammatical or other similar problems. (July 7, 2017 Dep. of Robert Kohl, attached as Ex. C to Defs.' Mot. Summ. J., at 44, 50-51, ECF No. 31-3.) At his request, they reviewed his reports and returned them if necessary so he could make corrections.

         After he completed his initial training, he told each new supervisor about his disability and requested the same review.[5] He says he was accommodated until he submitted his September 2010 report (discussed in detail below).[6]

         September 20, 2010 Arrest and Use of Force Incident

         On September 20, 2010, Mr. Kohl and a fellow officer were involved in a scuffle with a young man they later arrested for possession of cocaine with intent to distribute. What occurred during that scuffle and what Mr. Kohl wrote in his arrest report prompted the events leading to Mr. Kohl's resignation. (See Sept. 20, 2010 SLC Police Dep't Gen. Occurrence Hardcopy (“Police Report”), attached as Ex. A to Defs.' Mot. Summ. J., at 6, ECF No. 31-1.)

         On that September evening, Officer Jaron Harker was patrolling in downtown Salt Lake City in an area known for drug trafficking. Along one block, as he drove by, he noticed approximately twenty individuals, nearly all of whom glanced in his direction as he drove by in his police car. But one man did not, and that caught Officer Harker's attention. He watched the man slowly walk down the sidewalk and then pulled his police car behind the man.

         He got out of his car and started a conversation with the man, during which Officer Harker noticed a bulge in the man's upper left cheek that prevented the man from speaking clearly. He asked the man if anyone had asked to purchase cocaine from him. When the man evaded the question, Officer Harker asked what was in his mouth, to which the man responded by “shuffl[ing] something in his left cheek and ma[king] a swallowing motion.” (Id. at 8.)

         To prevent the man (who Officer Harker suspected was a drug dealer) from possibly destroying evidence, Officer Harker grabbed the back of the man's neck in an effort to stop him from swallowing the object in his mouth. He also attempted to forcibly lower the man to the ground while telling him to spit out whatever was in his mouth. The man disobeyed and instead tried to escape from Officer Harker's grasp, at which point the two of them “spun in circles several times as [the man] struggled to get away from [Officer Harker].” (Id. at 9.)

         At some point during Officer Harker's struggle with the man, then-Officer Kohl arrived to help. Officer Harker, in his report, described the events involving Mr. Kohl in detail:

Officer Kohl arrived as the tussle began and quickly came to my aid as we got him to the ground. Officer Kohl held his lower half as I pushed on his mouth while telling him to spit out the drugs. Eventually the subject opened his mouth and spit out multiple crack twists (individually wrapped crack-cocaine rocks packaged for sale). It seemed he was still trying to swallow, I warned him we would punch him in the stomach to assist him if he did not spit out the crack. He did not comply with our warning, Kohl delivered a strike to his stomach area. Incident to the strike two more crack rocks were blown from his mouth. Still unsure if there was more in his mouth due to movement with his tung [sic] I delivered one more push on his stomach not getting anything else out. A total of 17 crack rocks were collected.

(Id. (emphasis added).) Mr. Kohl's written account of the incident matched Officer Harker's:

The subject was spinning around and about Officer Harker's person actively trying to break free from his very firm grip. I then helped thrown [sic] this person to the ground. He landed on his back while Officer Harker was holding his face yelling at him in Spanish. Officer Harker said, “Spit it out, spit it out.” I placed my right knee in this person's mid-section to hold him still and pressed down quickly in an attempt to force out the things in his mouth. After a moment ten or more small white plastic wrapped squares were spat from his mouth. These items look to be packaged drugs. I was fearful he was trying to swallow other drugs which were in his mouth. Officer Harker yelled, “Are there more? Spit them out!”
I then said, “If you do not spit them out I will punch you in the gut.”
The subject did not move his body or mouth. He lay still. I told Officer Harker, “Tell him in Spanish.”
Officer Harker said something in Spanish and the subject did not move his lips or body. I then punched him one time with my right fist in the center of his abdomen. The person then immediately spit out two more square plastic wrapped suspected drug bindle[s] (see Crime Lab photos). He was then rolled over, I called for an arrest check, we then secure him in hand cuffs.

(Id. at 6 (emphasis added).)

         After the officers arrested the man, they requested an “arrest check” from their supervisor, Sergeant Stefhan Bennett. During an arrest check, a Department supervisor speaks with both the arresting officers and the detained individuals to determine, among other things, whether probable cause exists to take the suspect into custody and whether any medical attention is required.

         Importantly, Sergeant Bennett did not witness the incident involving Officer Harker, Mr. Kohl, and the man, so he had no first-hand knowledge of the encounter. Rather, his understanding of the situation came from the information Officer Harker and Mr. Kohl gave to him during the arrest check and from his later review of Officer Harker's and Mr. Kohl's police reports.

         During the arrest check, Officer Harker and Mr. Kohl told Sergeant Bennett they had been in a scuffle with the man and, in the course of that scuffle, the man had spit out balloons containing narcotics. The officers described the incident in generalities. But when Sergeant Bennett read Officer Harker's and Mr. Kohl's police reports later that night, he became concerned because the reports contained additional facts regarding the type, timing, and purpose of force used by Mr. Kohl, details that did not come up during the officers' on-scene discussion with Sergeant Bennett. (Dep. of Stefhan Bennett, attached as Ex. B to Defs.' ...

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