appellant police court i'm phil noblitt from chattanooga tennessee representing the city of chattanooga in this matter and would request least a little bit of time about three minutes at the end and in this case the there is a jury verdict against the city of chattanooga in an eighty eight case involving a police officer who was at least in voluntarily committed that proof was in the record concerning this individual after his in voluntarily involuntary committal he got involved so once that decision at least was made at that point in time and mr hoback was treated the police chief in this case requested a psychological evaluation that psychological evaluation was performed by a fellow by the name of brooke shar mr brooks are determined that mr hoback was not fit to perform the duties as a police officer and he determined that because of his pattern of excessive anger or suicide and homicide thoughts and impulsive and aggressive acting out behaviors that he should not be continuing to operate as a patrol officer based upon that report that was the only report which was in front of chief cooper at the time he was at least required to make decision on continuing him as a police officer switched on for about three months i think over the summer from april till july thirty first when eventually made the decision to terminate he isn't a part of the problem here that he knew that another report was coming and didn't take that report into it came out don't think so the problem with the other report one of the problems one of the things that potentially possibly forgery possibly thanks the case a jury question is is that you know he's required to make an individual last assessment he knows that another report is coming but he doesn't take that report into account in his decision he had at least a verbal report at the time he made the decision and at that point in time anybody divorce court that was coming was contrary to the one in his hand he did also know at that point in time it required conditions for the employment of mr hoback including having a psychological value waiter basically follow him around and to have reports on whether mr hoback was a danger to himself or others who were you thinking that the chief was entitle to rely solely on that person report even though the second report the report from dr mcdaniel was somewhat different and it acknowledged that he may have been not that at that time but information that he had in front of him at the time he made the decision and that was at least a verbal report from mr mcdaniel that he would have to have a number of conditions attached to his continuing to work i believe the chief considered that and determ that he could not make that determination i don't think reasonable accommodations at this point in time are required on a situation where there is just merely a perception top claim is well into the idea of a huge entitle to regard him as a person with a disability with the fable in the face of information that states or suggests that perhaps he's not i think the chief asked to deal with what information he has at the time and making that determination and he did that in this case in trying to determine whether this would be a position for him as an intern to patrol and my point is dealing with the report he has at the time that's all well and good but when he gets report what are you obligated with respect to that report at that time that if male squarely before him in anything that subsequent report he has to deal with and has to determine whether someone with those conditions could be continued to allow to work i guess the question here the perception portion of it of believe the ag and a a in two thousand and nine actually removed some of those requirements at least as to perceived disability and reasonable accommodations  the issue here i believe than the college judge calling for a lot of concern below that on this matter because it was dealing with case law operate two thousand and post two thousand and nine case law they were looking at the case law this court these circumstances it's very difficult for him to make determinations to put someone back in the street with a gun as a patrol officer every day performing their duties and rely upon them based upon this record this record clearly established that mr hoback was telling to his personnel that he was talking to at the v a that he was having suicidal at home sagal thoughts chief did not know any of that information once he learns that information he has some duty to act for the safety of the public and for other officers that are out there those statements are downplayed by much of the medical proof in this case simply by saying that mr hoback embellished or a lot about those statements in order to get more benefits from the a but that's a real concern for a police chief who is dealing with folks every day in the field that he has to trust to use a gun and to be able to properly use the force levels that the police department has in effect well i understand that your dear that would have been the argument to the jury and the police chief is in a difficult situation but the that i understand mr howe backs argument it's not only that the chief did not wait for the second opinion and report that he knew it was coming but also that d report was at the end of the day objectively unreasonable and it's hard for a police chief to know that but at least at least you sort you would think there would be a duty to wait until you had all the medical evidence in front of you and i would argue that a police chief can't be a psychological expert a police chief can only rely upon that information that is available if there is an argument about acting prematurely in connection with this case i healed and i think that's one of the inherent problems that you have in connection with a mental question here under p t s d whether that is a continuing problem where it may change based upon what someone tells someone at a later time even if it's difficult for a light person to correct that's that mr hoback had not he had been examined by another person and there was not a written report at that point yes ma'am the concern i guess the i would have in this case is that other circuits have considered these issues on the aspect of what is a person who is got a problem that limits a major life activity cited a number of the eight circuit cases here the eps versus paan long case the she hand vs city of gloucester case and also the biker versus windsor republic doris case judge daltry wrote that in two thousand and six at that point in time i know we had a slightly different standards under the eighty eight than we do at this point in was while these medical reports were coming in is that is that correct he right now on parole well the she was yes ma'am he was out on administrative leave the administrative right he was run and out and he would not choose a that was another problem that they had the personnel department attempted to get him to use if him allegedly but he would not do that saying he did not have a condition that would warrant if emily i don't know if it's not a serious my mental injury or claim in that out and that was the concern that he could have guessed that in fact if they had him a lay had been chosen that's what could have occurred and he could have extended that period of time under the f m l a for leave without pay even though there was no more  look at it more closely but was there anything in those initial reports that indicated that p t s d it was treatable the i guess the treatable aspect of it was not there was actually medication that was being provided to him we've learned in the reports he was not taking his medication he had been prescribed with lithium at some point in time he had not told the police chief that he was on any medication and apparently was not taking the medication  ok but that's not my question but it was their notice that this was a treatable condition i do not know of in any reference i am p t s d i believe is a treatable condition the question is were there other things that should have been looked  at in his job position while that was going on all right thank you mister i would like to at least of address slightly the direct threat part and i'll do that all my rebuttal opportunity in a moment but the we have cited the court on our original brief and our reply brief the number of direct threat cases in this circuit and other ones the only case i could find on direct threat within the six circuit was the hamelin versus township of flint case from hundred ninety nine and it clearly involved a police or excuse me a fire chief at that point in reviewing forty two u s c one two one one three they determined that if someone was a direct threat they could not qualify for protection under a that was the only case that i'm aware of and it did not involve a police officer who had a gun going out every day if i can reserve the remaining three minutes  may please the court i'm phil lawrence from chattanooga and i represent michael hope back in this appeal at the outset i think the record should be fairly it should be fairly evident that the record  disqualified as a police officer he is the decision maker in this case who started the process that brought us here and he concluded that because mr ho back was diagnosed with this condition of p t s d they couldn't serve as a police officer regardless of the severity or or how it may have affected his job that's clear from the record  the operative law so given that chief cooper state of mind it's not unusual that he completely ignored the report of dr and the chief opera mr hoback other are encourage him to look at other positions within the city which your client completely totally rejected out of hand well the positions were much different than the position that he had been serving and they were telephoning us from jobs things of that nature that were simply not didn't appeal to me in the felt that that he was able to do the obligations in this situation go further than just getting a medical report in fact when when chief cooper got the medical report it was almost game over for him from dr macdaniels it not that you're out the door that relies on a reasonable medical judgment based on the current medical knowledge and the current medical knowledge in this context i believe would be dr macdaniels report that was the current medical knowledge at the time that the decision was made he had knowledge it was on notice that there was a contrary opinion to that of dr brooks are also the the the  regulation provides an end or provision on the best available objective evidence now what we have is a situation where mr hoback had gone to iraq he came back to the city of chattanooga resumed his job in november of two thousand and five in two thousand and six he got an award from the chief for his performance as a police officer in two thousand and seven he got the award his officer of the year the best officer in the entire our police department so you would think that when chief cooper got this report say he's not that for duty you know some kind of alarm would go off how could this be you know two years ago this guy's the best police officer on the entire force the testimony from his fellow officers or that he was how they copped it even chief cooper  knowledged what i have what hopper formants this officer had given to the city of chattanooga so you've got two things not just the medical evidence but he has to be based upon objective the best available objective evidence so certainly chief cooper has got more of an obligation just to than just to defer to a medical opinion that is like what happened here was really i mean what the jury may have found that happened here was two things one that chief cooper were allowed on a tennessee statute which was in fact in some tension with what the requirements of the idea you were and he was unaware of the requirements of the i d f and did not seek to perform what the process that was required by the idea because he in fact thought that the evidence he the job and that he had done that and there was no evidence that it ever failed to do that that any risk was tentative speculative and in terms of of the direct threat analysis i don't think the city ever offered any evidence about what the likelihood of potential harm was that was one of the elements or in certain there was no imminen potential harm based upon any of the testimony that was given in the case and if i could clear one fact this been misstated in my view is what dr mcdaniel said about these conditions of his being returned to work in his report dr tara mcdaniel says this mr hoback is fit for duty and should be returned to work as a patrol officer without prescription he is not psychotic in there's not evidence it should be no evidence of his significant symptoms or signs that this time which would guess it should be at this time which would preclude his return to normal duties nevertheless it ministration may wish to choose a position that provides except the levels of monitoring at the beginning of his reengagement he doesn't say in there that that he requires accommodations and i don't think the jury would conclude that he needed accommodations which are or are not under the as regarded as of prong of the of the of the test required  i think that's all i have to address thank you very much terminations mr mcdaniel in his opinion here i think it pages twenty one ninety one and twenty one ninety two specifically wrote that because mr ho backs inaccurate statements to his counselor he would normally consider mr hoback to be not fit for duty could only return to police duties if a number of adequate monitoring conditions were met one of those was having a professionally lawson's counselor employed by hoback or the city to make determinations on whether he should be on duty as a police officer at any i might have been i mean that might have been a reasonable decision in that and that could be in the process that that perhaps if if that had been taken into account perhaps the jury might have come to a different conclusion about the end result of the case but that's not what in fact happened because that was never considered but the requirements of the a t o do not require the police departments to go out and hire someone to determine whether someone is fit they only hear to go out in the street and use a gun that is a concern that a police chief should reasonably have that point is that's not something that was taken into a can in the decision well whether someone can fulfill the the police officers duties and question should be of them are resolved within the departments and not necessarily the court system on these types of matters especially when you're dealing with a mental disability concern and the concern about whether the officer is telling you