When the U.S. Supreme Court issued its 2015 opinion in City and County of San Francisco v. Sheehan, disability advocates quickly criticized the outcome. In that case, the Court held that the two officers involved were entitled to qualified immunity for pepper spraying and then shooting Teresa Sheehan.
The officers were dispatched to aid with a transport of Sheehan, who had a schizophrenic disorder, from a group home to a secure facility because she was acting erratically and threatening to kill her social worker with a knife.
When the officers arrived, Sheehan grabbed the knife and threatened them. Initially, the officers retreated from the room but then re-entered out of concern for what Sheehan was doing behind the closed door. She again threatened the officers, and they pepper sprayed Sheehan before shooting her multiple times.
Civil rights claims and ADA considerations
Sheehan sued under the civil rights statute 42 USC §1983 and the Americans with Disabilities Act (ADA) 42 USC §12132. The theory of claim under the latter statute was that the officers failed to consider any accommodation for her disability. The question whether §12132 required law enforcement officers to provide accommodations to an armed, violent and psychiatrically disabled suspect during an arrest was dismissed by the Court as improvidently granted since the petitioner City and County of San Francisco did not address the issue it outlined in its certiorari petition.
Rather than argue that Title II of the ADA does not apply when an officer faces an armed and dangerous individual, the petitioner argued that Sheehan was not entitled to accommodation because she posed a direct safety threat to others that could not be eliminated by modification of policies or procedures. Furthermore, the lower court had not reviewed this issue.
Qualified immunity and Fourth Amendment rights
What was left for the U.S. Supreme Court to consider was whether the two responding officers were entitled to qualified immunity from liability for the injuries suffered by Sheehan. This consideration hinged on determining if a Fourth Amendment violation occurred when the two officers made a second entry into Sheehan’s room after initially retreating. Since Sheehan, as disabled person, did not have a clearly established Fourth Amendment right to be free from the officers’ second entry into her room, nor entitled to an accommodation due to her disability, the officers were granted qualified immunity. The Court also found the force they used was reasonable. In a partial concurrence and dissent, Justice Scalia scolded the petitioner city and county for depriving the Court of the “opportunity to consider, and settle, a controverted question of law that has divided the Circuits.”
When the case was returned to the Ninth Circuit Court of Appeals on remand the court said the lower district court was correct to grant the city and county summary judgment on the Fourth Amendment claims but erred in granting them summary judgment on Sheehan’s ADA and state law claims.
Federal Circuit Court splits and ADA claims
The split among the federal circuit courts of appeal remains. Two types of Title II ADA claims relating to arrests are recognized by the courts:
- Wrongful arrest claims where an individual with a disability is arrested based on police misperception of the effects of the disability as criminal activity.
- Reasonable accommodation claims, as in Sheehan, wherein police are alleged to have failed to reasonably accommodate a person’s disability in the course of an investigation and arrest, thus causing the person to suffer greater injury and abasement than other arrestees. The latter claim is made even if the police investigation and arrest is proper.
The circuit court splits have alternately held that “Title II does not apply to an officer’s on-the-street responses to reported disturbances or other similar incidents, whether or not those calls involve subjects with mental disabilities, prior to the officer’s securing the scene and ensuring that there is no threat to human life” Hainze v. Richards, 207 F.3d 795, 801 (5th Cir. 2000), or that “the question is not so much one of the applicability of the ADA because Title II prohibits discrimination by a public entity by reason of disability. The exigent circumstances presented by criminal activity and the already onerous tasks of police on the scene go more to the reasonableness of the requested ADA modification than whether the ADA applies in the first instance.” Bircoll v. Miami-Dade County, 480 F.3d 1072 (11th Cir. 2007). There is also the more forthright holding that “a broad rule categorically excluding arrests from the scope of Title II . . . is not the law.” Gohier v. Enright, 186 F.3d 1216 (10th Cir. 1999).
Courts are increasingly looking to see if officer actions were a preceding cause to a mentally ill person’s reaction.
Recent developments and judicial responses
Since Sheehan, the focus on police encounters with individuals suffering mental health problems and the disabled has increased, and judicial response has evolved.
In the 2020 case of Chamberlain ex rel. Chamberlain v. City of White Plains, the Second Circuit Court of Appeals denied qualified immunity on excessive force and other claims when police shot a man with a mental health condition who refused to open the door and exit his apartment after he requested that police leave him alone. Kenneth Chamberlain, Sr., a 68-year-old Marine Corps veteran and retired correction officer, was shot and killed in 2011 by police after they responded to an accidental activation of his medical monitoring device. The court’s opinion posed the following questions:
“For example: What factors and reasoning supported the officers’ decision to force entry when they did rather than seeking to de-escalate the situation before doing so? Why were Chamberlain’s close relatives, one of whom was on site, not employed by the police in an attempt to resolve the confrontation without bloodshed? What was the significance, if any, of the crude epithets (if ultimately proven to have in fact been uttered) used by the police at or about Chamberlain before their fatal forced entry? Why did the officers enter the apartment with a Taser, handguns, and a beanbag shotgun if they were there to administer emergency medical aid? And, in broader focus, why did the police officers, after the various events of the morning of November 19, 2011, decide they had to break down the door and enter Chamberlain’s home?” 960 F.3d 100, 119 (2d Cir., 2020)
In 2023, the City of White Plains settled with Chamberlain’s family for five million dollars, the largest settlement in city history. The settlement came after more than a decade of litigation beginning prior to the Supreme Courts’ decision in Sheehan but extending to more recent police encounters with mentally and physically disabled individuals across the country.
Liability concerns and training imperatives
When courts consider the reasonableness of an officer’s use of force, they do not merely accept the officer’s subjective viewpoint regarding the necessity for force, rather it is weighed against the totality of the surrounding circumstances. The second prong of the three-part Graham v. Connor test used to assess the “totality of the circumstances” is whether an individual poses a threat to the safety of the officer or others.
Courts are increasingly looking to see if officer actions were a preceding cause to an individual’s reaction, especially when the officer is not responding to a reported crime but instead an emergency call on behalf of a psychiatrically disabled person. For instance, the Sixth Circuit said reviewing courts “must segment the incident into its constituent parts and consider the officer’s entitlement to qualified immunity at each step along the way.” Palma v. Johns, 27 F.4th 419 (6th Cir., 2022), citing Wright v. City of Euclid, 962 F.3d 852, 864 (6th Cir. 2020)
The Sixth Circuit has articulated additional factors when considering officers response to a medical or mental health emergency:
- Whether the person was experiencing a mental health or medical emergency, and whether that emergency created “an immediate threat of serious harm” to themselves or others.
- Whether some degree of force was reasonably necessary to ameliorate the immediate threat.
- Whether the force used was more than reasonably necessary under the circumstances. Estate of Hill v. Miracle, 853 F.3d 306, 314 (6th Cir. 2017)
Past research indicates that 10% of police calls involve a person who has a mental health disorder. Last year the Journal of the American Medical Association and the U.S. Surgeon General reported on America’s growing health crisis. Calls for service involving those with mental health disorders can only be expected to increase.
Police departments that still have not implemented training and response guidelines for calls involving the mentally ill may find themselves unable to find liability coverage from insurers.
An October 2023 joint publication from the Department of Justice and the U.S. Department of Health and Human Services provided “Guidance for Emergency Responses to People with Behavioral Health or Other Disabilities.” Included in the 30-page publication are best practices for developing crisis intervention programs and protocols along with links to 56 resources.
Police departments that still have not implemented training and response guidelines for calls involving persons with mental health disorders may find themselves unable to find liability coverage from insurers. Since 2020 insurers nationwide have been reconsidering how they underwrite police insurance policies. A June 2023 issue of “Business Insurance,” quoting a senior claims attorney, noted that police departments must provide more training on police encounters with individuals with mental and physical disabilities.
Conclusion
Policy review is an ongoing process in policing and dealing with mental health-related calls is an area where police administrators must ensure up to date best practices and response protocols. The goal is always to have legally sustainable policy and practice guidelines in place that are supported by officer training.
