Suspects With Disabilities: ADA Title II, Arrests, and Reasonable Accommodations

By Keith Hiatt, PhD Candidate, Berkeley Law

On Thursday, January 22, 2015, at approximately 6:30 PM, a seventeen-year-old woman walked into a police station in Longview, Texas. By 7:00 PM, she was dead, shot multiple times by police officers. The young woman had been diagnosed with bipolar disorder. We don’t know why she walked into the police station, or why she asked to speak to an officer. We don’t know why she told them she had a gun, when in reality she did not. We don’t know why she struggled with the officers, but we know that three officers physically subdued her. We don’t know why she fought with them and eventually pulled a knife, but we know that they reacted, almost instantly, by shooting her multiple times. We don’t know why. But we know that this is a scenario that plays itself out over and over.

According to a 2013 report, “at least half of the people shot and killed by police each year in [the United States] have mental health problems.” That percentage is even higher in some cities, including the City of San Francisco. This is horrifying, and made worse by the fact that the rate of violent crime against people with disabilities is three times the rate of victimization of people without disabilities. Against this backdrop, it is a cruel irony that people with disabilities are more likely to be victims of crime (and consequently to need police assistance), and also more likely to be shot and killed by police. For example, in one case, a mother called 911 to request assistance with her suicidal, depressed, and intoxicated son, who threatened to kill himself with a small pocketknife. County deputies responded, ordered him to drop the knife (which he held to his own throat), then shot him eight times, all within four minutes of arriving. See Glenn v. Washington County, 673 F.3d 864 (9th Cir. 2011).

In March, the United States Supreme Court will hear argument in City and County of San Francisco v. Sheehan, a case from the Ninth Circuit, in which a woman with disabilities alleged that police officers violated her civil rights under the Americans With Disabilities Act (ADA) during her arrest. In the words of the Ninth Circuit panel, the case “involves a near fatal tragedy in which police officers attempted to help a mentally ill woman who needed medical evaluation and treatment but wound up shooting and nearly killing her instead.” Sheehan v. City and Cty. of San Francisco, 743 F.3d 1211, 1215 (9th Cir. 2014). The district court granted summary judgment for the City. The Ninth Circuit vacated that order, holding that Title II of the ADA applies to “anything a public entity does,” including arrests by police officers. Id. at 1232. The Supreme Court will consider “[w]hether Title II of the Americans with Disabilities Act requires law enforcement officers to provide accommodations to an armed, violent, and mentally ill suspect in the course of bringing the suspect into custody.”

Civil rights advocates have urged San Francisco City Attorney Dennis Herrera to withdraw the appeal. They contend that bringing this case before the Court endangers the ADA, warning that the Court may take this opportunity to eviscerate ADA protections as they apply to arrests. In response, according to KQED news, Deputy City Attorney Peter Keith claims that the City actually agrees that the ADA applies to arrests. What the case is really about, he says, is “the judgment that was made that day” by the police officers. “The officers on the scene made a reasonable judgment that Ms. Sheehan posed a significant risk to the safety of others.”

But Mr. Keith’s statement is countered by the City’s own arguments in their briefs before the Ninth Circuit and, now, the Supreme Court. At the Ninth Circuit, the City contended that “the ADA does not apply to police officers’ responses to violent individuals who happen to be mentally ill, where officers have not yet brought the violent situation under control.” Appellee’s Answering Brief, p. 37. And now, before the Supreme Court, the City’s brief explicitly asks the Court to decide “whether and how the Americans With Disabilities Act applies to arrests of armed and violent suspects who are disabled.” Petitioners’ Reply Brief, p. 1.

The City is trying to have it both ways, saying to the public that it supports the ADA and believes that the ADA does apply to arrests, but telling the Court it would rather the ADA not apply at all—or, at least, not to all arrests. The City’s position appears to be that the ADA does not apply to an arrest when a person with disabilities is “armed and violent.” But that’s not how civil rights law works. The statute doesn’t contain a carve-out for arrests, and the courts cannot read one in based on their own view of the on-scene realities of policing. The ADA already contains a mechanism for balancing the legitimate safety concerns of police officers and the rights of people with disabilities: reasonableness analysis. As the Ninth Circuit explained: “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.” 743 F.3d 1211 at 1232. The City contends that any potential disability-based accommodation of an armed and dangerous suspect is per se unreasonable. Petitioners’ Reply Brief at 3. But “the reasonableness of an accommodation is ordinarily a question of fact” for the jury to decide. 743 F.3d at 1233. The Ninth Circuit vacated (in relevant part) the summary judgment order and remanded.

It’s understandable that cities and police departments are concerned about the application of Title II to arrests. All parties concede that circumstances on the scene may be dangerous, fluid, and unpredictable. And no one expects police officers to be doctors or mental health specialists. But what we can expect is that officers be properly trained and act reasonably. The appeal before the Supreme Court is not concerned with whether these particular officers violated this particular plaintiff’s civil rights. Instead, the appeal is about whether she will be allowed to go to trial at all, where she would have to prove to a jury, as a factual matter, than the officers’ behavior was unreasonable. In other words, the question is whether she will ever get her day in court. Under the City’s proposed analysis, the answer is no: the officers’ conduct was either beyond the reach of the ADA, or else was reasonable as a matter of law. But as the Ninth Circuit pointed out, reasonableness is not a question of law, but of fact.

The United States, in an amicus brief with the Supreme Court, articulates a slightly different view, contending that Title II does indeed apply to all arrests, but that when police are responding to a situation involving an armed and violent suspect, a presumption arises that an accommodation on the basis of disability is unreasonable. Brief Amicus Curiae of the United States, p. 10. “Because a modification in arresting a suspect with a disability who is armed and violent presents significant safety risks in the run of cases, it will ordinarily be unreasonable.” Id. at 21. The United State concludes that the case should be remanded to the district court for a reconsideration of the summary judgment motion, and that if the plaintiff can demonstrate “special circumstances showing that an accommodation was reasonable on the particular facts despite the presence of a weapon and violent behavior during an arrest,” summary judgment for the City on that basis would be inappropriate. Perhaps this is a reasonable compromise—plaintiffs usually have the burden of pleading a prima facie case anyway. In any event, such a position does not contradict the Ninth Circuit’s decision that the district court’s order be vacated and the case remanded.

The City of San Francisco can’t have it both ways. If it is a champion of the ADA, as it claims, it should abandon its arguments that Title II does not apply to arrests, or that any accommodation of an armed and violent suspect is per se unreasonable. Civil rights protections don’t disappear when they are inconvenient. Indeed, that may be when they are most important.