Can the Americans With Disabilities Act Reduce the Death Toll From Police Encounters With Persons With Mental Illness?

Roughly every 36 hours, somewhere in the United States, a person with mental illness is shot and killed by police. A team of reporters from the Washington Post tracked every police shooting in the United States in 2015 and found that, at the year’s halfway point, at least 25% of the 462 fatal police shootings involved someone with mental illness (1). Similar efforts by other journalists suggest an even higher proportion in some areas of the country—the figure in Maine from 2000 to 2012 was 58% (2). Even if we accept the inevitable imprecision in such data and the absence of reliable government statistics, it seems clear that officers in this country are vastly more likely than police in other developed countries to kill citizens they encounter, including people with mental illness (3).

Although the basis for many of the killings of people with mental illness appears questionable, individual officers and their departments rarely face sanctions. Even as a growing number of police forces around the country implement programs intended to teach officers how to deal more appropriately with people with mental illness, it is not clear that these efforts have reduced the number of deaths. Thus it was with considerable interest that advocates greeted the decision of the U.S. Supreme Court to review a California case involving a woman with mental illness who had been shot by police and survived. The case, San Francisco v. Sheehan, raised the critical question of whether law enforcement personnel must take the mental impairments of citizens into account as they interact with them (4).

Teresa Sheehan and the Police

In August 2008, Teresa Sheehan was 56 years old, with schizoaffective disorder and living in a cooperative residence for people with mental illness in San Francisco’s Mission District. Her social worker, who was told that Sheehan had stopped eating and changing her clothes, went to the residence to check on her condition. Sheehan had not been taking the medications prescribed for her illness for about 18 months. When she didn’t answer his knock on her door, the social worker obtained a key and opened it. Inside, he found Sheehan lying in bed with a book over her face. Seeing him, Sheehan rose from her bed, yelling, “Get out of here! You don’t have a warrant! I have a knife, and I’ll kill you if I have to.” The social worker retreated to the hall and called the police, asking them to transport Sheehan to a hospital for evaluation under California’s involuntary commitment law as gravely disabled and a threat to others (5).

The first police officer who responded apparently lacked experience with transport of persons with mental illness and called for assistance. An experienced sergeant soon arrived. Together, the two officers, both women, knocked on the door, and when Sheehan did not answer, they entered the room. Once more, Sheehan jumped up from her bed, this time actually brandishing a knife and threatening to kill the officers if they didn’t leave. Withdrawing to the hallway, the officers called for additional backup. A nonlethal force team was dispatched, but before it arrived, they decided to reenter Sheehan’s room. Forcing the door, with pepper spray and their weapons in hand, the officers found Sheehan standing with a knife in her hand, uttering threats. Within seconds, when pepper spray failed to subdue her, both officers began to shoot. Sheehan sustained seven bullet wounds, including one to her head, but survived the encounter (5).

Without apparent irony, an officer arrested Sheehan in her hospital bed and charged her with making criminal threats and two counts of assault. At trial, she was acquitted of the criminal threat charge, but the jury could not reach a verdict on the assault counts. Ultimately, the prosecutor decided not to retry her (6). Sheehan brought suit against the City of San Francisco and the individual police officers who shot her. She alleged that the actions of the police violated the Fourth Amendment to the U.S. Constitution, the Americans with Disabilities Act (ADA), and various state and local laws. Before a trial could take place, though, a federal district court judge granted summary judgment to the defendants, dismissing all claims. Sheehan appealed to the U.S. Court of Appeals for the Ninth Circuit.

Police Discretion, the Fourth Amendment, and the ADA

The Fourth Amendment provides for “[t]he right of the people to be secure . . . against unreasonable searches and seizures.” Sheehan alleged that the entry of the police without a warrant constituted a violation of that right. In response, the three-judge panel of the Ninth Circuit parsed each component of police actions that led to her injuries (6). With regard to the officers’ initial entry into her apartment, the court held “that the officers were justified in entering Sheehan's home initially under the emergency aid exception [to the warrant requirement] because they had an objectively reasonable basis to believe that Sheehan was in need of emergency medical assistance” on the basis of the information received from her social worker.

However, the judges decided that Sheehan deserved a jury trial on the question of whether the police had behaved unreasonably in forcing their way back into the apartment before back-up arrived, thereby provoking the confrontation that led to her injuries. On the basis of evidence from a police expert enlisted by Sheehan, the court concluded that a triable question of fact existed as to whether the police, knowing that she had a serious mental illness, should have been aware that the use of force was likely to exacerbate the situation and instead should have assumed a nonthreatening manner and tried to calm the situation.

Sheehan’s parallel claim under the ADA was based on Title II, which provides that “no qualified individual with a disability shall, by reason of such disability . . . be subjected to discrimination by any [public] entity” (7). Under the federal regulations that implement the ADA, discrimination includes the failure to accommodate a disability; the regulations require “[a] public entity [to] make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability” (8). Federal circuit courts are split on whether this requirement applies to police taking people into custody, and the U.S. Supreme Court had never considered the issue.

Ruling on Sheehan’s ADA claim, the Ninth Circuit sided with the majority of circuits that had found the ADA applicable to arrests. Reasonable accommodations for persons with disabilities are required, the judges said, but “the exigencies surrounding police officers’ decisions in the field must be taken into account when assessing the reasonableness of the officers’ actions.” Sheehan therefore was entitled to make her case to a jury that “the city failed to provide a reasonable accommodation when the officers forced their way back into her room without taking her mental illness into account.” The court also reinstated several of Sheehan’s state law claims. However, rather than settling the case or taking it to trial, San Francisco appealed the decision to the U.S. Supreme Court, asserting specifically that the Ninth Circuit had erred in concluding that the ADA applies to arrests of persons threatening violence. Given the split among the circuits on this question, the Supreme Court agreed to hear the case.

Should the ADA Apply to Police Apprehensions?

Courts traditionally have been reluctant to limit the discretion of the police. Faced with a question similar to that raised by Sheehan, the Fifth Circuit refused to find the ADA applicable, holding 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” (9). Under the Fifth Circuit’s ruling, ADA protections become operative only after an arrest is completed. Supporting this view, an amicus brief from the National Sheriffs’ Association and others, urging the Supreme Court to hear Sheehan, argued, “If officers are forced to make complex legal calculations assessing the reasonableness of each individual accommodation based on a multitude of factors, rather than simply relying on their training, hesitation and doubt will lead to more officer and civilian injuries and fatalities” (10).

The amicus brief of the American Psychiatric Association (APA), joined by a coalition of mental health advocacy groups, offered a different perspective (11). The APA argued that the ADA should be applied to the entire encounter between police and a person with a mental disorder. Moreover, pointing to the many programs designed to train and assist police in dealing with these situations, the brief argued that such a requirement was practicable and indeed would save money, reduce police injuries, and better serve the public. Approaches identified included police crisis intervention teams (12), mobile crisis teams jointly staffed by police and mental health professionals (13), and “mental health first aid” training for the police. Unless police are adequately prepared to deal with the inevitable encounters with people with mental illness, the toll of deaths will only grow.

The Supreme Court agreed to consider Sheehan to decide whether the ADA “requires law enforcement officers to provide accommodations to an armed, violent and mentally ill suspect in the course of bringing the suspect into custody.” Based on San Francisco’s initial submission, it was clear that the Court expected the city to argue that the ADA was simply inapplicable in such a circumstance. Instead, in its brief San Francisco conceded that the ADA applied to arrests, even sometimes of people who are “armed, violent and mentally ill,” but that it was inapplicable to Sheehan herself, because her direct threats to harm the social worker and the police negated its coverage. The justices perceived this as a bait-and-switch, which was made clear in Justice Scalia’s separate opinion, which angrily scolded San Francisco and suggested punishing the city for its behavior (4).

With neither party making the argument that the Court had agreed to consider, the justices used their discretion to simply avoid deciding the issue, dismissing the question as improvidently granted. However, the justices did rule unanimously that the police officers could not be found individually liable for their actions, because even if the ADA applied to such situations, the law would not have been sufficiently settled for the officers to be held responsible for violating it.

Aftermath of Sheehan

What led San Francisco to back down from its original position? When the Supreme Court agreed to hear the city’s appeal, most informed observers believed the justices intended to rule that the ADA does not apply to arrests, at least in situations in which violence is feared. At that point, a number of civil rights organizations pleaded with the city to give up the case. So long as the federal circuits were split on whether the ADA applied to arrests, they argued, police in many parts of the country had some reason for caution when dealing with people with mental illness. A court, after all, could find that their behavior had violated the ADA. But once the Supreme Court had ruled to the contrary, all reason for restraint would be lifted and the death toll would rise even further. Although we cannot know with certainty that the pressure led to the city’s shift in position, the explanation is plausible (14).

With the Supreme Court’s having signaled its interest in limiting the ADA’s application to arrests, it seems likely only a matter of time before a suitable case allows it to do so. In the meantime, because consideration of the question was dismissed, the Ninth Circuit’s opinion stands. Teresa Sheehan will get her opportunity to demonstrate at trial that the San Francisco police failed to accommodate her disability when they forced a confrontation and shot her seven times. And for now, police departments in most other parts of the country will have a continued incentive to devise better approaches to dealing with people experiencing symptoms of mental illness.