Last week the Phoenix Police Department shot and killed a woman while trying to serve a mental health order. Caseworkers “were trying to get her to come in for treatment. It got to the point that she wouldn’t do that. … She had a weapon and was making threats.” Reported the AZ Republic.
Last spring I gave a talk to several Arizona charities and non-profits about what the Americans with Disabilities Act requires as “reasonable accommodations” when law enforcement agencies enter into situations with people who they knew have a mental illness. The ADA was passed by Congress only in 1990 and only a handful of cases involving the ADA and the police have made it to federal court of appeals, let alone cases specifically dealing with mental illness. This is an emerging area of the law and there is not much written about it.
This incident with the Phoenix Police Department fits that situation precisely. The Phoenix Police Department is a law enforcement agency and is governed by Title II of the Americans with Disabilities Act, dealing with public entities. Title 42 U.S.C. § 12131, et. seq. A person with a serious mental illness with a serious mental illness qualifies for the protections of the Americans with Disabilities Act. Title 42 U.S.C. § 12132 (1). Lastly, since the police are aware of the disability, they should make reasonable accommodations.
“Title II’s affirmative obligation to accommodate persons with disabilities in the administration of justice cannot be said to be so out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior. It is, rather, a reasonable prophylactic measure, reasonably targeted to a legitimate end.” Tennessee v. Lane, 541 U.S. 509, 533 (2004) (internal quotation marks omitted).
Even the United States Supreme Court acknowledged individuals with mental illness are persons with disabilities who have suffered unconstitutional behavior in the past, and need the prophylactic protections of the ADA.
[T]he mentally retarded have been subject to a ‘lengthy and tragic history,’ of segregation and discrimination that can only be called grotesque.
— City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 461 (1985) (Marshall, J., concurring in part and dissenting in part) (quoting University of California Regents v. Bakke, 438 U.S. 265, 303 (1978)).
Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.
— Title 42 U.S.C. § 1213.
In theory the Americans with Disabilities Act should apply to police investigations, such as serving mental-health orders. However, there is a circuit split as to whether the Americans with Disabilities Act should govern police investigations or not.
“Nevertheless, as in the criminal procedure context, we are reluctant to question the snap judgments of law enforcement officials in situations in which a reasonable officer would fear for his safety and for the safety of those he is charged to protect.” Seremeth v. Bd. of Cnty. Comm’rs Frederick Cnty., 673 F.3d 333, 340 (4th Cir. 2012); See Tucker v. Tennessee, 539 F.3d 526, 536 (6th Cir. 2008).
Police work is very fluid and can change and in a split second in even the most routine situations. For example, no two traffic stops are the same. And even for something as routine as a traffic stop, police need to make “snap judgements.” Police are in a unique and very difficult position. They can be put in situations in where lives (the police’s or others’) are in danger and need to react on the spot.
Therefore planning out reasonable accommodations ahead of time can be fruitless at best and dangerous at worst, considering the ever-changing nature of police investigations.
“[T]he Phoenix Police Department serves an average of 10 mental-health orders each day and that they are some of the most challenging and potentially dangerous tasks for officers,” according to the AZ Republic story. If this fact is accurate, that means the Phoenix Police handle approximately 3,500 mental health orders a year. This is not an insignificant amount.
Although, police are in a unique position, I believe the Americans with Disabilities Act still applies to them when they enter into a situation with a person who has a known disability. I have argued previously the ADA creates an affirmative duty for police officers to take reasonable accommodations.
I think there has to be some sort of middle ground where reasonable accommodations can be made while still protecting the officer’s safety and maintaining the integrity of police work.
Just because people with mental illness pose different obstacles for police to deal with does not mean that we should treat everyone the same during police in investigations. We do not check people with mental illness’ rights at the start of police inquiry. Their rights endure, but the middle ground must be found.
Here are some suggestions to help police departments across the country to make reasonable accommodations for interacting with known mental illnesses:
1. There should be training course annually to help train officers interact with people with mental illnesses. A little understanding can go a long way!
2. Mental health calls should be treated like firearm training for police: 1. safety, 2. speed and accuracy. Safety should for both the mentally ill and the officer should be the first objective. Safety can and should involve non-lethal techniques to disarm or de-escalate a situation.
3.There should be on-going discussions between police administration and mental-healthcare professionals on the best practices. Mental-healthcare is an ever evolving and police administration should be in touch with mental health professional at least annually to keep up with the best practices, in order how to advise their police force.
***The Phoenix shooting of the woman who was mentally ill, is still very new. I presume not all of the facts are available, nor do I have all of the facts (I have just read media reports). In no way am I criticizing the Phoenix Police’s handling of this particular incident. I do not have enough information to make an informed decision. What I am doing is trying to use this unfortunate situation and start a conversation and suggesting in general (not just in Phoenix) police should have more special training to deal with situations in which they know they will interact with an individual who is mentally ill. I certainly do think the Americans with Disabilities Act requires “reasonable accommodations” when police interact with individuals who are known to be mentally ill, the question is what is reasonable.