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)).