Tag Archives: police

Phoenix Police Department Creates Mental Health Advisory Board

The Phoenix Police Department is making serious strides in how it handles situations where individuals have mental health issues.

“The board, made up of mental health professionals, will help police with training methods when it comes to dealing with mentally ill cases, and include regular reviews of protocol.”  According to reporting by ABC 15 News.

I am really proud of the Phoenix Police Department for making this first step and creating an advisory board. This is an example of the standard of professionalism set by the department.  Accepting that more could be done, Phoenix police are actively engaging experts in the community in how to handle complex situations that involve individuals with mental health issues.

As I have argued in the past, on this website, I believe the Americans with Disabilities Act creates an affirmative duty for police to accommodate individuals with known mental health problems (it must be known to the police too).  The task force could recommend what reasonable accommodations could be made by police officers during investigations.

Procedures and guidelines for police on mental health calls in Phoenix are less than clear from at least the public’s perspective.   ABC 15 News did report in the article linked to above that on each mental health call performed by Phoenix police, an officer and a Sargent trained in crisis intervention are on hand.  Presumably the crisis intervention training includes a mental health aspect — or at least I would hope so.

While many more mental health calls go on each day than are reported in the news, two high profile situations yielded very different results.

The use of deadly force during mental health calls by the Phoenix Police Department is still concerning to me.  It is not clear if non-lethal options are available, and if so, are taught as a first option in the crisis intervention training.  The news articles appear to only mention police use or potential use of guns. Perhaps this is just incomplete reporting by the local news media.  On the other hand, I would like the advisory board and for Phoenix police to focus on non-lethal options.  Of course there are times when lethal force is necessary to protect law enforcement and citizens, it should be a last resort in situations with known mental health issues.

I think that is a reasonable accommodation.

Phoenix Police Kill During Mental-Health Call

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.

The Police’s Duty to Accommodate Under the Americans With Disabilities Act.

Police Have Affirmative Duty to Accommodate Disabilities.

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)).

Continue reading Phoenix Police Kill During Mental-Health Call

Phoenix and Tucson Police Directives

The Tucson provides their directives online on governmental websites (a link is at the bottom of the post).  It appears there is some type of trend for the most populous cities in the United States to provide their directives online, either voluntarily or through a court order.

I think it is great police are posting their directives online.  It is a win-win for all.  Some might not think allowing anyone with an internet connection to see the inner-workings of the largest police stations in the state and nation would be a good thing, but let me explain first.

When voluntarily provided the police are able to set the terms on what and how it is distributed.  For example, in the Phoenix Police Directives, Section-9, which describes tactical plans is omitted from public view (for a while the Phoenix Police directives were available on the Phoenix Police website, which does not appear to be the case anymore).  When police voluntarily share information with the public they are the arbiters of what is included, like when the Phoenix Police decided their tactical plans should remain private.  I think that should be applauded.  If the public is able to reference police procedures, it can build trust within the community.

For example, the Tucson Police General Orders, subsection 2200 Constitutional Issues, indicates the do not pay for informants — good to know.  If someone ever claiming to be a police officer offers me money for information, I will know to be suspect of the situation.  Knowing Tucson’s police current policy and being able to reference it quickly via the internet instills trust and confidence that I have in them.

Phoenix Police Department Procedure / Manual

Phoenix Police Department Procedure / Manual

This is an example directive taken from the Tucson police manual.
Tucson Police Department Manual / Procedure.

I have not yet have had the time to go through and compare the procedures of Phoenix, Tucson, and Mesa on every single point.  What I think would be really interesting is to see what if any differences there are between the different departments.  My guess is that there may not be too much of a difference because there are companies that provide boilerplate for police departments.

One thing I did look for is how the police treat citizens who they know suffer from mental health.  The Phoenix Police have several policies that deal with mental illness — some of which go above and beyond what other major cities apparently require.  I will go into detail further at a later date.

Access the directives here:

Phoenix Police directives (this is a direct link and the file is more than 1,200 pages in length.  Please be advised it is a large file).  Note: It appears that the Phoenix Police Department at least has temporarily removed their directives from their website.  The copy provided below is what I previously downloaded while it was publicly available on the internet.

Tucson Police directives

See my earlier post about the city of Mesa Police directives.

***It is important to note police directives may be updated at any time.  Thus, there may be new directives or revised directives that are not included.

Mesa, Arizona Police Department Directives

Through an Open Records Request, the Mesa Police Department shared with me their directives.

Mesa Police Directives Theft Investigations
Mesa, Arizona Police Directives Theft Investigations

Police directives come by several interchangeable names including procedures and manuals. Basically are two types of directives for police: written and unwritten.  Written directives are crafted for scenarios that are foreseeable that police may encounter.  Oral directives are left for times where the scenarios are unforeseeable.  It can be argued that the written directives set a self-imposed standard of care.  By looking at the directives, a person will have one sign post in which to to help make a determination if which the police acted in accordance with their own standards.

Here are the Mesa Police directives (it is a large file almost 1,300 pages in length, so it is probably best to download it to a place where you can read it).

*** It is important to note police directives may be updated at any time.  Thus, there may be new directives or revised directives that are not included.

 

 

 

Arizona Legal News

  • Arizona legislators filed a friend of the court brief to encourage the Ninth Circuit Court of Appeals to implement new restrictions on use of abortion-inducing drugs.  [ABC15]
  • A new report claims the Border Patrol fails to take action on complaints.  Out of 809 complaints of abuse from Jan. 2009 to Jan. 2012 only 13 resulted in any kind of action, according to the report.  [AZCentral]
  • The Arizona Court of Appeals – District 1 is partially overturning a Superior Court ruling on police negligence.  In the aftermath, of a car accident in which one of five passengers died, the police mistakenly told the wrong family their child died.  The family sued for intentional infliction of emotional distress [IIED] and negligence of the police officers.  The Court of Appeals ruled there isn’t enough for an IIED claim to go to trial, but there is enough for negligence.  The Court reversed the summary judgment on the negligence claim and cleared the way for a trial.  [AZ Court of Appeals]
  • Three top officials at the Phoenix VA have been placed on administrative leave, one of whom is the director.  The allegation that forty or more veterans died while waiting for care is making waves nationally.  [CNN]

Police Have Affirmative Duty to Accommodate Disabilities

The police are subject to Title II of the Americans with Disabilities Act.

[N]o 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.

— 42 U.S.C. § 12132.

Before the analysis goes too far, it is important to note not all disabilities are covered by the Americans with Disabilities Act.  Not just anyone with a disability is covered — it must be a “qualified individual.”  An individual with a disability is: a person with a physical or mental impairment that substantially limits a “major life activity.”  Direction for which disabilities substantially limit major life activities is defined in the statute: 42 U.S.C. § 12131(b) and 42 U.S.C. § 12102.

The language of the legislation says that a qualified individual cannot be denied the benefits of a public service or program.  Courts have interpreted this to mean that there is an affirmative duty, or a legal obligation to serve the disabled in a reasonable manner.[1] The United States Supreme Court said to prevent unconstitutional behavior, it must be prophylactic.  In other words, there must be something in place ahead of time to reasonably anticipate the needs of those with known disabilities.

Planning ahead of time in how to accommodate the disabled is a challenging proposition because each investigation is different. Investigations into domestic abuse provide a different set of challenges than road side traffic stop.  Crafting universal policies to deal with the various disabilities is difficult enough, but to apply those policies to the multitude of investigation types can be daunting.

Allowing uniformly-applied, disability-neutral policies to trump the ADA requirement of reasonable accommodations would utterly eviscerate that ADA requirement.

— Holly v. Clairson Indus., L.L.C., 492 F.3d 1247, 1263 (11th Cir. 2007).

On the other hand, allowing the police to treat everyone the same during an investigation would directly contradict the intentions of the Americans with Disabilities Act.

The accommodation must be reasonable and not create an undue burden for the police (since we are specifically talking about police investigations).

What is reasonable is usually judged on a reasonable person standard.  To use the standard the judge or a jury is asked to put themselves in the place of an imaginary person who is completely objective and of reasonable intelligence.[2] To judge if the accommodations are reasonable, a reasonable person would look to see if the accommodations “take steps to ensure that disabled persons have equal access to the goods and services such places offer.”[3] There may be the possibility that there may be more than one reasonable accommodation.  If there is, in fact, more than one reasonable accommodation then the police have a choice on which accommodation to choose.  The Americans with Disabilities Act says only a reasonable accommodation must be provided, not the best accommodation.[4]

Thus, there is a balancing act that courts undertake, especially in police investigations to apply the affirmative duty unless it imposes an “undue burden.”[5] Undue burden is intentionally left undefined, because multiple factors are involved to determine what unduly burdens a public program or service.  Using the example of police investigations, situations that create an undue burden on the Payson Police Department are probably most likely different than the Phoenix Police Department. Notwithstanding, the size and resources of each police department, courts also look to see what resources may be ascertained on short notice. Payson is a fairly isolated town in the middle of the Tonto National Forest that lacks resources from neighboring towns or cities.  If a problem arises that the city of Phoenix cannot handle on its own, it can ask for the support from any city in Maricopa County.

As each case is different in nature, the court will undertake the determination of what is a reasonable accommodation and what is an undue burden.  The court will look at all of the facts in a particular case and weigh the totality of the circumstances in making a determination.

In conclusion, the Americans with Disabilities Act creates an affirmative duty for the police to take some measures to accommodate the disabled ahead of time.  However, what that duty is remains unclear because of the fluid nature of police investigations.  In future posts in this series examining the police’s duty to accommodate, it will be analyzed in depth what circumstances require accommodations by the different circuits.

Part 1: The Police’s Duty to Accommodate Under the Americans with Disabilities Act

[1] Tennessee v. Lane, 541 U.S. 509, 533 (2004) (holding “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.’”).

[2] Donahoo v. Master Data Ctr., 282 F. Supp. 2d 540, 557 (E.D. Mich. 2003). (“In this case, none of Defendant’s conduct was so extreme that a reasonable person would exclaim “Outrageous!” upon reviewing the facts described above”).

[3]Hahn ex rel. Barta v. Linn Cnty., 130 F. Supp. 2d 1036, 1057 (N.D. Iowa 2001) (stating “the ADA places an affirmative duty on owners and operators of places of public accommodation to make reasonable accommodations and to take steps to ensure that disabled persons have equal access to the goods and services such places offer”).

[4] “The agency was not required to provide [the Plaintiff] with the exact accommodations that [the Plaintiff] requested or the best accommodations, as long as what they provided was reasonable.” Ransome v. Barnhart, CCB-03-2532, 2005 WL 1075370 (D. Md. May 5, 2005).

[5] Toledo v. Sanchez, 454 F.3d 24, 32 (1st Cir. 2006) (stating “Title II imposes an affirmative obligation on public entities to make their programs accessible to qualified individuals with disabilities, except where compliance would result in a fundamental alteration of services or impose an undue burden.”)

The Police’s Duty to Accommodate Under the Americans With Disabilities Act

The police investigate every type of person in society — even those with known disabilities.  Until the last fifteen years or so, the question of whether the police had to make any accommodations to qualified individuals with disabilities during an investigation was not even asked. Plaintiffs now are often asserting a violation of the Americans with Disabilities Act (ADA) and § 1983 civil rights.

The Americans with Disabilities Act was passed in 1990 with the intention of protecting the vulnerable of society because historically their rights have been stripped at times.

Discrimination, in the Fourteenth Amendment sense, connotes a substantive constitutional judgment that two individuals or groups are entitled to be treated equally with respect to something.

— City of Cleburne v. Cleburne Living Ctr, 473, U.S. 432, 470 (1985) (Marshall, J., concurring in part and dissenting in part).

The reason, in theory at least, why the Americans with Disabilities Act applies to police investigations is because people with disabilities are not given the same opportunities as those without disabilities.  A person who is deaf cannot communicate with police the same as a person with can hear.  A person who is autistic lacks in verbal and non-verbal skills and may have difficulty in communicating with the police. Both of these individuals suffer from disabilities, but how it affects them is completely different.  Lack of communication between police and an individual is something that people without disabilities do not have to worry about.  Thus, differential treatment can occur.

Where a plaintiff alleges that she was arrested because of his disability (and not because of the perpetration of some crime unrelated to his disability) the police generally have a duty to accommodate and 42 U.S.C. § 12132 comes into play.[1]   Section 12132 creates a duty that requires public entities to take appropriate steps to ensure communications with qualified individuals are as effective as communications with others.[2]  Reasonable accommodations shall be furnished to allow people with disabilities “an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity of a public entity.”[3]

The application of the ADA to law enforcement activities, such as prison administration,[4] parole board,[5]  access to court,[6] are held to be public programs or services within realm of § 12132.  However the courts do not agree on whether police investigations involving exigent circumstances are afforded reasonable accommodations.

The entire duty to accommodate is based upon the premise that disabled people are sometimes denied services based upon their disability.[7]  Persons with mental illness are historically a vulnerable population who are subject to discrimination.[8]  Congress created the ADA to help create an equal playing field for those suffering from disabilities.[9]  Because of the ADA public entities have an affirmative duty to make reasonable accommodations.[10]  The affirmative duty puts the burden on the public entity to act.[11]

However, police investigations are unique in their fluid nature it can be very difficult predict an action.[12]   Some courts reason a police officer responding to a 911 call or witnessing a crime has very little time in which to think or plan the best way to apprehend, subdue, and question the participants. [13]  In other areas of law enforcement activities allow more time to ensure their actions satisfy the requirements of the ADA.

Police investigations are special and are different from other types of law enforcement where the courts have clearly upheld the duty to provide reasonable accommodations.  However, there is still this general duty to accommodate people with disabilities that the police must adhere to.  The courts balance the general duty to accommodate with the safety of the police officers in making their decisions.

*** This is part 1 of a multi-part series that will look in-depth what the police must do to reasonably accommodate people with disabilities during police investigations.

Part 2: Police Have an Affirmative Duty to Accommodate Disabilities


[1] “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.” 42 U.S.C.A. § 12132 (2011).

[2] 28 C.F.R. § 35.160(a)(1).

[3] 28 C.F.R. § 35.160(b)(1).

[4] Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 212 (1998).

[5] Thompson v. Davis, 295 F.3d 890, 899 (9th Cir. 2002) (holding parole board may not categorically exclude inmates with history of drug abuse from consideration for parole).

[6] Tennessee v. Lane, 541 U.S. 509, 533 (2004).

[7] Frame v. City of Arlington, 616 F.3d 476 (5th Cir. 2010) (en banc) (holding for reasonable accommodations to be made there must be: 1. Qualified Individual with a disability; 2. Excluded, denied services or programs of a public entity, or was discriminated against; 3. Exclusion was because of the disability).

[8] “[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)).

[9] “[P]hysical or mental disabilities in no way diminish a person’s right to fully participate in all aspects of society, yet many people with physical or mental disabilities have been precluded from doing so because of discrimination.” 42 U.S.C.A. § 12132 (1) (2011).

[10] “A public service or program has the burden of proving that compliance with this subpart would result in an undue burden.” 28 C.F.R. § 35.164 (2012).

[11] Tennessee v. Lane, 541 U.S. 509, 533 (2004) (holding “Title II’s affirmative obligation to accommodate persons with disabilities”. . .  “[is] a reasonable prophylactic measure, reasonably targeted to a legitimate end.”)

[12] Tucker v. Tennessee, 539 F.3d 526, 536 (6th Cir. 2008) (explaining that “imposing a stringent requirement under the ADA is inconsistent with th[e] expectations [that]. . . law enforcement officers. . . respond fluidly to changing circumstances and individuals they encounter. . . and impedes their ability to perform their duties”).

[13] Seremeth v. Bd. of Cnty. Comm’rs Frederick Cnty., 673 F.3d 333, 340 (4th Cir. 2012) (stating “[n]evertheless, 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.”)