Sheehan’s Shooting: Is There a Better Way?

By Dunia Dickey

 

Introduction

This term, the Supreme Court  Cheap Canada Goose Jackets Export Sales will decide a momentous case which highlights the prevalence of police shootings of individuals with mental illness.   This case also brings to light evidence-based practices that have been developed to prevent the use of force in circumstances involving mentally ill or emotionally disturbed persons.

City and County of San Francisco v. Sheehan (Sheehan) arises from the case of a mentally ill woman shot by two San Francisco police officers in 2008.  The case raises the question of whether the Americans with  Canada goose calling techniquesDisabilities Act (ADA)’s reasonable modification requirement applies when an individual with mental illness or other disability poses a direct threat to law enforcement or the public.(1)

Sheehan is also of interest in light of our present national conversation about police violence.  Although comprehensive data is lacking, statistics suggest that at least half of the total number of people shot and killed by police each year in the U.S. have mental health problems.(2)   Often, the victims are both minorities and suffering from a mental illness.  Most recently, the cases of Jason Harrison, a Dallas man killed by police, and Anthony Hill, who was shot by police in Atlanta, garnered national attention.  But in many cases, all that remains are family members’ individual tales of loss.  The tragedy is compounded by the fact that such deaths are usually preventable.

Facts

Unfortunately, the facts(3) of Sheehan present an all too common scenario.  Ms. Sheehan, who suffers from schizoaffective disorder, had stopped taking her medications.  As a result of her deteriorating condition, Heath Hodge, the counseling staff’s supervisor at her group home, decided she needed to be involuntarily committed under California’s Section 5150 in order to receive necessary treatment.  Hodge called the police non-emergency line and requested help to transport Ms. Sheehan to the hospital.  When Officer Katherine Holder and Sergeant Kimberly Reynolds arrived at the home, they opened the door to Sheehan’s room, whereupon Sheehan rose from her bed, grabbed a bread knife and started walking toward the officers.  Sheehan told the officers she did not need their help and wanted them to leave her alone.  She threatened the officers verbally and yelled at them to get out of the room.  The officers drew their guns and retreated, whereupon Sheehan shut the door.

At this point, the officers called for backup, reporting a barricaded suspect wielding a knife.  Although backup officers already had both the back and the front of the building covered, Holder and Reynolds did not wait for anyone to arrive – with guns drawn, they forced open the door to Sheehan’s room, where they knew they would find a mentally ill woman confronting them with a knife.  When Sheehan stepped forward with her bread knife and told the two officers to “go away” and “leave me alone,” the officers responded with pepper spray and then shot Sheehan four times, shooting her once more in the face after she had already fallen to the ground.  Fortunately, Ms. Sheehan survived.  She subsequently brought a civil rights lawsuit against the individual officers and the City and County of San Francisco.

Many confrontations between police and mentally ill persons occur in the context of a welfare check or a call for involuntary commitment.  In such cases, as in Ms. Sheehan’s, no crime has been committed and officers are called to assist – not arrest – the individual.  It is predictable an individual suffering from untreated mental illness may wish to be left alone and may react to law enforcement with threats, resistance or attempts to run away.  Such circumstances too often result in injury to the individual or charges of felony assault, which can carry a lengthy prison sentence.

Americans with Disabilities Act (ADA) Issues

In her lawsuit, Sheehan argues that the two officers violated her rights under Title II of the ADA by failing to take into account her mental illness and so offer her a reasonable accommodation under the Act when they stormed into her room, guns blazing, and very nearly killed her.  She claims, in part, that (i) the ADA applies to all law enforcement activities, including arrests and (ii) even when an individual with a mental illness poses a direct threat to law enforcement or others, the individual is nevertheless “qualified” to receive a reasonable accommodation under the ADA so long as the proposed modifications are reasonable and would eliminate the threat.

Although San Francisco now concedes that the ADA’s protections extend to arrests,(4)  it argues that where a direct threat to the officers or public safety is present, law enforcement is not required to take an individual’s disability into consideration and is justified in using force – even deadly force – without first attempting to peacefully de-escalate an encounter with a mentally ill or emotionally disturbed individual who may pose a threat.

Both legally and in terms of policy, San Francisco’s argument is untenable.   Under the statute, the presence of a “direct threat” would only disqualify an individual from the protections of the ADA if the proposed accommodations could not have eliminated the threat.  In many cases, however, proven best practice techniques such as Crisis Intervention Training (CIT) and de-escalation tactics can eliminate a potential threat, rendering the disabled individual “qualified” to receive the protections of the ADA.

It simply makes no sense to apply the direct threat exception to the ADA when an individual’s mental illness or emotional state is the very reason for the police officer’s interaction with that person.  Suggesting that CIT training and other de-escalation tactics are not required in precisely the types of situations for which they were designed would eviscerate the very purpose of the ADA—which is to protect individuals with disabilities from discrimination on the basis of such disability.

San Francisco’s argument would result in no protections whatsoever for individuals with mental illness who are exhibiting threatening behavior as a result of their mental illness.  This policy goes beyond the mere criminalization of mental illness – it creates an invitation for law enforcement to execute people exhibiting symptoms of untreated severe mental illness.

Reasonable Accommodations & Best Practices

If Sheehan is right that an individual with a mental illness posing a direct threat to law enforcement is due reasonable accommodations under the ADA, what types of accommodations are reasonable in such circumstances?

In a number of amicus briefs, the ACLU, American Psychiatric Association and others suggest that the ADA requires that law enforcement employ widely accepted policing practices that employ containment, coordination, communication and time to their advantage in order to achieve safer outcomes – safer for both the individual in crisis and law enforcement.  Law enforcement officers who have undergone CIT training have the knowledge to identify symptoms of mental illness and are armed with de-escalation techniques to safely and effectively defuse an encounter with a mentally ill or emotionally disturbed individual.(5)

Another evidence-based best practice in this context is the co-responder model, in which a law enforcement officer and a clinician collaboratively handle calls as second responders at the scene.  Working together, law enforcement and clinicians learn from each other and are equipped to secure and calm a potentially volatile situation—often resulting in an outcome that avoids the use of force.  In LA, mental health clinicians and law enforcement are housed together in the LAPD’s Mental Evaluation Unit (MEU) and respond to calls as a team.  These teams not only effectively defuse police encounters involving mental illness crises but also connect individuals with follow-up resources and treatment.

If Officer Holder and Sergeant Reynolds had received CIT training, or had been able to call upon CIT-trained second responders or a co-responder unit, there is a good chance that Ms. Sheehan could have been calmed and taken into custody peacefully by means of taking additional time, using non-threatening communication, and problem-solving with the individual.

Recognizing that de-escalation alone may not work in every situation, law enforcement should also explore the use of less than lethal force.  What options and protocols are available to employ Tasers, bean bag guns, and other less than lethal means to take someone into custody?

Sergeant Greg Jones of the Denver Police Department recounts a counterpoint to the facts in Sheehan.  Sgt. Jones is a CIT expert who regularly teaches CIT classes for other officers.  Called in response to a suicidal man in his early twenties who was threatening to slit his throat with a kitchen knife in his grandmother’s apartment, Sgt. Jones and a team of backup officers formulated a plan to deescalate the individual enough to disarm him without resorting to deadly force.  Protected by a police shield, over the course of an hour and a half, Sgt. Jones first emotionally exhausted the suicidal man by making him think about how his beloved grandmother would feel if she found her grandson dead in her apartment.  When the man momentarily lost focus and dropped his guard, Sgt. Jones seized the opportunity to pin him against a wall with his police shield and with the help of backup officers, successfully disarmed him. The suicidal man was then taken to a hospital for treatment.

Such examples of creative de-escalation techniques combined with the use of non-lethal force abound and can serve as a model of best practices in bringing a potentially violent situation to a peaceful resolution.

The Bigger Picture

Bombarded by stories like Sheehan’s or worse, one might pause and ask: why are police being called in situations involving mentally ill people in the first place?  The fact is that over the past three decades, we have witnessed a striking transfer of responsibility for the health and welfare of mentally ill persons from mental health professionals to law enforcement officers.

According to a Joint Report by the Treatment Advocacy Center and the National Sheriffs’ Association from 2013, law enforcement officers now function as the frontline “outpatient system” due to a failure by the mental health community to treat individuals with serious mental illness, particularly those that may present violent tendencies.

Police departments around the nation are being overwhelmed “dealing with unintended consequences of a policy change that in effect removed the daily care of our nation’s severely mentally ill population from the medical community and placed it with the criminal justice system.”  While CIT goes a long way toward making the best of a bad situation, despite all the CIT training in the world, law enforcement officers will never be mental health clinicians, nor should we expect them to be.

According to the Joint Report, most of the mentally ill persons who were shot by law enforcement officers were not being treated for their mental illness at the time of the shootings, and some of these individuals were well-known to police.  In some instances, the individual who was shot appeared to be provoking the police to shoot him or her – episodes sometimes referred to as “suicide-by-cop.”

Why were these individuals not being treated in the first place?  Who is responsible?  Why do we as a society find it acceptable to wait until a person with mental illness “reaches Stage 4,” at which point we either handcuff, injure or shoot the person in crisis?  Imagine if rather than focusing on prevention, we waited until a cancer patient reached the end and then threw him or her in jail, or worse.  If we accept that mental illness is in fact an illness of the brain and not a moral defect, how can we justify this drastic difference in approach?

When the Department of Justice investigates incidents of excessive force against persons with mental illness by police or correctional officers, it should also look at possible failures of the mental health treatment system.  Mental health officials should be held equally as liable as law enforcement officials.  To the extent that funding for community mental health is responsible for a gap in effective mental health treatment, lawmakers – and we, their constituents – also share responsibility.

Any long-term solution to the epidemic of police shootings of mentally ill people will require effective mental health care in the least restrictive environment.(6)   We must accept that for some severely mentally ill persons, such treatment may be intensive, long-term and costly.  However, funding effective mental health treatment will result in long-term cost savings in decreased strain on law enforcement resources, as well as fewer visits to jails, emergency departments and courts.  Most importantly, such treatment would reduce mental health crises that today, too often result in the death of the would-be patient.

Conclusion

In the absence of longer-term solutions, the Sheehan case could go a long way toward reducing the number of persons with mental illness killed by police.

One significant fact on which this decision may turn is the national prevalence of CIT training and other de-escalation techniques.  To the extent that such training and other best practices are already widely embraced by numerous jurisdictions around the country, these policing practices may now represent the yardstick against which all police and sheriff’s departments will be compared—and against which the reasonableness of the two San Francisco officers’ actions will be judged.  San Francisco itself adopted CIT training in 2011 in response to the overwhelming number of calls from or involving mentally ill persons.  New York City is now instituting a 36-hour mental health training based on the LAPD’s model as part of Mayor DeBlasio’s Task Force on Criminal Justice and Behavioral Health Action Plan.

If the Supreme Court were to find that the ADA requires reasonable accommodations for individuals with mental illness even when they may pose a direct threat, it’s likely that law enforcement departments nationally would be obligated under federal law to provide CIT training to at least a portion, if not all, of their officers and to ensure that CIT-trained officers are dispatched to incidents involving mentally ill or emotionally disturbed persons.  Certainly, in circumstances like Sheehan’s where officers are called to take someone into treatment on an involuntary commitment, a CIT-trained officer likely would be required as a reasonable accommodation under the ADA.

The significance of such a result cannot be overstated—safer outcomes for the individual in crisis, law enforcement and public safety, and fewer unnecessary deaths of persons with mental illness.  If the Supreme Court sides with San Francisco, however, the practical outcome will be more of the same—more of the news stories we read nearly every day of yet another person suffering from mental illness unnecessarily injured or killed by police.

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(1) See 42 U.S.C. § 12132 (“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”).  Federal regulations provide that the duty of non-discrimination extends to requiring public entities to make “reasonable modifications” to their services and activities to enable full participation by a qualified disabled individual.  28 C.F.R. § 35.130(b)(7).

(2) In statistics released in March 2015, the Bureau of Justice Statistics (BJS) reveals that between 2003-09 and 2011, a total of 7,427 people were killed by law enforcement – an average of 928 law enforcement homicides per year.  Although BJS breaks out victims by race, sex and age, it does not track victims’ mental health status – a gap that should be filled.

(3)  A full statement of the facts can be found in Ms. Sheehan’s Supreme Court brief.

(4)  In lower court filings and its petition for certiorari, San Francisco argued that the ADA does not apply to arrests at all, but inexplicably changed position in its merits brief.  In oral arguments, the Supreme Court expressed frustration with this change in tactic.

(5) Sheehan points out that such techniques are now universally accepted police practice and as such do not even constitute an “accommodation” under the ADA.

(6) See Olmstead v. L.C., 527 U.S. 581 (1999).

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