When someone who is mentally ill is causing a disturbance or creating a risk of danger to others, should the police transport the person to a hospital for treatment or can they, perhaps, simply shoot her? Well, of course, you say, they can't shoot her. But you might be wrong, according to police guidelines. This spring, the US Supreme Court will decide.
Police shootings of mentally ill people are not rare. Although no one requires local departments to keep statistics on police shootings, there are many such cases to be found in the official reporters of federal judicial decisions.
On March 23, the Supreme Court will hear a San Francisco case in which two officers shot a woman in her own bedroom. District Court Judge Charles R. Breyer, brother of Supreme Court Justice Stephen Breyer, dismissed her lawsuit against the officers before trial, concluding that she had no issues worth presenting to a jury. She appealed and the Ninth Circuit Court of Appeals reinstated the case. The Supreme Court then took the case at the request of the officers and the City of San Francisco. Justice Breyer has recused himself.
Having written a law review article about interactions between the police and mentally ill people several years ago, when I saw this case on the court's docket, I got in touch with the plaintiff's lawyers and offered to help with their brief. The record, including depositions of the parties and the witnesses, told the following story.
Police Are Called In
In August 2008, Teresa Sheehan lived in San Francisco, California, in a group home for people with mental illness. She had a private bedroom and shared common areas such as the kitchen with other residents. She was in her mid-50s and suffered from a schizoaffective disorder.
Teresa's social worker, Heath Hodge, was concerned that she had been off her medication for a long time, had not seen the house counselor in two weeks, had been wearing the same clothing for several days and had stopped eating, according to housemates. Hodge went to her room to check on her, and when she did not answer his knock on the door, he entered with his key. She was lying on her bed with a book on her face. Hodge asked her some questions, but instead of answering, she jumped out of bed, and yelled at him, "Get out of here. You don't have a warrant. I have a knife, and I'll kill you if I have to!" He left the room, and Teresa closed and locked the door.
Hodge then filled out the necessary paperwork to have Teresa committed for a 72-hour period for evaluation. He called the police to request assistance in transferring her to a hospital, using the non-emergency line because he thought she was not an immediate threat to her own safety and did not think that she would leave her room to harm others. As a cautionary measure, however, he evacuated the building. Then, waiting for the police to arrive, Hodge strolled to the corner store for a bottle of water.
She later said she had not viewed the bread knife as a lethal weapon, but the officers said they did.
On the application for commitment, Hodge checked boxes indicating that Teresa was "gravely disabled" and a danger to others, but not the box that would have indicated she was a danger to herself. When Officer Kathrine Holder and Sergeant Kimberly Reynolds arrived, Hodge told them Teresa was schizophrenic, was not taking care of herself, had been off her medication and had threatened to stab him when he entered her room. He showed them the form he had filled out and told them there was no one else in the building.
The officers decided they needed to see Teresa to determine if she met the criteria for involuntary commitment. They knocked on her door and said they were there to help her. When there was no response, the officers used Hodge's key to enter the room. Teresa got out of bed, picked up a small bread knife, and began walking toward the officers. She later said she had not viewed the bread knife as a lethal weapon, but the officers said they did. She told them she did not need their help, demanded they get out of her room, and threatened to kill them. The officers retreated and Teresa closed the door.
The officers asked Hodge if there was a rear entry to the room. He said the only door was the one they were standing in front of, that the room was on the second floor, and the only other way out was a window. The officers had observed that Teresa was about 5-foot-five and obese, weighing approximately 250 pounds. While inside her room, which measured only a little more than 15 feet by 11 feet, they could see that no one else was there. With Teresa alone in her room with no other exit, and the officers guarding the door from the outside, the situation was stabilized.
The officers then called for backup, reporting a "barricaded suspect" with a knife and asking that additional officers cover the rear of the building. Backup arrived swiftly - Sgt. Reynolds later testified she was "shocked at how quick the sirens were right there, and it was fast, and the response time was very quick." When Reynolds heard these sirens, she sent Hodge downstairs to the front door to let the other officers in.
Meanwhile, according to the computer printout of the dispatcher, Officer James Escobar arrived at the scene at 11:52:39 and six seconds later was directed to the back of the building. At the same time, Officer Constantine Zachos had come to the front of the building and was running up the outside front steps. Two additional policemen, Officer E.R. Balinton and Sergeant Mitchell Campbell, also arrived.
Zachos was at the front door when he heard gunshots. He ran faster up the stairs to the apartment, arriving there according to his testimony "within three to five seconds" after the last gunshot. On the computer printout, the dispatcher entered a report of "shots fired" at 11:53:11.
One bullet shot through Teresa's left breast, a second through her right breast, a third through her right arm, and a fourth tore into her left groin. She fell to the ground. Reynolds then shot her in the head while she was lying on the floor.
What had happened? After hearing the sirens and dispatching Hodge to the front door to let the backup officers in, Reynolds and Holder had not waited for assistance. Nor did they take any other steps to resolve the situation peacefully. Instead of respecting Teresa's comfort zone and attempting to de-escalate the situation, they began hammering her door with their shoulders and kicking it with their feet. By then, the other officers had both the back and the front of the building covered, guaranteeing that Teresa would remain confined. Nonetheless, Reynolds and Holder forced their way senselessly into the room, where they knew they would find a mentally ill woman confronting them with a knife.
Sure enough, as soon as the two officers charged in with guns drawn, Reynolds holding pepper spray as well, Teresa stepped forward holding her bread knife. She told them to go away and leave her alone. Reynolds responded by shooting pepper spray into her face. She screamed, "You're blinding me. You're blinding me. I can't see!"
Reynolds and Holder then immediately opened fire with their .40 caliber SIG Model P229 semiautomatic pistols. One bullet shot through Teresa's left breast, a second through her right breast, a third through her right arm, and a fourth tore into her left groin. She fell to the ground. Reynolds then shot her in the head while she was lying on the floor. This slug flew through the left side of her face, fracturing her eye socket at multiple points, cracking her cheekbone at several locations, finally bursting out through her mouth. Zachos ran in and kicked the knife from Teresa's hand as she lay screaming on the ground.
To everyone's amazement, Teresa Sheehan lived. The City of San Francisco, however, was not done with her. The officers had arrested her immediately, and although she was now permanently physically disabled and disfigured, the local prosecutor pursued charges of two counts of assault with a deadly weapon, two counts of assault on a police officer with a deadly weapon, and one count of making criminal threats against Hodge.
The case against Hodge went to trial in the Superior Court in December 2008. The jury, demonstrating both more sense and compassion than had the police, reported that it could not reach a unanimous verdict on the assault counts and found Teresa not guilty of criminal threats. Her lawyers later reported that 11 jurors had favored acquittal on all counts. The prosecutor evidently decided that enough was enough, and announced that the city would not retry her on the assault charges.
Sheehan Sues the Officers and City of San Francisco
Teresa retained experienced civil rights lawyers and in August 2009, filed suit against Holder, Reynolds and the City of San Francisco, seeking compensation for her injuries. She had been admitted to San Francisco General Hospital after the shooting, where they treated her for the gunshot wounds. She also suffered a fracture to her left leg during the shooting, requiring the implanting of a metal, held in place by screws in her thighbone. She had multiple blood transfusions and surgical procedures, spent two weeks in the hospital, was transferred to the jail and was hospitalized again when the metal rod broke while she was in custody there. She used a wheelchair until March 2009, graduated to a walker, and was finally able to walk unaided by the time she filed suit.
The way in which the Court decides the technical issues determines to what extent public officials are held accountable for violations of citizens' rights.
Teresa's lawyers made two major claims: one against the city of San Francisco under the Americans with Disabilities Act (ADA) and one against the officers under the Civil Rights Act. A section of the ADA, passed by Congress in 1990, provides that government agencies may not discriminate against disabled people when providing benefits through services, programs and activities, and must make reasonable accommodations for disabled people when providing services. The Civil Rights Act, passed in 1871, provides remedies for violations of constitutional rights by local government officials, including police officers. In this case, Teresa claimed the officers violated her right to be free from unreasonable searches and seizures under the Fourth Amendment to the Constitution.
Claims under both the ADA and the Civil Rights Act are hard to win because of the numerous technical defenses available to officials. Depending upon how it decides these issues, the Supreme Court can make it easier or more difficult for people to assert their rights. In other words, the way in which the court decides the technical issues determines to what extent public officials are held accountable for violations of citizens' rights.
In our cities, one out of every 15 people with whom the police interact has a mental illness.
Public access to the process is difficult, because the arguments take place behind a screen woven from constitutional theory and obscure legal doctrine. The screen has become denser and more closely woven over time, as courts have provided officials with more and more refined defenses.
Teresa's lawsuit contends that the police handled her situation improperly; they failed to follow professional training on how to respond to mentally ill persons. As a result, they violated the ADA accommodation requirement and her right to be free from unreasonable searches and seizures.
Police Training in Dealing with Mentally Ill People
Calls in which police officers are required to deal with mentally ill people are common. An officer is far more likely to encounter a person acting strangely due to mental illness than, for example, a bank robber. An analysis of the California Department of Mental Health data showed that over a seven-year period ending in 2007, in 28 counties that included two-thirds of the state's population, officials detained more than 597,000 people on the grounds they were a danger to themselves, to others, or gravely disabled. The defendants' brief in this case acknowledges that nationwide, "medium and large police departments estimate that 7 percent of their contacts with the public involve persons with mental illness." To do the math: in our cities, one out of every 15 people with whom the police interact has a mental illness.
Because these encounters are so common, police departments, including San Francisco's, provide specialized training on how to handle such incidents. The training is the same across the United States. Teresa's lawyers introduced a report and testimony about such training from an expert witness, Lou Reiter, a former Los Angeles deputy chief of police with 20 years experience as a police officer and extensive experience consulting with the United States Department of Justice, numerous police departments, and lawyers on both sides of police misconduct cases. Reiter's report describes how generally accepted police practices, including the instructional materials, training sessions, and roll call training lessons of the San Francisco Police Department, provided simple procedures for officers to follow in dealing with mentally disabled people.
Officers, he explained, are trained to 1) coordinate their approach and ensure that sufficient resources are brought to the scene; 2) contain the subject and respect the comfort zone of the subject; 3) use time to their advantage, understanding that the longer an encounter is allowed to occur, the better the chance of a successful and safe resolution; and 4) employ nonthreatening speech and open-ended questions to facilitate the subject's participation in communication. There is no significant disagreement among police training officers about these methods.
The San Francisco training materials advise officers that telltale signs of mental illness include making "direct threats" and "begging to be left alone," precisely what Teresa was doing.
The decision to treat Teresa as a "criminal" rather than as someone whose behavior was driven by her mental illness substantially increased the likelihood the incident would end violently.
The ADA claim in this case is based on the fact that the police were called to provide Teresa with services relating to her disability, namely, to transport her safely to a hospital where her mental illness could be evaluated. After she threatened the officers, however, they began treating her as a "criminal," rather than as a sick person. Reynolds did not take Teresa's psychiatric disability into account when the officers forced open the door to her room. She testified, "At this point in my mind the disability, the mental illness, however you'd like to refer to it, became a secondary issue. And what I was faced with was a violent woman who had already threatened to kill her social worker."
The decision to treat Teresa as a "criminal" rather than as someone whose behavior was driven by her mental illness substantially increased the likelihood the incident would end in violence. Police officers are used to making criminal suspects behave the way they want them to by issuing orders in a "command voice," which usually works with rational criminal suspects who will follow police orders when they are trapped and outnumbered. Not so with a person suffering from schizophrenia. Listen to Teresa's deposition testimony:
Q. So you felt that it was your legal right to show the officers a knife?
A. Right. I also thought it was in good judgment to show them so they would back off and leave me alone.
Q. Were you concerned that if you were brought to General Hospital that you might be forced to take medication against your will?
Q. Is that one of the reasons why you showed the officers the knife, to prevent that from happening?
A. No. The reason I showed them the knife was to have the right to bear arms in the Constitution. I'm a citizen.
Q. Why didn't you drop the knife?
A. This is my knife. They didn't drop their guns. They didn't even drop the guns after they shot me.
Defenses to the Suit
One of San Francisco's defenses to the ADA claim is that Teresa was not a "qualified person" entitled to accommodations because she posed a danger to the safety of other people. This argument is based on Department of Justice regulations that provide that the law "does not require a public entity to permit an individual to participate in or benefit from the services, programs or activities of that public entity when that individual poses a direct threat to the health or safety of others."
The regulations make sense when a disabled person who is dangerous seeks to use government facilities and when allowing her to do so would create a risk to public safety. Suppose a disabled person wants to become a bus driver, for example, but the nature of her disability would render her a dangerous driver, and there is no accommodation that would remove the danger. That person would not be able to sue the city bus company under the ADA for refusing to allow her to drive a bus.
Teresa, however, was not voluntarily seeking public services. Her disability, her mental state, was the reason the police were called. The very purpose for providing services related specifically to her disability, and it was that disability that created a danger. She argues that because the services were imposed upon her it would be nonsensical to say that she was not a "qualified person" entitled to accommodations.
The Supreme Court has to decide how broadly to interpret the regulations. Big stakes are involved. If it were to decide that Teresa is not a "qualified person" entitled to bring suit under the ADA, then police officers would not have to take into account the nature of mental illness when making arrests, even where they knew the person was mentally ill. Police could not be held accountable under the ADA for ignoring the need to approach mentally ill people with the sensitivity that their illness demands. If the court decides that Teresa is a "qualified person" entitled to accommodations, then the police will have to interact with mentally ill people in a manner that takes their illness into account.
What are the issues on Teresa's constitutional claim? The Fourth Amendment in the Bill of Rights begins, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . ." The Supreme Court has repeatedly said that "the touchstone of the Fourth Amendment is reasonableness." The Fourth Amendment requires both that there be a reasonable justification for a search or arrest, and that searches and arrests be carried out in a reasonable manner. Teresa's claim is that under all the circumstances of this case, it was not reasonable for the officers to force their way into her apartment (a "search"), creating a confrontation in which the police would inevitably use deadly force against her (a "seizure" of her person).
As the Supreme Court has consistently interpreted the Fourth Amendment, to justify entering a private home, the police need specific and articulable facts.
Her lawyers argue that Reynolds and Holder made no meaningful attempt to employ the accepted police practices designed to minimize the risk of violence in a confrontation with a mentally ill individual. They had requested additional resources, heard the sirens, and sent Hodge downstairs to open the door for other officers. But they burst through the apartment door without utilizing any of these personnel. The officers did not ask Teresa questions and did not seriously try to engage her in communication. Most notably, instead of using time to their advantage by slowing down the pace of events, they rushed to resolve the incident as quickly as possible. No one trains police officers that such haste is wise.
We don't know why these officers made an immediate entry into Teresa's room rather than employing the tactics prescribed in their training. They argue that safety concerns required an immediate entry. They say that they had no way of knowing whether Teresa might escape through a rear window or fire escape; whether there was a graded hill in the backyard so the drop would be shorter because it wouldn't be a full story up to the window; whether she might hurt herself; or whether there was anyone else in her room that she might hurt.
Teresa's lawyers argue that in the absence of any evidence suggesting an immediate need to re-enter the room, the failure to employ the methods provided by the officers' training and accepted police practices was simply not reasonable.
Teresa's lawyers argue that all these supposed concerns ran contrary to the facts. Escape through the window was ruled out by the fact that, as he testified, Hodge told the officers one needed a ladder to reach the window from the ground. Given the officers' observations of Teresa's age, height and weight, the idea she would go out the window appears ludicrous. Moreover, had Reynolds communicated with Officer Escobar, who had been sent to the back, he would have confirmed there was no way anyone could come out Teresa's windows, three stories from the ground at the rear of the building. The officers had no information suggesting that Teresa was a danger to herself. Neither Hodge nor the officers had seen anyone else in her room during the periods when they had been inside.
As the Supreme Court has consistently interpreted the Fourth Amendment, to justify entering a private home, the police need specific and articulable facts. Usually such facts are supplied by observations that the officers are able to make indicating, for example, the presence of danger or a risk of destruction of evidence. But here there were no sounds of any altercation within the room, nor any sounds indicating the presence of another person or suggesting the destruction of evidence. There was no sound of Teresa attempting to open the door, of footsteps approaching the door, or of a window being opened. The officers heard no further threats once they had left the room.
Teresa's lawyers argue that in the absence of any evidence suggesting an immediate need to re-enter the room, the failure to employ the methods provided by the officers' training and accepted police practices was simply not reasonable. This is the crucial issue in determining if the officers violated Teresa's constitutional rights. If the court decides the entry was reasonable, there was no violation of the Fourth Amendment; if it decides the entry was unreasonable, there was a constitutional violation. You may be surprised to learn, however, that a decision that the officers violated Teresa's constitutional rights does not necessarily mean that she wins the case. This brings us to the crucial issue for most civil rights claims against the police.
They have often said that qualified immunity protects all but "plainly incompetent" police officers.
In a series of decisions going back to the early 1980s, the Supreme Court has been refining a defense called "qualified immunity," for public officials who are sued. This doctrine basically says that even though a public official may have violated a person's rights, the person cannot win a money judgment against the official unless the person can show that a reasonable official would know that her conduct violated the person's rights. To establish that, it is not enough that the official's conduct violated some general constitutional rule like the imperative that the execution of a search must be reasonable. The person must show that all reasonable officials would know that the specific actions of the official in the case would violate the Constitution. So in Teresa's case, she must establish that a reasonable officer in Holder's and Reynolds' position would have known that the explanations they had for entering her room were insufficient, under the circumstances present in this case.
What is "Reasonable" is at Issue
You will have noticed that the word "reasonable" is used often in this discussion. The problem is that the word can be employed to mean something quite different, depending upon who is using it. The person whose house was searched would say officers have to have persuasive reasons, ones that are logical and have support in the facts, to enter her home. The officers would say they are not required to perform perfectly, to use the very best judgment, to know all the facts, but only to act in a way that makes some kind of sense. In the past, the conservative justices on the Supreme Court have leaned toward the officers' interpretation. In fact, they have often said that qualified immunity protects all but "plainly incompetent" police officers.
A plaintiff in a civil rights case can show that officers should have known their actions were unconstitutional if she can find previous cases where the courts have deemed very similar conduct to be unconstitutional. This is one of the issues in Teresa's case. Her lawyers say there were such cases; cases in which police officers were held liable for shooting mentally ill people. But the officers say those cases were different in ways that made them inapplicable here.
In one such case, the Ninth Circuit Court of Appeals said officers could be held liable where they killed a mentally ill man who had threatened to shoot them and had tried to do so when they broke down his door. The officers in Teresa's case argue the case is different because the officers there were executing an administrative warrant, not entering a home to arrest the occupant or to provide aid. Teresa's lawyers say the essence of the case, however, was its ruling that it was unreasonable for the officers not to take the victim's mental illness into account, which is precisely what they failed to do here.
How the Supreme Court decides Teresa's case will have a great influence on how police officers interact with mentally ill people. If these officers are held accountable for not following their training and for treating Teresa like a violent "criminal" rather than a victim of mental illness, we may see fewer shootings in the future.
In the wake of grand jury decisions not to indict the police officers who killed Michael Brown in Ferguson, Missouri, and Eric Garner in New York City, many Americans are wondering whether our legal system is capable of holding police officers accountable for violence.
Protection of people with disabilities has long lagged behind civil rights protections for other vulnerable groups, and the disability community is concerned that an adverse decision in the Sheehan case will make things worse. Seventeen different organizations that support disability rights have joined in amicus briefs supporting Sheehan in the Supreme Court. The court's decision will either provide some security against deviant police practices or send further shivers through an anxious populace.