Can the police’s actions help the disabled community?

By: Courtney McMinn

In the wake of the multiple police shootings of suspected criminals, many of the individuals whose deaths have sparked the #blacklivesmatter movement including: Eric Garner, Kajieme Powell, Tanesha Anderson and Freddie Gray were all disabled, although their race and not their disability was the focus of news reports in each case. [1] The most recent shooting happening on September 20th, 2016 of Keith Lamont Scott, a 43-year-old black disabled man killed by North Carolina Police while reading in his car, continues this ubiquitous trend. [2] But the #blacklivesmatter movement is not the only one to feel the grunt of this problem. A recent report by the Ruderman Family Foundation, a foundation which advocates for the inclusion of people with disabilities throughout society, asserts “almost half of the people who die at the hands of police have some kind of disability. . .as officers are often drawn into emergencies where urgent care may be more appropriate than lethal force. [3]

Over the past several years, various circuit courts have furthered this problem by diminishing the scope of Title II of the Americans with Disabilities Acts (ADA) against police practices that harm the disabled. The Fifth Circuit, in particular, held that “Title II of the ADA does not apply to an officer’s on-the-street responses to reported disturbances or other similar incidents” and that officers making an arrest are not required “to first determine whether their actions would comply with the ADA before protecting themselves and others.” [4] Likewise, the Western District of Washington Court held that “an arrest is not the type of service, program, or activity from which a disabled person could be excluded or denied the benefits.” [5]

While many circuits have rejected the notion of claims brought under Title II of the ADA, some courts have scantily allowed it. The Southern District of Indiana, for example, has allowed claims under the wrongful-arrest theory. [6] The theory purports discrimination amongst individuals with disabilities when police misperceive the effects of disability as illegal conduct. [7] Furthermore, the reasonable-accommodations-during-arrest argument, or the idea that the police need to reasonably accommodate an individual’s disability upon arrest, has been argued but was ultimately unsuccessful on appeal. [8] Although there has been progress by litigants bringing claims under Title II of the ADA, there are overall limited successful claims relating to police arresting practices. [9] The most successful cases tend to involve deaf individuals. [10]

At the heels of this ever growing issue, is ultimately a need for better policing tactics to accommodate the disabled’s needs. The Ruderman Family Foundation, formerly mentioned, advises “there is a high correlation among disabilities, homelessness and unemployment” and because of this correlation cops are more frequently encountering the disabled, and often in violent situations.[11] Many police departments are looking for creative solutions to combat this issue. Following the Phoenix Police’s shooting and killing of Michelle Cusseaux, Phoenix Police launched the Crisis Intervention Team (CIT) which is devoted to responding to emergencies that involve mental health issues. [12] The CIT model “has spread quickly as police agencies struggle to demonstrate greater responsiveness to the significant numbers of persons with mental illness they encounter. Current estimates suggest that worldwide, “there are over 1,000 CIT programs being implemented.” [13] According to the model, “officers volunteer to receive 40 hours of training provided by mental health clinicians, consumer and family advocates, and police trainers. Training includes information on signs and symptoms of mental illnesses; mental health treatment; co-occurring disorders; legal issues and de-escalation techniques.” [14]

Overall, “disability and health considerations are still neglected in media coverage and law enforcement policy.” [15] While the courts are making slow progress in granting relief under the ADA, proper police training may help to combat the issue and save the lives of many with disabilities.

 

[1] Michael Levin, The disabled are at higher risk of being killed by police: study, NY Daily News (Mar. 8, 2016, 1:03 PM), http://www.nydailynews.com/life-style/disabled-higher-risk-killed-cops-report-article-1.2556954

[2] Kirsten Savali, Kieth Lamon Scott Identified a Disabled Black Man Shot Dead by NC Police While Reading in Car, The Root (Sept. 20, 2016 9: 32 PM), http://www.theroot.com/articles/news/2016/09/report-disabled-black-man-shot-dead-by-police-while-reading-in-the-car/

[3] Half of People Killed by Police Have a Disability: report, NBC News (Mar. 14, 2016 9:13 PM), http://www.nbcnews.com/news/us-news/half-people-killed-police-suffer-mental-disability-report-n538371

 

[4] Hainze v. Richards, 207 F.3d 795, 801 (5th Cir. 2000).

[5] Patrice v. Murphy, 43 F.Supp.2d 1156, 1160 (W.D. Wash. 1999).

 

[6] Gohier v. Enright, 186 F.3d 1216 (10th Cir. 1999).

 

[7] Id.

[8] Id.

[9] Chisholm v. McNanimon, 275 F.3d 315 (3rd Cir. 2001).

[10] Id.

[11] Levin supra note 1.

[12] Michelle Cusseaux was a woman who had been diagnosed with schizophrenia and bipolar disorder whom they police were court ordered to transfer from her home to a mental health facility. After Michelle swung a hammer at police, Phoenix Police shot and killed her. Id.

[13] Amy Watson & Anjali J. Fulambarker, The Crisis Intervention Team Model of Police Responses to Mental Health Crises: A Primer for Mental Health Practitioners, Best Practices in Mental Health, Dec. 2012, http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3769782/

[14] Id.

[15] Levin supra note 1.