Damage Cases - Center for Public Representation

Q&A

What is the current state of the law regarding the use of police force against people with psychiatric disabilities?

Susan Stefan
Center for Public Representation

I. Police Killing and Injury of People with Psychiatric Disabilities

There is very little data collected on a national level about police killing and injuries ofpeople with psychiatric disabilities. This problem springs from the larger failure to gather data ona national basis about police killings and injuries of civilians. In 1994, the Crime Control Actrequired the Attorney General to collect data about how many people are killed by police eachyear, and publish an annual report. However, the Department of Justice has not issued this report,citing the fact that police departments either do not collect or are reluctant to report this data, andthey are currently under no legal requirement to do so. Therefore, reports of police killing andinjuries of civilians by members of the police force are scattered and imprecise.

The Bureau of Justice Statistics surveyed 6,000 people and based on extrapolations of thedata, estimated that about 500,000 persons each year are "hit, held, pushed, choked, threatenedwith a flashlight, threatened or sprayed with pepper spray, threatened with a gun or other form offorce" by police.www.ojp.usdoj.gov/bjs/abstract/puof.htm. The FBI Uniform Crime Reportsreports that about 300 "justified homicides" by police occur each year,www.fbi.gov/ucr/99cius.htm, but does not record police killings considered unjustified.

In 1999, the National Lawyer's Guild published the second edition of Stolen Lives: killedby law enforcement documenting over 2,000 people who died at the hands of police between1990 and 1998 (this figure included deaths while in custody such as lockup or jail). Although theGuild did not compile the list for this purpose, it appears that a majority of the cases describedinvolve people with psychiatric disabilities. (See footnote 1) According to the Treatment Advocacy Center,people with psychiatric disabilities are four times as likely to die in encounters with the police asmembers of the general population.

In 2001 Amnesty International published a report called "United States of America: Race,Rights and Police Brutality," www.amnestyusa.org/rightsforall , which highlights "the problem ofpolice using excessive force, including deadly force, against mentally ill or disturbed people whocould have been subdued through less extreme measures." The report gives examples throughoutthe country of persons with psychiatric disabilities who were killed by law enforcement agents,and notes that its requests for information and attempts to follow up were met with no responsefrom most of the law enforcement agencies involved.

II. Patterns in Police Killings of People with Psychiatric Disabilities

These sources, as well as newspaper reports, case law, and ongoing litigation, underscorecertain significant patterns in police killings of people with psychiatric disabilities. TheIntroduction to Stolen Lives notes "[m]any police killings result from 911 calls for help...Amother or father in a family crisis had no expectation when they dialed 911 that their overwroughtor suicidal child would be killed by the very agency they called for help...Many victims had noidea they were being confronted by law enforcement agents when plainclothes or undercoverpolice stormed into their homes or communities." The Texas Protection and Advocacy agency iscurrently litigating a case, Linbrugger v. Abercia, Civ.Cause H01-1288 (first amended complaintfiled Oct. 16, 2001), which precisely fits this description.

Another striking pattern is that deaths and injuries, especially shootings, often occur veryquickly after police first appear on the scene, Hainze v. Richards, 207 F.3d 795 (5th Cir.2000)(shooting occurs within 20 seconds of officers' arrival on the scene); Nelson v. County ofWright, 162 F.3d 986 (8th Cir. 1998)(unarmed individual beaten on the head with a nightstick andshot in his bedroom within three minutes of arrival of the police); Clem v. Corbeau, 284 F.3d 543(4th Cir. 2002) (plaintiff was pepper-sprayed and shot three times "within a short time" afterpolice arrival); Allen v. Muskogee, 119 F.3d 837 (10th Cir. 1998)(shooting took place within 90seconds of police arrival on scene).

Sometimes police try to physically seize a weapon from an emotionally distressed person, which expert consensus deems highly inappropriate, Allen v. Muskogee, 119 F.3d 837 (10th Cir.1998). Another common reaction is to get massive backup and surround the individual's house,sometimes for days and even weeks. In many cases, the appearance and conduct of the policeescalates a situation which could potentially have been handled without violence.

Many shooting deaths appear to involve suicidal people. There are two distinct kinds ofpatterns in these situations, which should not be confused. The first is "suicide by cop," where asuicidal person points a weapon (often unloaded) at a police officer with the explicit intention thatthe police officer will shoot him (these situations almost always involve men). Often the personwill ask or even beg the police officer to shoot him, or a suicide note will make clear what wasintended. Of 436 officer-involved shootings in Los Angeles between 1987-1997, 10% ofshootings involved "suicide by cop." By the last year of the study, 1997, one in four shootings fitthis description.

However, there are also cases where police kill suicidal people who are not threateningthem. In one case, an individual said he was suicidal and took eighteen pills, Nelson v. County ofWright, 162 F.3d 986 (8th Cir. 1998). They do involve a person who is obviously deeplydistressed, sometimes with a weapon, usually either aimed at himself or herself, or not aimed atanyone in particular, Allen v. Muskogee, 119 F.3d 837 (10th Cir. 1998). However, the presence ofa weapon of some sort (usually less lethal than a gun) is an important component of many cases inwhich people are killed, and should not be downplayed. People are often shot while wieldingbrooms, shovels, bottles, and scissors.

Another common way that people die or are injured at the hands of the police is byasphyxiation when they are being held down, sometimes in "hog-tying" positions known to bevery dangerous. This happens when police are bringing people to emergency rooms or otherwisetrying to subdue an agitated person. Even the Fifth Circuit has recognized that hog-tying anindividual and placing him face down may present a substantial risk of death or seriously bodilyharm under certain circumstances, Gutierrez v. City of San Antonio, 139 F.3d 441 (5th Cir. 1998),but see Cruz v. City of Laramie, 239 F.3d 1183 (10th Cir. 2001).

Prof. Linda Teplin of Northwestern University has been working on a substantial projectto document people with psychiatric disabilities as crime victims. It is likely that this data willinclude killings by police, since the National Crime Victims Survey is being used, which asksfamily members about violence suffered by individuals in the family. However, the fact that thedata is collected does not mean it would be disaggregated, i.e., that deaths and injuries by policewould be specifically parsed out and studied. It would be helpful for P&As to write to Dr. Teplinat Northwestern University and express the importance of doing this. The results of this projectare due out in the fall, and it is possible that P&As could organize around the publication of thiswork.

For the most part, however, the only way to collect information is anecdotally, throughnewspaper searches. These searches reveal a startlingly high number of police killings in general,including a substantial number of deaths involving people with psychiatric disabilities.

III. Relevant Law

A. Constitutional Violations

The Supreme Court has held that charges related to injuries or death in the context of arrest,investigatory stops or other seizures are properly brought under the fourth amendment; chargesrelating to injuries or deaths occurring in the attempt to seize (as in a high-speed chase) should bebrought as fourteenth amendment claims, County of Sacramento v. Lewis, 523 U.S. 833 (1998).Failure to protect and failure to train are also fourteenth amendment claims. For the most recentSupreme Court standards on qualified immunity in this area, see Saucier v. Katz, 533 U.S. 194(2001).

1. Fourth Amendment

A. Deaths and injuries at the hands of the police

The case law in this area is better than might be expected, although it varies from circuit tocircuit. The landmark case of Tennessee v. Garner, 471 U.S. 1 (1985) established that theConstitution does not permit the use of deadly force against a person who poses no immediatethreat to the officer and no threat to others. Id at 11. The standard for determining whether policeofficers used excessive force is whether police officers behaved in an objectively reasonable wayin light of the surrounding facts and circumstances, Graham v. Connor, 490 U.S. 386, 397(1989).

Whether police officers' actions were reasonable is an objective inquiry, and each circuithas developed fairly elaborate and quite distinct tests to determine whether an officer's conductmeets this requirement. For example, in the Tenth Circuit, the frame of reference in decidingreasonableness includes "not only the officers' actions at the moment that the threat waspresented, but also may include their actions in the moments leading up to the suspect's threat offorce," Allen v. Muskogee, Oklahoma, 119 F.3d 837, 840 (10th Cir. 1997). The Tenth Circuit hasunderscored that "the reasonableness of [police] actions depends both on whether the officerswere in danger at the precise moment that they used force and on whether [their] own reckless ordeliberate conduct during the seizure unreasonably created the need to use such force," id.,quoting Sevier v. City of Lawrence, Kansas, 60 F.3d 695, 699 (10th Cir. 1995). The question iswhether the officer's conduct is "immediately connected" to the suspect's threat of force, Romerov. Board of County Commissioners, 60 F.3d 702, 705, n.5 (10th Cir. 1995). The Ninth Circuit hasalso looked to see if police employed any tactic that "needlessly or unreasonably creates adangerous situation necessitating an escalation in the use of force," Deorle v. Rutherford, 272F.3d 1272, 1282, n.20 (9th Cir. 2001).

On the other hand, the Eighth Circuit looks to "the severity of a suspected crime, whetherthe suspect poses an immediate danger to the safety of the officer or others, and whether he isactively resisting or evading arrest" as well as "the extent of any injury sustained by the suspect"Foster v. Metropolitan Airports Commission, 914 F.2d 1076 (8th Cir. 1990), and "standard policeprocedures." The "extent of injury" test, adopted in its most stringent form by the Fifth Circuit,which rejects claims of excessive force as a matter of law in the absence of serious injury, see alsoSlicker v. Jackson, 215 F.3d 1225 (11th Cir. 2000)(de minimis force cannot be excessive under theFourth Amendment), has been explicitly rejected by the Ninth Circuit. Headwaters ForestDefense v. The County of Humboldt, 240 F.3d 1185 (9th Cir. 2001)(rejecting district court'sholding that pepper spray did not constitute excessive force as a matter of law).

The Fourth Circuit recently went out of its way to state that "the law is clear that areasonable officer is sometimes authorized to use deadly force against an unarmed, mentally illperson, i.e., when the officer has a 'sound reason to believe' that such a person 'poses a seriousthreat to his safety or the safety of others," Clem v. Corbeau, 284 F.3d 543, 554, n.5 (4thCir.2002). The court added, however, that an officer could not claim qualified immunity whenusing deadly force to arrest assertedly unarmed and non-threatening persons inside their ownhomes, id.

The Eleventh Circuit, which appears to have an affinity for more complex legal standards,c.f. Prado-Steinman v. Bush, 221 F.3d 1266 (11th Cir. 2000)(reviewing other circuits' two andthree part tests for appeal of class certification and fashioning a five-part test), created a sevenpart standard that includes the need for the application of force, the relationship between the needand the amount of force used, the extent of the injury inflicted, whether the force was applied ingood faith or maliciously and sadistically (See footnote 2) , the severity of the crime, the immediacy of the threat ofdanger, and whether the suspect was resisting arrest or fleeing, Slicker v. Jackson, 215 F.3d 1225,1233 (11th Cir. 2000).

Interestingly, the First Circuit's most recent substantive jurisprudence on excessive forceinvolves people with psychiatric disabilities, Rennie v. Davis, 264 F.3d 86 (1st Cir.2001)(excessive force in restraining institutionalized person); McCabe v. Life-Line AmbulanceService, 77 F.3d 540 (1st Cir. 1996)(woman died when she had a heart attack after police brokedown her door and were trying to pull her down the stairs to bring her in for psychiatricexamination). While Rennie was chiefly concerned with failure to protect, it did affirm the"objective reasonableness" standard in excessive force claims, and reject the argument that tomake out an excessive force claim, a plaintiff must show more than minor injuries.

The sheer number of cases involving police shootings of unarmed individuals, Nelson v.County of Wright, 162 F.3d 986 (8th Cir. 1998)(unarmed individual in bed in his bedroom);Braswell v. Wiggs, 1998 U.S.App.LEXIS 3866 (4th Cir. March 5, 1998); Clem v. Corbeau, 284F.3d 543 (4th Cir. 2002) (plaintiff was pepper-sprayed and shot three times "within a short time"after police arrival); Deorle v. Rutherford, 272 F.3d 1272 (9th Cir. 2001)(police fired beanbaground into person's face), or barely armed people, Haddaway v. Ellerbusch, 996 F.2d 1211, 1993WL 238997 (4th Cir. 1993)(denying qualified immunity to police who shot a woman who was"angry" and holding a pair of scissors), is extremely discouraging.

In many cases, police appear to have escalated a situation that could have been handledwithout violence. For example, in Russo v. City of Cincinnati, 953 F.2d 1036 (6th Cir. 1992 ), therelatives of a man who refused to return to a psychiatric facility after being on pass called thehospital after they found him huddled under the blankets in his bed. The hospital called the police.When police arrived at the apartment building, the man's relatives told them that he did not have agun. When the police knocked on the door and announced their presence, he barricaded the door.When they forced the door, he faced them with two knives in his hands. He was shot with a Taserin his mid-section, which the court found to be reasonable; then in his face, which was a harderquestion for the court but still apparently would have led to summary judgment for the police hadthe encounter ended there. However, less than two hours later, the man had been shot with aTaser four times and shot with bullets 22 times. The last round of bullets was fired after he hadfallen crumpled in a stairwell and dropped the gun.

B. Police Involvement in Commitment Proceedings

Although the Constitution provides special protections from warrantless intrusions topeople in their own homes from police intrusion, especially at night, Payton v. New York, 445U.S. 573, 586 (1980), in most states, persons who are subject to psychiatric examination can betaken from their homes by police officers even at night. Cases reflect people dragged naked fromtheir homes in the middle of showers, Moore v. Wyoming Medical Center, 825 F.Supp. 1531(D.Wyo. 1993), or knocked to the floor after emerging from a shower wearing only a towel,Kerman v. City of New York, 261 F.3d 229 (2nd Cir. 2001), or dragged from their beds, Anaya v.Crossroads Managed Care Systems, 195 F.3d 584 (10th Cir. 1999).

Every circuit that has considered the issue has held that the appropriate constitutionalprovision for due process challenges to police conduct in detaining an individual for the purposeof psychiatric examination is the Fourth Amendment, Pino v. Higgs, 75 F.3d 1461, 1467 (10th Cir.1996). Villanova v. Abrams, 972 F.2d 792 (7th Cir. 1992); Glass v. Mayas, 984 F.2d 55, 58 (2ndCir. 1993).

Most circuits have held that the standard under the Fourth Amendment is whether policehad probable cause to believe that the person met commitment requirements, Maag v. Wessler,960 F.2d 773, 775 (9th Cir. 1991), Gooden v. Howard County, 917 F.2d. 1355, 1361 (4th Cir.1990); In re Barnard, 455 F.2d 1370, 1373 (D.C. Cir. 1971). Thus, forcible and warrantless entryis constitutional if police reasonably believe that a person is imminently suicidal, Russo v. City ofCincinnati, 953 F.2d 1036 (6th Cir. 1992).

2. Due Process Clause of the Fourteenth Amendment: Failure to Protect

In many cases, police who kill or injure persons with psychiatric disabilities are not actingalone; they are accompanied by other police officers. Courts have held that police officers incertain circumstances have a duty to intervene to protect individuals from excessive force by otherpolice officers, Rennie v. Davis, 264 F.3d 86 (1st Cir. 2001) (holding the right exists in the contextof client in state hospital and strongly implying it exists in police arrest cases); Neill v.Krzeminski, 839 F.2d 9, 11 (2nd Cir. 1988); Byrd v. Brishke, 466 F.2d 6, 10 (7th Cir. 1972). Ofcourse, in order to prevail in a failure to protect case, the plaintiff must first establish that thepolice treatment was a violation from which he or she had the right to be protected.

In Rennie, the First Circuit set out a four part test on failure to protect claims: thedefendant must have 1) been actually present at the scene; 2) actually observed the excessiveforce; 3) been realistically able to prevent the use of excessive force; and 4) had enough time todo so. Rennie, 264 F.3d at 97.

3. Due Process Clause of the Fourteenth Amendment: Municipal Liability forFailure to Train Police Officers

In 1989, the Supreme Court held that municipalities could be liable for failure to properlytrain police officers, City of Canton v. Harris 489 U.S. 378 (1989 )(municipality only liable forfailure to train officers if the failure to train reflects deliberate indifference to the constitutionalrights of the inhabitants of the municipality). Again, different circuits have different standards forliability for failure to train, a claim that has also come up under the Americans with DisabilitiesAct (see below). Liability for the municipality in City of Canton v. Harris can be shown if "(1)the officers exceeded constitutional limitations on the use of force; (2) the use of force aroseunder circumstances that constitute a usual and recurring situation with which police officers mustdeal; (3) the inadequate training demonstrates a deliberate indifference on the part of the citytoward persons with whom the police officers come into contact; and (4) there is a direct causallink between the constitutional deprivation and the inadequate training," Zuchel v. City andCounty of Denver, 997 F.2d 730, 734-35 (10th Cir. 1993).

The leading case in the Sixth Circuit on failure to train, Russo v. City of Cincinnati, 953F.2d 1036 (6th Cir. 1992), points to the importance of expert testimony in establishing plaintiff'scase, and holds that simply having a seven hour training at the police academy is insufficient toestablish a defense as a matter of law.

The Seventh Circuit held that, without more, a police department's failure to promulgate apolicy on the use of force against people with obvious emotional disturbances did not violate therights of a man shot to death by police, or, as Judge Posner put it, the sheriff's department had nolegal obligation to issue "instructions with regard to the use of force against people who appear tobe crazy," Pena v. Leombruni, 200 F.3d 1031, 1033 (7th Cir. 1999). Judge Posner conceded that"If Winnebago County had seen a rash of police killings of crazy people and it was wellunderstood that these killings could have been avoided by the adopted of measures that wouldadequately protect the endangered police, then the failure to take the measures might, we mayassume without having to decide, manifest deliberate indifference to the rights of such people," id.At 1033-34.

B. Federal Statutory Violations

1. The Americans with Disabilities Act/Section 504

With virtually no protest or adverse commentary, the circuits have been scaling back thescope of the Americans with Disabilities Act as it relates to the conduct of police towards disabledpeople. The Fifth Circuit has asserted that Title II of the ADA does not apply "to an officer's on- the-scene responses to disturbances" and until the officer has "secured the scene" and ensured nothreat to human life, Hainze v. Richards, 207 F.3d 795 (5th Cir. 2000). The Fourth Circuit hasstrongly questioned whether the ADA applies to an arrest situation at all, Rosen v. MontgomeryCounty, Maryland, 121 F.3d 154, 157 (4th Cir. 1997). The Fifth Circuit in Hainze has alsorejected the possibility, raised by the Tenth Circuit in Gohier v. Enright, 186 F.3d 1216 (10th Cir.1999), that the failure to provide adequate training to police officers in dealing with people withpsychiatric disabilities could constitute a violation of Title II of the ADA. There have been some successful ADA claims relating to police practices, but they tend toinvolve deaf people, Chisholm v. McNanimon, 275 F.3d 315 (3rd Cir. 2001), although deaf peoplehave also lost ADA police practices claims, Rosen v. Montgomery County, Maryland, 121 F.3d154 (4th Cir. 1997). Cases involving people with psychiatric disabilities are scarce, see Barber v.Guay, 910 F.Supp. 790 (D.Me. 1995)(holding claim that police failed to provide properprotection to man with psychiatric and substance abuse problems survived motion to dismiss).

IV. Best Practices and Model Programs

Virtually every media account of the death of a person with a psychiatric disability at thehands of police refers to the Memphis model, a program developed by the Memphis policedepartment in 1988 after the shooting death of a woman with a psychiatric disability. TheMemphis model involves 40 hours of training of selected, volunteer officers, who work withmental health professionals, family members and people with psychiatric disabilities, and learnstrategies to reduce the chance of violence. One key strategy is to "slow things down." Police inMemphis have spent up to twenty hours talking with people with psychiatric disabilities. Theresults of this program include drastically lowered deaths and injuries (interestingly, the rate ofdeaths and injuries to police officers was reduced more than the rate of injuries to people withpsychiatric disabilities, but both have declined dramatically) and an arrest rate that is one tenth thenational average on calls associated with psychiatric disabilities. The involvement of persons withpsychiatric disabilities in police training is certainly to be commended. However, it is not clearwhether more people are being routed into the mental health system than was previously the case,whether people who might otherwise have been left to continue their lives in the community weretaken into mental health treatment, and whether consumers in Tennessee are as pleased with theprogram as is the community.

V. Advocacy Strategies

There are many advocacy strategies to pursue in this area, which can be organized in thefollowing framework:

A. Gathering Information

The national data regarding police-involved deaths of persons with psychiatric disabilitiesneeds to be gathered. Congress has passed a statute requiring this data to be collected, and itneeds to pressure the Department of Justice to fulfill the Congressional mandate. The position ofthe Department of Justice that the states do not keep the data is insufficient as a reason to preventthe data from being gathered, since it can be gathered as part of the National Crime VictimizationSurvey. A sample letter is available from the Center for Public Representation.

The P&A should seek to use its authority to gather information regarding police-involveddeaths of persons with psychiatric disabilities. This should include deaths, and if possible, injuries,associated with police in emergency rooms. In addition, the P&A may be able to ally itself withthe state chapter of the National Alliance for the Mentally Ill on this issue.

A survey can be done of P&A clients about their experiences with police officers, whichcan identify helpful officers as well as problematic officers. Helpful officers can receivecommendations and awards from the disability community, and be asked about what techniquesthey use (often, they are simply sensitive and empathic people). The Protection and Advocacyagency can work with local police departments, both to identify good practices and good officers,and help to focus on problematic policies and offer preventive strategies. A survey is availablefrom the Center for Public Representation.

A letter can be sent from the P&A to Prof. Linda Teplin urging her to disaggregateinformation about police-involved injuries and deaths in her study of people with psychiatricdisabilities as victims of violence. A sample letter to Dr. Teplin is available from the Center forPublic Representation.

B. Influencing Public Opinion

The public still sees people with psychiatric disabilities as dangerous, rather than as thevictims of crime and violence. It is crucially important that the facts--people with psychiatricdisabilities are more often victims of violence than perpetrators--be conveyed and repeated, in asmany different contexts as possible. This can include testimony before State Legislatures, lettersto the editor and editorials, presentations at service clubs, and, of course, trainings. In addition, itwould be helpful to organize with the African-American community; many of the victims in StolenLives were both psychiatrically disabled and African-American.

C. Changing Police Treatment of People with Psychiatric Disabilities

Police are rarely disciplined in the wake of a shooting, even shooting of an unarmedindividual. Protection and Advocacy agencies can ally with groups such as the National Lawyer'sGuild, the NAACP and others in spotlighting police department response to these killings.

In addition, the P&A can and should conduct careful investigations of its own. TheCalifornia P&A's "Report of an Investigation into the Deaths of Charles Vaughn Sr. on May 19,1998 and Marvin Noble on July 16, 1998," published in May 2000, is a model in this regard.

Clients with psychiatric disabilities should be encouraged to report complaints of policeabuse to the Civil Rights Division of the Department of Justice, which under President Clintontook these complaints quite seriously (especially in areas like Los Angeles which were alreadyunder investigation by the Civil Rights Division).

Training of police is a standard response, but is better when done through the auspices ofthe District Attorney's Office, which police officers take more seriously than trainings done byadvocacy groups. There are many training modules for police officers available, but many of themfocus on relatively unhelpful topics (going into depth on schizophrenia, bipolar disorder anddepression as biological diseases) rather than emphasizing helpful, concrete techniques inencounters with people with psychiatric disabilities. Training developed by the Office of MentalHealth in New York and the New York State Division of Criminal Justice Services includeshelpful role-playing. Further information on this program is available from the Center for PublicRepresentation or the Office of Mental Health in New York.

VI. Conclusion

Much more attention has been paid to the "criminalization" of people with psychiatricdisabilities than to police-involved deaths and injuries. But deaths and injuries are a majorproblem, as is the less visible trauma caused by many police encounters. Most of these deaths andinjuries follow a predictable pattern and are preventable. Protection and Advocacy agencies cantake a number of concrete and relatively simple steps to become involved with this issue, and areinvited to contact the Center for Public Representation for sample materials referred to above.

Footnote: 1 Of the fifteen people reported killed by police in Massachusetts between 1990 and 1998,however, only one appeared to have a psychiatric disability. This was a man who hanged himselfin jail while on suicide watch.Footnote: 2 This factor is arguably unconstitutional, since the Supreme Court has been extremelyclear that excessive force is to be measured by an objective reasonableness test, whereas thisfactor measures the police officer's subjective mental state.

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