Protection from protection: section 1983 and the ADA's implications for devising a race-conscious police misconduct statute.

• Author: Clark, Thorne
• Position: Americans with Disabilities Act of 1990 - Stress-induced reactions of people of color

"In the dome the prisoner waited ... shackled to inertia by a great chain of years." (1)

--Henry Dumas, black-American author slain by a police officer in a case of "mistaken identity"

INTRODUCTION

Henry Dumas was no prophet; he merely illustrated what was and is readily apparent to those inclined or forced to consider the extent and the impact of racism in daily life. Before he was shot to death in a subway by a mistaken New York City police officer in 1968, (2) Dumas wrote stories that explored themes central to the experiences of many black persons in the United States--including the prevalence of misconduct by law enforcement officers. (3) His characters' words are apropos in a future he did not live to see, narrating scenarios that are still descriptive of the present American social landscape. Describing a young black man's encounter with four white men led by a local law enforcement officer, he wrote: "To have looked at them would have been too much. Four centuries of black eyes burning into four weak white men ... would've set the whole earth on fire." (4) Nonetheless, Dumas was not a prophet, because many people of color do not need divination to make them privy to the dangers of living in the United States as a nonwhite person. Many people of color, as a matter of course, can and do reasonably expect interactions with the police to be unsafe. Dumas was therefore simply a writer with a sound understanding of American perceptions of race and the situations that are likely to occur in their wake. Forty years later, Dumas's four weak white men are no longer necessarily going to be weak, nor white, nor men, but they often are. And errant police officers still enjoy many of the legal protections afforded them before the Civil Rights movement.

Critical Race Theorists and their sympathizers have established a large body of literature suggesting that the legal advances of the Civil Rights movement, while important, do not adequately protect the rights of people of color in practice, largely because they are diluted by a colorblind approach (5) to legal conflicts that is often unjust when applied. (6) They argue that race consciousness is a valid and integral element of human interaction, and that vilifying race consciousness in the law is an artifact of a system of justice that devalues the importance of race, and often dismisses the presence of racism in the first place. (7) Police misconduct has emerged as one manifestation of pervasive racism in the United States. (8) Nonetheless, it is still viewed as a rare, if unfortunate, occurrence by whites. (9) Even if incidents of misconduct were rare, however, current colorblind statutory interpretations still play a noxious role by supporting a judicial refusal to acknowledge that racism is pervasive, that it forces many people of color to tread carefully in their day-to-clay lives, and that this is relevant when police misconduct does occur. This is dangerous for people of color because judges ensure that their rational and innocent reactions to police may get them shot. (10)

This Comment compares two statutes offering plaintiffs causes of action against police, 42 U.S.C. [section] 1983 (11) and the Americans with Disabilities Act of 1990 (ADA), (12) to explore how a colorblind approach to civil rights has left plaintiffs of color (13) in the lurch with respect to police misconduct, and to solicit the creation of a race-conscious police misconduct statute. (14)

When a plaintiff in a police misconduct suit has a disability, such as deafness or post-traumatic stress disorder (PTSD), a red flag goes up warning that a police officer's failure to take adequately the disability into consideration may be culpable. (15) The plaintiff's disability will prompt her attorney to consider making a claim under the ADA, and the judge hearing the case will be obligated to consider a claim by the plaintiff that the misconduct was attributable in part to her disability. By contrast, when a plaintiff in a police misconduct suit is a person of color, no red flag is raised on account of that. In fact, not only do judges abstain from noting how race influences the actions of police officers--they are actively criticized for acknowledging any societal racial influence at all. (16) This occurs despite the fact that race is often the focal point of misconduct in a way that disability status is not. (Persons with disabilities are not the targets of police harassment by virtue of their disabled status, but because of behavior that their disability makes manifest. People of color are often targeted precisely because they are not white, irrespective of their behavior.) The plaintiff of color can raise a [section] 1983 claim, but such a claim is restricted by the prevailing understanding of equal protection that has developed over the last few decades: that the closest approximation of justice is manifest by a colorblind approach to conflicts.

To illustrate the problem, consider two variations on a common scenario: An individual, person X, is walking down the street in an area where it is X's experience that police often harass or embarrass pedestrians, especially pedestrians who are not white. A squad car pulls up, and X turns around and walks in the other direction to avoid attracting the attention of the police. The police officers apprehend X, claiming that X's behavior was "odd," despite the history of police misconduct against innocent suspects in this area.

In the first variation, assume that X ([X.sub.1]) is of indeterminate race, and that the officers admit to recognizing [X.sub.1] as a local war veteran. Assume also that the officers are aware that [X.sub.1] suffers from a stress disorder as the result of his combat experience that makes [X.sub.1] nervous and asocial when confronted by aggressive behavior, particularly from persons carrying weapons. If the officers refuse to take steps to communicate with [X.sub.1] and then base their decision to apprehend [X.sub.1] on his failure to respond to the officers appropriately, [X.sub.1] may have a valid claim against the police under the ADA. (17) Although [X.sub.1]'s behavior would be considered atypical, it would be considered legitimate given [X.sub.1]'s stress disorder.

By contrast, assume that in the second variation X ([X.sub.2]) is a person of color. [X.sub.2] has no diagnosed stress disorder. The police, however, recognize [X.sub.2] because they have stopped him on several occasions without reasonable suspicion, even though they have never arrested him. [X.sub.2] has been visibly disturbed by such stops in the past, and the police are aware of this. Nonetheless, the officers insist that [X.sub.2]'s decision to avoid the police is "odd," (18) and approach him. Even if [X.sub.2] is verbally and physically abused, it is unlikely that [X.sub.2] will prevail if he files suit charging police misconduct. (19)

A potentially self-reinforcing abuse is apparent. [X.sub.1] is prone to adverse reactions around police because of an unrelated series of events (his combat experience), while [X.sub.2] is prone to adverse reactions to police for reasons directly attributable to the police (perhaps even the arresting officers themselves). Should [X.sub.2] bring his ordeal to the attention of the courts, his reactions will most likely be deemed unreasonable. (20) In effect, the more intimidating and brutal the police are, the more likely it becomes that they will incite what the courts have deemed "odd" reactions from the people they approach. Therefore, it is more likely that the police will be considered justified in their harassment of innocent people.

A statutory gap becomes apparent. Racism, whether overt or subtle, can exact a heavy psychological toll on people of color. (21) Police misconduct is a prevalent manifestation of racism in this country. (22) Although the ADA is a potentially effective tool for pursuing police misconduct suits generally, on behalf of those suffering from some psychological traumas, plaintiffs of color cannot garner the protections of the ADA by virtue of the trauma suffered as a result of racially discriminatory police misconduct. On the other hand, while [section] 1983 purportedly protects claimants from racial discrimination generally, [section] 1983 is procedurally impotent when applied against police officers.

These statutory deficiencies have resulted in an inequitable status quo. Certain categories of plaintiffs, such as disabled white individuals, have tools available to them with which to approach police misconduct suits that are not available to most people of color (whether disabled or not). Judges are statutorily obligated to consider aspects of plaintiff-police interactions in a way that often benefits white plaintiffs and plaintiffs with disabilities in police misconduct suits," (23) but are not similarly obligated to consider how the plaintiffs race may affect these interactions. (24)

The statutory incongruity between the ADA and [section] 1983 implicitly offers an inappropriate incentive to plaintiffs' attorneys to portray their clients as primarily atypical individuals without addressing race as a distinguishing factor. It may entice plaintiffs' attorneys to characterize their clients as persons with disabilities (also considered by Congress to be a minority (25)), portraying their clients' identities such that they correspond with prescribed categories of individuals protected by the ADA.

As a result, the present state of the law as it pertains to police misconduct has serious adverse consequences for plaintiffs of color, both on the individual level and on the societal level. Individually, persons suffering from stress disorders as a result of particular instances of racial discrimination have no direct recourse to the ADA. The impact of racism is dismissed.

The societal response to misconduct is to draw judicial attention away from the actions of the defendant police officers and...