Policing Under Disability Law.

• Author: Morgan, Jamelia N.

Table of Contents Introduction I. The Medical Model in Historical and Contemporary Context A. Historical Context B. Contemporary Law-Enforcement Responses to "Disability in Public" 1. Policing in and around hospitals 2. Public safety and disability policing II. Federal Disability Law and the Limits of the Medical Model in Challenges to Policing A. Disability Law and Policing: The Statutory Framework B. Limits of the Medical Model in Theories of Liability Under the ADA 1. Wrongful arrest 2. Failure to accommodate a. Knowledge requirement b. Communication C. Intentional Discrimination D. Causation III. Toward a Social Model of Disability in Disability Law Policing Cases A. Causation B. Deliberate Indifference C. Disparate Impact D. Deference to Law Enforcement E. Decriminalization and Diversion 1. Decriminalization 2. Diversion Conclusion Introduction

In recent years there has been increased activism around, and public attention to, the problem of police violence as it affects disabled people and, in particular, the disproportionate number of Black disabled people killed by the police each year. (1) In the wake of social uprisings in response to the police killings of George Floyd and Breonna Taylor, (2) calls to defund or abolish the police have included movements for both disability rights and disability justice. (3) Such calls for transformative change reflect the need for urgent solutions to address the problem of policing as it affects disabled people. Disabled people are overrepresented in police killings and, in a number of cities, are involved in a significant proportion of police use-of-force incidents. (4) Moreover, disabled people experience more ordinary forms of policing at disproportionate rates--policing that can escalate to deadly police violence. For example, disabled people, particularly those with untreated psychiatric disabilities, are vulnerable to policing in medical facilities--the very places they seek to access care. (5) Many are arrested pursuant to aggressive enforcement policies aimed at removing so-called "unwanted" persons or persons labeled "[disruptive" or "disorderly." (6) Though in most cases they pose no risk of physical harm, disabled people are arrested and taken to jail, at times simply because there is no place else for them to go. (7)

Since the mid-1990s, disabled plaintiffs have relied on federal disability-rights laws to challenge police violence and raise claims alleging disability discrimination during arrests. (8) These cases have included claims under the Americans with Disabilities Act of 1990 (ADA) challenging the lawfulness of arrests and the failure to accommodate disabilities during the course of a lawful arrest. (9) Despite the growth of these claims since the ADA's passage, the Supreme Court has yet to decide whether Title II of the ADA applies to on-the-street arrests, and federal appellate courts are split on whether and to what extent Title II's antidiscrimination provisions apply to street arrests. (10) Although the Court granted certiorari to a case presenting the question, City & County of San Francisco v. Sheehan, it subsequently dismissed that question as improvidently granted. (11) There is no telling when the question will reach the Supreme Court again. Before it does, it is important to develop a theory not just of liability, but also of disability under Title II, that is consistent with the text, history, and animating goals of the ADA. Yet some courts have already begun to adopt a theory of disability in Title II policing cases that is inconsistent with the ADA and its 2008 Amendments and to adopt a view of disability that limits relief for plaintiffs: the medical model of disability. (12)

The medical model of disability frames disability as an "individual medical problem"--a succinct description I adopt from Elizabeth Emens. (13) Michael Ashley Stein writes that the medical model "views a disabled person's limitations as naturally (and thus, properly) excluding her from the mainstream." (14) Under the medical model, Mary Crossley writes, "'disability' is understood as a personal trait of an individual: an innate, biological trait that leaves the disabled individual in need of assistance to remediate the effects of the disability." (15) Bradley Areheart explains that the medical model of disability "relies on normative categories of 'disabled' and 'non-disabled,' and presumes that a person's disability is 'a personal, medical problem, requiring but an individualized medical solution; that people who have disabilities face no "group" problem caused by society or that social policy should be used to ameliorate.'" (16) In short, the medical model defines disability with a focus on the individual rather than society and with a focus on medicalized meanings of disability rather than sociopolitical meanings. (17)

Despite the predominance of the medical model in court opinions, I argue that the ADA embodies a social model of disability. (18) In the social model of disability, "disability is viewed not as a physical or mental impairment, but as a social construction shaped by environmental factors, including physical characteristics built into the environment, cultural attitudes and social behaviors, and the institutionalized rules, procedures, and practices of private entities and public organizations." (19) Doron Dorfman and Rabia Belt write that "[t]he social model of disability distinguishes between an 'impairment,' which is a biological condition, and 'disability,' which is the social meaning given to the impairment." (20)

Treating disability as a social construction helps to emphasize its relational, contingent, fluid, and subjective nature. (21) As Subini Ancy Annamma, David Connor, and Beth Ferri maintain, "all dis/ability categories, whether physical, cognitive, or sensory, are also subjective," which suggests that "societal interpretations of and responses to specific differences from the normed body are what signify a dis/ability." (22) Similarly, as Nirmala Erevelles explains, disability is "a socially constructed category that derives meaning and social (in)significance from the historical, cultural, political, and economic structures that frame social life." (23) Though the social model of disability recognizes socially constructed categories of difference, it does not reject the obvious existence of corporeal differences among people. (24) Rather, the social model locates the meaning and import of those differences and perceived limitations in societal barriers, attitudes, and responses to disability, not solely in the individual's biological attributes. (25)

A contemporary view of the social model rejects an account of disability that views corporeal differences or impairments as fixed traits that remain static over time and across persons, favoring a view that instead recognizes the fluid, dynamic, interactive nature of disability. (26) A social model of disability recognizes that disability is more than medical diagnoses and biological traits; rather, disability includes social meanings that attach to physical and mental impairment--meanings that are influenced by race, gender, and class. (27) In the policing context, the medical model identifies the basis for a wrongful arrest as occurring (primarily) when physical, visible disabilities, or their medical symptoms, are both perceived and misinterpreted as criminal conduct by police. (28) Unlike the social model, the medical model fails to appreciate how nonapparent or intermittently apparent disabilities (29) can be misinterpreted as or conflated with criminal conduct, particularly when these traits are presented in individuals with psychiatric disabilities or intellectual and developmental disabilities. The failure to recognize and perceive disabilities makes it easier to perceive non-normative behaviors as criminal, in part due to social meanings, myths, and stereotypes that construct disabled people-particularly those from negatively racialized and historically marginalized groups--as criminals. (30) Similarly, in failure-to-accommodate cases, a medical model provides an individualized account of the arrestee or suspect. (31) It obscures pathways to police violence shaped by historical and contemporary associations between disability and criminalization. (32) A medical model omits the role of ableism throughout history in constructing disabled people, particularly disabled people of color, as deviant, disordered, or risky, and it can work to shape perceptions of disabled people as undeserving or presumptively too threatening to accommodate during police encounters.

This Article demonstrates how the medical model of disability predominates in Title II policing cases. The medical model of disability informs how courts conceive of disability and informs their reasoning and assessments as to whether public entities are liable under Title II. In the Parts that follow, I demonstrate how the medical model of disability predominates in judicial interpretations of disability within Title II cases challenging arrests and how such interpretations limit prospects for relief for disabled plaintiffs.

The predominance of the medical model of disability leads courts to pay insufficient attention to disability as a social construction and to the myriad ways in which conduct by disabled "suspicious persons" and arrestees may be misinterpreted as criminal. Moreover, these cases demonstrate how the ADA has been interpreted--contrary to its celebrated goals of access and societal inclusion--to exclude a class of individuals from civil rights protections by distinguishing those disabled persons who warrant accommodation by law enforcement from those who do not. I maintain that Title II's doctrinal development in the policing context has constructed a class of undeserving disabled people--those persons deemed too disruptive, too threatening, and so forth--and leaves them unprotected from...