Table of Contents Introduction I. The ADA as Civil Rights Legislation A. Why Congress Created the ADA B. Section 504 Broadened to Title II C. Foundational Cases: The Two Decisions That Sparked Debate over Police Conduct and the ADA 1. Pennsylvania Department of Corrections v. Yeskey 2. Gorman v. Bartch II. Status of the Law Applying Title II to Arrests A. The Importance of Remedies B. Two Theories for ADA Claims 1. Wrongful arrest theory 2. Reasonable accommodation and on-the-street encounters a. The judicially evaluated separate exigent circumstances test b. Integrating exigent circumstances with a reasonableness test 3. Reasonable accommodation and police training a. Legislative intent to enhance police training b. Failure-to-train jurisprudence C. Summary of the Law III. Application of the ADA to Arrests A. When Police Are Inadequately Trained 1. The necessity and practicality of de-escalation training 2. Policy incentives for proper training B. When Police Contribute to the Creation of Exigent Circumstances 1. State-created danger 2. Direct threat provisions a. The legislative direct threat provisions b. The regulatory direct threat provisions c. Proposed consideration for state-created danger C. When Exigent Circumstances Arise 1. Problems with a full exigent circumstances exception 2. Problems with a broad separate exigent circumstances test 3. Question for the jury Conclusion Introduction
I first became interested in the relationship between the ADA and arrests during a summer internship. During that time, I assisted on a case that involved a woman with disabilities. She lived in a group home. One afternoon, a fellow patient at her group home became convinced that the woman was going to commit suicide. The supervisor at her home alerted the police, who arrived shortly thereafter. As it turned out, the woman had no interest in committing suicide. When the police arrived at her door, she was naked, just stepping into her bathtub. She did not even hear the knocks over the running water. The police soon broke down her door. Angry, scared, and naked, the woman began screaming, begging the strange men to leave her room. Instead, they attempted to subdue her with force. Ultimately, they arrested her for resisting arrest. They carried her by her hands and feet to the police car. Although they had thrown a blanket over her still nude body, her thrashing bucked off the cover halfway to the car. At the station, they refused to clothe her--she remained naked for the duration of her two-day stay.
This case came to my firm one week after the Supreme Court issued its opinion in City & County of San Francisco v. Sheehan (1) Sheehan involved the 2008 shooting of Teresa Sheehan, a woman with mental disabilities. (2) Although Teresa was shot by the police, she was not a criminal. Like the case I considered in my summer job, officers had been called to Teresa's group home because a therapist believed she was suicidal and hoped police would place her on a psychiatric hold. (3) Instead, when Teresa refused to open her bedroom door, officers barged into her room and shot her at least three times. (4) Teresa ultimately survived and went on to sue the City of San Francisco. Her case, which is discussed in more detail below, brought the issue of police violence against individuals with disabilities--and the rights afforded to those individuals--to the Supreme Court. Unfortunately, the Supreme Court failed to resolve the issue, thereby stranding the nation's disabled community in a web of fractured and complex jurisprudence.
This confused jurisprudence is particularly problematic given the dismal and dangerous relationship between police and people with disabilities in America. Although data on police fatalities are limited, a recent report by the Treatment Advocacy Center found that "the risk of being killed during a police incident is 16 times greater for individuals with untreated mental illness than for other civilians approached or stopped by officers." (5) Other studies estimate that at least half of all fatal police encounters involve people with psychiatric disorders. (6) Despite these alarming statistics, courts have failed to cohesively clarify how the primary statutory protection for people with disabilities--the Americans with Disabilities Act (ADA) (7)--applies to interactions between police and individuals with disabilities during the course of an arrest. (8) Circuit courts have split over the issue and have applied different tests and understandings of the law, (9) thereby generating a splintered and confusing jurisprudence.
Claims regarding police compliance with the ADA are a relatively new development, (10) and little scholarship has addressed--or even compiled a record of--the rapidly evolving doctrine. (11) Plaintiffs bringing arrest-related ADA claims must conform to a series of judicially crafted standards and tests, but these tests vary widely between circuits--with the effect that plaintiffs bringing arrest-related ADA claims in some circuits are practically barred from asserting claims that are viable in other circuits. (12) This Note explores the circuit split by surveying the jurisprudence in each circuit that has considered the question of ADA applicability to arrests. It then posits three ways in which courts can apply the statute to reconcile the circuits' varied applications while still upholding legislative intent.
As noted above, the Supreme Court attempted to clarify this issue when it granted certiorari in Sheehan with respect to the question "[w]hether Title II of [the ADA] requires law enforcement officers to provide accommodations to an armed, violent, and mentally ill suspect in the course of bringing the suspect into custody." (13) However, San Francisco thwarted the Court's efforts when it submitted briefs that did not actually address the question. (14) In fact, the brief raised an entirely different ADA-related argument that the city had not raised below. (15) Accordingly, the Court dismissed the first question as improvidently granted, (16) leaving the circuits split on whether and how the ADA should be applied to police conduct during arrests. This ongoing confusion perpetuates the continued mistreatment of a group whose rights are not clearly explicated at the federal level.
Justice Scalia, in a scathing partial dissent joined by Justice Kagan, refused to answer even the non-ADA-related question in Sheehan and reprimanded the petitioners. (17) He accused them of facilitating a "bait-and-switch," in which they petitioned for certiorari with the promise of resolving a circuit split but then asked the Court to decide only an attendant, less controversial, and less "certworthy" question. (18) Justices Scalia and Kagan refused to answer the second question "to avoid being snookered, and to deter future snookering." (19)
As Justice Scalia's partial dissent makes clear, the Court believed the question of ADA applicability to arrests is "certworthy." Even beyond that, the issue's salience is evident. Because the United States lacks a comprehensive infrastructure for housing and treating people with disabilities, (20) "[t]he police are typically the first and often the sole community resource called on to respond to urgent situations involving persons with mental illness." (21) Yet police are often woefully undertrained in dealing with individuals with disabilities. (22) Accordingly, police conduct in the course of an arrest is sometimes dictated by animus, fear, apathetic attitudes, or stereotyping of the disabled rather than reasoned judgment or individualized inquiries. This leads to violent and oftentimes fatal misunderstandings. (23) And when the victims of these misunderstandings attempt to vindicate their rights judicially, they are faced with a murky set of nonuniform standards.
Since no comprehensive study of circuit courts' attitudes toward arrest-related ADA claims currently exists, this Note surveys divergent applications of the ADA. It then seeks to unite them in accordance with both legislative intent and applicable legal theory.
To place this issue in its proper context, Part I examines the history of the ADA as civil rights legislation, focusing specifically on Title II of the ADA and underscoring the ADA's broad-reaching mandate.
Part II then surveys ADA jurisprudence throughout the country, providing a comprehensive picture of when, why, and how the ADA applies to arrests. This survey is the first comprehensive treatment of courts' divergent stances on the ADA in the context of police behavior during an arrest. It first expounds on two foundational cases, Pennsylvania Department of Corrections v. Yeskey (24) and Gorman v. Bartch 25 It then explains the circuit courts' alternative applications of two different theories--wrongful arrest theory and reasonable accommodation theory--in this context. It also examines how circuits weigh exigent circumstances in ADA cases. Finally, it reviews the ways in which circuit courts use reasonable accommodation theory in failure-to-train claims.
Part III contends that courts should apply ADA protections--and all of their attendant remedies--to arrests. This Note advances three distinct ways that liability can be imposed to enhance officer and arrestee safety without undermining police discretion in the course of an arrest. Each test applies to a distinct point of an arrest. Such an approach affords police officers flexibility as an arrest progresses: their obligation to accommodate individuals with disabilities may ebb as an arrest becomes more dangerous. Under these three tests, officers would be subject to the most stringent ADA-mandated duty to adjust procedure to account for disabilities during low-risk situations such as police training, but they would be subject to a lower standard of accommodation in high-risk situations such as dangerous arrest-related altercations.
Before moving into Part I, I proffer two...