[blindlaw] ADA & Police Conduct

Tue Feb 25 01:39:44 UTC 2014

A most interesting case out of California.

>From "FourthAmendment.com"

CA9: ADA applies to arrests of the mentally ill (noting circuit split)

Noting a circuit split, the Americans With Disability Act applies to arrests
of the mentally ill. Plaintiff stated a claim. Remanded for further
proceedings, and likely trial. Sheehan v. City
<http://cdn.ca9.uscourts.gov/datastore/opinions/2014/02/21/11-16401.pdf> &
County of San Francisco, 2014 U.S. App. LEXIS 3321 (9th Cir. February 21,
2014). Summary by the Court:

The panel affirmed in part and reversed in part the district court's summary
judgment and remanded in an action brought under 42 U.S.C. § 1983, the
Americans with Disabilities Act, and state law, alleging that police
officers violated plaintiff's rights when they entered her residence without
a warrant and shot her after she threatened them with a knife.

The panel held that the officers were justified in entering plaintiff's home
initially under the emergency aid exception because they had an objectively
reasonable basis to believe that plaintiff was in need of emergency medical
assistance and they conducted the search or seizure in a reasonable manner
up to that point. The panel also held that the district court properly
rejected plaintiff's claims of municipal liability under Monell v.
Department of Soc. Servs. of the City of New York, 436 U.S. 658 (1978).

The panel held that a jury could find that the officers acted unreasonably
by forcing a second entry into plaintiff's residence and provoking a
near-fatal confrontation. The panel held that plaintiff presented a triable
issue of the unreasonable use of deadly force under a provocation theory.
See Billington v. Smith, 292 F.3d 1177, 1189 (9th Cir. 2002).

The panel held that Title II of the Americans with Disabilities Act applies
to arrests and on the facts presented in this case, there was a triable
issue whether the officers failed to reasonably accommodate plaintiff's
disability when they forced their way back into her room without taking her
mental illness into account or employing generally accepted police practices
for peaceably resolving a confrontation with a person with mental illness.
Finally, the panel vacated summary judgment on plaintiff's state law claims
and remanded for further proceedings.

>From the case, jumping over the Fourth Amendment entry and arrests claims:

[Plaintiff’s expert] Reiter described general police practices for dealing
with persons who are mentally ill or emotionally disturbed, explaining that
officers are trained not to unreasonably agitate or excite the person, to
contain the person, to respect the person's comfort zone, to use
nonthreatening communications and to employ the passage of time to their
advantage. He also cited materials used by the San Francisco Police
Department to train officers on "appropriate tactical actions" to be used
when confronting the mentally ill. These materials, which are germane to the
excessive force inquiry because they were designed to protect individuals
such as Sheehan from harm, see Scott v. Henrich, 39 F.3d 912, 915-16 (9th
Cir. 1994), advise officers to request backup, to calm the situation, to
communicate, to move slowly, to assume a quiet, nonthreatening manner, to
take time to assess the situation and to "give the person time to calm
down."

. . .

... Viewing the evidence favorably to Sheehan, however, we cannot say that
the officers acted reasonably as a matter of law.

. . .

We agree with the majority of circuits to have addressed the question that
Title II applies to arrests. The ADA applies broadly to police "services,
programs, or activities." 42 U.S.C. § 12132. We have interpreted these terms
to encompass "anything a public entity does." Barden v. City of Sacramento,
292 F.3d 1073, 1076 (9th Cir. 2002) (quoting Lee v. City of Los Angeles, 250
F.3d 668, 691 (9th Cir. 2001)) (internal quotation marks omitted). The ADA
therefore applies to arrests, though we agree with the Eleventh and Fourth
Circuits that exigent circumstances inform the reasonableness analysis under
the ADA, just as they inform the distinct reasonableness analysis under the
Fourth Amendment. See Waller, 556 F.3d at 175 ("Just as the constraints of
time figure in what is required of police under the Fourth Amendment, they
bear on what is reasonable under the ADA.").

Courts have recognized at least two types of Title II claims applicable to
arrests: (1) wrongful arrest, where police wrongly arrest someone with a
disability because they misperceive the effects of that disability as
criminal activity; and (2) reasonable accommodation, where, although police
properly investigate and arrest a person with a disability for a crime
unrelated to that disability, they fail to reasonably accommodate the
person's disability in the course of investigation or arrest, causing the
person to suffer greater injury or indignity in that process than other
arrestees. See Waller, 556 F.3d at 174; Gohier, 186 F.3d at 1220-21.

Sheehan raises the second type of claim here. She asserts that the officers
failed to reasonably accommodate her disability by forcing their way back
into her room without taking her mental illness into account and without
employing tactics that would have been likely to resolve the situation
without injury to herself or others. To state a claim under Title II of the
ADA, a plaintiff generally must show: (1) she is an individual with a
disability; (2) she is otherwise qualified to participate in or receive the
benefit of a public entity's services, programs or activities; (3) she was
either excluded from participation in or denied the benefits of the public
entity's services, programs or activities or was otherwise discriminated
against by the public entity; and (4) such exclusion, denial of benefits or
discrimination was by reason of her disability. See O'Guinn v. Lovelock
Corr. Ctr., 502 F.3d 1056, 1060 (9th Cir. 2007). In a Title II claim
grounded in a public entity's alleged failure to provide a reasonable
accommodation under 28 C.F.R. § 35.130(b)(7), the plaintiff bears the
initial burden of producing evidence of the existence of a reasonable
accommodation. See Vinson v. Thomas, 288 F.3d 1145, 1154 (9th Cir. 2002). A
public entity may defeat a reasonable accommodation claim by showing "that
making the modifications would fundamentally alter the nature of the
service, program, or activity." 28 C.F.R. § 35.130(b)(7); see Zukle v.
Regents of Univ. of Cal., 166 F.3d 1041, 1047 (9th Cir. 1999).

It is undisputed that Sheehan had a disability and that the officers knew it
at the time they encountered her. We turn, therefore, to whether the city
discriminated against Sheehan by failing to provide a reasonable
accommodation during the second entry. Sheehan asserts that the city failed
to provide a reasonable accommodation when the officers forced their way
back into her room without taking her mental illness into account. She
asserts that the officers should have respected her comfort zone, engaged in
non-threatening communications and used the passage of time to defuse the
situation rather than precipitating a deadly confrontation. We acknowledge
that the officers were forced to make split-second decisions. A reasonable
jury nevertheless could find that the situation had been defused
sufficiently, following the initial retreat from Sheehan's room, to afford
the officers an opportunity to wait for backup and to employ less
confrontational tactics, including the accommodations that Sheehan asserts
were necessary. For the reasons stated here, and because the reasonableness
of an accommodation is ordinarily a question of fact, see EEOC v. UPS Supply
Chain Solutions, 620 F.3d 1103, 1110 (9th Cir. 2010), we hold that the city
is not entitled to judgment as a matter of law on Sheehan's ADA claim.

Daniel McBride

Attorney at Law

Fort Worth, Texas