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Law enforcement intervention in mental health crises: the legal standards for officer conduct after the Supreme Court's decision in Sheehan v. City and County of San Francisco.

Law enforcement is difficult work. Many officers are periodically called into highly volatile situations, full of uncertainty, that may require them to make split-second decisions on whether and how to use lethal force to protect themselves and the public from harm at the hand of dangerous individuals. That reality makes the public and the courts understandably and appropriately reluctant to second-guess the judgment of officers in such situations. If officers could be disciplined or punished for every action they took, they would not act and public safety would suffer.

Law enforcement is also professional work. In no small part because of the damage that officers can effect when applying force, they receive--or are expected to receive --training on how to respond to volatile situations, how to secure a scene, how to deescalate conflicted situations, and how to use force judiciously and in proportion to the danger presented. Law enforcement organizations and training academies operate at all levels, from local to international jurisdictions, to set standards for training and conduct and improve law enforcement response. Since at least 1987, with the introduction of the "Memphis Model" Crisis Intervention Team ([CIT]; developed in response to the shooting death of a mentally ill person by a Memphis police officer), there has been increasing training for officers to help them better understand and respond to individuals who are experiencing mental health crisis. The CIT model has become the gold standard for such interventions, and CIT programs have been developed in jurisdictions throughout the country, including several jurisdictions in Virginia. (1) Local programs are organized under the Virginia Crisis Intervention Team Coalition and are also coordinated through a partnership with the Virginia Department of Behavioral Health and Disability Services' Office of Forensic Services.

Despite these developments toward increased law enforcement professionalism, in the last two years a number of high profile police shooting deaths, most involving African American victims, have exposed an unfortunate reality--too many of the nation's officers are not adequately trained, and are using force, including lethal force, inappropriately. Significantly, as the Washington Post noted in its 2015 investigation of fatal police shootings, one-fourth of the 462 fatal police shootings documented by the Post in the first half of 2015 were of individuals reported by either family or the police (or both) to be mentally ill. In 45 of the 124 fatal shootings of persons with mental illness, the police were actually responding to a call to help someone get treatment, "or after the person had tried and failed to get treatment on his own." The Post article quotes Richard Wexler, executive director of the Police Executive Research Forum, as saying, "This is a national crisis. We have to get American police to rethink how they handle encounters with the mentally ill. Training has to change."

It was in this context that in March of 2015 the U.S. Supreme Court heard the case of Teresa Sheehan (City & Cnty. of San Francisco, Cal. v. Sheehan, 135 S. Ct. 1765 (2015), a woman with mental illness who was shot and almost killed by San Francisco police officers who had been sent to transport her to a psychiatric hospital. (See the DMHL summary of the case and of argument before the Supreme Court in the April 2015 issue).

The Sheehan Case

In 2008, Ms. Sheehan, who has schizoaffective disorder, was living in San Francisco in a group home for persons with mental illness. She reportedly stopped taking her prescribed medications for a period of 18 months, and her condition and behavior began to deteriorate. At one point she refused to come out of her room, and the counseling supervisor at the home used a key to enter her room. After the supervisor entered, Ms. Sheehan rose from her bed, screaming at the supervisor that he get out of her room, that he did not have a warrant, that she had a knife (not seen at the time by the supervisor, but later described by Ms. Sheehan's counsel as a "bread cutting knife"), and that she would kill him if she "had to."

The counseling supervisor, whose mental health certification authorized him under California law to secure a "5150 hold" for Ms. Sheehan to be temporarily psychiatrically hospitalized, filled out the required documentation for that hold. He called the police department (at its nonemergency number) and asked for officers to transport Ms. Sheehan to the hospital.

The two officers who arrived were briefed by the counseling supervisor on Ms. Sheehan's condition and behavior. After knocking on Ms. Sheehan's door and announcing themselves, they entered Ms. Sheehan's room, and Ms. Sheehan again rose up from her bed, grabbed the knife, and started walking toward the officers, yelling for them to leave, that she did not want their help and threatening to kill them if they came near her. The officers drew their guns but stepped back out of the room into the hallway. Ms. Sheehan shut the door and made no attempt to follow. The officers called for backup.

As noted by Ms. Sheehan's counsel on brief to the Supreme Court the San Francisco Police Department's training and standards for its officers in 2008 for dealing with individuals with emotional disturbance instructed officers, among other things, to "contain the subject and respect the comfort zone of the subject, "use time to their advantage because the longer an encounter is allowed to occur, the better the chance of a successful and safe resolution," and "employ nonthreatening verbal communication and open-ended questions to facilitate the subject's participation in communication." In addition, the department's policy on "barricaded suspect incidents" states that (regardless of the known mental status of the suspect) "in the event a suspect resists arrest by barricading himself, and normal police procedures fail to bring about his arrest, it is the policy of the San Francisco Police Department to use hostage negotiators to attempt a negotiated surrender."

Despite their training and standards, and before the backup officers they had requested could arrive, be briefed and deployed, the officers re-entered Ms. Sheehan's room, this time to arrest her for her threatening behavior. Ms. Sheehan reacted to the re-entry just as she had to the previous two entries, but this time the officers did not retreat. As Ms. Sheehan came toward them, "bread-cutting knife" in hand, they pepper-sprayed her and then shot her five times at point-blank range. Remarkably, Ms. Sheehan survived the shooting--a shooting administered by officers whose original mission had been to transport her to a psychiatric hospital--but she did suffer permanent physical injuries.

Ms. Sheehan filed suit under 42 U.S.C. [section]12132 and [section]1983 against the officers and the city, making two primary claims. Ms. Sheehan claimed under Title II of the Americans with Disabilities Act ([ADA]; i.e. [section]12132), that the officers were legally obligated to take Ms. Sheehan's known mental disability into account in determining how to safely carry out the service they were rendering to her (initially, to transport her to the hospital; later, to arrest her). In failing to make "reasonable accommodation" to her mental illness as required by the ADA, the officers violated the Act. Under [section]1983, Ms. Sheehan claimed that the officers violated her Fourth Amendment right against unreasonable search and seizure when, knowing her condition and how she responded to their first entry into her room, the officers re-entered, violating their own department's standards and their training and provoking a clearly foreseeable response that prompted her near-fatal shooting.

Federal District Court

The federal district court granted summary judgment to the officers. In regard to the claim of violation of the ADA, the district court, relying on language from a 5th Circuit case, ruled that the ADA does not apply to an "officer's on-the-street responses to reported disturbances or other similar incidents, whether or not those calls involve subjects with mental disabilities, prior to the officer's securing the scene and ensuring that there is no threat to human life." In regard to the Fourth Amendment violation claim, the district court ruled that the officers were entitled to "qualified immunity," as there was no case law existing at the time of the incident that established that conduct of this kind violated the Fourth Amendment.

9th Circuit Court of Appeals

Ms. Sheehan appealed. The 9th Circuit affirmed in part, holding that the officers were justified in entering Ms. Sheehan's room without a warrant the first time, under the "emergency aid" exception. However, the 9th Circuit found that there were "triable issues of fact" with regard to the second entry into Ms. Sheehan's room.

On the ADA claim, the 9th Circuit rejected the argument that the ADA does not apply to a situation like Ms. Sheehan's, finding instead that the reasonable accommodation requirement of Title II of the ADA applies to arrests. The court held that there was a triable issue as to whether the officers failed to reasonably accommodate Ms. Sheehan's known mental disability in carrying out their arrest of her in that second entry.

On the Fourth Amendment claim, the 9th Circuit ruled that the officers were not entitled to qualified immunity because, at the time of their actions in 2008, it was settled case law in the 9th Circuit that officers could be liable for otherwise lawful use of deadly force to defend themselves when they intentionally or recklessly "provoke" a violent confrontation by actions that rise to the level of an independent Fourth Amendment violation. Sheehan, the Court ruled, had presented a triable issue as to whether the officers committed an independent Fourth Amendment violation by unreasonably forcing their way back into her room.

Of particular significance in the 9th Circuit's opinion is the way it described the central dilemma presented by this incident. In the opening paragraph of its decision, the Court wrote:
   This case involves a near fatal tragedy in which police officers
   attempted to help a mentally ill woman who needed medical
   evaluation and treatment but wound up shooting and nearly killing
   her instead. They did so after entering her home without a warrant,
   causing her to react with violent outrage at the intruders.
   Fundamentally at issue is the constitutional balance between a
   person's right to be left alone in the sanctity of her home and the
   laudable efforts of the police to render emergency assistance, but
   in a way that does not turn the intended beneficiary into a victim
   or a criminal.

U.S. Supreme Court

With one notable exception, that understanding of this tragic incident was nowhere to be found in the deliberations of the U.S. Supreme Court when it considered the appeal by San Francisco from the 9th Circuit's decisions. Cristian Farias, in a March 25, 2015 article in Slate on-line magazine, entitled "Reasonable Accommodations: Do the Lives of the Mentally Ill Matter to the Supreme Court?", made the following observations of the March, 2015 oral argument before the Supreme Court on the Sheehan case:
   The justices' and police advocates' numerous references to "armed
   and violent," "direct threats," and "public safety"--without a
   mention of Sheehan's diagnosis, that she was off her meds, or that
   the situation could've been de-escalated by nonviolent means--will
   no doubt play a part in calculations of the "reasonableness" of the
   officers' conduct.

Later in his article, Farias remarks on the response by Justice Sotomayor to "a ridiculous scenario [proffered by counsel for San Francisco] that portrayed Sheehan as a conniving outlaw ready to ambush the responding police...":
   Sotomayor pondered whether the law was designed precisely to
   prevent these terrible assumptions about people with mental
   illnesses. That the law's purpose was to give them a "chance" in
   the worst-case scenario, much like officers are given the benefit
   of the doubt in the wake of a civilian shooting.

   "Unless we want a society in which the mentally ill are
   automatically killed," Sotomayor said, before delving into
   statistics about the hundreds of mentally ill persons who are
   killed by police officers each year, contrasted with the far fewer
   officers who are killed under similar circumstances. "Isn't the ADA
   ... intended to ensure that police officers try mitigation in these
   situations before they jump to violence?" she asked.

Ultimately, that question was left unanswered because the Court did not rule on the applicability of the ADA to arrests. Although San Francisco had argued at the district and circuit court levels, and in its appeal to the Supreme Court, that Title II of the ADA does not apply when a law enforcement officer faces an "armed and dangerous individual," on brief San Francisco conceded that the ADA is applicable, but that Ms. Sheehan was not "qualified" for an accommodation because she "pose[d] a direct threat to the health or safety of others" that could not "be eliminated by a modification of policies, practices or procedures, or by the provision of auxiliary aids or services" (see 28 CFR [section][section]35.139(a), 35.104, part of the implementation regulations of the ADA). Because this new argument on brief was not made in the lower courts, the Supreme Court found that certiorari was "improvidently granted" and remanded the issue back to the 9th Circuit. (2)

Regarding the Fourth Amendment claim, the Supreme Court reversed the 9th Circuit's ruling that the officers were not entitled to qualified immunity. The Court found, contrary to the ruling of the 9th Circuit, that it was not settled case law at the time of the incident that the officers' conduct constituted an unreasonable use of force under the Fourth Amendment. In light of this ruling, there was no need for the Court to discuss what, if any, modifications to police conduct are required under the Fourth Amendment when arresting someone with mental illness.

The Department of Justice and the Standards for Law Enforcement Officers' Conduct toward Persons with Mental Illness

The Department of Justice position in Sheehan

A number of amicus briefs were submitted to the Supreme Court by organizations supporting Ms. Sheehan and organizations supporting San Francisco. (3) The brief offered by the United States government is of particular interest because of the authority of the United States Department of Justice (DOJ) to conduct investigations and bring legal action in response to claims that state or local law enforcement agencies have violated the civil rights of persons in their jurisdictions. (The DOJ's recent investigation and actions in regard to the Ferguson, Missouri Police Department is a prominent example.) The DOJ's Office of the Solicitor General (SG) also submitted a brief in Sheehan. First, the SG argued that the ADA clearly does apply to arrests, and that the Court should remand the case to the lower court to develop the factual record needed to determine how Ms. Sheehan's condition and conduct and the officers' responses fit under the ADA's standards (a record that did not exist because San Francisco had originally argued, and the district court had agreed, that the officers' conduct was not subject to ADA standards). Second, the SG argued that the officers in Sheehan were entitled to qualified immunity because case law had not clearly established by 2008 that actions of the kind taken by the officers against Ms. Sheehan violated the Fourth Amendment. Notably, the SG specifically left open the question of whether similar actions, if taken by law enforcement officers today, would violate the Fourth Amendment, but the SG argued that Sheehan for a variety of reasons was not the appropriate case for establishing the scope of Fourth Amendment protections in encounters of this kind.

Department of Justice "Pattern or Practice" Investigations Regarding Law Enforcement Officers' Encounters with Persons with Mental Illness

Significantly, the DOJ Civil Rights Division has in recent years completed civil rights investigations of several cities' police departments in which the DOJ has specifically reviewed police practices involving officers' encounters with individuals with mental illness. A particular focus has been on police patterns and practices that violate the Fourth Amendment rights of these individuals to be free from unreasonable search and seizure, and in particular to be free from the excessive use of force. Two of the most notable investigations resolved by the DOJ through settlement agreements have been with the City of Portland, Oregon (in 2014) and the City of Cleveland, Ohio (in 2015).

As described in an August 29, 2014 DOJ press release, the DOJ opened an investigation in Portland in 2011 in response to claims that the Portland Police Bureau (PPB) was engaging in "unconstitutional or unlawful policing through the use of excessive force." A "specific focus" of the investigation was on the PPB's use of force "against people with actual or perceived mental illness or in mental health crisis." The investigation was initiated under the Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. [section] 14141, which "authorizes the United States to file legal action when it has reasonable cause to believe that a law enforcement agency is engaging in activities that amount to a pattern or practice of violating the Constitution or laws of the United States."

In a findings letter dated September 12, 2012, the DOJ found "reasonable cause to believe that PPB engages in a pattern or practice of unnecessary or unreasonable force during interactions with people who have or are perceived to have mental illness," in violation of the Fourth Amendment of the U.S. Constitution.

Investigations under [section] 14141 seek evidence of unconstitutional police practices; therefore, investigation of police arrest practices is structured after the "objectively reasonable" analysis employed by courts. In particular, the DOJ's assessment of the use of force in police encounters with persons with mental illness included examination of whether the PPB officers took the person's mental condition into account when taking action, whether less intrusive alternatives were available, whether proper warnings were given, and whether, at one or more points in the total encounter--rather than just at the moment the officers decided to use force--the officers took actions that needlessly or unreasonably escalated the situation, resulting in the subsequent use of force. Through such analysis, the DOJ found that although "most uses of force ... reviewed were constitutional," there was "a pattern or practice of unnecessary or unreasonable force during interactions with people who have or are perceived to have mental illness."

In its review of PPB practices, the DOJ found that officers often failed to "adequately consider a person's mental state before using force," with the nature of the officers' initial encounter with the individual in crisis frequently causing a foreseeable and preventable escalation in that individual's behaviors, leading to the excessive use of force by the police against the person. Ultimately, the DOJ found that PPB officers (1) too frequently used a higher level of force than necessary; (2) used electronic control weapons ("ECWs"), commonly referred to as "Tasers," in circumstances when such force is not justified, or deployed ECWs more times than necessary on an individual; and (3) used a higher degree of force than justified for low-level offenses. In addition, the DOJ found that the PPB failed to provide adequate training, supervision or policy guidance to officers in regard to the officers' management of encounters with individuals experiencing mental health crisis.

Portland and the DOJ entered into a settlement agreement that includes provisions for reform measures in regard to use of force, officer training, crisis intervention (including the establishment of a "Memphis Model Crisis Intervention Team"), officer accountability and employee management reforms (particularly to identify and address officers who repeatedly use force in encounters of this type), community engagement, and creation of a community oversight advisory board. Significantly, the DOJ noted in its findings letter that a major source of problems with the PPB came from the inadequacies in the Oregon mental health system. As a result, the agreement also notes that, although state and local mental health service agencies were not parties to the litigation or the agreement, the agreement was based in part upon an expectation of improved and integrated community-based mental health services to reduce mental health crises and improve responses when crises did occur.

The agreement was later approved by the federal district court as settlement of litigation filed by DOJ, and, under the order, the Court continues to review implementation of the agreement. The City and the PPB have continued to implement the agreed reforms, including the hiring of consultants to act as the city's compliance officer/community liaison, the creation of a civilian oversight advisory board, and the PPB's promulgation of a new "Mental Health Response" directive (found here), setting out a policy and procedures that emphasize collaboration with mental health providers, de-escalation of high tension situations (with "non-engagement," "disengagement" and "delaying custody" as appropriate tactics to avoid escalation), and review of responses to ensure appropriate practices are used.

The settlement agreement with Cleveland (found here), which addressed a wider array of problems in the Cleveland Police Department, has similar provisions for reforming police responses to persons in mental health crisis, including the creation of a Mental Health Response Advisory Committee, the hiring of a Crisis Intervention Coordinator, the training of all officers in proper mental health crisis response and the enhanced specialized training of a group of "specialized CIT officers."

The Evolution of a New Standard for Law Enforcement Conduct

It appears, then, that the Department of Justice, through its civil rights investigations and settlement actions, is helping to fashion a new standard of practice in law enforcement's understanding of, and interventions with, individuals with mental illness, and, with that new standard of practice, a new understanding of what the Fourth Amendment requires in regard to the use of force by police. Given what the public is now learning about the actual use of deadly force by police departments across the country, particularly in police encounters with African Americans and with people who have mental illness, the need for such a new standard is becoming increasingly clear. Virginia localities are among those still needing this change. As an example, a year ago the fatal shooting by a Norfolk police officer of a man with serious mental illness prompted department-wide CIT training by the Norfolk police to improve officers' response to persons with mental illness. (4)

To date, no new guidance for law enforcement in this challenging area of practice has been provided by the U.S. Supreme Court. The oral argument before the Supreme Court in March in the Sheehan case suggests that the Supreme Court may not yet see a need for new and clearer Fourth Amendment (and ADA) standards in regard to law enforcement's encounters with persons with mental illness. As the fatal shootings by police of persons with mental illness seem to continue unabated across the country, it appears certain that cases will arise in which the Court will again be asked to rule on the standard of conduct required of officers by the ADA and the Fourth Amendment in encounters with persons with mental illness. It can only be hoped that the Supreme Court extends to the victims in those future cases the same regard for their humanity as the 9th Circuit Court of Appeals extended to Teresa Sheehan, and as the Department of Justice appears to be extending to persons with mental illness in jurisdictions throughout the nation. Much depends upon it.

(1) As of July 1, 2015, 26 programs are "operational" across Virginia, 6 are "developing," 6 are "in planning," and 2 counties have no CIT program. Reportedly, 28 "Assessment Site Programs" have been established and 32 "Assessment Site locations" are active around the Commonwealth.

(2) The Court noted that "San Francisco, the United States as amicus curiae, and Sheehan all argue (or at least accept) that [section] 12132 applies to arrests," but also explicitly pointed out that the applicability of Title II of the ADA to arrests "is an important question that would benefit from briefing and adversary presentation." As San Francisco had argued below, and Justice Scalia noted in his partial dissent, there may be a circuit split as to whether, or at least how, [section] 12132 applies to arrests.

(3) The full briefs, along with the parties' pleadings, the Court's decision and a timeline for all the activities on appeal, can be found here on SCOTUSblog.

(4) That shooting also resulted in the indictment of the officer by a special grand jury for voluntary manslaughter.
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Author:Oliver, John E.
Publication:Developments in Mental Health Law
Date:Jul 1, 2015
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