Michael J. Oh, Esq., Assistant City Attorney, City of Henderson, Nevada; Police Legal Advisor, Henderson Police Department; IACP Legal Officers Section
aw enforcement officers’ encounters with emotionally disturbed people are becoming more prevalent each day. However, case law across the United States has been inconsistent in determining whether law enforcement officers can be held liable when dealing with a person with a mental disability, specifically as to whether the law enforcement officers violated the person’s rights under the Americans with Disabilities Act (ADA). This article analyzes the most recent case that has dealt with this issue in the Ninth Circuit, Sheehan v. City of San Francisco.
Americans with Disabilities Act—A Brief Background
Title II of the ADA provides that, subject to certain exceptions, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.1 For the purposes of the ADA, law enforcement agencies are considered a public entity and, thus, among those that must abide by the law prohibiting exclusion due to the disability.2 Per the Department of Justice, the ADA covers essentially all of the activities law enforcement regularly engages in, such as receiving citizen complaints; interrogating witnesses; arresting, booking, and holding suspects; operating 9-1-1 telephone emergency centers; providing medical services; and enforcing laws.3
Liability under the ADA
Courts have allowed 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 most arrestees.4 For the purpose of this article, the focus will be on the latter cause of action as it relates to law enforcement’s exposure to liability. In order to bring a claim under Title II, a plaintiff must generally prove that (1) he or she is a qualified individual with a disability; (2) he or she was either excluded from participation in or denied the benefits of a public entity’s services, programs, or activities, or was otherwise discriminated against by the public entity; and (3) the exclusion, denial of benefit, or discrimination was by reason of the plaintiff’s disability.5 There has been some disagreement among the circuits as to whether the ADA applies to arrests; a subject raised most recently in the U.S. Ninth Circuit case Sheehan v. City of San Francisco.6
Sheehan v. City of San Francisco
In the case under discussion, a social worker believed Teresa Sheehan, the plaintiff who has a mental illness and was not taking medication prescribed for her condition, to be a danger to others due to her threats to the social worker. The police were subsequently called to transport Sheehan to a 72-hour involuntary commitment under California law. When the officers arrived, they were informed there were no other residents in the group home building and there was only one other way out of Sheehan’s room, aside from the door to her room—a second-story window. The social worker did not give the officers any information that indicated that Sheehan was likely to injure herself.
The officers entered Sheehan’s room without a warrant to confirm the social worker’s assessment and to take Sheehan into custody. When the officers entered the room, Sheehan grabbed a knife and threatened to kill them, stating that she did not want to be detained in a mental health facility. The officers went back into the hallway and closed the door to Sheehan’s room. The officers called for back-up, but before the back-up arrived, the original responding officers drew their weapons and forced entry into Sheehan’s room. Sheehan threatened the officers with the knife and the officers fired five or six shots. Sheehan survived and sued the officers, claiming the officers violated her Fourth Amendment rights by entering her room without a warrant and using excessive force. Additionally, Sheehan brought a claim under Title II of the ADA, along with other tort and statutory claims under state law.
The trial court granted summary judgment on all of Sheehan’s claims, including the claim under the ADA. However, the U.S. Ninth Circuit Court of Appeals reversed the summary judgment, stating the reasonableness of an accommodation is ordinarily a question of fact and holding that Title II applies to arrests.
This was an issue of first impression for the Ninth Circuit, and the application of the ADA to law enforcement activity is not consistent throughout other circuit courts. The U.S. Fifth Circuit has held that Title II does not apply to an officer’s “on-the-street-responses.”7 The U.S. Eleventh and Fourth Circuits took a different approach and looked at reasonableness of the requested ADA modification where there are exigent circumstances presented by criminal activity. The Tenth Circuit held that excluding arrests from the scope of Title II “is not the law.”8 Similar to the Eleventh and Fourth Circuits, the Ninth Circuit adopted the reasonableness of the ADA modification approach.
The U.S. Supreme Court, however, is moving toward a review of the Sheehan case, which has the potential to provide a precedent for courts in cases of alleged ADA violations by law enforcement and unify the previously disparate views.9
Reasonableness of the ADA Modification Approach
In a 2007 alleged ADA violation case, Bircoll v. Miami-Dade County, a deaf man was arrested for allegations of driving under the influence.10 The plaintiff alleged the law enforcement officers violated Title II of the ADA by failing to provide him with an interpreter to assist him in communicating with police officers. The U.S. Eleventh Circuit established a reasonable modification approach test—it asked “given the criminal activity and safety concerns, was the modification of police procedures reasonable before the police physically arrested a criminal suspect, secured the scene, and ensured that there was no threat to public or officer’s safety?” This approach created a highly fact-specific inquiry that requires the determination by a jury as the finders of fact.
The Department of Justice Position
The U.S. Department of Justice (DOJ) implements regulations interpreting Title II of the ADA, as dictated by § 35.190(b)(6) of the act, which designates the DOJ as the agency responsible for coordinating compliance activities of public entities that administer “[a]ll programs, services, and regulatory activities to law enforcement, public safety, and the administration of justice, including courts and correctional institutions.”11 The preamble to the regulations indicates that this language is intended to apply to “all services, programs, and activities made available by public entities.”12 The regulations define “program” to mean “all of the operations of any entity described…any part of which is extended Federal financial assistance.” Additionally, the term “benefit” includes the provision of services such as “treatment, handling, decision, sentencing, confinement, or other prescription conduct.”13
Based upon the regulations and a review on past matters concerning law enforcement agencies, the DOJ has consistently interpreted Title II of the ADA and Section 504 of the Rehabilitation Act to include all operations and activities of a police department, including the provision of reasonable accommodations during an arrest.14 Therefore, despite the inconsistency among the U.S. circuit courts as to whether the ADA requirement of reasonable accommodation applies to arrest, a law enforcement agency may be subject to an enforcement action by the DOJ if reasonable accommodations are not provided during an arrest when dealing with a subject who is mentally ill.
While the U.S. courts have been inconsistent with their rulings as to whether the ADA applies to arrests, the DOJ’s enforcement approach is consistent with the Sheehan case. Even though a law enforcement agency may not be liable in some U.S. federal circuit courts under an ADA claim, the agency may still be subject to DOJ enforcement action and penalties. Thus, a law enforcement agency should review its policy to ensure compliance with Title II of the ADA as it relates to arrests. Further, the potential costs for defending an ADA claim could be substantial even if the agency ultimately prevails in the lawsuit, especially if more circuits adopt the Eleventh Circuit’s reasonableness of the ADA modification approach. ♦
142 U.S.C.A. § 12132.
3“Commonly Asked Questions About The Americans With Disabilities Act And Law Enforcement,” www.ada.gov (accessed May 4, 2014).
4Gohier v. Enright,186 F.3d 1072 (10th Cir. 1999); Gorman v. Bartch, 152 F.3d 907 (8th Cir. 1998).
5Shotz v. Cates, 256 F.3d 1077 (11th Cir. 2011).
6Sheehan v. City of San Francisco, 743 F.3d 1211 (9th Cir. 2014).
7Hainze v. Richards, 207 F.3D 795, 801 (5th Cir. 2000).
8Gohier v. Enright, 186 F.3d 1216, 1221 (10th Cir. 1999).
9A writ of certiorari was filed on behalf of San Francisco on May 27, 2014, and the U.S. Supreme Court was waiting on Sheehan’s reply at the time of publication.
10Bircoll v. Miami-Dade County, 480 F.3d 1072 (11th Cir. 2007).
1128 C.F.R. §§ 35.191–35.999 (6).
1228 C.F.R. 35.102(a).
1328 C.F.R. 42.540(h) and (j).
14See the United States Department of Justice webpage “Cases and Matters,” www.justice.gov/crt/records (accessed May 4, 2014).
Please cite as:
Michael J. Oh, “Encountering Mentally Ill People and Potential Liability under the Americans with Disabilities Act,” Chief’s Counsel, The Police Chief 81 (July 2014): 18–19.