By Alex Emslie
Update, 6 p.m. March 23:
Oral arguments before the U.S. Supreme Court in a case that could decide if and how the Americans With Disabilities Act applies to police encounters with potentially violent people in psychiatric crisis got off to a rough start for the City of San Francisco today.
The city’s Chief of Appellate Litigation Christine Van Aken didn’t get to the second sentence of her opening remarks before Justice Antonin Scalia interrupted and asked her to explain why San Francisco’s argument appeared to have significantly changed since it petitioned the high court to hear the case.
The case centers on a 2008 officer-involved shooting in San Francisco. Two officers responded to a call from a supportive housing complex in the city’s Mission District and attempted to take Teresa Sheehan into custody for a psychiatric evaluation, but Sheehan threatened them with a knife and slammed her apartment door on them. The officers forced the door open, pepper sprayed Sheehan, and when she moved toward them, shot her five times. She survived and sued the city in federal court.
Scalia took issue with the City’s nuanced view of the ADA’s application to an arrest that involves the potential for violence. He said San Francisco’s petition argued the ADA does not apply, period. The argument softened by this morning, with the city conceding the law does generally require public entities, like police, to make reasonable accommodations even when a suspect is potentially violent.
But “modification to Sheehan’s arrest would not have eliminated the significant risk she posed,” the city’s brief says.
“There’s a technical word for this,” Scalia said. “It’s called bait-and-switch.”
Van Aken responded: “San Francisco asked you to resolve the question of whether and how the ADA applies to the arrest of an armed and violent individual, and the answer to that question is it only applies where the significant threat that the individual poses has been eliminated.”
The eight-judge panel wrestled with questions raised by that point for most the remainder of the hearing: How did Sheehan present a significant threat when she was locked, alone, in her second floor apartment, and how could such a threat be eliminated?
San Francisco has argued that despite being told by Sheehan’s social worker that the building was empty, save Sheehan, and that there was no way to escape from the second-story window without a ladder, officers couldn’t be sure that Sheehan posed no threat to any other person while she was locked in her room.
Justice Sonia Sotomayor asked Van Aken to assume Sheehan was alone and there was no means of escape.
“We still think there would be a question about whether she had other weapons in the room and could be preparing some kind of ambush or some kind of barricade, and that’s something that the officers here testified they were concerned about,” Van Aken said. “So what they thought was necessary was to get that door open so that they could see what Ms. Sheehan was doing, so they could see if she was preparing an ambush or barricade.”
Sheehan’s lead attorney, Leonard Feldman, told the court all parties appeared to agree on legal issues in the case, and the question before the court was one of fact.
“Exactly,” Scalia said. “I don’t know why we took the case.”
Feldman said San Francisco is arguing against a legal standard that is, basically, San Francisco policy.
“In our case, we have symmetry between the proposed accommodation, on the one hand, and the way that San Francisco trains its officers and also universally accepted methods for dealing with mentally disabled individuals,” he said. “There’s no dispute that the way to interact with mentally disabled individuals is through communication and time. Police officers know that, and they’re trained in that way.”
Feldman said “reasonable accommodations” could include programs like a Crisis Intervention Team, which San Francisco has adopted. It’s just one of many specialized police responses that emphasizes de-escaltion — sometimes called verbal judo — instead of direct confrontation.
“I think the Court knows that this is a case with enormous policy implications,” Feldman said. “We see this in the news day after day, week after week, where the police arrive to help somebody and they wind up hurting them,” Feldman said. “And, Your Honors, it’s only when officers and public entities are held accountable for actions like those that occurred here that we can expect to see a change in that pattern.”
The Supreme Court is expected to issue a ruling in the case sometime in early Summer.
Original Post Sunday, March 22:
The U.S. Supreme Court will hear a case Monday that’s being closely watched by law enforcement and advocates for the mentally ill — on an appeal brought by San Francisco.
The Supreme Court is weighing two issues: Whether the Americans With Disabilities Act requires police to provide accommodations to an “armed, violent, and mentally ill suspect in the course of
bringing the suspect into custody,” and whether two San Francisco police officers violated the Fourth Amendment rights of Teresa Sheehan when they forced their way into her apartment after discovering she was armed with a bread knife.
“This is a big issue: Should the mentally ill be handled by the police differently?” UC Hastings law professor Rory Little said. “Increasingly, police are confronting people with mental illness on the streets or in their homes or apartments, and there is a growing concern that the confrontational approach of the police unnecessarily stimulates violence.”
SFPD policy around the type of incidents at issue in this case changed after the shooting, but if the city is successful at the Supreme Court, that kind of change may be stifled in other cities.
The case — City and County of San Francisco v. Teresa Sheehan — stems from a 2008 officer-involved shooting at a co-op apartment building for people with mental illness in the city’s Mission District. Officers responded to a call from a social worker in the building, who told them Sheehan, who is diagnosed with schizoaffective disorder, had threatened him when he tried to check on her.
The social worker told responding SFPD Officer Kathrine Holder about Sheehan’s medical history, and Holder called Sgt. Kimberly Reynolds to the scene. The two officers then made a plan to detain Sheehan for a psychiatric evaluation and knocked on her second-floor apartment’s door.
Sheehan didn’t answer, and officers used a key to open the door — their first entry into her apartment. Sheehan became aggressive and came at the police with a serrated bread knife. She forced the door closed, and the officers were left outside.
They called for backup and Holder began trying to force the door open. She broke through it just as backup was arriving, and Reynolds launched a stream of pepper spray into Sheehan’s face. Sheehan staggered into the hallway, still brandishing the knife.
San Francisco’s brief to the Supreme Court gives one view of what happened next:
Holder was in the alcove next to Sheehan’s room, cornered. With her back literally against the wall, Holder fired twice at Sheehan. Sheehan was three feet from Holder – so close that Holder had to fire from the hip so Sheehan would not slash her arm. After Holder shot Sheehan twice, Sheehan did not drop her knife or fall to the floor. Instead, she turned
and stepped toward Reynolds with her knife. Reynolds fired three times at Sheehan. Sheehan stabbed toward Holder’s leg as she went down to the ground, and Reynolds’ last shot struck Sheehan when she was on the ground.
Here’s a description of the shooting from Sheehan’s brief:
As soon as the officers forced the door open, Sheehan stepped forward holding her bread knife and told the officers “to go away. Leave me alone.” Reynolds responded by shooting pepper spray into Sheehan’s face. Sheehan screamed that the officers were blinding her and she could not see. Reynolds and Holder then shot Sheehan four times. With wounds in her torso and right arm, Sheehan fell to the ground but the officers’ attack continued. According to Holder’s statement on the day of the shooting and Sheehan’s forensic science expert, Reynolds shot Sheehan in the face after she was lying on the ground.
Sheehan survived. She was initially charged with assault but was acquitted, and then she sued the city in federal court. District Court Judge Charles Breyer, the brother of U.S. Supreme Court Justice Stephen Breyer, ruled in a summary judgment in favor of San Francisco.
However, the 9th U.S. Circuit Court of Appeals ruled a jury could find Sheehan was legally entitled to accommodations under the ADA — specifically that officers should have stepped back, contained the scene and waited for backup, including officers specially trained to respond to psychiatric crises. The appellate court also found that officers may have violated the Fourth Amendment’s prohibition of unreasonable search and seizure.
“[A] jury could find that the officers acted unreasonably by forcing the second entry and provoking a near-fatal confrontation,” the 9th Circuit opinion says. “We therefore cannot say that the second entry was reasonable as a matter of law.”
Two national law enforcement organizations joined a brief supporting San Francisco’s appeal. The brief argues that the ADA should inform policing policy at the department level, but should not apply to “on-the-street decisionmaking when a law enforcement officer faces an active public safety threat by an armed, violent individual.”
More than 20 advocacy organizations for people with mental illness joined briefs supporting Sheehan’s position, authored by the American Psychiatric Association and the American Civil Liberties Union.
The ACLU cites a September KQED report that found 58 percent of people killed by San Francisco police between 2005 and 2013 had a mental illness that was a contributing factor in the incident. The brief argues the ADA should apply to Sheehan’s arrest because the law’s “reasonable accommodation” requirement mandates a specialized police response, such as a Crisis Intervention Team, in situations where a subject is known to have a mental illness.
“These practices were specifically designed for potentially dangerous situations,” the brief says. “San Francisco’s position — that the police should be free to forego these strategies in precisely the situation for which they were meant — makes no sense at all.”
San Francisco Police Chief Greg Suhr issued a department bulletin in 2013 clarifying SFPD protocol when mentally ill subjects may be a threat to themselves, but no one else.
It says: “[I]f officers have reasonable cause to believe that the person suffering an apparent mental crisis is not a threat to any other person, the officers shall observe, maintain a safe distance, and attempt to stabilize the scene until the arrival of the supervisor who will assume command.” (Emphasis original.)
Another SFPD bulletin, issued in May 2014, describes department policy for deploying specially trained officers to calls involving mental health crises.
Deputy City Attorney Peter Keith told KQED in January that San Francisco believes the ADA should apply to arrests, but there is disagreement about what constitutes a “reasonable accommodation” during a potentially violent confrontation.
San Francisco is arguing that officers couldn’t be sure Sheehan was alone, despite being told so by the social worker who called them, and she could have escaped from her second-story window and posed a threat to other people.
“What the city doesn’t want is a ruling that says the Americans With Disabilities Act, a federal statute, applies in these situations,” Little said. “In other words, if they want to adopt this as a progressive policing policy, that’s fine. They just don’t want to be in a sense governed by regulations and an entire statutory structure that some people think wasn’t designed for the police department.”
Little said San Francisco’s nuanced position on the ADA could be irrelevant to the ultimate ruling. The Supreme Court could rule the ADA simply does not apply to potentially violent confrontations between police and someone in psychiatric crisis.
“Once the Supreme Court has it, it really isn’t going matter what the City and County of San Francisco says,” Little said. “There are now municipalities all around the country that are interested in the answer to this question, and the answer to the question will govern nationally.”
Little said it’s likely Justice Breyer will recuse himself from the case, leaving eight justices to decide the issue.