“Special duty” doctrine

McLaughlin v. City of Martinsburg, 2017 WL 3821808 (W.Va. Sept. 1, 2017)

West Virginia Supreme Court denies plaintiff’s claim that police officers were liable under “special duty doctrine” for negligently failing to take into protective custody a person with mental illness who was reported to be acting strangely and who was later struck and killed by an automobile.

Found in DMHL Volume 36, Issue 3

Excessive force ; qualified immunity

Roell v. Hamilton Cty., 870 F.3d 471 (6th Cir. 2017)

Sixth Circuit upholds summary judgment in favor of law enforcement officers sued for use of excessive force by estate of man who died while being physically subdued and tasered by the officers in response to his acting out behaviors and active resistance of the officers.

Found in DMHL Volume 36, Issue 3

Excessive force; qualified immunity

S.B. v. County of San Diego, et al., 2017 WL 1959984 (9th Cir. May 12, 2017)

Ninth Circuit reverses district court’s refusal to grant sheriff deputy’s motion for summary judgment based on qualified immunity, finding that, while the officer’s use of lethal force was objectively unreasonable, there were no existing court decisions at the time of the event that were specific enough to give the deputy clear prior notice that his use of force in those particular circumstances would be unreasonable.

Found in DMHL Volume 36, Issue 2

Qualified Immunity, Law Enforcement, Excessive Force

Isayeva v. Sacramento Sheriff's Dep't, 872 F.3d 938 (9th Cir. 2017)

Ninth Circuit held that (1) disputation about the reasonableness of deputy’s actions did not preclude granting qualified immunity, and (2) deputy was entitled to qualified immunity for the tasing and fatal shooting of the decedent because the decedent held no clearly established right not to be shot in circumstances in which he was larger than two officers, was not incapacitated by the taser, and was “winning” in hand-to-hand combat with the officers.

Found in DMHL Volume 37, Issue 1

Qualified Immunity, Excessive Force, Law Enforcement

Frederick v. Motsinger, 873 F.3d 641 (8th Cir. 2017)

Eighth Circuit held that deploying a Taser against a person in a public area who was refusing law enforcement commands to drop a knife did not violate a clearly established right and the officers were eligible for qualified immunity.

Found in DMHL Volume 37, Issue 1

Ruling that Civil Rights Claim Can Be Pursued Against Police Officer for Failure to Inform Jail Officials Inmate on Verge of Attempti ng Suicide Not Disturbed

Cavalieri v. Shepard, 321 F.3d 616 (7th Cir. 2003), cert. denied, Shepard v. Cavalieri, 124 S. Ct. 531 (2003)

The Supreme Court declined to review a ruling of the Seventh Circuit that the mother of a jail inmate was entitled to pursue a civil rights claim against a police officer for his alleged failure to inform jail officials that her son was on the verge of trying to commit suicide.  The Seventh Circuit rejected the officer's argument that his duty to inform ended when the pretrial detainee was transferred from municipal to county custody....

Found in DMHL Volume 23 Issue 1

Teacher Claimed Constitutional Rights Violated When Arresting Police Officers Failed to Adequately Question Credibility of Special Needs Student Who Asserted Teacher Sexually Fondled Him

Forest v. Pawtucket Police Dep't, 377 F.3d 52 (1st Cir. 2004)

In Rhode Island, a high school special education teacher was arrested for the alleged sexual assault of a 15-year-old male student during class. On the day of the purported incident, the student had gone to the principal's office and claimed that the teacher had touched him in a sexual manner during class. That evening the student and his mother went to the local police department and filed a complaint against the teacher. Police officers interviewed and reinterviewed the student and his mother, as well as the school principal, who confirmed that the student had come to his office with his complaint...

Found in DMHL Volume 24 Issue 2

Law enforcement and health care providers at hospital emergency rooms: questions on their abilities to treat individuals who do not desire their assistance

Tinius v. Carroll County Sheriff Dep't, 321 F. Supp. 2d 1064 (N.D. Iowa 2004)

Law enforcement officials are often the first to respond to emergent mental health crises and health care providers at hospital emergency rooms are often the first to treat an individual in the midst of a mental health crisis, frequently after a law enforcement official has brought the individual to the emergency room. Questions have arisen about their respective abilities to respond to and treat individuals who do not desire their assistance.  A federal court in Iowa afforded relatively wide latitude to the law enforcement officials, but less so to emergency room health care providers...

Found in DMHL Volume 24 Issue 1

Arresting Homeless Individuals for Sleeping, Sitting, or Lying on Public Property When Other Shelter Is Not Available Violates the Constitution

Jones v. Los Angeles, 444 F.3d 1118 (9th Cir. 2006)

Cities have long struggled with how to deal with their homeless populations, particularly in light of reports that a high percentage of them are experiencing a mental illness. In what has been described as the first case involving the rights of homeless people in public spaces to reach the federal appellate level, the Ninth Circuit, in a two-to-one opinion, struck down a thirty-seven-year-old Los Angeles ordinance used to clear homeless people off the streets...

Found in DMHL Volume 25 Issue 2

Police Officer Must Have Probable Cause to Handcuff Man Reported to Be Suicidal; Ruling Not Disturbed

Fisher v. Harden, 398 F.3d 837 (6th Cir. 2005), cert. denied, 126 S. Ct. 828 (2005)

When a dispatcher relays to a police officer a call for assistance, the information provided may include a "mental health code" designed to alert the responding officer that mental illness may play a role in the encounter.  In a case from Ohio, two sheriff's deputies were told incorrectly that a man had his feet tied to a set of railroad tracks and they were dispatched pursuant to a "Code 58," which indicates a possible suicide.  In actuality, a seventy-seven-year-old  retired farmer had gone out to shoot groundhogs in a rural farming area, an activity in which he routinely engaged to help protect his neighbor's crops. The man had taken with him a folding chair, his rifle, and a tripod to steady his rifle, and positioned himself upon an elevated railroad grade on a neighbor's property roughly 250 yards from a rural road.  A passerby had seen him and telephoned the Sheriff's Department. The responding deputies found the man seated in his folding chair.  From the road, they used the speaker system in their cruiser to instruct the man to come toward them.  The man stood up, gathered his belongings, and began walking along the railroad tracks towards the officers...

Found in DMHL Volume 25 Issue 2

Supreme Court Upholds Authority of Police to Enter Home Without Warrant to Protect Occupant Objectively Believed to Be Seriously Injured or Imminently Threatened with Such Injury

Brigham City, Utah v. Stuart, 126 S. Ct. 1943 (2006)

In a unanimous ruling of potential relevance to individuals involved in an altercation or a heated dispute in their home or while visiting another individual in that person's home, the United States Supreme Court ruled that police may enter a home without a warrant when they have an objectively reasonable basis for believing that an occupant is seriously injured or imminently threatened with such injury...

Found in DMHL Volume 25 Issue 2

Police Cannot Be Sued Under the Federal Constitution for Failing to Enforce a Restraining Order

Town of Castle Rock, Colo. v. Gonzales, 125 S. Ct. 2796 (2005)

The U.S. Supreme Court, in a 7-2 opinion, ruled that the failure of the police to adequately enforce a restraining order does not constitute a constitutional violation and therefore individuals can not pursue a federal claim for harm resulting from this failure.   In this Colorado case, a woman involved in divorce proceedings had obtained a restraining order that commanded her husband to not molest or disturb her or theirchildren and to remain at least 100 yards from the family home.  The order directed police officers to "use every reasonable means to enforce this restraining order." ...

Found in DMHL Volume 25 Issue 1

Civil Rights Complaint Alleging 4th Amendment Violation in Death of Man with Bipolar Disorder Dismissed

Johnson v. City of Memphis, 617 F.3d 864 (6th Cir. 2010)

The 6th Circuit Court of Appeals upheld the trial court’s dismissal of a § 1983 complaint brought by the widow of a man with bipolar disorder against two city police officers alleging violation of the Fourth Amendment’s prohibition against unlawful search and seizure that resulted in his death. The plaintiff called 911 seeking assistance for her husband, but hung up and left the house before the operator answered. Receiving no response to a follow-up call, the operator dispatched two patrol officers to the house. Upon arrival, the officers found the door open and after announcing their presence and receiving no response, entered the house with their weapons drawn. The man jumped on one officer grabbing his gun; a scuffle ensued; and the plaintiff’s husband was killed. The Court held that the entry met the exigent circumstances emergency aid exception to the 4th Amendment’s prohibition against unlawful searches and seizures based upon the factual circumstances in this case.

Found in DMHL Volume 30 Issue 2

US Supreme Court Declines to Hear Appeal of Fifth Circuit’s Dismissal of Lawsuit for State Endangerment in Death of Mother of Man Whom Police Attempt to Detain for Mental Illness

Saenz et al. v. City of McAllen, Texas, et al., 396 Fed. Appx. 173, (5th Cir. 2010), pet. for cert. denied April 4, 2011

The United States Supreme Court has declined to review an unpublished Fifth Circuit opinion that granted qualified immunity to police officers who put the mother of a man with mental illness in the line of fire when attempting to subdue him for civil commitment. The estate and surviving relatives of an elderly woman sued the City of McAllen, Texas and individual police officers in a § 1983 action for allegedly violating her substantive rights under the due process clause. Police had summoned the elderly mother to the scene after they had tried and failed to extricate her adult son for mental health commitment from the house in which he had barricaded himself. The police knew he had a gun, was agitated, had made death threats to family members that day and was not taking his medications. He had previously killed his wife with an ax. Police allegedly took the mother who could not walk unassisted out of the car and placed here in front of the door, instructing her to urge her son to come out while police, wearing bullet proof vests, hid behind her with guns ready. When the son emerged, police opened fire. The mother was caught in the middle and was shot multiple times.

The Supreme Court has held that as a general rule state officials have no constitutional duty to protect an individual from private violence. Where, however, the state through affirmative exercise of power acts to restrain individual liberty, the state creates a “special relationship” which imposes a constitutional duty to protect the individual from danger, including private violence. The Fifth Circuit held that the “statecreated-danger” theory of liability was not clearly established in that circuit at the time of this incident and therefore the individual defendants were entitled to qualified immunity. The United States Supreme Court declined to review this decision.

Found in DMHL Volume 30 Issue 4

Fourth Amendment Liberty Interest During Mental Health Crisis

Exigent circumstances exception allows warrantless entry and seizures when officers have reasonable basis to believe person poses imminent danger of harm to self

Sutterfield v. City of Milwaukee, 751 F.3d 542 (7th Cir. 2014)

Krysta Sutterfield sued the City of Milwaukee and several of its police officers after officers forcibly entered her home to effectuate an emergency detention for purposes of a mental health evaluation, opened a locked container, and seized for safekeeping the gun and concealed-carry licenses they found inside. Sutterfield contended that the officers in question violated her rights under the Second, Fourth, and Fourteenth Amendments. On appeal from the federal district court for the Eastern District of Wisconsin, the Seventh Circuit held that the warrantless entry into Sutterfield's home was justified under the exigent circumstances exception to the Fourth Amendment's warrant requirement, as the officers had a reasonable basis to believe that Sutterfield posed an imminent danger of harm to herself. The Seventh Court ultimately affirmed the lower court’s grant of summary judgment to the defendants on the basis of qualified immunity, even assuming that the search of a closed container for a gun, and the ensuing seizure of that gun, violated Sutterfield's Fourth Amendment rights.

On appeal, only the liability of the individual officers was at issue. Sutterfield argued that the police officers' warrantless entry into her home, the seizure of her person, the search of the locked compact disc case, and the seizure of the revolver and the concealed carry licenses discovered therein all violated her rights under the Fourth and Fourteenth Amendments, and that the seizure of the gun and licenses also violated her rights under the Second Amendment. She further contended that because these rights were clearly established (in her view), the officers did not enjoy qualified immunity from suit. The two primary competing interests at stake in the case were Sutterfield’s privacy— specifically the right to be left alone in her home—and the important role police play in safeguarding individuals from dangers posed to themselves and others.

The Seventh Circuit noted that the Milwaukee police had been contacted by Sutterfield's physician with a concern that she might harm herself, and that Wisconsin law set forth an emergency detention procedure to deal with that sort of situation. Pursuant to section 51.15, a statement authorizing Sutterfield's emergency detention was prepared, and police executed that statement when they entered Sutterfield's home and took her into their custody. There was no suggestion that the officers acted for any reason other than to protect Sutterfield from harm. The Seventh Circuit also noted that their task was made more complicated by (1) the lack of information presented by the parties as to alternatives other than emergency detention, and (2) a lack of clarity in Fourth Amendment law as to the appropriate framework for examining warrantless intrusions motivated by purposes other than law-enforcement and evidence-gathering. Ultimately, however, the Seventh Circuit held that warrantless entry into appellant's home could not be sustained on the basis of the community caretaker doctrine, but was justified under the exigent circumstances exception to the Fourth Amendment's warrant requirement, as the officers had a reasonable basis to believe that appellant posed an imminent danger of harm to herself.

Found in DMHL Volume 34 Issue 1

Treatment of Mentally Ill Individuals in Custodial Settings: Custodial Interrogation

Police conduct with 18-year-old with Intellectual Disability is coercive under “totality of the circumstances”, rendering confession inadmissible

United States v. Preston, 751 F.3d 1008, 1010 (9th Cir. 2014)

The 9th Circuit, sitting en banc, held that under the totality of the circumstances, including the eighteen-year-old defendant's intellectual disability, a confession that resulted from police questioning was involuntarily given and should not have been admitted at trial. In reaching this decision, the court overruled Derrick v. Peterson, 924 F.2d 813 (9th Cir.1991) as well as subsequent cases relying on it, which had held that individual characteristics are “relevant to our due process inquiry only if we first conclude that the police's conduct was coercive.”

The court divided its initial inquiry into two categories—defendant’s reduced mental capacity and the techniques used during the interrogation. As to the first category, the court found that the intellectually impaired have a demonstrated increased vulnerability to coercion. The court also relied on scholarly assessment of common traits of intellectually disabled persons that may make them more susceptible to coercive interrogation techniques and then used those traits to inform their analysis of the techniques used to question the defendant, noting that “[A]s interrogators have turned to more subtle forms of psychological persuasion, and away from physical coercion, courts have found the mental condition of the defendant a more significant factor in the ‘voluntariness' calculus.”

The court based its totality of the circumstances inquiry into the coercive nature of the interrogation on several factors: (1) defendant's severe intellectual impairment, (2) repetitive questioning and the threats that questioning would continue without end, (3) pressure placed on the defendant to adopt certain responses, (4) the use of alternative questions that assumed defendant’s culpability, (5) the officers' multiple deceptions about how the statement would be used, (6) suggestive questioning that provided details of the alleged crime, and (7) false promises of leniency and confidentiality.

Found in DMHL Volume 34 Issue 1

ADA

Application of “accommodation” requirement to emergency police encounters with persons with mental illness

Sheehan v. City & Cnty. of San Francisco, 743 F.3d 1211 (9th Cir.) cert. granted sub nom. City & Cnty. of San Francisco, Cal. v. Sheehan, 135 S. Ct. 702 (2014).

Lower Court Opinions:

Plaintiff, Teresa Sheehan, filed suit under 42 U.S.C. 1983 against police officers and the city after the officers entered her home without a warrant and shot her five or six times when she reacted violently to the officers' presence, grabbing a knife and threatening to kill the officers. Plaintiff, a woman in her mid-50s suffering from a mental illness, told the officers that she did not want to be taken to a mental health facility. The United States District Court for the Northern District of California granted summary judgment in favor of the defendants finding that the officers (1) were justified in entering Sheehan’s home, (2) did not use excessive force when they shot Sheehan, and (3) could not bring against the individual officers or the city under the Americans with Disabilities Act. The district court relied on language from a 5th Circuit case in reaching this third conclusion: “section 12132 does not permit a cause of action based on 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.”

The 9th Circuit affirmed in part, holding 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 she was in need of emergency medical assistance and they conducted the search or seizure in a reasonable manner up to that point. The court held that there were triable issues of fact as to whether the second entry violated the Fourth Amendment where a jury could find that the officers acted unreasonably by forcing the second entry and provoking a near-fatal confrontation. The court further held that there were triable issues of fact as to whether the officers used excessive force by resorting to deadly force and shooting plaintiff. Finally, the court held that the district court properly rejected claims of municipal liability; the court joined the majority of circuits that have addressed the issue and held that Title II of the Americans with Disabilities Act, 42 U.S.C. 12132, applied to arrests; on the facts presented here, there was a triable issue as to whether the officers failed to reasonably accommodate plaintiff's disability; and the court vacated summary judgment on plaintiff's state law claims and remanded for further proceedings.

Briefs of Petitioners and Respondent:

On appeal to the Supreme Court, both parties raised two questions in their original briefs. First, whether the accommodation requirement of Title II of the Americans with Disabilities Act requires law enforcement officers to provide accommodations during the course of bringing an armed and mentally ill suspect into custody. Second, for the purpose of determining whether officers were entitled to qualified immunity, whether it was clearly established that even if an exception to the warrant requirement applied, entry into a residence may be unreasonable under the Fourth Amendment when officers enter the home of an armed and mentally disturbed individual.

According to petitioners (City and County of San Francisco), Sheehan was not entitled to accommodations during her arrest process because she was not “qualified…to invoke a public entity’s duty to modify its activities” because she posed “a direct threat or significant risk to the safety of others” at the time of her arrest. Petitioners contended that, because the determination of threat or risk is to be based on the reasonable judgment of the person from whom the accommodation is demanded, and the officers made an objectively reasonable judgment based on the information they had at the time, Sheehan was not entitled to an accommodation during her arrest. In regard to the Fourth Amendment warrant-exception issue, the petitioners contended that the rule articulated in the case below—that absent an immediate need police officers are prevented from entering the residence of an armed, violent, and mentally ill person and even in the case of an immediate need to enter the officers are prevented from using force to defend themselves against even a provoked attack—both contradicted Supreme Court precedent and was not clearly established by 9th Circuit precedent.

In response, the brief for Teresa Sheehan argued at the outset that it did not make “legal” sense to apply an exception to Title II’s reasonable accommodation requirement when an individual’s mental illness is the reason for the police’s interaction with that person. Further, the brief for the respondent contended that, as a factual matter, Sheehan could not have been considered a reasonable direct threat for the purpose of the exception because (1) she was alone in the residence and the officers were on the outside of the door, (2) Sheehan was not a flight risk, and (3) Sheehan had only ever threatened individuals who entered her room without permission. In response to the petitioners’ claim that delay would have been an unreasonable accommodation, respondent contended that the proposed modifications put forward were “consistent with applicable training materials and universally accepted police practices designed to minimize the risk of a violent confrontation with a mentally ill individual.” Finally, Sheehan contended that the officers should not be entitled to qualified immunity in respect to their actions because forcibly reopening the door to Sheehan’s room and shooting her multiple times without taking her mental illness into account or identifying a countervailing need to enter was objectively unreasonable.

Reply Brief of Petitioners:

In their reply brief, the petitions began by identifying that while Title II of the ADA “does not permit police officers to assume that erratic conduct caused by mental illness is dangerous” it also does not “require officers to ignore dangerous conduct because it may be caused by mental illness.” The reply brief emphasized that arrest situations— especially ones involving mentally ill persons who are armed, acting erratically, and potentially violent—involve split-second judgments that should not be assessed “[w]ith the benefit of hindsight and calm deliberation.” Thus, the risk determination should be assessed in the closed universe of the facts of the situation as available to the officers at the time of the arrest. The reply brief also took issue with the temporal focus on the respondent’s brief (i.e. solely focusing on the “second” entry when the officers entered Sheehan’s closed-off bedroom). Instead, petitioners argued that the second entry could not be considered in isolation, but must be analyzed in the context of the entire encounter up to that point: “[W]hen the officers decided to reenter Sheehan’s room, they knew beyond question that Sheehan was violent and intended harm.”

Briefs of Selected Amici Curiae:

American Psychological Association (et alia): The American Psychological Association filed a brief in conjunction with several other amici. The complete list of joint amici included the American Psychiatric Association, American Psychological Association, Delaware, Illinois, New Mexico, Ohio, and Vermont Psychological Associations, National Council on Disability, National Alliance on Mental Illness, and Judge David L. Bazelon Center for Mental Health Law. The joint brief took the position that the question of whether an individual is “qualified” within the meaning of the ADA should be determined by analyzing the entire encounter between law enforcement and the mentally ill individual. Further, the brief argued that it is precisely the situation in which failure to provide accommodation is the partial cause of threatening or violent behavior that the statute’s protection is important. Finally, the APA brief took the position that an obligation to provide reasonable accommodations when interacting with mentally ill individuals at the time of arrest would not impose any undue burden on law enforcement or other public entities.

Policy Council on Law Enforcement and the Mentally Ill (“Policy Council”): The Policy Council filed a brief in strong support of respondent Teresa Sheehan, opening their argument with the proposition that it is “critical to the safety and well-being of those suffering from mental illness, as well as their loved ones, that the Americans with Disabilities Act (ADA) apply vigorously to police encounters” because they are “acutely vulnerable.” The Policy Council’s brief highlighted the public policy concerns that support the enforcement of the ADA’s accommodation requirement: namely, “the importance of encouraging people who need help to seek it.” The brief also took the position that in “barricade situations involving mentally ill individuals, there should rarely be a question as to the [ADA]’s applicability.” Finally, the Policy Council argued that “fairness and equity suggest that the ADA accommodation requirement should apply when officers are present for the sole purpose of assisting” mentally ill persons.

United States: The amicus brief of the United States of America supported vacatur in part and reversal in part. As to the ADA claim, the United States agreed that “[b]y its plain terms, the provision…extends to arrests.” The government did, however, also argue that when “police officers arrest an individual with a disability who is armed and violent, any deviation from ordinary law enforcement tactics will generally present very real safety risks.” Still, while of the mind that in the ordinary run of cases no modifications to the ADA will be required, the government espoused the position that a plaintiff should still “remain free to show that special circumstances rendered a modification reasonable” given the facts of any particular case.” Given the facts of the instant case, the government argued that Sheehan’s being armed and violent put the burden on her to show that an accommodation would not have presented safety concerns for the officers involved.

National League of Cities: The National League of Cities, filing in support of the petitioners, began by arguing that the holdings of the 9th Circuit below ignored the “practical reality faced by police officers who must routinely confront seriously mentally ill suspects who are armed and violent.” Taking a position quite different from the other amici curiae, the National League of Cities, while acknowledging that some cities have adopted special procedures for responding to incidents with mentally ill individuals, claims that “there is no conclusive evidence that these specialized approaches reduce the rate or severity of injuries suffered during police encounters with mentally ill suspects.” Further, the National League of Cities argued that requiring police officers to “undertake special procedures to accommodate an armed and violent suspect’s mental disability during an emergency situation” would have serious consequences for the safety of officers and the public because it would encourage them to “hesitate or delay in confronting an armed and violent suspect who displays any sign of a mental illness.”

Argument Analysis:

[ from Lyle Denniston, Argument Analysis: Can a Really Rough Start be Overcome?, SCOTUSBLOG.COM, (Mar. 23, 2015, 3:07 PM), http://www.scotusblog.com/2015/03/argument-analysis-can-a-really-rough-start-beovercome/ ]

In the opening moments of the oral arguments, Justice Scalia expressed concern (and thinly veiled annoyance) at his perception that the case “may have changed markedly once it got on the Court’s docket.” Justice Scalia questioned Christine Van Aiken, deputy city attorney for San Francisco, on the apparent discrepancies between the question on which the Court granted certiorari and the arguments raised in the city’s merits brief. According to Justice Scalia, the Court had taken the case to decide whether the ADA should apply at all in the context of an arrest (the position taken in the city’s lower court briefs), but the briefs filed by the city with the Supreme Court couched the question in terms of when the ADA’s protections kick in during an arrest. The city’s articulated position in its merits brief (as read out from petitioners’ filings by Justice Scalia and also remarked upon by Justice Sonia Sotomayor) was that the ADA’s protections only apply once “a threat [posed by a disabled person] has been eliminated.” Justice Samuel Alito also introduced another complicating factor—although no one had addressed the issue in a brief— by articulating the opinion that the definition of discrimination in the context of police activity could be a threshold matter.

By the time Van Aiken’s time had expired, the Court had only spent a little time on the merits of the case. Ian H. Gershengorn, Deputy Solicitor General, spoke next, advancing the view espoused in the federal government’s brief that the protection of the ADA “definitely does, and should, apply to police arrests.” He received some pushback from the Justices, but held strongly to his argument even under fire on the topic of the questions that might arise in the “tense situations” when officers confront a potentially violent and mentally ill individual.

Soon after Leonard Feldman, Sheehan’s lawyer, began his arguments, the Justices seemed to be “developing some skepticism about how police could actually try to calm a situation when an armed and violent person came at them with a knife and with a threat to kill them.” Specifically, Chief Justice John Roberts raised the issue of whether Sheehan might have been a suicide risk—suggesting that a reasonable fear of an individual posing a risk of self-harm might be enough to trigger exceptions to the ADA and the Fourth Amendment warrant requirement.

Ultimately, the court seemed confused (or at the least to have serious lingering questions) about (1) which standard each party was advocating for the Court to apply in interpreting the ADA’s applicability to arrests, and (2) the factual specifics of whether Sheehan did actually pose a “direct threat” to the officers.

Found in DMHL Volume 34 Issue 1

Police search and seizure and qualified immunity in mental health emergencies

7 th Circuit reverses district court and dismisses 42 U.S.C. § 1983 claim against police officers for violating plaintiff’s fourth amendment right against unreasonable seizure, finding the officers had qualified immunity

Mucha v. Jackson, 786 F.3d 1064 (7th Cir. 2015)

Jason Mucha was a Milwaukee police sergeant referred for psychiatric examination after failing to report to duty for 7 months due to stress. In his examination, Mucha admitted to having had thoughts of committing suicide by cop, specifically “going to a command staff meeting with a rifle” and “shooting them until they shoot me.” Mucha stated that he did “not intend[] to do that” but that going back to work “could have a real bad ending.” The psychiatrist, in a report to the police department two weeks later, stated that sending Mucha back to work would be a “public safety issue.” The police sent two officers with Tactical Enforcement Unit backup to Mucha’s home to speak with him. At that time Mucha said he had no intention of harming himself or others, but he did admit to having dreams or thoughts of committing suicide or hurting others. The officers detained Mucha and took him to the Milwaukee County Mental Health Facility where he was admitted after the facility’s treatment director found that Mucha suffered from “adjustment disorder with disturbance of conduct and mood” and so “posed a threat of danger to self or others.” Mucha was released after three days and filed suit for unreasonable seizure and false imprisonment. The District Court for the Eastern District of Wisconsin denied the officers’ motion for judgment on the pleadings with respect to their claims for qualified immunity.

The Seventh Circuit Court of Appeals reversed, holding that the officers were entitled to qualified immunity, as they had not violated “any clearly established law, whether constitutional or statutory, federal or state.” Judge Posner noted that the officers had relied upon Wisconsin's emergency detention statute, which authorizes police officers to take a person to an appropriate mental health facility if they have “cause to believe” that the person is “mentally ill” and has demonstrated “a substantial probability of physical harm to himself or herself as manifested by evidence of recent threats of or attempts at suicide or serious bodily harm.” The district court had accepted Mucha’s Fourth Amendment argument that the officers did not “have probable cause to believe that he was mentally ill and posed a danger to himself and to other police officers.” The district court noted that the psychiatrist’s information was 15 days old when received, and thus was not “recent” within the meaning of the emergency detention statute. The Seventh Circuit rejected Mucha’s argument, however, noting that the Wisconsin statute does not define “recent” and that the definition can vary depending upon context. Given the nature of Mucha’s statements to the psychiatrist, the Circuit Court held that the statements were still recent or at least not clearly established as no longer recent. Moreover, the Circuit Court noted that “[a] state law cannot preempt the Fourth Amendment” but it “can establish a standard of conduct that is consistent with the amendment but particularized to a specific situation.” Because the “danger signals” known to the police at the time of their interview with Mucha reasonably triggered the emergency detention statute, “the defendant officers…were complying with a statute the validity of which is not contested.”

Found in DMHL Volume 34 Issue 2

Excessive force, conspiracy, and municipal liability under §1983

Weiland v. Palm Beach Cnty. Sheriff's Office, 792 F.3d 1313 (11th Cir. 2015)

District court abused its discretion in dismissing plaintiff’s §1983 claims at the pleading stage on technical, procedural grounds; plaintiff’s allegation as sufficient to state a claim against individual deputies, but not the sheriff’s office as a unit, for use of excessive force and conspiracy to deprive plaintiff of constitutional rights

Background: Christopher Weiland brought an action against the sheriff's office and deputies, asserting claims under § 1983 based on allegations of excessive force and malicious prosecution, and state law claims for excessive force, intentional infliction of emotional distress, and malicious prosecution. On April 6, 2007, Weiland’s father called 911 alleging that his son, who had bipolar disorder, was “acting up,” was “on drugs,” and “probably had a gun.” Two sheriff’s deputies were dispatched and met Weiland’s father outside the house. They then proceeded, with guns drawn, toward Weiland’s bedroom and found him sitting on the edge of his bed with a shotgun in his lap. One of the deputies fired two rounds at Weiland and knocked him off the bed. While he was on the floor bleeding, the other deputy tasered him and then both deputies physically beat him before handcuffing him to a dresser. In an effort to cover up the assault, the deputies fabricated a story that Weiland first ran from the officers then pointed the shotgun at them. The district court dismissed the plaintiff’s § 1983 claims, finding that the complaint failed to comply with the form for pleadings. Weiland appealed.

Holdings: The Court of Appeals held that: (1) the district court had abused its discretion in dismissing the § 1983 claims for failure to comply with requirements for form of pleadings; (2) allegations were sufficient to support claims for use of excessive force and conspiracy to deprive arrestee of his constitutional rights; (3) allegations were insufficient to support claims for § 1983 failure-to-train and conspiracy claims against the sheriff’s office; and (4) allegations were insufficient to support a § 1983 claim that the sheriff’s office had a policy of using internal affairs investigations to cover up use of excessive force against mentally ill citizens.

Notable Points:

Claims against individual deputies: Construing the allegations in the light most favorable to the plaintiff, the Court had little difficulty in deciding that Weiland had stated a claim for use of excessive force. The Court concluded that Weiland’s injuries were cognizable under both the Fourth and Fourteenth Amendments and that his claim specified a “causal connection between the alleged cover up and the specific deprivation of [his] constitutional rights.”

Failure-to-train and claims against the sheriff’s office: Plaintiffs cannot hold local government liable under § 1983 under a respondeat superior theory, so to be successful, a plaintiff must establish that the government unit has a “policy or custom” that caused his injury. The Court held that the claims resulted from an isolated incident involving only two deputies, and that Weiland had not provided any facts supporting either a widespread deficiency in training regarding interactions with mentally ill individuals, or a deliberate indifference to the specialized training needs of deputies interacting with the mentally ill. The Court found the conspiracy allegation against the sheriff’s office similarly deficient.

Found in DMHL Volume 34 Issue 3

Excessive use of force

Estate of William E. Williams, et al. v. Indiana State Police Department (No. 14-2523), Nancy Brown v. Wayne Blanchard and Walworth County, Wisconsin (No. 14-2808) (7th Cir. August 13, 2015)

Post-Sheehan analysis of two separate excessive force claims in mental health emergencies results in sustaining summary judgment in one case and denial of summary judgment in the second case

Background: In the Williams case, family members reported to the police that Williams had taken all of his remaining Xanax, locked himself in a bathroom and reported that he had cut himself, and threatened to kill anyone who tried to enter the bathroom. The officers who responded were unable to look into the bathroom to confirm Williams’ condition, and carried out a plan in which they unlocked the bathroom door and then tasered Williams to keep him from carrying out his threats of self-harm and harm to others. The tasers had no effect on Williams, who pursued the officers through the house, swinging his knife. Officers shot and killed him. Williams’ estate brought suit alleging excessive use of force by the officers in violation of the 4 th amendment. The district court granted the defendants summary judgment based upon a finding that the officers were protected by qualified immunity. The Williams estate appealed.

In the Brown case, Nancy Brown’s son John had cut himself, had a knife in his possession and was locked in his bedroom, but his mother had a key and went into her son’s room and spoke with him. He refused help, but did not threaten to harm his mother or anyone else. The first responding officer (Officer Such) spoke with Ms. Brown and then attempted to speak with Mr. Brown through the door, but Brown only responded with a profanity. A second officer (Officer Blanchard) arrived, spoke briefly with Ms. Brown and Such, and proceeded down the hall to the bedroom door as Such went outside to look at Mr. Brown through the window. Such radioed to Blanchard that Brown was sitting at his desk, in front of his computer, drinking a beer and smoking. Declining an offer by Brown’s mother to unlock the door to Brown’s room, Blanchard kicked in the door, gun drawn. Officer Such came back inside, backing up Blanchard with his taser drawn. Brown rose with knife in hand, crossed the room, and slammed the door shut. Blanchard again kicked open the bedroom door. The officers later reported that Blanchard ordered Brown to drop the knife and advised Brown that he would have to shoot him, and that Brown responded by rolling his shoulders forward and advancing toward the officers while moving the knife “in an upward position.” The officers reported that when Brown was 5 or 6 feet away from them, Blanchard shot him twice, killing him. Nancy Brown, who was in the living room at the time of the shooting, reported that she never heard either officer tell Brown to drop his knife and that she heard the fatal shot fired almost immediately after the bedroom door was kicked open the second time. Ms. Brown sued Officer Blanchard and the county, claiming excessive force was used against her son in violation of the 4 th amendment. Blanchard moved for summary judgment but the district court denied the motion, ruling that there were material facts in dispute, and that the jury’s findings on those disputed facts could result in a finding of liability on the part of the officer, under one or both of two legal theories: (1) that Blanchard’s unreasonable “pre-seizure conduct” provoked the actions by John Brown that resulted in the shooting, and (2) that at the time of the shooting, John Brown at most was only passively resisting the officers, so that the use of lethal force against Brown was unreasonable. Blanchard appealed. The Court of Appeals consolidated the two cases.

Holdings: A 3-judge panel of the Court of Appeals upheld the rulings of each district court. In upholding Williams, the panel cited and closely followed the reasoning of the U.S. Supreme Court in City and County of San Francisco v. Sheehan, 35 S. Ct. 1765 (2015), noting that the plaintiffs could not cite any case law existing at that time that found “objectively unreasonable” the strategy of the officers. In fact, the panel noted, a number of appellate courts had specifically found similar actions in other cases to be objectively reasonable. Hence, the officers were not on notice that their actions were an excessive use of force.

In Brown, the panel upheld the district court’s denial of the officer’s request for summary judgment based on qualified immunity. The panel, noting again its reliance on Sheehan, rejected the district court’s concept of liability for “pre-seizure conduct” as not having the support of case law that would put the officer on notice that his conduct violated 4 th amendment standards. However, the panel sustained the district court’s denial of summary judgment in regard to the second theory, noting that under longstanding case law it was clear that it was unreasonable for an officer to use deadly force in response to an individual who was presenting only passive resistance to the officer.

Notable Points: The opinion is a careful and detailed consideration of the facts of each case and of the proper legal framework for a court’s analysis of those facts, particularly under the guidance provided by the U.S. Supreme Court in Sheehan. The panel rejected the Brown court’s first theory of liability: “Our case law is far from clear as to the relevance of pre-seizure conduct, or even as to a determination as to what conduct falls within the designation ‘pre-seizure,’ although the majority of cases hold that it may not form the basis for a Fourth Amendment claim.”

Why the result in Brown was different: Review standard for interlocutory appeal: The panel noted that, because Blanchard’s appeal was an interlocutory appeal from the district court’s denial of qualified immunity, the scope of the panel’s review was limited to ”the purely legal question of whether ‘a given set of undisputed facts demonstrates a violation of clearly established law.’” Panel’s acceptance of district court’s second theory of liability: The panel found that the law was clear that officers cannot use significant force on non-resisting or passively resisting suspects; so, if a jury found that the facts were as Nancy Brown described them, then Blanchard’s use of deadly force against a “passively resisting” John Brown would violate the 4 th amendment. Blanchard's “pre-seizure conduct” is relevant to this analysis because it is part of the “totality of the circumstances” that must be considered in evaluating the reasonableness of the seizure. The panel noted factors, such as: John never threatened to harm anyone else; John allowed his mother to enter his room and hug him; John was clearly seen to be passively sitting at his computer; and Blanchard chose to kick in the door to John’s room, and to immediately resort to deadly force when the non-lethal taser was immediately available.

Found in DMHL Volume 34 Issue 3