Intellectual disability; execution

Moore v. Texas, 137 S.Ct. 1039 (2017)

U.S. Supreme Court reverses the ruling of the Texas Court of Criminal Appeals that defendant convicted of a capital crime was not intellectually disabled. The Supreme Court found that the state court deviated from the consensus of the medical community and relied on lay stereotypes of intellectual disability rather than accepted clinical standards.

Found in DMHL Volume 36, Issue 2

Death Penalty, Ineffective Assistance, Intellectual Disability

Reeves v. Alabama, 138 S. Ct. 22 (2017)

The Supreme Court of the United States denied certiorari to hear a case involving ineffective assistance of counsel based on not obtaining psychological evaluation for intellectual disability. Of relevance here is the opinion of the dissenting Justices, who found that the Alabama Court of Criminal Appeals incorrectly imposed a rule requiring trial counsel to testify in order for a petitioner to succeed on a federal constitutional ineffective-assistance-of-counsel claim.

Found in DMHL Volume 37, Issue 1


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

Supreme Court Upholds Arizona's Ability to (1) Limit the Scope of the Insanity Defense and (2) Preclude the Use of Mental Health Expert Testimony in Conjunction with a Mens Rea Determination

Clark v. Arizona, 126 S. Ct. 2709 (2006)

In its recently completed term that began October 3, 2005, and ended June 29, 2006, the United States Supreme Court decided sixty-nine cases with a signed opinion.  After an unprecedented eleven years without a change in its membership, these opinions were closely watched to see whether the Court's direction would change with the addition of Chief Justice John G. Roberts, Jr., and Samuel A. Alito, Jr.  For many mental health professionals, the case of greatest interest, Clark v. Arizona, was issued on the final day of the term...

Found in DMHL Volume 25 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

US Supreme Court Declines to Hear Missouri Supreme Court Finding of Ineffective Counsel for Failure to Call Mental Health Expert

Missouri v. Vaca, 314 SW3d 331, (Mo. 2010), pet. for cert. denied February 22, 2011

The United States Supreme has refused to hear the State of Missouri’s request for review of the Missouri Supreme Court’s determination that defense counsel was ineffective at the penalty phase of the trial for failure to present mental health evidence for no strategic reason. The defendant had been charged with a series of armed robberies. Defense counsel had obtained a mental health evaluation that revealed the defendant was schizophrenic and evidence indicated he had suffered from this condition most of his life. The prosecutor was successful in excluding the defendant’s mental health evidence during the guilt phase of the trial. During deliberations, the jury sent questions back to the judge asking among other things whether there had been any evaluation of the defendant’s mental condition. Knowing the defendant suffered from mental illness and that the jury had questions regarding his mental state, defense counsel failed to call a mental health expert as a witness during the penalty phase of the trial. The Court held that while a defense attorney has flexibility to make strategic decisions about whether to introduce mental health evidence, the evidence revealed that the defense counsel did not even think about it. Missouri had just changed its law to provide for bifurcated guilt and penalty phase trials in noncapital cases and this was defense counsel’s first such trial. The Court thus held that a new sentencing hearing was required.

Found in DMHL Volume 30 Issue 4

US Supreme Court Upholds Death Penalty Where Defendant’s Attorney Made Strategic Decision not to Present Evidence of Bipolar Mood Disorder

Cullen, Acting Warden v. Pinholster, ( Docket No. 09-1088), slip opinion found at:

On April 4, 2011, the United States Supreme Court reversed the en banc decision of the Ninth Circuit Court of Appeals that granted habeas corpus relief to a petitioner convicted on two counts of first degree murder, and reinstated the death penalty recommended by the jury and imposed by the California trial court.

The petitioner alleged that his trial counsel was ineffectual for failing to adequately investigate and present mitigating evidence during the penalty phase of the trial to support his mental health claim that school, medical and legal records, and declarations from family members and another psychiatrist had diagnosed him with a bipolar mood disorder and a seizure disorder. The prosecution presented eight witnesses testifying to the defendant’s threatening and violent behavior. The petitioner’s trial counsel unsuccessfully sought to exclude the aggravating evidence on the grounds that the prosecution had not given the petitioner proper notice under California law. The petitioner therefore only called his mother as a witness in mitigation. The petitioner’s counsel had consulted a psychiatrist who had diagnosed him with antisocial personality disorder, but did not call him as a witness.

The California Supreme Court twice reviewed the defendant’s claim, unanimously denying and dismissing the allegations each time. The United States District Court, however, heard evidence on the petitioner’s claim and granted habeas relief. The Ninth Circuit reviewing the federal district court’s decision en banc, considered the new evidence from the federal district court hearing and upheld the decision on the grounds that the State court had violated clearly established federal law.

Justice Thomas writing for the Court, held that review of habeas cases under 28 U.S.C. § 2254 is limited to the record that was before the state court that adjudicated the claim on the merits. Under the Antiterrorism and Effective Death Penalty Act of 1996, a claim adjudicated on the merits in state court cannot be granted unless 1) the decision was contrary to or involved an unreasonable application of clearly established federal law, or 2) was based on an unreasonable determination of facts in light of the evidence presented in state court. The Supreme Court held that the record under review is therefore limited to the record in existence at that time. The Court determined that the state court record supported the idea that the petitioner’s counsel acted strategically to get the prosecution’s aggravation witnesses excluded for lack of notice. The Court noted that the petitioner was also an unsympathetic client who boasted about his criminal history during the guilt phase, leaving trial counsel with limited mitigation strategies. The Court held that there was no reasonable probability that the additional evidence would have changed the verdict. Justices Sotomayor, Ginsburg and Kagan dissented. The other justices joined in the decision of the Court, but wrote multiple concurring opinions.

Found in DMHL Volume 30 Issue 4

US Supreme Court Declines to Review Seventh Circuit Decision Authorizing Indiana Protection and Advocacy Services to Sue Indiana to Obtain Peer Review Records

Indiana Family and Social Services Administration v. Indiana Protection and Advocacy Services, 603 F.3d 365 (7th Cir. 2010) pet. for cert. denied April 25, 2011)

On April 25, 2011, the Supreme Court denied the petition for Writ of Certiorari filed by the Indiana Family and Social Services Administration seeking review of the en banc decision of Court of Appeals for the Seventh Circuit that authorized Indiana Protection and Advocacy Services to sue to obtain peer review records from its mental health agency (Docket No. 10-131). This case set up the conflict between the circuits prompting the Supreme Court to hear VOPA v. Stewart described above.

Found in DMHL Volume 30 Issue 4

US Supreme Court Orders California to Reduce Prison Population for Failure to Provide Constitutionally Adequate Treatment for Inmates with Serious Mental Illness


Brown, Governor of California, et al. v. Plata, et al., No. 09-1233, decided May 23, 2011
Slip opinion found at:

In a 5-4 decision written by Justice Kennedy, the United States Supreme Court upheld the decision of a three-judge panel entered under the Prison Litigation Reform Act of 1995 (“PLRA”) ordering California to reduce its prison population by 137.5% of its original design capacity, or by 46,000 prisoners, within two years in order to address severe and unconstitutional conditions related to the delivery of mental health and medical care to California’s 156,000 inmates.

This decision is the result of two consolidated federal class action suits challenging the mental health and medical conditions in California’s prisons. The first, Coleman v. Wilson, 912 F. Supp. 1282 (E.D. Calf. 1995), was filed in 1990 alleging that deplorable mental health care constituted cruel and unusual punishment under the Eighth Amendment. After a 39-day trial, the court found the prisons severely and chronically understaffed with no method for ensuring competence of staff. The prisons failed to implement necessary suicide precautions due to severe understaffing and mentally ill inmates languished for months and years without access to care, suffering severe hallucinations and decompensating to catatonic states. After 12 years, a Special Master appointed to oversee remedial efforts reported that after slow improvement, the status of mental health care was again deteriorating. A rise in the prison population had led to greater demand for care, and existing program space and staffing levels were inadequate to keep pace. In 2006, at the time of trial before the three-judge panel, the suicide rate was approaching one per week with the suicide rate nearly 80% higher than the national average for prison populations. Suicidal inmates were held for prolonged periods in telephone booth-size cages without toilets. Slip Opn. at 11. According to the Special Master, 72.1% of suicides involved “some measure of inadequate assessment, treatment, or intervention, and were therefore most probably foreseeable and/or preventable.” Slip Opn. at 12. In 2007, the rate had risen to 82% and by 2010 there had been no improvement.

A second class action, Plata v. Brown, was filed in 2001, in which California conceded that deficiencies in prison medical care violated the Eighth Amendment. When the State had not complied with the remedial injunction issued, the Court appointed a Receiver to oversee the remedial efforts. Three years later, the Receiver described equally deplorable continuing deficiencies in medical care. In one prison, up to 50 sick inmates were held together in one 12 foot x 20 foot cage up to five hours awaiting treatment. The Coleman and Plata plaintiffs thereupon requested their respective district courts to convene a three-judge panel to order reductions in the prison population.

The Supreme Court held that if a prison deprives inmates of their basic needs for sustenance, including adequate mental health and medical care, courts have a responsibility to remedy the Eighth Amendment violations. Under the PLRA, only a three-judge panel may enter an order imposing a population limit and only after a district court has entered an order for less intrusive relief that has failed after the state has been given reasonable time for compliance. Before doing so, that court must also first consider a range of options, and then find by clear and convincing evidence that crowding is the primary cause of the violations, no other relief will remedy the situation and the relief is narrowly drawn and the least intrusive means to correct the violations. The court must also consider any adverse impact such a population limit will have on public safety and the operation of the criminal justice system. The Supreme Court thus held that the three judge-panel had properly heard evidence of then-current conditions and that no other relief short of imposing a population limit would remedy the situation. California indicates that it is proceeding to implement measures to reduce its prison population, but with the State’s severe budget crisis, it remains to be seen how effective its efforts will be.

Justice Scalia filed a dissenting opinion in which Justice Thomas joined. Justice Alito also filed a dissenting opinion in which Chief Justice Roberts joined.

Found in DMHL Volume 30 Issue 5

US Supreme Court Denies Review of Idaho’s Abolition of Insanity Defense; Three Justices Dissent

Idaho v. Delling, 267 P.3d 709 (Ida. 2011), cert. denied, Delling v. Idaho, 568 U.S. __ (November 26, 2012)
The dissenting opinion is available at: [ at pp. 24-26 ]

Idaho abolished the insanity defense in 1982 enacting new language providing that a defendant’s mental condition shall not be a defense to criminal conduct. In this case, John Joseph Delling was charged with two counts of first degree murder, which were later amended to second degree murder. On motion of his counsel, the court ordered Delling evaluated for competency to stand trial and later committed him for restoration to competency. After nearly a year of commitment, Delling was found competent to proceed. He thereafter entered a “conditional” plea of guilty but asked the trial court to find Idaho’s abrogation of the insanity defense unconstitutional on its face and as applied in his case. He argued that the ability of a defendant to raise the issue of insanity with respect to criminal responsibility is mandated under the Due Process Clause of the Fourteenth Amendment to the United States Constitution. In addition, he argued that abolition of the insanity defense violates his rights under the Sixth Amendment to present a defense and under the Eighth Amendment to be free from cruel and unusual punishment. The trial court denied these arguments and sentenced Delling to two consecutive life sentences.

On appeal, the Idaho Supreme Court upheld his convictions on the grounds that it had previously upheld the State’s abolition of the insanity defense in a long line of cases, and that the United States Supreme Court had declined to review any of those decisions after being presented with an opportunity to do so. Delling argued, however, that those decisions were no longer valid in light of the United States Supreme Court’s decision in Clark v. Arizona, 548 U.S. 735 (2006), in which the Supreme Court upheld the constitutionality of an Arizona statute that removed the cognitive incapacity element or second prong of the M’Naughten test. In so doing, the Supreme Court stated that it had never held that the Constitution mandates an insanity defense, but it had also never held that the Constitution does not require such a test. It stated that each state has the capacity to define its own crimes and defenses.

On November 26, 2012, the Supreme Court not surprisingly declined to review this case. What was a surprise was three justices dissented. Justice Breyer, joined by Justices Ginsburg and Sotomayor, noted the absurd result reached under Idaho law that permitted a defendant to argue that because of mental illness he lacked the requisite intent or mens rea to commit the act, but not defend on the basis that he was operating under a delusion when he committed the act. Under amicus curiae briefs filed by the American Psychiatric Association and Criminal Law and Mental Health Law Professors, Justice Breyer wrote that the vast majority of defendants pleading insanity appear to know they are committing the act charged but are operating under a delusion when they are doing so. He would therefore grant a Writ of Certiorari on the grounds that a defendant’s due process of law under the Fourteenth Amendment may be implicated.

Found in DMHL Volume 32 Issue 1

US Supreme Court Holds Incompetence of State Prisoner Does Not Suspend Federal Habeas Proceeding

Ryan v. Gonzales, 568 U.S. __(2013)
slip opinion available at: . Justice Clarence Thomas wrote the decision for a unanimous court.

The United States Supreme Court decided on January 8, 2013 in two consolidated capital cases that the incompetence of state prisoners does not suspend federal habeas corpus proceedings under either 18 U.S.C. § 3599 or 18 U.S.C. § 4241, reversing the decisions of the Ninth and Sixth Circuit Courts of Appeal.

An Arizona jury convicted Ernest Valencia Gonzales of felony murder, armed robbery, aggravated assault, first-degree burglary and theft. Gonzales had repeatedly stabbed a husband and his wife in front of their 7-year-old son during a burglary of their home. The husband died but his wife survived after several days of intensive care. The trial court sentenced Gonzales to death on the murder charge and to prison terms on the other charges.

After exhausting his state court remedies, Gonzales filed a petition for writ of habeas corpus in federal district court. Gonzales’ appointed counsel filed a motion to stay the petition on the grounds that Gonzales was no longer capable of communicating or assisting his counsel. The Ninth Circuit had previously held in Rohan v. Woodford, 334 F.3d 803 (9th Cir. 2003), that 18 U.S.C. § 3599(a)(2), the federal statute guaranteeing state capital prisoner’s a right to counsel in federal habeas proceedings required that the petitioner be sufficiently competent when he raises claims that could potentially benefit from his ability to communicate with counsel. If he is not competent, he is entitled to a stay of the proceedings pending his restoration to competency. The Ninth Circuit reasoned that without a stay, the petitioner is denied his right to counsel. Although applying Rohan, the district court, nevertheless, denied Gonzales a stay. It determined that the claims he raised were based on the record before the trial court or were resolvable as a matter of law ,and his lack of competence would therefore not affect his counsel’s ability to represent him. Gonzales then filed an emergency petition for writ of mandamus in the Ninth Circuit. While his case was pending, the Ninth Circuit decided Nash v. Ryan, 581 F.3d 1048 (2009), holding that habeas petitioners have an absolute right to competence on appeal, even though appeals are entirely record-based. The Ninth Circuit thereupon granted Gonzales’ writ and entered a stay pending his competency determination. The Supreme Court granted Arizona a writ of certiorari.

In the second case, an Ohio jury convicted Sean Carter of aggravated murder, aggravated robbery, and rape, and sentenced him to death for anally raping his adoptive grandmother and stabbing her to death. After exhausting his state court appeals, Carter’s attorney filed a federal habeas petition along with a motion requesting a competency determination and a stay of his proceedings. Following several psychiatric evaluations, the district court found Carter incompetent to assist counsel and, applying the Ninth Circuit’s test in Rohan, finding that Carter’s assistance was necessary to develop four of his exhausted state court claims. As a result, the district court then dismissed the habeas petition without prejudice and tolled the stature of limitations under the Antiterrorism and Effective Death Penalty Act of 1996.

On appeal, the Sixth Circuit recognized that federal habeas petitioners do not have a constitutional right to competence, but found a statutory right to competence under 18 U.S.C. §4241, relying in part on the Supreme Court’s decision in Rees v. Peyton, 384 U.S. 312 (1966). Rees required that a Virginia habeas petitioner awaiting the death penalty who decided to forego any further appeals of his conviction or sentence be competent enough to understand the nature of the proceeding and assist counsel before he could withdraw his habeas petition. The Sixth Circuit then ordered that Carter’s petition be stayed indefinitely with respect to any claims that required his assistance. The Supreme Court granted Ohio’s petition for writ of certiorari and consolidated the two cases for review.

On review, the Supreme Court noted not only that there is no constitutional right to counsel in habeas proceedings, but there is no due process right at all to collateral review. Murray v. Giarratano, 492 U.S. 1, 10 (1989). It acknowledged that the statute, 18 U.S.C. § 3599(a)(2), grants federal habeas petitioners on death row the right to federally funded counsel. It also gives district courts the power to authorize investigative, expert and other services. But the Court found the statute does not require district courts to stay proceedings when habeas petitioners are found incompetent. The Court reasoned that the right of a criminal defendant to competence in the original trial flows from the Due Process Clause of the Fourteenth Amendment and not from the Sixth Amendment right to counsel, even though the right to counsel at trial may be compromised if the defendant is not able to communicate with counsel. Review of a state court conviction in a federal habeas proceedings is limited to the record in existence at the time of the state court trial. Given the backward-looking, record-based nature of habeas proceedings, counsel can therefore effectively represent the petitioner regardless of his competence. The Court went on to find that the Ninth Circuit decision in Rohan incorrectly relied on Rees, a decision which simply dealt with an incompetent capital petitioner’s ability to withdraw his petition for certiorari.

Also reviewing the Sixth Circuit’s conclusion that 18 U.S.C. § 4241 provides a statutory right to competence, the Court found that § 4241 does not even apply to habeas proceedings involving state prisoners. Section 4241 only applies to federal defendants and probationers subject to prosecution by the United States and only to trial proceedings prior to sentencing, or after probation or supervised release. The Court therefore held that neither 18 U.S.C. § 3599 nor § 4241 requires suspension of a capital petitioner’s federal habeas proceeding when he has been adjudicated incompetent.

Both Gonzales and Carter also argued that district courts have the equitable power to stay proceedings when they determine habeas petitioners are incompetent. In Gonzales’ case, the Supreme Court held that the district court correctly found that all of his claims were record-based or resolvable as a matter of law. The district court did not therefore abuse its discretion in denying the stay. In Carter’s case, the district court found that four of his claims could potentially benefit from his assistance. However, the Supreme Court determined that three of the claims were adjudicated in state court post-conviction proceedings and could be reviewed on the record. It found it unclear whether the fourth claim, alleging ineffective assistance of appellate counsel for failing to raise trial counsel’s failure to pursue a competency to stand trial issue, required consultation with counsel. The Court nevertheless held that an indefinite stay would be inappropriate under the Antiterrorism and Effective Death Penalty Act whose purpose is to reduce delay in the execution of state and federal criminal sentences. The Court remanded Carter’s case with instructions that if the court found the fourth claim would substantially benefit from his assistance, the court must take into account the likelihood that Carter will regain competence in the foreseeable future. If there is no reasonable hope of competence, a stay is inappropriate. In a footnote, the Court acknowledged that its opinion does not implicate the prohibition against execution of a death sentence for a prisoner who is insane.

Found in DMHL Volume 32 Issue 1

US Supreme Court Denies Habeas Relief in Michigan’s Denial of Diminished Capacity Defense

Metrish v. Lancaster, _ U.S. _, 17 133 S.Ct. 1781, 2013 WL 2149793 (No. 12-547, May 20, 2013)

The United States Supreme Court has denied a Michigan prisoner’s petition for Writ of Habeas Corpus arguing that Michigan had erroneously prevented him from presenting evidence of his diminished capacity to a charge of first degree murder. At the time this case first came to trial in 1993, the Michigan Court of Appeals had long recognized the defense of diminished capacity to negate the mens rea or specific intent element required to support a first degree murder conviction. Two years after the first trial, the Michigan Supreme Court held that the diminished capacity defense had been abolished following Michigan’s 1975 comprehensive enactment of its statutes related to the admissibility of evidence of mental illness and intellectual disability. Upon his retrial in 2005 and on direct appeal, the Michigan courts refused to allow the defendant to present evidence of diminished capacity rejecting his argument that retroactive application of the state’s Supreme Court decision did not violate his due process rights. The Sixth Circuit granted the petitioner habeas relief. The United States Supreme Court reversed finding that the state court decisions did not result in an unreasonable application of clearly established federal law as embodied in Supreme Court decisions. The Opinion is available on the Court’s website at:

In April 1993, Burt Lancaster, a former police officer with a long history of mental illness, shot and killed his girlfriend in a shopping center parking lot. Lancaster was charged with first degree murder and possession of a firearm to commit a felony. At his jury trial in 1994, Lancaster raised the insanity and diminished capacity defenses. At that time, the Michigan Court of Appeals in a line of cases had permitted legally sane defendants to present evidence of mental abnormality to negate the specific intent or mens rea required to commit a crime. Even though he was allowed to present this evidence, the jury convicted him of both charges. Lancaster later obtained federal habeas corpus relief on different grounds because the prosecutor at his first trial had erroneously exercised a race-based preemptory challenge to a potential juror and was awarded a new trial.

Prior to his new trial, however, the Michigan Supreme Court determined that the Michigan legislature had enacted a comprehensive legislative scheme in 1975 establishing the requirements for introducing evidence related to a defense based upon mental illness or intellectual disability. People v. Carpenter, 627 N.W.2d 276 (Mich. 2001). That scheme essentially adopted the M’Naughten rule for asserting an insanity defense. It also required a 30- day notice of intent to use the defense and a court-ordered psychiatric examination. In addition, the legislature created a verdict of “guilty but mentally ill” for defendants who suffered from mental illness but did not satisfy the legal definition of insanity. Such defendants would be provided with treatment but would not be exempt from the sentencing provisions applicable to other criminal defendants. Although the legislation did not specifically address the diminished capacity defense, the Michigan Supreme Court found that by creating such a comprehensive statutory scheme, the diminished capacity defense was superseded by that scheme.

Upon retrial in 2005, the trial court refused to allow Lancaster to assert the diminished capacity defense based upon the decision in Carpenter and he was again found guilty of first degree murder and sentenced to life in prison. The Michigan appellate courts upheld the conviction and the United States District Court denied him habeas relief. On appeal, the Sixth Circuit Court of Appeals reversed holding that the Michigan Supreme Court’s decision in Carpenter was unforeseeable because of 1) the Michigan Court of Appeals’ consistent application of the diminished capacity defense, 2) the Michigan Supreme Court’s repeated references in dicta to the defense, and 3) the Michigan State Bar’s use of the defense in pattern jury instructions.

After granting the petition for Writ of Certiorari, the United States Supreme Court reversed the Sixth Circuit. Writing for a unanimous Court, Justice Ginsburg recognized that a state prisoner has a very high standard to meet to obtain habeas corpus relief from a federal court. To obtain such relief, the challenged court ruling must have unreasonably applied federal law clearly established in United States Supreme Court decisions. The Court declined to apply Bouie v. City of Columbia, 378 U.S. 347 (1964), as urged by Lancaster, a case in which the Court had preciously held that due process required state criminal statutes must give fair warning of the conduct they prohibit. In Bouie, African-American petitioners had been convicted of trespass under South Carolina law after they refused to comply with orders to leave a drug store’s restaurant, which was reserved for white customers. Unlike this case, the South Carolina Supreme Court had unexpectedly expanded narrow and precise statutory language that did not cover the defendants’ conduct.

Instead the Court relied upon Rogers v. Tennessee, 532 U.S. 451 (2001), a case that upheld the Tennessee Supreme Court’s retroactive abolishment of the year and a day rule, a common law rule that barred a murder conviction unless the victim died within a year and a day of the act. In Rogers, the Court held that the retroactive application of the decision did not violate due process. The Court recognized that the diminished capacity defense is not an outdated relic of the common law as is the year and a day rule. To the contrary, the Court observed that the Model Penal Code sets out a version of the defense whenever evidence may establish a defendant does not have the state of mind that is necessary to establish an element of the offense.

In addition, the American Bar Association approved criminal justice guidelines in 1993 that favor the admissibility of mental health evidence to negate mens rea, and a majority of States, including Virginia, allow such evidence in certain circumstances. Nevertheless, the Court held that it has never found a due process violation where a state supreme court “squarely addressing a particular issued for the first time, rejected a consistent line of lower court decisions based on the supreme court’s reasonable interpretation of the language of a controlling statute.” The Supreme Court therefore reversed the Sixth Circuit decision and denied Lancaster habeas relief.

Found in DMHL Volume 32 Issue 3

United States Supreme Court to Review Florida’s Bright-Line IQ Test to Determine Mental Retardation in Capital Cases

Hall v. Florida, No. 12-10882, _S. Ct._, 2013 WL 3153535(mem) (Oct. 21, 2013)

The United States Supreme Court has granted a capital prisoner’s Petition for Writ of Certiorari to determine whether Florida’s scheme utilizing a bright-line IQ score of 70 for identifying defendants with mental retardation in capital cases violates Atkins v. Virginia. In Atkins v.  Virginia, 536 U.S. 304 (2002), the Supreme Court held that the execution of defendants with mental retardation violates the Eighth Amendment prohibition against cruel and unusual punishment. In a per curiam opinion, the Florida Supreme Court determined that the defendant could not meet the first prong of the mental retardation standard establishing a maximum IQ score of 70 and upheld his death sentence. Hall v. Florida, 109 So. Ed 704 (Fla. 2012). Should the Supreme Court overturn Florida’s scheme, the decision could impact mental retardation determinations in the states that still employ the death penalty, especially the twelve states, including Virginia, that have either a statutory or case law bright-line rule that does not apply the standard error measurement.

Freddie Lee Hall was convicted in 1981 for the 1978 murder of a man he kidnapped while robbing a convenience store. Upon fleeing the scene of the robbery, Hall stole a car and kidnapped his victim, and then drove approximately 18 miles to a wooded area where he killed him. Hall appealed his conviction, which was upheld, and filed numerous post-conviction petitions through the years, all of which were eventually denied.

In 1988, Hall again challenged his death sentence, arguing based on a then recently decided United States Supreme Court decision holding that all mitigating factors, and not just statutory mitigation, must be considered by the judge and jury. The Florida Supreme Court granted Hall’s petition in 1989 and remanded his case to the trial court for a new sentencing proceeding. During his resentencing hearing, the trial court found Hall to be mentally retarded as a mitigating factor but gave it “unquantifiable” weight, finding aggravating factors that outweighed the mental retardation factor, and again sentenced him to death. The Florida Supreme Court upheld this decision in 1993. Hall again pursued post-conviction relief which the Florida Supreme Court denied, finding that the trial court did not err in finding him competent to proceed at the resentencing, but writing “while there is no doubt that [Hall] has serious mental difficulties, is probably somewhat retarded, and certainly has learning difficulties and a speech impediment, the Court finds that [Hall] was competent at the resentencing hearings.” Hall v. State, 742 So.2d 225, 229 (Fla. 1999).

In 2002, the United States Supreme Court decided Atkins, holding that imposition of the death penalty for defendants with mental retardation violates the Eighth Amendment prohibition against cruel and unusual punishment. The Supreme Court, however, left it to the States to determine how to measure mental retardation. Following this decision, Hall filed a motion to vacate his sentence, arguing among other things, that the issue of his mental retardation could not be re-litigated because he had already been found mentally retarded at his mitigation resentencing hearing. The trial court denied this motion, and at the 2-day evidentiary hearing in December 2009, testimony was presented concerning Hall’s behavior and functioning as a child, including his problems with reading, writing and caring for himself. One expert testified that Hall’s IQ using the Wechsler Adult Intelligence Scale Revised was 73, and that a prior result given by another psychologist on the same test was 80. Another expert testified that Hall scored a 71 on the Wechsler Adult Intelligence Scale Third Edition (WAIS-III). Hall also sought to introduce a report completed by a then-deceased expert reflecting a score of 69, which the court refused to admit into evidence. The trial court then refused to vacate Hall’s sentence because he could not meet the first prong of the mental retardation standard – an IQ of 70 or below.

Florida statute § 921.137(1), adopted in 2001 prior to the Atkins decision, but after Hall’s mitigation resentencing hearing, defines mental retardation as “significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the period from conception to age 18.” It defines “significantly subaverage general intellectual functioning” as “performance that is two or more standard deviations from the mean score on a standardized intelligence test specified in the rules of the Agency for Persons with Disabilities.” Two standard deviations of 15 points each from the mean of 100 is an IQ score of 70.

On appeal, Hall argued, among other things, that IQ should be read as a range of scores from 67 to 75 and that Florida’s adoption of a firm cutoff of 70 or below misapplies Atkins and fails to reflect an understanding of IQ testing. He argued that the appropriate standard should also include the standard error measurement (SEM). Relying on its precedent interpreting the statute, the Florida Supreme Court stated that the Florida statute does not use the word “approximate,” nor does it reference the standard error measurement. Based on the plain meaning of the statute, the Court held that the legislature established a bright-line IQ standard of 70 from which it could not deviate. It further found that Atkins did not mandate a specific IQ score or range of scores. Because Hall could not meet the first standard of an IQ of 70 or below, the Court held that the trial court did not err in refusing to admit evidence establishing deficits in Hall’s adaptive behavior that manifested before age 18.

The Court also found the trial court did not err in refusing to admit the report of the deceased psychologist reflecting an IQ of 69 because the underlying data supporting the report were not available and subject to challenge by the State. The Court also rejected Hall’s argument that Florida was precluded from challenging his mental retardation because the trial court had previously found him to be mentally retarded during the previous resentencing hearing on mitigation The Court found that the mitigation hearing occurred prior to the enactment of the Florida statute defining mental retardation and the current definition controlled, and that mental retardation as a mitigating factor and mental retardation under Atkins were discrete legal issues.

Three justices concurred in the per curiam opinion and one justice concurred separately in the result, also finding a strict cutoff IQ of 70 based upon a plain reading of the statute. The concurring justice focused his opinion, however, on the lack of issue preclusion from the mitigation hearing. He stated that even though the trial court at the mitigation hearing found Hall to be mentally retarded, it expressed concerns throughout the hearing that Hall’s experts were exaggerating his inabilities. The justice also noted that Hall’s crime reflected more deliberation and planning than would be expected from a typical defendant with mental retardation.

The majority of the Florida Supreme Court did not address the constitutionality of Florida’s statutory scheme. Two dissenting justices did, however. One justice wrote that the trial court had found that Hall had been mentally retarded his entire life but ironically his execution was being permitted solely by the Legislature’s after-enacted and inflexible definition of mental retardation. He noted that Atkins did not prescribe any bright-line cutoff, although it stated that “mild” mental retardation is typically used to describe someone with an IQ level in the range of 50 to 70. Because of the difficulty in determining which offenders are in fact mentally retarded, the Supreme Court left it to the States to develop “appropriate” ways to enforce the constitutional restriction on execution of sentences. This justice would have found therefore that imposition of a bright-line IQ cutoff was not “appropriate” when there was ample evidence of mental retardation from an early age.

The second dissenting justice wrote that imposing the death sentence on a prisoner who had been found mentally retarded even though he could not establish an IQ of below 70 would produce an absurd result. He went on to recite the record evidence reflecting Hall’s mental retardation, including testimony of an IQ of 60, his organic brain damage, chronic psychosis, speech impediment and learning disability. The justice wrote that Hall is functionally illiterate and has the short-term memory of a first grader. He indicated that the evidence also suggested that Hall was suffering from a mental and emotional disturbance, and to some extent may have been unable to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.

The justice also wrote that the record reflected Hall suffered tremendous physical abuse and torture as a child. He was the sixteenth of seventeen children and was tortured by his mother. She tied him in a “croaker” sack, swinging it over a fire and beat him; buried him in the sand up to his neck to strengthen his legs; tied his hands to a rope attached to a ceiling beam and beat him while naked; locked him in a smokehouse for extended periods; and held a gun on him and his siblings while poking them with sticks. The justice went on to write that the Supreme Court articulated in Atkins that those with disabilities in areas of reasoning, judgment and control of their impulses do not act with the same level of moral culpability that characterizes the most serious criminal conduct and in the interest of justice, he would have vacated the sentence.

The Supreme Court should hear this case during its January term and its decision may provide more guidance to the States in implementation of the death penalty for defendants alleging mental retardation. Florida is not unique in its use of a bright-line IQ score of 70, but there is no clear consensus among the States on this issue. Ten states among those that still impose the death penalty, including Virginia under Va. Code § 19.2-264.3:1.1(A), have a statutory bright-line rule and do not apply the standard error measurement. Two additional states, Alabama and Kansas, apply a bright-line rule through court decision. Sixteen states apply the standard error measurement, including ten states without a bright-line cutoff. The application of the standard error measurement to IQ scores in the remaining four states is unclear.

Found in DMHL Volume 32 Issue 4

Supreme Court Reinstates Death Penalty Holding Prosecution May Introduce Expert Psychological Opinion Rebutting Voluntary Intoxication Defense

Kansas v. Cheever, _ U.S._ , 134 S.Ct. 596, 82 USLW 4032 (No. 12-609 Dec. 11, 2013) available at

In a unanimous opinion written by Justice Sonia Sotomayor, the United States Supreme Court held on December 11, 2013 that when a defense expert testifies that the defendant lacks the mens rea, or requisite mental state to commit a crime, the prosecution may offer evidence from a court-ordered psychological examination for the limited purpose of rebutting the defendant’s evidence. In so doing, the Supreme Court reversed the decision of the Kansas Supreme Court that introduction of expert testimony from a court-ordered examination to which the defendant had not agreed violated his Fifth Amendment right against self-incrimination.

In January 2005, Scott Cheever shot and killed a county sheriff and shot at other law enforcement officers who were attempting to arrest him on an outstanding warrant. Several hours prior to the shooting, Cheever and his friends had cooked and smoked methamphetamine. One of Cheever’s friends warned him that officers were on the way to arrest him. He attempted to flee in his car but it had a flat tire. He returned inside and hid with a friend in an upstairs bedroom. Hearing footsteps on the stairs, Cheever stepped out and shot the sheriff climbing the stairs. He returned to the bedroom briefly, but went back to the stairs and shot the sheriff again. He also fired at other officers and members of the SWAT team that had arrived.

The State charged Cheever with capital murder, but shortly thereafter, the Kansas Supreme Court found in an unrelated case that the State’s death penalty scheme was unconstitutional. Because the death penalty was no longer available, the state prosecutors dismissed the charges against Cheever and permitted federal prosecutors to indict him under the Federal Death Penalty Act.

Cheever filed a notice in the federal case that he intended to introduce evidence that his intoxication with methamphetamine prevented him from forming the specific intent to commit the crime. The federal district court ordered Cheever to submit to a psychiatric evaluation to assess how methamphetamine had affected him when he committed the crime. The federal court, however, suspended the proceedings during jury selection when defense counsel became unable to proceed, and then dismissed the case without prejudice. In the interim, the United States Supreme Court reversed the Kansas Supreme Court in the unrelated case, holding that the Kansas death penalty scheme was constitutional.

Kansas then refiled the state proceedings against Cheever at which he presented a voluntary intoxication defense, arguing that his methamphetamine use had made him incapable of premeditation. He presented evidence at trial from a psychiatric pharmacologist that long-term methamphetamine use had damaged his brain. The expert testified that Cheever was acutely intoxicated at the time of the shooting. The State then sought to present rebuttal testimony from the forensic psychiatrist who had examined Cheever under the federal court order. Cheever objected on the grounds that he had not voluntarily agreed to the examination and the expert’s testimony would therefore violate his Fifth Amendment right against self-incrimination. The trial court admitted the testimony and the expert testified that Cheever shot the sheriff because of his antisocial personality and not because of his methamphetamine use. The jury convicted Cheever of murder and attempted murder, and recommended the death penalty, which the court imposed.

On appeal, the Kansas Supreme Court agreed that use of the rebuttal testimony from the expert in the federal proceeding violated Cheever’s Fifth Amendment rights because he had neither initiated the examination nor put his mental capacity in issue at trial. In so deciding, the Kansas Supreme Court relied upon the United Supreme Court decision in Estelle v. Smith, 451 U.S. 454 (1981), holding that a court-ordered psychiatric examination violated the defendant’s Fifth Amendment rights when the defendant had not initiated the examination or put his mental capacity in dispute at trial. The Court acknowledged the later-decided case of Buchanan v. Kentucky, 483 U.S. 402 (1987), which held that where a defense expert who has examined the defendant testifies that the defendant lacks the requisite mental state to commit an offense, the prosecution may present psychiatric evidence in rebuttal. But the Kansas Court found Buchanan did not apply because under Kansas law voluntary intoxication is not a “mental disease or defect.” The State of Kansas then petitioned the United States Supreme Court for a writ of certiorari, which the Court granted.

The Supreme Court reversed distinguishing this case from Estelle, pointing out that the judge in Estelle had ordered a psychiatric examination to determine the defendant’s competency to stand trial. The prosecution then used the defendant’s statements from the examination during the sentencing phase of trial to demonstrate the defendant’s future dangerousness. Instead, the Supreme Court relied on Buchanan, finding that “mental status” is a much broader term than “mental disease or defect.” It held that mental status defenses include those based on expert opinion as to the defendant’s mens rea, that is, his mental capacity to commit the crime or ability to premeditate. The Court reasoned that to allow a defendant to present one-sided and potentially inaccurate evidence to the jury would undermine the adversarial process. On the other hand, permitting the prosecution to present rebuttal testimony harmonizes with the principle that when a defendant chooses to testify in a criminal case, the Fifth Amendment does not permit him to refuse to answer related questions on cross-examination.

In this case, Cheever presented expert evidence of his voluntary intoxication to support his defense that he lacked the requisite intent to commit murder. The Supreme Court held that the prosecution may therefore offer evidence from a court-ordered psychological examination for the limited purpose of rebutting the defendant’s evidence. The Court then reversed the Kansas Supreme Court decision, reinstated the death penalty and remanded the case for further proceedings.

Found in DMHL Volume 33 Issue 1


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), ]

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


Because no Supreme Court precedent established a right to suicide prevention protocols, corrections officials were entitled to qualified immunity in case involving claim that inmate suicide arose from facility’s violation of inmate’s Eighth Amendment right to appropriate suicide screening, treatment and monitoring

Taylor v. Barkes, 135 S.Ct. 2042 (2015) (per curiam)

Christopher Barkes was arrested in 2004 for violating probation and was taken to a Department of Corrections (DOC) facility in Wilmington, Delaware, where he underwent a suicide screening based on a model form developed by the National Commission on Correctional Health Care (NCCHC) in 1997 as part of intake procedures. The intake was completed by a nurse from the contractor employed by the facility (First Correctional Medical, Inc. [FCM]). Barkes stated that he had attempted suicide in 2003 and disclosed that he had a history of psychiatric treatment, but said that he was not currently contemplating suicide. The nurse gave Barkes a routine referral to mental health services and did not initiate any special suicide prevention measures. Barkes was placed in a cell by himself. He placed a call to his wife that evening and expressed his intention to kill himself, but his wife did not inform the DOC. The next morning, Barkes was observed lying on his bed at 10:45, 10;50, and 11:00 am. At 11:35 am, an officer delivered lunch to the cell and discovered that Barkes had hanged himself with a bedsheet.

The Third Circuit held that Barkes’s constitutional right to “proper implementation of adequate suicide prevention tools” was clearly established at the time of his suicide. It also held that summary judgment was inappropriate given evidence that “FCM’s policies and procedures…created an unreasonable risk of a constitutional deprivation” and evidence of DOC’s awareness of FCM’s non-compliance with NCCHC standards. Finally, it held that a reasonable jury could have found that Barkes’s suicide was caused by the DOC’s failure to supervise FCM despite the fact that Barkes did not self-report suicidal ideation or exhibit suicidal behavior. In the court’s view, “had Appellants properly supervised FCM and ensured compliance with the national standards, Barkes’s answers during his screening would have resulted in additional preventive measures being taken.”

The Supreme Court reversed per curiam, holding that the right “to proper implementation of adequate suicide prevention protocols” was not clearly established “in a way that placed beyond debate the unconstitutionality of the [facility’s] procedures.” Although the Third Circuit found the right established by its own precedents, the Court emphasized that no Supreme Court decisions have established a right to proper implementation of adequate suicide prevention protocols or discussed suicide screening protocols. Thus, the defendants were entitled to qualified immunity because they were not “contravening clearly established law,” even if the suicide screening and prevention measures had shortcomings.

Found in DMHL Volume 34 Issue 2

Death Penalty

Right of defendant convicted and sentenced to death prior to Atkins decision to seek review and determination of whether defendant has intellectual disability and is therefore precluded from death penalty under the Eighth Amendment

Brumfield v. Cain, 135 S.Ct. 2269 (2015)

Petitioner Kevan Brumfield was convicted of murder in Louisiana and sentenced to death before the Supreme Court decided Atkins v. Virginia, 536 U.S. 304 (2002). A subsequent Louisiana state Supreme Court case mandated an evidentiary hearing whenever a defendant provides facts sufficient to raise a reasonable ground to believe that he has an intellectual disability. See State v. Williams, 831 So.2d 835 (La. 2002). Brumfield amended his state post-conviction petition to include an Atkins claim and sought an evidentiary hearing. The amended petition referenced evidence introduced at sentencing that Brumfield had an IQ of 75, had a fourth-grade reading level, had been prescribed medications and treated in psychiatric hospitals as a child, had been identified as having a learning disability, and had been placed in special education classes. The trial court dismissed his post-conviction petition without holding an evidentiary hearing or granting funds to conduct additional investigation. Brumfield sought federal habeas relief.

The district court granted relief under 28 U.S.C. §§ 2254(d)(1) and (2), but the Fifth Circuit reversed, holding that the state court decision was not “contrary to” and did not involve “an unreasonable application of clearly established federal law,” nor was it “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.”

The Supreme Court vacated and remanded, holding as unreasonable under § 2254(d)(2) the state trial court’s determinations that 1) Brumfield’s IQ score was inconsistent with a diagnosis of intellectual disability and 2) he presented no evidence of adaptive impairment. Although the record contained some contrary evidence, that evidence did not foreclose all reasonable doubt as to Brumfield’s intellectual disability. The facts raised at sentencing were sufficient to raise doubt concerning Brumfield’s impairments. The Supreme Court held that Brumfield had “cleared [§ 2254(d)’s] procedural hurdles” and so was entitled to an evidentiary hearing to show his intellectual disability.

Found in DMHL Volume 34 Issue 2

Supreme Court Hears Arguments Whether Protection and Advocacy Agency May Sue State Officials to Access Peer Review Records

Virginia Office for Protection and Advocacy v. Stewart, 568 F.3d 110 (4th Cir. 2009) pet. for cert. granted (U.S. No. 09-529, June 21, 2010)

The United States Supreme Court heard oral argument on December 1, 2010 in Virginia Office for Protection and Advocacy v. Stewart, 568 F.3d 110 (4th Cir. 2009) pet. for cert. granted (U.S. No. 09-529, June 21, 2010), as to whether one independent state agency, the Virginia Office for Protection and Advocacy, may sue other state officials, namely the Commissioner of the Department of Behavioral Health and Developmental Services and the directors of two state facilities, to enforce the requirements of the Protection and Advocacy for Individuals with Mental Illness Act or 1986 (“PAIMI”), 42 U.S.C §§ 10801-10851 and the Developmental Disabilities Assistance and Bill of Rights Act (“DD Act”), 42 U.S.C. §§ 15001-15115. The 4th Circuit had reversed the decision of the federal district court, refusing to allow VOPA to sue the Commissioner and directors of Central State Hospital and Central Virginia Training Center to obtain peer review records related to the deaths of two individuals and the severe injury of a third. The 4th Circuit refused to apply the Ex parte Young doctrine which permits law suits by private parties to enforce federal law and obtain injunctive relief, but not monetary damages, from individual state officials in federal court. The court found that the lawsuit could otherwise be brought in state court.

Indiana is also seeking Supreme Court review in a similar case in which the 7th Circuit en banc held that the Indiana Protection and Advocacy agency could sue. Indiana Family and Social Services Administration v. Indiana Protection and Advocacy Services, 603 F.3d 365 (7th Cir. 2010) en banc, pet. for cert. filed, (No. 10-131, July 21, 2010). In addition to the Ex parte Young arguments heard in the Virginia case, Indiana is also arguing that PAIMI does not create a private right of action and peer review documents are protected against disclosure under state law.

Should the Supreme Court rule in the DBHDS Commissioner’s favor in VOPA v. Stewart, VOPA would need to file a new lawsuit in state court to seek access to peer review records. If the Supreme Court rules in VOPA’s favor, the case will be remanded back to the United States District Court in Richmond for a determination of the case on the merits. Four other federal circuits have already ruled that the state’s protection and advocacy agency has access to peer review records. Pennsylvania Protection and Advocacy, Inc. v. Houstoun, 228 F.3d 423 (3rd Cir. 2000); Center for Legal Advocacy v. Hammons, 323 F.3d 1262 (10th Cir. 2003); Missouri Protection & Advocacy Services v. Missouri Department of Mental Health, 447 F.3d 1021 (8th Cir. 2006). Protection and Advocacy for Persons with Disabilities v. Mental Health and Addiction Services, 448 F.3d 119 (2nd Cir. 2006).

Found in DMHL Volume 30 Issue 1