Conditional release for NGI acquittees

State v. Beaver, No. 91112-6, 2015 WL 5455821 (Wash. Sept. 17, 2015)

Revoking an insanity acquittee's conditional release without a judicial finding that the acquittee currently suffers from a mental illness does not violate substantive or procedural due process

Background: Ricky Beaver was found not guilty by reason of insanity on a charge of residential burglary in 2005, and the court committed him. Beaver petitioned for and was granted conditional release in 2007, but violated the terms of his conditional release in 2011 by using cocaine, drinking alcohol and driving a motor vehicle, and being charged with driving under the influence. Beaver appealed, arguing that due process required a finding of current mental illness before the court could revoke his conditional release. While his appeal was pending, he was granted final discharge, mooting his appeal, but the Court still reviewed the merits of the case.

Holdings: Sitting en banc, the Supreme Court of Washington held first that, though moot, the case presented issues of continuing and substantial public interest such that resolution of the merits was beneficial. Second, the Court held that revoking an insanity acquittee's conditional release without a judicial finding that the acquittee currently suffers from a mental illness does not violate substantive or procedural due process.

Notable Point: Regarding substantive due process, the Court wrote that an acquittee’s insanity was presumed to continue throughout conditional release until proven otherwise, and that acquittees had opportunities to prove lack of suffering from mental defect and to petition for final discharge. Regarding procedural due process, the Court wrote that, although the private interest in liberty or freedom from state constraint was substantial, revocation of acquittee's conditional release implicated a conditional liberty interest, and that the procedures to revoke an acquittee's conditional release provided protections against erroneous deprivation of liberty. Additionally, the Court found that the government had a strong interest in protection of public safety by detaining mentally unstable individuals who presented a threat to society.

Found in DMHL Volume 34 Issue 3

Waiver of jury trial

People v. Blackburn, 354 P.3d 268 (2015) & People v. Tran, 354 P.3d 148 (2015)

Under the California NGI and the MDO commitment statutes, the trial court must advise the defendant personally of his or her right to a jury trial and must obtain a waiver of that right from the defendant unless there is substantial evidence that the defendant lacks the capacity to waive right

Background: In the People v. Blackburn the Supreme Court of California addressed the meaning of provisions in the statutory scheme for extending the commitment of a mentally disordered offender (MDO) that require the trial court to "advise the person of his or her right to be represented by an attorney and of the right to a jury trial" and to hold a jury trial "unless waived by both the person and the district attorney." (Pen. Code, § 2972, subd. (a)). In the companion case, People v. Tran, the Court addressed nearly identical language in the statutory scheme for extending the involuntary commitment of a person originally committed after pleading not guilty by reason of insanity (NGI) to a criminal offense.

Holdings: Under both the NGI statute and the MDO statute, the trial court must advise the defendant personally of his or her right to a jury trial and, before holding a bench trial, must obtain a waiver of that right from the defendant unless the court finds substantial evidence that the defendant lacks the capacity to make a knowing and voluntary waiver, in which case defense counsel may control the waiver decision.

Notable Points:

The jury trial guarantee: In MDO and NGI commitment proceedings, as in a criminal trial, the jury guarantee is a basic protection the precise effects of which are unmeasurable and the denial of which defies analysis by harmless-error standards. Thus, the total deprivation of a jury trial without a valid waiver in such proceedings requires automatic reversal.

Lack of explicit findings regarding mental capacity: Acceptance by the trial court of counsel's waiver of an MDO or NGI defendant’s right to a jury trial without an explicit finding of substantial evidence that the offender lacked the capacity to make a knowing and voluntary waiver may be deemed harmless if the record affirmatively shows that there was substantial evidence that the offender lacked that capacity at the time of counsel's waiver. The requirement of an affirmative showing means that no valid waiver may be presumed from a silent record.

Found in DMHL Volume 34 Issue 3

Mootness

In re Dakota K., No. S-15428, 2015 WL 5061844 (Alaska Aug. 28, 2015)

Appeals challenging the sufficiency of the evidence in involuntary commitment cases are moot after the commitment period has passed; the respondent has the burden to establish factual basis for a finding of collateral consequences

Background: Dakota K. sought to appeal 30-day involuntary psychiatric commitment. Even though the appeal came after the passage of the entire commitment period, Dakota argued that the collateral consequences exception to the mootness doctrine applied as the Supreme Court of Alaska has presumed that collateral consequences will flow from a respondent's first involuntary commitment.

Holdings: The court held that the burden of proving a first involuntary commitment lay with the respondent, who must “make some evidentiary showing at least raising a genuine issue of material fact, that the commitment was a first involuntary commitment—or make an evidentiary showing attempting to establish some factual basis for a finding of collateral consequences.”

Found in DMHL Volume 34 Issue 3

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

Cruel and unusual punishment

Cox v. Glanz, No. 14-5022, 2015 WL 5210607 (10th Cir. Sept. 8, 2015)

Claim by surviving family member that inmate’s suicide was result of deliberate indifference by jail staff survives motion for summary judgment in claim against sheriff in his official capacity, but summary judgment is granted to sheriff on claim against him in his individual capacity due to qualified immunity

Background: Charles Jernegan surrendered to the Tulsa, Oklahoma jail in response to a warrant for his arrest. His intake screening included a mental health and suicide questionnaire. Jernegan reported that he was taking medication for paranoid schizophrenia, and he answered “yes” to questions asking about experience of paranoia and experience of nervousness or depression. Jail protocols called for a person with such responses being directly referred to mental health staff, but no such referral was made. Jernegan did deny to jail staff and a screening nurse that he had any suicidal thoughts. Jernegan later made a request to “talk” with jail mental health staff about unspecified “problems,” but the responding staff person reported that when she went to see Jernegan he had been moved to another cell. The staff person had not followed up on this or seen Jernegan when, two days later, Jernegan committed suicide by hanging himself with a sheet. Jernegan’s mother brought § 1983 action against the county sheriff, in both his personal and official capacity, alleging that the jail’s “deliberate indifference” to her son’s mental health needs constituted cruel and unusual punishment in violation of the 8th amendment. The district court denied the sheriff's motion for summary judgment, on the grounds that there were facts in controversy in the matter that were determinative of the issue of the sheriff’s liability. The sheriff filed an interlocutory appeal.

Holdings: Qualified immunity for individual liability granted and claim dismissed: A 3-judge panel found that at the time of Jernegan’s suicide in 2009, there was no “clearly established” law that would have put the sheriff on notice that his conduct constituted “deliberate indifference” to Jernegan’s mental condition in the jail in violation of the 8 th amendment. The Court found that the then-existing law required a threshold finding that the sheriff had personal knowledge that Mr. Jernegan “presented a substantial risk of suicide” before liability could attach. Summary judgment motion for official capacity liability claim denied: The sheriff argued that “official capacity” liability requires proof of a policy, pattern or practice that resulted in the alleged constitutional violation, and that the record did not support a finding of any such policy, pattern or practice in this case. The panel responded that, although denial of a claim of qualified immunity is a final action that can be heard and reviewed on interlocutory appeal, the denial of a motion for summary judgment that is unrelated to a denial of qualified immunity is not a final action and therefore cannot (except in rare instances) be heard and reviewed on interlocutory appeal.

Notable Points: The panel’s decision is notable for its review of federal case law relating to jail operations that would put jail officials on notice as to what conduct constitutes such “deliberate indifference” to an inmate’s condition that it amounts to “cruel and unusual punishment” in violation of the 8 th amendment. That review included mention of the U.S. Supreme Court’s recent decision in Taylor v. Barkes, --- U.S. ----, 135 S. Ct. 2042 (2015) (per curiam), where the Court found that, as of November 2004, there was no clearly established "right" of an inmate to be adequately screened for suicide.

Found in DMHL Volume 34 Issue 3

Cruel and unusual punishment

Young v. Martin, No. 13-4057, 2015 WL 5202968 (3d Cir. Sept. 8, 2015)

Claim by prisoner with history of mental illness and behavioral disorder that being restrained naked in a chair for 14 hours violated the 8 th amendment survives summary judgment

Background: State prisoner Young brought a § 1983 action alleging violations of the 8 th Amendment. Young had a long history of serious mental illness and extensive disciplinary problems in different Pennsylvania prisons, and had been in solitary confinement for several years, during which time his symptoms of mental illness had intensified. The incident resulting in his being placed naked in four-point mechanical restraint in a restraint chair occurred when a guard inadvertently left Young’s cell door open. Young went out to an internal ledge above the prison’s law library, where he voiced his objections to the conditions of his confinement. Young never acted aggressively, never threatened others, and when taken into physical custody by guards he initially cooperated, and then engaged in passive resistance, forcing guards to carry him but offering no active resistance to being stripped naked, subjected to a body cavity search and secured to the restraint chair. Prison policies provide for use of the restraint chair when an inmate acts or threatens to act in a manner that places the inmate or others at risk of harm, and provides for a maximum time period of 8 hours (with extension requiring a written request and approval that was never obtained here).

The district court granted defendants' motion for summary judgment, finding that the guards “acted professionally and within constitutional parameters” in “subduing” Young and placing him in the restraint chair. The district court also denied Young’s request for a stay of the proceedings to allow for the release of the U.S. Department of Justice’s report on its investigation of the Pennsylvania prison system’s treatment of inmates with serious mental illness.

Holdings: A 3-judge panel of the Court of Appeals found that the conduct of the guards alleged by Young fell under the “use of excessive force” test to determine whether Young had been subjected to cruel and unusual punishment in violation of the 8 th Amendment. Reviewing the record under the criteria identified in Hope v. Pelzer, 536 U.S. 730 (2002)11 , and “drawing all inferences in favor of Young as the nonmoving party,” the Court ruled that “we cannot say that ‘there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’”12 The Court thereupon remanded the case back to the district court. The panel directed that the district court on remand consider whether the DOJ report was admissible, and whether such admission would be “unduly prejudicial” to the defendants.

Notable Points:

Eighth amendment analysis of use of mechanical restraints—“excessive force” vs. “conditions of confinement”: The panel rejected the defendants’ claim that their treatment of Young should be analyzed under the “conditions of confinement” framework. The panel noted that the U.S. Supreme Court in Hope ruled that the use of mechanical restraints in a prison setting could constitute cruel and unusual punishment. Applying the Hope criteria, the panel found the following: (1) Young was already subdued, and further was not violent, combative or self-destructive at any point during the incident leading up to his being placed in the restraint chair, (2) the events involved in the incident leading to Young’s placement in the restraint chair did not amount to an “emergency situation,” and (3) there was an issue of fact as to whether the guards’ use of the restraint chair subjected Young to “substantial risk of physical harm” and “unnecessary pain.”

Qualified immunity of the guards: The panel noted that the defendants made a onesentence claim in their appeal that they were entitled to summary judgment on the grounds of qualified immunity—that the state of the law at that time did not give them fair warning that their treatment of Young was unconstitutional. Noting that this claim was not addressed by the district court or briefed on appeal, the panel remanded the issue to the district court for consideration.

Found in DMHL Volume 34 Issue 3

Forced medication of involuntarily committed patients

Disability Rights New Jersey, Inc. v. Comm'r, New Jersey Dep't of Human Servs., No. 13-4255, 2015 WL 4620273 (3d Cir. Aug. 4, 2015)

State administrative procedure authorizing hospital medical panel review and approval of forced medication of patients in non-emergency situations does not violate ADA or constitutional rights of patients

Background: Plaintiffs brought action challenging New Jersey’s administrative policy for the forcible medication of involuntarily committed persons in state psychiatric hospitals in non-emergency situations. The plaintiffs alleged that the policy—which required in-hospital medical panel review, approval and oversight of all proposed involuntary medications, with various procedural requirements and the right to inhospital appeal and review—violated the Americans with Disabilities Act (ADA), Rehabilitation Act (RA), and the 14th Amendment, and asked that the Court require the state to establish a procedure for judicial review. The district court found that the state’s administrative policy was valid, except as to patients who had been found by a court to be ready for discharge and were in the hospital awaiting transfer to the community (“CEPP” patients). The district court granted summary judgment to the state in regard to all but the CEPP patients. Summary judgment was awarded to the plaintiffs in regard to the CEPP patients. Both the plaintiffs and the state appealed.

Holdings: A 3-judge panel of the Court of Appeals affirmed the district court’s ruling, “though not for all its stated reasons.” The panel, relying heavily on the U.S. Supreme Court’s decision in Washington v. Harper, 494 U.S. 210 (1990), found that New Jersey’s medically-based panel review process properly balanced the liberty interests of the nonCEPP patient with the state’s interests in both the safety of the hospital and the treatment and return to the community of the patient. Relying on Mathews v. Eldridge, 424 U.S. 319 (1976), however, the panel found the CEPP patients’ due process rights were violated by New Jersey’s policy.

Notable Points:

Due process analysis by the Court for non-CEPP patients: Noting that the U.S. Supreme Court had never addressed the constitutional right of involuntarily committed patients to refuse recommended medications for treatment, the panel adopted the balancing test applied to prisoners who refuse recommended psychotropic medications. The panel explained that, although convicted criminals in prisons do not have the same due process rights as persons held in non-criminal facilities, the U.S. Supreme Court’s treatment of forced medications in such cases makes clear that they can be justified only for non-punishment purposes; thus, application of Harper was not confined to prisoners. Because the New Jersey policy was essentially identical to the policy challenged in Harper, the panel found that it met all due process and related constitutional standards.

Due process analysis by the Court for CEPP patients: The panel specifically found that the standards in Harper could not be applied to CEPP patients, who had been “adjudicated by a court to be nondangerous.” The panel turned to the 3-pronged balancing test set out in Mathews v. Eldridge. 10 The panel noted that the administrative policy would permit forcible medication “even after a judge has ruled that the factual basis for their continued civil commitment has disappeared.” If a patient on CEPP status had so deteriorated that forcible medication of that patient had become necessary, the “appropriate course” for the state would be to recommit the patient.

Found in DMHL Volume 34 Issue 3

Unreasonable seizure of firearms

Arden v. McIntosh, et al. (No. 14-1517) (10th Cir. July 23, 2015)

Deputy’s warrantless seizure of firearms from the home of a person after the person had been removed from the home and hospitalized for suicidal behavior constitutes unreasonable seizure under 4 th amendment, but deputy entitled to qualified immunity

Background: Sheriff’s deputies were dispatched to Arden’s home after a caller reported to emergency staff that Arden had called her and in slurred speech had stated that he was taking pills and would continue taking them because nobody cared about him. Deputies found the front door to Arden’s home open. Officers announced their presence, found Mr. Arden in his bedroom, incoherent and unresponsive. Medics soon arrived and took Mr. Arden to the hospital, where he was placed on an “emergency mental health hold.” While still at the home, a deputy saw 23 firearms and ammunition in plain sight; these were collected and held for safekeeping at the police station. After Mr. Arden was released from the hospital, the firearms and ammunition were returned to him.

Mr. Arden filed suit in state court alleging a 4 th amendment violation and that the Sheriff failed to provide proper policies, training, and supervision in regard to such activities. The defendants removed the case to federal court, and moved for summary judgment, claiming they were entitled to “qualified immunity” for their actions. The district court granted the motion, finding no constitutional violations in the deputies’ conduct. Mr. Arden appealed, arguing that once he was taken from his home to the hospital, exigency ended, so that the subsequent warrantless search and seizure were not justified. The deputy argued that, because she was already authorized to be in the home and the weapons were in plain sight and her seizure was temporary and carried out for public safety purposes, her actions were authorized by law enforcement’s “community caretaking” role.

Holdings: A 3-judge panel of the Circuit Court ruled that the exigency was removed when Arden was removed from the home to the hospital, so that there was no cited legal authority for removing the firearms from the home. As a result, the firearms seizure constituted an unlawful seizure under the 4 th amendment. However, at the time of that seizure, there was no existing case law that gave the deputy “fair warning” that this conduct was unreasonable. Accordingly, the deputy was protected by “qualified immunity” from liability because she could have a good faith belief that her conduct was lawful.

Notable Points: The panel noted that no authority could be found “authorizing a police officer to confiscate weapons that would otherwise be left in an unoccupied house,” but also that no authority clearly established “that firearms may not constitutionally be removed from a residence under these circumstances.”

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

​​​​​​​Excessive use of force

Clay v. Emmi, No. 14-2351, 2015 WL 4758917 (6th Cir. Aug. 13, 2015)

Claim that officer used excessive force in taking person into custody for involuntary commitment survives summary judgment

Background: Police officer Emmi went to the home of Clay upon call from Clay’s counselor, who reported that Clay, who had diagnoses of schizophrenia and bipolar disorder and a history of suicidal ideation, was making suicidal statements. Clay voluntarily rode with Emmi to the hospital and entered the hospital “to talk to somebody.” When hospital staff asked Clay to disrobe and put on a gown, he refused. In a § 1983 action against Emmi and others for excessive use of force, Clay claimed that, despite his offering no resistance, he was wrestled to the ground, handcuffed and turned face-down, and then tasered in the back by Emmi while handcuffed and offering no resistance. Emmi claims that Clay attempted to leave the hospital, physically resisted efforts to keep him there, and had to be tasered and then handcuffed in order to overcome his resistance. Witnesses provided support for Emmi’s version of events, but there was no definitive evidence (such as a video recording). Emmi moved for summary judgment on the grounds that a 14th Amendment “subjective use of force” analysis applied to his actions, he had no reason to think that his actions violated Clay’s due process rights, and therefore he was entitled to “qualified immunity” for his actions.

Holdings: The district court found, and the Court of Appeals affirmed, that (1) the 4 th Amendment’s “objectively reasonable” standard for use of force applied to Emmi’s actions because Clay was not in custody until the initial “seizure” in the hospital, and (2) because key facts were in dispute that related directly to the need to use force to manage Clay in the hospital, summary judgment action was not supported at that stage of the proceedings.

Notable Points: The Court noted that “among the factors to be considered” in determining whether an officer’s use of force was objectively reasonable were “whether the person being seized poses an immediate threat to the safety of officers or others” and “whether the person is actively resisting.”9 Therefore, “Clay's level of resistance and whether he was handcuffed before being tasered” were “central to this inquiry.”

Found in DMHL Volume 34 Issue 3

Restoration of competency through forcible medication

United States v. Watson, 793 F.3d 416 (4th Cir. 2015)

Sell standard requires government to make a particularized showing by clear and convincing evidence that proposed treatment is substantially likely to restore defendant to competency

Background: The government requested court authorization to medicate defendant involuntarily in order to restore him to competency to stand trial. The district court granted the request finding that the government had met the Sell requirements8 by clear and convincing evidence. Defendant appealed, claiming that the government failed to satisfy (1) the first Sell prong because the “important governmental interest at stake” in prosecuting Watson was mitigated by the fact that Watson had the “possibility” of an affirmative defense of “not guilty by reason of insanity” and (2) the second Sell prong because the government did not prove that the proposed forced medication was substantially likely to render Watson competent to stand trial.

Holdings: In a 2-1 panel decision, the Court reversed the District Court, holding that the record showed that the government not only failed to meet the second Sell prong, but could not meet it, and it dismissed the matter, without remand to the District Court for further hearing.

Notable Points: Emphasizing the importance of the liberty interest at stake, the intrusiveness of the act of forcible medication, and the burden of “clear and convincing evidence” that the government had to meet, the Court ruled that the evidence in the record failed to show that the forced medication proposed for Watson was substantially likely to restore Watson to competency. The Court, noting that Watson had a “rare” delusional disorder, concluded that the government’s expert, and the research relied upon by that expert, addressed the efficacy of the proposed forced medication for people suffering from psychosis in general and that the government failed to address the medication’s likely effect on this defendant in particular.

Found in DMHL Volume 34 Issue 3

ADA and “reasonable accommodations” requirement

State in Interest of K.C., 2015 UT 92, 2015 WL 7571828 (Utah Nov. 24, 2015) (not yet released for publication in permanent law reports and thus subject to revision or withdrawal)

Americans with Disabilities Act applies to services and programs offered to a parent who has mental illness and other disabilities and whose children are in foster care

Background: The state of Utah sought to terminate a mother’s parental rights to the minor child, K.C. After several previous hearings, mother argued at hearing on termination of her residual parental rights that social services agency had failed to comply with ADA in providing services to her. The Juvenile Court terminated the mother’s parental rights despite her invocation of the ADA, holding that it is not a defense in termination proceedings because the proceeding is not “a service, program, or activity.” Alternatively, the court held that the mother had not suffered harm because her disabilities had been accommodated through previous changes made by the Department of Child and Family Services. K.C.’s mother appealed.

Holdings: The Supreme Court of Utah first held that the Americans with Disabilities Act applied to situations in which the government was asked to provide reunification services to a parent in a dependency hearing. According to the Supreme Court of Utah, reunification services qualified as “services provided by a public entity” and a reunification plan qualified as “a program or activity, as the terms are used in the ADA.”

Despite reversing the trial court’s ruling that the ADA did not apply to the provision of reunification services, the Supreme Court of Utah upheld the trial court’s alternative determination that further modification of the submitted reunification would be unreasonable. That determination by the trial court was not an abuse of discretion where the trial court “found that the plan had already been tailored to the mother’s individual needs, including needs related to the mother’s mental illnesses and physical limitations.” Additionally, the Court noted that K.C.’s mother, N.D. had not “identified any specific modification that she requested that was denied by the court” and claimed only that “she should have been granted additional time to complete the objectives of the reunification plan.”

Found in Found in DMHL Volume 34, Issue 4

Forced administration of medication to restore defendant to competency to stand trial under the Sell standard

Oregon State Hosp. v. Butts, 359 P.3d 1187 (Or. 2015)

Mandamus action cannot be used by hospital where defendant is being treated to challenge decision of trial court that Sell standard has been met

Background: Daniel Butts was charged with 21 felony counts, including nine counts of aggravated murder. When the Circuit Court found him unable to assist in his own defense, Butts was committed to a state hospital. The Circuit Court then entered a Sell order, directing the hospital to involuntarily medicate Butts in order to restore his competency to stand trial. The hospital, having determined that the treatment was not medically necessary, petitioned the Supreme Court for a writ of mandamus directing the trial court to vacate the order, and the Supreme Court of Oregon issued an alternative writ of mandamus while it heard the parties’ arguments.

Holdings: The Supreme Court of Oregon ultimately dismissed the alternative writ of mandamus. It held that (1) mandamus relief was not available to the hospital based solely on its disagreement with the trial court’s findings of fact, and (2) the trial court had implied authority under the applicable statute (determination of fitness statute) to issue a Sell order. The Supreme Court began its discussion of the mandamus issue by stating that “it has become hornbook law in this state that the writ of mandamus cannot be used as a means of controlling judicial discretion.” A writ of mandamus can only be used if the trial court’s decision represents “fundamental legal error” or is “outside the permissible range of discretionary choices.” Thus, the primary issue on review was whether the trial court had the power to order the hospital to involuntarily medicate Butts when the hospital did not agree that the medication was medically necessary.

The Supreme Court of Oregon noted that it had already concluded that courts have implicit authority to issue Sell orders. It noted that the trial court “made extensive findings of fact based on medical evidence” and did so “after resolving disputed factual issues based on medical testimony in the proper exercise of its role as factfinder.” Ultimately, the Supreme Court of Oregon rejected the hospital’s argument that it should be granted “veto power” where a hospital disagrees with a court’s issuance of a Sell order.

Found in Found in DMHL Volume 34, Issue 4

Intellectual disability and the death penalty

State v. Agee, 358 Or. 325 (2015)

Death sentence vacated because (along with other reasons) the lower court refused mitigation evidence of intellectual disability (ID) after defendant’s IQ was shown to be in the 80s and because release of new diagnostic standards requires new Atkins hearing

Background: Following an Atkins hearing at which Agee was found not to be intellectually disabled, Agee was convicted of aggravated murder in the Marion County Circuit Court and sentenced to death in 2011. The case came before the Supreme Court of Oregon on automatic direct appeal. Agee argued, among other points, that the lower court’s holding in the Atkins hearing was error given the release of new diagnostic standards in 2013 and that the trial court erred in refusing his request to present mitigation evidence of intellectual disability based on its finding in the Atkins hearing.

Holdings: The Supreme Court of Oregon affirmed Agee’s conviction, but vacated his sentence of death, and remanded the case to the trial court for a new Atkins hearing. The Supreme Court of Oregon held that although the trial court’s initial finding that Agee was not intellectually disabled was not clear error, a new Atkins hearing was still required to determine whether Agee was intellectually disabled because updated standards were now articulated in the Diagnostic and Statistical Manual of Mental Disorders, 5th ed. (“DSM- 5”). In addition, the Court found the trial court’s proscription of ID mitigation evidence was error that was not harmless.

Notable Points:

No clear error in initial determination under DSM-IV-TR criteria: The Supreme Court rejected Agee’s argument that the trial court used a bright-line rule to arrive at the conclusion that he was not intellectually disabled. Instead the Supreme Court held that the trial court had merely determined that Agee had failed to meet the intellectual functioning prong of the Atkins analysis, and that the trial court’s ultimate decision rested on that fact as well as consideration of Agee’s IQ subtest scores and the results of other neuropsychological tests. 

Remand and new hearing required despite lack of clear error in first determination: The Supreme Court held that allowing the trial court’s ruling to stand “would create an unacceptable risk that a person with intellectual disability will be executed.” The court made this determination largely on the basis that the standards for determining intellectual disability were under review by the psychological community at the time of the first Atkins hearing. Thus “even though the trial court’s ruling comported with the published standards existing at the time that the court ruled” the trial court “did not apply now-current medical standards in determining that the defendant had not met his burden of proof.”

Found in Found in DMHL Volume 34, Issue 4

Treatment provider’s duty of care to third parties

Oddo v. Queens Vill. Comm., 21 N.Y.S.3d 53 (N.Y. App. Div. 2015)

Duty of care to third party who was attacked by person terminated from residential substance abuse program

Background: On July 17, 2010, Sean Velentzas, a nonparty to the current action, stabbed plaintiff Anthony Oddo in the shoulder. Until shortly before the stabbing, Velentzas had been a patient in a residential drug treatment facility operated by Queens Village Committee for Mental Health for Jamaica Community Adolescent Program, Inc. (“Queens Village”). Oddo brought an action against Queens Village. The facility moved for summary judgment, and the Bronx County Supreme Court denied the motion. The facility then appealed.

Holdings: The Supreme Court, Appellate Division found that the facility owed a duty of care to third parties against whom a discharged resident committed a violent act. Additionally it held that whether or not the facility properly discharged its duty of care to the third party victim was a material fact issue precluding summary judgment in favor of the defendants. The Court noted that, although the common law does not generally impose a duty to control the conduct of third persons, liability for the negligent acts of third persons can arise when “the defendant has the authority to control the actions” of the third person. Because New York has no bright line rule concerning whether mental health care providers owe a duty of care to the general public, courts are to examine the issue on a case-by-case basis. The Appellate Division found that Queens Village failed to carry the initial burden of establishing that it owed no duty of care to the plaintiff as a matter of law. Because the record presented an issue of material fact (whether a duty of care was owed by Queens Village), summary judgment was precluded.

Notable Points:

Facility’s recognition of duty to general public: Although Queens Village did not intend to release Velentzas into the general public, the Court also notes that they did not “advise the police that Velentzas should be taken to Faith Mission or held” in custody. The Court used the admission that Queens Village did not intend to release Velentzas into the community as evidence of the facility’s recognition that it owed some duty to the general public.

Whether the treatment facility had sufficient authority to control the actions of the patient: The Appellate Division found there to be “no question” that Queens Village had sufficient authority to control Velentzas’s actions. Key facts in this inquiry were that (1) residents were not free to leave the facility without an escort; and (2) residents who left against clinical advice would be dismissed and returned to the criminal justice system.

Found in Found in DMHL Volume 34, Issue 4

Therapists’ duty to disclose client’s threats to harm third parties

State v. Expose, No. A13-1285, 2015 WL 8343119 (Minn. Dec. 9, 2015)

Minnesota statutory law provides no “threats exception” to privileged mental health client information

Background: Jerry Expose, Jr. was required as a probation condition for a prior conviction to attend anger-management therapy sessions with N.M., a mental-health practitioner. During one session, Expose became increasingly angry and made several threatening statements against D.P., a child caseworker, whom Expose felt was “a barrier to him getting his kids back.” N.M. felt that these “specific threats of physical violence against an identifiable person” had triggered her statutory duty to warn, and she reported Expose’s statements to the police. N.M. testified to the statements at Expose’s trial, and Expose was convicted in the Ramsey County District Court of making terroristic threats. Expose appealed arguing that N.M.’s testimony was inadmissible because it broke the therapist-client privilege. The Court of Appeals reversed and remanded, and the Supreme Court of Minnesota granted review.

Holdings: The Supreme Court of Minnesota affirmed the judgment of the Court of Appeals and remanded the case to the district court. The Supreme Court held that the therapist-client privilege statute, as an evidentiary rule, lacked a “threats exception” either “by implication from the duty-to-warn statute or under our authority to promulgate rules of evidence.” Thus, the Court found that the district court had abused its discretion in allowing N.M. to testify about Expose’s statements without his consent.

Found in Found in DMHL Volume 34, Issue 4

Forced administration of medication to restore defendant to competency to stand trial under the Sell standard

Warren v. State, 778 S.E.2d 749 (Ga. 2015)

Trial court's order “was insufficient in numerous respects” to support defendant’s forced medication for the sole purpose of restoring his competency for trial

Background: After Jesse James Warren was indicted on four counts of murder in connection with a mass shooting, he was found incompetent to stand trial and placed in the custody of the Department of Behavioral Health and Development Disabilities. The state of Georgia filed a petition under Sell to medicate Warren involuntarily in an attempt to restore his competency. The Superior Court for Cobb County granted the state’s motion and the defendant appealed.

Holdings: The Georgia Supreme Court held that, although the state had important governmental interests in restoring Warren’s competency for a timely prosecution and no special circumstances significantly undermined those interests, the factual findings were insufficient to support Warren’s involuntary medication. Important to the Georgia Supreme Court was the “absence of a specific treatment plan” that identified the drugs the State proposed to administer, in what doses and by what methods. The Court noted that “courts must consider less intrusive means for administering the drugs” (emphasis added by Georgia Supreme Court). Finally, the Court pointed to an absence of evidence in the record suggesting that the State sought to involuntarily medicate Warren for “the alternative purpose of preventing him from being a danger to himself or others.”

Found in Found in DMHL Volume 34, Issue 4

Intellectual Disability (ID) and the death penalty

Brumfield v. Cain, 2015 WL 9213235 (5th Cir. 2015)

Defendant Brumfield found intellectually disabled and therefore ineligible for the death penalty, under the standards set out by the Supreme Court in Atkins and Brumfield

Background: Kevan Brumfield was convicted of first-degree murder in 1995 and sentenced to death. After exhausting his state court remedies, Brumfield filed a petition for a writ of habeas corpus in the United States District Court for the Middle District of Louisiana, arguing that he was intellectually disabled and thus ineligible for the death penalty under Atkins v. Virginia, 536 U.S. 304 (2002). The District Court held that the state courts had erred by failing to hold an Atkins hearing and granted Brumfield a writ of habeas corpus after holding such a hearing. On appeal, the Fifth Circuit reversed without reaching the merits of the Atkins claim, holding that Brumfield had not satisfied the procedural requirements for habeas relief. The Supreme Court of the United States reversed, finding that he did meet the requirements, and remanded the case to the Fifth Circuit to ascertain whether the District Court’s determination that Brumfield was intellectually disabled was clear error.

Holdings: On remand, the Fifth Circuit held that the District Court’s determination was not clearly erroneous because it was “plausible in light of the record as a whole.” Although the State argued that prior assessments placed Brumfield consistently in the 70- 85 range,3 the Fifth Circuit noted that “no actual IQ scores…were reported anywhere in Brumfield’s records” and that tests provided only “descriptions of the ranges into which Brumfield’s scores fell”, and every expert witness before the district court “agreed that Brumfield’s scores satisfied the first prong of the intellectual disability test.” Additionally, the District Court found that Brumfield had significant conceptual limitations and “carefully explained its reasoning, identified the specific evidence it relied upon, and specifically credited the testimony of certain experts.” Where the court’s reasoning was so careful and its conclusions not implausible—even if it rejected the State’s equally coherent and plausible story—the Fifth Circuit refused to disturb or second-guess its findings. Although Brumfield was not formally diagnosed as intellectually disabled until after age 18, the district court found that the evidence produced showed this failure to diagnose was related to incentives in the school system not to identify students as intellectually disabled. Again, the district court pointed to specific evidence—Brumfield’s poor academic record, below grade reading comprehension, and etiological factors (e.g., low birth weight, family history of intellectual disability). The Fifth Circuit noted that these factors “certainly bolster[ed] the court’s conclusion that Brumfield’s intellectual disability manifested” before 18.

Found in Found in DMHL Volume 34, Issue 4

Reasonable accommodations under ADA and 14th Amendment

Dean v. University at Buffalo School of Medicine and Biomedical Sciences, 804 F.3d 178 (2nd Cir. 2015)

Medical school failed to meet “reasonable accommodations” standards of ADA regarding exams for student with mental illness, but due process afforded to the same student in regard to dismissal from school for inadequate performance met constitutional standards

Background: Maxiam Dean began to experience increased symptoms of depression after failing Step 1 of the United States Medical Licensing Examination. He met with an internist who recommended pharmacological treatment and provided him with an “excuse slip” recommending a leave of absence due to his situational depression. Dean presented the slip to his medical school, and was informed that it did not provide sufficient information to support an extended leave. The defendants offered a 10 week leave in response to Dean’s request for 3 months and informed him that he would not be extended any additional accommodations, and that he must sit for his Step 1 by May 21, 2007. After failing to pass (or sit for) his third attempt at Step 1, Maxiam Dean was dismissed from the program. Dean brought suit under Title II of the Americans with Disabilities Act (“ADA”), Section 504 of the Rehabilitation Act of 1973, and 42 U.S.C. § 1983. The United States District Court for the Western District of New York granted summary judgment to the defendants and dismissed Dean’s complaint. Dean then appealed.

Holdings: The Fifth Circuit held that the district court had erred in granting summary judgment to the defendants on the ADA and Rehabilitation Act claims because the defendants failed to show that the requested accommodation was unreasonable and to provide a “plainly reasonable” alternative. The Fifth Circuit found the record “devoid of evidence” regarding defendants’ consideration of whether Dean’s proposed accommodation would impose undue financial or administrative hardship on the M.D. program. Thus the lack of evidence regarding “the basis for denying Dean’s requested modification to the exam schedule preclude[d] any conclusion on summary judgment as to the unreasonableness of that accommodation.” Defendants would be entitled to summary judgment only if “the undisputed record reveals that the plaintiff was accorded a plainly reasonable accommodation”, but a reasonable juror could have found that the “abbreviated study period encompassed within Dean’s leave” would not have been sufficient to prepare him to sit the exam.

The Court held that Dean’s procedural due process rights had not been violated, though, because he “received notice of potential termination…and a careful and deliberate decision.”

Found in Found in DMHL Volume 34, Issue 4

Due process requirements for involuntary hospitalization

J.R. v. Hansen, 803 F.3d 1315 (11th Cir. 2015)

Florida’s statutory structure for involuntary commitment of persons with intellectual disability violates the 14th amendment, as it allows for indefinite commitment without periodic review

Background: Plaintiff-Appellant J.R., an intellectually disabled man with an IQ of 56, was charged with sexual battery and, after being found incompetent to stand trial, was admitted to non-secure residential services under F.S.A. § 393.11. He claimed that Florida’s involuntary commitment laws denied due process because they permitted the State to keep intellectually disabled people committed indefinitely without periodic review. When a person is admitted, the circuit court that first ordered the admission keeps jurisdiction over the order, and the person “may not be released except by order of the court.” The court, however, is “never required to review a continuing involuntary admission” (emphasis in original). Admitted persons may only challenge their support plans in administrative proceedings, but administrators cannot change or vacate the admission order or require release. Thus, the only means of securing release was by writ of habeas corpus.

Holding: The Eleventh Circuit held that Florida’s statutory scheme was facially unconstitutional because it violated the Due Process Clause of the Fourteenth Amendment by failing to require periodic review of continued commitments “by a decision-maker with the duty to consider and the authority to order release.” Even if the statutory scheme did require administrative agencies to conduct period reviews, however, it would still be facially unconstitutional because the agency did not have the authority to order release nor was it required to petition the circuit court.

Notable Points:

The availability of habeas corpus does not provide constitutionally adequate process: The Eleventh Circuit, relying on Williams v. Wallis, 734 F.2d 1434 (11th Cir. 1984), stated that “habeas corpus is not adequate in and of itself” and “can be at most a backstop.” The Court distinguished habeas from periodic review because habeas is only available if a petitioner seeks it.

Found in Found in DMHL Volume 34, Issue 4