Force Science News #274:

Lewinski named to expert panel to address president's task force

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In this edition:

I. Lewinski named to expert panel to address president's task force

II. High court to decide how you handle the dangerous mentally ill

III. New civil rights suit invokes ADA in excited delirium case

 

I. Lewinski named to expert panel to address president's task force

 

Dr. Bill Lewinski, executive director of the Force Science Institute, has been invited to testify before the Task Force on 21st Century Policing, created last month by executive order of President Obama.

 

Lewinski will appear at a "listening session" on technology and social media that will be conducted by the Task Force Jan. 31 at the University of Cincinnati. As a member of an expert panel, he will offer comments on research related to body cameras and then respond to questions from Task Force members. He'll also submit written materials, including the widely publicized Force Science News report on camera limitations. A printer friendly version the report is available by CLICKING HERE or visiting: www.forcescience.org/bodycams.pdf

 

The session is open to the public on a first-come-first-seated basis, beginning at 0900 in the university's Tangeman University Center Great Hall.

 

The Task Force is charged with writing recommendations for "how policing practices can promote effective crime reduction while building public trust."

 

II. High court to decide how you handle the dangerous mentally ill

 

Do LEOs have to make special accommodations when confronting violent, life-threatening mentally ill suspects in order to avoid violating the federal Americans with Disabilities Act?

 

That question is scheduled for a decision in the coming weeks by the U.S. Supreme Court. And if the answer is yes, warns an attorney team involved in the case, officer safety will be compromised because cops will be forced "to ascertain the causes of dangerous behavior instead of dealing with its effects," producing "hesitancy and delay during emergency situations."

 

The Court agreed late last year to rule on the matter, which arises from a split decision by the 9th Circuit Court of Appeals concerning the violent resident of a psychiatric group home in San Francisco who was off her meds and threatening to kill her social worker with a knife.

 

When an SFPD officer and a sergeant responded and forced entry into the woman's room, she "immediately charged at [them] with a knife while screaming that she was going to kill them," according to a petition to the Court. The sergeant pepper-sprayed her to no avail.

 

When the suspect was two to four feet from the officer, the officer fired at her from the hip to avoid being slashed. The attacker then turned on the sergeant who "fired two or three times at point blank range," striking and collapsing her. Even on the floor, she continued to swing the knife at the officer, until the blade was finally kicked from her hand.

 

The suspect survived and in a federal 1983 lawsuit against the two responders and the city and county of San Francisco she argued that the LEOs had violated the "reasonable accommodation" requirement of the Americans with Disabilities Act (ADA), which tasks "public entities" with treating disabled individuals with special consideration.

 

In her view, supported by a "litigation expert," the officer and sergeant to comply with that law "should have respected her comfort zone, engaged in non-threatening communications, and used the passage of time to defuse the situation rather than precipitating a deadly confrontation."

 

The district court that first weighed the case held that "it would be unreasonable to ask officers, in such a situation, to first determine whether their actions would comply with the ADA before protecting themselves and others." Given the circumstances, the court said, the officers' performance, including their use of deadly force, was a "reasonable response."

 

But when the plaintiff appealed, the 9th appellate panel in a 2-1 decision last February took issue with the lower court's judgment. The majority denied qualified immunity to the defendant officers and declared that a jury should hear the case and "balance the risks" involved. They argued that jurors might reasonably conclude that the officers should have waited for backup and employed "less confrontational tactics, including the [disability] accommodations that [the plaintiff] asserts were necessary."

 

The majority stated that officers cannot make an otherwise lawful entry to arrest an armed and violent mentally ill suspect if doing so would "force a confrontation" and there is "no immediate need to subdue [the suspect] and take [her] into custody."

 

They were not persuaded by their colleague's dissent, which pointed out that the officers faced "the need to resolve an ongoing emergency that involved a deadly weapon" and should get the benefit of the Supreme Court's long-standing "prohibition on 20/20 hindsight."

 

In appealing to the Supremes, a legal team from the San Francisco City Attorney's Office asked the Court to "resolve whether and how the [ADA] applies to arrests of armed and violent suspects who are [mentally] disabled."

 

Nationally, the appellate circuits are divided on the "reach and meaning" of the ADA in police encounters. Some circuits categorically prohibit claims against officers who act to control mentally ill subjects in urgent circumstances. The 5th Circuit, for example, has ruled that the ADA "does not apply to an officer's on-the-street responses... prior to the officer's securing the scene and ensuring that there is no threat to human life"; the requirement for "reasonable accommodation" kicks in only after that point.

 

Other appellate courts have acknowledged that "accommodations to a disabled suspect may be reasonable" in the course of arrest in some circumstances. But in practice, "these circuits have never found a proposed accommodation to be reasonable where exigent circumstances even arguably existed," the petition to the high court asserts.

 

Only the 9th Circuit has "ever sent to a jury a claim that law enforcement officers should have provided reasonable accommodations for an armed and violent individual" who is not yet in custody.

 

Officers not only in California but nationwide deserve clarity on "what duties, if any," the ADA imposes on them when they are "attempting to secure a potentially violent suspect in an uncertain and rapidly evolving situation," the petition states.

 

The need for clarity is not an insignificant one. From 2.7 to 5.9% of suspects police encounter have "a serious mental illness," the petition says. "Medium and large police departments estimate that 7% of their contacts with the public involve persons with mental illness....

 

"Moreover, when officers are dealing with irrational, unstable, and violent individuals, it is difficult to identify any particular accommodation as 'reasonable,' because no one knows what will work....

 

"When mental illness manifests in unpredictable, violent behavior,...officers must make split-second decisions that protect the public and themselves from harm. The dangers they face are compounded when they lack clear rules concerning what actions the law requires or forbids....

 

"[D]angerous criminal behavior and mental illness can exist side-by-side.... A knife attack on an officer or a civilian is no less deadly, just because the person holding the knife has been diagnosed with mental illness."

 

Speaking for the Force Science Institute, executive director Dr. Bill Lewinski observed during an interview with Force Science News: "We endorse the use of communication and persuasion techniques with subjects whenever possible. But in situations where an officer is not able to build rapport, his or her ability to influence a suspect psychologically is, in reality, negligible. Consequently, the officer is likely to be compelled to deal with the situation tactically, focusing solely on the physical dynamics of the encounter and not on the subject's mental condition.

 

"Even psychiatric facilities call the police when they can't control someone. Employees of such places are specially trained to deal with individuals with mental illnesses. They're trained not only in communication and persuasion techniques but in physical control measures. Yet there are times when they must concede to a forceful law enforcement approach because lesser options do not always work."

 

Troublesome suspects with knives can be especially treacherous, Lewinski points out. "Force Science research has documented the exceptional speed at which a knife attack can materialize," he says. "For example, a suspect armed with a knife standing seven to nine feet away can step and slash an officer in just two-thirds of a second."

 

We'll keep you advised as this matter plays out. The case is: City and County of San Francisco, Kimberly Reynolds, and Kathrine Holder, petitioners, v. Teresa Sheehan, respondent. For access to various legal filings with more details, click here.

 

III. New civil rights suit invokes ADA in excited delirium case

 

A lawsuit filed recently in the 9th federal circuit hinges on ADA considerations that may resonate with many agencies.

 

In this case (LaDue v. City of Talent, et al.), a subject with a history of schizophrenia smoked a "synthetic cannabinoid" product and then later died in the throes of excited delirium during a confrontation with law enforcement. Officers involved are accused of excessive force, and two municipalities, a county, and a rural fire district are accused of failing to provide training on how to deal with mentally disabled suspects.

 

The ultimately fatal incident is said to have started on a September afternoon in 2012 when the 23-year-old subject, having depleted his usual stash of marijuana, was given a free sample of Bizarro Incense, a smokeable "aroma therapy" product, at a smoke shop in Oregon.

 

That evening, after toking an unknown amount of Bizarro, he began acting bizarro.

 

"Agitated and disoriented," he wandered into a blackberry patch behind his parents' home, appearing "severely intoxicated," hearing voices, and repeatedly stating, "I'm on fire." When he became violent as his father tried to help him, a family member called 911. Uniformed officers from two small communities, a sheriff's deputy, and several paramedics were dispatched.

 

The EMS crew refused to intervene until the cops acted, according to the amended civil rights complaint filed last month in the federal district court for Oregon. When the LEOs confronted him in a neighbor's driveway, he at first seemed cooperative. But then he "changed his mind" and refused to comply with commands, although he allegedly was "not aggressive nor threatening."

 

Before he was finally handcuffed, according to the suit, the sweating, struggling, "intermittently incoherent" subject had been Tasered in probe or stun-drive mode at least 24 times, kicked in the ribs and chest, pepper sprayed, and subjected to hair holds and officers' dog-piled body weight. When officers called on paramedics to help achieve restraint, they allegedly "stood idly by and refused to provide assistance"--until the suspect eventually stopped breathing once he was hooked up.

 

"Sudden cardiac arrest during an episode of agitated delirium" killed him, the state medical examiner determined.

 

Before they attempted to restrain or take custody of him, the responding officers knew the subject "had a mental disability," the lawsuit states. Their agencies knew that persons suffering from mental illnesses and/or drug overdoses may develop excited delirium, that it was "highly probable" their officers would encounter such individuals, and that persons in such a delirious state "are at a highly elevated risk of death from ordinary law enforcement use-of-force [control] methods."

 

The failure of the responders' agencies to adopt policies, tactics, and training on "how to properly...deal with mentally disabled persons and persons suffering from agitated delirium" was directly linked to this subject's death, the suit alleges.

 

This negligence and the resulting on-scene tactics constitute violations of the reasonable-accommodation provision of the Americans with Disabilities Act and other federal civil rights legislation, according to the lawsuit. The plaintiffs (the dead man's parents) demand a jury trial and $5,000,000 in damages.

 

Included among defendants in the action are the corporations and individuals involved in the manufacture and retailing of Bizarro Incense.

 

The case is now in its early discovery phase and with multiple parties and legal issues a trial date is not expected until next year, according to plaintiffs' attorney David Park.

 

Our thanks to Atty. Michael Brave, member/manager of LAAW International LLC, for alerting us to this lawsuit.

 

Correction

 

In Force Science News #273, a mistake in editing a reader's letter resulted in a statement that Australia has experienced seven OIS incidents in the last year. That figure actually applies just to the Australian state of Queensland, not to the country as a whole. We apologize for the error.

 

Also in that issue we provided a link to a PowerPoint presentation that addressed "community concerns" about police use of force. That program has since been posted on various websites, erroneously credited to Force Science. The creator of the slide show actually is Dr. Richard Johnson of the University of Toledo.

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