By John Weston Parry, J.D.
Why is it that today when an African-American male is viewed as having been brutalized by the police there is likely to be an outpouring of outrage in the community and nationally, but if the alleged victim of similar brutality is a person with a mental disorder people generally look the other way? The most notable recent exception appeared to be a man in Los Angeles with a mental illness who was shot three times while on the ground. What turned out to be the spark that caused community outrage, however, was the fact that he was an African-American. That he was shot due to his mental illness was a secondary concern. According to his neighbors, this was one more example of “`racial bullshit.’”
While there are many reasons why Americans tend to look the other way or even applaud when people with mental disorders are victimized, the fact that those vulnerable individuals are likely to be perceived as being dangerous or violent—or more dangerous or violent than they really are—is high on the list. Yet, it is how our legal system implements that bias, which creates the greatest injustices. It usually is an uphill struggle for a person with a mental disability to be treated fairly in the criminal justice system. The law tends to be stacked against them from the time they are subject to detainment or arrest, during trial and sentencing, and when decisions are made about their release. Three recent cases illustrate, in very different ways, how these types of inequities manifest themselves.
The Supreme Court Strongly Favors the Police At the Expense of the Rights of a Woman with Mental Illness
In a 6-2 decision, with Justice Breyer abstaining, the U.S. Supreme Court found that two San Francisco police officers did not have to provide a suspect, who had a known mental disorder, with reasonable accommodations for her disability before they shot her multiple times after she resisted being whisked away to a secure treatment facility. The Court, in an opinion by Justice Alito, dismissed as being improvidently granted the primary question of the case, whether Title II of the Americans with Disabilities Act applied. Instead, the majority decided the secondary issue of the police officers’ liability under section 1983 of the Civil Rights Act. That provision requires plaintiffs to overcome the very difficult to satisfy standard that a “`clearly established’” federal statutory and constitutional right was violated when the “`challenged conduct’” was carried out. The Court overruled the Ninth Circuit in favor of the police. Justice Scalia in his dissent called the outcome an undeserved “bait and switch.” City and County of San Francisco v. Sheenan, (No. 13-1412, May 18, 2015).
The federal district court—in a decision by Justice Breyer’s brother—had granted summary judgment to the city and county of San Francisco, ruling that the officers in question were not required to consider the ADA in making a violent, forcible arrest of a person with a known mental illness because they thought they were protecting themselves and others. Also, the lower court found that neither police officer had violated the Constitution with her actions.
The Ninth Circuit disagreed in part, finding that the ADA applied to this situation. A jury should have been allowed to decide whether San Francisco had violated the ADA by not accommodating the plaintiff. The appeals court also ruled that the police officers had not been entitled to qualified immunity. As with any suspect, the police had to have an objective need to immediately enter the room in a group home where the woman lived, which they failed to establish at trial.
The facts of the case were unfortunate for people with mental disabilities complaining about mistreatment at the hands of the police because generally the accepted facts—many of which were in dispute—allowed the courts to dismiss the rights of the plaintiff, a woman who had been diagnosed with schizoaffective disorder, because she was mischaracterized as “violent.” Teresa Sheenan lived in a group home for people with mental illness. A supervising social worker became concerned about her welfare after Sheenan stopped taking her medication and declined treatment from her psychiatrist. Also, rumors had circulated that she was no longer eating food or changing her clothes. When the social worker knocked on her door and no one answered, he used a duplicate key to enter her private room. She responded by telling the social worker to leave because he did not have a warrant and, according to his version, hysterically threatened to kill him with a knife, which was never in view. Based on this exchange, the social worker filed to have Sheenan temporarily evaluated and treated at a secure facility because he said she was a threat to others and “gravely disabled.”
He then telephoned the police to effectuate the transfer of the difficult to manage and allegedly dangerous group home resident to the designated inpatient facility. In our legal system, this type of medical transfer is considered to be a criminal arrest with all the attendant police discretion that is allowed when apprehending criminals. Two female officers arrived separately, one after the other. They knocked at Sheehan’s door, “announced who they were,” and indicated they were there to “help” Sheehan, which was only true if her being arrested and involuntarily committed could be viewed as helpful. When the woman failed to answer, the officers used the social worker’s key to enter her room. She brandished a relatively small kitchen knife that had a 5-inch blade and allegedly moved towards the officers telling them that she did not need help and yelled that she was going to kill them if they did not leave.
The officers wisely left the room and called for “back up….” defusing the situation, at least temporarily. This decision was consistent with police training in San Francisco and elsewhere when “arresting” someone who has an active mental illness, especially if the arrest is for the purpose of effectuating civil commitment for treatment. Officers in San Francisco are instructed to: contain the subject, respect the subject’s “`comfort zone,’” use time to defuse the situation, and employ “`non-threatening verbal communication….”
Nevertheless, the officers soon changed their minds for reasons that appeared to be manufactured after the tragedy had happened. For whatever the reason(s), they decided not to wait for reinforcements, who were already on the way and nearby, and to arrest Sheehan using deadly force if necessary. Their ill-conceived plan was for one of them to “push the door open while [the other one] used pepper spray on Sheehan.” Both of them reentered the room with their guns drawn, however. Sheehan yelled for them to leave holding the smallish kitchen knife in her hand. Without issuing a warning, one of the officers began pepper spraying Sheehan “in the face.” When Sheehan did not immediately drop the knife, one of the officers shot her twice. Because Sheehan did not collapse right away, the other officer shot her multiple times. The fifth bullet to strike her allegedly was fired after Sheehan had fallen to the floor. At that moment back-up arrived and a third officer kicked the knife out of Sheehan’s hand while she was on the ground.
The two police officers, despite their dangerous tactics, which had led to an unnecessary confrontation that precipitated police violence, were deemed to be immune from civil liability, much less criminal prosecution, or even administrative discipline. It was Sheehan who was prosecuted for assault with a deadly weapon and for making criminal threats. A jury acquitted her of making those threats, presumably because the evidence was lacking. As to the assault with the smallish kitchen knife, the jury could not reach a verdict and San Francisco decided not to retry her.
At almost every stage of the legal proceedings, the fact that Sheehan had a mental disability either worked to her disadvantage or was ignored as a mitigating factor, beginning with the incredible decision to prosecute her for assaulting the officers who had spayed her with a toxic chemical and then shot her five times. It was only by extremely good fortune that she was not killed. Instead of reasonable accommodations that are required under the Americans with Disabilities Act, she received a presumption of dangerousness that eviscerated her rights and almost led to her being killed. The police in turn received qualified immunity, which was granted based on implausible justifications after-the-fact.
Some of the gems that emerged from the Supreme Court’s opinion leave one wondering what the hell is going on in our legal system. Alito began his opinion by noting that because Sheehan was the person against whom the summary judgment had been awarded, she was entitled to have the facts viewed “in the light most favorable to [her].” Yet, it should be obvious to anyone reading the opinion that the accepted facts were skewed at almost every critical juncture to favor San Francisco and the two police officers, and to disfavor Sheehan.
Perhaps the most significant examples of this bias were the after-the-fact recollections of the officers, combined with Alito’s ad hoc ruminations, as to why the officers might have been justified in going against their training and rushing into Sheehan’s room a second time after they had contained the situation and were waiting for back-up to arrive. Most of those recollections were legal buzz words that would mitigate or excuse their own recklessness. If it had not been a Supreme Court opinion, one would be justified in believing that these essential parts of the opinion were a bad joke.
First, it was argued that “the officers were concerned… that Sheehan, out of their sight, might gather more weapons…,” meaning more kitchen knives, which they had seen in her room. The two armed officers, awaiting more officers to arrive, apparently were concerned that Sheehan might assemble an arsenal of kitchen knives, which might make her even more dangerous than before. They also “may have feared that another person was with Sheehan,” even though there had been no evidence whatsoever to support such a concern and Sheehan clearly was a loner.
Second, even though Sheehan’s overwhelming concern for several days had been to be left alone in her room, the officers surmised that she might be a threat to flee through the back window in her second floor room, which had no fire escape. The officers who did not know whether such a fire escape existed chose not to ask the social worker about this possibility. The Court then went out of its way to note that the social worker said later that if he had been asked he “`probably’ would have said there was one,’” even though he would have been wrong and quite possibly lying. There is no rational reason why the social worker would want to state that there was a fire escape, unless his primary concern was to use the police to effectuate the woman’s removal from the group home. He like the police was not really a helper.
Third, the Court decided to try to get inside the officers minds by making conjectures about what the officers might have perceived at the time they made their tragic mistakes. All the officers supposedly “knew was that Sheehan was unstable, she had just threatened to kill three people, and she had a weapon.” (But of course they knew or should have known many other things, including that the women had a serious mental illness, desperately wanted to be left alone, and was extremely unlikely to hurt anyone while inside her room guarded by police.) Even though they could hear the “sirens” approaching, the officers decided to “reenter the room and try to subdue Sheehan before more time elapsed.” The more experienced officer now “believed that the situation `required [their] immediate attention,” even though nothing had changed.
In making that decision, the officers “did not pause to consider whether Sheehan’s disability should be accommodated.” Her condition was “`a secondary issue given that they were `faced with a violent woman who had already threatened to kill her social worker’ and ‘two uniformed police officers.’” The way the Court presented these facts one might think that time was of the essence, so stopping to reflect on the fact the “suspect” had a mental illness would be asking too much. Yet, the officers knew that the women’s mental illness was the primary reason they had been called to “help” in the first place. Also, since they had defused the situation, time clearly was not of the essence.
In addition, although Sheehan might have appeared to be potentially dangerous, she was not violent under any common definition of the term, since she had only made hysterical threats of acting violently. This is a critical distinction, since the case revolves around the necessity and propriety of the officers re-entering the room after the threat had been contained. At that point, she was not and had not been violent. As it turned out, she never was violent. In our legal system, however, it was enough that the police had grounds to believe she was “[potentially] dangerous, recalcitrant, law-breaking, and out of sight.”
Under closer scrutiny the majority’s dubious reasoning based on plausible conjectures after the fact, which could neither be verified nor challenged, is hard to swallow, unless one is intent on giving every benefit of the doubt to the police officers, and none to the woman with the mental illness. As the Ninth Circuit held, the police cannot forcibly enter a home without there being exigent circumstances, which establish “an objective need for immediate entry.” The existence of those circumstances must be present even if the subject of the home invasion has a mental illness, “has been acting irrationally, and has threatened everyone who enters [her private space].” In order to negate fundamental constitutional rights, the potential for violence should not only be more likely than not, but immediate as well.
The Supreme Court used smoke and mirrors to overcome the exigent circumstance barrier by conflating the two instances in which the officers entered Sheehan’s room into one continuous circumstance. Because the first entry was justified, the second was presumed to be as well. That the circumstances had changed once the officers contained the situation, left the room, and were waiting for reinforcements became marginalized, if not ignored altogether. In addition, the Court determined, even if the circumstances had changed enough that the second entry could not be conflated with the first, there were independent exigent circumstances justifying entry by the police the second time based on the aforementioned implausible conjectures.
Moreover, under the Fourth Amendment as interpreted in the Ninth Circuit, a police “entry… is not rendered unreasonable because it provokes a violent reaction,” whether or not the person has a known mental illness that has made her unstable. Once again the police gained cover because their attempt to detain and transport a person with a mental disorder to a secure treatment facility was equated with a criminal arrest, as opposed to being a medical intervention. The Court was very precise in distinguishing situations in which qualified immunity would not apply to police officers, but completely disinterested in distinguishing criminal arrests from medical interventions.
The only way a plaintiff with a mental disorder, who is presumed to be dangerous, has a realistic chance of recovering damages against the police for misconduct would be under Title II of the Americans with Disabilities Act. This is why the issue of whether the police should have provided Sheehan with a reasonable modification became the overriding reason the Court had decided to grant certiorari in the first place. The lower court had dismissed the issue by reflexively concluding that the officers in making an arrest were not required to determine whether their actions complied with the ADA. The Ninth Circuit reversed, ruling that the ADA was applicable and it was up to a jury to decide whether in this case Sheehan should have been accommodated. The Supreme Court accepted certiorari to decide the question posed by San Francisco on appeal: whether Title II “`requires law enforcement officers to provide accommodations to an armed, violent, and mentally ill suspect in the course of bringing the suspect into custody.’” Because it already was agreeing to decide that loaded question, the Court also agreed to review the Ninth Circuit’s less significant ruling that the officers were not entitled to qualified immunity.
In arguments before the Court, however, the appellants changed their ADA argument contending that Sheehan was not entitled to protection under Title II because she posed a “direct threat” to the health or safety of others, which could not “`be eliminated by a modification of policies, practices or procedures….’” The majority dismissed the ADA Title II issue as improvidently granted with respect to both the original argument and the revised version. Using this duplicitous tactic San Francisco, with the Supreme Court’s blessing, had done away with the more problematic ADA issue. At the same time the appellants convinced the majority to reverse the Ninth Circuit on the Fourth Amendment qualified immunity issue, which never would have been considered had the Court not decided to review the Title II issue.
Justice Scalia joined by Justice Kagan agreed that the ADA issue had been improvidently granted, but strongly objected to allowing San Francisco to benefit from this “bait and switch’ by having the justices consider its appeal of the qualified immunity issue. Scalia framed the issue as the Court “reward[ing] such… tactics by proceeding to decide the independently `uncertworthy’ second question.” He added that there was “no injustice … [in] dismiss[ing] both questions as improvidently granted.”
What he purposefully failed to mention, and Kagan might have chosen to point out, however, is that the overriding injustice was granting the appeal on the “uncertworthy” question at the expense of a woman with a mental illness, who had been shot five times, with the last shot being allegedly fired when she was on the ground. True to form, Alito pointed out that even if Sheehan had been on the ground, presumably with four bullets in her body, the Ninth Circuit had found that “`she was certainly not subdued.’” How one could possibly arrive at such a conclusion boggles the mind. Perhaps Alito and the appeals court assumed that Sheehan could have been writhing in pain, criminally calculating how to best use her smallish knife should the officer try to shoot her a fifth time.
The Hinckley Debacle
As covered in this blog previously, John Hinckley has been falsely imprisoned in a secure detention facility and had his liberties and freedoms curtailed for more than 20 years after being successfully treated for the mental disorders that a jury had determined were responsible for him attempting to assassinate President Reagan and members of his entourage, including press secretary Jim Brady. The federal civil commitment law has been manipulated ever since in a thinly veiled attempt by the federal government to guarantee that Hinckley will continue to be confined and live in as restrictive circumstances as possible, regardless of what his treatment providers recommended.
Since that attempted assassination, nationwide the not guilty by reason of insanity verdict has become an extremely rare outcome when a major crime is involved. Usually only if the defendants are likely to spend more time confined in a secure “treatment” facility than in a prison will a person’s lack of responsibility due to mental disease or defect be a relevant judicial consideration. Otherwise, the insanity defense involving serious felonies is reserved for highly sympathetic figures, such as mothers with post-partum depression or soldiers with combat-related mental disorders. For those who many years ago successfully asserted an insanity defense for a major felony, obtaining a release has been extremely difficult, if not impossible.
Despite the fact that Hinckley has been stable and in full remission for more than two decades, the federal government continues to invent reasons why he should not be discharged. In turn, the federal court that has been supervising his transition all these years has required him to meet conditions that serve no legitimate treatment purpose in order to project the image that the larger community is being fully protected from a potential danger that has not existed for many years. To make matters worse, less than a year ago the federal government publicly contemplated prosecuting Hinckley for Brady’s death when a Virginia medical examiner curiously ruled that the gunshot wound Brady had received over thirty years ago in the assassination attempt was cause of Brady’s death at age 73. Fortunately, the tenuous nature of the medical examiner’s conclusion, along with the even more tenuous conclusions that Brady’s death was a homicide and Hinckley could be prosecuted for the same criminal action for which he had been found not guilty by reason of insanity, led the federal government to finally stop pursuing such a vindictive prosecution.
Nevertheless, the legal nonsense entrapping Hinckley continues in the guise of paternalism and community safety. Since the late 1990’s, Hinckley has been permitted to leave St. Elizabeth’s hospital on family visits that have become more frequent and less restrictive. Clearly he has not been a danger to himself or others for many years, but until 2013 he could not convince a federal judge to formally acknowledge this fact as part of a public legal document. The problem has been that unlike traditional criminal sentencing, once people are found not guilty by reason of insanity they remain in the custody of the government, until a judge chooses to release them, even if they no longer satisfy the legal criteria under which they were originally committed. Judicial discretion can be good or bad. In Hinckley’s case this injustice has been magnified and distorted because a sitting U.S. President was the intended victim of his delusional actions.
Even in recent years when his treatment providers have agreed that he should be released, Hinckley has been treated like a misbehaving child. Yet, the federal government objects to this unnecessary paternalism because it grants Hinckley too much freedom. The court has compromised between what Hinckley’s federal treatment providers have recommended and the federal government would prefer when, legally, there should be no restrictions at all. Even Hinckley’s lawyer must play this Kafkaesque game to get his client the best possible outcome. Recently the lawyer decided to publicly acknowledge in a Washington Post article that Hinckley is “ready for the next step,” when in fact the lawyer knows and has argued there should be no further steps at all. Thus, even if Hinckley was granted what has mistakenly been referred to as a full discharge, it is likely that he will have to reside in his elderly mother’s home and, if she dies or becomes incapacitated, his siblings have had to agree to take care of him for as long as they are able.
Currently there are other juvenile-like restrictions on Hinckley. He “must limit his access to the Internet, log his daily activities, carry a trackable cellphone, and stay away from the president and members of Congress.” In addition, when the actress Jodie Foster appears on a television screen, he has to either shut off the television or leave the area. At the same time, when he is in Washington and often elsewhere as well, a team of secret service agents are assigned to follow him around. How much money has that wasted over the years? With his so-called full discharge pending, the federal government is still urging—assuming federal attorneys cannot block the discharge entirely—that Hinckley be compelled to “submit to more frequent weekly phone calls and monthly visits to Washington, weekly local treatment sessions and a pre-approved itinerary….” If the federal government has any say, it appears Hinckley will never be a free man, no matter what the law may mandate.
Sexual Predators Who Are Innocent of the Crimes They Have Been Charged With
Finally there is the tragic Virginia case reported in the Washington Post of Michael McAlister who in 1986 was “wrongly convicted… [of] attempted rape and kidnapping.” He had served nearly thirty years in prison and as his release date grew near, he faced the “`prospect’ of being locked away for many more years under a Virginia law that allows the “civil” commitment of sexual predators after they have completed their criminal sentences.” For years, McAlister had maintained his innocence and provided convincing evidence of that assertion, but nothing was done until “a serial rapist who bore an uncanny resemblance to [the offender]… confessed [to the crimes in question.]”
His wrongful criminal status continued even after the serial rapist was convicted in 1988 and the lead detective and prosecutor concluded that they probably had had made a grave error in arresting and prosecuting McAlister based on eye witness testimony because they realized he closely resembled the serial rapist. Together they “told the state parole board in 1993 and then-Gov. Mark R. Warner (D) in 2002 that they would not have presented McAlister’s photo to the witness or charged him based on what they later learned.” Nevertheless, because there was no conclusive DNA evidence, McAlister continued to be imprisoned. It was not until July 2004, that Virginia courts would even “consider non-biological evidence of innocence.”
At this point, however, the case became particularly compelling and frightening because of the other legal obstacles that Virginia places in the way of sex offenders seeking their release. Just after the state changed the law regarding non-biological evidence of innocence the parole board granted McAlister his release, but it was conditional. A year later when he was “arrested for driving under the influence,” he was returned to prison without even being tried for the alleged misdemeanor. For nearly ten more years he languished in prison before he was scheduled for release again. The date was supposed to be in January 2015. Unfortunately, under Virginia’s draconian sexual predator “civil” commitment law, McAlister could be held for months without a hearing, pending a “civil” trial to determine whether he should be indeterminately confined as a sexual predator.
The fact that he was probably innocent of the only offense that allowed him to be characterized as a dangerous sexual predator in the first place did not seem to persuade the state’s attorneys that going through with this travesty of justice would be a bad idea. This resistance to doing the right thing was especially disturbing since there was no suggestion that McAlister had a mental disorder that caused him to commit dangerous acts comparable to the crime he did not commit. Making matters worse, in these quasi-civil commitment hearings “[j]udges are prohibited from considering evidence of innocence. In fact, a defendant’s refusal to admit guilt makes additional punishment more likely….” Thus, in Virginia and most other states that have such laws, if a person happens to be innocent of the sexual offenses for which he or she is convicted, then he or she faces a catch-22, which is all but impossible to overcome, short of the type of miraculous circumstances that eventually saved McAlister. Those being tried in such hearings must either admit to committing the offenses that they were convicted of or face a longer period of incarceration.
For McAlister, the first part of his miracle occurred when, after all those years keeping silent, the convicted serial rapist that resembled him confessed to McAlister’s crimes. Yet, because McAlister was no longer subject to the criminal justice system that reality could not guarantee his freedom. The sexual predator civil commitment system was not obliged to recognize McAlister’s innocence, since the basis for a commitment is sexual dangerousness due to a broadly conceived mental disorder. In the nick of time, however, his “legal team’ gathered enough evidence—on top of the confession—to convince Virginia’s Governor McAuliffe (D), to grant McAlister a full pardon without DNA evidence. Otherwise, he would have been scheduled to be tried in a quasi-civil proceeding in which innocence is no excuse. This “probably would have resulted in McAlister’s indefinite detention at a secure state rehabilitation facility” for many years, and quite possibly until he died. As it was, he spent over twenty years in prison after persuasive evidence was presented that he had been wrongly convicted.