Comment by Darcy R. Samuelsohn
Judith Gray was a fifty-seven-year-old woman who had been living with bipolar disorder for over thirty years of her life. In those thirty years, Gray had no history of being a danger to herself or others. Early on the morning of May 2, 2013, Gray began to experience a manic episode and prudently called both 911 and her daughter for assistance. Police arrived and accompanied her to the hospital, during which time it was undisputed that she demonstrated no risk to the officers. After several hours of Gray's self-authorized emergency restraint and hospitalization, she absconded from the hospital, prompting hospital staff to notify law enforcement that “a section 12 patient” needed to be “picked up and brought back.” Staff did not dial the 911 emergency line nor did they advise that Gray was dangerous, armed, or had committed a crime.
Officer Thomas Cummings, who had received only eighteen of his department's required forty hours of training on interactions with people with a mental illness, responded to the hospital's request and quickly located Gray, who was wandering barefoot only a quarter mile from the hospital. Cummings failed to wait for back up and instead attempted to tell Gray she must return to the hospital, though his efforts were met with only profanity and a vague “flex[ing of] her body” Without employing any means of de-escalation, Cummings crept up on Gray, tackled her to the ground, and tased her until she passed out from the pain. As a result, Gray brought a civil action against Cummings, asserting his excessive use of force violated her Fourth Amendment rights. On appeal to the United States Court of Appeals for the First Circuit, the court determined that, although a jury could reasonably find that Cummings used excessive force against Gray, her right to be free from his specific actions under the circumstances was not clearly established. Therefore, Cummings was entitled to qualified immunity, and the claim was dismissed.
This type of interaction between law enforcement and those with mental illnesses is not uncommon, and Gray was fortunate to come away from the encounter with her life. Take the case of Bryce Coutinho, a man with severe substance abuse disorder and depression, with a history of attempted suicide. On November 12, 2013, his girlfriend called the police because Coutinho was trying to harm himself. On arrival, police found Coutinho lying on a bed with a large gash in his arm, still holding a knife. Instead of working to de-escalate the situation or to save the life of a clearly suicidal man, one officer backed up, drew his gun, and—when Coutinho refused to drop the knife—shot and killed him. The officer was cleared of all charges.
While law enforcement is frequently the de facto first responder to a mental health crisis, officers are often ill-equipped to handle these interactions due to severely inadequate training. Because policing necessarily involves the subjective judgment of officers, these deficiencies in training put an already vulnerable population at higher risk of injury and death. It is well-documented that individuals with a mental illness are sixteen times more likely to be killed during an encounter with police, and according to the Washington Post's Fatal Force database, twenty-three percent of all fatal police shootings since 2015 have involved those with a mental health condition. These numbers are staggering, but the lack of adequate training on how to properly respond in these situations is even more so. Time and time again, as will be discussed in this Comment, courts have failed to recognize the rights of those living with mental illnesses to receive lifesaving accommodations when interacting with police, who, time and time again, have either failed to receive proper training or failed to employ the de-escalation techniques they were taught.
Constitutional claims in response to these incidents are commonplace, but United States Supreme Court jurisprudence is imprecise on the subject, leaving courts struggling to apply standards consistently. Individuals who choose to fight this uphill courtroom battle bring claims under 42 U.S.C. § 1983, which allows them to sue those acting “under color” of state law who violate their Fourth Amendment rights. However, § 1983 also grants government officials qualified immunity, a defense that the Supreme Court has held can only be overcome if victims prove the officer violated a “clearly established” right. The reasoning behind this hurdle is an acknowledgment of the difficulties police officers face making “split-second judgments” under often life-threatening circumstances. However, what this framework fails to address is that mental illness encompasses such a broad array of disorders, all of which have varying symptoms, such that no two individuals may manifest the same combination. Therefore, requiring there to be clear case law on how officers should respond to each unique encounter presented within the mental health context before holding officers accountable is problematic because few encounters will be exactly alike.
This Comment examines the need to reform the qualified immunity standard as applied to encounters between law enforcement and those living with mental illnesses. Part II discusses the historical background of how mental illness has become criminalized after the shift from forced institutionalization to more community-based treatment. Part II then describes the current procedures in place to train law enforcement on techniques for handling interactions with those living with mental illnesses. Specifically, this Part points out the inadequacies of law enforcement's failure to de-escalate potentially violent encounters and its role in this crisis. Part III gives an overview of Supreme Court jurisprudence on the subject. Part III also reveals how the legal framework in place under the Fourth Amendment and § 1983 fails to appropriately adapt to the mental health context and often blocks a victim's recovery for their suffering. Subpart IV.A demonstrates that materials educating law enforcement on how to properly adapt their field tactics to those experiencing a mental health crisis are available and have been successful in reducing the number of encounters that end in violence. Lastly, subpart IV.B discusses how these materials may inform a change in existing Supreme Court jurisprudence on qualified immunity and finally recommends a solution to ensure those living with mental illnesses are given an avenue to justice. Part V briefly concludes.
About the Author
Darcy R. Samuelsohn. J.D. candidate 2021, Tulane University Law School; B.A. 2016, University of Delaware.
Citation
95 Tul. L. Rev. 741 (2021)