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Uncategorized SF risks a bad decision on cops and disability...

SF risks a bad decision on cops and disability law


ACLU calls on city attorney to drop Supreme Court appeal in police shooting case

City Attorney Dennis Herrera has angered disability advocates with a Supreme Court appeal. Photo by Luke Thomas/Fog City Journal
City Attorney Dennis Herrera has angered disability advocates with a Supreme Court appeal. Photo by Luke Thomas/Fog City Journal

By Tim Redmond

JANUARY 13, 2014 – On Aug. 7, 2008, two San Francisco police officers kicked open the door to the room where Teresa Sheehan was holed up. She was clearly not doing well: A social worker at the supportive housing complex where she lived said that Sheehan hadn’t been taking her medicine, hadn’t changed her clothes in week, and refused to come out of her room.

When he knocked on the door to check on her, she didn’t respond – and when he used a pass key to enter, she told him to go away, then threatened to kill him with a kitchen knife.

The social worker backed off and called the cops; that was standard practice when a mentally ill person was in danger to herself or others and needed immediate, acute psychiatric care. The police were supposed to help get her to the hospital.

Instead, a few minutes later, Officer Katherine Holder and Sgt. Kimberly Reynolds had fired five shots, hitting and seriously wounding Sheehan. But unlike the victims in a lot of police shootings recently, Sheehan survived – and later sued the city.

Her claim was remarkable in that it not only accused the officers of improperly entering her room and using unnecessary force – it charged them and the city with violating the Americans with Disabilities Act, the federal law that provides special protections for people who are legally disabled.

And there’s no dispute anywhere that Sheehan fell into that category.

Now the case has reached the US Supreme Court, where City Attorney Dennis Herrera is asking for a ruling that would vindicate the cops, keep the case from going to trial – and possibly, disability-rights advocates fear, create a huge loophole in the ADA.

In a Jan. 8 letter to Herrera, the ACLU and Public Defender Jeff Adachi – along with 41 national and local disability-rights organizations – urge Herrera to withdraw his appeal.

If the city’s arguments are successful, the letter states, the high court “could leave people with psychiatric disabilities without the ability to require law enforcement to be reasonably responsive to their needs.” The city’s claim, the letter states, “also suggests that people with psychiatric disabilities lesser rights under the ADA, purportedly because their needs cannot be known, despite the fact that police are trained nationwide in proven strategies for safely engaging people with psychiatric disabilities.”

Herrera’s office says the city is not seeking any sort of far-reaching re-interpretation of the ADA. That, Matt Dorsey, Herrera’s press spokesperson, told me, is a “wild misrepresentation.”

The city argues, he said, that the officers actually complied with that law. According to the city’s brief:

Pervasive in the ADA is the recognition that conduct posing a threat to the safety of others need not be accommodated. Whether applied to employers, businesses serving the public, or government agencies, the ADA does not create a duty to accommodate people with disabilities where doing so risks the safety of others.”

Conflicts and escalation

Like most lawsuits that reach this level, the issues are complicated. But the conflict at hand boils down to this: Does the ADA require cops to consider the disability of an armed, mentally ill suspect?

Ever since the Idriss Stelley case, San Francisco cops have been trained in special protocols for handling mentally ill suspects. In general, the procedures involve attempting to de-escalate the situation, calling in trained negotiators and specialists, and using deadly force only as a last resort.

And under the ADA, police are required to consider the condition of the person they are confronting. As ACLU attorney Susan Mizner notes:

People with disabilities face violent and deadly consequences when law enforcement does not take disabilities into account. It is not okay to take a deaf person down for failing to follow verbal orders. It is not okay to attack someone with autism because he is slow to respond to instruction. It is not okay to treat a woman with a mental disability as if she were a dangerous criminal. San Francisco’s plea that those things should be legal is a dangerous assault on disability rights – and on our expectations of police behavior.

The facts of the case aren’t seriously in dispute here. According to Supreme Court documents, Sheehan’s social worked had filled out a form allowing the woman to be taken into custody against her will for emergency psychiatric treatment. When the officers arrived, he called San Francisco General Hospital’s psych unit, where a triage nurse agreed to accept Sheehan.

The police officers knocked on Sheehan’s door; she didn’t answer. When they entered with a passkey, she was lying on the bed, next to a plate with several knives. They didn’t know if she had other weapons or if there might be other people in the room, although the social worker had told all of the other residents of the flat to leave when he called the police.

The officers called for backup, but before anyone else arrived, Sgt. Reynolds decided to attempt to subdue Sheehan with pepper spray. Sheehan was barricading the door, so the passkey no longer worked — but the officers broke into the room, where Sheehan approached them with her knife and threatened to kill them. The pepper spray didn’t stop her.

When the two cops backed away, Sheened came through the door after them. It took five rounds to knock her to the ground – at which point backup arrived and another officer kicked away the knife.

When she recovered, the San Francisco district attorney filed charges against Sheehan for threatening her social worker, assault with a deadly weapon, and assault on a peace officer.

Not guilty

During the jury trial, Sheehan, represented by the Public Defender’s Office, argued that she was acting in self defense, that she was frightened by the armed officers and felt trapped. Her attorney argued that she had no history of violence, and that at the moment the police entered her room, there was no emergency of any sort. They could have waited for help.

The jury found her not guilty of making threats and hung on the other two counts (according to some reports, the vote was 11 not-guilty and one guilty). The DA’s Office, perhaps based on that accounting, decline to pursue a new trial.

In other words, according to the law, Teresa Sheehan never did anything wrong.

When she sued, the city sought to have the claims dismissed, and a trial court agreed. But Sheehan appealed, and the Ninth Circuit Court of Appeals sided with her – ruling that the ADA claim and the claim that the police had violated her Fourth Amendment right to be free from unwarranted search and seizure should go to a jury trial.

That’s what Herrera is fighting here: Not whether the city is right or wrong, but whether Sheehan should have the right to present the case to a jury.

Of course, that’s standard lawyer stuff: The defendant in a civil case routinely tries to get it thrown out without a jury trial. An impartial panel of 12 San Franciscans found Sheehan (in essence) innocent; another panel could find that the cops should have acted more cautiously – knowing in advance that the suspect was disabled with a severe mental illness – and waited for more support before bursting into her room with their guns drawn.

If the city accepted the Ninth Circuit ruling, the odds are pretty good that Herrera and his team would have to talk settlement.

Other circuit courts, which tend to be more conservative, have ruled that the ADA doesn’t apply when the police face a hostile armed suspect. The city’s brief calls on the Supreme Court to resolve that conflict.

Dorsey declined further comment, saying that city’s brief speaks for itself. I’ve read it, and Herrera does, indeed, limit somewhat his arguments. He’s not asking for a sweeping decision that would take the ADA out of police interactions with suspects.

But there’s a danger whenever you take a case like this to this particular court. There’s not exactly a progressive majority right now – and you never know how far the court is going to go with its ruling.

Herrera may want only a limited decision, but he has no control over what happens with the 11 justices retreat to discuss their decision – or over who will write the ruling and how bad it could turn out to be.

This isn’t same-sex marriage, or another huge Constitutional issue. It’s a case where a woman who is suing the city wants the right to present an ADA claim to a jury. The Ninth Circuit ruling isn’t horrible, and won’t stop the police from doing their jobs.

Lawyers always say that tough cases make bad law – and this case, critics fear, could wind up making some very bad law indeed.

Tim Redmond
Tim Redmond has been a political and investigative reporter in San Francisco for more than 30 years. He spent much of that time as executive editor of the Bay Guardian. He is the founder of 48hills.


  1. 1) The psychiatric social worker made the 5150 determination prior to & as the reason for the police arriving to transport the woman, as is appropriate as they are the experts.

    2) Police are experts on criminal apprehension, which is a different paradigm from mental health care.

    3) Police have tazers & stun-guns to use if pepper spray doesn’t work. Plus, one imagines they have more training in hand-to-hand combat than random female citizens.

    4) Regardless of whether it is a criminal or an SMI citizen in crisis, the goal is to *apprehend* the person, for arrest or involuntary detention. There is no reason to put any bullets into anyone unless there is literally no other option.

    5) Even if shots *must* be fired, one doesn’t have to shoot to kill. 5 rounds is shooting to kill.

    6) With an SMI person in crisis, reason is irrelevant, which is why ultimatums are useless in gaining compliance with them, esp. if their condition is known.

    7) SMI citizens having a clinical break with reality are not criminally culpable for their actions, yet are often executed, rarely surviving to trial as this woman did.

    8) Death penalties are meted out by judges at jury trials for grave offenses, except in exceptional cases. Most PDs pride themselves on low annual rates of weapons discharge.

    9) Police do not have the right to execute citizens on the basis of having committed a felony, or being impossible to reason with due to a known psychiatric disability.

    10) The “grave disability” clause in 5150, which you don’t seem familiar with, is a special tool that allows truly grave SMI presenting without the normal “immediate danger to self or others” conditions, can only be made by a licensed mental health professional, and exists for the benefit of non-violent citizens with SMI who are simply too out of touch to care for themselves.

    11) Ergo, the police were only on scene to transport her to more intensive mental health care for her own benefit.

    12) Their conduct predictably escalated this situation into the woman defending herself like a trapped rat, causing them to shoot her repeatedly… to take her to the hospital. They tipped the first domino.

  2. Except that you are wrong that there was no immediate danger. As the article quite clearly states:

    “When he knocked on the door to check on her, she didn’t respond – and when he used a pass key to enter, she told him to go away, then threatened to kill him with a kitchen knife.”

    That threat with a deadly weapon is easilysufficient for an arrest or, as in this case, a 5150 section detention. It’s a felony.

  3. Except they had no reason to force entry for a simple 5150, nor to rush into her bedroom, as the mental health workers were making the arrangements for in-take at SF General. With no crime committed, was not an *immediate danger* to herself or others, and was being referred to in-patient hospitalization on the basis of being “gravely disabled” solely for *her* own well-being

    Citizens enjoy 4th Amendment rights, even in supportive housing. In this case, it was a 5150 on the basis of “grave disability” determined by a social worker, police were granted exigency to enter her residence for purposes of detaining her for transport from her home to the hospital, one of the only lawful ways in which a fully law-abiding & non-violent citizen can Constitutionally be forcibly removed from their own residence, involuntarily detained, transported, and held for 72 hours.

    All citizens enjoy 4th Amendment rights, even in supportive housing, meaning that without a warrant, probable cause, or the special exigency of 5150 calls, law enforcement cannot trespass or search private residences. In California, under the Castle Doctrine, criminal trespass is grounds for pre-emptive self-defense up to the use of lethal force (if necessary), with no exemption for police if acting unlawfully. The CA case law protecting the right of residents to proactive self-defense, even against law enforcement, is substantial, and though largely weighted toward homeowners, covers tenants.

    This woman had no history of violence, despite a long history of Serious Mental Illness (SMI), nor was she a criminal or immediate danger. Her disability was explicitly disclosed by a mental health professional to police when they arrived at the supportive housing complex. If she did not have an SMI diagnosis, just a woman in her apartment defending herself when frightened by police breaking down her door, there is no way she would have gotten shot 5 times yet still have (many) apologists for the shooters.

    50% of citizens shot annually by law enforcement officers have (or are perceived to have) SMI. <2% of annual violent crime is committed by sober people with SMI, <4% inclusive of those high and/or drunk. People with any variety of disability are 500-600% more likely to be crime *victims* than neurotypical people. SMI is estimated to only affect only 8-19% of the population, depending on the poll's definitions & phrasing, with higher % indicating of inclusion of the most common depression & anxiety disorders.

    Saying officers with tazers & stun-guns needed to rush in to shoot this woman 5x in her own home, rather than getting mental health professionals on premises to assist in deescalation or use less-lethal weapons to subdue her, is tantamount to Darren Wilson's fears of Michael Brown's "demonic" strength justified deadly force. She wasn't Superwoman FFS, nor even a criminal.

  4. I’m more offended that he spelled “numbnuts” wrong.

    But he’s on a well-earned vacation, so cut him some slack. Providing housing is hard thankless work, and we should forgive minor transgressions.

  5. Actually on protracted vaca half way round the world, but decided to pop in briefly to check up on y’all 🙂

  6. “Herrera may want only a limited decision, but he has no control over what happens with the 11 justices retreat to discuss their decision”

    There are only 9 justices on the Supreme Court, not 11.

  7. I think this paragraph states the crucial issue here:

    “Other circuit courts, which tend to be more conservative, have ruled that the ADA doesn’t apply when the police face a hostile armed suspect. The city’s brief calls on the Supreme Court to resolve that conflict.”

    Seems like common sense to me, and not “conservative” at all. Although it’s appropriate for the police to consider the mental or disabled status of a person, if it is known, that becomes moot when that person physically attacks someone.

    Whether that attack is the rational action of a sane person intending harm, or just the irrational reaction of someone with skewed perception ultimately hardly matters. The cops must use force, deadly if deemed necessary, to neutralize the threat to themselves and others.

    Having gone this far, the case should be considered by SCOTUS. By your own analysis, the situation is fuzzy, and SCOTUS can lead the way here. You cannot reasonably ask that SCOTUS only considers cases where you personally seek change, and not when you happen to like the status qou.

    As a juror, I’d reject the ADA argument due to the nature of Sheehan’s violent actions.

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