Trial Magazine

“Let me see your hands! Put your hands on the dash! Put the vehicle in park! Put your hands on the dash! Do it now! Turn off your car! Don’t get out of the car!”

Those seven commands were all shouted in rapid succession by a police officer during a traffic stop. Prior to the stop, the driver’s mother had called 911, telling dispatchers that her son had consumed alcohol, had driven off, and was suicidal and in mental distress. The encounter between the police officer and the driver, all captured on the officer’s body camera, is a textbook example of how not to respond to an individual in the midst of a mental health crisis.

The encounter started with the officer yelling conflicting commands and pointing his gun at the driver’s head. The dispatcher had told the officer that the driver was suicidal, was believed to be unarmed, and had been drinking. At no point did the officer explain to the driver that his mother’s concerned call prompted the traffic stop. And, despite knowing that the driver was suicidal, neither the dispatcher nor the officer summoned anyone with crisis-intervention training to the scene.

The driver, unarmed and in turmoil, did not heed the officer’s instruction to turn off his car or stay in his vehicle. Instead, he exited the car and the officer shot him eight times, escalating what should have been a welfare check into a needlessly fatal police shooting.¹

People with mental illnesses are 11.6 times more likely to experience police excessive force than someone without a mental illness.² The likelihood that a person with a mental illness will suffer injury as a result of police contact is nearly 10.7 times higher.³ Tragically, officers who lack the training necessary to respond to individuals with mental illnesses in moments of crisis may respond with unnecessary force.⁴

In many cases involving individuals with mental health disabilities who have been killed by police, the victims’ estates and surviving family members sue the police officers involved—and, in some cases, the police department— under 42 U.S.C. §1983, a federal statute allowing individuals to sue state actors and municipalities for violations of their civil rights. Plaintiffs frequently allege that the officers’ excessive force violated the victim’s Fourth Amendment right to be free from unreasonable seizures.

These claims are typically met with the familiar defense of qualified immunity, with officers claiming they are immune from suit because their actions did not violate any clearly established statutory or constitutional rights that a reasonable officer or official would have known.⁵ Police officers often prevail on qualified immunity defenses. In a comprehensive 2024 study of qualified immunity, the Institute for Justice found that federal intermediate appellate courts “granted qualified immunity in 54% of appeals and denied it in just 26%.”⁶

The grim outlook for plaintiffs in traditional §1983 cases is reason enough to consider a new vantage point where excessive force cases are viewed through the prism of disability rights and two well-tread federal statutes: Title II of the Americans with Disabilities Act of 1983 (ADA) and §504 of the Rehabilitation Act of 1973.

The ADA and §504

Individuals with disabilities are entitled to protection under the ADA and §504, both of which are the bedrock of disability rights law. The ADA prohibits discrimination against a person on the basis of their disability.⁷ Mental health conditions that “substantially limit one or more major life activities,” such as depression, PTSD, and schizophrenia, constitute a disability under the ADA.⁸ The ADA defines “disability” broadly and also includes individuals with a “record” of a mental (or physical) impairment and individuals “regarded as having such an impairment.”⁹

Title II of the ADA applies to public entities and provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.”¹⁰ Public entities include state and local governments and any department, agency, or other instrumentality of a state or local government.¹¹ A plaintiff may allege a violation of Title II on the ground that the public entity failed to provide reasonable accommodations and, as a result, denied the plaintiff the benefits, services, and privileges of the public entity.¹²

Similarly, §504 of the Rehabilitation Act provides that “no otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving [f]ederal financial assistance or . . . conducted by any [e]xecutive agency or by the United States Postal Service.”¹³ Courts analyze claims under Title II and §504 concurrently.¹⁴

Several courts across the country have held that the ADA applies to settings in which citizens interact with law enforcement, including during police investigations, the transportation of an arrestee to the police station, and post-arrest custodial interrogations.¹⁵ The federal circuits, however, are not in agreement as to whether the ADA applies to on-the-street encounters with police and requires officers to provide reasonable accommodations to subjects and arrestees under these circumstances.

In the Fifth Circuit, officers in the field faced with exigent circumstances need not worry about complying with Title II of the ADA before first securing their own safety and the safety of others.¹⁶ The Fifth Circuit reasoned that officers “already face the onerous task of frequently having to instantaneously identify, assess, and react to potentially life-threatening situations” and that adding another factor for consideration—compliance with the ADA—invited too much risk to officer safety.¹⁷

By contrast, the Fourth Circuit has applied Title II and its requirement of reasonable accommodations in cases involving encounters between police and individuals with disabilities, including a case in which police officers shot and killed a man with a mental health disability after a standoff.¹⁸ Unlike the Fifth Circuit, the Fourth Circuit has declined to impose a bright-line rule against applying the ADA to on-the-street encounters and, instead, views exigency as one “consideration” in the “determination of the reasonableness of the accommodation.”¹⁹

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The ADA and §504 apply in the context of citizens’ interactions with police and can be powerful tools in the fight for police accountability.

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The manner and timing of how the ADA applies to a case will vary, depending on the facts of the police encounter and the plaintiff’s theory of liability. However, both the ADA and §504 offer broad protection to individuals with disabilities and can be powerful tools in the fight for police accountability.

Benefits of Bringing ADA and §504 Claims

There are at least three benefits to using disability rights claims in an excessive force case, whether by substituting a §1983 claim altogether with disability rights claims or by pleading a violation of Title II and §504 in your complaint.

Hold the municipality accountable. In §1983 cases, plaintiffs can name the police department or municipality as a defendant by asserting a claim pursuant to Monell v. Department of Social Services, which held that a police department or municipality is liable for officers’ and others’ §1983 violations when those individuals followed an official policy or custom the municipality implemented.²⁰ A word of caution: Monell claims are notoriously difficult to win.²¹ Plaintiffs must prove the existence of a policy or custom and a nexus between it and a violation of the plaintiff’s constitutional rights.

Title II and §504 provide another avenue to hold a police department liable. They allow a plaintiff to sue the police department for discrimination under a theory that the agency failed to make reasonable modifications to its policies, practices, or procedures when such modifications were necessary to avoid discrimination on the basis of the plaintiff’s disability.

For instance, a police department whose officer fails to summon a crisis-intervention team for assistance or who escalates an encounter instead of waiting for a crisis-intervention team to respond to a person clearly suffering from mental illness could be liable for failing to accommodate that person’s mental health disability.

In recent cases, plaintiffs have prevailed against motions to dismiss these theories of liability. In Short v. City of Rochester, the defendant municipality moved to dismiss the plaintiff’s complaint on the ground that it was not possible for the police to have made any of the reasonable accommodations that the plaintiff identified, including that officers should have waited before engaging with the victim, used alternative measures to disarm the victim, and called a crisis response team to the scene.²² In light of the motion-to-dismiss standard, which considers all well-pleaded allegations in a plaintiff’s complaint as true, the court concluded that the defendant’s arguments raised factual disputes that were not appropriate for resolution at such an early stage.²³

Likewise, in Estate of LeRoux v. Montgomery County, the court rejected the defendant municipality’s argument that the reasonable accommodations the plaintiff proposed would not have been effective.²⁴ Here, too, the court recognized that “whether the accommodations [p]laintiffs propose would have allowed the [c]ounty to effectively communicate with Mr. LeRoux, or whether the measures the [c]ounty employed were sufficient are questions of fact that cannot be resolved upon a motion to dismiss.”²⁵

A plaintiff may also use Title II and §504 claims to raise a failure-to-train theory of liability. In some jurisdictions, courts have expressly recognized that Title II provides plaintiffs with a viable failure-to-train claim.²⁶ This claim allows the plaintiff to allege specific violations of crisis-intervention policies in other fatal police shootings involving the defendant law enforcement agency—allegations that might otherwise be absent from a §1983 lawsuit against an individual officer.

Many police departments across the country have implemented some form of crisis-intervention training or response that requires officers or specialized units to follow concrete steps for handling encounters with individuals experiencing mental distress. However, in many cases, officers and departments fail to adhere to these policies and escalate encounters, leading to tragic and avoidable results.

While public outrage and demands for better training can be catalysts for change, litigation may also lead to police reform. Across the country, there has been a steady rise in the number of lawsuits filed on behalf of individuals with disabilities against police departments.²⁷ Time will tell whether such litigation leads to police departments taking greater care to implement and follow crisis-intervention training and response policies.

Defeat a claim of sovereign immunity. Raising a disability rights claim under federal law precludes the defendant municipality from succeeding on a defense of sovereign immunity. That is, the municipality cannot claim that under the Eleventh Amendment it is a state agency immune from suit in federal court. Section 504 expressly abrogates that immunity for all recipients of federal financial assistance,²⁸ and most municipalities and police departments receive at least some financial assistance from the federal government. In the early stages of a case—before a complaint is filed—research whether, and to what degree, the defendant may have received federal funding that would preempt a sovereign immunity defense.

Widen the lens of relevant conduct. Unlike a Fourth Amendment excessive force claim, which analyzes the reasonableness of an officer’s actions, a claim based on the ADA and §504 looks to the information the municipality had regarding the plaintiff’s disability before the officer used excessive force.²⁹ A public entity is on the hook to make reasonable modifications when it knows an individual has a disability, including in circumstances when the person requests accommodations or when the disability is readily apparent.³⁰

This widened analysis allows the plaintiff an opportunity to obtain and use all the information the police department had before the officer used excessive force. Calls to 911, dispatchers’ communications to police officers, and officers’ communications with each other are all relevant to determining whether the municipality denied the plaintiff reasonable accommodations.

A mother’s concerned call to police that her son needed help and the dispatcher’s radio communication to the responding officer before the traffic stop that the driver was suicidal are facts that would have had little purchase in a standalone §1983 case. However, by alleging violations of Title II and §504, these facts take center stage and allow a plaintiff to thwart immunity defenses and hold the law enforcement agency directly accountable for its own failures.

When considering which claims to assert in a case of excessive force, do not overlook the many benefits of turning to Title II and §504.

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Chelsea J. Crawford is a partner at Brown Goldstein & Levy in Baltimore and can be reached at ccrawford@browngold.com.

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Notes

1. Tim Prudente, Baltimore County Will Pay $6.5 Million to Settle Claims Over Fatal Police Shooting of Parkton Man in 2019, The Baltimore Sun, Oct. 12, 2021, https://www.baltimoresun.com/2021/10/12/baltimore-county-will-pay-65-million-to-settle-claims-over-fatal-police-shooting-of-parkton-man-in-2019/.
2. Ayombami Laniyonu & Phillip A. Goff, Measuring Disparities in Police Use of Force and Injury Among Persons With Serious Mental Illness, 21 BMC Psychiatry (2021).
3. Id.
4. See Ashley Abramson, Building Health Into Emergency Responses, 52 Monitor on Psychology 30 (July 1, 2021), https://www.apa.org/monitor/2021/07/emergency-responses.
5. See Saucier v. Katz, 533 U.S. 194, 201 (2001) (establishing a two-step procedure for analyzing defenses of qualified immunity); see also Reichle v. Howards, 566 U.S. 658, 666 (2012) (emphasizing that the Court looks at what “reasonable officers” or “reasonable officials” could have known).
6. Jason Tiezzi, Robert McNamara & Elyse Smith Pohl, Unaccountable: How Qualified Immunity Shields a Wide Range of Government Abuses, Arbitrarily Thwarts Civil Rights, and Fails to Fulfill its Promises, Inst. for Justice (Feb. 7, 2024), https://ij.org/wp-content/uploads/2023/11/Unaccountable-qualified-immunity-web.pdf.
7. See generally 42 U.S.C. §12132 (1990).
8. 42 U.S.C. §12102(1)(A) (2009).
9. 42 U.S.C. §§12102(1)(B),(C).
10. 42 U.S.C. §12132 (1990).
11. 42 U.S.C. §12131(1) (1990); Pennsylvania Dep’t of Corr. v. Yeskey, 524 U.S. 206, 213 (1998) (holding that state prisons are public entities under Title II of the ADA).
12. This is just one theory of discrimination under Title II. A plaintiff may also allege “(1) intentional discrimination or disparate treatment; [and] (2) disparate impact.” See Nat’l Fed’n of the Blind v. Lamone, 813 F.3d 494, 503 n.5 (4th Cir. 2016).
13. 29 U.S.C. §794(a) (2016).
14. Seremeth v. Bd. of Cnty. Comm’rs Frederick Cnty., 673 F.3d 333, 336 (4th Cir. 2012).
15. See, e.g., Gorman v. Bartch, 152 F.3d 907, 912 (8th Cir. 1998) (“Transportation of an arrestee to the station house is thus a service of the police within the meaning of the ADA.”); Seremeth, 673 F.3d at 337–38 (concluding that “the ADA applies to police interrogations”); Haberle v. Troxell, 885 F.3d 170, 180 (3d Cir. 2018); Gray v. Cummings, 917 F.3d 1, 17 (1st Cir. 2019).
16. Hainze v. Richards, 207 F.3d 795, 801 (5th Cir. 2000) (“[W]e hold that Title II does not apply to an officer’s on-the-street responses to reported disturbances or other similar incidents, whether or not those calls involve subjects with mental disabilities, prior to the officer’s securing the scene and ensuring that there is no threat to human life.”).
17. Id.
18. See Waller ex rel. Estate of Hunt v. City of Danville, 556 F.3d 171, 175 (4th Cir. 2009) (applying Title II in fatal police shooting case without deciding whether any exigent circumstances exception to Title II existed); Seremeth, 673 F.3d at 339 (holding Title II applies to investigation of criminal conduct).
19. Seremeth, 673 F.3d at 339 (stating that “nothing in the text of the ADA suggests that a separate exigent circumstances inquiry is appropriate”).
20. Monell v. Dep’t of Social Servs., 436 U.S. 658, 694 (1978); see also Connick v. Thompson, 563 U.S. 51, 70 (2011) (noting that a municipality cannot be held vicariously liable for the actions of its employees but rather is responsible for its own actions).
21. By some accounts, it is more difficult for a plaintiff to prevail against a municipality under a Monell theory of liability than it is for a plaintiff to prevail against an individual defendant asserting a defense of qualified immunity. Nancy Leong, Municipal Failures, 108(2) Cornell L. Rev. 345, 365–69 (2023) (reporting on the success and failure of various Monell theories of liability in 215 federal appellate cases in 2019).
22. Short v. City of Rochester, 2022 WL 17990106, at *5 (W.D.N.Y. Dec. 29, 2022).
23. Id.
24. Estate of LeRoux v. Montgomery Cnty., 2023 WL 2571518, at *12 (D. Md. Mar. 20, 2023).
25. Id.
26. Id. at *16 (collecting cases).
27. See Meg O’Connor, D.C. Violates ADA by Sending Police to Mental Health Crises, The Appeal, July 6, 2023, https://theappeal.org/dc-police-mental-health-crisis-response-aclu-lawsuit/.
28. See 42 U.S.C. §2000d-7.
29. See Short, 2022 WL 17990106, at *5 (“Plaintiffs’ ADA and RA claims address actions taken, and decisions made, before Officer Drake ever fired a shot.”).
30. “‘Sometimes [a] [person]’s need for an accommodation will be obvious,’ and in those circumstances an explicit request for an accommodation is not required in order to establish the obligation to provide reasonable accommodations.” Jarboe v. Maryland Dep’t of Pub. Safety & Corr. Servs., 2013 WL 1010357, at *19 (D. Md. Mar. 13, 2013) (quoting Kiman v. New Hampshire Dep’t of Corr., 451 F.3d 274, 283 (1st Cir. 2006)).