I. INTRODUCTION
On February 7, 2020, Juston Root, a BlackFootnote 1 man diagnosed with bipolar disorder and schizoaffective disorder,Footnote 2 was shot 31 times by Boston, Massachusetts police officers while he was on the ground, unarmed, seriously injured, and being attended to by EMS personnel.Footnote 3 “Riddled with bullets and covered in blood,” Mr. RootFootnote 4 died at the scene.Footnote 5 The police report did not mention that the responding officers knew from past encounters that Mr. Root likely carried only a paintball or BB gun.Footnote 6
On March 23, 2020, Daniel Prude, a Black man suffering from a psychotic episode, was suffocated by Rochester, New York police officers after running into the street naked yelling that he had COVID-19.Footnote 7 The responding officers handcuffed Mr. Prude who was “obviously in the throes of an acute, manic, psychotic episode,” and rather than calling for medical treatment, put a spit sock over his head and held Mr. Prude down for “over two minutes and 15 seconds” until he stopped breathing.Footnote 8 Left in a “vegetative state” at the scene, Mr. Prude died a week later.Footnote 9
On January 6, 2019, Andre Catrel Gladen, a legally blind Black man diagnosed with schizophrenia, was shot and killed by a Portland, Oregon police officer responding to a call that Mr. Gladen was sleeping on a stranger’s porch.Footnote 10 The officer’s knife, which a witness did not notice on Mr. Gladen during the altercation, was found in Mr. Gladen’s hand after his death.Footnote 11
Mr. Root, Mr. Prude, and Mr. Gladen are but a few of the countless of law enforcement violence with disabilities who died in 2019 and 2020 alone.Footnote 12 At least one third of the people shot and killed by law enforcement each year in the United States have a known disability.Footnote 13 Individuals diagnosed with a mental illnessFootnote 14 are sixteen times more likely to be killed by law enforcement during a police encounter than other individuals.Footnote 15 An updated database of officer-involved shootings finds an astounding 1,529 people “showing signs of mental illness” were shot and killed by law enforcement in the last six years.Footnote 16 This tragic statistic only includes fatal shootings; chokeholds or other non-shooting uses of force, cases where the victim did not die, cases where the victim had undiagnosed mental health issues, and cases where the individual had a physical disability are excluded.Footnote 17 Thus, this database is underinclusive and does not reflect the full implications of police encounters for people with disabilities. For example, Freddie Gray, who had a developmental disability, died in 2015 from a spinal injury after arresting officers gave him a “rough ride” in the back of a police van; his death ignited nation-wide protests, yet his name would not be included in the list of 1,529 victims.Footnote 18 Likewise, in 2020, Max Mitnik, while suffering from a schizoaffective episode, told the responding officer, “I’m going to suffer a lot if I don’t kill myself. Will you please kill me, sir?” Seconds later the officer shot him in the side and the head. Because he survived, his name would also not be included.Footnote 19
Law enforcement violence against individuals with disabilities is a national crisis. Footnote 20 Now that the COVID-19 pandemic has centered public health discussions in mainstream media and discourse, this is the time for intense scrutiny and reckoning.Footnote 21
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Despite these extraordinary rates of violence, law enforcement officers accused of employing excessive force rarely face legal consequences. Seldom are state criminal charges brought against officers perpetrating violence.Footnote 22 Even less often do these charges result in successful criminal prosecution.Footnote 23 Similarly, only in a fraction of cases does the federal government intercede to press criminal charges against officers.Footnote 24 Thus, victims of law enforcement violence or their families seeking restitution on their behalf have only two civil remedies as the primary forms of relief: (1) an excessive force claim under § 1983 of the Civil Rights Act as elucidated in Graham v. Connor;Footnote 25 and (2) an excessive force claim under Title II of the Americans with Disabilities Act (“ADA”).Footnote 26 Section 1983 is the conventional remedy.Footnote 27 Both Mr. Root and Mr. Prude’s families brought lawsuits under § 1983 rather than the ADA.Footnote 28 Yet as this Note demonstrates, even in light of recent reforms, § 1983 leaves gaping holes that fail to protect disabled people—individuals with a significant need for legal protection.Footnote 29 The ADA, despite its broad legislative mandate for the “elimination of discrimination against individuals with disabilities,”Footnote 30 is arguably even less effective than § 1983 when it comes to arrests.Footnote 31
Under Graham, the current § 1983 excessive force test considers three factors:Footnote 32 (1) severity of the crime; (2) immediacy of the threat; and (3) resistance to arrest or attempts to escape. This Note proposes a reformulation of the Graham test to add in a fourth factor inspired by Title II of the ADA: (4) whether “reasonable modifications”Footnote 33 for an individual’s disability were made in situations when law enforcement employs force during the course of an arrest. Recognizing that the Graham factors are “non-exhaustive”Footnote 34 and “flexible,”Footnote 35 this additional factor inspired by the ADA should be an automatic consideration when determining whether excessive force was used. Furthermore, by extending the ADA’s protections beyond those formally recognized as having a disability to all individuals an officer “reasonably should know” have a disability,Footnote 36 even disabilities not formally recognized will be accommodated. Strengthening Graham’s excessive force test will not only protect individuals with disabilities, but also fight to reform § 1983 lawsuits for those suffering from civil rights violations at the hands of law enforcement misconduct. This reform would increase accountability and promote a baseline assumption that law enforcement officers must take an active part in mitigating harm to arrestees.
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This Note proceeds in three main parts. Part II provides an overview of § 1983 as civil rights legislation and the excessive force test under Graham v. Connor, discussing problems with courts’ current application of Graham’s three-factor balancing test as well as its potential for and evidence of reform. Part III discusses Title II of the ADA, underscoring the ADA’s broad mandate to account for disability and highlighting the uncertainty of the ADA’s application during the course of an arrest after City & County of San Francisco v. Sheehan. Footnote 37 Finally, Part IV proposes the new four-factor balancing test that incorporates the ADA’s reasonable modification analysis into Graham’s excessive force test by employing a recent Sixth Circuit case, Estate of Hill by Hill v. Miracle, Footnote 38 as a framework for practical judicial application. This Note concludes with a discussion of how courts should apply the new four-factor test to provide belated justice to the families of Mr. Root, Mr. Prude, and Mr. Gladen, and in the process promote both short- and long-term reform.
Ultimately, this Note does not argue that § 1983, and therefore the application of the new four-factor Graham excessive force test, should replace the right of action for excessive force claims provided by the ADA. Rather, when excessive force claims are brought against law enforcement by arrestees with disabilities, these two rights of action—§ 1983 and the ADA—should be plead together to increase the probability of success and types of available relief.Footnote 39
II. GRAHAM’S EXCESSIVE FORCE TEST—FOUNDATIONAL FRAMEWORK
Section 1983 is a relic of civil rights legislation, specifically enacted to deter official discrimination against marginalized groups. Currently, § 1983 lawsuits often arise in excessive force cases, and are evaluated under Graham’s three-part test. This Note employs the plaintiff from the foundational Graham case, Dethorne Graham,Footnote 40 to examine the practical obstacles for individuals with disabilities succeeding under the Graham test. This Part ends with a brief but necessary discussion of the ways the lower federal courts have interpreted, and in some cases misapplied, Graham and concludes by raising the possibility of capitalizing on these misapplications to reformulate Graham to better accommodate individuals with disabilities.
A. Overview: § 1983 and G raham
The primary means for bringing an excessive force claim against individual state and local law enforcement officers acting in official capacity is 42 U.S.C § 1983.Footnote 41 Section 1983 was enacted in the wake of the Civil War to counteract that era’s equivalent of police brutality—the Ku Klux Klan.Footnote 42 Congress intended to restore civil order in the South and enhance legal protection for Black individuals facing systemic targeted violence.Footnote 43 Section 1983 continues to serve as a remedy to “vindicate[] cherished constitutional guarantees.”Footnote 44 Not only does the statute provide for monetary damages to wronged victims to compensate for their injuries, it also allows for punitive damages and equitable remedies, thereby deterring against future law enforcement misconduct.Footnote 45 “It is important to keep this history … in mind when considering what history courts should rely upon when construing § 1983.”Footnote 46
Section 1983 is not itself a source of substantive rights, but rather provides a right of action for vindicating personal federal rights.Footnote 47 “In addressing an excessive force claim brought under § 1983, analysis begins by identifying the specific constitutional right allegedly infringed by the challenged application of force.”Footnote 48 The Fourth Amendment governs situations where excessive force is used against an individual “seized”Footnote 49 by law enforcement officers.Footnote 50 Seizures “encompass[] a wide range of police activity, from the brief investigative stop short of a full arrest, all the way to the killing of a suspect.”Footnote 51 Where an individual has been seized, any use of force by law enforcement implicates the Fourth Amendment.Footnote 52 “[A]ll claims that law enforcement officers have used excessive force—deadly or not—in the course of an arrest, investigatory stop, or other ’seizure’ of a free citizen should be analyzed under the Fourth Amendment and its ’reasonableness’ standard … .”Footnote 53
Graham v. Connor established a three-factor balancing test for whether an officer’s use of force during a seizure was excessive. The Court weighed (1) the severity of the crime at issue; (2) whether the suspect posed an immediate threat to the safety of the officers or others; and (3) whether they were actively resisting arrest or attempting to evade arrest by fleeing.Footnote 54 These factors are to be considered in “light of the totality of the circumstances” to determine whether the officer’s use of force is reasonable.Footnote 55 This reasonableness calculation is an objective inquiry “judged from the perspective of a reasonable officer on the scene.”Footnote 56 Thus, the officer’s subjective motivations for using force are of no consequence.Footnote 57
At first glance, Graham seems to extend protection to encompass all individuals at the mercy of law enforcement. It significantly expands protection beyond the previous excessive force standard which only allowed claims to proceed where deadly force was used.Footnote 58 The three-prong balancing test avoids per se rules that might categorically exclude particular groups of people or law enforcement actions.Footnote 59 Further, the objective requirement is explicitly intended to deter law enforcement misconduct.Footnote 60 Thus, Graham ensures only objectively reasonable force by law enforcement will be upheld … right?
B. Think Again: Applying Graham
Graham is a perfect illustration of the limited relief actually afforded under the Court’s test. Mr. Graham brought the § 1983 action to recover damages for debilitating injuries sustained when police officers used brutal physical force against him when he was doing absolutely nothing wrong. Mr. Graham, suffering from a diabetic emergency,Footnote 61 had picked up orange juice at his local convenience store to counteract his reaction.Footnote 62 Officers saw him “hastily enter and leave the store” and drive away.Footnote 63 Upon this information alone, the officers made an investigatory stop.Footnote 64 “Graham got out of the car, ran around it twice, and finally sat down on the curb, where he passed out briefly.”Footnote 65 The officers did not call for medical attention. Instead, an officer rolled his unconscious body over and handcuffed him.Footnote 66 They did not provide medical treatment or even sugar to stop his insulin reaction.Footnote 67 One officer said, “I’ve seen a lot of people with sugar diabetes that never acted like this. Ain’t nothing wrong with the M.F. but drunk. Lock the S.B. up.”Footnote 68 The officers lifted the unconscious Mr. Graham up and placed him face down on the hood of his car.Footnote 69 Mr. Graham eventually regained consciousness without any aid from the officers.Footnote 70 Mr. Graham asked to show his diabetic decal to corroborate his innocence, but was told to “shut up.”Footnote 71 His face was again shoved against the hood of his car. He asked for orange juice and the officer responded, “I’m not giving you shit.”Footnote 72 Mr. Graham was ultimately released at the scene without any charges.Footnote 73 Despite the severe trauma he faced, the only injuries Mr. Graham could show for the abuse was a broken foot, cuts on his wrists, a bruised forehead, and an injured shoulder—seemingly minor harms unlikely to trigger an excessive force determination. He claims to have developed a loud ringing in his right ear that continued throughout the Supreme Court hearing, which began five years after the incident.Footnote 74
After the Supreme Court remanded Graham to consider the facts of the case in light of its new excessive force test, the officer’s use of force against the diabetic Mr. Graham was found to be objectively reasonable.Footnote 75
C. Developments, Misapplication and flexing of Graham in the Lower Federal Courts
The indecency to Mr. Graham is but one incident where a victim of law enforcement violence was denied relief under Graham. A circuit split has emerged when applying the Graham test, leading to greater inconsistency.Footnote 76 This Note argues that the lower federal courts have been left without proper guidance with respect to excessive force claims under Graham in at least two areas: (1) application of the three-factor balancing test and (2) the relevant time frame to consider when assessing the totality of the circumstances. Each of these results in inconsistencies that have critical implications for individuals with disabilities. However, the inconsistent application has also demonstrated possible avenues for reform—and even evidence that lower courts have taken advantage of these inconsistencies and Graham’s inherent flexibility to accommodate for disabilities.
1. Inconsistencies with Three Factor Balancing
The Graham three-factor balancing test is consistently misapplied. One lower court may give a factor undue weightFootnote 77 while another completely leaves it out.Footnote 78 Other courts even add additional factors.Footnote 79 Still others may summarily cite Graham without applying any of the factors to hold that no excessive force has been used.Footnote 80 Although collapsing the three factors leaves little room for disabilities to be considered, this history of Graham’s misapplication also hints at the courts’ willingness to bend and flex the three-factor test.
2. Confusion on Totality of the Circumstances
As other scholars have argued, Footnote 81 there is a clear division among the circuits about the time frame considered relevant to the totality of the circumstances analysis. Recall that Graham requires the reasonableness of the officer’s action be assessed “on the scene.”Footnote 82 Yet Graham also highlights the need to weigh the “totality of the circumstances” to determine whether the use of force was reasonable.Footnote 83 “The Circuit courts inevitably resolved this tension in differing ways.”Footnote 84 The First, Third, Ninth and Tenth circuits have moved towards a true totality of the circumstances test that “considers pre-seizure conduct, so long as it is sufficiently connected to the use of force.”Footnote 85 “Once it has been established that a seizure has occurred, the court should examine the actions of the government officials leading up to the seizure.”Footnote 86 The Seventh Circuit seems to have taken a “segmented approach” that “divides the encounter into segments and evaluates each segment for reasonableness in isolation.”Footnote 87 The Second, Fourth, Fifth, and Eighth Circuits have required a much narrower calculation: reasonableness at the moment of seizure.Footnote 88 Here, the pre-seizure conduct of both the arrestee and the officer is not considered. It is unclear whether the Sixth Circuit takes the segmented approach or considers only reasonableness in the moment.Footnote 89 However, even in the Sixth Circuit, there seems to be movement towards a broader approach to the totality of the circumstances.Footnote 90
3. Flexing for Disability?
Acknowledging a need to consider the experiences of individuals with disabilities, and an officer’s responsibility to respond reasonably to potentially differing circumstances, some courts have already made concessions for arrestees with known mental illnesses when calculating the relevant pre-seizure time frame for Graham’s reasonableness analysis.Footnote 91 For instance, the First Circuit has found that “federal courts have afforded a special solicitude to suicidal individuals in lethal force cases.”Footnote 92 Likewise, the Sixth Circuit has noted that “[t]he diminished capacity of an unarmed detainee must be taken into account when assessing the amount of force exerted.”Footnote 93 Perhaps the most clear precedent advocating for courts to consider disability in their excessive force calculations comes from the Ninth Circuit.Footnote 94
In Deorle v. Rutherford, the Ninth Circuit emphatically stated that “where it is or should be apparent to the officers that the individual involved is emotionally disturbed, that is a factor that must be considered in determining, under Graham, the reasonableness of the force employed.”Footnote 95 Furthermore, the individual’s emotional state must be considered even when the individual is “acting out[,] … creating a disturbance or resisting arrest.”Footnote 96 The Court cites to Headwaters Forest Defense v. County of Humboldt, a case involving police use of pepper spray against protestors, where the Court gave special solicitude to the activity the individuals were engaged in, as support for a truer totality of the circumstances calculation.Footnote 97 Other circuits have since followed Deorle to explicitly consider the emotional state of victims of law enforcement violence when balancing the Graham factors.Footnote 98 Thus, adhering to Graham’s original intention of flexibility, at least some of the lower courts seem receptive to a relaxation and perhaps even a reformulation of Graham in circumstances involving individuals with disabilities.
Furthermore, although an in-depth discussion of the qualified immunity doctrine is beyond the scope of this Note, especially as other scholars have admirably critiqued its application in the excessive force context,Footnote 99 it is critical to pause and consider the implications of Graham’s flexibility for overcoming the qualified immunity hurdle. The Supreme Court has noted that “Graham do[es] not by [itself] create clearly established law outside ’an obvious case’”Footnote 100 for the purposes of overcoming qualified immunity.Footnote 101 Instead, for a constitutional violation to be considered clearly established, “existing precedent must have placed the statutory or constitutional question beyond debate.”Footnote 102 This “obvious case” requirement creates a huge impediment for excessive force cases involving individuals with disabilities because the issues and facts presented may be unique to one’s disability and its effects, and thus not fit into established precedent.Footnote 103 Yet, relying on Deorle, the Fifth Circuit precluded qualified immunity at the summary judgment phase to officers who shot and killed a man carrying a screwdriver in the midst of a “mental episode” who “believed that if his feet touched the ground while the sun was out, he would die”Footnote 104—far from an obvious case under Graham. Furthermore, in Sheehan v. City & Cnty. of San Francisco,Footnote 105 a case involving an excessive force claim of an individual shot as she was being involuntarily detained in the midst of a schizoaffective incident, the Ninth Circuit found that “Graham, Alexander and Deorle would have placed any reasonable, competent officer on notice”Footnote 106 that their barging into her room constituted excessive force, thus denying qualified immunity at the summary judgment stage. The Supreme Court ultimately reversed the Ninth Circuit’s decision, granting the officers qualified immunity because the three cited cases were insufficient to establish the “robust consensus of cases of persuasive authority”Footnote 107 needed to constitute clearly established precedent. The Court offered assurance that it did not address the constitutionality of the use of force only because it had not been adequately briefed.Footnote 108 Thus, the Court’s implied willingness to consider the constitutional issues could have dramatic implications for qualified immunity analysis in the future.
Even more recently, the Second Circuit overturned a grant of qualified immunity to police officers responding to a life alert call from an “emotionally disturbed person” who was suffering from “hallucinations[] and flashbacks to his time of military service.” Footnote 109 The man held a knife through a crack in his front door, and warned the officers that he needed to protect himself—the officers fatally shot him.Footnote 110 Given these decisions “clearly establishing”Footnote 111 favorable precedent, along with the Supreme Court’s hints at relaxing the qualified immunity doctrine,Footnote 112 this once insurmountable obstacle may no longer be a bar to flexing the full potential of Graham in the disability context.
III. TITLE II OF THE ADA—ALTERNATIVE RELIEF?
This Part considers how recent procedural reforms may now allow plaintiffs to bring excessive force lawsuits under Title II of the ADA. Despite the ADA’s broad mandate to protect those with disabilities,Footnote 113 many plaintiffs and even some courts apparently do not recognize the ADA as a possible available vehicle for excessive force lawsuits.Footnote 114 The novelty of this approach and the uncertainty regarding the ADA’s application to arrests should not deter plaintiffs’ attempts to bring such claims. Rather, these obstacles support this Note’s proposal to harness Graham’s flexibility to construct a judicial rather than legislative framework to incorporate the ADA’s intentions to protect individuals with disabilities from government misconduct.Footnote 115 Furthermore, this Note lends support to the advancement of rights of action under the ADA, in tandem with those under § 1983 for excessive force claims.Footnote 116
A. Overview: Title II and the ADA
The ADA was enacted with the “noble purpose” of protecting those with mental and physical disabilities against government misconduct.Footnote 117 Congress intended to “provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities” through “strong, consistent, enforceable standards addressing discrimination against individuals with disabilities.”Footnote 118 Under the ADA, “[t]he definition of disability … shall be construed in favor of broad coverage … to the maximum extent permitted.”Footnote 119 The ADA, passed in 1990, is considered derivative of the Civil Rights Act of 1964, which provided critical protections to prevent discrimination of marginalized groups but did not include legal protection for individuals with disabilities.Footnote 120 The ADA guarantees public accommodations on the basis of one’s disability; Title II of the ADA specifically protects against discrimination by public entities in state and local government.Footnote 121
Although not explicitly stated in the ADA text, Department of Justice (“DOJ”) regulations implementing the ADA—promulgated in 1994 pursuant to statutory directiveFootnote 122 and entitled to great deference by the reviewing courtsFootnote 123—convey that Title II was intended to apply to law enforcement entities:
Discriminatory arrests and brutal treatment are already unlawful police activities. The general regulatory obligation to modify policies, practices, or procedures requires law enforcement to make changes in policies that result in discriminatory arrests or abuse of individuals with disabilities.Footnote 124
Congress supports this expansive interpretation of Title II.Footnote 125 The legislative intent to apply Title II to law enforcement received judicial acceptance in the 1998 case Pennsylvania Department of Corrections v. Yeskey, where the Court held that incarcerated individuals with disabilities were receiving a direct benefit from the government by virtue of their incarceration and thus the actions of state prisons and corrections officers were subject to Title II.Footnote 126 Although Yeskey addressed only state prisons and corrections officers, Justice Scalia’s expansive interpretation of Title II has since been interpreted to include other forms of law enforcement as public entities.Footnote 127
1. Procedure: Title II Excessive Force Claims
The ADA contains its own right of action provision to allow direct private or government civil suits against public entities without reliance on § 1983.Footnote 128 To bring a claim under Title II of the ADA, plaintiffs must demonstrate that (1) they are a qualified individual with a disability;Footnote 129 (2) they were either excluded from participation in or denied the benefits of some public entity’s services, programs, or activities, or were otherwise discriminated against by the public entity; and (3) such exclusion, denial of benefits, or discrimination was by reason of their disability.Footnote 130
The lower courts have recognized two ways a plaintiff can bring a claim under Title II for law enforcement misconduct during an arrest.Footnote 131 First, the “wrongful arrest” approach applies where law enforcement officers wrongly arrest an individual with a disability because the officers misinterpret the individual’s actions resulting from their disability as criminal activity.Footnote 132 This approach requires the individual to be engaged in otherwise lawful activity when arrested.Footnote 133 Second, the “reasonable accommodation” approach arises where law enforcement officers seize an individual for actual perceived criminal activity not directly resulting from their disability, but nevertheless fail to reasonably accommodate for the individual’s disability during the course of their investigation or arrest.Footnote 134 The reasonable accommodation approach requires law enforcement to make any “reasonable modifications” that would neither fundamentally alter the nature of the service or activity of the public entity, nor impose an undue burden on law enforcement officers when interacting with individuals with perceived disabilities.Footnote 135 This Note focuses on this second reasonable accommodation approach because it encompasses the excessive force analysis.Footnote 136 According to U.S. Senator Larry Craig, an ADA framer writing shortly after its passage, “[t]he application of the ADA’s generally-worded requirements relies on the ’reasonableness’ tradition of the common law.”Footnote 137 This reasonableness analysis, now codified through the ADA, harkens back to the constitutional principles embodied in the Graham test.Footnote 138 Thus, the reasonable accommodation approach is the appropriate lens to analyze excessive force lawsuits brought under the ADA.
2. Direct Threat Exception to Title II
The ADA has a limited case-by-case exception to bar relief in reasonable accommodation claims. Department of Justice Title II regulations mandate that law enforcement make reasonable accommodations unless an affirmative “direct threat” defense is raised.Footnote 139 A law enforcement officer is not liable if the arrestee was found to be a direct threat such that there was a “significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.”Footnote 140 This determination requires a case-by-case objective assessment of the “the nature, duration, and severity of the risk; the probability that the potential injury will actually occur; and whether reasonable modifications of policies, practices, or procedures or the provision of auxiliary aids or services will mitigate the risk.”Footnote 141 If reasonable modifications could have mitigated the risk, the direct threat exception does not excuse an official’s failure to provide them.Footnote 142 Lower courts have held that there is no good faith exception to the direct threat assessment; rather, the objective reasonableness of the threat is considered based on the best available medical and scientific evidence.Footnote 143 The limited scope of this exception demonstrates the broad protection intended by the ADA framers and their baseline understanding that reasonable accommodations to individuals with disabilities must be provided during the course of law enforcement interactions.Footnote 144
3. Defining Disability
Adhering to the ADA’s sweeping intentions, disability is defined as “a physical or mental impairment that substantially limits one or more major life activities; a record of such an impairment; or being regarded as having such an impairment.”Footnote 145 An individual meets the requirement of “being regarded as having such an impairment” if they establish they have been discriminated against “because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.”Footnote 146 Although the ADA states that reasonable modifications need not be provided to one who is “regarded as” having a disability,Footnote 147 DOJ guidelines explicitly wrote this requirement back in, maintaining that law enforcement officers must provide reasonable accommodations for those “regarded as” having a disability in the dispatch of their duties.Footnote 148 In 2017, the DOJ issued further direction that this reasonable accommodation duty applies wherever a law enforcement officer “knows or reasonably should know that the person has a disability.”Footnote 149 Considering the broad legislative mandate and Congress’s deference to DOJ guidance, this Note will employ the DOJ’s interpretation when formulating the Graham test. For the purpose of this Note, disability includes all those an officer knows or reasonably should know has a disability.
B. Barriers to Title II Excessive Force Claims
Despite the ADA’s broad legislative intent, bringing an excessive force lawsuit under the ADA is difficult for both elemental and procedural reasons, briefly outlined below. These barriers may underlie the reason that excessive force claims are rarely plead through the ADA.Footnote 150
1. Definition of Disability
First, plaintiffs must prove they are disabled within the meaning of the ADA.Footnote 151 The Supreme Court’s early cases interpreted disability narrowly.Footnote 152 The ADA Amendments Act of 2008 (“ADAAA”) was a direct response to these harsh decisions. The ADAAA expanded the definition of “major life activities” for the purpose of disability to include activities ranging from “caring for oneself,” “speaking,” and “thinking” to “major bodily function[s] including but not limited to, functions of the immune system, normal cell growth, digestive, … and reproductive functions.”Footnote 153 The ADAAA mandates that “[t]he definition of disability … shall be construed in favor of broad coverage of individuals … to the maximum extent permitted.”Footnote 154 Its express goal was to “[t]o restore the intent and protections of the Americans with Disabilities Act of 1990”Footnote 155 in light of the Court’s initial strict interpretation.Footnote 156
Yet lower courts have still cut back.Footnote 157 For instance, despite the ADAAA’s expansive list of examples of qualifying impairments, several subsequent decisions do not recognize PTSD or depression as constituting a disability within the meaning of the ADA.Footnote 158 Dean Nicole Buonocore Porter asserts that some courts appear “unaware that the ADA was amended in 2008,” and instead continue to apply the pre-ADAAA definition.Footnote 159 It remains to be seen how the Supreme Court interprets disability because the examples provided in the ADAAA are non-exhaustiveFootnote 160 and the Court has not yet granted certiorari on a case concerning an unenumerated disability.Footnote 161
2. Intentional Discrimination
Second, to bring a claim under Title II, courts require plaintiffs to demonstrate that the officer intentionally discriminated on the basis of that disability.Footnote 162 “Before a public entity can be required under the ADA to provide a disabled individual an auxiliary aid or service, a public entity must have knowledge of the individual’s disability and the individual’s need for an accommodation.”Footnote 163 This requirement has survived the amendments under the ADAAA.Footnote 164 Proving intentional discrimination is a high bar to recovery.Footnote 165 Poor law enforcement training can thus be a double-edged sword against a plaintiff’s success under the ADA, as officers who lack competency to engage with arrestees with disabilities may not recognize a need for reasonable accommodations, thus barring any recovery due to the intentional discrimination requirement.Footnote 166
3. Type of Relief
Unlike § 1983 lawsuits, in order to award compensatory damages under Title II, the officer’s discrimination must be intentional.Footnote 167 Courts may consider good faith efforts to comply with Title II when calculating the availability of damages.Footnote 168 The Circuits are split as to what level of discrimination constitutes intentional discrimination sufficient to collect damages.Footnote 169 In addition, punitive damages are unavailable under the ADA.Footnote 170 Thus, “Title II … plaintiffs are able to recover damages only in the unusual case.”Footnote 171 Although injunctive relief, where available,Footnote 172 is a fallback option, such forward-looking relief provides negligible comfort and protection to those already harmed by law enforcement use of excessive force. Particularly when so many cases involving individuals with disabilities tragically result in their deaths.Footnote 173
4. Individual liability
In contrast to § 1983, the ADA does not allow officers to be held personally liable for their misconduct.Footnote 174 “The law is well settled that individuals, sued in their official capacities, are not ’public entities’ under the ADA and are not subject to liability under Title II of the ADA.”Footnote 175 Thus, “Title II of the ADA applies to services, programs, and activities”Footnote 176 but not to individual officers. Considering the deterrent effect of individual liability on officers’ actions, Footnote 177 this limitation to the ADA is a huge impediment not only to immediate relief but to lasting reform.
5. Applicability to Arrest
Clearing these barriers, a plaintiff may still face the biggest obstacle to recovery under the ADA: Title II may not even apply to excessive force claims. The Supreme Court has declined to determine whether Title II requires reasonable accommodation of disabilities when effectuating an arrest.Footnote 178 In Sheehan, the Court avoided analyzing the ADA question due to a procedural issue with the appellant’s argument.Footnote 179 The appellant city argued that Title II does not require reasonable accommodations where an arrestee poses a “direct threat” to the officers, thus implicitly conceding that Title II generally applies to arrests. However, the Court dismissed the question of whether Title II applies to arrests as improvidently granted.Footnote 180 The lower courts remain split as to whether Title II applies in arrest situations.Footnote 181 Although most circuits favor applying Title II to arrests without exception, there is no sign that this split will be resolved any time soon.Footnote 182 As other scholars have extensively analyzed the circuit split encapsulated in the Sheehan decision, this Note will not dwell on the possibility that the ADA is unavailable for law enforcement misconduct during arrests.Footnote 183 Recognizing the possibility that a court may not allow the ADA claim to proceed, this Note nevertheless argues that plaintiffs should attempt to bring causes of action under the ADA in addition to § 1983, thereby increasing the possibility of success and types of relief. Failing everything else, evaluating ADA excessive force claims would create new case law for future excessive force lawsuits.
IV. REFORMULATING GRAHAM: REASONABLE ACCOMMODATIONS FOR EXCESSIVE FORCE CLAIMS
Justice Alito’s majority opinion in Sheehan, even while dismissing the ADA question as improvidently granted, raises avenues of radical change for future Graham excessive force lawsuits. Justice Alito acknowledges:
[T]he relevant provision of the ADA [Title II] may “requir[e] law enforcement officers to provide accommodations to an armed, violent, and mentally ill suspect in the course of bringing the suspect into custody.” This is so because there may be circumstances in which any “significant risk” presented by “an armed, violent, and mentally ill suspect” can be “eliminated by a modification of policies, practices or procedures, or by the provision of auxiliary aids or services.Footnote 184
This “significant risk” analysis, directly derived from the ADA’s direct threat defense,Footnote 185 closely aligns with the text of the Graham test.Footnote 186 As discussed, the immediate threat to the safety of law enforcement officers under Graham is part of a totality of the circumstances calculation, controlling for the individual characteristics of an arrestee. If an individual has a disability, then logically their disability and its potential effects on the individual’s actions should be, and has been,Footnote 187 considered in Graham’s flexible totality of the circumstances calculation. The ADA also provides broad statutory guidelines on how to consider the legal implications of an individual’s disability. Thus, any time an excessive force claim is brought, under Graham via § 1983 or directly under Title II of the ADA, this Note argues that the direct threat provisions and the possibility of reasonable accommodations as considered in Sheehan must be included in the court’s analysis.Footnote 188
When making this potentially agitative argument, it must be emphasized that this would not be the first time that courts have acknowledged the “inapplicability of the Graham three-factor test” in particular circumstances. Footnote 189 The next Part provides a brief overview of a recent Sixth Circuit case, Estate of Hill by Hill v. Miracle, that capitalizes on the flexibility of the Graham test to modify it for the medical emergency context.Footnote 190 Just like Miracle’s modified test, this Note’s proposed four-factor test for excessive force claims would gain acceptance through judicial notice and application.Footnote 191
A. Guidelines: the Sixth Circuit Miracle
In a 2017 case, Estate of Hill by Hill v. Miracle, the Sixth Circuit proposed that a “more tailored set of factors [than Graham] be considered in the medical-emergency context.”Footnote 192 In facts eerily similar to those of Graham, the Miracle Court confronted the question of whether a police officer used excessive force when he tased Mr. Hill, who was suffering from a diabetic emergency as paramedics attempted to treat him in his own house.Footnote 193 The officer claimed that he tased the “increasingly combative” Mr. Hill to allow paramedics to intravenously administer dextrose, which counteracted Mr. Hill’s diabetic reaction.Footnote 194 The officer purposely removed the hooks from the taser to “minimize [the] damage” and subdue Mr. Hill.Footnote 195 After administering the dextrose, Mr. Hill was then transferred to the hospital and given appropriate care.Footnote 196
In reaching its conclusion that the officer’s use of force was reasonable under the circumstances, the Sixth Circuit first noted that the traditional Graham three-factor test was not conducive to the medical emergency context because an individual suffering from a medical emergency did not commit any crime and is not resisting arrest—applying Graham to assess the officer’s use of force would be the “equivalent to a baseball player entering the batter’s box with two strikes already against him.”Footnote 197 The Sixth Circuit thus expanded Graham’s three factors to consider (1) whether the person was experiencing a medical emergency that rendered him incapable of making a rational decision under circumstances that posed an immediate threat of serious harm to himself or others; (2) whether some degree of force was reasonably necessary to ameliorate the immediate threat; and (3) whether the force used was more than reasonably necessary under the circumstances.Footnote 198 In formulating its new test, the Sixth Circuit adhered to Graham’s “ultimate goal of determining ‘whether the officers’ actions are objectively reasonable in light of the facts and circumstances confronting them.’”Footnote 199 The Miracle test has since been recognized in other circuits in the medical emergency context.Footnote 200
B. Reformulating Graham: Four-Factor Test
In response to the Court’s analysis in Sheehan, the Graham test must be expanded using Miracle as a guiding framework. Similar to the general medical emergency context, the Graham three-factor test is inapplicable to cover the totality of the circumstances surrounding arrests of individuals with disabilities. Here too, the Graham factors may “automatically weigh”Footnote 201 against an arrestee in almost every context.
As discussed, Graham is an objective evaluation from the officer’s perspective.Footnote 202 To the arresting officer, who lacks knowledge of their identity, some individuals with disabilities may ostensibly appear threatening.Footnote 203 Take the victims discussed in the introduction for instance: Mr. Prude’s “babbling” about COVID-19 may have increased the perceived severity of his actions and his attempts to spit at the officers as resisting arrest, without actually increasing the threat to the officers or public safety.Footnote 204 Furthermore, law enforcement officers may perceive individuals as resisting an otherwise lawful arrest when in fact the person is simply responding in a manner reflective of their disability. Footnote 205 The officer who shot and killed Mr. Gladen as he trespassed on a stranger’s property may not have recognized his stumbling as resulting from his blindness, but rather as efforts to resist arrest, flee, or threaten the officer.Footnote 206 Thus, to employ the Miracle analogy, individuals may be striking out before they even step up to bat.
Recognizing that the Graham factors are “non-exhaustive … and not necessarily dispositive in every case,”Footnote 207 this Note proposes a new test, keeping in mind that “additional considerations aid the ultimate inquiry of ‘whether the totality of the circumstances justified a particular sort of … seizure.’”Footnote 208 Under this Note’s four-factor test, law enforcement’s use of force against an arrestee where an officer “knows or reasonably should know that the person has a disability”Footnote 209 should be considered in light of (1) the severity of the crime at issue; (2) whether the arrestee poses an immediate threat to the safety of the officers or the public; (3) whether the arrestee is actively resisting arrest or attempting to flee; and (4) “whether reasonable modifications of policies, practices, or procedures or the provision of auxiliary aids or services will mitigate” the immediate threat to the safety of the officers or others.
This additional factor, taken from the ADA’s direct threat case-by-case reasonable accommodation analysis, should be an automatic consideration when determining whether excessive force is used against an individual the officer “reasonably should know” is disabled—whether formally recognized or not—during the course of an arrest. Not only is this interpretation of disability in line with the ADA’s intent, expanding Graham to account for disability actively supports the ADA’s broad definition of disability.Footnote 210 In cases where an officer reasonably should know an individual is disabled, this fourth factor is a necessary element to determine whether the officer’s use of force was objectively reasonable.Footnote 211 Using this test, Mr. Graham would have been able to obtain relief because the officers admitted they knew he was diabetic.Footnote 212
Incorporating the ADA’s reasonable accommodation considerations as a fourth Graham factor creates a baseline assumption that law enforcement officers must take an active part in mitigating against the risks posed by an arrestee with disabilities. An officer must reasonably accommodate an individual’s disability during an arrest before using a greater degree of force or be held responsible. This test, just like the considerations for the direct threat exception and the Graham three-factor test, is an objective analysis. Recognizing the “split second decisions”Footnote 213 that officers in the field must make, officers nevertheless have a duty to mitigate against danger to individuals when effectuating an arrest. Reasonable accommodations should be considered before, during, and after an arrest.
Ultimately, this new Graham four-factor balancing test would be more inclusive of individuals with disabilities. Applying this fourth factor in situations where officers should reasonably know the individual has a disability, the courts can avoid the difficulty of defining “disability” within the meaning of the ADA for excessive force claims. Under Graham, the totality of the circumstances is an objective inquiry from the officer’s point of view.Footnote 214 Therefore, this reasonableness analysis is too.
Furthermore, considering reasonable accommodations when assessing an officer’s use of force is consistent with international standards.Footnote 215 For instance, in a test reminiscent of Graham, Canadian courts allow officers to use force against a fleeing suspect only where “flight cannot be prevented by reasonable means in a less violent manner.”Footnote 216 In Puricelli v. Toronto Police Services Board, the Ontario Superior Court of Justice found that this test requires that law enforcement must “explain why an obvious alternative but less dangerous course of action was not taken.”Footnote 217 The International Association of Chiefs of Police recommends special accommodations when engaging with individuals with mental health issues, including efforts to “avoid physical contact.”Footnote 218 These guidelines are in accordance with United Nations standards which require considerations of “alternatives to the use of force … in proportion to the seriousness of the offence and the legitimate objective to be achieved.”Footnote 219
Using these international standards, the Miracle test, and this Note as touchstones to formulate this enhanced reasonableness inquiry, courts have the tools in place to implement the four-factor test themselves. Rather than relying on the legislative process and face future judicial erosion, the dangers of which have been demonstrated through the ADA and the ADAAA,Footnote 220 the courts must assume responsibility to hold officers liable for excessive force claims. Again, this Note is not arguing that this new test should replace the ADA. Instead, when excessive force claims are brought, § 1983 and ADA rights of action should be pled together.
C. Application: Relief and Reform
Implementing the reformed Graham four-factor balancing test would encourage better law enforcement practices and training while also deterring law enforcement misconduct. Unlike the ADA, officers accused of using excessive force may be held individually liable under Graham through § 1983 lawsuits.Footnote 221 Combined with the tide in favor of overruling qualified immunity,Footnote 222 law enforcement officers would have overwhelming incentive to provide reasonable accommodations for individuals with disabilities during the course of an arrest. Considering the shift toward a true totality of the circumstances test under Graham,Footnote 223 reasonable accommodations are clearly relevant to whether the officer’s use of force is excessive.
1. Individual Officers: Reasonable Accommodations
Officers have the tools and techniques available to make reasonable accommodations sufficient to satisfy the test’s fourth factor, and in doing so mitigate law enforcement abuse of individuals with disabilities. In many cases, an officer’s common-sense actions when engaging with individuals with disabilities, if objectively reasonable, are sufficient.Footnote 224 For instance, where law enforcement is responding to requests for medical health care assistance, sending trained officers is the appropriate response.Footnote 225 DOJ Guidelines suggest that when engaging with individuals with mental health issues, officers should first try to provide time and space to de-escalate the situation.Footnote 226 For Mr. Root, these simple steps would probably have made the difference between life and death. Lying on the ground, bleeding profusely, and being attended by EMT personnel, Mr. Root presented no threat to the officers.Footnote 227 Reasonable accommodations were simple: step back and let the EMT personnel already at the scene handle the situation. Mr. Prude also could have lived if officers implemented reasonable accommodations. On the ground, bleeding, and already handcuffed, the officers should have just stepped back and allowed Mr. Prude to “babble” until mental health professionals took over.Footnote 228 As one mental health expert said when asked what he would have done to respond to Mr. Prude’s behavior, “Change your tone of voice, your body language, hell, you might have to get on the ground with him! Give him eye contact. All of that is so important when deescalating such a scale of an event … He was not well.”Footnote 229 Even the New York State Attorney General, who declined to press charges against the involved officers, agreed that “Daniel Prude was in the throes of a mental health crisis, and what he needed was compassion, care and help from trained professionals … Tragically, he received none of those things.”Footnote 230 Yet, the officers made no efforts to calm the restrained Mr. Prude. Instead they repeated yelled at him to “stop spitting”Footnote 231 as they wrapped a sock around his head and made jokes at his expense as they suffocated him to death.Footnote 232
2. Agency Training: Reasonable Accommodations
Likewise, law enforcement agencies themselves would have increased incentive to implement reasonable accommodation training if officers could be held individually liable for failing to account for disabilities. As the Police Executive Research Forum, an organization of police executives from the United States’ largest local law enforcement agencies, recognizes: “Graham v. Connor is the common denominator across the United States. All police agencies must have use-of-force policies that meet Graham’s standards.”Footnote 233 By reformulating Graham, the bar for law enforcement agencies would be raised nationwide.
Existing disability engagement training is insufficient.Footnote 234 For instance, Rochester’s supposedly “effective” Crisis Intervention Team (“CIT”),Footnote 235 did not recognize Mr. Prude’s mental health emergency and failed to apply de-escalation tactics. Instead, they blamed Mr. Prude’s behavior on illegal drug use,Footnote 236 handcuffed him, held him down with the combined weight of two officers, and suffocated him.Footnote 237 Mr. Prude’s family lawsuit reveals that instead of expending resources on legitimate crisis intervention training, the Rochester Police Department paid for its officers to attend a training by a self-proclaimed “police psychologist,” known for training officers in “various ex post justifications for their unlawful use of force.”Footnote 238 The police psychologist who conducted the training has been forbidden from testifying in other law enforcement misconduct trials.Footnote 239 Incorporating the ADA’s reasonable accommodation analysis, which requires medical or scientific evidence to justify an officer’s actions, would discourage such shoddy attempts at providing excessive force training.Footnote 240 Furthermore, appropriate training would put officers on notice of whether their use of force is reasonable under Graham. Footnote 241
Less than a year after Mr. Prude’s death, on January 29, 2021, the Rochester Police Department again made headlines, this time for pepper spraying a nine-year-old girl in the midst of a mental health crisis.Footnote 242 At least six officers, responding to a call that the child was suicidal, handcuffed her to bring her to the hospital. In responding to her cries, “I want my dad!” an officer retorted, “You’re acting like a child.” When she refused to get into the police car, an officer shot pepper spray directly into the girl’s eyes. Three officers have been suspended, but no department-wide initiatives have yet taken place.Footnote 243 It is all too clear that the Rochester Police Department has failed to account for disabilities again and again. A better test needs to be in place.
When implemented correctly, CITs have high rates of success effectuating arrests involving individuals with disabilities without resorting to excessive force.Footnote 244 Although studies have had difficulty measuring the decreased use of force in law enforcement agencies with CITs, research demonstrates “improvement in attitudes and a reduction of stigma in police officers who received mental health training.”Footnote 245 In a Canadian study, use of de-escalation techniques by one police department were demonstrated to decrease use of force against individuals with mental disabilities by 40 percent.Footnote 246 Recent settlement agreements with the DOJ have resulted in increased use of CITs.Footnote 247 In 2019, the United States had 2,700 reported CIT programs, representing 15 to 17 percent of the total number of law enforcement agencies.Footnote 248 Specific use-of-force curriculums to augment CITs have also been successful.Footnote 249 Justice Sotomayor even acknowledged during oral arguments for Sheehan the availability of CITs as a reasonable accommodation.Footnote 250
The benefits of CIT training extend to physical disabilities. For instance, when responding to a blind arrestee, Seattle officers would rely on their training to “consider all information reasonably available to them when determining how to communicate with an individual with a disability”Footnote 251 and to “not always assume that effective communication is being achieved.”Footnote 252 This policy is in line with the DOJ ADA guidelines.Footnote 253 If Portland had such a policy, implemented correctly, Mr. Gladen may well still be alive.
Recognizing that none of these law enforcement solutions are replacements for an adequate mental health care system, courts should encourage non-law enforcement solutions as well to accommodate for disabilities when responding to calls. Diversion programs, or those that…, are gaining ground.Footnote 254 These programs are also appropriate reasonable accommodations to satisfy the fourth factor of this Note’s test.
When “Yeah, I killed that motherf**ker,”Footnote 255 is an officer’s response to killing someone, there is a serious issue to be addressed. As this Note has demonstrated, failure to accommodate for disability is another issue in need of reform. When officers know or reasonably should know of an arrestee’s disability, the use of reasonable accommodations must be taken into account using the flexibility of the Graham test to satisfy the broad government mandate under the ADA to account for disability.
V. CONCLUSION
Traditional § 1983 procedure for excessive force cases, even in light of recent reforms, leaves gaping holes that fail to protect people with disabilities. The proposed four-factor Graham reformulation, which incorporates the ADA reasonable accommodation baseline consideration, expressly acknowledged by the Supreme Court in Sheehan, has the potential to promote substantial reform. This Note has demonstrated how the inclusion of this fourth factor would have altered the outcomes of past cases of law enforcement violence against people with disabilities and would promote greater justice moving forward. The Court has the duty to implement this logical extension of its precedent, resolving multiple circuit splits in the process, to make uniform law that is ultimately more inclusive.
