Noting a circuit split, the Americans With Disability Act applies to arrests of the mentally ill. Plaintiff stated a claim. Remanded for further proceedings, and likely trial. Sheehan v. City & County of San Francisco, 2014 U.S. App. LEXIS 3321 (9th Cir. February 21, 2014). Summary by the Court:
The panel affirmed in part and reversed in part the district court’s summary judgment and remanded in an action brought under 42 U.S.C. § 1983, the Americans with Disabilities Act, and state law, alleging that police officers violated plaintiff’s rights when they entered her residence without a warrant and shot her after she threatened them with a knife.
The panel held that the officers were justified in entering plaintiff’s home initially under the emergency aid exception because they had an objectively reasonable basis to believe that plaintiff was in need of emergency medical assistance and they conducted the search or seizure in a reasonable manner up to that point. The panel also held that the district court properly rejected plaintiff’s claims of municipal liability under Monell v. Department of Soc. Servs. of the City of New York, 436 U.S. 658 (1978).
The panel held that a jury could find that the officers acted unreasonably by forcing a second entry into plaintiff’s residence and provoking a near-fatal confrontation. The panel held that plaintiff presented a triable issue of the unreasonable use of deadly force under a provocation theory. See Billington v. Smith, 292 F.3d 1177, 1189 (9th Cir. 2002).
The panel held that Title II of the Americans with Disabilities Act applies to arrests and on the facts presented in this case, there was a triable issue whether the officers failed to reasonably accommodate plaintiff’s disability when they forced their way back into her room without taking her mental illness into account or employing generally accepted police practices for peaceably resolving a confrontation with a person with mental illness. Finally, the panel vacated summary judgment on plaintiff’s state law claims and remanded for further proceedings.
From the case, jumping over the Fourth Amendment entry and arrests claims:
[Plaintiff’s expert] Reiter described general police practices for dealing with persons who are mentally ill or emotionally disturbed, explaining that officers are trained not to unreasonably agitate or excite the person, to contain the person, to respect the person’s comfort zone, to use nonthreatening communications and to employ the passage of time to their advantage. He also cited materials used by the San Francisco Police Department to train officers on “appropriate tactical actions” to be used when confronting the mentally ill. These materials, which are germane to the excessive force inquiry because they were designed to protect individuals such as Sheehan from harm, see Scott v. Henrich, 39 F.3d 912, 915-16 (9th Cir. 1994), advise officers to request backup, to calm the situation, to communicate, to move slowly, to assume a quiet, nonthreatening manner, to take time to assess the situation and to “give the person time to calm down.”
. . .
… Viewing the evidence favorably to Sheehan, however, we cannot say that the officers acted reasonably as a matter of law.
. . .
We agree with the majority of circuits to have addressed the question that Title II applies to arrests. The ADA applies broadly to police “services, programs, or activities.” 42 U.S.C. § 12132. We have interpreted these terms to encompass “anything a public entity does.” Barden v. City of Sacramento, 292 F.3d 1073, 1076 (9th Cir. 2002) (quoting Lee v. City of Los Angeles, 250 F.3d 668, 691 (9th Cir. 2001)) (internal quotation marks omitted). The ADA therefore applies to arrests, though we agree with the Eleventh and Fourth Circuits that exigent circumstances inform the reasonableness analysis under the ADA, just as they inform the distinct reasonableness analysis under the Fourth Amendment. See Waller, 556 F.3d at 175 (“Just as the constraints of time figure in what is required of police under the Fourth Amendment, they bear on what is reasonable under the ADA.”).
Courts have recognized at least two types of Title II claims applicable to arrests: (1) wrongful arrest, where police wrongly arrest someone with a disability because they misperceive the effects of that disability as criminal activity; and (2) reasonable accommodation, where, although police properly investigate and arrest a person with a disability for a crime unrelated to that disability, they fail to reasonably accommodate the person’s disability in the course of investigation or arrest, causing the person to suffer greater injury or indignity in that process than other arrestees. See Waller, 556 F.3d at 174; Gohier, 186 F.3d at 1220-21.
Sheehan raises the second type of claim here. She asserts that the officers failed to reasonably accommodate her disability by forcing their way back into her room without taking her mental illness into account and without employing tactics that would have been likely to resolve the situation without injury to herself or others. To state a claim under Title II of the ADA, a plaintiff generally must show: (1) she is an individual with a disability; (2) she is otherwise qualified to participate in or receive the benefit of a public entity’s services, programs or activities; (3) she was either excluded from participation in or denied the benefits of the public entity’s services, programs or activities or was otherwise discriminated against by the public entity; and (4) such exclusion, denial of benefits or discrimination was by reason of her disability. See O’Guinn v. Lovelock Corr. Ctr., 502 F.3d 1056, 1060 (9th Cir. 2007). In a Title II claim grounded in a public entity’s alleged failure to provide a reasonable accommodation under 28 C.F.R. § 35.130(b)(7), the plaintiff bears the initial burden of producing evidence of the existence of a reasonable accommodation. See Vinson v. Thomas, 288 F.3d 1145, 1154 (9th Cir. 2002). A public entity may defeat a reasonable accommodation claim by showing “that making the modifications would fundamentally alter the nature of the service, program, or activity.” 28 C.F.R. § 35.130(b)(7); see Zukle v. Regents of Univ. of Cal., 166 F.3d 1041, 1047 (9th Cir. 1999).
It is undisputed that Sheehan had a disability and that the officers knew it at the time they encountered her. We turn, therefore, to whether the city discriminated against Sheehan by failing to provide a reasonable accommodation during the second entry. Sheehan asserts that the city failed to provide a reasonable accommodation when the officers forced their way back into her room without taking her mental illness into account. She asserts that the officers should have respected her comfort zone, engaged in non-threatening communications and used the passage of time to defuse the situation rather than precipitating a deadly confrontation. We acknowledge that the officers were forced to make split-second decisions. A reasonable jury nevertheless could find that the situation had been defused sufficiently, following the initial retreat from Sheehan’s room, to afford the officers an opportunity to wait for backup and to employ less confrontational tactics, including the accommodations that Sheehan asserts were necessary. For the reasons stated here, and because the reasonableness of an accommodation is ordinarily a question of fact, see EEOC v. UPS Supply Chain Solutions, 620 F.3d 1103, 1110 (9th Cir. 2010), we hold that the city is not entitled to judgment as a matter of law on Sheehan’s ADA claim.
