Police Shootings and the Mentally Ill – “Justifiable Homicide?”

Ask any chief of police and they will tell you that a high priority for any of their officers is to deescalate a situation. Cooler heads do prevail and de-escalation can prevent a tense situation from becoming a deadly one. National data collection on police shootings and their various factors have not been collected, but anecdotal evidence, according to a joint report by the National Sheriffs’ Association and Treatment Advocacy Center in 2011, shows that nearly half of all people who are shot and killed by the police each year have mental health issues.

The media has only recently re-ignited the conversation of police misconduct, but the use of excessive deadly force against the mentally ill is unfortunately not a new topic. Recall the schizophrenic man camping in New Mexico who was shot and killed by police in 2014 or the Washington state schizophrenic man who was throwing rocks that was shot in February 2015. In Texas, a Victoria man and army veteran suffering from PTSD was recently shot and killed in April 2015, while another schizophrenic Dallas man was shot by a Dallas police officer in October 2013.

The United States Supreme Court has recently heard arguments in a case involving the shooting of a mentally ill woman in San Francisco (who amazingly survived) titled City and County of San Francisco v. Sheehan. In that case, a mid-50s woman living in a group home with mental illness had an episode and threatened her social worker with a knife. The social worker placed a non-emergency 911 call to aid him in transporting the woman to the hospital for a psychological evaluation and evacuated the group home of all other patients. When the police arrived, they entered her room and she threatened them with a bread knife. The officers entered the room a second time with weapons drawn, deploying pepper spray and shooting her five times at point blank range, despite knowing that officers trained to handle the mentally ill with less-than-lethal force were en route and that she was not a threat to herself.

What may be surprising is that from a Fourth Amendment standpoint, the 9th Circuit determined that the police officers did not use excessive force – or stated differently – that their shooting was constitutional as a matter of law. Just how can this be? That answer could take up an entire semester on civil rights, but this is how police shootings resulting in deaths are ruled “justifiable homicides.” I can imagine this is precisely the reason why Sheehan was pursued under the Americans with Disabilities Act as well as 42 U.S.C. § 1983. Unfortunately, the Supreme Court agreed that the shooting was not excessive force and granted the officers qualified immunity.

I can definitely appreciate how tense that moment might have been. But when an officer knows a person is having an episode, knows that specialist officers are on their way, knows there is no one who can be harmed in the home, there is no exit for this person to harm others, nor that she is a danger to herself, don’t the officers share some responsibility when they escalated an already hostile situation to the point where they believed deadly force was needed?

Rational minds can differ on what could have been done differently – waiting, TASER, rubber bullets, and tranquilizers come to mind, but as the Supreme Court has reiterated time and time again, hindsight is 20/20. These cases are tragic, and even judges lament on the state of the law with regard to the mentally ill and police reactions. See Fifth Circuit Judge Harold DeMoss’ dissents in Elizondo v. Green and Rockwall v. City of Garland as an example.

Typically, the law is slow to change and each and every call police face is unique, which may explain the Court’s reluctance to make bright line rules. I’m hopeful that positive legislation can be made in this regard, but a faster and more simple resolution would be to increase officer training.

In Texas, after the passage of the Bob Meadours Act in 2005, all licensed peace officers were required to receive training regarding de-escalation and crisis intervention for persons with mental illness no later than September 2009. While this is the law of the land, many officers were simply “taught to the test,” so to speak. I have personally witnessed officers testify they only have a general understanding or vague memory as to what the crisis intervention team (CIT) training entailed.

For the families of those with mental illness, there is only so much preparation they can do. Take the case of the Dallas man (cited above) – his mother called 911 and was told that officers trained to deal with the mentally ill were responding to the call, but that’s clearly not what actually happened. Until our nation’s mental health system gets a serious overhaul (which could be a blog post on its own but is outside the scope of this blog), law enforcement agencies will continue to face a growing population of the mentally ill. Training officers to handle these people is an obvious necessity. It’s up to law enforcement agencies to not only train their officers, but also reinforce what they’ve learned in actual practice, and hold them accountable when they don’t. I heard a phrase recently that couldn’t ring more truth – you promote what you permit. Until agencies hold their officers accountable, “justifiable homicide” won’t stop.