Police Violence Remains One of the Biggest Threats to the Lives of Disabled People
Disabled people of color are disproportionately impacted by police violence and police killings despite the existence of the ADA.
By Jamelia Morgan
Last month, disability rights advocates everywhere celebrated the thirty-third anniversary of the passage of the Americans with Disabilities Act. The watershed civil rights law was a pivotal moment in the movement for equality, access, and inclusion for disabled people. In signing the bill, Congress affirmed its commitment to turning away from the shameful history of segregation, isolation, and exclusion that characterized the experience of many people with disabilities in U.S. society.
For some, the passage of the ADA signaled a shift away from these past histories of abuse and state violence. In reality, the passage of the ADA did not designate a complete break with the past. Nowhere is this clearer than with the endemic problem of policing as it relates to disabled people.
With shocking regularity, law enforcement kills people experiencing (or labeled as experiencing) mental health crisis. Disabled people of color are disproportionately likely to die in encounters with police. The pattern tends to unfold in the following manner: a concerned relative or neighbor calls 911 — or, in some jurisdictions, 988 — seeking help with a relative who is believed to be experiencing a mental crisis. The relative might even specify that the individual is not dangerous, or not committing a crime, but indicates that the person needs help in the form of a mental health evaluation, crisis stabilization, or treatment¹. Armed officers are dispatched to the scene. Understandably, the individual in crisis (or labeled in crisis) is alarmed, scared, defiant, and resists. Officers perceive the individual to pose a threat or danger. The armed officers react violently, seriously injuring or killing the person.
In the 2020 uprisings following the police killing of George Floyd, many jurisdictions adopted policies to bring an end to these tragedies. Many jurisdictions adopted co-responder programs and alternative responder programs to respond to individuals in crisis. Some jurisdictions adopted or enhanced efforts to staff and provide resources for specialized “mental health units” to respond to calls involving individuals in crisis. These specialized units have been touted as an important reform measure.
But reforms tend to not lead to transformative change and, if anything, tend to maintain the status quo. Where police mental health units exist, they might not be dispatched due to miscommunications between the caller and the dispatch operator, staffing shortages, or other errors. More importantly, though media accounts neglect to emphasize this point, mental health units within police departments are still police units. And they are often armed and dangerous. In jurisdictions that have adopted them, they are touted as specialized units qualified to perform functions appropriate to respond to individuals in mental crisis. But these units are simply specialized police units, most likely trained to respond according to their comparatively few hours of crisis intervention training. With these structural failures, it is no wonder why these mental health units, and their equivalents in state psychiatric hospitals, often kill the same people they are supposedly trained to help.
Despite the obvious impact on disabled people, police violence of this kind and magnitude is rarely framed as violating the ADA. But indeed, it does. Police departments have a duty to provide reasonable modifications to policies and procedures under Title II of the ADA. Failure to provide reasonable modifications to individuals in crisis constitutes discrimination under Title II. In the current status quo, where police remain involved in mental health crisis response, these accommodations can include engaging in de-escalation tactics and communication strategies that eliminate the purported need for police to use force or threats of force. It also can include a requirement that police departments deploy diversionary (non-law enforcement) units like alternative responder programs. In jurisdictions that have an alternative responder program, deploying that unit when eligibility criteria are met should be a reasonable modification. For example, if the alternative responder program requires that the mobile crisis unit be deployed instead of law enforcement where there is no threat of violence and no crime being committed, failure to deploy this unit should easily constitute a violation of the police department’s duty to provide a reasonable modification under Title II.
These examples are, in some ways, low hanging fruit for ADA enforcement. A straight read of Title II case law would support these kinds of legal arguments brought by any aggrieved plaintiff. But harder cases abound — at least from the standpoint of reviewing courts. Courts have limited the duty of officers to provide reasonable modifications to non-emergency matters, even with no inquiry as to whether the police themselves created the emergency that they later claimed prevented them from providing accommodation. Courts have also failed to consider how disability stereotypes might skew how they evaluate law enforcement conduct during the encounter with the person in mental crisis (or labeled in crisis).
But there are more transformative approaches to using the ADA as a tool to contest police brutality and misconduct. Under a disparate impact theory of liability, could the failure to respond to systemic abuses and rights violations of people with disabilities within a state or local jurisdiction constitute a violation of Title II? In prior work, I’ve argued that it does. How about the failure of a police department to remedy and respond to instances of abuse against disabled people as violative of the ADA’s antidiscrimination prohibition? Likely so. As court filings and media accounts of violent encounters with disabled people suggest, officers inflict ableism-specific forms of abuse as reflected in their use of slurs and taunts, while deploying tasers, and other forms of abuse.
Police violence is a disability rights issue, and the ADA can be deployed to mitigate its harms. But litigation (or the threat of it) happens after the harms have occurred. Jurisdictions can aid in preventing incidents of violence by proactively working to remove law enforcement from mental health crisis response. They can do so through efforts to reallocate budgets from police departments and so-called specialized mental health units to community-based and peer-run programs. In addition, they can invest in robust, non-coercive behavioral health services within communities, so individuals can access chronic mental health care services on-demand, and within culturally appropriate settings. Jurisdictions can also work to fully decouple coercion and violence from the provision of mental health care.
[1] Of course, in many jurisdictions, the concerned relative would have few, if any, options if they were interested in a non-police response. Despite the ambitions of 988 as a measure for providing jurisdictions with funding for alternatives to police response to mental health crisis calls, police remain part of the response (if not the exclusive responder) in many jurisdictions that have accepted 988 funds.
Jamelia Morgan is a Professor of Law and the Founding Faculty Director of the Center for Racial and Disability Justice at Northwestern Pritzker School of Law
The Northwestern Pritzker Law Center for Racial and Disability Justice (CRDJ) is a first-of-its-kind center dedicated to promoting justice for people of color, people with disabilities, and individuals at the intersection of race and disability.
Learn more about CRDJ by visiting the Center for Racial and Disability Justice webpage.
