20 October 2016 | | Trial

By || Antonio M. Romanucci According to the National Alliance on Mental Illness, 43.8 million adults experience mental illness annually in the United States, and nearly 60 percent of them did not receive mental health services in the past year.1 In 2014, police received more than 130,000 calls from emotionally disturbed per-sons (EDPs).2 A Treatment Advocacy Center report estimates that people with mental illnesses are 16 times more likely than others to be killed by police.3

These staggering numbers represent a growing trend of police departments underprepared to deal with situations that require specialized EDP training.

Imagine that 21-year-old Brian has locked himself in his room and is threatening to harm himself with a knife. Brian’s mother calls 911 and tells the dispatchers that Brian has been off his medication for bipolar disorder.

EXCESSIVE POLICE FORCE AGAINST THE EMOTIONALLY DISTURBED

EXCESSIVE POLICE FORCE AGAINST THE EMOTIONALLY DISTURBED

Millions of Americans suffer from mental illness, and their interactions with insuf�ciently trained police of�cers can be fatal. When representing these victims and their families, know how to analyze of�cers’ actions and where to �nd evidence to bolster your case.

Trial | | October 2016 21ARTOLYMPIC/SHUTTERSTOCK

Officers A and B respond to the scene, where Brian’s mother tells them Brian has bipolar disorder and is suicidal, with a history of self-harm. She gives the offi-cers a key to the bedroom door. As Officer A stands outside the door, Officer B walks around the house to look through the bedroom window. He sees Brian sitting in his chair, facing away from the door, calmly smoking a cigarette. Officer B fails to tell Officer A that, at that moment,

Brian is not a threat to the officers or his mother—Brian has not verbally or physi-cally threatened anyone but himself. Yet Officer A draws his gun and kicks down the bedroom door. Brian gets up from his seat and slams the door shut. Officer A kicks the door open again and fires two shots, fatally wounding Brian.

After learning Brian was emotionally disturbed, what could the officers have done differently, and do Officer A’s actions rise to the level of a civil rights violation?

Despite the prevalence of mental ill-ness in the United States, many police academies offer just seven or eight hours of training on dealing with EDPs.4 Most officers never receive follow-up train-ing on how to de-escalate situations with EDPs—even though training materials are readily available and encounters with them are becoming more frequent.5

Far too often, police encounters with the mentally ill become deadly. The Wash-ington Post reported that between January 2015 and August 2016, 1,620 people were fatally shot by police—399 of them showed signs of mental illness.6 The problem stems from a nationwide systemic failure to train officers on how to de-escalate confronta-tions with EDPs who pose less threat of harm to others than to themselves. Police departments often fail to recognize that not all people are the same—and not all encounters are equal—when considering whether to use deadly force.

This lack of training leads officers to use standardized field tactics that are counterproductive and deadly to EDPs. Confrontations with EDPs present dif-ferent issues than, for example, subdu-ing an armed and dangerous criminal committing a serious offense.

When confronting EDPs, using more force will escalate and exacerbate the situation; but when confronting dan-gerous criminals, a heightened use of de-escalation techniques usually helps bring a volatile situation to a swift end. EDPs unintentionally strain police

officers’ patience, and often, their fail-ure to comply with commands and the officers’ heightened sense of anxiety can lead to fatal results.

For example, in a recent New Jersey case, an EDP refused transfer from a hospital to a specialized mental health unit. Local police were called in to assist with the transfer. Instead of using de-escalation techniques, officers applied typical field tactics and forcefully attempted to detain a nonviolent, nonclinical, unarmed, hallucinatory person. The situation quickly devolved—officers savagely beat the person and were injured in the melee. In discovery, it came to light that the police department has no guidelines or directives on how to manage EDPs in any situation, and it has no crisis intervention program.7

Excessive Force and the Graham TestIn all states, police officers are autho-rized to use force to accomplish lawful objectives: to conduct an investigatory stop, to arrest someone, to enter a home to serve a warrant or make an arrest, and to detain suspects. When police officers abuse that authority and use excessive force, injured parties can bring causes of action under the Fourth Amendment, the Fourteenth Amendment, and 42 U.S.C. §1983.

The Fourth Amendment protects against “unreasonable searches and sei-zures.”8 Police officers are granted the extraordinary authority to use reason-able force to arrest and control suspects, but they cannot use excessive force or force that is beyond necessary, taking into account the suspect’s resistance.

Therefore, the central question in all excessive force cases is whether the police officer’s conduct was objectively reasonable under the totality of the cir-cumstances. The U.S. Supreme Court laid out a framework in Graham v. Con-nor for determining whether an officer’s

22 October 2016 | | Trial

S e e k i n g Ju s t i c e | | Excessive Police Force Against the Emotionally Disturbed

use of force was excessive.9 Lower courts must consider several “Graham factors,” including the severity of the suspect’s alleged crime, whether the suspect posed an immediate threat to the offi-cer’s or the public’s safety, and whether the suspect was actively resisting arrest or attempting to escape.10

The Graham Court explained that“the ‘reasonableness’ of a particular use of force must be judged from the per-spective of a reasonable officer on the scene . . . without regard to their under-lying intent or motivation.”11 But courts should not use the “20/20 vision of hind-sight,” as police officers often must make split-second decisions.12 Ultimately, an officer may use only that force which is both reasonable and necessary to arrest or detain—anything more is excessive.

Since Graham, courts have refined the test and considered additional fac-tors.13 Recently, for example, courts considered an officer’s knowledge of a suspect’s emotionally disturbed status as an important factor when determining whether the officer’s tactics and level of force were reasonable.14

Permissible Deadly ForceLike excessive force cases, most deadly force cases focus on whether the use of deadly force was objectively reasonable under the circumstances.15 In Tennessee v. Garner, the Supreme Court discussedthe circumstances in which the use of deadly force is objectively “reasonable” and those in which it is not—and it set a high threshold.

The Garner Court outlined three circumstances when an officer can use deadly force: when the officer is threat-ened with a deadly weapon, when the officer has probable cause to believe that the suspect poses a threat of serious physical harm or death to the officer or another, or when the officer has prob-able cause to believe that the suspect has

committed a crime involving threatened or actual serious physical harm or death to another person.16 Absent these cir-cumstances, using lethal force against someone is unreasonable and excessive.

Garner requires officers to have “probable cause to believe that the sus-pect poses a significant threat of death or serious physical injury” before deadly force is considered reasonable under the Fourth Amendment.17 Of course, in police misconduct cases—when passions on both sides run high, witness accounts conflict, police control most of the hard evidence, and there is no victim to tell his or her version of the story—there is no true bright-line test.

In most cases, these factors are sub-ject to interpretation and argument. For example, in Brian’s case, Officer A will—without just cause—claim that he feared for his life. In the end, the jury will decide whether Officer A’s belief was reasonable or whether Brian’s Fourth Amendment rights were violated.

The Totality of the Circumstances StandardThe totality of the circumstances standard has been interpreted differ-ently among the federal circuits. The First, Third, Sixth, Seventh, Ninth, and Tenth Circuits recognize, at least to some extent, that courts should con-sider officers’ actions leading up to the shooting—though their approaches vary. The clearest decision comes from the Third Circuit, which has reasoned that the word “totality” is inclusive and “implies that reasonableness should be sensitive to all of the factors bearing on the officer’s use of force.”18

The First, Ninth, and Tenth Circuits, however, take a less inclusive approach to totality. For example, the Ninth Cir-cuit has ruled that “where an officer intentionally or recklessly provokes a violent confrontation, if the provoca-tion is an independent Fourth Amend-ment violation, he may be held liable for his otherwise defensive use of deadly force,” but an officer’s negligent selec-tion of bad tactics would not render excessive an otherwise justifiable use of force.19

The Seventh Circuit segments the reasonableness standard and has held that reasonableness depends on the information the officer possesses prior to and at the immediate time of the shooting.20 And the Sixth Circuit focuses on a temporal analysis: When the events preceding the shooting occurred in close temporal proximity to the shooting, those events are also considered when analyzing whether excessive force was used.21

But four other circuits have held that only factors existing at the moment a seizure is made are relevant for the rea-sonableness analysis.22 When bringing an excessive force case, it is important to know which analysis your federal circuit has endorsed.

THE CENTRAL QUESTION IN ALL EXCESSIVE FORCE CASES IS WHETHER THE POLICE OFFICER’S CONDUCT WAS OBJECTIVELY REASONABLE UNDER THE TOTALITY OF THE CIRCUMSTANCES.

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Applying the Graham TestUnder the totality of the circumstances standard, analyze the officer’s actions to determine whether that degree of force was necessary—including an officer’s disregard for his or her training in deal-ing with EDPs or mentally ill people. When officers ignore or fail to follow that training, their actions may put them in danger, escalate a situation where simple de-escalation techniques would have been appropriate, and subject them to either criminal or civil liability.

To establish an officer’s liability for excessive force against an EDP, you must show that the officer had actual or constructive notice that he or she was interacting with an EDP. Without that notice, any training on confrontations with EDPs would be excluded from the totality of the circumstances standard.

The first Graham factor is whether the EDP is engaged in criminal activity.In most police-involved EDP shootings, officers are responding to calls from family, friends, or concerned members of the public that someone is behav-ing abnormally but is not committing a crime. Calls involving distraught EDPs are usually about rescue or suicide risk, but even when an EDP does not com-mit a crime, officers respond with the same tactics and policies as if they were confronting a criminal. This typically escalates the situation to an unwar-ranted and excessive use of force, as in the New Jersey case in which officers beat an EDP who refused transfer.

To demonstrate that an officer acted unreasonably, gather evidence that the officer had actual or constructive notice that the EDP either was not committing a crime or that the crime was not seri-ous and did not involve threats of harm to others. This kind of evidence can be found in dispatch recordings and state-ments from witnesses at the scene. Once you are aware of the officer’s knowledge

before arriving at the scene and the information provided to the officer at the scene, you can lay a foundation that the officer acted unreasonably.

The next Graham factor is whether the EDP posed an immediate threat to offi-cers or the public. That immediate threat can be an extension of whether the EDP committed a crime. This factor consid-ers whether the EDP posed a threat to officers or the public—not to himself or herself. In many of these cases, the EDP threatens self-harm but makes no threat to officers or the public. In the New Jer-sey example, the EDP was suffering from hallucinations, but there was no evidence from doctors, nurses, security guards, or others that he was a threat to anyone, including the officers.

Consider the nature of the interac-tion between the officers and the EDP before the use of force. Did the EDP make threatening statements to the officers? How did the officers react? Was the EDP wielding a weapon, and if so, was it less lethal than a firearm? The vast majority of EDP police shootings occur when the EDP has force less lethal than a firearm. If officers maintained close proximity to

the EDP, that fact may demonstrate that they did not perceive the EDP as a seri-ous threat.23

The final Graham factor is whether the EDP actively resisted arrest. Consider the length of time between officers arriv-ing and the use of excessive force, as well as the level of force officers used com-pared to the threat level the EDP posed. Events involving EDPs typically become violent after they fail to comply with police commands. In most instances, an EDP does not possess the mental capacity or comprehension skills to obey an offi-cer’s directions.

Even if an EDP’s conduct was dan-gerous, threatening, or aggressive, there may be material questions of fact as to whether the EDP posed the threat of serious harm that Garner requires to justify the use of deadly force. It may be police department policy or procedure to require a verbal challenge, when fea-sible, before using deadly force—and that can be directly relevant when an EDP wields force less lethal than a firearm.

For instance, in Brian’s case, both offi-cers knew about his decreased mental capacity. He was armed with a knife—a

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24 October 2016 | | Trial

force less lethal than a firearm. There was also a short period of time between the officers’ arrival and the confronta-tion. Officer A’s abrupt action of kick-ing in the door put Brian’s possession of the knife in a different context than if Brian had opened the door himself while holding the knife. Even with a knife in hand, Brian never made any aggressive movements toward Officer A, nor did he confront him—so it is difficult for Officer A to justify deadly force. The circumstances known by or created by Officer A help determine whether the lethal response was an objectively rea-sonable one.24

It is well-established that “a person has a right not to be seized through the use of deadly force unless he puts another person (including a police officer) in imminent danger or he is actively resisting arrest and the circum-stances warrant that degree of force.”25

But existing case law does not clearly

establish whether an officer may be lia-ble under the Fourth Amendment solely for his or her preseizure conduct—such as blocking a doorway exit—that led to the encounter. Courts have repeatedly recognized that officers cannot use sig-nificant force on nonresisting or pas-sively resisting suspects.26

To establish liability, you must prove that an officer acted unreasonably based on how a reasonable officer under the cir-cumstances should react. Do not be fooled by the defense that the officer acted rea-sonably out of a subjective fear for his or her life—that is not the correct standard.

Find the Police Department’s EDP Training and PoliciesCommunication is a significant aspect of police officer interventions with EDPs. The limited training on EDPs that offi-cers normally receive includes: respect-ing the person’s comfort zone, using nonthreatening communications, using

the passage of time to their advantage, and not unreasonably agitating or excit-ing the person.

A police department may even have a protocol that officers must follow when responding to a suicidal EDP. Officers’ communication with each other is equally important as their communication with EDPs. Find out whether the officer tried any verbal de-escalation techniques before escalating the situation through the use of force. A police department’s training and guidelines do not create a constitutional right, but they are relevant to the excessive force analysis.

Also use depositions to demonstrate that the officer knew and understood poli-cies and protocol involving EDPs, and elicit admissions that the officer either failed to follow or ignored protocol and procedures. Police department policies and procedures regarding suicidal EDPs typically require a form of crisis intervention—a special-ized and more detailed form of training that instructs officers on the appropriate handling of EDPs, regardless of whether they pose a threat.

Admissions are important to reveal what officers knew at the time they used deadly force—the officers’ under-standing of EDPs, whether the officers knew that they were dealing with an EDP, the source of the officers’ knowl-edge on EDPs, and their understanding of department protocol with EDPs and de-escalation techniques. Here are some examples of good deposition questions in Brian’s case:

Do you understand what the word de-escalate means?What is your understanding of what an emotionally disturbed person is?

Where did you learn the definition of EDP?Dispatch had let you know there was a young man who was locked in a room with a knife. You knew that, is that correct?Were you made aware that he was

DO NOT BE FOOLED BY THE DEFENSE THAT THE OFFICER ACTED REASONABLY OUT OF A SUBJECTIVE FEAR FOR HIS OR HER LIFE—THAT IS NOT THE CORRECT STANDARD.

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not taking his medications? Were you aware that he was

distraught?Once you entered the trailer and spoke to the mother, in your mind, you were cycling through different scenarios to get this individual in this locked room some help, is that correct?Part of the help you were think-ing about is that this man required crisis intervention, correct? And to effect crisis intervention, you would need to get control of this individual and transport him, is that correct?Are you aware of any attempts that Officer A made to talk to Brian before he kicked the door open the first time? Did you ever hear Officer A tell Brian, “If you don’t show your hands or if you don’t drop the knife, I will shoot you”?Was Brian made aware that if he did not drop the knife or show his hands, that he would be shot?Excessive force against an EDP must

be evaluated on a case-by-case basis. The Graham factors play a significant role in determining the reasonableness test outcome. Use expert testimony to argue that the totality of the circum-stances should include consideration of the officers’ training—particularly with respect to specific problems such as taking EDPs into custody. Remember that standard police procedure regard-ing EDPs differs greatly from proce-dures for emotionally stable people.

Although an alarming number of emo-tionally disturbed people are victims of excessive force and fatal police shootings, the problem can be reduced through awareness and proper training. Ideally, all law enforcement departments will adopt these policies to ensure that non-violent, mentally ill people who require specialized care and treatment are not unnecessarily harmed or killed.

Antonio M. Romanucci is a principal and partner at Romanucci & Blandin in Chicago. He can be reached at aromanucci@

rblaw.net. The author would like to thank Romanucci & Blandin associate Jared Wise and third-year law student Bryce Hensley for their research assistance.

Notes1. Nat’l Alliance on Mental Illness, Mental

Health by the Numbers (2016), www.nami.org/Learn-More/Mental-Health-By-the-Numbers.

2. Jake Pearson, Actors, Mentally Ill Aid NYC Police Training Meant to Calm, Associated Press (Sept. 13, 2015), http://tinyurl.com/jtq6bjt.

3. Liz Szabo, People With Mental Illness 16 Times More Likely to Be Killed by Police, USA Today (Dec. 10, 2015), www.usatoday.com/story/news/2015/12/10/people-mental-illness-16-times-more-likely-killed-police/77059710/.

4. See, e.g., Upper Midwest Cmty. Policing Inst., Additional Public Safety Training (2012), www.umcpi.org/Services/Training.aspx; see also John Jay Coll. of Crim. Justice, Law Enforcement (2016), www.jjay.cuny.edu/law-enforcement.

5. See Szabo, supra note 3; see also Pearson,supra note 2.

6. See 990 People Shot Dead by Police in 2015, Wash. Post, www.washingtonpost.com/graphics/national/police-shootings/; Fatal Force: 630 (Aug. 31, 2016), www.washington-post.com/graphics/national/police-shootings-2016/; see also Wesley Lowery et al., Distraught People, Deadly Results, Wash. Post (June 30, 2015), www.washingtonpost.com/sf/investigative/2015/06/30/distraught-people-deadly-results/ (reporting from January 2015 until May 2016); NPR, Of All U.S. Police Shootings, One-Quarter Reportedly Involve the Mentally Ill (July 4, 2015), www.npr.org/2015/07/04/420019849/paper-finds-one-quarter-of-those-killed-by-police-are-mentally-ill (reporting from January 2015 to July 2015).

7. See Ezekwo v. Quirk, No. 2:15-cv-03167-SDW-LDW (D.N.J. filed May 5, 2015).

8. U.S. Const. amend. IV.9. Graham v. Connor, 490 U.S. 386, 396 (1989).

10. Id.11. Id. at 396–97.12. Id. at 386. 13. See e.g., Estate of Smith v. Marasco, 318

F.3d 497, 515 (3d Cir. 2003) (discussing the Graham factors, “as well as the possibility that the persons subject to the police action are themselves violent or dangerous, the duration of the action, whether the action takes place in the context of effecting an arrest, the possibility that the suspect may be armed, and the number of persons with whom the police officers must contend at one time”) (citing Sharrar v. Felsing, 128 F.3d 810, 822 (3d Cir. 1997), abrogation recognized by Stetser v. Jinks, 572 Fed. App’x 85 (3d Cir. 2014)).

14 Id.; see also Waterman v. Batton, 393 F.3d 471, 481 (4th Cir. 2005) (to properly consider the reasonableness of the force employed, the court must “view it in full context, with an eye toward the proportionality of the force in light of all the circumstances”); Palmquist v. Selvik, 111 F.3d 1332, 1340–41 (7th Cir. 1997) (an officer’s awareness of an emotionally disturbed person’s suicidal motivation has a bearing on what tactics and level of force are reasonable); Ludwig v. Ander-son, 54 F.3d 465, 472 (8th Cir. 1995) (same).

15. See Tenn. v. Garner, 471 U.S. 1, 7 (1985).16. Id. at 11.17. Id. at 3. 18. Abraham v. Raso, 183 F.3d 279, 291 (3d Cir

1999).19. Billington v. Smith, 292 F.3d 1177, 1189–90

(9th Cir. 2002).20. Plakas v. Drinski, 19 F.3d 1143, 1150 (7th Cir.

1994). 21. Claybrook v. Birchwell, 274 F.3d 1098, 1105

(6th Cir. 2001).22. See, e.g., Salim v. Proulx, 93 F.3d 86, 92 (2d

Cir. 1996); Elliott v. Leavitt, 99 F.3d 640, 642 (4th Cir. 1996); Young v. City of Killeen, 775 F.2d 1349, 1353 (5th Cir. 1985); Anderson, 54 F.3d at 471; see also Menuel v. City of Atl., 25 F.3d 990 (11th Cir. 1994).

23. The Spotlight Team, The Desperate and the Dead: Police Confrontations, The Boston Globe (July 6, 2016), http://tinyurl.com/jpd93vf (only 13 percent of people with a mental illness shot by police had a gun); see also Garner, 471 U.S. at 1 (plaintiff was not a threat at the time he was shot).

24. See Garner, 471 U.S. at 1.25. Weinmann v. McClone, 787 F.3d 444, 448

(7th Cir. 2015); see also Garner, 471 U.S. at 11–12; Marion v. City of Corydon, 559 F.3d 700, 705 (7th Cir. 2009); Muhammed v. City of Chi., 316 F.3d 680, 683 (7th Cir. 2002) (per curiam).

26. See, e.g., Abbott v. Sangamon Cnty., 705 F.3d 706, 732 (7th Cir. 2013); Estate of Starks v. Enyart, 5 F.3d 230, 233 (7th Cir. 1993).