Guest Blog: Leslie Shoebotham, Safety Versus Accommodations: Argument Preview in City and County of San Francisco v. Sheehan

The Court is scheduled to hear oral argument tomorrow in a case that is sure to tug at one’s heartstrings. How often have we read or heard about situations where an individual with overt mental illness is injured or killed because the person irrationally refused to comply with an officer’s lawful demand to submit? Tomorrow’s oral argument involves such a case, a case that raises both Fourth Amendment and Americans with Disabilities Act claims.

Factual Background

Teresa Sheehan (Respondent) has schizoaffective disorder and in 2008, at the time of the police encounter at issue here, she resided in a San Francisco group home for individuals with mental illness. Sheehan’s caseworker had become concerned about Sheehan’s welfare because she had stopped taking her medications and her behavior had become increasingly erratic. The caseworker attempted a welfare check by knocking on Sheehan’s door and then, when no one answered, used a key to enter. Sheehan was in fact home, and told her caseworker that she had a knife and would kill him if he didn’t leave. Based upon his prior experience with Sheehan, the caseworker took her threat seriously. He cleared the building of its other residents, filled out the paperwork to have Sheehan involuntarily detained at a psychiatric hospital—a Section 5150 detention under California law—and called the San Francisco Police Department (SFPD) to transport Sheehan to the hospital.

Officers Katherine Holder and Kimberly Reynolds responded to the call. The caseworker discussed Sheehan’s behavior with the two officers and went over the 5150 form, which described Sheehan’s threat against the caseworker. Important here, although the 5150 form stated that Sheehan was “gravely disabled” and a danger to others, the caseworker had not checked the form’s box indicating that Sheehan was a danger to herself.

The two officers knocked on Sheehan’s door, which was located at the end of a long hallway on the building’s second floor. The officers identified themselves as police officers and, not receiving a response, used a key to enter Sheehan’s room. Sheehan was lying in bed, but quickly grabbed a nearby knife. Sheehan threatened to kill the officers and came toward them with the knife. The officers drew their guns but exited the room without firing. Sheehan was able to get the door closed and the two officers then called for backup.

Rather than wait for backup to arrive, however, the officers instead forced their way back inside Sheehan’s room. When Sheehan again advanced on the officers with the knife, one of the officers sprayed Sheehan with pepper spray. Sheehan continued her advance, however, and the officers then shot her five times. Sheehan survived but the shooting left her permanently disabled.

Sheehan filed suit against the two officers, as well as the City and County of San Francisco (collectively, Petitioners), asserting a Section 1983 action based on the officers’ violation of her Fourth Amendment rights. She also asserted a claim for the officers’ violation of Title II of the Americans with Disabilities Act (ADA)’s “reasonable accommodation” requirement as well as state law tort claims.

Petitioners filed a motion for summary judgment, asserting a qualified immunity defense to Sheehan’s Fourth Amendment claim and seeking dismissal of Sheehan’s ADA and state law claims.

What Is Qualified Immunity?

Qualified immunity is much more than simply a trial defense. The doctrine shields an official from suit unless the official’s conduct “violate[s] clearly established statutory or constitutional rights of which a reasonable person would have known.” See Hope v. Pelzer, 536 U.S. 730, 739 (2002). “This doctrine gives government officials breathing room to make reasonable but mistaken judgments, and protects all but the plainly incompetent or those who knowingly violate the law.” Carroll v. Carmen, 134 S. Ct. 348 (2014) (per curiam) (internal quotation marks omitted). As the Court has explained, qualified immunity is appropriate unless existing precedent has placed the question “beyond debate.” See Ashcroft v. al-Kidd, 131 S. Ct. 2074 (2011). Important here, courts need not decide the underlying constitutional issue—i.e., what the proper governing rule should be—in determining whether an official is entitled to qualified immunity. Instead, it is enough to support qualified immunity that the rule prohibiting the official’s conduct was not clearly established. See Stanton v. Sims, 134 S. Ct. 3 (2013).

Lower Court Proceedings

In response to Petitioners’ summary judgment motion, Sheehan submitted an expert witness report that opined that the officers’ second entry into Sheehan’s room was contrary to reasonable and generally accepted police practices. The district court nevertheless granted Petitioners’ summary judgment motion, dismissing Sheehan’s ADA, Fourth Amendment, and state law claims. See Shehan v. City and County of San Francisco, No. C 09-03889 (CRB), 2011 WL 1748419 (N.D. Cal. May 6, 2011) (order granting summary judgment).

Sheehan appealed to the Ninth Circuit. In a divided opinion, the Ninth Circuit affirmed in part the district court’s judgment—but also vacated the judgment in part, because two of the three judges on the Ninth Circuit panel concluded that triable issues existed concerning Sheehan’s claims. On Sheehan’s ADA failure-to-accommodate claim, the panel majority held that summary judgment was improper because a jury 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.” See Sheehan v. City and County of San Francisco, 743 F.3d 1211, 1233 (9th Cir. 2014).

As to Sheehan’s Fourth Amendment claim, the Ninth Circuit upheld the validity of both of the warrantless entries into Sheehan’s room. Both entries were valid, all three judges found, under the emergency aid exception to the Fourth Amendment’s warrant requirement. See Michigan v. Fisher, 558 U.S. 45, 49 (2009) (upholding warrantless entry into a home under the emergency aid exception where there “was an objectively reasonable basis for believing that medical assistance was needed, or persons were in danger”) (internal quotation marks omitted). And, the second warrantless entry was additionally supportable under the “continuous search” doctrine. See Michigan v. Tyler, 436 U.S. 499, 511 (1978) (upholding fire officials’ warrantless entries into a burned building the morning after a nighttime fire had been extinguished to investigate the fire’s cause, explaining that “the morning entries were no more than an actual continuation of the first [entry—which had occurred when putting the fire out] . . .”).

It was at this point that the panel majority and the dissenting judge parted ways. The panel majority found that, even though the second warrantless entry was permissible, the Fourth Amendment could be violated if the second entry was carried out in an unreasonable manner. Here, the panel majority concluded that triable issues of fact existed as to whether the officers’ second entry violated the Fourth Amendment when the officers forced their way into Sheehan’s room without taking Sheehan’s mental illness into account—“an apparent departure from their police officer training.” Sheehan, 743 F.3d at 1225.

On the issue of the deadly force used, the panel majority refused to limit its consideration to the “moment of the shooting” which the court concluded “was reasonable as a matter of law,” but instead examined closely the officers’ conduct in forcing their way back into Sheehan’s room and “provoking” the violent confrontation with her. Here, the panel majority applied the balancing test from Graham v. Connor, 490 U.S. 386, 396 (1989) (balancing the nature and quality of the intrusion on an individual’s Fourth Amendment interests—considering “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight”—against the government’s countervailing interests). Because Graham, as well as two Ninth Circuit decisions, would have placed “any reasonable, competent officer on notice” that it was unreasonable for the officers here to force their way into Sheehan’s room “when there was no objective need for immediate entry,” the officers were not entitled to qualified immunity.

Writing in dissent, Judge Graber believed that a party could not create a Fourth Amendment claim by relying on an expert’s report. And, in any event, Judge Graber concluded that there was no clearly established rule governing police officers when arresting the mentally ill. Therefore, the panel’s denial of qualified immunity to the officers, City, and County was improper.

Questions Presented

On November 25, 2014, the Court granted certiorari to address two questions presented:

1. Whether Title II of the Americans with Disabilities Act requires law enforcement officers to provide accommodations to an armed, violent, and mentally ill suspect in the course of bringing the suspect into custody; and
2. Whether it was clearly established that even where an exception to the warrant requirement applied, an entry into a residence could be unreasonable under the Fourth Amendment by reason of the anticipated resistance of an armed and violent suspect within.

Arguments

Petitioners, and the United States as amicus, make strong arguments that the Ninth Circuit panel majority erred in upholding Sheehan’s ADA claim. While acknowledging that Title II of the ADA applies to all law enforcement activities, including arrests, Petitioners contend that the ADA does not require arrest-related accommodations if the disabled person is armed and violent. Further, Petitioners’ merits brief claims that the accommodations Sheehan is seeking are not reasonable. In many respects, this isn’t the easiest argument for Petitioners to make since Sheehan, ironically enough, seeks nothing more than implementation of policies that already exist in the SFPD’s own training materials; policies that are generally accepted police practices for dealing with the mentally ill in our more modern era. As Sheehan explains in her merits brief, the officers should have respected her “comfort zone” (her room), “used non-threatening communications, and employed the passage of time to their advantage.” (Resp.’s Br. 37.)

While it’s hard to argue with the accommodations that Sheehan is seeking, the facts—as the officers seemingly believed them to be—will make it hard for Sheehan to establish that the officers’ decision to immediately enter Sheehan’s room (i.e., refrain from providing arrest accommodations) was unreasonable. First, there is real disagreement in the briefs as to whether the officers could have believed that Sheehan had a means of escape from her room (i.e., a fire escape). Count on this as being a point of contention at oral argument. Second, the officers were unable to rule out whether there were other people in Sheehan’s room. Third, once the door had closed after the officers’ first entry, the officers did not know whether Sheehan was arming herself with other weapons.

The United States’ ADA argument asks the Court walk a line between the Petitioners’ and Respondent’s arguments. Title II requires officers to provide reasonable accommodations during the arrest of mentally disabled individuals. Yet, if objective evidence causes concerns about public or police safety, then it might not be reasonable for police to provide accommodations (i.e., delay immediate entry to arrest). In those situations, safety can outweigh accommodations. And despite the importance of safety, the United States refused to make the safety exception ironclad, arguing that a plaintiff “should remain free to show that special circumstances rendered a modification reasonable.” (U.S. Amicus Br. 7.) For this case, the United States asked the Court to pass on rendering judgment on the reasonableness of the officers’ actions by instead remanding the case to the Ninth Circuit to determine whether Respondent, who would bear the burden of proof establishing that “special circumstances” were present, was owed reasonable modification despite the safety risks she posed.

Fourth Amendment Argument:

Petitioners’ Fourth Amendment argument will rise or fall on whether the Ninth Circuit panel’s proposed governing rule—that police cannot enter a home based upon a valid warrant exception if it would provoke a confrontation with the home’s mentally ill occupant in the absence of “a countervailing need”—was clearly established at the time of this confrontation in 2008. The panel majority relied on Graham, supra, and two Ninth Circuit decisions in finding that, not only was the officers’ forcible entry violative of the Fourth Amendment, the unreasonableness of that forcible entry was beyond debate.

As troubling as the Sheehan facts are, however, it is in no way clear that the panel majority’s proposed rule was “clearly established.” In fact, Petitioners’ best argument is based on the mischief that the Ninth Circuit’s rule would have on existing Supreme Court case law. In particular, Petitioners rely on prior Fourth Amendment cases that refused to allow an individual to expand their Fourth Amendment rights by resisting a police officer’s lawful demand. (Petr.’s Br. 44.) Here, Petitioners cite to United States v. Santana, 427 U.S. 38, 42 (1976) (upholding officer’s authority to make a warrantless entry into the suspect’s house after she “retreat[ed] into her house” to “thwart an otherwise proper arrest”), and Scott v. Harris, 550 U.S. 372, 386 (2007) (refusing to require police to abort high speed chase because a contrary rule would allow suspects to flee with “impunity-earned-by-recklessness”).

If Graham’s balancing test is viewed as articulating a “clearly established” rule—likely a stretch since the Court has warned against defining the qualified-immunity threshold at such a generalized level that no official would be immune from suit—Respondent’s Fourth Amendment argument will rise or fall on whether a countervailing law enforcement reason existed to justify the officers’ immediate entry. (Resp.’s Br. 55.) And, based upon the safety concerns that Petitioners raise in their merits and reply briefs, it will be hard to say that countervailing law enforcement reasons were absent in this case. Sheehan is such an unfortunate and sad case. However, Sheehan likely faces an uphill battle on her Fourth Amendment claim at tomorrow’s oral argument.

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