Policing Under Disability Law
Stanford Law Review Volume 73 June 2021 ARTICLE Policing Under Disability Law Jamelia N. Morgan* Abstract. In recent years, there has been increased attention to the problem of police violence against disabled people. Disabled people are overrepresented in police killings and, in a number of cities, police use-of-force incidents. Further, though police violence dominates the discussion of policing, disabled people also disproportionately experience more ordinary forms of policing that can lead to police violence. For example, disabled people, particularly those with untreated psychiatric disabilities, are vulnerable to policing even in medical facilities—the very places they seek to access care. Many are also arrested pursuant to aggressive enforcement policies aimed at removing so-called unwanted persons or regulating those labeled disruptive or disorderly. Though they pose no risk of physical harm, some are arrested and taken to jail, at times simply because they have no place else to go. This Article centers disability theory as a lens for understanding the problems of policing and police violence as they impact disabled people. In doing so, the Article examines how federal disability law addresses these ongoing problems. Disabled plaintiffs have alleged disability discrimination and challenged policing and police violence under both Title II of the Americans with Disabilities Act (ADA) and the Rehabilitation Act of 1973, another federal disability law and the precursor to the ADA. The Supreme Court has yet to decide whether Title II of the ADA applies to arrests, and federal appellate courts are split on whether and to what extent Title II’s antidiscrimination provisions apply to street encounters and arrests.
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