Policing Under Disability Law
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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. Although the Court granted certiorari to a case presenting the question, City & County of San Francisco v. Sheehan, it subsequently dismissed that question as improvidently granted. There is no telling when the question will reach the Supreme Court again, but before it does, it is important to develop a theory not just of liability but * Associate Professor of Law, University of Connecticut School of Law. For helpful comments and feedback throughout the drafting process, I wish to thank Amna Akbar, Bradley Areheart, Natalie Chin, Ruth Colker, Mattias Decoster, Doron Dorfman, Elizabeth Emens, Katie Eyer, Sarah Lorr, Prianka Nair, Katherine Macfarlane, Barbara McQuade, Jessica Roberts, Jennifer Hope Shinall, Charisa Smith, Ngozi Okedigbe, Sunita Patel, Mark Weber, and India Thusi, and the participants in the Michigan Junior Scholars Program, Disability Law Section’s Works-in-Progress Virtual Workshop, Women of Color Collective Junior Legal Scholars Writing Workshop, and the AALS Annual Meeting, Civil Rights Section Work-in-Progress Panel. For exceptional research assistance, I thank Sophie Bossart, Allyson Presskreischer, Michael Schultz, and Mallori Thompson, as well as Tanya Johnson and Anne Rajotte at the University of Connecticut School of Law Library. 1401 Policing Under Disability Law 73 STAN. L. REV. 1401 (2021) also of disability under Title II that is consistent with the text, history, and animating goals of the ADA. Courts are already adopting a theory of disability that informs how they decide policing cases under Title II: the medical model of disability. However, that theory is inconsistent with that reflected by the ADA and the ADA Amendments of 2008, and it leads courts to pay insufficient attention to disability as a social construction. I examine cases showing how the ADA—contrary to its celebrated goals of access and social inclusion—has been interpreted to exclude a class of individuals from civil rights protection and from the entitlement to an accommodation by law enforcement. Ultimately, I show how the medical model of disability in policing cases serves to limit the broad scope of protections available under the ADA that could otherwise be used to push back against such disability- based subordination. Adopting and incorporating a social model of disability—that is, viewing disability as a social construction—requires a reexamination of extant legal standards regarding causation, intentional discrimination, disparate impact, and deference to law enforcement under the ADA. As I argue, the social model of disability is not only more consistent with the animating goals of the ADA but also more attuned to the social meanings at play that work to expose disabled people to policing and police violence. By centering a social model of disability in cases challenging disability-based discrimination under federal disability laws—and by incorporating disability law into ongoing public activism, discourse, and policymaking on policing—we can better identify and redress the harms stemming from the policing of disability along with the long-standing social problem of police violence. 1402 Policing Under Disability Law 73 STAN. L. REV. 1401 (2021) Table of Contents Introduction ......................................................................................................................................................... 1404 I. The Medical Model in Historical and Contemporary Context .................................... 1411 A. Historical Context ........................................................................................................................ 1412 B. Contemporary Law-Enforcement Responses to “Disability in Public” ......... 1415 1. Policing in and around hospitals ................................................................................ 1415 2. Public safety and disability policing......................................................................... 1422 II. Federal Disability Law and the Limits of the Medical Model in Challenges to Policing .................................................................................................................................................... 1425 A. Disability Law and Policing: The Statutory Framework ....................................... 1426 B. Limits of the Medical Model in Theories of Liability Under the ADA .......... 1427 1. Wrongful arrest .................................................................................................................. 1433 2. Failure to accommodate .................................................................................................. 1436 a. Knowledge requirement ...................................................................................... 1438 b. Communication ........................................................................................................ 1433 C. Intentional Discrimination ..................................................................................................... 1444 D. Causation ........................................................................................................................................... 1453 III. Toward a Social Model of Disability in Disability Law Policing Cases .................... 1457 A. Causation ........................................................................................................................................... 1458 B. Deliberate Indifference .............................................................................................................. 1459 C. Disparate Impact ........................................................................................................................... 1460 D. Deference to Law Enforcement ............................................................................................ 1462 E. Decriminalization and Diversion ........................................................................................ 1464 1. Decriminalization .............................................................................................................. 1465 2. Diversion ................................................................................................................................. 1466 Conclusion ............................................................................................................................................................. 1469 1403 Policing Under Disability Law 73 STAN. L. REV. 1401 (2021) Introduction In recent years there has been increased activism around, and public attention to, the problem of police violence as it affects disabled people and, in particular, the disproportionate number of Black disabled people killed by the police each year.1 In the wake of social uprisings in response to the police killings of George Floyd and Breonna Taylor,2 calls to defund or abolish the police have included movements for both disability rights and disability justice.3 Such calls for transformative change reflect the need for urgent solutions to address the problem of policing as it affects disabled people. Disabled people are overrepresented in police killings and, in a number of cities, are involved in a significant proportion of police use-of-force incidents.4 1. See, e.g., Disability Solidarity: Completing the “Vision for Black Lives,” TUMBLR: HARRIET TUBMAN COLLECTIVE (Sept. 7, 2016), https://perma.cc/Y44B-6WZ6 (criticizing the Movement for Black Lives for “ignor[ing] the violence experienced by Black Disabled and Deaf people”). Consistent with disability-rights and disability-justice movements, this Article recognizes the importance of language in shaping how we think about disability—how language choices can be imbued with ableism and both reveal and reinforce subordination on