This is being provided in a rough-draft format. Communication Access Realtime Translation (CART) is provided in order to facilitate communication accessibility and may not be a totally verbatim record of the proceedings.
EVE HILL: Hi, everybody. Happy morning. Happy tenBroek. Very excited to be here. We're talking about holding police officers accountable under the ADA in a post Cummings world. You've all undoubtedly heard of Cummings which is a Supreme Court case from 2022. Seems longer ago than that which held that Section 504 does not provide for emotional distress damages. And unfortunately Title II incorporates the remedies of Section 504 and although none of the rationale for eliminating emotional distress damages under Section 504 apply to Title II, we are concerned that courts will hold that in fact Cummings applies to Title II and in fact this is one of the cases where the court so held.
I'm Eve Hill, and I am a partner at Brown, Goldstein & Levy here in Baltimore and also in Washington, DC. You can visit us in any of these places. I am a white woman with reddish brown hair. And a black and white jacket. And I've been a disability rights lawyer for 30 something years, which stuns me. And I'll introduce now Jamie Strawbridge to my left.
JAMIE STRAWBRIDGE: Hi, everyone. I'm Jamie Strawbridge. I am another lawyer. I work with Eve and Kobie at Brown, Goldstein & Levy. I'm a white male, 5’11 and I've working with Eve and Kobie since 2020.
KOBIE FLOWERS: And I'm Kobie Flowers. I'm an African American male. I'll take 5’10, brown suit, blue shirt. I'm a lawyer with Jamie and Eve at Brown, Goldstein & Levy and have been at least dealing with the intersection between police misconduct and mental health since I was in the civil rights division back in 2000. So what are we, '24? So about 24 years. It's been a pleasure kind of seeing how the law has evolved to where we are now. So Jamie, why don't you? or Eve.
EVE HILL: I think it's me next. Fancy slide. How it started. In 2012, our client Montgomery, the decedent in our case, a homeless man was brought into an interrogation room and grilled for six hours for a murder, very high profile murder. And while he was being interrogated he was experiencing a mental health crisis due to his schizophrenia. It was obvious he was in a mental health crisis. He was talking to people who were not there. Nonetheless, the interrogating officers used what's called the read technique to try and trick him into confessing. And while he didn't confess, he did make some incriminating statements. The officers knew he had a mental illness, but they did not change their approach to the interrogation. In fact, they doubled down on using his mental illness against him.
And when they got the incriminating evidence that they were looking for, they stopped their investigation of other suspects. They didn't pursue the suspect who ran away from the scene, even though Mr. Montgomery couldn't have run away from the scene. They didn't pursue DNA evidence from the clothes left behind by the killer. They didn't follow up on video evidence or witness interviews that showed Mr. Montgomery wasn't the killer. Instead, they arrested Mr. Montgomery because of his mental health condition, and because of his mental health condition, he was incarcerated at St. Elizabeth psychiatric institution for five and a half years, before he could be considered competent to stand trial.
At that trial, he was acquitted, but he lost five and a half years of his freedom. So we took up the an ADA Title II case challenging the officers' failure to modify their interrogation techniques to accommodate Mr. Montgomery's disability. Arguing that the discrimination happened right at the point of interrogation. That they should have not used the read technique which leads to false confessions under the best of circumstances, and they should have paused the interrogation until Mr. Montgomery was no longer in mental health crisis. We sued DC and the two officers who interrogated him. And the parties brought very different perspectives to the case, one might say.
The plaintiffs brought the perspective that interrogation is the point of interrogation is to get to the truth. Shocking idea. The defendants took the position that interrogation is intended to convict the person you're interrogating. We took the position that the harm here, part of the harm here was the denial of an equal opportunity to participate in the interrogation.
The defendants took the position that, as long as there was probable cause for the arrest, there was no harm. And we took the position that being incarcerated at St. Elizabeth's was harm as well. And they continued to rely on the idea that if they had proximate cause, then there was no harm. It all would have happened exactly this way regardless. So now I'll turn it over to Jamie to talk about the discussions and the resolution.
JAMIE STRAWBRIDGE: Yeah. It's nice to be able to talk about a resolution, in this case I think a positive one, too. So this wasn't a Cummings case in the beginning, it became a Cummings case because that Supreme Court decision was issued in the middle of this litigation. In fact, we didn't even get a chance to brief Cummings issues. Because the judge on his own decided he would read the Cummings decisions and would sort of outline for the parties how he interpret it, including how it applied to Title II of the ADA and also provide a road map of permissible damages. Damages that are still viable in a post Cummings world.
I will put a brief plug there's a panel on all its implications and going to trial, with a really great lineup of speakers tomorrow, and that's going to be a deep dive on Cummings. This is more I'll give a quick overview of what the judge said are viable damages post Cummings just because I think it will inform how we approach this case, how we prepared for trial and how we ultimately settled it.
So Judge Bates outlined three main buckets for damages in this case. And they are tailored to police misconduct ADA cases, I think. But I think they've got general application too.
So the first would be greater indignity than other individuals who don't have disabilities. So our client was brought in, like Eve mentioned, interrogated for hours and hours, using this course of interrogation technique, at a time when the client was experiencing a severe mental health crisis, and no one was brought in to deescalate that crisis, to take a pause, et cetera.
The whole thing is recorded by the DC Police Department and what ended up happening is that interrogation, the video, was played to jurors at the eventual trial. So a person's mental health crisis was sort of put on by the prosecution to explicitly show, as the prosecutor said, that this person was, quote, unhinged, had a capacity for violence, et cetera. So 1 bucket of potential damages would just be the indignity of that. That goes far beyond indignities that another person who was under arrest or being interrogated would experience. The second bucket is the loss of opportunity. And in this case, it's the loss of opportunity to participate in your own interrogation. So there are many reasons, obviously why you would want to participate in your own progression fully. You want to interrogation fully. You want to be able to understand what's being asked of you. To give the best answer that you're able to give, the most accurate answer that you're able to give, to explain why you are not the person the police is looking for, et cetera.
Our client didn't have that opportunity, because as Eve mentioned, he was experiencing the severe crisis, and in that interrogation setting, faced with those course of techniques that he had mentioned, he said things that perhaps he would have said differently or not said at all, if he had been given a chance to have his mental health crisis deescalated. So that's a real kind of loss of opportunity. I've seen some courts say this is described as an expectation interest in effective communication. I think for us we've sort of talked about it as just a loss of opportunity as a more natural way to say it.
And then the third bucket, which is sort of the biggest one, and the most controversial in the case, probably falls under a bucket called consequential damages, which just means what flowed from the violation. Here the initial violation was failing to accommodate Mr. Montgomery during the interrogation, stopping the interrogation, bringing in a crisis intervention officer, someone who might be able to address the crisis. And then perhaps at a later time the interrogation could restart or continue.
The consequence here was in light of what was said during the interrogation, Mr. Montgomery was charged with murder, and because he wasn't competent to stand trial, he ended up, as Eve mentioned, in a psychiatric facility, where he remained for five years. Because he was continually evaluated and found not able to participate in trial. E and half the time they round they found him incompetent is because he wouldn't admit that he had done the crime.
JAMIE STRAWBRIDGE: Right. So that is the biggest bucket of potential damages. Those consequential damages. And one thing we wrestled with is how to value that, how to describe that. And of course in this case, how to sort of bring those damages out most fully when our client, Mr. Montgomery, passed away soon after being acquitted at trial. So he wouldn't be there to tell the tale himself.
That's not an exhaustive list of all the damages. The judge did say there are other potential damages. Did not go into physical pain and suffering, did not go into economic damages from not being able to work because you're in a psychiatric facility, et cetera. But those were the three main buckets. So where this case ended up, we did we were heading for trial and started to think about how to bring these damages out to a jury and how to describe them and how to use family and friends, how to use our expert psychologist to talk about the time at the psychiatric facility. And I think it's fair to say that we also engaged in settlement talks with the district, and our basic position was, yes, we are in a post Cummings world, so we don't we're not pushing as hard for emotional distress damages as we would have, to say it kind of softly.
But I don't think our message was the basic calculus of this hasn't changed very much. Consequential damages are still viable. And a consequence of not accommodating someone who's having a mental health crisis and then getting incriminating statements and prosecuting them and having them end up in a psychiatric facility, those are all consequential damages.
So when we talked about this case, we talked about in the same way that I think Kobie would talk about a wrongful conviction case or wrongful prosecution case or a police misconduct case, even before Cummings came out. Because our message was what happened to our client, that's all consequential damages. So we came in with sort of aggressive posture in that regard.
EVE HILL: And we can point to it as a consequence, because they would have had no other way to put him in St. Elizabeth's he was not a danger to anyone but for this, they would have had no basis to put him at St. E's.
JAMIE STRAWBRIDGE: I guess I'll conclude by saying we ended up with a result that we were happy with, our client was happy with, most importantly. And that is, after kind of a long settlement process, I think maybe the message was clear enough that the district may not have wanted to have a trial where we talk about consequential damages, where we talk about the time at St. E's, the psychiatric facility where we kind of flesh out exactly where the police department sort of did not go further in its investigation of other individuals. So we ended upset willing the case for 750,000, dollars which is, I think, a good result for the client. But most importantly shows that even in a post Cummings world, the case obviously had unique facts, but even in a post Cummings world, these cases are viable.
KOBIE FLOWERS: And I think kind of going from damages I'm going to talk a little bit about proximate cause that Eve mentioned. But before I get to that, maybe to wrap up the damages piece, or amplify the damages piece, we can do it by just looking at the screen there. And that's Gary Montgomery, the African American man to the left. And then you have the two police officers, Brian Wise to the left, and Hosam Nasr to the right.
When you think about damages, we didn't get a chance to play this interrogation in front of a jury and ask them do you see the consequences of not being accommodated, of not being able to express what's going on. We talked in terms, the judge talked in terms of kind of losing your or the indignity of it all. I mean that is a man who is fighting through homelessness and is pulled into a precinct and interrogated for hours. So as woo were dealing with the District of Columbia to settle the case, it was we all know what Cummings says, but what do you think a jury is going to say?
So that's why I still think in the age of Cummings, we all know how Cummings limits us, but I really do welcome the opportunity to actually try one of these cases and see what a jury thinks. Call it whatever you want to call it. That is a dehumanizing situation interrogation experience for anyone to go through, let alone someone in the throes of a mental crisis. So that's damages. One of the big things that we had to deal with in this case, again, as Eve mentioned, was this idea of proximate cause.
The way that a lot of police departments defend these cases is to say, whether we accommodated the person or not, you can't link up, kind of the lack of an accommodation or the discrimination with the injury. There's no proximate cause linking the discrimination, the ADA violations with the injury. So I want to talk in terms of kind of three things. Just really quickly run through the law on proximate cause. What we learned, maybe we should jump to the next slide there. What we learned about how to prove up proximate cause, what's like the easiest way to do it, what's the cheat code, if you will.
And then the third thing, the third kind of implication for the future with respect to proximate cause, is what I like to call kind of the proximate cause trap. The things that we need to think about when we bring these types of cases. So the law on proximate cause, that's easy. Nonlawyers kind of understand that you know, you've got to if you allege discrimination and there's an injury, there's got to be a link called cause. There's got to be a connection. Right? And that's kind of the proximate cause issue. What's nice about proximate cause is that it's very fact intensive. So that, and that's what the cases say, that is a very nice kind of hook to hang your hat on to tell a judge, we get past summary judgment, because just trying to figure out proximate cause is really, really fact intensive. Right? So that's kind of first thing I want to talk about of the three things, right? That's the law.
The second thing I want to talk about is, the easiest way to prove up proximate cause in these types of cases, is when there was no accommodation. Whenever there's some accommodation or inadequate accommodation, police departments have an easier way to explain that there's not a link between the violation of the ADA and the injury. Because they say hey, we did something. Because we did accommodate the person, you can't really say there's a causal link to the injury. Let alone maybe we didn't even violate the ADA because we did something. So Eve, if you could just jump back a couple of slides and I'll give you a quick example of how this works.
So in a lot of cases, you know you get this situation here where there's a call out to a scene. Because somebody has a mental health issue. You've got all these police officers there, and they've got their guns out and the person there in the white car is in the throes of a mental health crisis. Now, the way that's easy to prove proximate cause is, for example, in a scene like that which happens all too often, which is the person who's in the mental health crisis, ends up dead. The police shoot him. In that type of a situation, where they just roll up on the scene and shoot, and there's no accommodation, much easier to prove proximate cause.
Now, same situation. Police roll up on somebody who's in a mental health crisis, and this time they call the crisis intervention team. So you've got a bunch of police officers out here, they've got their guns pointed at somebody in a mental health crisis. But they call in the people who are supposed to deal with mental health crises. And let's say in this situation, the person in the mental health crisis still ends up dead.
That case, very tough case to prove, because of proximate cause, right? They're going to argue that wait a minute, we did something so maybe we actually did fulfill our duties under the ADA, and then what we did do, you can't show, Kobie, that this person wouldn't have ended up day anyway, because we did something. So there's a break there with proximate cause. And so there are a lot of cases out there where folks are using the ADA, and we applaud them.
But where there's that piece of accommodation in that fact pattern, that's a really, really tough case to win. In Gary Montgomery's case, the judge kind of listed three cases where there was arguably a violation of the ADA, but there was arguably an accommodation and not a violation. In each one of those cases, proximate cause was found not to exist. Contract that with the Gary Montgomery case, where there was no accommodation. So Eve, if you go to the next slide. When Gary Montgomery is getting interrogated there by those two detectives, they did nothing. Knowing he was suffering from schizophrenia. They didn't call the crisis intervention team. They didn't stop the interrogation to get him some medical help. They did absolutely nothing.
EVE HILL: And in their depositions, they said it wasn't their job.
KOBIE FLOWERS: Well said. In their depositions they also said, we're police officers, not social workers.
[Off microphone]
KOBIE FLOWERS: They have their policies talk about how they're supposed to do something. Doing nothing is not an option. But from a legal perspective, the fact that they did nothing that helped us show there's proximate cause. We can argue they did nothing, therefore they discriminated against this person. The injury, and we define the injury as both the prosecution and the confinement, that happened. And remember, proximate cause is a very fact intensive inquiry. And because it's so fact intensive, the fact that he's not accommodated here and then he gets prosecuted and then he gets convicted, we ought to be able to put that in front of a jury, and they can put the other side in front of a jury. They can put the other side that says hey, whether he was accommodated or not, he still would have been prosecuted, he still would have been confined. We get past that proximate cause hurdle.
Whereas again the second part I want to leave everybody with is, had they just done something here, we might have lost that summary judgment.
And then the last kind of proximate cause point I want to leave you with is what I call the proximate cause trap. So the enemy of proximate cause when we look at the cases, our cases and others, is probable cause. So Eve talked about this a little bit. The district always tried to make this case out to be that probable case would have been found anyway, regardless of whether this person was accommodated. And that really is the best argument to try to cabin you into this probable cause world that he would have been charged. He would have been arrested. That probable cause existed for both of those things.
So they wanted to define kind of the injury as, again, him being charged and arrested, and probable cause is so easy to find. For some of the defense attorneys amongst us, we all appreciate that the fourth amendment has this query whether the fourth amendment exists because of probable cause and how easy it is to find. The district's argument again is they would have found probable cause. Right? That's the injury here, right? That the or the lack of an injury was that because they would have found probable cause whether he was accommodated or not, there really is not a causal relation between their actions and the injury. The injury for them is just the probable cause determination.
So what we did was we said listen. We're not going to kind of fall in the proximate cause trap of probable cause. Because we're going to find the injury as as Eve said, as Jamie talked about, the confinement, and the prosecution. And so the prosecution, again. We all understand that's beyond a reasonable doubt. That's far more than probable cause. Right? And certainly the confinement, that is again more than just probable cause. And so when you define your case, or when you bring these cases, what's most important is to try to define the injury as something greater than probable cause. Greater than in a lot of cases I talk about well, the person who is suffering the disability was arrested because of the disability. Arrested, probable cause. Those are tough cases to win.
There are cases that talk about the person who was suffering the disability and wasn't accommodated was searched because the disability. And again those are cases that are tough to win. And the third type of cases that talk about someone who is charged because of the disability. So whether you're arrested, searched, charged, it's all probable cause. You want to avoid that and define the injury. It's not an arrest, it's not a charge, it's not a search or a seizure, but something like being killed. Something like being confined. Something like being wrongly prosecuted. All those things are kind of more than probable cause. All those things require kind of a fact intensive inquiry. All those things help you establish that link, that proximate cause link, between the discrimination and the injury.
JAMIE STRAWBRIDGE: And a quick, just to piggyback on that, the judge I mean to the extent this comes up in any other cases, the judge was really good on the two points that Kobie just mentioned. The first being that even if you have probable cause to make an arrest, that doesn't mean that the ADA stops applying. Of course not. The ADA continues to apply. And even if you have probable cause to arrest someone, ADA is going to should protect that person's rights from the point of arrest moving forward. A person needs an accommodation and they've been arrested, they still are entitled to an accommodation under the ADA. So I thought the judge did a nice job on that point, and also on the point that Kobie mentioned, which is that probable cause is a world away from a decision to prosecute.
You might have probable cause to make an arrest. You might have probable cause after conducting an interrogation. And hearing what a person has to say. But that is not the same thing as deciding to charge someone with a murder, try the case, and go forward with the prosecution. It's a very different inquiry. And that was important for us, the judge understood that clearly in the context of the ADA. Because that's really what our case turned on. It's really hard, like Kobie said, to say that in many cases it will be hard to say probable cause doesn't exist, just because it's such a low standard. But that distinction was important and the judge got it.
EVE HILL: And it was a constant discussion between the two sides, completely missing each other. Where they were saying, well, none of this over here was because of his disability and we would say you violated his rights at the beginning. The violation happened when he could not participate in his interrogation equally to other people. That's the violation. The rest of it isn't about liability. It's about damages. But they could not get their heads around that. Yes, we could take questions. Do we have a microphone somewhere?
Attendee: Hi I'm Darren Goldstein I'm an extremely old white male wearing a sport coat. One of the few times I've done that since retiring. When I first started listening to this presentation, I was thinking, well, you could do an end run around Cummings by including some common law torts, false imprisonment, malicious prosecution, or maybe a federal civil rights action. Once I finished he listening to Kobie, I was thinking boy, what a terrible mistake. Because the judge is going say about the false imprisonment, probable cause, it's out. Malicious prosecution, it's out. Civil rights action, qualified immunity, probable cause, it's out. Oh, and this remaining count, I'm sure probable cause plays in there as well.
And so I just want to point out that dilemma, because what looks like a possible solution could end up trapping you and getting your ADA claim thrown out.
KOBIE FLOWERS: Let me take it a step further. We dismissed the entire 1983 action and malicious prosecution, because of exactly what you said. And really leaning in to the power of the ADA, because it gets you out of the 1983 world of probable cause or the malicious prosecution world of probable cause. Where a judge who, you know, is making it difficult for you, will go ahead and say well, you lose on 1983, you lose on malicious prosecution, you might as well lose on the ADA. So we were channeling our inner Dan Goldstein a couple of years ago, understand this, particularly for the lawyers in the room, right, there's always the problem that we have of over lawyering and being afraid to say I understand my case, I understand my case theory, I understand what I'm trying to put before a jury. It's okay to go before the jury with one count being ADA.
EVE HILL: It's a little scary. I admit I was a little scared.
Attendee: Hi, I'm Elizabeth crook shank, white woman, black sweater. You were talking about arrests and searches and
KOBIE FLOWERS: Charges.
Attendee: And charges as sort of your 3 buckets of traps. I'm wondering if you've seen this probable cause issue come up in force cases, since those often arise in the context of disabled people encountering police.
KOBIE FLOWERS: When you say force cases, are you talking about use of force?
Attendee: Use of force in the context of an arrest.
KOBIE FLOWERS: That's a great. Give me your name again?
Attendee: Elizabeth.
KOBIE FLOWERS: It's a great question, Elizabeth. Let's take our typical use of force case. Now, in fact, Eve, if you could go back to the slide there we go. That's a use of force case, right? If the police officers actually shoot the person who's in the mental health crisis, right?
EVE HILL: Which they did.
KOBIE FLOWERS: So if we as lawyers bring the case as a 1983 case, then you're in this it's not really probable cause, but you're in the did the police officers act reasonably and that's a world they're typically going to lose because they're going to say hey, the person wasn't following orders, and that's why we shot them. Right? But you could reframe that exact case in the ADA world and talk about well, because there was no accommodation, that's why the injury was he died. Right? And so again, the argument in the ADA world is you either accommodated the person, or you didn't. And as long as I can link that discrimination to the injury, here a death, then I'm good.
As opposed to dealing with whether it's probable cause or whether it's the reasonable actions of a police officer, I stay out of that world where it is tough to win. Because it's Fourth Amendment world, query whether we have a Fourth amendment. Great question. And the take home is really how you frame your case and really realizing how powerful the ADA is, and you get to do as Eve so well said, kind of have this fight between we're fighting about the ADA and they're fighting about something else.
EVE HILL: We have that case with the death. And the argument is no, the conversation had to happen way earlier than the police want to focus on. They want to focus on that moment when they shot. And we want to focus on dispatch. And who did you ask to come and why didn't you send a CIT, at least one trained officer? And why didn't you deescalate the situation? And why didn't you do these things that are in the ADA world way before you got to the point of shooting.
Hi, this is Julia, brown frizzy hair, beige jacket, white person. So in this case they can allege extension circumstances. I was interested in the interrogation room when there was a seizure involved, did you guys consider bringing up the communication argument? Because I do believe it might solve your proximate cause issue. Somebody is required to have reasonable access.
And mental illnesses and if that is visible if you can prove they knew or should have known, the officer would have been required to stop and alter. I was curious if the communication aspect leads to an injury just by being denied access or if I'm wrong about that E you're not wrong. We didn't do it. Part of it is because part of the communication mandate applies to people other than with hearing and vision and speech disabilities is a little new and we didn't want every piece of our case to be new.
KOBIE FLOWERS: Let me add to the newness, what Eve was saying. This is the first case where the ADA was applied to police interrogations.
[Off microphone]
KOBIE FLOWERS: I'm more than happy this is why you do this, if you've got prior case, let us know. But for police interrogation, different from an interview.
[Off microphone]
KOBIE FLOWERS: Send it our way. I would love to learn. For a police interrogation, that was before we actually got an opinion from Judge Bates we knew, or at least we thought we knew, we were kind of taking a median voyage here. And of course that's what's difficult to bring these cases. Because one of the defenses for the police is look like, we're interrogating murder suspects, they're like that's our room. It's a constitution ADA free zone. So this is the first time we were able to crack that room with the ADA, in this case, unless you've got one for us.
[Off microphone]
EVE HILL: Or questions?
Attendee: I'm a white male with a blue suit on and I'm Kyle Smiddie and work in the Civil Rights Division. Eve used to be my boss. Nice to see you. I'm stuck on one of the first things you said, Eve, about what an interrogation is supposed to be for. And I wanted you to explore that and go back to that a little bit. The difference for what you guys think it should be for, the truth. And what they think it should be for. I can't get that out of my head.
EVE HILL: It was shocking to me too. It was in the depositions. You want to talk about how they saw the point of interrogation.
KOBIE FLOWERS: It's kind of more what I said earlier they think it's their room and they're going to do what they've got to do. And everyone knows in this room, right, police are allowed to lie, they're allowed to raise their voice, they're allowed to intimidate, they're allowed to do whatever they feel they need to do to get to the truth, and I put that in air quotes. And that's why again, to be able to say, even in that oftentimes hostile edge environment the ADA applies, it's a big deal.
EVE HILL: They were throughout, it was clear the investigation wasn't about getting to the truth. The interrogation in particular was about getting this person to be prosecutable.
KOBIE FLOWERS: Let me add to that. So even now the district reportedly is teaching homicide detectives to kind of go through crisis intervention training before
EVE HILL: They never had they never trained. They trained some police officers in crisis intervention training, but they've never trained any detectives. There was no training at all for detectives in accommodating people in a mental health crisis or any other disability. So they were clear that it was not their job.
KOBIE FLOWERS: It was a prideful thing for them, right? When you become a homicide detective, you're the cream of the crop as a homicide detective. And again that's a place where you're in that room, that's your kingdom. And we don't talk about crisis intervention, ADA. We talk about the truth, in air quotes. Again, big deal that we were able to crack the code.
EVE HILL: And some of those things are going to be fun to present to the jury. I mean when you present to the jury that the detectives do not see their job as being to get to the truth but only to be able to prosecute this person, I thought a jury would like that very much.
Attendee: Yeah I think it's really helpful for us in this room to realize that people who were working after the police to think like them, to be like them, to understand where they're coming from. And not just put our biases, but to understand where they're coming from and to try to help them understand where we're coming from.
EVE HILL: Yes. They find that very helpful. More questions in the back.
Attendee: Thank you, Al Elia from the civil rights education enforcement center, white male, beard, brown hair, blue vest. We have a couple of cases where, unfortunately, you know, the police showed up to a person having a crisis. Where that person having a crisis, you know, sort of acted threateningly when they showed up. They knew it was called in as a mental health crisis.
Are you saying that the best way to approach that is to say, well, you know, you were wrong to send an officer or an officer who wasn't trained in CIT, and so therefore the fact that when the officer showed up, the person was acting threateningly is irrelevant to whether it was reasonable to shoot them, or is it also at the point where the police officer who shows up and knows that the person is having a crisis, also didn't, for instance, you know, retreat some other sort of act that would have accommodated the disability
EVE HILL: In our current case, we're arguing both. That when they knew it was a potential mental health crisis, the dispatch should have dispatched a CIT team, and then when the officers arrived and confirmed that it was a mental health crisis, they should have taken a variety of different actions. But we haven't won that case yet.
Attendee: Right. But I will say though, Al, what Eve is saying, there's a great case over in DC where the civil rights division jumped in and kind of dealing with that issue, Al, and I love how they framed it. They said listen. When someone is in the throes of a physical health crisis, you send the EMTs. People who are trained to deal with the physical health crisis.
When someone is in the throes of a mental health crisis in DC, as this complaint alleges, you send people who are not trained.
That's discrimination.
EVE HILL: Steve?
Steve: Steve Gordon from the U.S. attorney's office out in Alexandria. I'm wearing a blue suit, gray hair. Glasses. So the Arc of the United States has worked with the international association of the chief of police on a model policy for interacting with people with intellectual and developmental disabilities and it has some types of accommodations in there for questioning people, such as having a support person present. And I think in the UK they actually will allow you to on a mandatory basis without after a Miranda type of warning, have counsel present.
What was the menu of accommodations that you guys considered? And I think the IACP modeled policy, along with they have a concept paper and a fact sheet for it, is a fairly useful thing that I've pointed out to law enforcement in the past as well.
JAMIE STRAWBRIDGE: It's a good question, Steve. We did retain a police practices expert to talk about different accommodations that could have occurred during the interrogation. The principal one I think, or at least the one we talked about as being straightforward is bringing someone in to deescalate and then resuming. We didn't argue that that was the only possible interrogation, only that it would have been extremely straightforward, including because the district does have a training program for crisis intervention officers and is even now trying
I mean has set kind of benchmarks for we want this many trained by this year. I would have to remind myself, a couple of other different options and I would have to remind myself and go back and look. But that was the main one we focused on
EVE HILL: We have a list of six, but I don't remember all of them.
KOBIE FLOWERS: Yeah, and one was just you know, like they do in DC. If you're a patrol officer, not a homicide person, and you find somebody on the street who's in the throes of a mental health crisis, you can take them to the hospital. They could have done that here.
So, yeah. There is the once he is out of his mental health crisis and able to express himself, might want to get a lawyer. So there were just a bunch of things that we had kind of developed, as Jamie said, through our expert, who is a former police officer himself, out of San Antonio, which is he's got a reputation for taking crisis intervention seriously. Despite an issue.
Attendee: Hi. I'm Cheryl Rust. I'm also with the Civil Rights Division. I'm a white woman with brown hair wearing a black jacket and green dress. I completely hear you about looking for the cases with the cleanest facts and that's also the ones where sometimes the most egregious consequences have happened and there's no shortage of those. I was curious if you've had thoughts as the law is hopefully incrementally built in a better correction, what would you be looking for strategically in a case that gets more at the messy middle ground, where maybe there was some attempt at accommodations or CIT came but didn't actually do proper de escalation or other techniques. I was curious if you had thoughts about how to get at those cases or if because of the ADA and proximate cause it's hard to get there and not the right vehicle.
EVE HILL: I think it's still hard to get there right now. I would look for cases with the most both knowledge on their part about what should have been done compared to what actually happened. So in a way you'll be looking at places that are doing a better job, ironically, and messed it up. So then you'll have the deliberate indifference that you'll need for damages.
KOBIE FLOWERS: 100% agree with what Eve says. And I'll go back to my old civil rights days. I'm always concerned about bringing those cases because you don't want to do what? Create bad law. And so it's always tricky. But we also want to push the law and have the courage to push the law. So.
EVE HILL: Counting on you.
KOBIE FLOWERS: Exactly.
Attendee: Hi. My name is Jeff Miller with American University and Gallaudet University. Thanks so much for this presentation, really interesting and very clearly presented. I really appreciate it. My question, and this might come a bit from ignorance here if bee go back to Cummings for a moment. I was kind of curious as you were describing damages that are available, and we're sort of going down through the list. And it seemed to me, as the defense attorney, I would be arguing at each of those points, yeah it's emotional damage. Everything is emotional damages. And I was wondering if maybe you could just talk a little bit, to the extent that you can, about how that negotiate went. I understand at the end, which is a great argument, let's go take it to the jury, I don't think they're going to understand this fine distinction. But I'm curious as a matter of law how we should how you all think we should be handling that issue.
EVE HILL: Yeah. The way I'm going after damages these days is, it's flipping exactly what you said on its head. None of it is emotional damages. We've just been lazy and we've called it emotional damages. It's the loss of your education. It's the loss of your freedom. It's the loss of your time to do, to spend time with your family. These are not emotional distress. These are losses that you experienced. And you can count them in time. And then you can value time, which is a great thing.
So getting further and further away, and treating it more like, yes, we used to throw all those things in an emotional distress bucket, but we don't anymore. Now we really talk about them in all the ways that they are consequences, that they are losses, that they are denials of something, as opposed to I just felt bad about it. So we just keep saying emotional distress damage, yes, that's where you felt bad about something. We've talking about you lost the opportunity to do something. You lost the opportunity to experience something. So it's really making us do a lot more work, but so far, so far there are what, four cases that have done this. And they're keeping damages alive. So there's hope.
And then it's also the, once you get to a jury, the jury is going to go yeah, that was a loss. And seems like a big one to me. So I'll put a big price tag on it. Do you want to add to that?
KOBIE FLOWERS: No. Period. I want to put a period on it.
Bob Williams. Was there an attorney in that interrogation and if not, why not.
EVE HILL: There was no attorney in that interrogation. It was just Mr. Montgomery and the two officers and he did not at that time have the ability to have an attorney with him.
KOBIE FLOWERS: Talk about a loss of opportunity.
EVE HILL: Yes?
I know I already asked a question.
EVE HILL: No problem. You can ask more than one.
Attendee: I have a case I'm kind of curious. We have a case in which our client's disability was post-traumatic stress disorder he knew it I told them I'm 100% disabled I can't function without a service dog. He said that exact phrase to the officer. And I'm just they have argued that the exacerbation of his PTSD from his violent arrest constitutes emotional stress. We argued no it's an exacerbation of his disability, just like any physical disability would not count as emotional distress damages. So I guess my broader question I'm curious how you would argue about that, think about that. But I'm curious more generally. How do you argue in the absence of sort of on point cases to distinguish between you said we've been lazy and putting these things in the bucket of emotional distress, but they're not. How do you sort of put a point on that for a judge, if the case law categorizes all that stuff as emotional distress.
EVE HILL: Yeah. I think you go, in part you go back to Kobie's example of what we would do in a physical for a physical injury, versus a mental injury. And if they exacerbated a physical injury, you would call it an injury. You would call it damages. Exacerbating a mental health injury is exactly the same. Exactly the same. It's not what we call garden variety emotional distress damages. And that's what I'm trying to argue Cummings ruled out. It only ruled out garden variety emotional distress damages. The rest of them are really something else. And it can be exacerbation of a disability, which should be treated the same way as exacerbation of a physical disability. I would try that, anyway.
Attendee: That was our goal. Just on that point, looking at other torts, wrongful improvement, you take classes, all sorts of other things, but there's still loss of liberty, even if there was no emotional distress. And I think with things like spending five years in St. Elizabeth's which is what, the fourth circle of hell, third circle? The argument, I think, has to be, being confined for five years stands apart from how you dealt with it, how you felt about it.
EVE HILL: Exactly.
KOBIE FLOWERS: Talk about a loss of opportunity. Living at St. Elizabeth's for five years.
EVE HILL: The other thing they wanted to argue, he didn't have that much opportunity anyway. He was a homeless guy. So we had to talk about freedom a lot.
KOBIE FLOWERS: Which is what they argued at the trial stage. So when he was prosecuted criminally, and acquitted, prosecute whose name I won't say, we've had our run ins, but her argument essentially was you shouldn't care about this person. He's homeless. He's got mental health issues. Therefore he is dangerous and a murderer. So it's just a complete leaning in to dehumanizing a human. And fortunately he was acquitted. That argument didn't work, so.
But you know, it came after five years of him sitting at St. E's.
The other thing I will say, I mean for folks who like yourself who are litigating these cases and trying these cases, thinking about these issues is why I love tenBroek and let's kind of keep the conversation going. You know, I would love to see the case where they held that ADA applies to an interrogation. So let's kind of keep everybody growing and learning from each other. Because as you so well said, Elizabeth, there's no law out there. And so that's why, you know, we've got to be really it's not just good enough to be like the best lawyers in the courtroom. You've got to have vision and see how we can get the law to that kind of normative place and a place where it should be. And as I say all the time, this type of lawyering is not for everybody. It's easy when, you know, you've got the law on your side and you're just citing holdings, right?
Attendee: This is Julia again. Wouldn't you agree that also to be able to be visionaries that means that the legal field needs to reconcile and figure out how to get more disabled lawyers?
KOBIE FLOWERS: 100%.
Attendee: Just wanted to plug that.
EVE HILL: And one of the things that we've been comparing this case and others to is the hospital cases where you say the denial of an interpreter, whether it resulted in bad medical care or not, is itself the violation here. You were denied this opportunity to have a real conversation with your medical care provider, like Mr. Montgomery was denied the real opportunity to have a real conversation, interrogation, if you will, with the officers who were investigating this crime. So pushing that liability into the very front of it. And that opportunity. And then forcing the jury to think about what would that what would that loss of opportunity mean to me, and then showing what it meant to Mr. Montgomery or to the person who went into a procedure, not knowing what they were being operated on for, and those kinds of things.
Are we done? We appear to be done. Thank you all so much. This was lovely.
KOBIE FLOWERS: Thank you so much.
[ Applause ]
EVE HILL: And every kind of damages you get post Cummings we have to share to the DRBA, because that's going to educate us all about how to get more damages post Cummings. So thank you all so much for your ideas.
[ Applause ]