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.
JENNIFER MATHIS: Hi, thanks, all, for being here for the last session of tenBroek.
We're going to talk to you a little bit in this session about this issue of emergency response systems discriminating against people with mental health disabilities through sending law enforcement as the primary responder to mental health emergency calls rather than sending a health response which would be sent to any other health emergency.
We're going to focus a little bit on what the details of this problem are, what it looks like in different jurisdictions, some of the solutions, what we should be asking for.
Some of the legal issues that are coming up in the litigation that's been starting to happen in this area.
I want to emphasize one thing before I turn it over to Carlean, which is that this is really sort of a new approach to policing. I want to make that clear.
There have been cases for many years that have been are explored concerning how the police respond to people with a variety of disabilities, people with psychiatric disabilities, people with diabetes, people with epilepsy, people with I/DD and other disabilities, and whether the police should conduct themselves differently, whether they should change their practices, how they interact with people, how they recognize when somebody has a disability.
This is not really about how the police conduct themselves. This issue that we're talking about today is really sort of a new set of issues about looking at the emergency response system and why it is dispatching a police responder in the first place.
You know, can we dispatch a different responder? Why is it that we automatically send police when the emergency is a mental health issue.
I just want to make that clear.
There are still cases and certainly the Justice Department still continues to look at how the police conduct themselves as part of their larger policing work, but we are focused on the emergency response system itself.
I'm going to turn it over to Carlean to talk a little bit about the problem.
CARLEAN PONDER: Hi, everybody. Carlean Ponder.
Thank you, Jennifer, for the introduction.
Just a little bit about me, my professional background has mainly been in disability in one form or another.
As an attorney I worked for the Social Security Administration for more than a decade doing disability adjudication work there.
At the same time, I got involved at the local level in my community around policing, and it happened to involve policing and that intersection of mental health because a neighbor of mine was killed by police in one of the interactions that you've heard about and will continue to hear about and I'll talk more about in detail during this session.
Then I went over and joined the disability rights advocacy community as a professional.
I was with the Arc of the United States, expressly brought over to do this work around policing and disability and race. Race has to be at the forefront of this work when we're talking about the criminal justice system in general, but especially when we're looking at that intersection of mental health and disability.
But it often isn't. It's something that people tend to shy away from.
From there I went over to the Autism Society of America, where they had an initiative to start what was called the Autism Justice Center to look at the work again from the angle of autistic people who are impacted by some aspect of the criminal justice system.
But sadly this work is needed but it has not been sustained in the disability rights organizations, which is why I am now introduced as attorney and advocate because I've had to transition out of both of those roles due to funding.
I'll be returning to legal practice but joining you all again as an advocate in the community when I can.
Jennifer is right.
We're talking about a new approach to how these cases have been handled when it involves police contact with somebody with a mental health disability or some other form of a developmental disability. The Justice Department, under Jennifer's tutelage, when she was there, did fantastic work I think around this issue in calling out, you know, things like emergency dispatchers and how they're trained and who we should be utilizing, which wasn't the traditional way of addressing these cases, but in talking about the problem, I think we got to look at how this particular issue has been handled historically. And unfortunately currently in most cases, and that is through the lens of policing and police impact.
To do that, I actually want to just talk to you about some of those seminal cases, those early cases that outline what the police can do upon coming into contact with anybody.
You know, the first being Graham v Conner, just to refamiliarize yourself with an old case but obviously very important case that talks about the objectively reasonable standard. What's a reasonable person, a reasonable officer on the scene to do when he comes across a situation.
The reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene. So the reasonable person standard, which I remember in law school being very problematic, right?
Who is the reasonable person? What is that reasonable person familiar with in terms of neighborhoods, culture, community.
In this case in terms of behaviors, behaviors that can stem from a mental health disability or developmental disability.
Then we look at Tennessee v Garner in 1985, and that's the case that established what an officer can do when the officer believes that somebody is fleeing.
It says he or she may not use deadly force to prevent escape, unless the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.
Again, kind of goes back to that reasonable officer standard and what's posing a significant threat of death or physical injury? Is it somebody who is standing 6 feet away from you? 10 feet away from you?
Maybe they make a move as if they're going to walk toward you?
Is that a significant threat of death?
Or is it somebody who is described as acting erratically and maybe they're doing jumping jacks and yelling and you're afraid? Significant threat of death or physical injury.
Then more recently, Kisela v Hughes which addresses qualified immunity. It has one of the best dissents ever from Justice Sotomayor and Justice Ginsburg, the one where the dissent talked about shooting first and asking questions later.
In that case it involved a woman with a mental health disability.
Although this woman was white, as I understand it, and the officers were at least 6 feet away from her before opening fire upon her. She did have a kitchen knife with her. She had been using the kitchen knife to chop down some bushes or something, some limbs off of a tree in her garden, and although she appeared calm and peaceable, officers said that she took a step towards them or a step towards the woman she was in contact with, and so they opened fire.
Although their conduct was considered unreasonable, they were protected by qualified immunity because there was no clear finding in the law that talked about, you know, I guess maybe how far the person has to be from you, you know, the fact that there was a fence between her and the other woman or a fence between her and the officers.
Was it reasonable or not reasonable for the officers to think that she was a threat.
If that's not clearly stated in another case, that same situation, those same facts and qualified immunity apply.
I think it's important to look at that because when we take a deeper look at some of the cases involving fatal shootings of people with mental health disabilities in the community, you see that that language, that logic, that rationale popping up in how the police justify their actions.
It also comes up again when we're discussing who appropriate emergency responders are.
I'll talk a little bit about that as well because one of the frequent push backs that we get from police in general but sometimes from people who are in social services as well is, well, you just never know when a situation can turn dangerous, so you need police there. So that's a frequent push back that we get.
In the case of my neighbor, who was shot and killed as he was walking down the street, here's some of the things from the officer himself as part of the investigative file.
It says, the officer was drawn to Robert White, the man who was killed, as he observed that Robert had a large rip in the fabric on the upper back of his outer garment.
Because he abruptly moved his right hand to the side of his body, that was enough for the officer to deem Robert suspicious.
He's not talking about any type of mental health known movements or behaviors here. This is pure racial profiling.
That's what it is.
Robert White was a Black man.
You can't get away from that intersection of like race and disability, because that's the first thing that draws him to Robert is his blackness.
Then from there, the officer starts talking about some of Robert's behaviors which could be connected to disability, in which the officer perceived as being part of a mental health issue. At one point Robert made contact with the officer while yelling at him, telling the officer to just shoot him!
Just shoot me! Just shoot me!
The officer understood at this point that this was somebody that was either having a mental health issue or somebody who was living with mental illness, but that didn't change the way that he engaged with Robert. In fact, he continued to escalate, pursue him, and eventually shot him and killed him.
He shot him multiple times.
I think it's important to talk about that from the perspective of how we do policing, recognizing the role of police brutality, because that has been the standard for so long when encountering Black people in the community, and then from there bringing in disability.
I think it's important for us when we do this work to make sure that we're talking about all of those aspects, because, well, part of the problem I think is that the communities are too siloed. We have a disability community, the mental health community, and the policing community somewhere else.
All of these issues are interrelated. I think if we're going to get to the solution, we've got to be working together and that's got to be bringing those communities in together at that level.
There was really no talk in this one of bringing in appropriate mental health professionals or responders. This was only a few years ago, but that just wasn't really on the radar of the police department or the community.
I mean, we're so focused on the police response as being the appropriate response.
There was community intervention. I was part of that.
We raised that issue about the lack of mental health professionals being called in, particularly once the officer knew that mental health was a factor in the way that Robert responded to him.
We made that part of the community conversation.
I just want to check my time.
JENNIFER MATHIS: Couple more minutes.
CARLEAN PONDER: Okay. I have a couple more minutes so I'm going to have to speed this up.
But I would like to tell you that miracles happened after that.
A lot of things did happen in terms of like policy, in terms of getting expanded mental health teams out on the ground, but as you know, the devil's always in the details.
One of the more surprising things that we ran into was even when you do have mental health teams, if you're grounded in this police response, as most communities are, when you're grounded in the police response, even the mental health teams can prefer to have that police presence with them, or for the police to be first on the scene and then to call in the mental health responders.
I wanted to get into another situation involving a young man named Ryan Larue, who was in his car and clearly not coherent when officers encountered him. They called crisis negotiators.
Now, what they meant by crisis negotiators, I don't think they meant adequately trained mental health professionals, but crisis negotiators from the police department.
The negotiators were 2 minutes away.
They were called.
In all of this is documented in the investigative report. 2 minutes away, officers hatched a plan on the scene for how to surround Mr.
Larue's car and they were going to pull him from the car and there was a gun on the passenger seat that he wasn't using, but they hatched this plan that was like pure escalation. They couldn't wait 2 minutes for the crisis negotiators to come.
They opened fire and shot that young man multiple times. I think he was 21-22 at the time he was killed.
That's the problem! The problem is that we are not utilizing the best resources.
We are not enforcing that those resources have to be used, right?
Like what was the urgency?
You couldn't wait 2 minutes?
Then this is just a chart of how crisis response is done in my community.
I encourage people to check this out.
But it's a lot disappointing.
Level one calls in which there is no police response, for it to be a level one call, there has to be no report of weapons or current violence, threats of aggression, report of client history of violence within the past 12 months, no evidence of active self injury, no weapons or means of harm, no imminent dangers to others.
If you can't check all of these boxes, so when a call comes in and dispatch is trying to figure out who they're going to send to the call, if all these boxes aren't perfectly checked, you get a police response.
We have to do better than that.
I will now turn it back over to..
JENNIFER MATHIS: I guess this is to me for the solutions.
Carlean laid out a lot of what happens when police respond to a mental health emergency call, in addition to people dying, people being shot. Certainly we have lots of folks being injured, being arrested, being incarcerated, being unnecessarily hospitalized, and just not being able to get the help that they need.
What should we be asking for?
What should we be looking for?
I think the way that SAMHSA, the federal mental health agency, thinks about this conceptualized crisis response is someone to call, someone to respond, and somewhere to go. And right now what happens when you have a mental health emergency is the someone to call is people tend to call 911.
Now there is 988. In addition, there are crisis hotlines.
But number one, not everybody knows about 988 still, and the default is most people still call 911.
Even if you have crisis hotlines, other places for people to call, if those are completely separate from 911, then those are not going to deflect a police response to a lot of calls that shouldn't get a police response. So essentially when you have the someplace to call, or someone to call, the 911 system has to be able to connect to the crisis response because you need one call center where instead of sending a police response, they can decide to send a mobile crisis response or other alternative response. So there needs to be sort of an integration between the 911 system and mobile crisis system, and of course many jurisdictions don't even have a mobile crisis system.
Most I think at this point have some type of mobile crisis capacity, but in many of those cases too, it's not integrated with 911; it's just completely separate.
Then someone to respond. So that is sort of the mobile crisis response, rather than the police response for all of the reasons that Carlean just talked about. We have this system of mobile crisis, we've had it for many, many years, it just has not been connected into the 911 responder emergency response system.
Typically you have mental health professionals, usually a social worker, some kind of clinician, and you might have a peer support specialist too, somebody with lived experience of a psychiatric disability, somebody who has had emergency responders respond to them, somebody who has been hospitalized, who has been in the mental health system.
There are many trained peer support specialists all over the country who play those roles.
You sometimes might see an EMT along with a mental health professional or an EMT along with a peer support specialist or mental health specialist or some combination thereof. Usually 2-3 people, no more than that because more than that is chaotic and gets overwhelming.
Sometimes police are there.
Sometimes police have then brought in the mobile crisis response. When that happens where you do have police on the scene, whether because some jurisdictions only send coresponse teams, which have both police and mobile crisis responders.
They sent police and mobile crisis was brought in.
It is important that typically the mental health response should lead. These are I think in situations where somebody is not pointing a gun at somebody else, where there's not an immediate public safety issue that would warrant a police response or police officer to be in the lead.
The majority of the mental health calls that come into emergency response systems tend to be calls where there isn't a need for a police response that's warranted. So in those situations, the mental health person should lead rather than the police leading because that makes all the difference in the world in how the interactions go.
That is something that SAMHSA has talked about and it has crisis guidelines on this issue.
It actually just put out a mobile crisis tool kit that is out for public comment.
Comments are actually due today.
But the federal government has acknowledged that that's how things ought to work, ought to look in a good crisis response system.
Obviously crisis response should be available 24/7 because if it's not, then people don't stop having crises after hours. The crisis response system needs to be able to respond to people whenever they need it, whenever they have a crisis, and right now many jurisdictions will have crisis services available during the daytime hours and that's it.
Don't have a crisis at night.
Obviously in many jurisdictions, you would need to expand the existing capacity, if you were a crisis response team, if you were to actually try to meet a goal of responding to those calls where a crisis response is necessary and appropriate.
Then finally, people have highlighted the importance of involving community members in setting up crisis response, and I'm going to turn back to Carlean just for a little discussion of that.
CARLEAN PONDER: Yes, I mean, I think that's why we were so effective in getting this issue on the books in the county that I live in and in the state. We went statewide. Because there was a lot of noise made by grassroots advocates on the ground.
We partnered with the families of both men who were killed, and then we partnered with organizations as well in the community.
Me of the traditional organizations like our local NAACP and our state ACLU, but then also lots of other organizations who just represented various parts of the community.
Although we didn't get a lot of participation from disability orgs and disability advocates.
That's what I meant when I said that we're too siloed and really need to think about this as, yes, it's a policing issue but it's also a disability issue and a mental health issue as well, and folks with developmental disabilities.
We've got to do a better job of merging the two.
But having that sustained grassroots activity and noise and campaign, organizing people to show up at local county council meetings.
Then when it was time to go up to the state legislature, submitting written testimony, sitting there all day so that you can be at the hearings and provide oral testimony.
The legislators get to know you, they know that the heat is on from the community, that's what moved the needle.
We need all of it. We need the litigation that's happening, but, you know, if that is disconnected from legislators in the local community feeling the pressure and then turning around and putting the pressure on the police chiefs and those kinds of folks?
I still think that we just don't get where we need to be with this issue.
This is an issue that's easy to solve.
I mean, we should not have police as primary responders to medical issues. We just shouldn't. I mean, it makes sense, people understand it when you break it down that way.
The risk of harm is just too high and the stats just too many involving the interactions of particularly Black people with any type of disability being most vulnerable to that type of harm.
All of that information is out there.
I just think that if we start doing the education in the community and saying to the community, you know, for those who are worried about being anti-police, this isn't anti-police. This is, let's just equip people and put the right professionals in the right job, like in the right places to be the ones to respond to the type of situations that they're actually trained for and that they want to be part of.
But with that, as I mentioned, you can sometimes run into issues with what I'll call entrenched social systems, maybe social work systems or medical systems who have longstanding relationships with the police department and doing this work in conjunction with the police department.
You can get some resistance there.
For example, if somebody is going to be removed on an emergency petition due to mental health reasons, even if there's a crisis response team out there in my community, the crisis response team has to call police.
That person has to be put in handcuffs and taken by a police for medical assistance.
That is often more traumatizing and dehumanizing in a way that it just doesn't need to be.
I did a program a few years ago on this whole intersection, and I had a social worker who leads a chapter in New York talk about some of the training that they're now doing in schools with people who want to be emergency crisis response workers.
It's a different form of training, because not everybody who gets a mental health degree or certificate is going to want to be the one to be out doing these types of interactions with the community. It could be 2:00 a.m. in the morning. It could be neighborhoods they're not familiar with. Could require languages that they don't speak.
Yeah, those are not going to be the best people even though they have the mental health training.
We really do need to think about how do we get a new cadre of people involved in this work, and how do we support them.
Is this something that we want to support financially?
I'll turn that back over.
JENNIFER MATHIS: Brian, do you want to go?
BRIAN DIMMICK: Thank you, Carlean.
Given the harms that can come from police responding to people with mental health crisis. And given the failure of most jurisdictions to adequately resource systems to provide alternative response, in the last few years, the ACLU, Bazelon, and some other allies have been thinking about strategies to use litigation as a tool for change.
I will just say to reiterate, litigation is only one piece of the change.
I think that it is important to involve the community.
The community may have different ideas.
They know the providers and the people who -- they might, for example, trust the county behavioral Health Department to provide a non-police response or they may not.
There are questions you want to involve the community in to figure out how to set up the mobile response system.
In the cases that I'm going to talk about, we at the ACLU have tried to involve the community to help them advocate for and shape a response, alternative response, that suits the community needs.
I'm going to talk about a couple of cases that the ACLU has brought plus a third one and just get an overview of the facts and the process.
But before I do that, in a lot of ways this started with some work that DoJ has been doing in their investigations on these issues over the past few years, especially in the last Administration.
I'm going to let Jennifer say a bit about the investigation in Louisville, Minneapolis, and others.
JENNIFER MATHIS: Sure. I'll just do this quickly.
DoJ did a number of investigations and issued a number of findings letters on this topic while I was there.
That was some of the foundation on which the litigation that came after has been built.
First, in March of 2023, DoJ issued findings with respect to the Louisville metro government and the Louisville police department. And those included for the very first time a set of findings that a jurisdiction violated the ADA by sending the police as the default response to mental health, behavioral health emergency calls rather than sending a health response.
DoJ said that is unequal treatment and also a failure to make reasonable modifications for people with mental health disabilities.
In June of that year, we issued findings that were similar in Minneapolis. Obviously Louisville and Minneapolis track some of the high-profile police shootings that had happened.
Then we also issued findings later in Phoenix. In Phoenix, I think the big difference from Louisville and Minneapolis was that the city had invested a lot of money into crisis capacity embedded in its 911 system; they just didn't use it because the call dispatchers would never send calls over to that side of the call center.
Then we also issued findings in Memphis, and then in Oklahoma City.
Most of those were all part of a larger set of findings around police response generally that looked at police conduct, that looked at race discrimination, that looked at unconstitutional use of force, that looked at many other issues.
But in Oklahoma City, that was the first one that was purely about the ADA.
That one was issued in January of 2025. Two of those had negotiated consent decrees. Those are both pending before judges.
We will see what happens and whether the Department of Justice continues to seek consent decrees in those cases.
But in any event, that's sort of the foundation.
I will turn it back over to Brian to talk about some litigation that he and Michael were involved with.
BRIAN DIMMICK: Thanks, Jennifer.
Yes, the ACLU has been involved in two cases. One in Washington, D.C., and one in Oregon, that challenged the use of police as the default response to a mental health crisis. Tom set the table for me here by mentioning these cases this morning.
In both cases the jurisdiction has an alternative response program, where they had teams of people. They just don't use it.
These programs are so understaffed, underresourced, underutilized that they're just practically not effective.
So that's one major issue.
They are not being dispatched. So it's a major concern that you have a program and it's not being used.
That's why we chose litigation.
In the D.C. case, D.C. has what's called the access help line that you can call associated with mental health crisis teams that can be sent out.
But again, they're understaffed and not used by 911 dispatch.
In 2022, the year before we filed the lawsuit, they responded to less than 1% of mental health calls and D.C. police responded to 84% of the calls, even with this program in place. It's just not being used.
The access help line told us the response time was often several hours as opposed to 5-10 minutes when you call for police. And often when the 911 dispatchers would try to call in normal crisis teams, no one would answer the phone so they would just end up having to send police anyway.
Another issue in D.C. that we focused on is that D.C. does have crisis intervention officers, police who are ostensibly trained to respond to these situations, but they don't receive much training. They get at most 40 hours of training where peer support specialists have to have 100 hours, and mental health clinicians get a lot more than that. We're not saying that more training would fix the problem, but even when jurisdictions are trying to do training, it's just nowhere near adequate.
For all of those reasons, D.C. had just a number of issues that we wanted to highlight.
We filed this case in July of 2023. Our client, our plaintiff, is a social service organization that provides mental health services and has unfortunately experiences with people having mental health crises at their facilities.
They found when they called 911, police would respond.
It would harm the person who was involved.
It would also erode the trust that they had with their other clients who saw the police coming in.
They stopped calling 911. They trained their own staff rather than relying on what the city was providing.
We filed the case at the ACLU of D.C. We survived a motion to dismiss in September when the judge rejected the city's arguments in a very nice opinion. The only unfortunate thing about it is she read it from the bench and did not issue a written opinion, but the transcript is great and worth reading.
We are now in discovery there.
Now to talk about our case in Oregon with disability rights Oregon, the Washington County, it's a similar setup.
We filed that in 2024. Our plaintiff was Oregon P&A, counsel with ACLU of Oregon.
Washington County is a -- it has similarities with Portland.
But it is demographically different from Washington, D.C.
But they have a lot of the same issues that D.C. had and we see all over the country.
The private provider they contracted with to provide nonpolice mental health response is, again, rarely used, dispatched only 100 times in 2 years. So it's not being resourced, not being used, not available 24/7.
And it's also not integrated with the 911 dispatch system.
When it ended up being that police were usually called to then dispatch the nonpolice response, and usually when police are dispatched, they take the response themselves.
That was another major issue in Oregon and in other places.
And again, we see the same response rates of nonpolice responders.
We filed that case.
We sued both the county and the agency that runs the dispatch system which is a multigovernmental agency.
They filed a motion to dismiss.
That judge issued a very nice opinion in August recommending rejection of those arguments, and we are now waiting for the district judge to rule on the motion.
So with that foundation laid, I just wanted to go through a little about the legal theories under which we're challenging these systems.
First, our main argument in these cases -- sorry, before I do that, I wanted to mention one more case that I meant to go through.
That is Green v. city of New York, a New York City case, not brought by us, but somewhat similar in that it was challenging the failure of the NYPD to adequately respond to mental health crises, and asking for an alternative crisis response system as a remedy. It's a bit different factually because it was specifically challenging a couple of New York policies that required NYPD officers to respond and to detain and send for evaluation anyone who was considered to be so-called emotionally disturbed and any kind of suggestion of threat or emotional disturbance, whether it was substantiated or whether there was any threat.
It was focused on these specific policies.
There was a motion to dismiss which was unfortunately granted. The district court focused on the fact that it was challenging these policies, and it was focused on the substance of the service being provided and not on discrimination between people with disabilities and people without disabilities.
It did allow certain reasonable accommodation claims to go forward against the NYPD, but it did not accept the threat or challenge to the system.
The plaintiffs have amended their complaint to allege facts more along the lines of what we have alleged in D.C. and Oregon, and there is another motion to dismiss.
Going back to the legal theories, the focus of our argument is that the emergency response program that D.C. and Oregon and Washington County are running is denying an equal opportunity to participate to people with disabilities, mental health disabilities, and is also denying them an equal benefit from that program.
Just to reiterate what Jennifer raised at the beginning, our focus is not on the police action, what happens once they get to the scene; it is on the upstream decision to dispatch and who gets sent, why, what information the dispatcher has, and what resources are available to be dispatched. Jurisdictions are not providing the resource, and when that happens, you can't dispatch something that doesn't exist. So we are really focused on changing that system, not on the police interactions.
They're part of the story to show the harm, but they're not directly part of that claim.
So we are arguing that there's a denial of equal opportunity here because people don't have the same -- if you're in a mental health crisis, you don't have the same opportunity to participate in the program. And quickly the relationship between that and meaningful access, we are saying both that you don't have an equal opportunity and that you are being denied meaningful access to the emergency response program. In Washington County, the court helpfully found that basically the standards are the same, but the meaningful access standard that comes from Alexander incorporates the regulations and sort of includes the obligation to provide equal opportunity.
It's kind of the same standard.
Also we're arguing that there is no equal benefit, that people with mental health disabilities doesn't get the same benefit that people without disabilities get.
The program here is the emergency response system that is designed to field calls for help from calls, other contacts through the system, or from 911, and designed to send out a response that is appropriate and designed to help.
People with physical health crises like low blood sugar emergency through diabetes or a stroke, they get a response that is medical, that is adequately trained and resourced, and that is designed to help.
They get an EMT or paramedic who can assess the situation, can provide stabilizing treatment, and can then transport them to a place where they can get additional treatment if needed.
But the people with mental health disabilities get a police response that is not medical and not trained nor equipped to adequately respond and that is likely to cause harm rather than help because they are likely to exacerbate the symptoms of mental health crisis by their mere presence.
That's kind of in essence, there's less benefit to the response to an emergency for people with mental health disabilities than people with physical health disabilities.
That raises a lot of interesting questions which Michael will get into in a minute, but that's the basic layout of our argument there.
That's one sort of key piece of this.
Now, we haven't focused so much on reasonable modifications in our briefing so far, but that is another useful lens to bring to these cases. So I'm going to turn it back over to Jennifer to talk about reasonable modification claims.
JENNIFER MATHIS: Yeah. DoJ, as I had mentioned, had included reasonable modification theories in their findings letters. I think there are a couple of reasons for that.
One is, and that was particularly true I think in the context of the Justice Department and all of the things that needed to happen there, it was important to have a claim that has some sort of I guess limiting principle in a way so when the judge asks what about the two-person police departments and what about police departments that have almost no resources available or counties that have very small police departments and very small budgets and all of that, that are you saying that you need to have those counties create some enormous crisis response that they don't have.
I think reasonable modification, similarly to Olmstead, where it was wrapped into the argument in order to provide a limiting principle into the integration mandate because nobody thought that the Supreme Court would accept the integration mandate as requiring that everybody always had to provide the most integrated setting no matter what, no matter how much it cost, no matter when, and all of that. Here there was some sense of a need for something that you could tell the judge was the limiting principle, that, you know, has to be reasonable.
There is that.
There is also some advantage where an equal opportunity claim can get messy, and this certainly happened I think in D.C., where the judge saw the equal opportunity claim as sort of a disparate impact type claim because people who have mental health emergencies are not 100% people having a mental health disability. So she was pushing hard to have a reasonable modification claim in front of her because I think it was cleaner and easier for her to conceive of.
There are some reasons why people have chosen to include reasonable modification claims.
Anyway, I will turn it over now to Michael to talk about some of the challenges that have come up in these cases and the counter arguments that have been raised.
MICHAEL PERLOFF: Thanks, Jennifer.
This case, although intuitive in a lot of ways, is legally complicated in many others.
I want to talk about three specific problems that come up in developing these arguments, and then Brian is going to talk about a fourth.
Those three issues are: Defining the program properly; thinking through how to compare mental and physical health emergencies; and finally, whether or not we're trying to create a new program.
Let's start with the first issue. How do we define the program.
This definitional question, how you define the program, is centrally related to the theory of discrimination that Brian spoke about.
If the program at issue is an emergency response system generally, the overarching system the community uses, this argument becomes pretty intuitive. Everyone calls 911. Most people get all of their medical needs addressed by trained medical professionals.
But the exception is people with mental health disabilities for whom when they have an emergency, or rather the emergencies they are most likely to experience or most likely to be associated with that community, are getting a cop, someone without the training, and trained in ways that are likely to be ineffective in helping the crisis.
That framing sounds pretty good.
But you could look at it differently.
You could say the program is really fire and emergency medical services. The group that goes and responds to most physical health crises.
If that's the program you're challenging, the claim becomes a lot more difficult.
In D.C., for instance, fire and emergency medical services rarely responds to mental health crises at all, and if you're saying it's discriminate for it not to provide a response, it does start to sound like you're asking the municipality to create a new program which the ADA and the Rehab Act don't require.
Or another example, and Brian spoke about the Green case. If you define the program as mental health transport and say there's discrimination there, that also creates challenges because mental health transports, that is transporting someone who is having a mental health crisis to a mental health hospital for some type of evaluation, that's something that almost exclusively occurs for people with mental health disabilities. And there's a good amount of authority in the second circuit holding that programs that exclusively serve people with mental health disabilities can't discriminate based on disability.
Different program definition, different outcomes.
How do we think through this problem?
I would say there are two key analytical moves that we have tried to take and others should consider taking. The first move is to think through what does it mean to say that two distinct government actions are integrated in a common program.
The second question is, if we do have a common program, do we look at the whole or its parts?
Let's go through these in turn.
Starting with that first issue.
How do we think through what it means for things to be part of a common program? In that respect, unfortunately there isn't a clean definition in the regs, but we do have dictionaries, and those are very en vogue these days.
(Laughter)
Merriam-Webster defines a program as a plan or system under which action may be taken towards a common goal.
That definition gives us several concepts that we can use to think through whether two government actions are really part of the same program. First we have this idea of a common goal.
The purpose needs to be the same.
Second, there's this idea of a system, some sense of interconnectedness between the government conduct.
Third, not expressly in the definition but I think it will be helpful later, some functional analysis. Are the government officials really undertaking the same functions, just in different contexts?
Is there a common goal? If you're addressing a mental or physical health crisis, your goal is to provide timely and effective care.
Is there interconnectedness? Well, you call the same number to get assistance for a mental or physical health crises, and the same employees are responsible for making dispatch determinations.
Is there shared functionality? I think the answer is yes. Whether addressing a mental or physical health crisis in both insurance instances officials are undertaking the primary tasks of assessing needs, attempting to stabilize, and ultimately connecting the person with follow-up care.
We have an argument that we can make -- I think a strong argument -- that an emergency response system is a program, as that term is used in the ADA and the Rehabilitation Act.
That's the first part of this inquiry.
The second part is are we going to look for discrimination in the program as a whole or in its sub parts?
The answer is, yes. You can discriminate programmatically or in your sub parts.
If you have a university and the university doesn't allow service dogs, the university as a whole is discriminating.
Likewise, if the film department says we aren't going to have captions on our film screenings for our students, the film department is discriminating.
Either level can work because the ADA doesn't require you to focus on one as opposed to the other.
So how does the court decide which level of generality to look at?
This is I think a great innovation that DoJ made.
They look to the legal claim. The legal claim tells the court where to look.
The legal claim identifies an area that's affected by discrimination and it's the court's job to assess whether that exists or not.
If the plaintiff has identified something that is in fact a program and alleges that that program discriminates programmatically, the court can assess that without having to break it down into each sub part and assess each part distinctly.
That's the general idea that we advance and the courts excepted in the Oregon case.
There are, though, two lurking legal issues that are here that are worth raising as well. One is a point that is very beneficial for the plaintiffs, which is that in Alexander v Chote said you can't use definitional claimsmanship to get out of it.
A lot of people are saying, well, we don't really have an emergency response program; we have something else.
At some level that's contorting what's really going on and contorting reality to avoid liability, and the Supreme Court said you can't do that.
The second principle is more challenging and I think more helpful for the defendants.
That is, can you really compare physical health and mental health emergencies?
Because that's what is really at issue in the program definition. We're setting up a definition of a program and essentially saying these are two like things. So distinctions between them are on some level giving rise to a claim of discrimination.
That question leads to the second major bucket of challenges that I want to talk about, which is the appropriateness of this comparison between physical and mental health emergencies and how you think about that.
One way you don't want to think about it is in terms of just pure parity. There's a lot of bad case law talking about the concept of parity not being required under the ADA or Rehabilitation Act particularly in the context of the insurance industry which successfully beat back a lot of challenges to mental health benefits that were significantly lower than physical health benefits.
I think that the idea of parity, so that term I think raises some anxiety for people and probably rightfully so.
We used it in our complaint.
We probably should not have.
I don't think the word is helpful, though there's an underlying concept that I don't think those insurance cases get at which is the idea of equality which is obviously present in the ADA and Rehab Act.
Why are we able to make this comparison here? I think that goes back to the idea of functionality.
Ultimately, whether you're addressing a physical health emergency or mental health emergency, the underlying functions are very similar. Assessment, stabilization, connection to care.
The discrimination lies in the handling of those functions that is provided in the context of mental health emergencies v. physical health emergencies. Mental health emergencies getting police officers who are wholly unprepared to provide those services.
Physical health emergencies receiving medical trainers who are.
In thinking about this sort of analogy, it's helpful to look back at some helpful language from Olmstead, the landmark decision recognizing that unnecessarily treating people with mental health disabilities in institutions is precluded by the ADA's integration mandate. And one of the questions at issue in that case is why is there discrimination here? What sense is it discriminatory to treat people with mental health disabilities in institutions?
The Supreme Court said this, quote: Dissimilar treatment correspondingly exists in this key respect. In order to receive needed medical services, persons with mental health disabilities must because of those disabilities relinquish participation in community life while persons without mental disabilities can receive the medical services they need without similar sacrifice.
The key part of that quote, for purposes of our case, is the medical services.
The court compared medical services received in an institution to all other medical services, and said that that comparison sufficed to establish a way of understanding discrimination.
The fact that people with mental health disabilities had to get medical services in an institution, whereas everyone else could get medical services in the community was discriminatory. Medical services was the unit of analysis and provided an apt basis for comparison and differential treatment, and that's what we're trying to do here.
The final point I'll just cover briefly is this idea of a new program.
I think that argument, which is one that the defendants made in our case. They also raised it in the Oregon case.
That goes back to this program definition.
If you have defined the program in a way that is too narrow, it becomes very easy to see how asking for a new program is asking for a new program because you've defined it too narrowly.
When you look at the entirety of the system and the functions it's undertaking, the relief that's being sought in these cases isn't for a new program, but rather for different personnel to undertake the services in the program already provided. That is for people other than police to undertake those functions of assessment, stabilization, and connection to further services in the context of resolving mental health emergencies.
Those are a few of the challenges that come up.
Of course we just addressed the motion to dismiss stage. There's more challenges in the future of the litigation, but I want to turn it back to Brian about another argument that defendants may make down the road.
BRIAN DIMMICK: Yes. I want to talk briefly about fundamental alteration, which is, as you probably know, a concept that comes up a lot in reasonable modification but also leaks into other areas of the law.
We sort of anticipated that defendants would make the argument that providing something that they don't currently provide or don't provide at the level that we're seeking like mental health crisis response would be a fundamental alteration.
In anticipation of that argument, we looked to litigate in jurisdictions that already have crisis response programs in place.
As I said before, they are not resourcing them adequately. They're not functioning well, or meeting the need, but they exist.
That makes it more difficult for the jurisdiction to argue that they are required to do something totally new or something that would fundamentally alter what they would have to do.
To the extent they do argue that, I think our responses are twofold. One is that basically you're not, it's not a fundamental alteration of the emergency response program to dispatch new services.
What they do is dispatch personnel to respond to the emergency. Whether it's, you know, EMTs, paramedics, mental health crisis teams, animal control officers.
It's all kind of the same thing.
When you look at the program that way, I think we try to say that you're not fundamentally altering anything by asking them to dispatch, yeah, they're still collecting information but dispatching different personnel based on the information.
The other argument is that the jurisdiction is already doing it.
Like D.C., Oregon, and many jurisdictions around the country are starting to try to implement these programs. And again, not always successfully or adequately, but they're doing it so it's much harder to argue that doing something at a higher level than are you now is a fundamental alteration. It may be a financial burden, but that by itself isn't really enough to say that you're not required to do it as a reasonable modification or as a means to provide equal opportunity.
Those are similar responses for the fundamental alteration argument.
It doesn't have to be decided at the motion to dismiss stage, so we haven't gotten a lot of legal opinion language on it yet, but we expect it to be argued as the cases go forward.
With that, I will turn it back over to Carlean to close us out with some ideas on next steps.
CARLEAN PONDER: Well, thank you very much.
You know, I started by telling you a little bit about my professional journey and trying to do the work as part of the disability rights organizations with that intersection of race, criminal justice, and disability and how it hasn't been sustained by the two organizations I was with.
Well, that's a funder problem.
In a professional advocacy nonprofit space, to me I want to see funders say that this work is important and start building capacity within the disability rights or disability justice field.
You know, nonprofit field. So that this work can be addressed because it doesn't get adequate attention in disability rights or the traditional criminal justice space.
I'll just tell you, when I came in, one of the questions I got asked, to my surprise, when I talked about crisis response and how we need to really focus on the overutilization of police to the exclusion of better equipped professionals in these calls, I got asked, what does this have to do with disability?
You know, that's I think where too many of the organizations are.
Then in another case, the sentiment was that I was too focused on Black people with disabilities.
I don't know how you can address anything in criminal justice without prioritizing Black people.
You know, that's the reality.
Funders I think are the key to helping to change that.
But as for the organizations who are on the ground and do you have some capacity to engage and do the work, I mean, I can't stress enough how important it is to start building those connections within the community because there are parents who are grieving because they had to pick up the phone and call 911 because they didn't know what else to do with a child or a loved one who was having an outburst that they didn't feel that they could contain.
So they're grieving now because of that phone call.
Those are people who want to tell their stories.
I mean, you would be surprised at the willingness of people to engage. Host webinars with them.
Have them speak at your organizational town halls or maybe come in as guest speakers at some of your board meetings.
Bring them in so this issue doesn't die on the table.
I don't think that in the next few years we're going to be making a lot of headway federally, just because of the dynamics, so that local work is critical. Storytelling? Critical.
Having most impacted people involved?
Critical. And you're going to have to do some work there with educating them about the policy connections because they have their experience of course and what happened, but they may not know much about how Medicaid, for example, Medicaid waivers could be used and are being used in some instances to support crisis response work.
I mean, and that's where you come in as policy professionals to do that.
But I would say to make sure that you're uplifting this issue through the organizations.
When we're advocating, I think it's also really, really important to dissect that argument that you'll get from legislators and officials about creating a new program. That's going to take money. That's going to take, you know, our budget is underresourced this year.
Then they'll say to you, but we have to hire more police.
Then they'll say, well, you know, police are responding to all of these mental health calls now and they have to come out so often because there's an unhoused person trespassing.
This and that.
That's a circular argument, right?
Because they want to continue to bulk up in one particular program or department that has proven ineffective at this type of work!
I don't care how much training we're doing with them; it's still the wrong place to park the training.
I would say I be suspicious of that.
Be suspicious of the, well, we're going to create this new training program or we're going to have this nonprofit come in and train our police on this particular developmental disability or interacting with people who have these types of mental health issues.
Be suspicious of that! Our money shouldn't be going to one pot and thinking that one size fits all, because it never has and it's not working now.
I would say dig in to what's going on locally and make those connections in order to make sure that this issue continues to get the type of attention that it deserves.
Anything else?
Question and Answer Session
JENNIFER MATHIS: Are there questions?
Is there a mic?
CARLEAN PONDER: We have until 1:25 I was told.
SPEAKER: Steve Gordon. Used to be at Department of Justice. By the way, Louisville and Minneapolis and the other letter of findings I thought were incredibly groundbreaking and really important.
I didn't work on them.
But just some feedback. I was in a U.S. attorney's office. And sometimes there were allies in law enforcement who really do care about this stuff, and they were looking for model policies. The IACP has great model policies that it worked on with the Arc of the United States for interacting with people with I/DD, and I was often able to point them to that. It sounds like SAMHSA now has a tool kit that it's coming up with, but it seems like there's a need for almost like an infrastructure that's out there.
Often the fire departments have model ways of even responding to fires.
They're looking for good practices, and it also sounds like from some of the cases that there's underutilization of some of these programs that are out there.
Model policies and other things might be helpful.
I'm just wondering on that end of the remedy side, what is available?
Is there stuff in the pipeline beyond the SAMHSA tool kit? And are there things that we all, you know, can do?
I know again the Arc of the United States and maybe Bazelon, Nami and others have a hook to hang their hat on.
JENNIFER MATHIS: That's a great question, and I would say certainly for many, many years there has been a lot out there including SAMHSA publications and tool kits and all that about crisis response systems. It just did not deal with the issue of connecting them directly to 911. Mobile crisis is an old intervention; it's just that it seemed to function completely separately from the emergency response systems that dispatch the police.
That is a more recent innovation.
That is something that is starting to become much more prevalent I think since Louisville and Minneapolis, since frankly since George Floyd was murdered and people started to ask those questions about why are we sending the police and what other response could we be sending, and starting to look at Eugene, Oregon, because that was where for 30 years already they were integrating a crisis response system with the police, the 911 response, that they could send an alternate responder instead of sending the police.
They had great data from there about all the cost savings and all of the percentage of police runs that frankly were saved by alternate responders going out and providing a better and more appropriate response.
Really this all is, now it's emerging in a lot of other places, Albuquerque, Denver, etc.
It's becoming new, and that's why SAMHSA is now starting to include this issue.
The SAMHSA crisis guidelines, you know, they have some useful things on this.
Frankly I think if you look at the Louisville consent decree that is currently before a court, it's public record, you can find it online, that has like a set of key paragraphs on this issue which I think lay out pretty nicely a good vision of what things need to look like.
BRIAN DIMMICK: And I'll just say that agreement lays out a lot of the questions like it is in the details of how does the response, how does the dispatch work? What questions are being asked? What guidelines are being drawn?
When mobile crisis can respond.
Those are the things that we really need models for, and I think that would be developed over time. We have models for how police interact on the ground.
But we need more models more upstream, for how the system works to dispatch the right people for the right emergency.
SPEAKER: My name is Sam Adams with Indiana disability rights.
I was wondering about one of the things that I have seen in response to some of these calls to have nonpolice response to a mental health crisis is that, you know, there aren't enough trained social workers or mental health workers or other people who can fill that role. And maybe especially outside of the larger metropolitan areas.
I know Carlean talked to that a little bit about it is a different skill set than some other training that's done in schooling, but if you're making an argument for an expansion of these programs, how do we deal with the lack of trained personnel?
CARLEAN PONDER: Well, first off, my preference would be that jurisdictions who want to expand their crisis response program outsource it. I think that's far better than when they make it a government-run program like part of their county hiring or something like that. I've seen lots of hiccups and delays and stalls there where they can't get some of the roles filled.
I know in my county; they had open slots and just couldn't get them filled.
But you know, you follow programs like Denver Star. One of the newer ones. I think Saint Petersburg, Florida, the police chief there requested that they put an RFP out and get some help.
Those are organizations where the folks want to do the work.
They're trained. They don't seem to have problems hiring people and bringing people in.
I just think that the local governments, certainly the police department, they're probably not the right departments to do the recruiting and the hiring.
SPEAKER: Hello. So I have a question about, does the prevalence of newer hotlines like 988 affect the ability to argue that a county's program involves the same or similar actions when calling EMS or calling the hotline?
JENNIFER MATHIS: I mean, I think -- do you want to..
CARLEAN PONDER: I didn't get the question.
JENNIFER MATHIS: Does the existence now of 988 and essentially the requirement that everybody have a 988 line affect the discrimination argument that people are making.
I would say no. Certainly you can call 988, but in many cases if there is not mobile crisis capacity, 988 will send you to the 911 center and they will dispatch a police response.
If there isn't a sufficient crisis capacity, that's going to happen regardless of whether you call 988 or 911.
But in any event, I think the claims have been and can be structured around the emergency response system that runs through 911.
MICHAEL PERLOFF: I was going to say, I heard in your question also an idea that perhaps the existence of 988 suggests that the system is not an integrated whole, that 988 is one system and 911 is another.
We got something along those lines in the briefing we had in the D.C. case. We did not find that to be a particularly compelling argument. It's an interesting question, but we were able to think through it.
The reason why is that the 988 system is still integrated ultimately with 911.
If you call 911, sometimes they route you to 988, and vice versa.
We said in our briefing; it's sort of like saying that a sun room isn't part of a house because it has a separate door. It's still all part of the same thing.
BRIAN DIMMICK: And people will still call 911. As valuable as 988 should be and we should promote it, people will still call 911 and you still have to have a way to respond to that.
HOST: Okay. Thank you, panelists. That's all we have time for today.