Use of Force in Dealing with the Mentally Ill and Emotionally Disturbed
by Jack Ryan, J.D.
Persons With Disabilities (Jack Ryan)
Court Dismisses Lawsuit Based Upon Death of Emotionally Disturbed Person (Jack Ryan)
Training and Policy Direction: Mentally Ill and Emotionally Disturbed (Lou Reiter)
While the force continuum remains constant for controlling and arresting all persons, a number of cases suggest that agencies must conduct training for dealing with the emotionally disturbed and mentally-ill persons in the context of use of force. Many agencies have policies related to civil commitments and dealing with the mentally ill, yet few agencies actually conduct training related to these policies and even fewer train on tactics and use of force in the context of the emotionally disturbed and the mentally ill.
In Gaddis v. Redford Township, and City of Dearborn Heights, 364 F.3d 763 (6th Cir. 2004), the United States Court of Appeal upheld a lower court’s dismissal of a lawsuit against officers and two municipalities for a shooting involving an emotionally disturbed person. The incident in Gaddis began when an officer observed Joseph Gaddis driving his automobile in a slumped-over position. The officer believed Gaddis was drunk and pulled him over. When the officer got out of his police car, Gaddis took off again. The officer pursued Gaddis and was joined by other officers. When Gaddis was finally stopped, Officer Bain approached the driver’s side of the car and told Gaddis to step out of the car. When Gaddis stepped out he had his hands in his pockets. The officer told him to take his hands out of the pockets. As Gaddis pulled his hands out, some of the officers observed a knife in his hand. The officer tactically created some distance and began yelling at Gaddis to drop the knife, leading to a two to three minute standoff.
At some point during this standoff, Gaddis said to Bain “Why are you doing this to me, Chris, like you did to me in California.” Bain testified that this remark led him to believe that Gaddis was not rational since Bain had no prior contact with Gaddis. Following an assertion by Gaddis that he wanted to leave, Officer Bain moved in and pepper-sprayed him. Shortly thereafter a second officer, Burdick, went over the trunk of Gaddis’ vehicle and tried to tackle him, which caused Gaddis to violently react and strike Burdick with a “windmill” type motion. Officer Bain and Officer Duffany testified that they observed Gaddis stabbing at Officer Burdick causing them to open fire, shooting sixteen rounds in a single burst, hitting Gaddis in the torso, right arm, buttocks, and left thigh.
In the resulting lawsuit, Gaddis’ expert Dr. Jim Fyfe (Commissioner of Training NYPD) provided an affidavit that asserted his opinion “that the officers deviated from proper police techniques for dealing with emotionally disturbed persons (EDPs). In particular, he testified that officers using correct police techniques would recognize that ‘techniques of intimidation and force’ are not likely to work on EDPs in the way they may work on rational persons. He testified that police should instead have picked a single officer to talk calmly to the EDP, and should have refrained from unnecessary displays of force. Fyfe criticized Bain’s use of pepper spray, and described Burdick’s attempt to tackle Gaddis by surprise from behind as a ‘terrible tactic.’”
Although the court upheld the summary judgment for the officers, the court asserted:
“We acknowledge that a suspect’s apparent mental state is one of the facts and circumstances of the particular case that should be considered in weighing an excessive force claim. Moreover, the opinions of qualified experts such as Mr. Fyfe are often entitled to be given weight in this determination.”
This is an area where agencies need to provide some level of training, particularly as courts begin to recognize such training as a generally-accepted police practice.
A case providing insight into the importance of such training was decided by the United States District Court for Nevada and denied summary judgment for the Las Vegas Metro Police Department on a failure to train claim related to dealing with the mentally ill in the use of force context. The case, Herrera v. Las Vegas Metropolitan Police Department, 298 F.Supp 2d 1043 (Dist. Nevada 2004), involved a call to the police to assist in taking David Herrera, who was described as having severe mental illness and being delusional, for an involuntary commitment to a hospital. At the outset, it should be noted that the court was considering a summary judgment motion and the facts examined by the court were not agreed upon facts, but instead were the facts reviewed in a light most-favorable to Herrera’s estate.
The call prompted the response of four officers and a supervisor to the Herrera’s mother’s home. The police were told of Herrera’s mental illness; that there were no firearms in the house; and that Herrera was alone. David had previously been holding a small paring knife before the police arrived. The officers decided to use a “devastator” pepper-spray canister and a “low- lethality shotgun” loaded with bean bag pellets. The officers were given the key to the house by Herrera’s mother and attempted to use it to gain entry. When Herrera kept re-locking the door, the officers kicked it in. The officers then confronted Herrera, who was holding a knife. One officer fired four shots from the bean-bag shotgun, buckling Herrera at the knees; two officers approached and tried to knock the knife from his hands with their batons; a third officer approached and sprayed Herrera with the pepper spray. The officers continually told Herrera to drop the knife, but he did not. Instead, he held the knife up and told the officers they would have to kill him. According to the officers, Herrera began moving toward the officers causing Officer Woodruff to shoot Herrera several times, killing him.
In its consideration of the failure to train claim, the court concluded:
“that the evidence provided by plaintiff, indicating that the police were inadequately trained in dealing with the mentally ill and using impact projectiles, is sufficient to survive summary judgment. Plaintiff’s expert, retired Captain Van Blaircom, who is former chief of police for the City of Bellevue, Washington, testified that the Defendant officers should have known that the manner in which they approached the decedent would escalate the confrontation. According to Van Blaircom, the officer’s treatment of the situation, combined with their statements that a mentally ill person should be treated as any other person, regardless of the situation, indicates that the police department’s training dealing with the mentally ill falls well below the reasonable standard of contemporary care.”
Upon reviewing these cases, one must recognize that courts are taking into account a person’s mental illness and further have determined that where officer’s know of the mental illness or emotional disturbance, officer’s may have an obligation to alter their tactics where they can safely do so. Further, an agency that fails to train officers that these circumstances may require different treatment may face liability for deficient training.
The International Association of Chiefs of Police (IACP) implemented a model policy on “Dealing with the Mentally Ill in 1997. The policy asserts:
Dealing with individuals in enforcement and related contexts who are known or suspected to be mentally ill carries the potential for violence, requires an officer to make difficult judgments about the mental state and intent of the individual, and requires special police skills and abilities to effectively and legally deal with the person so as to avoid unnecessary violence and potential civil litigation. Given the unpredictable and sometimes violent nature of the mentally ill, officers should never compromise or jeopardize their safety or the safety of others when dealing with individuals displaying symptoms of mental illness. In the context of enforcement and related activities, officers shall be guided by this state’s law regarding the detention of the mentally ill. Officers shall use this policy to assist them in defining whether a person’s behavior is indicative of mental illness and dealing with the mentally ill in a constructive and humane manner.
The policy also provides a number of suggested tactics when dealing with the mentally ill:
Should the officer determine that an individual may be mentally ill and a potential threat to himself, the officer, or others, or may otherwise require law enforcement intervention for humanitarian reasons as prescribed by statute, the following responses may be taken.
Request a backup officer, and always do so in cases where the individual will be taken into custody.
Take steps to calm the situation. Where possible, eliminate emergency lights and sirens, disperse crowds, and assume a quiet non-threatening manner when approaching or conversing with the individual. Where violence or destructive acts have not occurred, avoid physical contact, and take time to assess the situation.
Move slowly and do not excite the disturbed person. Provide reassurance that the police are there to help and that he will be provided with appropriate care.
Communicate with the individual in an attempt to determine what is bothering him. Relate your concern for his feelings and allow him to ventilate his feelings. Where possible, gather information on the subject from acquaintances or family members and/or request professional assistance if available and appropriate to assist in communicating with and calming the person.
Do not threaten the individual with arrest or in any other manner as this will create additional fright, stress, and potential aggression.
Avoid topics that may agitate the person and guide the conversation toward subjects that help bring the individual back to reality.
Always attempt to be truthful with a mentally ill individual. If the subject becomes aware of a deception, he may withdraw from the contact in distrust and may become hypersensitive or retaliate in anger.
While the model policy was actually developed to assist law enforcement with dealing with the mentally ill in non-arrest situations, this policy is now being looked by some police practice experts as defining the tactics that officers should use whenever they are dealing with a known mentally ill or emotionally disturbed person. Training officers would be well- advised to conduct training related to these tactical considerations for dealing with the mentally ill or emotionally disturbed persons.
Points to Remember:
While the force continuum does not change due to a subject’s mental status, officers should take this status into account [where the status is known] in their approach of the subject in an effort to de- escalate the possibility of a violent outburst by the subject.
Once a mentally disturbed or emotionally disturbed person has been controlled, officers should consider whether common restraint tactics may be more dangerous to the individual due to the subject’s mental status.
Trainers should incorporate tactical issues for dealing with the emotionally disturbed or mentally ill in use of force training. It is common for officer conduct to be scrutinized in their use of force with the mentally ill and emotionally disturbed.
As with any use of force, officers should always provide an immediate medical response to individuals who are exhibiting signs or complaining of injury or illness following a use of force.