On February 6, 2025, Police1 published an article that informed subscribers that Sacramento County Sheriff Jim Cooper has decided to stop his deputies from responding to “non-criminal mental health calls.” [1] According to the article, the sheriff’s decision was based upon a recent Ninth Circuit federal appellate court opinion in the matter of Scott v. Smith. [2]
The decision, summarized below, denied qualified immunity to officers who used excessive force while trying to gain control over a person suffering from mental health issues. The article reports that going forward, Sacramento “dispatchers will ask callers [whether] … a criminal element or danger to others is present [and] [i] f not deputies will not be sent.” The article further reports that Sacramento firefighters are “now responding to more calls without law enforcement backup.”
Scott v. Smith decision summary
In March 2019, Roy Scott called the Las Vegas Metropolitan Police Department (LVMPD) for help. Dispatch informed responding officers, Smith and Huntsman, that Scott was mentally ill. Upon arrival at his home, Scott came to the door, holding a metal pipe at his side but immediately dropped it at the officers’ direction. When asked if he had other weapons, Scott produced a knife and handed it to the officers, handle-side out. Scott told the officers that he was a paranoid schizophrenic and asked them to place him in the police vehicle.
The officers decided to take Scott into custody on a mental health hold. They grabbed him, put him on the ground, and rolled him over onto his stomach. Scott struggled, causing Huntsman to put his body weight on Scott’s neck and back, while Smith put his weight on Scott’s legs. Scott was handcuffed and became unresponsive. He was pronounced dead after paramedics removed him from the scene.
Scott’s family sued Smith, Huntsman and the LVMPD, pursuant to 42 U.S.C. § 1983, alleging excessive force in violation of the Fourth Amendment. [3] The district court denied Smith and Huntsman’s assertion of qualified immunity and they appealed.
The Ninth Circuit affirmed the lower court’s decision to deny qualified immunity to the officers. The court observed that bodyweight compression on a prone individual can cause “compression asphyxia” “capable of causing death or serious injury.” The court noted that Scott was not suspected of committing a crime and was suffering from mental illness. Moreover, he did not threaten or pose a danger to the officers or others. The court ruled “that Smith and Huntsman were not justified in using deadly force against Scott, a mentally ill person who was not suspected of committing a crime and presented little or no danger.” [4]
Commentary
The Sacramento sheriff reacted to the court’s decision by stating, “We deal with crime, not mental health crises.” This decision, while well-intentioned, is simply wrong for several reasons:
The sheriff’s decision is contrary to the traditional way these matters are handled across America.
A recent Columbia Law Review article points out that law enforcement in America is the primary component “of the provision of crisis services in jurisdictions across the United States.” [5] Law enforcement involvement and intervention in mental health crises is so prevalent in America that it is taken as a given. [6] The article points out that “justifications for police involvement in mental crisis response … [are based on] existing interpretations of parens patriae authority and the state’s police power.” [7]
A separate recent article published by TAC (Treatment Advocacy Center) reports that “every state has enacted laws that under certain narrow circumstances [authorize] custody of an individual experiencing a psychiatric crisis,” [8] and points out that “all states and the District of Columbia authorize law enforcement to transport an individual to an evaluative facility if an officer finds probable cause to believe that the person meets the state’s civil commitment criteria.” [9]
The California Statute covering involuntary emergency mental health commitments specifically authorizes peace officers to take control of persons experiencing a mental health crisis.
California Welfare and Institutions Code WIC § 5150 (a) specifically authorizes “peace officers” to take a person into custody if they are experiencing a mental health disorder and are “a danger to others, or to themselves or [are] gravely disabled.” [10] The statute requires a probable cause determination to be made that involuntary civil commitment is necessary before taking custody of the person. The fact that the California legislature intended peace officers to be the primary initial source for taking persons in mental health crisis into custody is highlighted in Section 5150.1 of the statute which begins as follows, “No peace officer seeking to transport, or having transported a person to a designated facility for assessment under Section 5150, shall …”
Involuntary commitments require that a probable cause determination be quickly made on the scene of an incident by persons trained in assessing probable cause. Peace officers are uniquely qualified by their training and experience to make the probable cause determination. Moreover, they are not only trained to make probable cause decisions but likewise have the training and experience required to properly take into custody recalcitrant, resisting individuals. Peace officers are, without question, best suited for this responsibility by deploying only the amount of force reasonably necessary to succeed without serious injury to involved parties. Ordering untrained firefighters to assume this inherently dangerous duty is a disservice to them, the person in crisis and civilians at the scene of the incident.
The sheriff’s decision to eliminate a law enforcement response to a mental health crisis overlooks the primary rationale for the Ninth Circuit’s refusal to grant qualified immunity.
The sheriff’s public commentary on his decision places heavy emphasis on the absence of a crime as the primary rationale for removing officers from the responsibility of responding to a mental health crisis. It is true that the Ninth Circuit in Smith discussed the lack of a crime as one factor for consideration in the use of force analysis. However, the court emphasized a more compelling and important factor that must be considered in a mental health use of force situation, namely, the significance and degree of the threat and danger to the involved officers.
The court explained that “The most important factor is whether the suspect posed an immediate threat” to the safety of the officers. The court evaluated the potential for harm to the officers and dismissed it by stating, “a rational jury could very well find that [Scott] did not, at any time, pose a danger to the officers or others.” The court’s refusal to grant qualified immunity to the officers rested primarily on the decision [of the deputies] to apply excessive pressure to Scott’s upper back and respiratory system and not on the fact that Scott had committed no crime. The court cited its previous 2003 ruling in Drummond v. City of Anaheim, [11] and ruled that it should have placed the deputies on notice that use of a direct pressure technique to Scott’s upper back was dangerous and excessive.
The court explained, “In Drummond, for example, officers ‘press[ed] their weight on [the plaintiff’s] neck and torso as he lay handcuffed on the ground.’ [12] This force was ‘severe and, under the circumstances, capable of causing death or serious injury.’ [13]…. [A] jury could find Smith and Huntsman’s conduct was similar deadly force.” Put another way, the court ruled that the officers were denied qualified immunity, not because of an absence of a crime, but rather because they used a control technique that violated clearly established legal precedent.
The sheriff’s decision incorrectly requires a danger determination to be made during the initial call. This position disregards the fact that danger can manifest, and serious crimes can occur after first responders arrive at the scene of a mental health incident.
Often when police respond to mental health calls, the level of danger to officers and others does not become clear until officers arrive on the scene. [14] Police dispatchers handling mental health crisis calls may not receive sufficient information to evaluate the potential for danger to first responders. Moreover, it is possible that the caller may downplay or even lie about the likelihood of danger. The caller may also be unaware of or have incomplete knowledge of present or past history regarding dangerous conduct exhibited by the person in crisis, involving weapons, violence and threats of violence.
The level of danger to first responders may only surface when trained and properly equipped officers arrive on the scene. Firefighters are not trained to evaluate the degree risk to their personal safety and the safety of others from human beings. Further, they are not equipped or trained to respond properly to danger that arises suddenly during a call. In Sacramento it is only a matter of time before a firefighter is seriously injured or killed by a subject who suddenly responds with violence to an attempt to control him.
Best practice recommendations
Police officers should always be dispatched to persons in mental health crisis calls. At least one officer trained in crisis intervention should be present on every call. [15] Sending firemen or other professionals to these calls without police on scene support is a predictable public safety disaster.
The Police Executive Research Forum (PERF) published a research report in October 2023 titled “Rethinking the Police Response to Mental Health-Related Calls.” The PERF report provides solid information from which several recommendations can be gleaned:
Training police to respond to mental health calls is critical: The PERF report recommends that “all police officers and professional staff who interact with the public should have MBH [Mental Health and Behavioral] awareness training to help them recognize various types of behavior as potential signs of an underlying condition, such as mental health or substance use disorders or autism. In addition, all police officers should undergo crisis de-escalation training and periodic refresher training.
Crisis Intervention Training: According to the PERF report, “The Crisis Intervention Team (CIT) concept was first developed in Memphis, Tennessee in 1988. The 40-hour CIT training curriculum has since become one of the most common forms of crisis response training for police, adopted by more than 2,700 U.S. police agencies. CIT training covers the range of conditions that contribute to behavioral crises and aims to enhance officers’ empathy toward the individuals concerned and improve their skills in managing crisis events safely.” Officers completing the CIT training curriculum become CIT-certified. [16]
ICAT Training: Integrating Communications, Assessment and Tactics (ICAT) training was developed by PERF in 2016 as a 12-hour program. According to the PERF report, “The ICAT curriculum focuses on the training needs of first-line officers, who are generally the first to respond to volatile situations involving erratic subjects. It equips them with tools and techniques to slow situations down and resolve them safely. This practice is built around the Critical Decision-Making Model, which teaches officers to better assess a situation, gather information, and make good decisions.”
The ICAT training can be used as an in-service refresher for officers who are CIT certified after completing the 40-hour CIT training or as a standalone training for other officers not CIT certified. Police dispatchers would also benefit from and should receive ICAT training. [17]
Responding to mental health crisis calls (The co-response model): The co-response model requires a joint response to mental health crisis calls by both police officers and mental health professionals. The PERF report states, “The co-response model recognizes that police officers alone may not be the best responders for all types of calls but need to be present when there is a risk to the safety of other responders or to the person in crisis. The presence of both a mental health clinician and a police officer can be very effective in de-escalating potentially dangerous situations.”
The PERF report provides an example of a successful co-response program, “The Los Angeles Police Department’s (LAPD) Systemwide Mental Assessment Response Team (SMART), created in 1993, is one of the first co-responder programs developed for [mental health] crisis calls. ““SMART … pairs clinicians from the Los Angeles County Department of Mental Health with specially trained LAPD officers in their patrol vehicles. This approach creates a pathway to providing clinical care on higher-acuity calls and those involving potential violence.” Police departments should strongly consider implementing a version of the Co-Response Model into their department policy and train their officers accordingly. [18]
References
1. The article was written by Police1.com reporter Joanna Putnam.
2. 109 F.4th 1215 (2024).
3. The lawsuit also alleged violation of 14th Amendment familial association rights which will not be reviewed in this article.
4. The court relied heavily on a previous Ninth Circuit opinion that was factually similar and stated: “Our precedent establishes that the use of bodyweight compression on a prone individual can cause compression asphyxia. Drummond ex rel. Drummond v. City of Anaheim, 343 F.3d 1052, 1056-57 (9th Cir. 2003). In Drummond, for example, officers “press[ed] their weight on [the plaintiff’s] neck and torso as he lay handcuffed on the ground.” Id. at 1056. This force was “severe and, under the circumstances, capable of causing death or serious injury.” Id. Drawing all reasonable inferences in Plaintiffs’ favor, a jury could find Smith and Huntsman’s conduct was similar deadly force.”
5. Jamelia N. Morgan, “Psychiatric Holds and the Fourth Amendment,” 124 Columbia Law Review 1363, 1374 (2024).
6. Id. 1377.
7. Id. Parens Patriae authority refers to the duty of a governmental body to provide care for those unable to care for themselves.
8. See, TAC, “Grading the States; An Analysis of Involuntary Psychiatric Treatment Laws” (2020).
9. Id.
10. The statute also permits, among other individuals, a “professional person designated by the county” to perform this duty.
11. 343 F.3d 1052 (9th Cir. 2003)
12. Id. at 1056.
13. Id.
14. See e.g., Ostling v. City of Bainbridge Island, 872 F. Supp.2d 1117 (U.S. D.C. W.D. Wash. 2012). Subject called 911 himself without revealing a potential for violence. Officers responding to the call were allegedly confronted by subject with an axe upon arrival to the home.
15. An article in the FBI Law Enforcement Bulletin reports that the Roanoke Virginia Police Department (RVPD) has provided approximately half or its officers with Crisis Intervention Training (CIT) and at least one CIT certified training officer is present on every shift. See, FBI Law Enforcement Bulletin, February 2014, “Responding to Persons with Mental Illness,” Christian Mason, Tod Burke, and Stephen Owen.
16. Id.
17. PERF reports that, ”The ICAT (Integrating Communications, Assessment, and Tactics) training program, developed by PERF, has so far been delivered to officers in 1,000 police departments. An independent evaluation by researchers from the University of Cincinnati found that ICAT was associated with a 28 percent reduction in use-of-force incidents, a 26 percent reduction in citizen injuries, and a 36 percent reduction in officer injuries.”
18. The PERF report also evaluates different mental health response models. I believe the co-response model offers the best chance for successful outcomes to crisis mental health calls.
