Last month, I outlined the different liability concerns surrounding police response to individuals suffering from a mental health crisis. Reviewing courts have looked closely at police actions precipitating use of force in situations involving individuals undergoing a mental health crisis. Courts have also considered department training and response protocols. This article focuses on the best practices that are being implemented to address these issues.
There are several issues reviewing courts focus on when considering use of force encounters on mental health-related calls:
- Has the municipality implemented adequate disciplinary policies to reduce or eliminate the occurrence of unconstitutional uses of force against individuals with mental health disorders? Martin v. City of Portland, 2020 U.S. Dist. LEXIS 9795 (D. Or., 2020)
- Are there police regulations in place to prevent interactions between police officers and psychiatrically disabled people from escalating into deadly confrontations? Osagie v. Borough of State College, 2023 U.S. Dist. LEXIS 210616 (M.D. Pa., 2023)
- Was there a failure to follow industry standards in crisis incident training (CIT) and a failure to employ de-escalation techniques? Allen v. Muskogee, 119 F.3d 837 (10th Cir., 2019)
- Are there statistical correlations between the number of people being shot and killed and police response to mental health crisis calls? Sanchez v. Gomez, 283 F. Supp. 3d 524 (W.D. Tx., 2017).
Although none of the preceding are dispositive of a civil claim for excessive use of force, they each represent questions of fact that a reviewing court may consider in denying a summary judgement motion. Furthermore, a plaintiff’s successful proof of any of the above at trial, along with individual officer liability, can lead to department liability for failure to train under the criteria outlined by the Supreme Court in City of Canton v. Harris, 489 U.S. 378 (1978).
The Canton threshold of “deliberate indifference” is established by balancing policy, training and performance outcomes in the field. In the Martin case cited above, the federal district court’s denial of the City of Portland’s motion to dismiss referenced a prior 2012 U.S. Department of Justice review that found the City’s Police Bureau engaged in “a pattern and practice of unnecessary or unreasonable force during interactions with people who have or are perceived to have mental illness.” Despite the Police Bureau’s subsequent revision of its use of force policy, the plaintiffs pleaded that in practice there was little change and that individuals with mental illness were disproportionately subjected to excessive force. Even though the involved officer was cleared of charges by a grand jury, the City of Portland settled with the decedent’s estate for $975,000.
Best practices
Investigations involving police use of force, and subsequent legal proceedings, are fact-intensive inquiries. They are no less so when involving individuals in mental health crisis, but, as the Osagie court noted, “police officers are not social workers or psychiatrists.” Nonetheless, the police are often called to handle situations where they are required to confront individuals in mental crisis. Even when responding officers employ calm communication, maintain distance, avoid threatening behavior and attempt to de-escalate, the actions of an individual in crisis may require officers to use force.
While a best practices approach is ideal, the reality of any given situation does not always comport to carefully crafted scenarios. This is why the Supreme Court review standard from the “perspective of a reasonable officer at the scene, rather than the 20/20 vision of hindsight” is the prevailing judicial perspective. However, if an individual officer does not follow implemented best practices or a department fails to provide crisis intervention training (CIT), it would be hard to argue that the officer’s action was reasonable or that the agency wasn’t deliberately indifferent. In the real world, situations can go sideways, so officers must be trained in best practices for engaging individuals in mental health crisis. A safe outcome for all involved in these encounters is the goal.
The International Association of Chiefs of Police (IACP) Model Policy from 2018 provides several key training markers for police officers. These include training to recognize atypical behavior, risk assessment, intervention protocols and custody versus referral determinations. The model policy also provides brief but important guidelines regarding post-incident reporting:
- Document the incident regardless of whether the individual is taken into custody;
- Be as specific and explicit as possible in describing the circumstances of the incident and the type of behavior observed. In doing so, generalizations like “mentally disturbed” or “out of control” should be avoided and specific actions, words, and behaviors of the person should be noted.
The Commission on Accreditation for Law Enforcement Agencies (CALEA) requires participating agencies to provide entry-level training to all new officers and refresher training every three years on encountering people with psychiatric disabilities. A yearly in-service refresher course is ideal and training budgets should provide adequate funding.
State laws permit police officers to take into custody individuals experiencing a mental health crisis who may be a danger to themselves or another. For example, New York State Mental Hygiene Law section 9.41 provides that the officer “may direct the removal of such person or remove him or her to any hospital specified in subdivision (a) of section 9.39.” But the Supreme Court has also said that a state cannot confine a non-dangerous person who is capable of living on their own (O’Connor v. Donaldson, 422 U.S. 563 (1972)) and raised the evidentiary standard for involuntary commitment from the civil preponderance of the evidence standard to one of clear and convincing proof (Addington v. Texas, 441 U.S. 418 (1979).)
As with any police interaction with the public, the balance of individual rights with public order and safety is paramount. Proper departmental training and officer implementation of best practices ensures those encounters with individuals in mental health crisis end safely and not as another headline.
Bridging the gap: Denver’s law enforcement and behavioral health collaboration in crisis response
In the video below from the Council of State Governments, Chief Ron Thomas of the Denver Police Department (DPD) and Chris Richardson, formerly with WellPower and now with DPD, discuss the strategic collaboration between both organizations to provide more comprehensive care for people with behavioral health needs. Watch and learn how this partnership has enhanced behavioral health interventions in Denver, increasing access to treatment and offering specialized crisis response to people in need.
