last monthI have outlined a variety of liability issues surrounding police responses to individuals in mental health crises. Review courts have closely examined police actions that prompted the use of force in situations involving individuals in mental health crises. Courts have also examined police department training and response protocols. This article focuses on best practices that have been implemented to address these issues.
There are several issues reviewing courts will look at when considering use-of-force encounters during mental health-related calls.
- Has the municipality implemented adequate disciplinary policies to reduce or eliminate the occurrence of unconstitutional use of force against individuals with mental disabilities? Martin v. City of Portland2020 U.S. District LEXIS 9795 (D. Or., 2020)
- Are there police regulations to prevent interactions between police officers and mentally ill people from escalating into deadly confrontations? Osagie v. State College Dist.2023 U.S. District LEXIS 210616 (MD Pennsylvania, 2023)
- Did they fail to adhere to industry standards in Crisis Incident Training (CIT) and employ de-escalation techniques? Allen v. Muskogee119 F.3d 837 (10th Cir. 2019).
- Is there a statistical correlation between the number of people shot and killed and police response to mental health crisis calls? Sanchez vs Gomez283 F.Supp.3d 524 (W.D. Tx., 2017).
While none of the above is dispositive of a civil action for excessive use of force, each represents a factual question that a reviewing court may consider when denying a motion for summary judgment. Moreover, if a plaintiff were successful in establishing any of the above at trial, in conjunction with individual officer liability, it could lead to police department liability for training failures under the standards outlined by the Supreme Court. City of Canton v. Harris489 U.S. 378 (1978).
of Canton The threshold for “deliberate indifference” is established by balancing policy, training and performance outcomes on the ground. Martin In the lawsuit, the federal district court’s denial of the City of Portland’s motion to dismiss cited a 2012 U.S. Department of Justice investigation that found the city’s Police Department engaged in a “pattern and practice of unnecessary or unreasonable use of force in its interactions with persons with or perceived to have mental illness.” Although the department has since revised its use-of-force policies, the plaintiffs argue that in practice, little has changed and that individuals with mental illness continue to be disproportionately exposed to excessive use of force. The officers involved were exonerated by a grand jury, but the city settled with the estates of the deceased officers for $975,000.
Hear directly from those at the helm of these important efforts, who will share their challenges, successes, and vision for the future of crisis intervention.
best practice
Investigations into police use of force and the legal process that follows are fact-based investigations, as are those involving individuals experiencing psychological crises. Osagie The court noted that “police officers are not social workers or psychiatrists.” However, police are often called to deal with situations in which they must confront individuals in psychological crisis. Even if responding officers attempt to de-escalate by using calm communication, maintaining distance, and avoiding threatening behavior, the behavior of the individual in crisis may require the police to use force.
While a best practice approach is ideal, the realities of a particular situation do not always match up to a carefully crafted scenario. This is why the Supreme Court’s standard of review is “The perspective of a rational officer on the scene, not the 20/20 vision of hindsight.” is the prevailing view in the judiciary. However, when individual officers do not follow implemented best practices or when police departments do not provide Crisis Intervention Training (CIT), it is difficult to argue that the officers’ actions were reasonable or that the department was not willfully indifferent. In the real world, situations can take unexpected turns, so officers must be trained on best practices for engaging with individuals in mental health crisis. A safe outcome for everyone involved in these encounters is the goal.
of International Association of Chiefs of Police (IACP) Model Policy The Model Policy from 2018 provides several key training indicators for police officers, including training in recognizing aberrant behavior, risk assessment, intervention protocols, and detention and referral decisions. The Model Policy also provides brief but important guidelines on post-incident reporting.
- It records incidents whether or not an individual is detained.
- Be as specific and clear as possible when describing the circumstances of the incident and the type of behavior observed, avoiding generalizations such as “mentally unstable” or “out of control,” and note the individual’s specific actions, words, and behavior.
The Commission on Law Enforcement Accreditation (CALEA) requires participating agencies to provide entry-level training to all new officers and refresher training every three years on working with people with mental illness. Annual in-service refresher courses are ideal and should be adequately funded in training budgets.
State law allows police officers to detain people who are experiencing a mental health crisis and may be a danger to themselves or others. For example, New York State Mental Hygiene Law 9.41 allows police officers to “detain a person who is experiencing a mental health crisis and may be a danger to themselves or others.”Such person may be directed to leave or transferred to a hospital as provided for in subsection (a) of Article 9.39.But the Supreme Court has also said that states cannot incarcerate non-dangerous people who can fend for themselves.O’Connor v Donaldson422 U.S. 563 (1972)) and raised the standard of proof for involuntary hospitalization from a civil preponderance of the evidence standard to a clear and convincing standard (Addington v. Texas441 U.S. 418 (1979).
In all interactions between police and the public, the balance between individual rights and public order and safety is paramount. Proper police department training and implementation of best practices by officers can help ensure that encounters with individuals in mental health crisis end safely and do not become new headlines.
Bridging the gap: Denver law enforcement and behavioral health agencies partner on crisis response
In the video below produced by the Council of State Governments, Denver Police Department (DPD) Chief Ron Thomas and Chris Richardson, formerly of Wellpower and now with DPD, discuss the two organizations’ strategic collaboration to provide more comprehensive care to people with behavioral health needs. Watch and learn how this partnership has strengthened behavioral health interventions in Denver, improving access to treatment and providing specialized crisis response to those in need.
