Yesterday, the United States Supreme Court heard oral argument (the transcript can be found here), in Sheehan v. City and County of San Francisco, which I discussed in this blog entry. I’ve got to admit that this argument did not go anyway along the lines that I thought it would and here is why:

City’s Argument

1. The question that the United States Supreme Court granted cert. on was this:

Does title II of the ADA require law enforcement officers to provide accommodation to an armed, violent, and mentally ill suspect in the course of bringing the suspect into custody?

But here is the thing. Before the attorney for the City and County of San Francisco could even begin talking, Justice Scalia was all over her. In particular, he noted that the argument made in their principal brief did not address the question on which the Supreme Court granted cert. Justice Sotomayor then chimed in by saying that nowhere in their brief do they raise the argument that the ADA stops at direct threat.

2. Under questioning from Justice Alito, the attorney for San Francisco conceded that under title II of the ADA failure to make an accommodation for disability is discrimination and that being arrested was an activity of the state subject to title II of the ADA.

This is interesting because Justice Alito seems to be asking whether discrimination under the ADA meant something different than discrimination in ordinary parlance. Justice Alito’s point is a very important one. It is my view that the ADA set up is such that discrimination with respect to disability discrimination is very different than discrimination in the ordinary parlance because of the mandate of reasonable accommodations and reasonable modifications. I have certainly seen other attorneys make the assumption that discrimination means the same as it does in ordinary parlance, and so Justice Alito is not alone on that score. However, Justice Alito’s point was never really addressed, but will undoubtedly have to be addressed in the future. For reasonable accommodations and reasonable modifications to survive, the answer to this question must be that discrimination is not the same in the typical sense as it is under the ADA.

3. The attorney for the City and County of San Francisco conceded that the ADA imposes vicarious liability on the entity for the actions of its employees.

4. The attorney for the City and County of San Francisco also conceded that under title II of the ADA, the City is liable for damages if it engages in intentional conduct, which the “Ninth Circuit has expanded that to include deliberate indifference as well.” This concession by the attorney for the City and County of San Francisco seems to imply that intentional conduct may include deliberate indifference as well as other things. This concession assumes that title II applies in the first place, which Justice Scalia pointed out was not an argument set forth in their petition. In response to Justice Scalia’s question, the attorney for the City and County of San Francisco said that title II applies but that accommodations were not required where the individual was armed and dangerous. The attorney uses the term, “significant threat.”

5. Since the City and County of San Francisco was arguing something along the lines of direct threat, Justice Sotomayor wondered why that wasn’t a question for the jury. In response, the attorney for the City and County of San Francisco claimed that no reasonable jury could conclude that there was no significant danger here.

I am not sure that is correct. As pointed out by Justice Sotomayor, the regulations make clear that direct threat must be based upon an individualized assessment using a reasonable judgment relying on current medical knowledge or the best available objective evidence to ascertain the nature, duration, severity of the risk, the probability that the potential injury will occur, and whether reasonable modifications will mitigate the risk. The evidence would have to be fairly overwhelming to decided this as a matter of law, which doesn’t seem to be the case here. Also, it is interesting that the words “significant danger/threat,” are being used, since direct threat under the applicable Department of Justice regulations, as pointed out by Justice SotoMayor, means something else entirely.

U.S. Argument

With respect to the United States position in this case, it was a bit odd and here is why:

1. United States view is that the ADA does apply to arrests because title II of the ADA applies broadly to any department or agency of the local government, including police. It also applies broadly to activities, services, and programs, which also includes arrests. Further, there is no circuit split on that issue and the ADA contains no exemption for police activities.

2. United States agrees that vicarious liability exists for the entity for the actions of its employees that occur in violation of title II of the ADA.

3. The United States was of the view that when it comes to arrests, the police should be given the benefit of the doubt. That is, the court should adopt the view that is adopted in Barnett (a case in which the United States Supreme Court said that given a seniority system, in the run of cases a transfer will not be allowed unless a showing of special circumstances is made). Similarly, the United States argued that when it comes to arrests, a title II violations should not occur in the run of cases unless the plaintiff could show special circumstances.

The problem here is that as far as I know, nobody knows what in the run of cases means. Also, special circumstances doesn’t offer much guidance, a point made by Justice Kennedy.

Sheehan’s Argument

1. Sheehan’s attorney argued that the principal dispute in this case is a factual and not a legal one. Justice Scalia’s response is very telling: “exactly. I don’t know why we took the case.” In response, Sheehan’s attorney says that the court should consider dismissing the case as improvidently granted, which basically means the United States Supreme Court said that it was mistake to take the case in the first place. The result of which is the decision below would stand.

2. Sheehan’s attorney argued that under the title II regulations, danger to self is not a part of the direct threat defense. Accordingly, even assuming that a person was a direct threat to self, since the regulations don’t encompass that, the duty to accommodate still exists.

This is interesting because it is the flipside of what the United States Supreme Court faced in Chevron v. Echazabal, where the United States Supreme Court held that the EEOC was within its rights to find that direct threat included a danger to self as well as to others. Now, it is essentially being argued that the Department of Justice is within its rights to say that direct threat does not include a danger to self. As pointed out earlier by Justice Sotomayor, nowhere in the papers below did the City and County of San Francisco raise the direct threat argument.

3. Barnett worked in the union situation but doesn’t work here. That is, in the union situation, there was a direct conflict between the proposed accommodation (transferring the employee), and the employer’s seniority rules. Therefore, it made sense for the United States Supreme Court to add an additional burden to the plaintiff. However, Sheehan’s attorney argued that the symmetry was completely different here. That is, there was a symmetry between the proposed accommodation and the way that the City trains its officers as a universally accepted means for dealing with persons with mental health issues. Further, the concept of direct threat is very analogous to the concept of reasonable force that the police have to use under the fourth amendment and they are used to dealing with that every day.

4. While it is true that one Circuit has said that the ADA does not apply if a person is armed and dangerous, that issue is not before the court since nobody was arguing that.

5. The special circumstances test proposed by the United States violates and undermine the regulatory framework of the ADA. Further, the test proposed by the United States government puts their from on the scale in addition to changing the regulatory framework without having given the lower court opportunity to develop the issue.

6. The standard proposed by Sheehan’s attorney was that if the direct threat defense is not satisfied, a person with a disability must be accommodated.

7. Sheehan’s attorney argued that if a police officer knows or could reasonably determine (knew or should have known), that an individual is suffering from a mental disability, then the ADA reasonable accommodation requirements apply.

This particular argument led to a very interesting discussion, and which a very important point was missed somehow. That is, the question of whether it matters why a person is acting in a dangerous and violent way (is it because of a disability or is it because of something else?) Sheehan’s attorney says that the difference matters because of when ADA liability occurs, though for fourth amendment purposes, reasonable force doesn’t make those distinctions-though it does take into account diminished capacity. Here is my problem. The ADA also protects someone who is regarded as having a disability. It wouldn’t be hard to show that in “the run of cases “in this situation, a police officer could well regard a person acting in such a way as having a disability. It would’ve been interesting to see what would have happened if the regarded as argument had been made.

8. Both Sheehan and the City and County of San Francisco agree that the direct threat regulations of the DOJ apply to this case; it is only the United States that has a different standard.

9. Sheehan’s attorney went on to address the issue of qualified immunity, but the entire discussion reads as an afterthought (just consuming four pages of the 56 pages of transcript). That said, there was some discussion about whether the standard involved the law in general or just that in the controlling jurisdiction.

10. In summing up, Sheehan’s attorney said that the use of deadly force on people with mental illness was a real problem in society and that officers and public entities would only change when they are held accountable for those actions. Living here in Atlanta, just within the last couple of weeks, we had a situation where an officer shot and killed a naked veteran with mental health issues.

So what is going to happen:

1. Reading tea leaves with the United States Supreme Court, especially in ADA matters, is impossible. True, with respect to employment, persons with disabilities frequently do not fare well. However, persons with disabilities do much better with United States Supreme Court when it comes to matters outside of employment. Also, here the case got argued in one way but the petition for cert. and the City and County of San Francisco’s brief suggested it would be argued another way. Thus, it wouldn’t surprise me to see the United States Supreme Court decide that the petition was improvidently granted. Keep in mind, Justice Breyer is not participating in this case because his brother was the District Court judge in this case. I suspect that there may be four votes and possibly more for improvidently granting cert.

2. The special circumstances test proposed by the United States government is probably not likely to be adopted, assuming the United States Supreme Court doesn’t say that Certiorari was improvidently granted, since Justice Kennedy did not like the test at all.

3. All parties agreed, except for the United States as amicus, that the direct threat regulations applied, though they differed in how the regulation should be interpreted.

4. Not before the court was whether the Department of Justice has the authority with respect to direct threat to exclude direct threat to self. That is the complete reverse of Chevron v. Echazabal, where as mentioned above, the United States Supreme Court held that the EEOC was within its rights to say that direct threat included threat to self.