Global Crisis

I have a new piece up with The Atlantic on the historic decision legalizing same-sex marriage nationwide. It argues that the history of marriage supports, even mandates, change as societies change.

We're ready. History is with us. Love wins.

Here's the piece, with thanks to Anise Strong and Ruth Karras.

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UPDATE - Anise Strong gave me permission to repost these comments on Roberts' dissent:

Roberts: "As a result, the Court invalidates the marriage laws of more than half the States and orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians
and the Aztecs. Just who do we think we are?"

Strong Writes:

Just for the record:

The Kalahari !Kung or San people (Bushmen being a frequently pejorative term) practice a limited form of same-sex marriage for inheritance purposes and probably have for tens of thousands of years. Also, their marriages are generally open with regard to sexual intercourse and can be freely and frequently divorced by either party.

The Han Chinese frequently practiced polygynous marriage and the primary functional practical relationship is mostly mother-in-law/daughter-in-law.

We don't know much of anything about the Carthaginian practice of marriage or family life, except that there's increasing evidence that they did sacrifice babies.

Aztec nobles were polygynous; Aztecs may have also practiced a form of same-sex marriage involving third-sex (intersex or "two-spirit)) individuals. Furthermore, Aztec wives had far more property and individual rights than most European and Asian women in the last 5000 years.

Or in other words: do your research.

And that is why I interviewed her for my piece.

I've been away over the weekend, so am a bit behind on stories to write. I try not to write when spending family time on vacation! Ahead this week - apologies, deaths by taser, death by gunfire, thoughts on undergraduate achievement. I'm also writing about the Middle Ages, the local Zoo, public intellectuals, and the Game of Thrones.

For Monday, though, I want to talk about civil suits. One of the reasons that Sheehan vs SF worries me (see my piece here) is that it may make it harder for civil suits against police to get in front of juries, and already lawyers don't want to take those cases. It's hard to sue police and win.

Here's an example from Richmond, VA.

In 2005 (the wheels of justice can grind exceedingly slowly) the police in Cambridge, Md., acted on a tip and found a small amount of marijuana residue in a trash can. At 4:30 a.m. on May 6, a SWAT team executed a search warrant on the apartment of Andrew Cornish. A jury would later find the commandos failed to knock and announce themselves properly. As they rushed through the apartment, Cornish came out of the bedroom with a sheathed knife in his hand. The police say he advanced on them. One of the officers shot Cornish twice in the head, killing him.

Elapsed time: about 30 seconds.

So we have a situation in which SWAT was found to have killed someone after not following procedure.

Cornish’s father sued, claiming the police used excessive force and violated Cornish’s constitutional rights. The first point was quickly dispatched with. (Lesson: Never bring a knife to a gunfight.) But as Balko points out in his Washington Post blog, on the second point the courts agreed. Not only that, “both the trial court and the appeals court that ruled against Cornish’s father acknowledge both that the police violated the knock-and-announce rule, and that they lied about doing so.”

Yet two out of three judges on the 4th Circuit panel (both George W. Bush appointees) decided nevertheless that Cornish bore all the blame for his own death. Other courts have reached similar conclusions in similar cases, you see — so that must make it OK: The police can break into your home unlawfully and shoot you dead, and nobody is at fault for that except you. Not only that, according to the court majority “no reasonable jury could have found that the Officers’ knock-and-anounce violation proximately caused Cornish’s death.”

That is irrefutable, in the same way the no-true-Scotsman fallacy is irrefutable. If I say to you, “No Scotsman would shave his beard,” you can show me countless cleanshaven Scotsmen. Rather than concede I was wrong, I can say, “Well, no trueScotsman shaves his beard!” The revision renders all your counterexamples irrelevant by definition. So while it’s easy to imagine plenty of juries that might blame the police for Cornish’s death, the court can simply write them all off by contending no reasonable jury would.

I think the "reasonable" jury and "reasonable" officer standard is dangerous.  In the Sheehan case, the city is arguing a reasonable officer might have concluded that Sheehan had a gun, had hostages, was making explosives, or could escape out the window. In fact, none of these things were true. In fact, neither officer at the scene believed these things to be true according to initial reports. But a reasonable officer could have, says the city, so the suits should be thrown out.

This writer ends:

The courts, including the Supreme Court, have granted wide latitude to police officers, partly because — they say — officers who exceed the scope of their authority can be held responsible through lawsuits.

And if they can't be held responsible, we lose that very important check on police authority.

Oral arguments for Sheehan vs San Francisco will begin at the Supreme Court in a few hours (it's the
second case of the day). It will provide the opportunity for the court to do a number of things.

Here are the questions before the court:

Whether Title II of the Americans with Disabilities Act requires law enforcement officers to provide accommodations to an armed, violent, and mentally ill suspect in the course of bringing the suspect into custody; and

Whether it was clearly established that even where an exception to the warrant requirement applied, an entry into a residence could be unreasonable under the Fourth Amendment by reason of the anticipated resistance of an armed and violent suspect within.

What might the court do? They could ...

1. Affirm or severely limit the protections of the ADA for people with disabilities as they apply to policing.
2. More clearly define the limits of qualified immunity (the Fourth Amendment issue).
3. Carve out a narrow ruling that sends the case back to the Ninth Circuit and doesn't establish wide precedent either way.

The United States’ ADA argument asks the Court walk a line between the Petitioners’ and Respondent’s arguments. Title II requires officers to provide reasonable accommodations during the arrest of mentally disabled individuals. Yet, if objective evidence causes concerns about public or police safety, then it might not be reasonable for police to provide accommodations (i.e., delay immediate entry to arrest). In those situations, safety can outweigh accommodations. And despite the importance of safety, the United States refused to make the safety exception ironclad, arguing that a plaintiff “should remain free to show that special circumstances rendered a modification reasonable.” (U.S. Amicus Br. 7.) For this case, the United States asked the Court to pass on rendering judgment on the reasonableness of the officers’ actions by instead remanding the case to the Ninth Circuit to determine whether Respondent, who would bear the burden of proof establishing that “special circumstances” were present, was owed reasonable modification despite the safety risks she posed.

In terms of the ADA, that's pretty much what I hope for. That the court affirms the right of a person like Sheehan to argue that she was owed a reasonable accommodation. I'd prefer a much stronger position from the government and for the court to enhance the power of the ADA, but I don't expect that.

More later once the transcript is up. Also, I continue to maintain it is ludicrous that SCOTUS isn't live-streamed.

I have a new piece out today at Al Jazeera America on the upcoming Supreme Court case - Sheehan vs San Francisco. I write:

Twenty-five years after the passage of the Americans with Disabilities Act (ADA), people with disabilities are regularly dying at the hands of police officers across the country. In just the last few weeks, four such deaths have made national news: Kristiana Coignard in Texas, Antonio Zambrano-Montes in Washington, Lavall Hall in Florida and Charley Robinet in California. According to the American Psychological Association, some officers spend more time “responding to calls involving mental illnesses than they do investigating burglaries or felony assaults.” Too often, these encounters turn violent. Our best guess is that about 50 percent of killings by police involve psychiatric disability of some sort.

On March 23, the Supreme Court will have a chance to address this national crisis. The case of Sheehan v. San Francisco offers the justices the chance to clarify how the ADA applies to law enforcement — an important step that could strengthen the broader movement for police reform. This case will determine to what extent police can be held accountable to the best practices of their profession.

I read hundreds of pages of briefs, talked to lawyers on both sides, consulted an ACLU expert on these issues, and also talked to Seth Stoughton, a police law expert I often rely on. You might also read this argument summary from SCOTUSblog. Here's my summary:

In August 2008, Teresa Sheehan, a resident of a group home for people with psychiatric disabilities, threatened a social worker with a kitchen knife. The social worker called the police. Two officers arrived and entered Sheehan’s room but retreated when she threatened them as well. They called for backup. Instead of waiting, they re-entered the room. Sheehan came at them with the knife, and they shot her repeatedly. Luckily, she survived. A hung jury resulted in a partial acquittal of assault charges against her.

The lawsuit focuses on the legality of the second entry into Sheehan’s room. She sued the officers under Title II of the ADA, arguing that by not waiting for backup, the officers did not reasonably accommodate her disability. Furthermore, her attorneys argue that the violation of the ADA exempts the officers from qualified immunity, a doctrine intended to protect police from lawsuits unless it’s clearly established that the officers violated the Fourth Amendment’s prohibition on unreasonable search and seizure. At issue is not whether the police were wrong to enter the room the second time but whether it’s allowable for Sheehan’s lawyers to argue that they were wrong before a civil jury.

I am concerned, honestly, although I tried to set the stakes and make an argument, rather than gnash my teeth and worry in the AJAM piece. The Teresa Sheehan case is so compelling, on the facts, that if she can't win her right to sue (which is not the same as winning her case), then the line has been drawn so even farther in law enforcement's favor.  The officers knew, absolutely knew, that Sheehan was in mental health crisis, had psychiatric disabilities, was along in her room (it's a small room), did not have a fire escape out the back (the fire escape was on the front of the building, where any law officer could have seen it entering the building), did not have a firearm, had no hostages, etc. And yet they charged in the second time anyway, and Sheehan got shot. She has the right to sue them and let a jury decide culpability.

Please read and share the original Al Jazeera piece, if you can. We need the country to understand the stakes here.

On the Wednesday before Thanksgiving, the Supreme Court (SCOTUS) took the case of Sheehan vs San Francisco.

In 2008, Sheehan, who has schizophrenia, threatened her social worker with a knife, then threatened the two police officers who came after. They called for backup. Before backup arrived, the police broke into her apartment, pepper sprayed her, then shot at her 5 or 6 times. Sheehan survived and was charged with assault, but sued the police department and the city under the Americans with Disabilities Act, claiming that the decision to go in without backup was not reasonable given her disability.


A federal judge threw out the case (he's the brother of Justice Breyer, who will recuse himself), but the 9th Circuit said it should go to a jury. Now SCOTUS will rule.

Here's what I wrote for CNN in August about police violence and disability:

In cases like these, we need to stop talking about mental illness and start thinking through the implications of psychiatric disabilities. We also need police whose first instinct is to de-escalate tense situations whenever and however possible, and, when necessary, solve confrontations with the absolute minimum amount of force.

"Psychiatric disability" refers to mental illness that "significantly interferes with the performance of major life activities," a category that clearly applies to people whose "erratic behavior" got them killed by police.

The distinction matters. In America, being disabled comes with certain civil rights protections. While we generally try to eradicate illness, we are required to accommodate disability. So how does a police officer accommodate someone behaving erratically and holding a knife?

So now SCOTUS is going to rule, more or less, on that question. I am not optimistic, but I am not a SCOTUS expert or a legal scholar or a lawyer. I have no real idea how this question will fit into the general legal opinions of the various justices.

But I am glad the argument is getting its day in court. I'll hope that at least someone writes a pro-accomodation opinion that I can use, even if it's a dissent. We need to shift the rhetoric.

I'm going to try and go to DC to hear the arguments in the spring and will report back.

UPDATE: Think Progress has a good summary of the case here.