Two Different Systems

The recent opinion from the Supreme Court of the United States in San Francisco v. Sheehan hits awfully close to home for me. Just a few days ago, I dismissed a civil suit against a police officer who created a situation where the only possible outcome was to murder someone he never would have “had” to have murdered in any other situation except for the one he created by violating policy. The doctrine of qualified immunity, the same thing at issue in Sheehan, gave my clients no choice but to let that murderous cop completely dodge any sort of consequences for his actions. I am not writing about my case, though, so I will stick with the facts of Sheehan, which are pretty simple.

Ms. Sheehan was a mentally ill woman who lived in a group home. She began acting erratically and threatened her social worker, and for reasons completely beyond me, someone decided to send cops to “escort” her to get help. Perhaps it is my line of work as a criminal defense attorney, but the only time I hear about officers “escorting” anyone anyplace, the final destination is either the ground with the person’s face pummeled into it, or it is the caged back of a police car with all sorts of unexplained injuries. The person whom the police are “escorting” invariably ends up far worse for the wear, and they find themselves charged with assaulting a cop. But I digress.

Ms. Sheehan was disturbed and angry, exactly the way a sane person would expect a mentally ill woman in a group home making violent threats to be, but officers did not alter their approach accordingly. When all you have is a badge and a hammer, and when the courts condone pretty much anything you want to do with that hammer, everything looks like a nail, right? Officers eventually pepper-sprayed Ms. Sheehan, and then they shot her multiple times. Ms. Sheehan, luckily, survived. The officers, whose word was undoubtedly given no more weight than hers, said she grabbed a knife and threatened to kill them. Knowing she was ill, they came back and pepper-sprayed her for supposedly doing the exact same thing, and then they ultimately resorted to attempted deadly force as well.

When Ms. Sheehan later sued, a former deputy police chief said that officers “fell short of their training by not using practices designed to minimize the risk of violence when dealing with the mentally ill.” They pretty obviously violated policy. The District Court basically deferred to the cops and threw out the case, but the Ninth Circuit thought there were issues a jury should be allowed to consider. Interestingly, the Supreme Court did not even consider some of the arguments the city made, yet it ruled in the city’s favor on other grounds and tossed Ms. Sheehan’s case altogether.

The reasoning of the court is pretty simple if you distill it: although officers pepper-sprayed and shot Ms. Sheehan as a direct result of their failure to accommodate her known and undoubtedly legitimate disability, a person in her situation cannot get to trial “by simply producing an expert’s report that an officer’s conduct leading up to a deadly confrontation was imprudent, inappropriate, or even reckless.”

The Supreme Court does not care if a plaintiff has an expert and a plausible claim that the situation could better have been handled differently. The court would not even decide whether the Constitution was violated by the officers’ failure to accommodate Ms. Sheehan’s illness. The right was not “clearly established,” they said. An ordinary citizen could only dream of such a situation in reverse, one where courts would stop a case dead in its tracks despite a real possibility of wrongdoing by a guilty party.

A jury will never even get to consider Ms. Sheehan’s case, nor will one ever consider the one I just dismissed. The question of whether the police violated Ms. Sheehan’s rights, and even if there is such a right, does not matter. What matters is if the right is clearly established, and the Supreme Court does not think it is. In the end, poor Ms. Sheehan will have to spend the rest of her life filled with bullet holes and the trauma of it all. Her claims will never even see the light of a jury of her peers, while every defendant who violates some obscure law that is anything but clearly established or even apparent to those of us who practice law for a living will continue to be pushed to trial without the benefit of summary judgment motions or immunity of any sort. It really is two systems in this country and not one; a system for the ones with power, and another for the rest of us.