An officer tased a bipolar patient. Did he violate a law protecting the disabled?
Judith Gray had wandered, barefoot, from Athol Hospital.
At 57, she had been admitted in May 2013 after suffering a manic episode, a consequence of the bipolar disorder she had struggled with since her 20s. Hospital officials called police to bring her back but never indicated she was dangerous.
When Athol Police Officer Thomas Cummings found Gray on Main Street, a quarter-mile from the hospital, he called her to come back with him to the facility. Instead, she turned and swore at him. Then she began moving toward him.
What happened next is at the heart of a complicated legal question before the US Circuit Court of Appeals, which on Tuesday began to examine what constitutes reasonable force against a person with mental illness and whether a police officer’s tactics for subduing suspects with disabilities can be limited by the Americans with Disabilities Act.
Cummings, who outweighed Gray by 75 pounds, grabbed her by the shirt and brought her to the ground. When she swore again and refused to let him handcuff her, he used his Taser to zap her in the back for four to six seconds, when she passed out, according to court documents. Assault charges against Gray were later dismissed.
In 2015, Gray’s family sued Cummings and the town in federal court, arguing that use of the stun gun violated her Fourth Amendment right against unreasonable search and seizure. But a federal magistrate judge dismissed the case, ruling that the “single deployment” of the Taser did not violate her civil rights and that the law has not established that the use of a Taser against a person who actively resists arrest and assaults an officer amounts to excessive force.
On Tuesday, lawyers for the American Civil Liberties Union, who disputed the allegation that Gray assaulted the officer, argued that a jury should hear her case and that police should be restricted in their use of force against defendants they know don’t have sufficient capacity to heed their commands.
“He tased her because she was refusing to listen,” Matthew Segal, legal director for the ACLU of Massachusetts, argued before the three-judge panel, which included a former US Supreme Court justice, David Souter. “Officers can’t just hurt somebody because they’re not responding to an oral command.”
But Thomas R. Donohue, a Boston lawyer representing Cummings and Athol, said the officer repeatedly pleaded with Gray to return with him, followed her for nearly 30 seconds, and tased her because she turned toward him with clenched fists and her body tense, a posture he found threatening.
“This is not a situation where he got out of the car and grabbed her and tased her,” Donohue said. “When he arrives at the scene he knows one thing: that she is a danger to herself or others and he doesn’t know which. That would cause any reasonable officer to be wary of the situation.”
The case, which has drawn the attention of national psychiatric groups and police organizations, could determine whether officers should be required to accommodate people with disabilities during interactions, including arrests.
Because police regularly interact with people with mental illness — situations that often turn violent, if not fatal — the court should affirm that federal law protects those struggling with such conditions when taken into custody, according to a brief filed in support of Gray by the American Psychiatric Association, the American Psychological Association, and the Judge David L. Bazelon Center for Mental Health Law, an advocacy group for people with mental disabilities.
“Where the alleged failure to make such reasonable accommodations — for example, to employ trained personnel using established protocols or to utilize de-escalation techniques — is the partial cause of threatening or violent behavior in an individual suffering from serious mental illness, that individual should not be deprived of the statute’s protection,” wrote lawyers for the organization.
But in a legal brief supporting the town and Cummings, police groups countered that such a requirement would place too heavy a burden on officers, who are often the first to respond to reports of people with mental illness and in many situations have just seconds to decide how to handle a situation that can quickly escalate.
“While many officers, like Officer Cummings in this case, receive crisis intervention training and other instruction related to interactions with the mentally ill, the fact remains that they are not mental health professionals,” lawyers for the International Municipal Lawyers Association and the Massachusetts Chiefs of Police Association wrote. “When a tragic outcome occurs, it is understandable to want to hold someone accountable, but the way to address the mental health crisis in this country is not through rigid application of the [Americans with Disabilities Act].”
On Tuesday, the judges challenged Segal to explain how police should respond in such unpredictable situations.
The officer “has an obligation to restrain her so that she can’t do harm to herself or others,” said Judge Bruce M. Selya. “You’re saying that it’s clearly established fact that he can’t do that?”
Segal responded that Cummings, who had called for backup, could have waited for additional officers to respond before escalating his response.
The officer “should have been kinder and gentler,” Segal said.
Donahue noted that Cummings had set the Taser to “stun drive,” a less intrusive mode that causes pain and incapacitates the suspect in the moment but is not known to have long-lasting effects.
Gray, the sister of a former state trooper, still has headaches from the incident and now fears police, Segal said.