Police Officers Must Respond Differently to Calls Involving Mental Illness
Feb. 26, 2023
Emergency law enforcement responses to situations involving persons with mental illness are, for better or worse, a routine part of modern society. The recent case of Palma v. Johns, 27 F.4th 419 (6th Cir.) highlights the urgent need for adequate training of police officers on dealing with persons with mental illness when responding to emergency calls. In this case, defendant Deputy Johns shot and killed Plaintiff Palma, a mentally ill person, “while responding to a 9-1-1 call about a family dispute over a television remote.” Id at 424. The 911 dispatcher informed Johns that Palma was an “unwanted person” at the house; had broken a television remote; and was a “Code 76,” which meant that Palma “suffered from mental health issues.” Id. Before approaching the residence, “Johns removed his weapon from his ankle holster because he anticipated that he might need it.” Id. Witnesses to the next series of events provided conflicting testimony in some regards, but all agree that when Johns arrived, Palma was on the porch with a hood over his head and his hands in his pockets. Id. Johns got out of his car and Palma began to walk towards the deputy. Johns ordered Palma to stop and take his hands out of his pockets, but Palma continued to walk. Id. Johns threatened Palma with a taser, and when Palma didn’t stop walking, he tased Palma. After the tasing, Palma got up and continued to walk toward the officer. Palma continued to disobey the officer’s escalating warnings and continued to walk toward the officer. Johns ultimately shot Palma nine times. Id at 26.
In analyzing the applicable legal standards, the Sixth Circuit held as follows:
Tasing. “Officers may use non-lethal force—such as tasers or pepper spray—if they have an “objective justification” for doing so. Gaddis v. Redford Twp., 364 F.3d 763, 774 (6th Cir. 2004). Specifically, officers may use a taser if a person is “particularly violent or physically resistant, so as to endanger responders.” Estate of Erwin v. Greene Cnty., 861 F. App'x 1, 6 (6th Cir. 2021) (citing Kent, 810 F.3d at 391). Indeed, officers may tase a person who actively resists arrest, Rudlaff v. Gillispie, 791 F.3d 638, 641 (6th Cir. 2015) (citing Hagans v. Franklin Cnty. Sheriff's Off., 695 F.3d 505, 509 (6th Cir. 2012)), or who “resist[s] ... an officer's commands even if the officers were not attempting to arrest him,” Kelly v. Sines, 647 F. App'x 572, 575 (6th Cir. 2016). Resistance includes “physically struggling with, threatening, or disobeying officers.” Id. (quoting Cockrell v. City of Cincinnati, 468 F. App'x 491, 495 (6th Cir. 2012)). But not all disobedience justifies the use of force. “[A]n officer may not tase a citizen not under arrest merely for failure to follow the officer's orders when the officer has no reasonable fear for his or her safety.” Wright, 962 F.3d at 868–69.” Palma v. Johns, 27 F.4th 419, 430 (6th Cir. 2022)
· The Court held that Deputy Johns’ tasing could not be justified “merely for refusing to stop and show his hands” unless he had some other reason to fear for his safety.” Id.
Shooting. “A police officer may not seize an unarmed, nondangerous suspect by shooting him dead.” Tennessee v. Garner, 471 U.S. 1, 11, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). When an officer uses deadly force, that force is unreasonable unless “the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others.” Id. “[T]he threat factor is ‘a minimum requirement for the use of deadly force.’ ” Jacobs, 915 F.3d at 1040 (quoting Mullins, 805 F.3d at 766). “We have authorized the use of deadly force ‘only in rare instances.’”
When considering whether an officer reasonably believed that a person posed an imminent threat of serious bodily harm, courts must consider the totality of the circumstances. Here, certain factual considerations are particularly relevant, though none is dispositive and this list is not exhaustive: (1) why the officer was called to the scene, see Graham, 490 U.S. at 396, 109 S.Ct. 1865; (2) whether the officer knew or reasonably believed that the person was armed, see Bouggess v. Mattingly, 482 F.3d 886, 891 n.5 (6th Cir. 2007) (citing Dickerson v. McClellan, 101 F.3d 1151, 1151–62 (6th Cir. 1996)); (3) whether the person verbally or physically threatened the officer or disobeyed the officer, see Wright, 962 F.3d at 868 (quoting Smith, 874 F.3d at 945); (4) how far the officer was from the person, see Zulock v. Shures, 441 F. App'x 294, 302 (6th Cir. 2010); (5) the duration of the entire encounter, see Untalan v. City of Lorain, 430 F.3d 312, 316 (6th Cir. 2005); (6) whether the officer knew of any ongoing mental or physical health conditions that may have affected the person's response to the officer, see Roell, 870 F.3d at 482; and (7) whether the officer could have diffused the situation with less forceful tactics, see Thomas, 854 F.3d at 366–67. After weighing these factors, we conclude that Defendants cannot prevail at the summary judgment stage because a reasonable jury could find that Johns used excessive force when he first shot at Palma. See Anderson, 477 U.S. at 248, 106 S.Ct. 2505. Palma v. Johns, 27 F.4th 419, 432 (6th Cir. 2022)
With regard to each of the specific factors, the Court held:
a. Reason for Police Response: In this case, the officer was essentially on a wellness check. He was informed that there was an unwanted person with mental illness who had broken a television remote. This is quite different from a call involving an active robbery or home invasion.
b. Presence of a Weapon: Whether or not a person is armed greatly impacts the use of deadly force analysis. Here, nobody told Deputy Johns that Palma was armed. He never saw Palma holding anything. He was merely “concerned” that he could not see Palma’s hands. Importantly, the Court held that “even if the person’s hands are not visible – and even if he appears to be suspiciously reaching for something in his clothing – these facts would not lead a reasonable officer to believe that the person posed an immediate threat of serious harm.” Id. at 434. That means it is clearly established that officers are not justified in using deadly force based on the fact that they cannot see a person’s hands or because the person is “suspiciously” reaching for something in their pockets.
c. Disobedience and Threatening Behavior: This factor looks to whether the person was behaving aggressively toward the officer. Walking towards an officer while defying orders does not justify the use of deadly force.
d. Distance Between the Officer and the Person: In other cases, the Sixth Circuit has held that (a) it is likely unreasonable to shoot a man armed with a knife when officers were eighteen to twenty feet away; and (b) it was reasonable to shoot a knife-wielding man who approached the officer and got within five feet. In this case, Johns said he was “concerned that ‘Palma would physically reach him, assault him, and perhaps obtain [his] weapon.]” Id. at 436. Witnesses dispute whether Palma was seven or fifteen feet from Deputy Johns, but the fact that Palma was completely unarmed makes this factor less critical.
e. Duration of the Encounter: “The fact that a situation ‘unfolds quickly’ is not alone sufficient to justify the application of deadly force, but it is a factor that weighs in favor of a finding of reasonableness when it accompanies a credible threat to the safety of an officer or the public.” Mitchell, 864 F.3d at 423 (citing Mullins, 805 F.3d at 766–67). The dichotomy on this element is between “split second” decisions and longer timespans (like ten minutes) for officers to assess and react to a situation. In this case, there is no evidence that Deputy Johns faced a “split second” decision as he apparently had eight to ten minutes to react. “If Johns had eight to ten minutes to assess and respond to a situation that rapidly escalated, the use of lethal force would be unreasonable.” Palma, 27 F4th at 436.
f. Mental Health Conditions: The Court’s analysis of this factor is extremely important for plaintiffs to digest. The Court found that the dispatcher’s statement that Palma was a “Code 76” (indicating mental illness) put the officer on notice of a critical fact that mitigates against the use of deadly force. Specifically, the court found:
i. Johns was required to take into account Palma’s diminished capacity before using force against him. Id.
ii. It is only reasonable to use force against mentally ill individuals in extreme cases, like where the person is armed and threatening the officers. Id.
iii. Officers may not respond to persons with mental illness in the same way (or with the same use of force) that they would respond to a person not suffering from mental illness. Id.
iv. Ordinarily threatening behaviors like unresponsiveness to police commands may not provide a justification for use of deadly force where those behaviors are consistent with mental illness.
g. Readily Available Alternatives: The Sixth Circuit requires officers to de-escalate: “[P]olice routinely respond to non-criminal mental health calls and wellness checks. See Black's Law Dictionary, What is a Police Welfare Check?, available at https://thelawdictionary.org/article/what-is-a-police-welfare-check/. Accordingly, under this Court's precedent, officers should use their training and expertise in crisis management to determine whether and how to de-escalate a situation before resorting to force. See Martin, 712 F.3d at 958–59 (denying qualified immunity because a reasonable officer “would try to de-escalate the situation and reduce the level of force needed to gain control”). Officers must use this experience to assess the level of risk in light of a person's mental illness.” Palma v. Johns, 27 F.4th 419, 438 (6th Cir. 2022). Officer Johns could have removed himself from the situation, retreated, or used less lethal force like his baton. Palma was already outside the home and he was unarmed. He could have gotten into his car and called for backup. Instead, he unholstered his firearm and shot Palma nine times.
h. Balancing All Factors: The Sixth Circuit held that – even though Palma was walking towards Johns with his hands concealed – a reasonable jury could conclude that Deputy Johns conduct violated Palma’s constitutional right to be free from excessive force. The nature of the call and the conditions upon Deputy Johns’ arrival were critical to the court’s holding. Deputy Johns’ knowledge that Palma was mentally ill required the officer to respond to this situation differently.
Takeaways: First and foremost, police have a clearly established duty to respond to calls involving persons with mental illness differently from other calls. Officers cannot respond to a non-criminal emergency call and shoot a person with mental illness just because the person behaves in an erratic manner, even where those behaviors would reasonably indicate threats from a non-mentally-ill individual. Second, an individual is not subject to deadly force merely for refusing to show their hands to a police officer. Failure to respond to an officer’s commands often gives rise to an escalation in force, but that escalation is not justifiable based solely on the inability of the officer to view the person’s hands. Third, it is clearly established federal law that officers must rely on their “training” in “crisis management” when responding to calls involving persons with mental illness. The fact that the Sixth Circuit requires individual officers to “use their training and expertise” in crisis management necessarily implies a duty for municipalities to train on crisis management and de-escalation. Municipal police departments who fail to provide specific training on crisis management, mental illness, and de-escalation do so at the peril of both the communities they serve and the insurers of their municipal liability policies.