Policing Under Disability Law

In recent years there has been increased attention to the problem of police violence as relates to disabled people. Disabled people are over-represented in police killings and, in a number of cities, police use of force incidents. Further, though police violence dominates the discussion of policing, disabled people also experience at disproportionate rates more ordinary forms of policing that can lead to police violence. Disabled people, particularly those with untreated psychiatric disabilities, are vulnerable to policing in medical facilities in the very places where they seek to access care. Many are arrested pursuant to aggressive enforcement policies aimed at removing so-called “unwanted persons” or regulating those labeled disruptive or disorderly. Though they pose no risk of physical harm, some are arrested and taken to jail, at times simply because they have no place else to go. The article centers disability theory as a lens for understanding the problem of policing and police violence as it impacts disabled people. In doing so, this article centers federal disability law in these ongoing problems of policing and police violence. Disabled plaintiffs have alleged disability discrimination and challenged policing and police violence under both under Title II of the ADA and the Rehabilitation Act of 1973, another federal disability law and precursor to the ADA. The Supreme Court has yet to decide whether Title II of the ADA applies to arrests, and federal appellate courts are split on whether and to what extent Title II’s anti-discrimination provisions apply to street encounters and arrests. There is no telling when the question will reach the Supreme Court again, but before it does, it will be important to develop a theory, not just of liability, but also of disability under Title II that is consistent with the text, history, and animating goals of the ADA. As I discuss in this article, courts are already adopting a theory of disability that informs how they decide policing cases under Title II — a theory that is inconsistent with that adopted by the ADA and the ADA Amendments of 2008: the medical model of disability. Existing theories of liability under Title II of the ADA incorporate a medical model of disability which I argue leads courts to pay insufficient attention to disability as a social construction. These cases show how the ADA — contrary to its celebrated goals of access and social inclusion — has been interpreted to exclude a class of individuals from civil rights protection through distinguishing out which disability-related behaviors warrant accommodation by law enforcement, and which do not, and in a manner inconsistent with the ADA and implementing regulations. Ultimately, I show how the medical model of disability in policing cases serves to limit the broad scope of protections available under the ADA that can be used to push back against such disability-based subordination vis-a-vis policing. Adopting and incorporating a social model of disability calls for a re-examination of extant legal standards regarding causation, intentional discrimination, disparate impact, and deference to law enforcement under the ADA. Further, as I argue, adopting a social model of disability, or disability as a social construction, is not only more consistent with the animating goals of the ADA, but also more attuned to the social meanings at play that work to expose disabled people to policing and police violence. Ultimately, by centering a social model of disability in cases challenging disability-based discrimination under federal disability laws, and incorporating disability law into ongoing public activism, discourse, and policy-making on policing, we can better respond to the problems stemming from the policing of disability, as well as the long-standing social problem of police violence.