DISABILITY’S FOURTH AMENDMENT - Columbia Law Review

Issues relating to disability are undertheorized in the Supreme Court’s Fourth Amendment jurisprudence. Across the lower courts, although disability features prominently in excessive force cases, typically involving individuals with psychiatric disabilities, it features less prominently in other areas of Fourth Amendment doctrine. Similarly, scholars have yet to substantively address how the Fourth Amendment’s vast scope of police discretion renders individuals with disabilities vulnerable to policing and police violence. Although scholarship has engaged robustly with theories of criminalization and social control in critiques of Fourth Amendment doctrine that address race and racism, thus far, its engagement with disability and its intersections with other current and historically marginalized subordinated identities is limited.

The full text of this Essay can be found by clicking the PDF link to the left.

* Assistant Professor of Law, University of California, Irvine School of Law. For helpful comments and feedback, I wish to thank Swethaa Ballakrishnen, Shima Baradaran Baughman, Rabia Belt, Chris Buccafusco, Bennett Capers, Jenny Carroll, Beth Colgan, Erin Collins, Pooja Dadhania, Barbara Fedders, Myriam Gilles, Betsy Ginsburg, Eve Hanan, Daniel Hemel, E. Lea Johnston, Orin Kerr, Dana Lee, Ben Levin, Kate Levine, Alison Mikkor, Eric Miller, Kathryn Miller, Justin Murray, Melissa Murray, Prianka Nair, Ngozi Okidegbe, Sunita Patel, Emily Taylor Poppe, Alexander Reinert, Anna Roberts, Kenneth Simons, Jocelyn Simonson, Ji Seon Song, India Thusi, Erika Wilson, Ekow Yankah, and the participants in faculty workshops at Cardozo Law School, California Western School of Law, University of Florida Levin College of Law, George Washington University Law School, and University of California, Irvine School of Law, as well as the Decarceration Law Professors Workshop, Lutie Lytle Writing Workshop, Vanderbilt Criminal Justice Workshop, and Women of Color Collective Junior Legal Scholars Writing Workshop.

Introduction

The story of Graham v. Connor is familiar to students and teachers of criminal procedure. 1 490 U.S. 386 (1989). The facts of the case go something like this: Dethorne Graham was a thirty-nine-year-old Black man with diabetes. 2 Id. at 388; Leon Neyfakh, Is Juice Delayed Justice Denied?: What Constitutes “Reasonable” Use of Force by Police? It Goes Back to the Case of Dethorne Graham., Slate (Oct. 2, 2015), https://slate.com/news-and-politics/2015/10/when-is-police-violence-reasonable-it-goes-back-to-this-supreme-court-decision.html [https://perma.cc/72RQ-FABL]. On the day in question, Graham experienced the onset of an adverse insulin reaction. 3 Graham, 490 U.S. at 388. He asked a friend to drive him to a nearby convenience store to purchase some orange juice to mitigate the reaction. 4 Id. He grabbed a bottle of orange juice and went to stand in line at the store but decided that there were too many people in line. 5 Id. at 388–89. Consequently, Graham rushed out of the store, returned to his friend’s car, and asked his friend to drive him to another friend’s house. 6 Id. at 389. Officer Connor, a Black police officer, observed what had transpired in the convenience store, and it provoked his suspicion so much that he made an investigatory stop. 7 Id. Graham’s friend then told Officer Connor that Graham was having a “sugar reaction.” 8 Id. Unconvinced, Officer Connor wanted to verify this account, so he returned to his car to call the convenience store. 9 Id. He also called for additional police backup. 10 Id. In the meantime, Graham got out of the car, circled it a couple of times, and passed out briefly on or near the curb. 11 Id. When responding officers arrived, Graham was drifting in and out of consciousness. 12 Id. Nonetheless, officers still forcibly handcuffed him, and at some point during the ordeal, “Graham sustained a broken foot, cuts on his wrists, a bruised forehead, and an injured shoulder . . . [and] a loud ringing in his right ear.” 13 Id. at 390.

What is interesting about the case and how it is discussed in subsequent court opinions and legal scholarship and taught in criminal procedure courses is that Graham’s disability is at once hypervisible and yet still somewhat invisible. Graham’s disability is noted, but little interrogation ever arose of how disability mediated the police interaction or what it says about Fourth Amendment doctrine that suspicion could be based on behaviors caused by, or at least closely related to, a person’s disability. This is perplexing because Graham’s disability—or more precisely, his disability-related behaviors—furnished a large part of the basis for reasonable suspicion justifying Officer Connor’s investigatory stop. Subsequently, the responding officer misinterpreted Graham’s disability and attendant symptoms as indicia of drunkenness. Indeed, one of the officers was quoted in the opinion as stating, “I’ve seen a lot of people with sugar diabetes that never acted like this. Ain’t nothing wrong with the M.F. but drunk. Lock the S.B. up.” 14 Id. at 389. Of course, Graham is an excessive force case, and the question of whether the investigatory stop was legal was not at issue by the time the case reached the Supreme Court. At oral argument, however, Justice Thurgood Marshall was cognizant that disability furnished a basis for the seizure and subsequent use of force. Marshall pressed respondent’s counsel to answer exactly “what reason . . . there [was] for handcuffing a diabetic in a coma.” 15 Transcript of Oral Argument at 26, Graham, 490 U.S. 386 (No. 87-6571), https://www.supremecourt.gov/pdfs/transcripts/1988/87-6571_02-21-1989.pdf [https://perma.cc/KUS9-RLSU]. The Supreme Court went on to rule in Graham’s favor, remanding the case back to the court below to apply the correct standard—that of objective reasonableness. Yet despite Justice Marshall’s thorough engagement with Graham’s disability, the role it played in the encounter, and how it shaped the officers’ subsequent justifications for their use of force, disability does not feature prominently in the majority opinion.

This duality, both the hypervisibility and invisibility of Graham’s disability, comes through in a subsequent Supreme Court opinion some twenty-six years later, in a case involving another excessive force claim: City of San Francisco v. Sheehan. 16 575 U.S. 600 (2015). In that case, officers from the San Francisco Police Department shot Teresa Sheehan, a white woman in her fifties with psychiatric disabilities, fourteen times. 17 Id. at 602–08; Sandy Allen, Police Were Called to Take Teresa Sheehan to a Hospital. Instead, They Shot Her Seven Times., Buzzfeed News (July 9, 2015), https://www.buzzfeednews.com/article/sandraeallen/the-trials-of-teresa-sheehan-how-america-is-killing-its-ment [https://perma.cc/7S79-Z6SM] (“There were 14 bullet holes in her body.”). The officers, Kimberly Reynolds and Katherine Holder, were called to the group home where Sheehan resided to effectuate a temporary detention order after a social worker had determined that Sheehan required temporary detention for psychiatric evaluation and treatment. 18 Sheehan, 575 U.S. at 603. According to the social worker, Sheehan had stopped taking her medication, which concerned him, so he called the police. 19 Id. When Officers Reynolds and Holder arrived at Sheehan’s room, they knocked and informed Sheehan that they were there to help her. 20 Id. at 604. When Sheehan did not respond, the officers obtained a key from the social worker and entered the room, which startled Sheehan. 21 Id. Sheehan picked up a “kitchen knife with an approximately 5-inch blade and began approaching the officers, yelling something along the lines of ‘I am going to kill you. I don’t need help.’” 22 Id. The officers retreated and left Sheehan in her room alone. 23 Id. Fearing that Sheehan would escape or harm herself or others, the officers reentered the room instead of waiting for backup. 24 Id. at 604–05. Armed with pepper spray and their pistols, the officers sprayed Sheehan in the face. They testified that when Sheehan did not drop the knife after being pepper sprayed, they shot her multiple times. 25 Id. at 605–06 Sheehan survived and sued, alleging that the officers had used excessive force in violation of the Fourth Amendment and that the officers had failed to accommodate her in violation of the Americans with Disabilities Act (ADA). 26 Id. at 606. The Court dismissed the ADA claim as improvidently granted and held that the officers were entitled to qualified immunity, as no clearly established law existed that put them on notice that they were violating Sheehan’s Fourth Amendment rights. 27 Id. at 616–17. In reaching that holding, Justice Samuel Alito, writing for the majority, sharply distinguished Graham from Sheehan—and overturned the Ninth Circuit’s holding that Graham controlled as clearly established law sufficient to defeat qualified immunity—noting that:

Even a cursory glance at the facts of Graham confirms just how different that case is from this one. That case did not involve a dangerous, obviously unstable person making threats, much less was there a weapon involved. There is a world of difference between needlessly withholding sugar from an innocent person who is suffering from an insulin reaction, and responding to the perilous situation Reynolds and Holder confronted. Graham is a nonstarter. 28 Id. at 614 (citation omitted) (citing Graham v. Connor, 490 U.S. 386, 388–89 (1989)).

On the surface, distinguishing Graham from Sheehan on the facts seems correct. Yet while the facts of the cases differ dramatically, the Court’s move to sharply distinguish may indeed miss some of the more fundamental ways in which the cases are similar. Disability is both hypervisible and invisible in both cases: Disability and reactions to it prompt the police encounter, yet the role disability plays, whether in triggering the encounter or during the encounter, and its role in justifying the use of force, is largely ignored. Most importantly, the Court’s cursory glance does not take critical account of how the discretionary decisions (e.g., to stop, to seize) by police in Graham share similarities, or operating logics, with the discretionary decisions (e.g., to enter the room, to not wait for backup, to use force) at issue in Sheehan. These discretionary decisions or operating logics relate to the policing of disability and how norms, attitudes, and social practices related to, responding to, or produced by disability and disability-based subordination are reinforced through the policing powers the Fourth Amendment authorizes and upholds.

To date, the Supreme Court’s Fourth Amendment jurisprudence is undertheorized when it comes to issues relating to disability. A number of cases discuss disability and Fourth Amendment doctrine, but few offer a substantive critique or engage with disability as a subordinated identity or status. 29 See Samuel R. Bagenstos, Subordination, Stigma, and “Disability”, 86 Va. L. Rev. 397, 402 (2000) (“A casual first glance at the bottom-line results might suggest that the four cases are consistent with an understanding of disability as a subordinated group status. A closer analysis reveals a more complicated picture, however.”). Among the lower courts, though disability features prominently in excessive force cases, typically involving individuals with psychiatric disabilities, it features less prominently in other areas of Fourth Amendment doctrine. 30 E.g., Estate of Armstrong ex rel. Armstrong v. Village of Pinehurst, 810 F.3d 892, 910 (2016) (“Where, during the course of seizing an out-numbered mentally ill individual who is a danger only to himself, police officers choose to deploy a taser[,] . . . those officers use unreasonably excessive force . . . . [L]aw enforcement officers should now be on notice that such taser use violates the Fourth Amendment.”). Although there has been robust engagement with theories of criminalization and social control in Fourth Amendment critiques involving race, there is limited engagement with disability and its intersections with other subordinated identities, including race, class, and marginalized gender identities and expressions. 31 See, e.g., David Cole, No Equal Justice: Race and Class in the American Criminal Justice System 22, 32 (1999) (arguing that the courts have “turned a blind eye to factors strongly suggesting a less than voluntary encounter” in the context of Fourth Amendment jurisprudence and citing cases involving police violence that affected disabled individuals). Finally, despite some recent legal scholarship addressing police violence as it affects disabled people, particularly people with psychiatric disabilities, scholars have yet to substantively address how the vast scope of police discretion afforded by the Fourth Amendment renders individuals with disabilities vulnerable to unwarranted police encounters and intrusions. 32 See, e.g., Michael Avery, Unreasonable Seizures of Unreasonable People: Defining the Totality of Circumstances Relevant to Assessing the Police Use of Force Against Emotionally Disturbed People, 34 Colum. Hum. Rts. L. Rev. 261, 267–89 (2003) (discussing police excessive force against individuals labeled as “emotionally disturbed”); Camille A. Nelson, Frontlines: Policing at the Nexus of Race and Mental Health, 43 Fordham Urb. L.J. 615, 619 (2016) [hereinafter Nelson, Frontlines] (discussing ways in which negatively racialized individuals are labeled as crazy despite actual mental health diagnosis); Camille A. Nelson, Racializing Disability, Disabling Race: Policing Race and Mental Status, 15 Berkeley J. Crim. L. 1, 16 (2010) [hereinafter Nelson, Racializing Disability] (discussing the criminalization of and excessive force against disabled people of color).

This Essay centers disability as a lens for analysis in Fourth Amendment jurisprudence. This Essay discusses the ways in which disability mediates interactions with law enforcement and how Fourth Amendment doctrine renders disabled people vulnerable to policing and police violence. 33 This Essay’s reference to “disabled people” should not be taken to suggest uniformity in disabilities or in the experiences of people with disabilities. Naturally, disabilities include a whole range of physical, intellectual, developmental, sensory, and biological embodiments, expressions, conditions, and impairments, as well as chronic illnesses and injuries. See Bagenstos, supra note 29, at 405 (describing disability as a “diverse array of conditions”). This Essay uses the term “disabled people” to acknowledge the shared experiences with subordination that attaches to the social meanings of disabilities. See Simi Linton, Claiming Disability: Knowledge and Identity 2 (1998) (describing the “group identity” that disabled people have embraced); Bagenstos, supra note 29, at 418 (suggesting that subordination creates an identifiable class of people with disabilities). More specifically, this Essay focuses on a critique of the Terry doctrine, consensual encounters, consent searches, and the objective reasonableness standard under Graham. A critical lens focused on each of these doctrines, taken together, demonstrates how Fourth Amendment doctrine both fails to adequately protect disabled people and reinforces a “normative bodymind” 34 See Sami Schalk, Bodyminds Reimagined: (Dis)ability, Race, and Gender in Black Women’s Speculative Fiction 5 (2018) (“Bodymind is a materialist feminist disability studies concept from Margaret Price that refers to the enmeshment of the mind and body, which are typically understood as interacting and connected, yet distinct entities due to the Cartesian dualism of Western philosophy.” (citing Margaret Price, The Bodymind Problem and the Possibilities of Pain, 30 Hypatia 268, 270 (2014))). by rendering vulnerable to police surveillance, suspicion, and force those persons whose physical and psychological conditions, abilities, appearances, behaviors, and responses do not conform to the dominant norm.

This Essay also builds on and grows out of the work of many scholars who have written about racial bias and disparities in policing, 35 See generally Cole, supra note 31 (arguing that policing prerogatives and America’s criminal justice imposes race- and class-based double standards which consequently impacts the rights of the poor and minorities); David A. Harris, A City Divided: Race, Fear and the Law in Police Confrontations (2020) (discussing how different races of people have varying police encounters and the effects of militarization of the police on police relations amongst various minority communities); David A. Harris, Racial Profiling: Past, Present and Future?, 34 Crim. Just. 10 (2020) [hereinafter Harris, Racial Profiling] (noting how entrenched racial profiling is within our community and explaining how it corrodes relations between police and communities); Tracey Maclin, Race and the Fourth Amendment, 51 Vand. L. Rev. 333 (1998) [hereinafter Maclin, Race and the Fourth Amendment] (arguing how Whren v. United States, 517 U.S. 806 (1996), continues to allow for more racial policing in the area of traffic enforcement). and the work of critical race theorists who have argued that legal doctrine constructs race and gender hierarchies. 36 See, e.g., I. Bennett Capers, Policing, Race, and Place, 44 Harv. C.R.-C.L. L. Rev. 43, 65 (2009) (describing the role of criminal law and procedure in creating racialized spaces); Devon W. Carbado, (E)racing the Fourth Amendment, 100 Mich. L. Rev. 946, 947 (2002) [hereinafter Carbado, (E)racing the Fourth Amendment]; Kimberle Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics, 1989 U. Chi. Legal F. 139, 145, 151; Dorothy E. Roberts, Foreword: Race, Vagueness, and the Social Meaning of Order-Maintenance Policing, 89 J. Crim. L. & Criminology 775, 805 (1999) [hereinafter Roberts, Race, Vagueness, and the Social Meaning of Order-Maintenance Policing]. Legal scholars have long recognized the role of race and racism in the criminal legal system, particularly with respect to policing. 37 See, e.g., Cole, supra note 31, at 53 (“In effect, then, the Supreme Court has immunized a wide range of law enforcement from any Fourth Amendment review. All these tactics are disproportionately directed at persons of color.”); Devon W. Carbado, From Stopping Black People to Killing Black People: The Fourth Amendment Pathways to Police Violence, 105 Calif. L. Rev. 125, 143 (2017) [hereinafter Carbado, From Stopping Black People to Killing Black People] (arguing that the Court should consider race when assessing the “totality of the circumstances” of a police seizure); Cynthia Lee, Reasonableness With Teeth: The Future of Fourth Amendment Reasonableness Analysis, 81 Miss. L.J. 1133, 1152 (2012) [hereinafter Lee, Reasonableness With Teeth] (describing police officers’ implicit racial bias toward Black and brown individuals in stops and searches); Tracey Maclin, “Black and Blue Encounters”—Some Preliminary Thoughts About Fourth Amendment Seizures: Should Race Matter?, 26 Val. U. L. Rev. 243, 250 (1991) [hereinafter, Maclin, Black and Blue Encounters] (“When assessing the coercive nature of an encounter, the Court should consider the race of the person confronted by the police, and how that person’s race might have influenced his attitude toward the encounter.”); Maclin, Race and the Fourth Amendment, supra note 35, at 339–40 (“Although the casual reader of the Court’s Fourth Amendment opinions would never know it, race matters when measuring the dynamics and legitimacy of certain police-citizen encounters.”). These criminal legal scholars 38 See, e.g., Issa Kohler-Hausmann, Misdemeanorland: Criminal Courts and Social Control in an Age of Broken Windows Policing 9 (2018); Alexandra Natapoff, Punishment Without Crime: How Our Massive Misdemeanor System Traps the Innocent and Makes America More Unequal 3–12 (2018) [hereinafter Natapoff, Punishment Without Crime]; John Pfaff, Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform 14 (2017); see also Jenny Roberts, Why Misdemeanors Matter: Defining Effective Advocacy in the Lower Criminal Courts, 45 U.C. Davis L. Rev. 277, 293 n.69 (2011) (noting that racial and economic disparities in the criminal justice system are particularly apparent when it comes to misdemeanor arrests). have identified overpolicing and discriminatory enforcement with respect to racial minorities and low- to no-income persons of color in particular as central to the problem of mass criminalization and the mass punishment system in America. 39 See, e.g., Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness 178–90, 234 (2010) (“[T]he War on Drugs is an engine of mass incarceration, as well as a major cause of gross racial disparities throughout the system.”); Elise C. Boddie, Adaptive Discrimination, 94 N.C. L. Rev. 1235, 1272–73 (2016) (noting that Black people “comprise a disproportionate number of those imprisoned and, thus, a disproportionate number of those affected by felon disenfranchisement”); Ian F. Haney Lόpez, Post-Racial Racism: Racial Stratification and Mass Incarceration in the Age of Obama, 98 Calif. L. Rev. 1023, 1050–51 (2010) (“Mass incarceration, and even more convict leasing, demonstrate one of the core insights promoted by a theory of racial stratification: the inseparable connection between race and class in the United States.”); Joseph H. Tieger, Police Discretion and Discriminatory Enforcement, 1971 Duke L.J. 717, 718–19 (“For the poor, the Black, the culturally-deviant, and the politically-activist minorities, constitutional protections are easily rendered meaningless by the capricious exercise of unreviewable discretion by the policeman on the beat . . . .”); Valeria Vegh Weis, Criminal Selectivity in the United States: A History Plagued by Class & Race Bias, DePaul J. Soc. Just., Summer 2017, at 1, 5–9, 22–24 (“This means that, although most laws appear to be facially neutral, they disproportionately target behaviors associated with the lower classes and racial minorities.”). Criminal law scholars have documented the manner in which race, class, and community—namely, the designation of a community as “high crime”—facilitates police stops based on a lack of individualized suspicion. 40 David A. Harris, Factors for Reasonable Suspicion: When Black and Poor Means Stopped and Frisked, 69 Ind. L.J. 659, 660 (1994); David A. Harris, Particularized Suspicion, Categorical Judgments: Supreme Court Rhetoric Versus Lower Court Reality Under Terry v. Ohio, 72 St. John’s L. Rev. 975, 976 (1998); Tracey Maclin, The Decline of the Right of Locomotion: The Fourth Amendment on the Streets, 75 Cornell L. Rev. 1257, 1273 (1990); Margaret Raymond, Down on the Corner, Out in the Street: Considering the Character of the Neighborhood in Evaluating Reasonable Suspicion, 60 Ohio St. L.J. 99, 100–01 (1999). Beyond this, critical race theorists have documented the manner in which policing and legal doctrine construct racialized suspicion while at the same time omitting consideration of the experiences of racial minorities as policed subjects in Fourth Amendment jurisprudence. 41 Carbado, (E)racing the Fourth Amendment, supra note 36, at 965; see also Dorothy Roberts, How the Child Welfare System Polices Black Mothers, S&F Online (2019), https://sfonline.barnard.edu/unraveling-criminalizing-webs-building-police-free-futures/how-the-child-welfare-system-polices-black-mothers/# [https://perma.cc/6DL4-GLL7]. This analysis is informed by Professor Devon Carbado’s work, which sought to uncover the pathways to police violence as both a theoretical framework for diagnosing the nature and scope of the problem of policing and remedial interventions. 42 See Carbado, From Stopping Black People to Killing Black People, supra note 37, at 128 (discussing how Fourth Amendment law enables pathways to police violence). In addition, this Essay builds on the work of Professor Camille Nelson, who has written on the role of policing in race- and mental disability-based subordination, to hone in on the Fourth Amendment and its role in reinforcing disability-based subordination, beyond mental disability and inclusive of physical, intellectual, and developmental disability.

Finally, this Essay rethinks aspects of Fourth Amendment doctrine, drawing from disability studies, critical disability theory, and disability critical race theory, and offers an analysis of police encounters that centers the experiences of people with disabilities, with a particular focus on multiple marginalized disabled people. Though this Essay provides a more nuanced analytical framework for understanding policing, it aims to do more than offer another identity to the significant and pervasive problem of racial bias in policing. Rather, this Essay aims to discuss how disability and race, gender, and class all intersect to form “multiple axes and forms of oppression.” 43 Liat Ben-Moshe, The State of (Intersectional Critique of) State Violence, 46 Women’s Stud. Q. 306, 306 (2018) [hereinafter Ben-Moshe, The State of State Violence]. In short, this Essay is informed by Professor Kimberlé Crenshaw’s work on intersectionality and its applications to American law and politics and offers an intersectional analysis of policing through the lens of disability, with a focus on Fourth Amendment doctrine. 44 Kimberle Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color, 43 Stan. L. Rev. 1241, 1242–43 (1991). As such, this Essay aims to provide a thick description of individuals criminalized on account of their disabilities, but it rejects accounts that are rooted in medicalized notions of disability and that explain criminalization as a product of disability. 45 See, e.g., Bradley A. Areheart, When Disability Isn’t “Just Right”: The Entrenchment of the Medical Model of Disability and the Goldilocks Dilemma, 83 Ind. L.J. 181, 185–86 (2008) (“[U]nder the medical model, a person’s disability is her own personal misfortune—devoid of social cause or responsibility.”); Bagenstos, supra note 29, at 427–28 (“Activists with disabilities believed the dominant [medical] approach inappropriate because it treated disability as an inherent personal characteristic that should ideally be fixed . . . .”).

This Essay proceeds in three parts. Part I discusses the problems of policing and police violence as they affect disabled people. Part II provides an extensive critique of Fourth Amendment doctrine to demonstrate how the doctrine either erases disability or fails to recognize and adequately address issues relating to disability. Here, the focus of my critique is on the Terry doctrine and its progeny, consensual encounters, consent searches, and the objective reasonableness standard under Graham. Disability and critical race lenses applied to each of these doctrines and taken together demonstrate how Fourth Amendment doctrine fails to adequately protect the Fourth Amendment rights of disabled people. Part III notes how this erasure serves to reinforce a “normative bodymind” by rendering vulnerable to police surveillance, suspicion, searches, and force those persons whose physical and psychological conditions, abilities, appearances, behaviors, and responses do not conform to the dominant norm. This Essay then offers a set of doctrinal and policy solutions to address the problems identified in Fourth Amendment jurisprudence.