When Law and Ethics Meet Mental and Physical Health Events

The 1989 U.S.Supreme Court decision that guides prosecutors, grand juries, and juries in determining whether to charge or convict a police officer of excessive use of force is particularly interesting because it involved a man who was suffering from an episode of low blood sugar related to diabetes.  It is not uncommon for individuals suffering from diabetes, epilepsy, or other physical health conditions to run into confrontations with law enforcement officials, often ending up at the receiving end of considerable force or restraint -- sometimes even death.  Often individuals experiencing such events can not hear, or can not respond to, officer instructions to stop or kneel or drop what is in their hands.  Sometimes they may be flailing or cursing as part of the pattern that precedes a seizure or blackout.

Some years ago a very pregnant friend of mine, wearing her husband's large overcoat, passed out in Penn Station and woke up with a cop putting the boot to her on the presumption that she was a drunken wino or wasted heroin addict. Never mind that one might reasonably question whether cops should be putting the boot to passed-out winos or heroin addicts instead of calling an ambulance, but in this case it was merely the grace of whatever Deity was watching out for this unborn child that neither it nor the mom wound up with permanent injuries.

The standard set by the U.S. Supreme Court requires prosecutors, grand juries and juries to consider what a reasonable police officer, in light of their knowledge, training and concern for other members of the community, would do if faced with exactly the same circumstances. If the person is acting strangely, appearing agitated, does not respond to commands, then by law a level of force, up to and including deadly force, can be used to subdue that individual.

With a steeply increasing percentage of our population taking pharmaceuticals for mental health issues -- anxiety, depression, ADD -- these conflicts and their often deadly results seem to be getting all the more common. At the same time, public acceptance of the legally-sanctioned response is diminishing. Large segments of the public are expressing dismay when police promptly shoot a young man who seems to be in a daze and is chanting, 'shoot me, shoot me now, shoot me'.  The public is baffled, hurt and angry when police promptly shoot and  kill a man who is experiencing a medication error episode and is swinging around a shovel in his own front yard. Every one of us with a friend or relative who sometimes has moments where they can't respond swiftly to a police command to get down, or a friend or relative who might sometimes slip into a seizure with unpredictable behavior, now has to ask ourselves if that person is at mortal risk going out in public places. Any parent or spouse or friend whose loved one goes into one of these episodes now has to wonder what to do: Calling for help will wind up with police dispatched, and the request for help might well end with a body bag instead of assistance.

The problem is a disconnect between the law of what the police CAN do -- what they are legally authorized to do -- and the ethics of what they SHOULD do.  Just because you are allowed to do something legally doesn't mean you necessarily should assume it's the right thing to do. And yet, how do we go about training police officers to follow established protocols for community safety on the one hand, yet exercise the ethics of discretion on the other?

Or, are we asking too much of law enforcement to expect them to be able to discern a medical situation from a criminal justice situation? In years long ago, when the mental health field was dominated by residential institutions, there was another response option -- the men in the white coats with straight jackets. When we as a society collectively determined that large mental institutions and those guys with the straight jackets were inhumane, we did not create any alternative to take their place.  You can call an ambulance -- but if the person is bouncing around or swinging or throwing things, the ambulance personnel will ask for police back-up. There's no other choice. There's no middle ground. There's no protocol for identifying and differentiating a person who is acting in a disturbing manner from a medical event from a person who is acting in a disturbing manner from an addictive substance habit or through sheer criminality.

Nor is there any ethical guideline in our culture for determining where along the spectrum of medically and chemically induced behavior our official response should differ. Should the person throwing things around a store and cursing in the midst of a pre-seizure event due to epilepsy be treated by medics, but the person throwing things around a store and cursing due to PCP in their pot or a bad meth experience get shot by police? Is the person chanting 'shoot me' horribly depressed and suicidal such that they should receive emergency mental health counseling, or are they a split second away from swinging a knife at someone nearby and thus present a severely dangerous threat to the community and must be shot? Who is going to decide which is which, and how?

The legal standard itself is highly subjective. There is no checklist, there is no explicit court ruling that lists precise actions or timelines required; instead, individuals have to compare the standard to the facts and determine if the officer's actions were legally warranted by the circumstances.  Obviously there are some cases where the answer is clear: the armed robbery in progress, the person holding a hostage at gunpoint, and similar situations warrant the force necessary to stop them in order to save other lives. A whole mess of other cases are not remotely as clear. 

But beyond that legal standard, our society has not had the serious, focused, intense discussion necessary to establish ethical guidance for our official governmental response to incidents where individuals are displaying erratic behavior as a result of physical or mental health incidents or chemical imbalances. Should states and communities adopt laws and policies directing law enforcement to only use lethal force as an absolute last resort? Should police have more extensive medical training, and be given other non-lethal protocols for dealing with these cases? Should police be integrated with medical personnel who are charged with making swift assessments of the causation of these incidents? Should there be some other entity responsible for responding to incidents involving erratic behavior possibly related to physical or mental health? And are we all willing to pay for and support the development of these alternatives?

The conflict between law and ethics is that what the law says CAN be done is not necessarily what SHOULD be done.  The public is speaking loud and clear that we don't think the level of law enforcement force applied to individuals experiencing mental and physical health events is appropriate -- yet, we are not having the conversation about how we all SHOULD respond to such incidents, which leaves police as the default responders, and the legal standard as the default protocol. We don't like the rock, and we don't like the hard place, and we have not yet figured out what other options there might be.

Our society needs to engage in open, meaningful public discussion at every level from neighborhoods to Congress, with law enforcement, mental and physical health care providers, members of the disabilities community, and just plain caring citizens at the table. This is probably best started by urging your town and city governing bodies, which have oversight over community police entities, to begin the conversation with an eye towards transparency and vetting of local and state police protocols on use of force.  Law enforcement agencies are employees of us, the people.  We should be clear in our directives to our law enforcement agencies that we value the lives of the persons in our communities with physical and mental health issues, and want to ensure that they live with dignity and respect even when in the midst of frightening or disruptive health and medication events.