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Being Black and disabled is not a crime. We need to stop treating it like one.

Thanks to Evita Nwosu-Sylvester for sources and further reading, and to Amanda Cirillo for review.

 Disability remains the “missing word in media coverage of police violence.” Far from anecdotal episodes, the connection between disability and policing harm is undeniable.  More than one half of Black Americans with disabilities will be arrested by the time they reach their late twenties. According to a 2016 report by the Ruderman Family Foundation, up to half of all people killed by police have a disability. If you have an undiagnosed mental illness, you are 16 times more likely to be killed in a police encounter. If you are a juvenile or young adult with a disability, you are 13% more likely to be arrested than those without. Other data indicate that approximately a quarter of those killed by police are in a mental health crisis or were known by police to have a mental illness, in spite of the Americans with Disabilities Act (ADA) requiring reasonable modifications to policing where a disability is recognized. This is not just tragic; it is systemic.

As reforms addressing police brutality against Black Americans are crafted and implemented, they must grow to reflect not only an acknowledgement of anti-Black violence, but how anti-Black violence intersects with anti-disability violence and over-policing. Ignoring disability justice in police reform will not address an oft used, yet misunderstood, justification for excessive force, especially as it affects Black Americans and people of color. Disability-informed reform and training are essential, and will help save countless lives, both within and outside our most vulnerable communities.

 

How We Got Here

To this day, disability in the history of Black Americans widely goes unspoken. Did you know that Harriet Tubman was epileptic and suffered from traumatic brain injuries? Or that Maya Angelou was selectively mute, and Fannie Lou Hamer and Johnnie Lacy were disabled from polio, and Harry Belafonte dropped out of school due to dyslexia? White historians and activists have systematically erased instances of disability in the Black community, and in doing so, use their ableism to reaffirm racism (and visa-versa). Today, even when disability in the Black community is recognized by law enforcement or those responding to violent treatment, it forges an all-too-familiar trap: on one hand, disability is used as justification or excuse for violent police actions (take, for example, the short-lived reliance on George Floyd’s heart disease as his “cause of death,” rather than asphyxiation); on another, disability becomes a vehicle for pity, as if to say that in spite of someone’s Blackness, they should have been “spared” because they were disabled, too (such as how Elijah McClain’s anemia and sensitivity, along with his philanthropic habits, became reasons why he should not have been killed rather than his personhood). Law enforcement failing to recognize disability is, in itself, another threat to the lives of many. Take, for example, Magdiel Sanchez, a deaf man shot for not following (verbal) orders given by police, or the tragic incident of Ruther and Lisa Hayes, where a quadripalegic woman with cerebral palsy’s husband was beaten while trying to protect her from police ordering her to stand up (an action which, as a quadripalegic, she could not physically take). To the extent that mental health crises are recognized, they also often become fodder for aggression rather than de-escalation as law enforcers take signs of mental illness for immediate danger to others.

Black female disability poses yet another nexus for abuse in policing: Black women are seen as having “superhuman strength” or tolerance of pain, leading medical professionals and law enforcement officers to discount and ignore manifestations of disability while interacting with disabled Black women. Paradoxically, Black women “are already seen as ‘mentally unstable’,” writes Andrea Ritchie. The dual perceptions taken together—reframing disability as instability and denying a lived experience of pain—again subverts the need for adequate care or accommodation, justifying inappropriate treatment.

Warped perspectives of Black Americans with disabilities have a troubling history. Dorothea Dix, one of the first recognized disability justice figures in the United States (actively lobbying for resources for disabled Americans in the mid-19th century), popularized the idea that enslaved Black Americans were incapable of having intellectual disabilities because such problems were possible only for “civilized and cultivated life.” Because they were not considered intellectually disabled, care from Congress was out of the question. One of the few “insanities” Black enslaved people were said to fall victim to was drapetomania, the madness that lead people to try and escape bondage and slavery. It was theorized that this illness could be cured by whipping “patients” back into reality. Rather than being considered sophisticated enough to engage with the full breadth of human experience, including the experiences associated with common mental illnesses, Black Americans were considered animalistic or monstrous. The problem persists. And persists. And persists. The history of this problem and its current manifestations should inform our understanding of Blackness and disability in the realm of policing and the public’s response.

Some of the only extensive community-based care disabled Black Americans would receive until well into the 20th century was from Black female community health organizers, who single-handedly took up the cause of Black health and care and developed the framework for future regional and national public health systems. The “private crusade” of Black women like Fannie Williams (medical professional and educator) and Mrs. J. C. Plummer (activist and vice president of the Chicago Anti-Lynching Committee) led to the establishment of schools, hospitals, poor houses, and access to care that, in turn, greatly influenced the progress and forms of social work developed in the Progressive Era.

This work (as well as the history of either ignoring or vilifying disability in the Black community) has gone largely unnoticed by predominantly-White disability organizers—even though the work of these women created the very framework we hope to expound upon, even as we discuss community policing reform. For example: what would it have meant for Adam Trammell, a schizophrenic Black man murdered by police after they tased him 18 times in the shower during a “wellness check” when a neighbor called the police on him acting “oddly?” With robust public health and community-based care, would the woman have even called the police? Would officers have been sent, or public health workers? Would his legal guardians have been notified? Would the knowledge of his mental illness have changed the kind of response Adam received? All too often, police officers tasked with being psychiatric first responders end up harming, rather than saving, those for whom help has been called, and “[t]hose charged with helping [people in crises] sometimes receive little or no significant training.”

 

Current Policy

While the Americans with Disabilities Act’s government website states explicitly that “[l]aw enforcement agencies are covered because they are programs of State or local governments,” meaning that law enforcement must comply with the requirements set forth in the ADA, the Supreme Court has dismissed the issue as improvidently granted in City and County of San Francisco v. Sheehan. There, Sheehan was shot by police during a psychotic episode while they were supposed to be taking her to the hospital for treatment. Sheehan survived the incident and sued, claiming that a) the police violated her Fourth Amendment rights, and b) that the ADA required reasonable modifications to their policing strategy that would have prevented her from being wounded. The City of San Francisco initially argued that law enforcement should operate as an exception to the ADA; Sheehan disagreed. Because the issue wasn’t properly raised to the Supreme Court, the Court dismissed it. Authoritative, national judicial interpretation for the extent to which police are bound to the ADA is yet unclear. That being said, revised guidance from the ADA and renewed pushes from the justice department all point toward necessary accommodations in law enforcement.

As it now stands, police are required by law to make “reasonable modifications” to their policing methods when engaging with a person they suspect to be disabled. This can mean, when confronted with a disabled person, that police create a calming environment, change methods of communication or terminology, and allow sufficient time for a person to understand and respond.

What counts as “reasonable modifications,” however, is a necessarily vague standard. Should the reasonable officer have known, in the moment, not only that a victim was disabled, but also that they required specific accommodations? Especially with limited training, it seems a low bar to cross. However, because of the unique threat that law enforcement poses in particular to Black and disabled Americans, the guarantee of accommodations is all the more important. With this in mind, future policing reforms must take disability into account.

 

Necessary Reforms

A common cry in police reform comes for better and more extensive training. In regards to training how to respond to interactions with disabled people, such training must be informed by the real and diverse experiences had by not only disabled Americans writ large, but by the lived experiences of disabled BIPOC, whose identities are singular in the realm of discrimination and brutality. Disability activists often proclaim “Nothing about us, without us;” police reform is not an exception. Programs already exist by disability rights organizations and their BIPOC representatives providing toolkits for police departments on police brutality. These resources should be integrated into the development of any federal guidelines for police training or reform, especially regarding police responses to mental health crises.

Training programs, though necessary, are not enough. Some have argued that courts should analyze reasonableness of modifications based upon the level of disability training officers receive. Legislative action that adjusts the reasonableness standard, in addition to more training on de-escalation and disability accommodation, would mean that officers will be held accountable accordingly for not making modifications that, given said training, they should know to be reasonable. This assurance is essential: increased disability training without accountability will likely leave disabled Americans, particularly those who are BIPOC, with similarly limited recourse for wrongdoing or confidence in law enforcement, rendering much of the progress intended by better training to be moot.

With greater training should come a higher standard for reasonableness when assessing ADA claims for mistreatment by law enforcement. This would benefit not only disabled Americans, but all citizens engaging with police officers. If officers are better trained in accommodating measures and are held accountable to use them, they will likely act with similar caution in situations in which they cannot be sure of the ability of those with whom they are engaging. Put simply: training and accountability that make officers more caring and careful will help all people engaging with law enforcement, not just the disabled. This is a common theme for accommodative practices—subtitles help people who are hard-of-hearing as well as make films more accessible to the general public; curb cuts and ramps not only help those with limited mobility, but also make walking safer for the general public; etc.—and will hopefully lead to an increased awareness of the abuse otherwise faced by those who are disabled. Regularly checking someone’s vital signs, making sure your communications are being understood, and allowing people time to process commands are not just reasonable modifications for dealing with disabled people; they are reasonable practices, period.

In addition to reforms inside policing, other programs that provide resources to vulnerable and disabled communities are necessary to ensure adequate care. Reinvesting public funds  “into housing, education, mental health, homelessness, domestic violence and similar services and programs” is essential for ensuring safety and better treatment of disabled Black Americans. Better alternatives to policing for mental health matters (meaning, for example, someone other than the police handles a mental crisis call) would likely greatly decrease instances of police brutality against disabled Americans.

We are at a pivotal moment as reform efforts in Congress have reached a stalemate and protests continue nationwide. Lawmakers considering condemnations of “all acts of brutality, racial profiling, and the use of excessive force by law enforcement” or calling for an end to “militarized force” must consider the intersection of race and disability in policing practices. Doing so will not only help address the unique and historical injustices faced by the disabled Black community, but will also, in turn, create a safer environment for us all.

 

About the Author: Evelyn is the Editor-in-Chief of Cornell’s Journal of Law and Public Policy. A member of the Women’s Law Coalition, Cornell’s Law and Political Economy group, and the Disability Justice subcommittee, her research covers education, philosophy, and critical disability studies. She hopes to one day return to the commonwealth of Kentucky to pursue a life and career after law school. Evelyn’s Note, Success and Mediocrity in Voucher States for Special Education, will be published in Volume 30 of JLPP.

 

Suggested Citation: Evelyn Hudson, “Nothing About Us, Without Us” Means Police Reform, Too, Cornell J.L. & Pub. Pol’y, The Issue Spotter (July 24, 2020), http://jlpp.org/blogzine/nothing-about-us-without-us-means-police-reform-too/.