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University of Colorado Law Review Police and People With Autism 2008

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WHAT HAPPENED TO "PAUL'S LAW"?:
INSIGHTS ON ADVOCATING
ADVOCATING FOR BETTER
TRAINING
TRAINING AND
AND BETTER OUTCOMES
OUTCOMES IN
ENCOUNTERS
BETWEEN
ENCOUNTERS BETWEEN LAW
LAW
ENFORCEMENT AND
PERSONS
AND PERSONS WITH
AUTISM
SPECTRUM DISORDERS
DISORDERS
AUTISM SPECTRUM
OSBORN*
ELIZABETH HERVEY
HERVEY OSBORN"

"Paul
Childs-a 15-year-old
cognitive disabilities,
disabilities,a
"Paul Childs-a
15-year-old boy with cognitive
seizure disorder,
and aa knife in
in his hand-was
by
hand-was killed by
seizure
disorder, and
Denver
in the doorway
this month
earlier this
Denver police in
doorway of his home earlier
after the family
help. His
His mother said
she
after
family called
called 911 for
for help.
said she
1
better training
trainingwill lead
better outcomes."
outcomes. "1
hopes better
lead to better

INTRODUCTION
INTRODUCTION

Following Paul Childs's death, family and community
community
members promoted
promoted "Paul's Law," a bill that would have required all Colorado law enforcement
enforcement officers
officers to be trained in
in
techniques
appropriate response to mentally
techniques for appropriate
mentally ill or disabled
suspects. Although the bill was not presented
presented to the General
General
Assembly, the events
events that triggered
triggered the proposal spotlight the
need for better law enforcement
enforcement training regarding developmental disabilities. The history and disposition of "Paul's Law"
provide
advocating for mandatory
provide instructive insights to those advocating
Elizabeth
candidate for Juris Doctorate from the UniElizabeth Hervey
Hervey Osborn
Osborn is a candidate
versity of Colorado Law School, Class of 2008, and received
BS-Sociology from
received a BS-Sociology
Brigham Young University in 1987. I thank the Autism Legislative
Legislative Project,
Emily Calhoun, Alan Canner, Kielly Dunn, Mark Evans, Daniel Everson, Sarah
Sarah
Matthew Lasek, Karla
Holloway, Matthew
Karla Scornavacco,
Scornavacco, Lee Ann Setzer, the staff of the
Wise Law
Law Library, and the Editors and Members
Members of the University of Colorado
Law
Law Review for their insight, feedback, and support. Nevertheless, any errors in
this article
article are my own. I express
express my heartfelt
heartfelt gratitude to Stephen, Nathaniel,
Nathaniel,
Benjamin, Timothy, and Laura Osborn
Osborn for their love, patience, and encouragement. This article
article is dedicated
dedicated to the memory
memory of my nephew, Ford Thomas
Hervey.
I. Kevin Simpson
Sought to Mitigate
Cop/Disabled
I.
Simpson & John Ingold, Training
Training Sought
Mitigate Cop/Disabled
Standoffs, DENV. POST, July 29,2003,
29, 2003, at Al.
AI.
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UNIVERSITY OF COLORADO
UNIVERSIYY
COLORADO LAW REVIEW

[Vol. 79
79

regarding autism spectrum disorder
law enforcement training
training regarding
disorder
developmental disability involving communication
communication
("ASD"), a developmental
and social-processing
social-processing difficulties.
Echoing Helen
Comment explores
Helen Childs's plea, this Comment
explores Colorado's experience
experience with Paul's Law, arguing that "better train"better outcomes" in encounters
encounters being" is required to ensure ''better
tween police and people with ASD and identifying
identifying means for
for
2
background for underachieving this goal.
Part I provides
provides background
standing why such training is needed, first describing the
characteristics of ASD that require special law enforcement
enforcement recharacteristics
sponse and then looking at the rights of persons with ASD under the Federal Americans with Disabilities Act. Part II focuses on the problem of "exigent circumstances,"
circumstances," where
inadequately
enforcement personnel
in
inadequately trained law enforcement
personnel respond
respond in
ways that needlessly
needlessly make a bad situation worse. Finally, Part
III considers
considers both legislative
legislative and community-based
community-based approaches
approaches
for achieving
achieving ''better
"better training" and ''better
'better outcomes."
I. BACKGROUND
I.

Communication
Communication and social interaction
interaction disabilities, such as
ASD, present a particular challenge in the context
context of police encounters, where
where misunderstood,
misunderstood, socially atypical behavior may
result in a dangerous
dangerous situation
situation for both the officer and the individual. Such needless danger
danger can be avoided, however, if law
enforcement officers
enforcement
officers are trained to recognize and appropriately
background
respond to signs of disability. This Part presents
presents background
information for understanding
this
need
for
better
training.
understanding
First, a recounting of the events
events leading up to the death of Paul
Childs illustrates
illustrates the problem, followed by an outline
outline of the
relevant
characteristics of autism and related
relevant characteristics
related disabilities. Discussion then turns to an overview of current interpretation
interpretation of
of
the Americans
encounters
Americans with Disabilities
Disabilities Act as applied
applied to encounters
between
between disabled persons
persons and law enforcement.
enforcement.

2.
2. Helen Childs, Paul's mother, hoped the effect
effect of "Paul's Law" would be
'I want
widespread: "1
want this to be like the Amber Alert
Alert.....
. .. I want this to be naTeen's Death
"Paul'sLaw" Plan,
Plan, ROCKY
ROcKY MTN.
tional." Hector Gutierrez, Teen's
Death Spurs
Spurs "Paul's
experience of Colorado
NEWS, Aug. 13, 2003, at 20A. This Comment
Comment uses the experience
Colorado as a
paradigm for examining
examining issues and concerns
concerns likely to be encountered
advocates
paradigm
encountered by advocates
of police
police training statutes
statutes in many
many states.
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LAW'
WHAT HAPPENED TO "PAUL'S

335

A. Encounter
Encounter at
at the
the Doorway
Doorway
Fifteen-year-old Paul Childs was a familiar face in his
Fifteen-year-old
northeast Denver neighborhood. He was a "gentle soul,"3
soul,"'3 a
"nice boy" who had a habit of wandering off on his own. 44
Paul
"nice boy" who had a habit of wandering off on
admired and respected the police officers who brought him
adventures. 55
home after his frequent adventures.
In the early summer of 2003, Paul was hospitalized following a seizure. 66 Upon returning home, he seemed to have lost
lost
bedroom. 88
"trashed" his bedroom.
the ability to speak. 77 Upset, the teen "trashed"
The next afternoon, on July 5, Paul wanted to go outside, but
his concerned mother would not allow him to leave the house. 9
In his frustration, Paul picked up a kitchen knife and began
it.10
walking around the house with it.
10 When he did not respond
instruction to put down the knife, Paul's sixto his mother's instruction
teen-year-old
teen-year-old sister Ashley called 911, thinking that perhaps
perhaps
11 When
his friends, the police officers, could help calm him. II
When
Ashley tried to explain her brother's condition to the dispatcher, the dispatcher
dispatcher interrupted, "OK, that's fine. I don't
don't
story." 12
need the story."12

3. Jim
Spencer, Teen's
Teen's Death
Police Were Not Prepared,
Prepared,DENV.
3.
Jim Spencer,
Death Shows Police
DENY. POST,
8, 2003, at B1 [hereinafter
[hereinafter Spencer, Not Prepared].
Prepared].
July 8,2003,
Outrage in
in Denver
Denver After Police
4. Racquel
Racquel Rutledge, Outrage
Police Shoot a Disabled
Disabled Teen,
CHRISTIAN
SCI. MONITOR
CHRISTIAN SCI.
MONITOR (Boston), July
July 14,
14, 2003, at 1, available
available at
at
http://www.csmonitor.com/2003/0714/pOlsO2-ussc.html.
http://www.csmonitor.com/2003/0714/p01s02-ussc.html.
5. Id.
in the previ5.
Id. The
The police
police had
had been
been called to the home forty-seven times in
ous four years. Id.
Id.
Prepared,supra
supra note 3.
6. Spencer,
Spencer, Not Prepared,
7. Id.
Id.
Id.
8. Id.
9. Sean
Tape Released
Released in
Probe
Sean Kelly, 911 Tape
in Shooting-Police
Shooting-Police Chief Vows Full
Full Probe
into Disabled
[hereinafter Kelly,
DENY. POST, July 8, 2003, at Al
Al [hereinafter
into
Disabled Teen's Death,
Death, DENV.
911 Tape].
Tape].
10. Id.
Id. "[F]amily
"[F]amily members
10.
members said the knife was 'the dullest in
in the house'
house' and
'couldn't cut
cut aa tomato."'
'couldn't
tomato.'" Id.
Id. Ashley
Ashley Childs
Childs described
described the knife to the 911 dispatcher
It's like
kitchen
patcher as
as "[s]ix
"[s]ix inches.
inches. It's
like aa long knife, like
like a cutting
cutting knife, like
like a kitchen
knife."
knife." Transcript:
Transcript: Excerpts from the 911 Emergency
Emergency Phone
Phone Call,
Call, DENV.
DENY. POST,
July
2003, at
[hereinafter Transcript].
Transcript]. According
July 8,
8,2003,
at A5
A5 [hereinafter
According to another report
report the knife
was
no edge."
edge." Rutledge,
was "broken,
''broken, with
with no
no tip,
tip, with
with no
Rutledge, supra
supra note
note 4, at 3.
3. However,
other
other reports
reports claim
claim itit was
was aa "13-inch
"13-inch kitchen
kitchen knife," Wayne Harrison,
Harrison, Settlement
Reached
THE DENVER
DENYER CHANNEL,
CHANNEL, May
May 25,
Reached Between
Between Denver,
Denver, Paul
Paul Childs'
Childs' Family,
Family, THE
2006,
print/3344649/detail.html, or
"8 Yo22006, http://www.thedenverchannel.com/
http://www.thedenverchannel.com/print/3344649/detail.html.
or an "8
inch
Cop Cleared
Cleared in
at
inch blade,"
blade," Sean
Sean Kelly,
Kelly, Cop
in Shooting,
Shooting, DENV.
DENY. POST, Oct. 17, 2003,
2003, at
Al
Al [hereinafter
[hereinafter Kelly, Cop Cleared].
Cleared].
11.
II. Spencer, Not Prepared,
Prepared, supra
supra note 3.
3.
12.
Tape, supra
12. Kelly, 911 Tape,
supra note
note 9.

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Within minutes, Denver
Denver police arrived, including Officer
Officer
James Turney, who had returned
returned Paul home following an inci13
dent just six weeks before. 13
At least two officers present were
equipped with Tasers, devices promoted as a "less lethal" alternative for subduing resistant individuals. 14 Officer Turney
ran to the front door and ordered, "Everyone! Get out of the
15
house! Go out the back door!"'
house!
door!"15
Another officer rushed up be16
hind him. 16
Paul's mother unlocked
unlocked the front security
security door, and then
she swept her daughter, a visiting friend, and three children
children
out the back
back of the home. 17 Officer Turney
Turney opened
opened the security
inner
door and ordered Paul, who was standing behind
behind the inner
1 8 Someone
front door, to "come out with his hands in the air."
air."18
Taser.1199 Paul stepped
from
shouted for a Taser.
stepped out in a "wide arc" from
behind the door in "short choppy steps," holding the knife close
20
to his chest. 2o
At first sight, Officer
Officer Turney recalled that he
had seen this youngster before, but his attention quickly
on
shifted to the knife in the boy's hands. 2211 He focused
focused only on
"arresting
suspect and
and stopping
the threat."22
threat. ' 22
"arresting the
the suspect
stopping the

Slaying of Teen, DENV. POST, Oct. 22, 2004, at
13. Sean
Sean Kelly, Cop Recounts Slaying
at
Bi
Cop Recounts Slaying].
Slaying]. At that time, Paul's mother, Helen
B1 [hereinafter
[hereinafter Kelly, Cop
Childs, had explained to Officer
Officer Turney that her son had "mental problems."
problems." Jim
Spencer, Turney
Thrney Left Time,
Time, Space Only to Kill,
Kill, DENV. POST, Oct. 22, 2004, at B1
Turney Left Time].
[hereinafter Spencer, Turney
14. Kelly, 911 Tape,
Tape, supra
supra note 9. Kelly also notes that "[o]ne
"[o]ne police
police official
also Suspension
said officers
officers had no clear shot at Paul with the Taser." Id.
[d. See also
Suspension
Overturned in Paul
Paul Childs
Childs Shooting,
Shooting, THE DENVER
DENVER CHANNEL, Jan. 13, 2005,
Overturned
http://www.thedenverchannel.com/print/4081046/detail.html
("Several officers
http://www.thedenverchannel.comlprintl4081046/detail.html
had their
their Taser
Taser guns
guns drawn during the confrontation
confrontation with Childs, but they never
never
had
Denver
fired the weapons.").
weapons."). For a general description of the safety policy
policy of the Denver
Police Department,
Department, see Letter from Gerald
Gerald R. Whitman, Denver
Denver Chief of Police, to
U.S. Department of Justice
Shanetta Brown Cutlar, Special Litigation Section, U.s.
(July 15,
15, 2004) (on file with author). For an interesting current discussion of TaON
ser use on communication-disabled
communication-disabled individuals, see JOINT STUDY COMMITTEE
COMMI'ITEE ON
AUTISM
AUTISM SPECTRUM
SPECTRUM DISORDER, LAW
LAw ENFORCEMENT,
ENFORCEMENT, PUBLIC SAFETY,
SAFETY, AND FIRST
RESPONDERS,
RESPONDERS, REPORT TO THE 2007 GENERAL ASSEMBLY OF NORTH
NORTH CAROLINA,
Dec.
31, 2006,
"LegislaDec. 31,
2006, http://www.ncleg.net/homePage.pl
http://www.ncleg.netlhomePage.pl (follow hyperlinks
hyperlinks for "Legislative Publications," then "Study Reports to the 2007 NCGA," then "Autism Report")
[hereinafter JOINT
COMMITTEE].
[hereinafter
JOINT STUDY COMMI'ITEE].
15. Transcript,
Transcript,supra
IS.
supra note 10.
16. Kelly, Cop Recounts Slaying,
Slaying, supra
supra note 13.
16.
17. Id.
[d.
18. Id.
[d.
19.
supra note 13.
19. Spencer, Turney Left Time, supra
20. Kelly, Cop
Cop Recounts Slaying,
supra note 13.
Slaying, supra
21. Id.
[d.
22. Id.
[d.
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WHAT HAPPENED
HAPPENED TO "PAUL'S LAW'
LAW'

337

As the boy shuffled slowly toward the open door, the offirepeatedly yelled at him to drop the knife, but he did
cers repeatedly
23 With Paul only three or four feet away, Officer
not.23
not.
Officer Turney
concerned that Paul could
was concerned
could reach
reach out and stab him, but he
"waited until
the last
possible moment."24
moment. ' 24 At that point, Offi"waited
until the
last possible
mass." 25 Within thirtycer Turney fired four shots at "center mass."25
two seconds of police arrival at the home, Paul Childs was
dead.26
dead. 26
B. The Challenge
Challenge of Autism Spectrum Disorder
Disorder
Although the record is not clear about the specific
specific nature
of Paul Childs's developmental
developmental disability, his tragic death offers
offers
a frightening example of the worst that can happen in an encounter
inadequately prepared
enforcement ofofcounter between
between an inadequately
prepared law enforcement
ficer and a person with a social interaction and communication
communication
disability, such as ASD. Families and friends of persons diagnosed with ASD are becoming increasingly
concerned about the
increasingly concerned
2
7
risk of such "dangerous encounters."27
encounters."
This concern
concern has led
some to advocate
advocate for a change
change in how police and other public
28 The following sections give an
safety
safety personnel
personnel are trained. 28
overview
of
how
ASD
affects
communication
overview
communication and social processing and why this disability poses particular
encounters
particular peril in encounters
with police.

23.

24.
25.
26.

27.

Id.
Id.
Id.
Id.
Id.
Id.
Id.
Id.
generally BILL DAVIS
DANGEROUS
See generally
DAVIS &
& WENDY GOLDBAND SCHUNICK, DANGEROUS

ENCOUNTERS-AVOIDING PERILOUS
ENCOUNTERS-AVOIDING
PERILOUS SITUATIONS
SITUATIONS WITH AUTISM
AUTISM (2002). For a specific example
Testimony of John Thomas, Deputy
example of this growing concern, see Testimony
Deputy Director
Massachusetts, to the Massachusetts
Massachusetts Joint Committee on Pubrector of the Arc of Massachusetts,
lic Safety and Homeland
http://www.arcmass.org (follow
Homeland Security, Apr. 25, 2007, http://www.arcmass.org
(follow
hyperlinks
'Testimony," then "Public
hyperlinks for "State House/Policy," then ''Testimony,''
"Public Safety 2007,
S1378") (summarizing the need for law enforcement
enforcement training).
LAW
28. See generally
generally DENNIS
DENNIS DEBBAUDT, AUTISM, ADVOCATES,
ADVOCATES, AND LAw
ENFORCEMENT PROFESSIONALS-RECOGNIZING
PROFESSIONALS-RECOGNIZING AND REDUCING
SITUATIONS
ENFORCEMENT
REDUCING RISK SITUATIONS
FOR PEOPLE WITH AUTISM
AUTISM SPECTRUM DISORDERS (2002).

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UNIVERSITY OF COLORADO lAW
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1.
1.

[Vol. 79
79

'Mindblindness"-Communication and
and Social
"Mindblindness"-Communication
Processing Disability
29

group
describing aa group29
term describing
"Autism spectrum disorder" is aa term
"Autism
developmental disabilities which impair the inof neurological developmental
dividual's ability "to communicate and to interact in a socially
manner." 30 There is no cure for ASD
appropriate manner."30
ASD at this
31
31
time.
It is a cognitive impairment, not a mental illness. 32 In
ASD, the brain's processing functions for sensory input operate
ASD,
in a way that is different from the average person's, leading one
"mindblindness. ' '33
as "mindblindness."33
researcher to describe
researcher
describe the condition as
Much as an ear disorder might affect the brain's ability to hear
or to maintain body balance, or an optic nerve disorder might
or
might
29. Autism Spectrum Disorders are within the category of Pervasive
Pervasive Developmental Disorders, and describe persons
persons· having
having characteristic
characteristic problems with
"communication
social interactions,
interactions, and
and restricted,
restricted, repetitive, and stereo"communication skills,
skills, social
typed patterns of behavior."
behavior."
MARGARET STROCK,
STROCK, NAT'L INST. OF MENTAL
HEALTH, AUTISM
AUTISM SPECTRUM DISORDERS (PERVASIVE
(PERVASIVE DEVELOPMENTAL
DISORDERS) 1 (2004). Diagnoses within the Autism Spectrum include Autism,
DISORDERS)
Rett's Disorder, Childhood Disintegrative
Asperger's Disorder, and perDisintegrative Disorder, Asperger's
vasive developmental
(PDD-NOS). Id. at 2.
developmental disorders not otherwise specified
specified (pDD-NOS).
30. The Autism Society of Maine, Programs-Autism
Enforcement30.
Programs-Autism and Law EnforcementFacts for Prosecutors, http://asmonline.org/programs_law_prosecutors.asp
http://asmonline.org/programs law prosecutors.asp (last
visited
also NAT'L
SOc'Y, AUTISM:
visited Sept. 20, 2007); see also
NAT'L AUTISTIC SOC'y,
AUTISM: A GUIDE FOR
CRIMINAL
JUSTICE
PROFESSIONALS
22
(London 2005),
available
at
PROFESSIONALS
(London
at
http://www.nas.org.uk/content/l/c4/80/67/cjp-guide.pdf.
http://www.nas.org.uklcontent!l!c4/80/67/cjp~ide.pdf.
31. Autism
supra note
31.
Autism Society of Maine, supra
note 30. There is no "cure" in the sense
that no
no treatment exists to eliminate the communication, processing, and social
social
difficulties
intervention (especially early) can imdifficulties associated with ASD; although intervention
prove
prove social skills and quality
quality of life, and reduce the costs associated with lifetime
lifetime
care, it does not "change" or "repair"
"repair" the processing deficits
deficits resulting
resulting from autism.
See
Autism Society
Society of America, What
See Autism
What is
is Autism:
Autism: Treatment,
Treatment, http://www.autismhttp://www.autismsociety.org/site/PageServer?pagename=about-treatmenthome (last visited Sept.
society.org/sitelPageServer?pagename=about_treatment_home
20, 2007). Some advocacy groups consider the word "cure" problematic.
See, e.g.,
20,
problematic. See,
Autism
http://www.autismspeaks.org/whatisit/
Autism Speaks:
Speaks: The Autism "Cure," http://www.autismspeaks.org/whatisit/
cure.intro.php
cure_intro.php (last visited Oct. 4, 2007) (copy on file with author).
32.
Autism Society of Maine, supra
32. Autism
supra note 30. This is a subtle distinction, and
the
the definition
definition of mental illness is itself difficult because
because practitioners
practitioners within
within the
field
on what
especially as
field disagree
disagree on
what conditions
conditions are included
included within the term, especially
as neuroscience
of the
the fundamental
roscience advances
advances our
our understanding
understanding of
fundamental organization
organization of the
brain.
brain. The
The distinction
distinction is, however, important enough that for purposes of insurance
for example,
ance coverage,
coverage, for
example, many states statutorily
statutorily define autism and related
related disorders
10-16-104.5
orders as
as distinct
distinct from mental
mental illness. See, e.g., COLO.
COLO. REV. STAT.
STAT. § 10-16-104.5
(2006)
(2006) (in context
context of defining autism as "other than
than mental illness" for purposes
purposes of
of
insurance
insurance coverage).
33. See
BARON-COHEN, MINDBLINDNESS:
33.
See generally
generally SIMON
SIMON BARON-COHEN,
MINDBLINDNESS: AN ESSAY
ESSAY ON
ON
AUTISM
AND THEORY
"Mindblindness" refers
AUTISM AND
THEORY OF
OF MIND (1997).
(1997). ''Mindblindness''
refers to an inability of
of
the brain to convert
one's
convert sensory
sensory information
information into an
an accurate
accurate understanding
understanding of one's
surroundings,
surroundings, particularly
particularly manifested
manifested in an inability
inability to assess what other
other people
are thinking
thinking and feeling.
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affect the brain's
brain's ability to interpret visual stimuli, ASD
ASD affects
of
the brain's ability to understand and process many kinds of
understanding language
language and social
sensory information
information vital to understanding
social
34
interaction, including
including sight, sound, and touch. 34
In fact, the
"mindblindness" of
of ASD
is more
more common
"mindblindness"
ASD is
common in
in children than hear35
ing loss or vision impairment. 35
Like individual
individual rays of sunlight
sunlight bent by falling rain to form
form
spectrum disorders impact
rainbow's spectrum, autism spectrum
impact to a
a rainbow's
different degree each affected
affected individual's ability to process and
36 The intensity with
express sensory and social information. 36
intensity
characteristics of the disorder appear varies from person
which characteristics
person
to person. An affected person may present some degree
degree of
of
atypical response to stimuli such as cold or pain because of the
37
receive. 37
senses receive.
brain's
brain's inability to process the information the
the senses
Some individuals
individuals may react strongly to sudden
sudden loud noises, or a
38 Many
light touch or tap may provoke a violent reaction. 38
Many are
not able to maintain eye contact in conversation, as they find
this painful
painful and intimidating. 3399 Some ASD
ASD individuals
individuals engage
such
as rocking, finger
in repetitive
behaviors
("stimming"),
repetitive behaviors
finger
flicking, reciting a familiar series
series of words, or returning
returning to a
familiar or interesting
interesting place or thing, as a way to calm and cope
cope
40
information. 40
torrent of unprocessed
unprocessed sensory
sensory information.
with the torrent

supra note 30.
34. Autism
Autism Society
Society of Maine,
Maine, supra
af35. STROCK, supra
35.
supra note 29, at 2007
2007 Addendum (noting that hearing loss afbut
1.1 per
fects 1.1
per 1,000
1,000 children; vision impairment
impairment affects 0.9 per 1,000 children; but
ASD affects
affects an estimated
estimated 3.4 to 6 per 1,000
1,000 children). For a discussion of the
prevalence
ASD within
prevalence of ASD
within the U.S. population, including
including distribution by race
race and
and
in a US MetPrevalenceof
gender,
Yeargin-Allsopp et al., Prevalence
gender, see Marshalyn Yeargin-Allsopp
of Autism in
ropolitan
J. AM. MED. ASS'N, Jan. 1, 2003, at 49, 49. The estimated prevaropolitan Area,
Area, J.
lence of ASD in eight-year-old
eight-year-old children
children in
in Colorado is 5.9 per 1000
1000 children, or 1
in 100 boys, and 1 in 588 girls). MELODY
in
in 166 (the gender
gender distribution
distribution is 1 in
SPECTRUM DISORDERS
PREVALENCE OF THE AUTISM SPECTRUM
STEVENS
STEVENS ET AL.,
AL., PREVALENCE
DISORDERS (ASDs) IN
MULTIPLE
MULTIPLE AREAS OF THE UNITED STATES, 2000 AND 2002,
2002, COMMUNITY
COMMUNITY REPORT
& DEVELOPMENTAL
FROM
FROM THE AUTISM &
DEVELOPMENTAL DISABILITIES
DISABILITIES MONITORING
MONITORING (ADDM)
NETWORK
NETWORK 20 (Centers for Disease Control and Prevention
Prevention 2000) at 20.
36. See STROCK, supra
supra note 29, at 1.
children are oblivious to extreme cold or pain. An
Id. at 10 ("Some
37. Id.
("Some ASD children
ASD child
child may fall and break an arm, yet never cry. Another may bash his head
against
against a wall and not wince, but a light touch
touch may make
make the child scream with
alarm.").
for
38. Id.;
Id.; see also
Recognizing/Responding to Autism-A Guide for
also Matt Brown, RecognizinglResponding
presentation for
for
12, 2006) (PowerPoint training presentation
First Responders,
Responders, slide 14 (July 12,
law
enforcement and safety
safety personnel)
law enforcement
personnel) (on file with the author).
39. Autism Society of Maine, supra
supra note 30.
40. Id.
Id.

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As many as 50%
50% of persons
persons with ASD are unable to comcomsign-based method
municate
municate verbally and may use a picture- or sign-based
method
extensive vocabularof communication,
communication, while others may have extensive
ies and knowledge, yet function at a much lower social and demost
velopmental level than peers of the same age.4411 Though most
velopmental
standard tests of intellecASD perform poorly on standard
persons with ASD
tual function, many demonstrate
demonstrate normal or above-normal
above-normal intelHowever, a person with ASD
ASD will take longer to
ligence.4422 However,
process and understand instructions
instructions or to grasp a social situation than a non-affected
non-affected person
person would. 43 An individual
individual with
ASD has "difficulty seeing things from another person's perspective," and therefore is "unable to predict or understand
other people's
people's actions."44
instructions
individual may take instructions
actions."4 4 An individual
very literally, or repeat
repeat back
back the words of a question. 4455 The
"mindblindness" of
of ASD
the individual
"mindblindness"
ASD leaves
leaves the
individual unaware
unaware of many
of the social rules that most people take for granted, such as
not staring
staring at windows, not touching other people's
people's things,
space.4466
knowing when not to laugh, or respecting
respecting personal
personal space.

41. Id.
41.
Id. The persons with ASD whom police are most likely to encounter
encounter are
those:
or
high-functioning autism, or
from the more able end of the spectrum with high-functioning
ingreater degree of inAsperger syndrome, [sic] as they generally
generally have a greater
dependence than those who have autism accompanied
dependence
accompanied by severe
severe learning
learning
command of spoken
difficulties....
difficulties.
. .. However, the command
spoken language in
in a person
person
is not
with high-functioning
high-functioning autism or Asperger
Asperger syndrome
syndrome is
not necessarily
necessarily
understanding or social
indicative of their level of understanding
social awareness. Their apindependence may mask their social disability ....
parent independence
....
Id.
Id. at 2.
Yeargin-Allsopp et al., supra
supra note 35, at 52. In
42. Yeargin-Allsopp
In a study of Atlanta children
children
Id.
diagnosed
diagnosed with ASD, 32% had an IQ score
score within normal
normal range or higher. Id.
43. Autism Society of Maine, supra
supra note 30.
supra note 29, at 7.
44. STROCK, supra
45. Autism Society of Maine, supra
supra note
note 30; see also
also DEBBAUDT, supra
supra note
language is usually concrete
concrete and
28, at 35 ("Their
(''Their use of language
and literal. They may underwhether
stand
stand a request to waive their right to remain
remain silent as a question about whether
or not they can wave
wave their right hand or arm, th[e]n answer yes and waive
waive their
their
rights.").
supra note
46. Autism
Autism Society of Maine, supra
note 30; see also
also DEBBAUDT, supra
supra note
28, at 17-20. The National Autistic Society (UK) gives an example: "A five-yearapproach people
old girl, obsessed
obsessed with the leather
leather tags on a pair of jeans, would
would approach
people
wearing jeans and flick the tags with her finger. The obsession continued
continued into her
her
teens: it
it led her into more than one
one very vulnerable
vulnerable situation."
situation." NAT'L
NAT'L AUTISTIC
SoC'Y, supra
SOC'y,
supra note 30, at 10.
10.
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341

Increased Likelihood
Encounter
Increased
Likelihood of Encounter

Many of the behaviors
behaviors characteristic
characteristic of ASD are easily
easily misinterpreted by persons
interpreted
persons unfamiliar
unfamiliar with the disorder. Following
Following
instructions literally
literally or parroting
parroting back someone's
someone's statements
4 7 Failure to make
may seem rude or disrespectful. 47
eye contact
contact
48 Repetitive
or
may be read as evasive or deceptive. 48
Repetitive motions or
words, self-injury, or a breach of social rules may be labeled as
suspicious
suspicious behavior. 4499 The problem
problem is compounded
compounded by commonly held dehumanizing
stereotypes about ASD: that people
dehumanizing stereotypes
with ASD have no emotions, or do not want friends, or "are unruly and choose not to behave."50
behave. ' 50 These stereotypes
stereotypes and easily
misunderstood
contribute to the likelihood
misunderstood behaviors
behaviors contribute
likelihood of an en5
1
51
counter with police.
People with ASD and other developmendevelopmental disabilities are "seven times more likely
contact
likely to come into contact
with law enforcement."52
enforcement." 52 In such an encounter, characteristics
characteristics
47. Autism Society
Society of Maine, supra
supra note 30.
Id.; see also
also Dennis Debbaudt &
& Matt Brown, The Role of the Autism Re48. Id.;
sponse Team in
in Interrogation,
Interrogation, Prosecution,
and Defense, AUTISM SPECTRUM Q.,
Q.,
Prosecution, and
Summer 2006, at 8, 8.
supra note 30; see also DAVIS & SCHUNICK, susuSociety of Maine, supra
49. Autism Society
pra
pra note 27, at 39-46 (describing
(describing common reasons law
law enforcement
enforcement might be
be
called
called in
in response
response to characteristic
characteristic autistic
autistic behaviors, such as self-injurious
self-injurious behavior, wandering
wandering alone, running
water
running away, peering
peering into windows, turning on water
faucets, suspected
suspected drug abuse, and suspected child abuse);
abuse); DEBBAUDT,
DEBBAUDT, supra
supra note
28, at 19-21;.
50.
supra note
11.
50. Brown, supra
note 38, at slide 11.
51.
& Dave Cropp, Police
Officers and
and Disability:
51. Scott J.
J. Modell &
Police Officers
Disability: Perceptions
Perceptions
and Attitudes,
Attitudes, 45 INTELL. & DEVELOPMENTAL
DEVELOPMENTAL DISABILITIES
and
DISABILITIES 60, 62-63 (2007).
"[C]rime is, by definition, out of order." If
If crime is "out of order," then
"[C]rime
then
most good cops tend to look for things in
in society
....
society that are out of order ....
When they see people acting
in a way that is different and have
acting in
have not been
been
trained to recognize the behavior
behavior as a disability, they may see the behavior as out of order and may see crime.
Id. (citations omitted).
Id.
52.
supra note 30; see also
52. Autism Society of Maine, supra
also Dennis Debbaudt, AvoidUnfortunate Situations,
http://www.inlv.demon.nlJavunsiJavoiding.html (last
ing Unfortunate
Situations, http://www.inlv.demon.nl/avunsi/avoiding.html
visited Sept. 24, 2007). Modell and Cropp point out that changes in societal attitude toward the disabled predict
predict an ongoing
ongoing likelihood of police encounter:
[P]ersons with physical
[PJersons
physical and developmental
developmental disabilities are no longer
longer
swept under the carpet
carpet and ignored by mainstream
mainstream society. They live,
work, and play
as integral, visible, and
playas
and interactive members of their
their
neighborhood
neighborhood community. As increased numbers of individuals
individuals with
interactions
disabilities are living in mainstream
mainstream society, the number
number of interactions
with law enforcement
enforcement for these individuals
individuals is becoming statistically
greater.
greater.
51, at 61. These considerations
Modell & Cropp, supra note 51,
considerations illustrate the importance of autism awareness
awareness at all levels of the public
emergency services,
public safety, emergency
services,

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associated with the disability
disability are
are at risk of being
being misinterassociated
preted
preted as indicative
indicative of
of criminal
criminal behavior
behavior or
or intent.
intent. 53
53
ASD
diagnosed
with
Moreover,
Moreover, the
the number
number of
of children
children diagnosed
ASD has
has
been steadily
steadily increasing.
increasing. In
In the early
early 1990s
1990s approximately
approximately one
one
been
54 but in
in ten
ten thousand
thousand children
children was
was diagnosed
diagnosed with ASD,
ASD,54
in
in
some parts
parts of the United States, ASD
ASD is now estimated
estimated to affect
affect
one out of 150 children. 5555 This dramatic
dramatic increase
increase in
in the rate of
of
one
"epidemic. '56
diagnosis prompts
prompts some to describe ASD
ASD as an
an "epidemic."56
it is
The
The cause
cause of this increased
increased prevalence
prevalence is unknown, but it
speculated
combination of greater
greater public awarespeculated to stem from a combination
ness,
ness, improved
improved diagnostic tools, genetic
genetic influences, and envi57
factors.
ronmental
57
ronmental
Because
Because diagnosis of ASD
ASD takes place in childhood
childhood and the
twenty years, currate
rate of diagnosis has surged within
within the
the last "twenty
services for ASD
ASD are aimed
aimed at children. 58
58 Howrently most services
ever, children
children with these sensory and social processing
processing difficulSociety's
ties are now entering
entering adolescence
adolescence and adulthood. Society's
behavior decreases
decreases when
tolerance
tolerance of weird or unusual behavior
when the ac59 Furthermore,
tor is no longer
sympathetic child. 59
longer a sympathetic
Furthermore, the behavchallenges for communities
ASD pose challenges
communities and
associated with ASD
iors associated
enforcement
and legal systems;
systems; however, this Comment
Comment focuses primarily
primarily on
on law enforcement
response. A bibliography
bibliography of autism safety resources is found at a website
website sponsored by the Parents of Autistic
Autistic Children
Children of Northern Virginia
Virginia (POAC-NOVA),
(POAC-NOVA),
sored
(last visited
http://www.poac-nova.org/base.cgim?template=autism-awareness
http://www.poac-nova.orglbase.cgim?template=autism_awareness
Sept. 24, 2007).
supra note 48, at 8.
53. See, e.g.,
e.g., Debbaudt &
& Brown, supra
Naand Autism Speaks
Speaks Unveil NaAdvertising Council
54. Autism Speaks, The Advertising
Council and
http://www.autismspeaks.
Campaign to Raise
Raise Awareness of Autism, http://www.autismspeaks.
tional PSA Campaign
tional
6, 2006).
org/press/ad councillaunch.php (Apr. 6,2006).
org/press/ad_counciClaunch.php
55. Press Release, Centers for Disease Control and Prevention, CDC Releases
Releases
New Data on Autism Spectrum Disorders
Disorders (ASDs) from Multiple
Multiple Communities
Communities in
available at
at
(Feb. 8, 2007) (on file with author), available
the United States
States (Feb.
http://www.cdc.gov/od/oc/media/pressrel/2007/rO70208.htm.
http://www.cdc.gov/odloclmediaipressre1l2007/r070208.htm.
Rates?
Present Challenges,
Challenges, Future
56. See Autism: Present
Future Needs-Why the Increased
Increased Rates?
[hereinafter
Comm. on Gov't Reform, 106th Cong.
Hearing before the H. Comm.
Congo (2000) [hereinafter
Hearing
Challenges].
Present Challenges].
Autism: Present
al., supra
supra note 35,
35, at 53. Recent genetic research
Yeargin-Allsopp et aI.,
57. Yeargin-Allsopp
research indicates that ASD is very strongly related to a particular kind of genetic mutation
mutation
al., Strong
Strong Assooccurring at many sites on the genome. See Jonathan Sebat et aI.,
(Apr.
SCIENCE 445 (Apr.
Mutations with
with Autism, 316 SCIENCE
ciation of De
De Novo Copy Number Mutations
ciation
changing birth rate patterns to higher
20, 2007). For aa provocative theory tying changing
Syndrome, WIRED, Dec. 2001, at
Silberman, The Geek Syndrome,
rates of autism, see Steve Silberman,
(arguing that increased rate of ASD is linked to social trends encour175, 175-82 (arguing
reproduction by math- and science- gifted individuals).
aging reproduction
also Combating
Challenges, supra
supra note 56; see also
Present Challenges,
58. See, e.g., Autism: Present
Pub. L.
L. No. 109-416, 120 Stat. 2821 (2006).
Autism Act of 2006, Pub.
infra Part II.C.
59. See infra

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law enforcement
enforcement when the affected person
size
person possesses the SIze
60
adult.
an
of
and strength
strength
60
3.

The Paradox of Escalation
Escalation

One characteristic
characteristic of ASD
ASD poses a particular problem
problem in
in
encounters with law enforcement. "Escalation," or meltdown,
describes the response of a person with ASD
ASD under stress or in
in
an unfamiliar situation. 6611 Overwhelmed
Overwhelmed by the barrage
barrage of sensory information, a person with ASD
ASD may attempt to flee the
uncomfortable situation, engage
engage in excessive stimming, become
become
"cover[]
individual may "coverD
combative, or simply shut down.6622 The individual
shriek[], not knowing how or where to get
get
his or her ears and shriekD,
63 This expression of fear, frustration, and confusion frehelp."
help."63
expression
freout
quently appears like a child's tantrum
tantrum that has "escalated" out
64
of the control of adult caregivers. 64
police-lights and sirens,
Unfortunately, the presence
presence of police-lights
dogs--often
uniforms, loud and unfamiliar
unfamiliar voices, barking
barking dogs--often
indimakes a difficult situation worse by contributing
contributing to the indio
vidual's sensory overload.6655 Traditional law enforcement
enforcement techtech·
niques for controlling and containing
containing such a situation
situation are inefinefescalation or a violent physical
fective and may provoke further escalation
ASD. 66 Such outbursts do not reoutburst by the person with ASD.66
sult from "meanness or acts of purposeful injury to others," but
but
overwhelming environmental
environmental
rather they are a reaction
reaction to the overwhelming
stimuli.67
stimuli. 67

60. See infra
infra Part II.C.
61. See DEBBAUDT,
DEBBAUDT, supra
supra note 28, at 23; Brown, supra
supra note 38, at slide 37.
supra note 38, at slide
62. Brown,
Brown, supra
slide 37.
supra note 28, at 23.
63. DEBBAUDT,
DEBBAUDT, supra
Dies After
64. Id.; see also Nathan Max & Douglas Quan,
Quan, Autistic Man Dies
After Clash
with Deputies,
Deputies, PRESS·ENTERPRISE
PRESS-ENTERPRISE (Riverside, Cal.), July 21, 2006, at B3 ("'When
("'When
Debbaudt
an autistic person's adrenaline
adrenaline starts going, it can be hard to regulate,'
regulate,' Debbaudt
resistance...
said. 'If a struggle ensues, officers can expect
expect to encounter a lot of resistance
...
."').

supra note 38, at slide
65. Brown, supra
slide 17.
DEBBAUDT, supra
26-27 (discussing restraint
66. See DEBBAUDT,
supra note 28, at 26-27
restraint issues; note
especially that placing
especially
placing a person with ASD
ASD on his stomach
stomach may induce breathing
difficulties
diaphragm and chest
difficulties and respiratory arrest due to hypotonia of the diaphragm
chest
muscles
muscles often associated with ASD; the struggle to breathe
breathe while so restrained
may be mistaken
also DAVIS &
&
mistaken for further resistance or an attempt to flee); see also
SCHUNICK, supra
light
supra note 27, at 65 (because of sensory
sensory integration problems, a light
touch may result in a physical lashing out).
supra note 28, at 24; see also Sarah
Files Suit
67. DEBBAUDT,
DEBBAUDT, supra
Sarah Burge,
Burge, Mother
Mother Files
over Son's Death,
B1 ("[A
Death, PRESS-ENTERPRISE
PRESS-ENTERPRISE (Riverside, Cal.), May 28, 2007, at Bl
("[A
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Paradoxically, the more force
force a police
police officer
officer applies
applies to
to gain
gain
Paradoxically,
control over the
the situation, the
the more dangerous
dangerous and out
out of
of concontrol
the situation
situation likely
likely becomes.
becomes. Instead, calmness, patience,
patience,
trol the
geographical containment,
containment, as opposed
opposed to physical
physical force,
and geographical
usually lead
lead to a de-escalation
de-escalation of behavior
behavior within
within a few
few
will usually
68 A police
police officer
officer unprepared
unprepared to recognize
recognize the
the signs of
of
minutes. 68
places the person with
appropriately not only places
ASD and respond appropriately
unnecessarily greater
ASD at unnecessarily
greater risk by the use
use of force but
but also
creates
dangerous situation
situation for the officer.
officer. 69
69 To allevicreates a more dangerous
ate this problem, police and
and first responders
responders need
need better
better training to recognize
recognize "the unique needs and characteristics
characteristics of people
people
encountering doesn't
autism so the situation
situation they're encountering
doesn't bewith autism
70
come worse."
worse."70
Under the Americans with
C. Police
Police Encounters
Encounters Under
C.
Disabilities
Disabilities Act
Act
The "mindblindness" of ASD and the paradox of escalation
escalation
in reaction
reaction to traditional
traditional law enforcement
enforcement control
control techniques
techniques
particular risk of inapcombine to place
place persons with ASD at particular
inadequately trained law enforcepropriate treatment
treatment from inadequately
ment personnel.
personnel. The Americans with Disabilities Act ("ADA")
("ADA")
71
inappropriate treatment. 71
forbids such inappropriate
signing the ADA, President George H. W. Bush recUpon signing
ognized the united effort between Congress and an unpreceact
dented number of disability
disability advocacy
advocacy groups in making
making the act
72
reality.
a reality.72
He declared:
simplicity ..... .. Legally, it will
This act is powerful
powerful in its simplicity.
community with a powerful expansion
expansion
provide our disabled community
Together, we
....
of protections and then basic civil rights ....
person with ASD] may simply imitate the [police] officers, which can spell trouble
if officers are loud and aggressive.").
containment is the
("Geographical containment
68.
supra note 28, at 27 ("Geographical
68. See DEBBAUDT, supra
also Debbaudt,
); see also
.... .");
preferred method of control for a person with autism ...
First ReEnforcement, First
& Safety Management,
Management, Information
Autism Risk &
Information for Law Enforcement,
and Criminal
Criminal Justice
Justice Professionals,
Professionals, http://www.autismriskmanagement.
http://www.autismriskmanagement.
sponse,
sponse, and
com/lawenforcement.html (last visited Oct. 4, 2007).
comllawenforcement.html
supra note 28, at 27.
69. DEBBAUDT, supra
supra note 64, at Al (quoting Lee Grossman, President and
70. Max && Quan, supra
Society of America).
CEO of The Autism Society
12101-12213 (2006).
71. Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101-12213
71.
72. George H.W. Bush, U.S. President, Remarks of President George Bush at
Americans with Disabilities Act (July 26, 1990), available
the Signing of the Americans
available at
http://www.eeoc.gov/adafbushspeech.html (last visited Oct. 4, 2007).
http://www.eeoc.gov/adalbushspeech.html
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must remove the physical barriers we have created and the
the
must
social barriers that we have accepted.
accepted ....
Let the shameful
social
. .. Let
73
down. 73
tumbling down.
come tumbling
finally come
wall of exclusion finally
Congress stated that its
its purpose in passing the ADA was
Congress
"to provide a clear and comprehensive
comprehensive national mandate for the
elimination of discrimination against individuals with disabilienforceable stanties" and "to provide clear, strong, consistent, enforceable
dards addressing discrimination against individuals with dis74
individuals with disabilities as
The Act defines individuals
abilities." 74
impairment that
those persons who have "a physical or mental impairment
or
substantially limits one or more of the major life activities," or
havhave "a record of such an impairment," or are "regarded as having such an impairment."75
impairment. ' 7 5 The definition of "physical or menmental impairment" includes neurological disorders and specific
disabilities. 766 The phrase
learning disabilities.7
phrase "major life activities" includes sensory processing
processing and communication abilities, such as
"seeing, hearing,
speaking, ...
. . . learning,
learning, and
and working."77
working. '7 7 FurFur"seeing,
hearing, speaking,
thermore, the definition
definition of disability expressly includes individuals having a condition that provokes a reaction in others,
life
where that reaction effectively
effectively limits the individual's major life
activities. 7788 Under the statute and its implementing
implementing regularights-protection provisions of the ADA are imposed
tions the rights-protection
not only on employers, communications
communications providers, and public
entities, 7 9 which include
accommodations, but also on public entities,79
"[a]ny State or local government" and any instrumentality
instrumentality of
of
"[a]ny
government.80
State or local
local government. 80
The Act forbids public
public entities
entities from discriminating
discriminating against
against
81
qualified individuals
individuals on the basis of their
their disability. 81
Congress recognized in drafting the ADA that reasonable
reasonable modification to meet the needs
needs of individuals
individuals with disabilities
disabilities would
would require more than adaptation
adaptation of facilities and services in some
circumstances
circumstances and would require
require a change
change of attitude
attitude and procedures
cedures on the part of public servants in order to "eradicat[e]

73.
73.
74.
74.
75.
75.
76.
76.
77.
77.
78.
78.
79.
79.
80.
81.
81.

Id.
Id.
42 U.S.C.
U.S.C.
42 U.S.C.
U.S.C.
28 C.F.R.
Id.
Id.
Id.
Id.
42 U.S.C.
28 C.F.R.
C.F.R.
42 U.S.C.

§§ 12101(b)(i)-(2).
12101(b)(1)-(2).
§§ 12102(2)(A)-(C).
12102(2)(A)-(C).
§ 36.104
36.104 (2006).

§§ 12101, 12131-32.
12131-32.
§ 36.104.
36.104.
§§ 12132.
12132.

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8 2
the 'invisibility of the handicapped."',
committee report
handicapped."'82
The committee
report
specifically considered
considered appropriate
appropriate training of public
public servants,
reasonable modification:
including police officers, to be a reasonable

In order to comply with the non-discrimination
non-discrimination mandate, it
necessary to provide training to public
is often necessary
public employees
employees
about disability. For example, persons
persons who have epilepsy,
and a variety of other disabilities, are frequently inappropriately
priately arrested and jailed because
because police officers
officers have
have not
not
received
received proper
proper training in the recognition of and aid for
[these disabilities].
. .
Such discriminatory treatment
disabilities]. . ..
treatment
83
training. 83
be avoided
based
based on disability can
can be
avoided by
by proper
proper training.
The committee used epilepsy as an example of an "invisible" disability-a disability not immediately obvious from the
appearance-that might be subject to inindividual's outward appearance-that
appropriate
discriminatory treatment
appropriate discriminatory
treatment in the absence
absence of training about a condition's physical manifestations
manifestations and necessary
necessary
accommodations. 8844 ASD is a similarly "invisible" disability at
accommodations.
at
risk of being misunderstood
misunderstood by inadequately trained law en85 ASD impairs
forcement officers. 85
impairs the ability of affected
affected indiinformation, 86 thus makviduals to process
process sensory and social information,86
intended
ing it
it difficult for an affected
affected individual to receive
receive the intended
safety benefit of public police protection. As discussed
discussed above,
ASD behaviors are easily mistaken
mistaken for suspicious
suspicious or criminal
criminal
untrained
behavior. 8877 Moreover,
Moreover, the actions of a police officer untrained
in "recognition of and aid for" ASD can exacerbate
exacerbate the negative
behaviors
behaviors associated with the disability, unnecessarily
unnecessarily putting
both the person with ASD and law enforcement
at
enforcement officers at
88
harm.
of
greater risk
88

101-485, pt. III, at 50 (1990).
82. See H.R. REP. No.
No. 101-485,
83. Id.
84. Id.
Id. As Congress's
Congress's example implies, an "invisible" disability
disability may not present an immediate externally
externally discernable cue, such as a crutch
crutch or a cane, a wheelhearing aid, or some physical
physical deformity. Nonetheless the disability may
chair, a hearing
be identified
individuals trained
recognize it
it and make proper
proper
identified and addressed
addressed by individuals
trained to recognize
accommodations.
accommodations.
85. See, e.g., Pathfinders for Autism: About
http://www.pathfinders
About Autism, http://www.pathfinders
forautism.org/aboutAutism.aspx (last visited Oct. 4, 2007) ("[Autism] is a hidden
forautism.org/aboutAutism.aspx
hidden
disability in the sense
sense that the individuals affected are, in many
many cases, physically
physically
indistinguishable from their peers.").
86. See discussion supra
supra notes 29--46
29-46 and accompanying
accompanying text.
87. See discussion supra
supra notes 47-53 and accompanying
accompanying text.
88. See discussion supra
supra notes 61-70 and accompanying
accompanying text.
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347

Theories of Liability Under the ADA in the
Context
Context of Police Encounters

Originally, courts were reluctant
reluctant to apply Title II of the
ADA-which provided that "no qualified individual
ADA-which
individual with a disability .
.
.
[would]
be
denied
...
denied the benefits of the services, programs, or activities of a public entity, or [would] be subjected
subjected to
discrimination
entity" 8 9-to police encounters
discrimination by any such entity"89-to
encounters with
with
90 Courts found
persons with disabilities. 9o
Courts
it hard to imagine an
applicant being "eligible" for arrest, or that an arrest or its afafapplicant
activity."9 1
tereffects were a protected "benefit" or "program or activity."91
This changed, however, in 1998 when a unanimous
unanimous Supreme
Court in Pennsylvania
Yeskey held
Pennsylvania Department
Department of Corrections
Corrections v. Yeskey
that state prisons
came
within
the
definition
of
public
prisons
definition
public entity
ADA. 92
the ADA,92
of
provisions
the
with
comply
must
and therefore
therefore
of the
As the Court
Court put it, "the ADA plainly covers state institutions
institutions
without any exception" based
services
based on the context of the services
provided.
93
provided.93
Following
ADA's
Following Yeskey's interpretation
interpretation of the scope of the ADA's
application, many courts have developed
developed a three-part
three-part test to
to
determine whether
officer-such as a podetermine
whether a public entity or its officer-such
officer-interacts with a person
person with a disability in such a
lice officer-interacts
way that it imposes liability under the ADA,94
ADA. 9 4 Under
Under this test,
a claim will lie where a plaintiff proves the following:

89. Americans with Disabilities Act of 1990, 42 U.S.C. § 12132 (2006). A
"public entity"
entity" is
defined as
"any department,
department, agency,
agency, special
special purpose district, or
or
is defined
as "any
"public
government .......
other instrumentality of a State or States or local
local government
. . ." Id.
Id. §
12131(1)(B).
12131(1)(B).
90. Rachel E. Brodin, Comment, Remedying a Particularized
DisParticularized Form
Form of Discrimination:
Plaintiffs Can
Can and
and Should Bring
Claims for Police
Bring Claims
Police
crimination: Why Disabled
Disabled Plaintiffs
Misconduct
Under the Americans with Disabilities
Disabilities Act, 154 U. PA. L. REV. 157,
Misconduct Under
167 (2005).
Montgomery County, 121 F.3d 154, 157 (4th Cir. 1997);
91. See, e.g., Rosen v. Montgomery
Gorman
Gorman v. Bartch, 925 F. Supp. 653, 655 (W.D. Mo. 1996), aff'd in part
part and rev'd
inpart,
in
part, 152 F.3d 907 (8th Cir. 1998).
92. 524 U.S. 206, 209 (1998). On remand, the district court granted summary
judgment to defendants, holding that participation
participation in a penal boot camp was not a
"major
life activity"
under the
the ADA.
v. Pa.
Dep't of
Corr., 76 F. Supp. 2d
"major life
activity" under
ADA. Yeskey
Yeskey v.
Pa. Dep't
of Corr.,
2d
572, 578 (M.D. Pa. 1999).
93. 524 U.S. at 209.
94. Brodin, supra
supra note 90, at 183-84. Of course, the principles of governmental immunity
immunity and qualified immunity usually protect public entities and employees from liability; however,
circumstances an ADA discrimination
discrimination
however, under certain circumstances
claim arguably allows plaintiff to get around these protections.
protections. See id.
id. at 185-98
(presenting an in-depth
in-depth examination
examination of this argument).
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he is aa qualified individual with a disability;
disability;
that he
from participation
participation in
in or
or denied
that he was either excluded from
services, programs, or
the benefits of some public entity's services,
or
activities, or was otherwise discriminated against by the
public entity; and
that such exclusion, denial of benefits, 95or discrimination
discrimination
disability.
was by reason of the plaintiffs disability.95

considered the issue have held
Federal courts that have considered
enforcement officers liable for disability-related
disability-related discrimilaw enforcement
96 First, the Wrongful
nation under two theories. 96
Wrongful Arrest theory
operates where "police wrongly arrested someone with a dismisperceived the effects of that disability
ability because they misperceived
activity." 9 7 Second, the Failure
as criminal activity."97
Failure to Accommodate
Accommodate
98
During Arrest theory
theory98 operates where police
police "arrested a person with a disability for a crime unrelated to that disability...
disability ...
[but] failed to reasonably
reasonably accommodate
accommodate the person's disability
in the course of investigation or arrest, causing
causing the person to
to
arsuffer greater
greater injury or indignity in that process than other ar99
restees."
restees."99
a. Wrongful Arrest Theory
Theory
A Wrongful Arrest claim arises when a person
person with a disability
ability is arrested
arrested because
because a characteristic
characteristic of her disability is
is
mistaken
for
criminal
behavior,
where
the
arresting
officer
mistaken
criminal
where
officer
knew or should have known that the behavior was related to
the disability, not criminal
earliest case
criminal activity. The earliest
case to recognize a federal claim of discrimination
discrimination under
under the ADA in a police
police
encounter was Jackson
v.
Town
of
Sanford.
100
Jackson
Sanford. 100
1439 (D. Kan. 1994);
95. Tyler
Tyler v. City of Manhattan,
Manhattan, 849 F. Supp. 1429,
1429, 1439
1994); see
also
also Weinrich
Weinrich v. L.A. County
County Metro. Transp. Auth.,
Auth., 114
114 F.3d 976, 978 (9th Cir.
1997);
1997); Patrice
Patrice v. Murphy,
Murphy, 43 F. Supp. 2d 1156, 1159
1159 (W.D. Wash. 1999); Lewis
Lewis v.
Truitt, 960
F. Supp.
Ind. 1997)
Truitt,
960 F.
Supp. 175,
175, 178
178 (S.D. Ind.
1997) (all applying similar tests).
96.
1999) (summarizing
96. Gohier
Gohier v. Enright, 186 F.3d 1216,
1216, 1220 (10th Cir. 1999)
(summarizing
cases representing
representing each
each theory).
97.
97. Id.
98. Id.
Id. Note
Note that "arrest" in this context is taken to encompass
encompass "several different
scenarios: arrests;
arrests; investigations
involving an arrest
. .;; and
ferent scenarios:
investigations potentially
potentially involving
arrest .
...
and
violent
violent confrontations
confrontations not technically
technically involving
involving an arrest." Id. at n.2.
n.2.
99.
99. Id.
Id. at
at 1220-21.
100.
100. Jackson
Jackson v. Town
Town of Sanford, No. 94-12-P-H,
94-12-P-H, 1994
1994 WL
WL 589617
589617 (D. Me.
Sept. 23, 1994).
1994).
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Jackson, a police officer arrested a man after mistaking
In Jackson,
characteristic of his disability for criminal
criminal behavior. 101
a characteristic
101 Following
lowing a motor vehicle accident, one driver told police
police that he
thought
thought the other
other driver, Roland Jackson, the plaintiff in this
102 The officer observed
observed that Jackson's
Jackson's speech
speech
case, was drunk. 102
was slurred, he was visibly unsteady
swayed
unsteady on his feet, and he swayed
103
noticeably. 103
When asked whether
whether he had been drinking,
Jackson
Jackson explained
explained that he had not been
been drinking. He further
further
explained that he had previously suffered
suffered a stroke which left
him with some physical difficulties
difficulties and that he was using a
10 4 When Jackprescription medication
medication for high blood pressure. 104
son failed the field sobriety tests due to his disability, the police
police
medication
officer assumed that the impairment was due to the medication
influence."' 10 5
and arrested Jackson
Jackson for "operating under the influence."105
The officer
officer handcuffed
handcuffed Jackson
Jackson and took him to the police station, where
where tests to detect the presence of alcohol and the influence of drugs were administered; both were negative. 106
106 At no
time did the officer inquire further about Jackson's disability. 10 7 After nearly two hours, Jackson was released
released with a
ity.107
"summons
to
appear
in
court
on
a
charge
of
operating
under
"summons to appear in court on a charge
operating under
intoxicating drugs," and the arresting officer
the influence of intoxicating
officer
filed an "adverse driver's report" requesting that Jackson's
driving skills be re-evaluated. 108
108 Jackson had been "found to
be a safe
driver
by
certified
driving
instructors, both before and
safe
09
after the incident." 1
109
Jackson sued the arresting officer
officer and the city for, among
other things, arresting him without probable cause, detaining
him unlawfully, and failing to train its police
police officers in recog110
nizing disabilities. 110 The court granted
granted summary
summary judgment in
in
favor of the defendants
defendants on all the claims, except
except for Jackson's
Jackson's
1 1 The
Americans
observed
Americans with Disabilities Act claim.1III
court observed
that
that

101.
101.

102.
103.
104.
105.
105.
106.
107.
108.
109.
110.
111.
Ill.

Id. at
at*1.
[d.
*l.
Id.
[d.
Id.
[d.
Id.
[d.
Id.
[d.
Id.
[d.
Id.
[d.
Id.
[d.
Id.
[d.
Id. at
at *2,
*2, *4.
*4.
[d.
Id. at
at *3-*6.
*3-*6.
[d.
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Title II of the ADA clearly applies to acts of discrimination
discrimination
by a public entity against
individual. The Town
against a disabled individuaL
and its police force are a public entity and the plaintiff is a
.... " The legislative
qualified individual
individual with a disability ..
history of the ADA demonstrates
condemonstrates that Congress
Congress was con·
cerned with unjustified
arrests
of
disabled
persons
disabled
such
as
112
Jackson alleges here. 112
Lewis v. Truitt
Truitt represents another example
example of a wrongful
113
arrest due to a disability.
disability.113 A deaf man's inability
inability to understand and respond
respond appropriately
appropriately to police was perceived
perceived as re14 Charles
sisting law enforcement.
enforcement.1114
Charles Lewis objected to the arriarrival of police at his home without a court order or warrant to
to
investigate
Because of
investigate the welfare
welfare of his granddaughter."1
granddaughter. 1155 Because
of
Lewis's deafness, he could not understand
understand the officers'
officers' explanation that no warrant was needed. "1
1166 Other people
people present
present tried
to explain that Lewis was deaf and that the best way to compaper." 117
piece of
municate
municate was to "write down questions on a piece
of paper."II?
However, the officers
officers "refused to believe
believe that [Lewis] was deaf
11 8 When
and would not write down any questions
questions for him." 118
When
Lewis left his yard and went into his house, the officers followed him, uninvited. 119 An altercation
altercation followed, in which the
officers pulled Lewis "to the floor by his hair, handcuffed
handcuffed him,
120
him." 120
hit him."
to kick
placed him under arrest, and proceeded
proceeded to
kick and
and hit
When a bystander
bystander offered
offered to prove that Lewis
Lewis was deaf by using the teletype system
system in the house, one officer "told [her] to
12 1 Lewis
shut-up and threw her into a large
large piece of furniture." 121
was arrested
arrested and charged
misdemeanor of resisting
charged with the misdemeanor
122 Lewis subsequently filed an action alleglaw enforcement.
enforcement.122
ing that the police violated the ADA in their treatment
treatment of
of
112.
112.

Id. at *6
*6 (citations omitted).
113.
113. 960 F. Supp. 175 (S.D. Ind. 1997).
114.
Id. at 176-77.
114. Id.
115.
Id. at 176, 178.
liS. Id.
116. Id.
Id. at 176. The police were unaware that another
another officer previously
previously had
nine-month-old child in the custody of Lewis's son following
left the nine-month-old
following her mother's
suicide that morning. Id.
Lewis's son had already agreed to cooperate
cooperate with the
Id. .Lewis's
police. Id.
117. Id.
118. Id.
118.
Id.
119. Id.
120. Id.
Id.
121. Id. at 177. One of the officers
altercation had been per121.
officers involved in the altercation
sonally involved
involved in the installation
installation of Lewis's teletype
teletype system. Id.
Id. at 176. That
That
officer
officer knew or should have known that Lewis was deaf. Id.
177.
122. Id. at 177.
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12 3
court denied
denied the police
police officers' motion for sumsumhim. 123
The court
mary judgment, noting that there was aa genuine issue of
of matematemary
rial fact on
on the question of
of whether the
the officers arrested Lewis
124
disability. 124
because of his disability.
Jackson, the officer
officer had
had not been
been trained
trained to distinguish
In Jackson,
the effects of a stroke from the effects of intoxication, and
therefore he made a wrongful arrest.
Similarly, officers
charged Lewis
Lewis with resisting law enforcement, even
even though
or should have known that his deafness was responresponthey knew or
for his
his apparent
apparent lack
lack of cooperation. Where a police offisible for
cer has been made aware of an individual's disability but has
not been trained to distinguish between criminal behavior
behavior and
the effects of that disability, or ignores that distinction, and
thus makes a wrongful arrest, the officer or the police departdiscrimination under the ADA.
ADA.
ment may be held liable for discrimination

b. Failure
Failureto Accommodate Theory
Theory
encounter with a
During a pre-arrest, arrest, or post-arrest encounter
person
with
disabilities,
if
a
law
enforcement
person
enforcement officer fails to
make reasonable
accommodations
reasonable accommodations for the disabilities, some
courts have found that the officer may be liable for discrimination for Failure to Accommodate
ADA. 125 The
Accommodate under the ADA.125
Eighth Circuit discussed a Failure to Accommodate
Accommodate claim in
in
126
Bartch.
v.
Gorman
Gorman u. Bartek. 126
Jeffrey
Jeffrey Gorman, a paraplegic,
paraplegic, was removed
removed from a bar
bar for
for
trying to enter
enter the dance floor on his wheelchair, then arrested
arrested
12 7
The
for trespassing. 127
The police transport vehicle was not
not
equipped
for
wheelchairs,
so
the
officers
lifted
Gorman
equipped
wheelchairs,
officers
Gorman into the
back
back of the van and
and strapped
strapped him to a bench and a mesh net,

123.
123. Id.
Id.
124.
124. Id.
Id. at 179.
179.
125.
125. Brodin,
Brodin, supra
supra note
note 90, at
at 164.
164.
126.
1998). After
126. Gorman
Gorman v.
v. Bartch,
Bartch, 152
152 F.3d
F.3d 907
907 (8th
(8th Cir.
Cir. 1998).
After the
the Eight Circuit
Circuit
partially
partially reversed
reversed the
the district
district court's
court's grant
grant of
of summary
summary judgment
judgment against
against Gorman,
man, id.
id. at
at 916,
916, Gorman's
Gorman's claim
claim under
under the
the ADA
ADA succeeded
succeeded at
at jury
jury trial on
on remand,
mand, and
and he
he was
was awarded
awarded both
both compensatory
compensatory and
and punitive
punitive damages.
damages. Gorman
Gorman v.
Easley,
Easley, No.
No. 95-0475-CV-W-3,
95-0475-CV-W-3, 1999
1999 U.S.
U.S. Dist. LEXIS
LEXIS 23537,
23537, *1
*1 (W.D.
(W.D. Mo.
Mo. Oct.
Oct. 28,
28,
1999).
1999). However,
However, the
the punitive
punitive damages
damages portion
portion was
was eventually
eventually overturned
overturned by
by the
the
U.S.
U.S. Supreme
Supreme Court,
Court, which,
which, while
while specifically
specifically recognizing
recognizing that
that a private
private action
action to
to
enforce
enforce the
the ADA
ADA was
was permissible,
permissible, ruled
ruled that
that punitive
punitive damages
damages are
are not permitted.
permitted.
Barnes
Barnes v.
v. Gorman,
Gorman, 536
536 U.S.
U.S. 181,
181, 184-85,
184-85, 189
189 (2002).
(2002).
127.
127. Gorman,
Gorman, 152
152 F.3d
F.3d at
at 909.
909.
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128 During the trip to the
using Gorman's belt and the seatbelt. 128
12 9
Gorman
station, "the belts came loose, and Gorman fell to the floor."
floor."129
As a result, Gorman suffered
suffered serious injuries to his shoulder
shoulder
130
him. 130
and back, and his urine collection
collection bag burst and soaked him.
In considering Gorman's appeal of the district's court dismissal
applicability of the ADA
of his claim, the court recognized
recognized the applicability
'benefit' Gorto the transport of arrestees and noted that the '''benefit'
man sought in this case was to be handled and transported
transported in a
131
safe and appropriate
appropriate manner consistent with his disability."
disability." 131
Courts have generally been more receptive
receptive to claims based
based
on Wrongful Arrest than to claims involving a Failure
Failure to Ac132 However, if police
commodate. 132
increased
police conduct results in increased
harm to the person because of a Failure to Accommodate
Accommodate the
disability, the disabled
disabled person may have a claim under Title II
II
133
of the ADA. 133
Outside the Two Theories:
c. Outside
Theories: Exigent
Circumstances
Circumstances
Although the protection of the ADA has been held to apply
in situations
Accommodate,
situations of Wrongful
Wrongful Arrest and Failure
Failure to Accommodate,
unfortunate encounters between
or
many unfortunate
between persons
persons with mental or
other disabilities and law enforcement
enforcement do not fall within
within either
either
of these categories. When a disabled person's actions
actions create
"exigent
circumstances"
in
which
public
safety
appears
"exigent circumstances" in which public safety appears to be
endangered,
enforcement personnel
endangered, law enforcement
personnel are obliged to "secur[e]
the scene and ensur[e]
ensur[e] that there is no threat
threat to human life,"
before coming under a duty to accommodate
accommodate the disability un34 In these
der the ADA.1
concluded
ADA. 134
circumstances, courts have concluded
that "the person with the mental disability denied
denied herself the
acts, 135
criminal acts,"
protection through her own criminal
benefits of police protection
135
and thus has not suffered discrimination
discrimination based
based on her disabil128. Id.
Id. at 910.
129. Id.
Id.
130. Id.
Id.
131. Id.
131.
Id. at 913.
132. See Brodin, supra
supra note 90, at 163-64.
133. Id.
Id. at 164. For further discussion
discussion of these issues, see Jennifer Fischer,
The Americans
with Disabilities
Persons with
The
Americans with
Disabilities Act:
Act: Correcting
Correcting Discrimination
Discrimination of Persons
Mental
in the Arrest,
Post-Arrest, and
and Pretrial
Processes,23 L. & INEQ.
Mental Disabilities
Disabilities in
Arrest, Post-Arrest,
Pretrial Processes,
157,
181-82 (2005).
157, 181-82
134. Hainze
also Fischer,
Hainze v. Richards, 207 F.3d 795, 801 (5th Cir. 2000); see also
supra
supra note 133,
133, at 186.
135. Fischer, supra
135.
supra note 133, at 181.
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136 The Tenth
ity.136
Tenth Circuit
Circuit Court
Court of Appeals
Appeals did not find disity.
137
Gohier
in
circumstance
a
such
in
crimination
such
circumstance
in
Gohier v.
u. Enright.
Enright. 137
crimination
Gohier claimed
The plaintiff
plaintiff in Gohier
claimed that
that police had used
used excessive
sive force resulting in death during
during an
an attempt
attempt to arrest
arrest a man
man
suffering
suffering from schizophrenia
schizophrenia and
and that this
this use of
of force represented a failure
failure to "treat and protect" the decedent
decedent "in light of
of
sented
138
disability." 138 A police
police officer
officer was called to investigate
investigate rehis disability."'
ports of a man
man damaging
damaging car windows with a baseball
baseball bat or a
ports
1399 Shortly after, the officer
pipe. 13
officer encountered
encountered a man who,
who, although not fitting the description
description of the suspect
suspect sought, was
though
0
140
behaving in
in a somewhat
somewhat unusual manner. 14
As the officer
officer
behaving
pulled over and tried to get the man's attention, the man
man
looked like
like a knife and then
then approached
approached the police
police
swung what looked
4 1 Although
vehicle.
vehicle. 1141
Although the officer
officer decided
decided that the man was men4 2 Apparently
not call for backup.
backup. 1142
Apparently attempting
attempting
tally ill, he did not
to steal the idling police car, the man "lunged toward [the offi14 3 The officer
making a stabbing
stabbing motion with the object."
object."143
officer
cer],
cer], making
144
shot him twice, killing him. 144
The court believed
believed the facts in Gohier
Gohier to be "logically intermediate" between
between the Wrongful Arrest and Failure to Accommodate
''because
commodate claims. 145 The officer neither used force "because
misconceived the lawful effects of [the man's] disability as
as
he misconceived
accommodate [the man's] discriminal
criminal activity" nor "fail[ed] to accommodate
ability while arresting him for 'some crime unrelated to his
ability
14 6
officer
disability.'''' 146
Instead, the court observed
observed that the officer
disability."
"used
force
[the man]
while [the
[the man]
man] was committing
"used force on
on [the
man] while
committing an

136. The question follows, then, whether it was the individual's act or the poaccommodate that created
lice officer's failure to accommodate
created the apparent
apparent exigent circumstance. Some lower courts recently have begun to recognize that, in a Failure
Failure to
circumstance existed at the
Accommodate
Accommodate claim, the issue of whether
whether an exigent
exigent circumstance
time police acted
acted may be a materially
materially disputed fact precluding summary judgment
judgment
in favor of the law enforcement
enforcement entity. See, e.g., Morais
Morais v. City of Philadelphia,
Philadelphia,
No. 06-582, slip op. 12-13 (D. Pa. March 19, 2007) (discussing several cases in
in
circumstances was examined).
accommodation under exigent circumstances
which reasonable accommodation
137. Gohier v. Enright, 186 F.3d 1216, 1220-22. (10th Cir. 1999).
138. Id.
Id. at 1217.
139.
139.

Id.
Id.
street, clutching some140. Id.
Id. He was walking down the middle of an unlit street,
thing to his chest with his right hand. Id.
Id. at 1218.
141. Id.
Id.
142. Id.
143. Id.
144. Id.
145. Id. at 1221.
F. Supp. 2d 1156, 1159 (W.D. Wash.
146. Id.
Id. (quoting Patrice v. Murphy, 43 F.
1999)).
1999».
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assault related
related to his disability."147
disability."' 14 7 The lethal force was not
not
used in response to the disability itself but in response to the
dangerous
circumstances created
created by the acts of the disabled
dangerous circumstances
disabled
person; therefore,
therefore, the officer
officer was not liable under the ADA for
the man's death. 148
148

2.

Application
Application to Persons with ASD

While Jackson,
Gorman, and Gohier
Gohier did not involve
Jackson, Lewis, Gorman,
individuals with ASD, they illustrate the scope of rights under
under
the ADA that apply in the context of encounters between individuals
viduals with disabilities
disabilities like ASD and law enforcement
enforcement personenforcement officers may be held liable for discriminel. Law enforcement
nation
nation in making an arrest if a manifestation
manifestation of ASD is
149 Law enforcement
mistaken for criminal behavior. 149
enforcement officers
officers
appropriate accommodations
accommodations
obligation to provide
provide appropriate
also have an obligation
for individuals
150 Because
Because beindividuals with ASD following
following an arrest. 150
haviors associated
criminal
associated with ASD are easily mistaken for criminal
behavior, and because the communication
communication and sensory
sensory processing difficulties of ASD require
require accommodation, law enforcement officers must be trained
trained to recognize ASD and respond
respond
appropriately
appropriately in order to avoid liability for discrimination
discrimination under the ADA.
II. A CLOSER
CLOSER LOOK AT WHAT GOES WRONG

The ADA offers little protection for a person with ASD in
in
unnecessarily
situations where an untrained officer's
officer's actions unnecessarily
create an exigent
exigent circumstance.
circumstance. The few courts
courts that have conenforcement officers are
fronted the issue have held that law enforcement
accommodations for any disability
not required to make
make accommodations
disability during
15 1
circumstances. 151
exigent circumstances.
Unfortunately, the social processing
deficits and escalation
escalation associated
associated with ASD under conditions
of
conditions of
147.
147. Id.
Id. (emphasis added).
148.
148. Id.
Id. at 1222.
1222. The court noted that the
the city of Colorado
Colorado Springs might
might have
been liable for failing to train its officers
[disabled] perofficers to "investigate
"investigate and arrest [disabled]
sons in a manner reasonably
accommodating their disability." Id.
reasonably accommodating
Id. However, because the plaintiff did not make this argument
not
argument at trial, the appeals court
court did not
reach a decision on the matter. Id.
Id.
149. See supra
supra Part I.C.l.a.
I.C.1.a.
150. See supra
I.C.l.b; see also DEBBAUDT,
DEBBAUDT, supra
supra Part I.C.1.b;
supra note 28, at 34-36 (emphasizing importance
communication and safety for a person with
the
importance of communication
with ASD in
in the
post-arrest phase).
post-arrest
151.
I.C.l.c.
151. See supra
supra Part I.C.1.c.

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stress prevent a person
person with ASD from responding
responding in conforenforcement expectations,
expectations, creating
mance with law enforcement
creating a situation
situation
easily
looks
easily mistaken
mistaken for an exigent
exigent circumstance. This Part
Part looks
three
areas
such
situations
arise
and
identifies
closely
closely at how
"better outcomes."
in which "better training" would lead
lead to ''better
outcomes."

A. Anguished Outcry
Outcry
Paul's mother, Helen Childs, said, "I told them, 'He's a speaway."' 152
cial-needs child. Just talk to him and get the knife
knife away."'152
cial-needs
153 "I told
"I want to know why they shot my baby," she cried. 153
that officer, 'Don't shoot!' and he shot and killed him any154
way." 154
way."
"hoping"
Officer Turney
Officer
Turney would later explain that he was "hoping"
155 But
and "expected" that Paul would drop the knife. 155
this was
expectation: Paul, like others with his disabilan unrealistic expectation:
156
commands and often had to
ity,
ity,156
"had trouble
trouble understanding
understanding commands
157
be told multiple times to do something." 157
Heartbroken,
Paul's family sought to change
change this unrealistic
unrealistic expectation, endorsing legislation they named "Paul's Law," which would reenforcement officers be trained
quire that law enforcement
trained to "more effectively deal with the growing number
number of mentally ill or disabled
disabled
people
people who live in the community and cross paths with po158
lice." 158
The training would be intended
intended to "keep officers from
firing their weapons
at
developmentally
weapons
developmentally disabled suspects who
confrontation they find themselves
may be confused
confused about the confrontation
themselves
159
in."159
in."

Prepared,supra
152. Spencer,
Spencer, Not Prepared,
supra note
note 3.
3. However, the police
police officers at the
Id.
scene claim that they were
were not told anything of Paul's disabled
disabled condition. Id.
153. Kelly, 911 Tape,
Tape, supra
153.
supra note 9.

154.

Id.
Id.
Slaying, supra
155. Kelly, Cop Recounts Slaying,
ISS.
supra note 13. No charges
charges were pressed
pressed
supra note 10.
against Turney as aa result of Childs's death. Kelly, Cop Cleared,
Cleared, supra
Then-Denver District
District Attorney Bill Ritter explained:
explained: "Turney had aa reasonable
reasonable
Id.
belief
belief that he was in imminent
imminent danger." Id.
("After aa seizure, you're confused,
156. See Spencer,
Prepared,supra
Spencer, Not Prepared,
supra note
note 33 ("Mter
...").
not responding ....").
157. Kelly, 911
911 Tape,
Tape, supra
supra note 9.
supra note 1.
158. Simpson
Simpson & Ingold, supra
"Paul's Law" Plan,
Plan, RocKY
ROCKY MTN.
159. Hector
Hector Gutierrez, Teen's Death
Death Spurs
Spurs "Paul's
Representative Terrance
NEWS, Aug. 13, 2003, at 20A
20A (quoting Colorado State Representative
Terrance
Representative Rosemary
Carroll, aa co-sponsor
co-sponsor of the bill along with State Representative
Rosemary Marshall).

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B. Unrealistic
UnrealisticExpectations
B.
Expectations

The "mindblindness" of ASD
ASD puts affected persons at great
great
risk in encounters
encounters with law enforcement
enforcement because they are
unlikely
unlikely to react to instructions in ways that officers
officers expect.
encounter] is do what
what
"The best thing people can do [during an encounter]
they are told within reason," explained
explained one Colorado
Colorado law en160
forcement
They
forcement officer. 160
They should "keep their hands in full
view, let officers know of any moves they intend to make, remain polite and follow all directions
directions the officers
officers give,"
give," remembering that "officers are trained to consider every interaction
interaction as
16
1
though
though it is threatening."
threatening."161 An officer
officer responds to a failure to
to
expectations with an increased
comply
comply with these expectations
increased assertion of
of
162
authority and force. 162
A law enforcement
enforcement officer bases her expectations
expectations on the assumption that most people
understand
the
social role the offipeople understand
cer is playing, but the mind of a person with ASD
ASD may be unequipped
role.163
equipped to understand
understand that role.
163 A person with ASD
ASD may
take a longer time to mentally
mentally process
process the officer's instruc16 4
tions,
tions,164
or may respond to the officer in a socially inappropri165 If the situation presents a stimulus
ate manner. 165
stimulus on which
the person with ASD
ASD has an obsessive fixation (such as wheels,
vehicle), he or she may be drawn to the
buttons, or a shiny vehicle),
stimulus, oblivious to instructions
instructions to stop.166 Worse, the newOver: Police
Police Offer Tips on
on
160. Pierette
Pierette J.
J. Shields, Behavior
Behavior Key When Pulled
Pulled Over:
How to Act, What to Do During
During Encounter,
Encounter, DAILY TIMES-CALL (Longmont, Colo.),
Sept. 24, 2006, at Bl.
B1.
161. Id.
161.
[d.
162. Id.
[d.
163. See NAT'L
AUTISTIC SOC'y,
SOC'Y, supra
163.
NAT'LAUTISTIC
supra note 30, at 2.
164. Brown, supra
supra note 38, at slide 20.
165. NAT'L
AuTISTIC SOC'y,
SOCv, supra
165.
NATL AUTISTIC
supra note 30, at 7. One person
person offered a personal
account
account of a police stop:
A police car indicated to me to stop and I got out of the car. I had only
just
syndrome and didn't have
just received a diagnosis of Asperger syndrome
have a card on
on
me about the disability. When I spoke to the police,
police, in my usual, rather
rather
direct way, they thought I was being
being rude. I told the police I had Asperger syndrome and asked if I could get a friend who could help me to explain myself, but they did not seem to understand
understand the condition
condition and I
was told that I couldn't. At this stage I became very nervous and tried to
...
get away. In response, they called
called for back-up
back-up and tried to arrest
arrest me ...
. I felt anxious
anxious and so the situation worsened. They shoved
shoved me into a
responded by biting an officer.
van. I felt so scared that I responded
Id.
[d.
166. Brown, supra
supra note 38, at slide 22. Recall also the girl attracted
attracted to the
AUSTISTIC SOc'y,
SOC'Y, supra
supra note 46.
leather tags on jeans. NAT'L AUSTISTIC
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ness or
or strangeness
strangeness of an encounter
encounter with police-flashing
police-flashing
lights, a barking
barking dog, or
or shouting voices-may
voices-may overwhelm
overwhelm the
with
ASD.
In response,
sensory
sensory processing
processing ability of the
the person
person
she may flee, scream, cry, or drop to
to the
the ground
ground and rock back
back
she
and forth, in an attempt to escape
escape the unwanted
unwanted stimuli. 167
167 A
A
and
gentle
gentle touch may
may cause
cause the person
person with
with ASD to reflexively lash
out. 168
168 Law enforcement
enforcement officers
officers unfamiliar
unfamiliar with ASD
ASD may
misinterpret these
these responses
responses as non-cooperation
non-cooperation justifying
justifying the
misinterpret
use of increased
increased force, resulting in escalation
escalation toward
toward trag169
edy.169
edy.
C. Unfortunate
Unfortunate Encounters
Encounters with Law Enforcement Officers

The paradoxical
paradoxical interaction
interaction between
between a person
person with ASD
and law enforcement
applied to
to
officers-the more force that is applied
enforcement officers-the
and
out-of-control the
control
control the situation, the more irretrievably
irretrievably out-of-control
situation becomes-too
becomes-too frequently results in "exigent circumstances," in which both the officer and the person with ASD are
circumstances
placed
placed at great risk of harm. Sometimes, these circumstances
exigent cirthe
resulting
arise from situations
situations which, without
cumstance, might have qualified as Wrongful Arrests because
because
cumstance,
encounter was a
initiated the encounter
the suspicious
suspicious behavior
behavior which initiated
criminal act. Other times,
manifestation of ASD, rather
rather than a criminal
manifestation
in
dealing
the actions of police untrained
untrained
dealing with a person with
with
ASD unnecessarily push a bad situation into one much worse.
ofenforcement ofThe following five examples illustrate how law enforcement
untrained in recognizing and responding to ASD can proficers untrained
unnecessarily an escalating
escalating response from a person
person with
with
voke unnecessarily
ASD.

167. DEBBAUDT, supra
supra note 28, at 24. While most people would feel some apprehension in
in an encounter with police, the fear felt by a person with ASD may be
differentiated from the fear aa non-ASD person might feel in aa similar situation.
differentiated
of
Id. A person with ASD fears because she has little or no ability to make sense of
Id.
her, or to predict how her bethe actions of the police or the events surrounding her,
overwhelming
havior relates to the behavior of others, and is helpless to make the overwhelming
Id. However, a non-ASD person recognizes sometorrent of sensory input stop. Id.
thing of the social meaning of an arrest, and therefore feels fear resulting from
from
predicting the social consequences of what will happen next, such as punishment,
Id.
embarrassment, expense, or deprivation of freedom. Id.
supra note 38, at slide 14.
also Brown, supra
168. Id.
Id. at 26; see also
supra note 28, at 24.
169. See DEBBAUDT,
DEBBAUDT, supra
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1.

[Vol. 79
79

Guido Rodriguez

Guido Rodriguez, an eighteen-year-old
autistic man, lost a
eighteen-year-old autistic
kidney
encounter with police. 170
kidney after an encounter
170 He was riding a bicycle on a Sunday
Sunday afternoon
afternoon on a street in his neighborhood,
when
when a patrol officer drove up behind him. 171
171 The officer became suspicious
suspicious when the man looked over his shoulder at her
patrol car and then hopped off the bike and began
began to run away,
pushing the bike. 172
172 Believing
Believing that the man may have stolen
stolen
the bike, she began to slowly follow him down the street, using
1 73
the car's
loudspeaker to order him to stop.
car's loudspeaker
stop.173
When he remounted
mounted his bicycle and continued
continued to ride away, she called for
74 When a secassistance, thinking he was "possibly on drugs."
drugs."1174
ond officer approached the man, he jumped
jumped off the bike and ran
away. 175 As the man ran, the second
second officer heard him
"yell[ing] statements
statements that
that were
were incoherent
incoherent .and
and unintelligi"yell[ing]
176 A third officer joined the pursuit,
ble."
following
the man up
ble."176
officer
177
l77
officers
the driveway of a home and into the garage.
The officers
forcibly removed the man from the garage, continuing to yell at
at
17 8
lawn. 178
him as they wrestled him down on the front
front lawn.
Although neighbors and the woman living in the house
tried to explain that the man had a disability and could not
not
understand
commands, 17 9 it
understand the officers' commands,179
it was not until the
man's father arrived that officers understood that the bicycle
he had been riding was his own, that the garage he had entered
was that of his home, and that the woman living inside
inside the
180
house was his mother. 180
The man had run away from the officers because
because they were strangers to him and his autism limited
170..
170.· Irvine
Irvine to
to Settle Suit
Suit over Arrest
Arrest of Autistic Man,
Man, L.A. TIMES
TIMES (Orange
County
County ed.), Apr. 6, 1986, at Metro-5 [hereinafter
[hereinafter Irvine
Irvine to Settle Suit].
171. His attorney
171.
attorney stated that the man was "legally and lawfully riding" the biProbe Seizure of
Pinsky & Bobbie
Bobbie Rodriguez,
Rodriguez, Irvine
Irvine to Probe
of Youth; Aucycle. Mark I. Pinsky
tism Victim,
Victim, 18,
18, Lost Kidney after
after Tussle with Officers, L.A. TIMES, Apr. 27, 1985,
also DEBBAUDT, supra
supra note 28, at 13.
at Metro-i;
Metro-I; see also
supra note 28, at 13.
172. DEBBAUDT,
DEBBAUDT, supra
173. Id.
173.
Id.
supra note 170.
174. Irvine
Irvine to Settle Suit, supra
supra note 28, at 13.
175. DEBBAUDT, supra
13.
supra note 171.
176. Pinsky
Pinsky &
& Rodriguez, supra
171.
supra note 28, at 13.
177. DEBBAUDT, supra
13.
Rodriguez, supra
supra note 171 (relating that his attorney described
178. Pinsky & Rodriguez,
described
the take-down
"brutal," and carried
take-down as ''brutal,''
carried out with "anger and rage" at the man's
man's
failure to obey
commands); Irvine
Suit, supra
obey the officer's commands);
Irvine to Settle Suit,
supra note 170.
Irvine to Settle Suit,
Suit, supra
179. Irvine
supra note 170.
Id.
180. Id.

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his ability to understand the social role expected
expected in an encoun18 1 His flight was an attempt to get
ter with police. 181
to a "safe
attempt
"safe
182
haven
accepted."
haven where
where he was understood
understood and accepted."182
In the process of the arrest, the man suffered
suffered serious injury
injury to his kidney
183
days later.
it two days
and underwent surgery to remove it
later. 183
2.

Brian Bates

wandered
Brian Bates, a seventeen-year-old
seventeen-year-old boy with ASD, wandered
two miles from his home and noticed some kittens in a cage in
in
184
garage.184 He walked over to the kittens and began
began
an open garage.
babbling
babbling at them. 185 When the homeowner
homeowner raised his voice to
ask the boy to leave, Bates shrank away from him and began
began
screaming out the names
making growling animal noises and screaming
86
of professional
homeowner managed
professional wrestlers.1186
The homeowner
managed to walk
walk
Bates off his property
property and called police to report the incident as
adjacent wooded lot. 187 The call was disBates ran off into an adjacent
188
patched as a "suspicious person" call.
call. 188
A motorcycle
officer
who
had
been
working radar patrol
motorcycle
patrol
nearby quickly
responded,
and a neighbor
incident
quickly
neighbor who saw the incident
told him: "I don't know if this boy is on drugs or drunk but he is
woods." 189 The
real weird and just went running through
through the woods."189
officer soon located
located Bates jumping
jumping up and down in the road and
asked the boy to come talk with him. 190 Bates
Bates came to the officer and attempted to sit sideways on the police motorcycle, but
but

181.
181. DEBBAUDT, supra
supra note 28, at 14.
182.
182. Id.
Id.
183.
183. Pinsky && Rodriguez, supra
supra note 171. The city agreed to an out-of-court
out-of-court
settlement that would pay the man's family between
between $200,000 and $400,000 for
the
supra note 170. The pothe damages
damages suffered in the
the arrest.
arrest. Irvine
Irvine to Settle Suit,
Suit, supra
lice department
department also initiated a program-Operation
program-Operation Mainstream-which
Mainstream-which introduced children with developmental disabilities to law enforcement
enforcement officers, to help
the children learn to not fear police officers and how to behave
behave on meeting one,
and to help the officers develop skills and sensitivity to deal
deal with developmentally
developmentally
disabled people. DEBBAUDT, supra
It is not clear whether this prosupra note 28, at 14. It
gram is still in effect in Irvine.
184.
Chesterfield County, 216 F.3d 367, 369 (4th Cir.
184. Bates ex rel.
reI. Johns v. Chesterfield
2000).
185. Id.
Id.
186. Id.
Id.
187. Id.
Id.
188.
rel. Johns v. Chesterfield
Chesterfield County, 216 F.3d
188. Brief of Appellee
Appellee at 5, Bates
Bates ex reI.
F.3d
367 (4th Cir. 2000) (No. 99-1663), 1999 WL
WL 33613067.
189. Id. at 6.
190. Id.
Id.

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pushed the boy
boy off. 191 Bates shoved
shoved the officer
officer in
in rethe officer pushed
19 2 The officer
turn and walked
walked away.
away.192
officer ran after
after and tried
tried to
turn
193 As
grab
grab him, but
but Bates
Bates fought
fought the officer
officer off.
off. 193
As the struggle
struggle
escalated, Bates
Bates scratched, bit, kicked,
kicked, and
and spit at the
the offiescalated,
194 Subsequently,
Subsequently, three
three other
other law enforcement
enforcement officers
officers arcer. 194
rived on the scene and began
began to assist. 19
1955 The officers
officers wrestled
wrestled
196
Bates
to
the
ground
and
handcuffed
him.
196
During
this
strughandcuffed
the ground
Bates
197
Bates kicked
kicked at the officers. 197 Two officers
officers required medigle, Bates
treatment for their injuries. 19
1988 Bates
Bates suffered
suffered cuts, bruises,
cal treatment
199
and scrapes. 199

3.
3.

Calvin
Calvin Champion
Champion

Calvin
Calvin Champion,
Champion, a thirty-two-year-old
thirty-two-year-old autistic man who
required
because he was non-responsive
non-responsive and unrequired full-time care because
00
errand. 22oo
an errand.
on an
accompanied his new caregiver
caregiver on
able to speak, accompanied
exhibit a ''behavior,''
"behavior," a
Champion began
As they left a store, Champion
began to exhibit
tantrum-like
disturbance at having
having to leave a place of interest
interest
tantrum-like disturbance
2
0
1
201
to him.
The caregiver
caregiver failed to seatbelt Champion, and he
began thrashing
thrashing around in her minivan, hitting himself in the
face and biting himself, and in the process also striking the
caregiver's
three-year-old son on the head
head and hands. 202 The
caregiver's three-year-old
got
caregiver
caregiver stopped the van, and both she and Champion got

191.
Id. at 7.
191. Id.
Id.
192.
192. Id.
rel. Johns
193. Brief of Appellant
193.
Appellant at 7-8, Bates ex reI.
Johns v. Chesterfield County, 216
216
F.3d 367 (4th Cir. 2000) (No. 99-1663),
99-1663), 1999 WL 33613065.
rel. Johns v. Chesterfield
194. Bates ex reI.
Chesterfield County, 216 F.3d 367, 369 (4th Cir.
2000).
2000).
195.
Id. at 369-70.
195. Id.
196. Id.
Id. at 370.
197.
Id.
197. Id.
to the
the
for diseases
diseases due
due to
Id. (explaining that one officer
198.
198. Id.
officer had to be tested for
injury).
bites and scratches
scratches he suffered,
suffered, and another officer was treated
treated for a groin injury).
discrimination based
199. Id. Bates brought claims against the local police for discrimination
Affirming the
the
Amendment rights. Mfirming
on his disability and for violation of his Fourth Amendment
Bates's behavbehavfound that
that Bates's
Court of
of Appeals
Appeals found
Circuit Court
lower court's
court's dismissal, the 4th Circuit
ior gave the officer
officer a reasonable suspicion to believe that "criminal activity [was]
of Ap(1968)). The Court of
Terry v. Ohio, 392 U.S. 1, 30 (1968».
afoot." Id.
Id. at 371 (quoting Terry
afoot."
peals also found that the force used by the officers was justified because the boy
arrest." Id.
was "resisting arrest."
Id. at 371-72.
893, 896 (6th Cir. 2004).
200. Champion v. Outlook Nashville, Inc., 380 F. 3d 893,896
demonstrate obsessional interests
201. Id. Recall that a person with ASD may demonstrate
201.
and is unable to adapt well to changes in routine or location. See NAT'L AUTISTIC
SoC'Y, supra
supra note 30, at 2.
SOC'y,
Champion, 380 F.3d at 896.
202. Champion,
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20 3 Champion
out. 203
grabbed
grabbed her hand and began rubbing
rubbing it
it all
over his head, an action that had helped calm him in the
2044 The new caregiver
past. 20
caregiver did not understand this response,
and, frightened
frightened by the behavior, locked herself and her son in
in
20 5
the van, leaving Champion outside.
outside. 2os
customers at the
Arriving in response to calls from other customers
store, 20 6 a police officer approached
approached the caregiver
caregiver and asked
store,206
caregiver told the police officer
about the situation. 207 The caregiver
officer that
Champion
Champion was mentally ill, but she did not mention
mention that he
20 8 The police officer
was non-responsive
non-responsive and unable to speak. 208
police officer
approached Champion, who was biting and hitting himself, and
approached
2099 Chamasked him to tell his name and why he was so upset. 20
ofpion did not respond but instead began walking
walking toward
toward the of2 10 When Champion did not comply with an order to stop
ficer. 2lO
Champion
comply
his advance and grabbed the officer's shirt, the officer
officer applied a
"short burst
of pepper
pepper spray
spray to
Champion's face."21I
face." 2 11 Champion
"short
burst of
to Champion's
Champion
then walked
walked into the store, and the officer
officer followed, ordering
2 12 Champion then turned toward the exit and
him to leave. 212
turned toward
2 13 The two
once outside the store, another
another officer approached. 213
together tried to arrest him, but they were unsuccessful
officers together
14
in getting
getting him to comply with their instructions. 2214
When a
third officer
arrived,
they
"decided
to
take
Champion
officer
Champion to the
16
'2 15 Placed face down, he began to struggle and kick. 2216
ground.
ground."21S
and kick.
Several
Several witnesses said that during this time, the officers asserted control by "laying on top of'
of' Champion and by continuspray. 2 17 Mter
After some minutes, Champion
ing to use pepper spray.217
Champion began to vomit; when the paramedics arrived, he had no pulse

203.
203.

Id.
[d.

204.

Id.
[d.
Id.
[d.

205.

206.

DEBBAUDT,
supra note 28, at 25 ("The call was dispatched
dispatched as a domestic
DEBBAUDT, supra
disturbance involving a man with mental retardation.").
disturbance
207.
893, 896 (6th Cir. 2004).
207. Champion
Champion v. Outlook Nashville, Inc., 380 F. 3d 893,896
208.
Id.
208. [d.
209. [d.
Id.
210.
211.
211.
at this
212.
213.
214.
215.
216.
217.

Id.
[d.
Id. at 896-97. The officer
lot
[d.
officer had retreated fifty feet through
through the parking
parking lot
Id. at 896.
time. [d.
Id. at 897.
[d.
897.
Id.
[d.
Id.
[d.
Id.
[d.
Id.
[d.
Id. at 898.
[d.
898.

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2 18
and was in cardiac arrest. 218 Medical
Medical personnel
personnel were unable to
19
2
219
him.
revive

4.

Raymond
Raymond Mitchell

twenty-one-year-old auIn July 2006, Raymond Mitchell, a twenty-one-year-old
tistic man, died in the bedroom
bedroom of his home after his mother
mother
called police
police to get help controlling
controlling her son's tantrum. 220
220 "He's
22 1
somebody's windshield,
trying to get outside to break
break somebody's
windshield,"221
his
explained
mother, Wanda
Wanda Mitchell, told the dispatcher, as she explained
22
that her son was autistic. 2222
She also told the two sheriffs
sheriffs
deputies when they arrived that her son was autistic,223
autistic, 2 23 and
' 224 Raymond was
that she was "afraid he might hurt himself.
himself."224
Raymond was
frightened
frightened when he saw the officers come into the house, and
shouting "No police. I'm
he hid himself in a bedroom closet, shouting
I'm
22 5
OK."225
OK."
Accompanied
Accompanied by the deputies, the mother
mother was able to coax
coax
2 26
on the
sit on
to sit
him
convinced
and
closet
the
her son from
him to
the bed.
bed. 226
When Raymond reached
reached for a shirt from his mother, the two
deputies
deputies "jumped on him and told [his mother] to leave
leave the

218. Id.
Id. at 897.
for
Id. at 898. The plaintiffs filed § 1983
219. Id.
1983 claims against defendant officers
officers for
Amendment rights to be free from use of excessive
Champion's Fourth Amendment
violation of Champion's
alleging qualified
force, and the defendants filed a motion for summary judgment, alleging
for
Id. In
In affIrming
affirming the lower court's denial of defendants'
immunity. Id.
defendants' motion
motion for
in the light
summary
summary judgment,
judgment, the 6th Circuit ruled that the evidence presented in
light
most favorable to the plaintiff demonstrated
demonstrated that the officers had "unreasonably
applied excessive force" to Champion
Champion in violation
violation of his "clearly established
rights." Id.
Id. at 904-05.
Deadly EncounEncoun220. Douglas Quan, Meghan Lewit &
Kimberly Trone, Sheriff:
& Kimberly
Sheriff' Deadly
22, 2006, at BI.
B1.
ter Provoked,
Provoked, PRESS-ENTERPRISE
PRESS-ENTERPRISE (Riverside, Cal.), July 22,2006,
221.
221. Id.
Id. Although he had once broken a neighbor's
neighbor's windshield during a tantrum, Raymond was not outside
outside at the time
time of this episode. Id.
Id.
222. Id.
Id.
223. Id.
Id. There was also a sticker near
near the front door alerting
alerting visitors that a
& Quan, supra
resident of the house had autism. Max &
supra note
note 64. An example of
of
America Initiative
Initiative Keeps
such a sticker is found at NewsBrief: Autism
Autism Society of America
(anFamilies
Sound," AUTISM SPECTRUM Q., Spring
Spring 2006, at 50, 50 (an.
Families "Safe and Sound,"
campaign to distribute
nouncing campaign
distribute "Safe and Sound" decals to alert safety
safety personnel
of the presence of an autistic person).
to
224. Quan, Lewit & Trone,
Trone, supra
supra note 220, at B1.
BI. Deputies had
had been
been called to
in May, and when they arrived
the house in
arrived with the paramedics,
paramedics, they "spoke calmly
with
with [her son] and were able to transport him to the hospital." Id.
Id.
& Quan, supra
supra note 64, at Al.
225. Max &
AI. Family members explain
explain that the
wanted
man was "unable to carry on a conversation
conversation but could express when he wanted
supra note 220, at B1.
things." Quan, Lewit
Lewit &
& Trone, supra
BI.
Al.
226. Max && Quan, supra
supra note
note 64, at AI.
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22 7
room,"
fight. ' 22 8 Shortly thereafthereafroom,"227
and "they went right into aa fight."228
ter,
"several more
more deputies"
deputies" entered
entered the
the bedroom
assist and
and
ter, "several
bedroom to assist
2299 He died aa short time
"dove on top of'
of' the young man.
man. 22

later.
230
later.230

5.

Brother
Cody Brother

On
the police
were Peggy
Peggy Brother's
last
On September
September 8, 2006, the
police were
Brother's last
23 1 Her fifteen-year-old son, Cody, who
231
resort.
had
autism
and
resort.
Her fifteen-year-old son, Cody, who had autism and
several
other physical
physical and mental disabilities,
disabilities, was
was now homehomeseveral other
32
church. 2232
school and
peers at
been bullied
having been
bound, having
bound,
bullied by
by peers
at school
and church.
Cody was too
too young to
to qualify for
for Medicaid-paid
services,
Cody
Medicaid-paid services,
which could help him learn to manage his emotions and to participate in society. 233 Counselors at the regional mental health
ticipate
health
center instructed
instructed her
to "call
"call 911 when
when his
his anger
escalated, to
to
center
her to
anger escalated,
home." 2 34
group home."234
in aa group
for placement
case for
build aa case
help build
help
placement in
On this day, Cody was upset that his mother had denied
him something
something he wanted;
wanted; he
he grabbed
grabbed a mop as
as his tantrum
tantrum
him
23 5
2 36
spun out of
of control.
En
spun
controI.235
His mother called the police. 236
En
Quan, Lewit & Trone, supra
supra note 220, at B1.
B1.
(quoting Riverside County Sheriff
Sheriff Bob Doyle).
Doyle). "They were basically
basically
supra note
trying to physically restrain
restrain him with their hands." Max &
& Quan, supra
note 64,
Al.
at AI.
& Trone, supra
BI. The sheriff later explained
explained
229. Quan, Lewit &
supra note 220, at B1.
that a third deputy arrived to assist in handcuffing the young man, but
but the fourth
Id.
and fifth deputies
deputies came to "provide medical
medical aid and to perform CPR." [d.
Id. It
It is not clear from publicly available
230. [d.
available sources whether Raymond
Raymond died
asphyxia aspositional asphyxia
of injuries resulting from the bedroom altercation or from positional
handcuffed and placed in
supra text
text
sociated with being handcuffed
in a face-down
face-down position. See supra
accompanying note 66
in a
accompanying
66 (discussing the dangers
dangers of placing a person with ASD in
face-down
toxicology reports
reports on Mitchell's
Mitchell's death have
face-down position). The coroner's and toxicology
been
supra note 67, at B1.
Bi. In
been placed on hold by the sheriffs office. Burge, supra
In its response to the lawsuit, sheriffs officials claim
claim that Mitchell's death was the result
result
of "excited delirium syndrome,"
controversial condition that apparently "almost
"almost
syndrome," a controversial
always involve[s]
involvers] police." Id.
[d.
Suit Filed
Filed over Police
231. See Melissa DeLoach,
DeLoach, Suit
Police Treatment
Treatment of Autistic Teen,
SPRINGFIELD NEWS-LEADER (Springfield, Mo.), Sept. 26, 2006, at 1A
1A [hereinafter
[hereinafter
SPRINGFIELD
DeLoach, Suit Filed].
Filed].
232. Sarah Overstreet, Seemingly Simplest of Special
Special Needs Goes Unfilled,
Unfilled,
SPRINGFIELD
lB.
SPRINGFIELD NEWS-LEADER (Springfield, Mo.),
Mo.), Nov. 27, 2005, at IE.
233. Id.
[d.
234. DeLoach, Suit Filed,
Filed, supra
supra note 231, at 1A.
lA. As a result, family members
members
had called police often enough
[knew] many
enough that "the family [knew]
many officers
officers by name."
Id. According
[d.
According to Peggy
Peggy Brother, "Usually, [the officers]
officers] can just talk to him and
and
he'd be OK"
OK." [d.
Id.
235.
Arrest Triggers
Triggers Police
235. Melissa
Melissa DeLoach, Lawsuit over Teenager's
Teenager's Arrest
Police Probe,
Probe,
SPRINGFIELD
[hereinafter
SPRINGFIELD NEWS-LEADER
NEWS-LEADER (Springfield, Mo.), Sept. 27, 2006, at 2B [hereinafter
DeLoach, Lawsuit over Teenager's
Teenager'sArrest].

227.
228.

Id.
[d.

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to the home,
home, the
the officers
officers understood
understood that a child
child was
was "out
"out
route to
' 23 7 By the
where a weapon
weapon had been used.
used."237
the time offiof control where
cers arrived, Peggy Brother
Brother recalls
recalls that
that Cody had
had calmed
calmed down
down
cers
238 The
and "had nothing
nothing in
in his hands."
hands."238
The officers
officers approached
approached
and
2399 When
Cody and attempted
attempted to handcuff
handcuff him. 23
When one
one of the offiCody
2
40
2411 In
cers grabbed Cody by the arms,
arms,240 he physically
In
physically resisted. 24
ensuing struggle, Cody
Cody "str[uck the] officers
officers with his fists
the ensuing
24 2
boots."242
officers shoved Cody
Cody to the
the ground
ground and
The officers
and boots."
punched him repeatedly
repeatedly in the face, neck, and
and head.243
head. 243 One ofpunched
244
elbow and
and knee."
knee."244
ficer suffered injuries to his "right wrist, elbow
Cody required
required surgery
surgery for several
several broken
broken bones and lost the
Cody
24 5
sight in his right eye. 245
D.
D. What These Scenarios
Scenarios Reveal

These unfortunate
unfortunate encounters, like the tragic
tragic events of
of
"better
Paul Childs's death, highlight
highlight three key areas
areas in which
which ''better
"better
training"
enforcement personnel
personnel could lead to ''better
training" for law enforcement
outcomes": communication, recognition
recognition and response, and careencounter with a person with ASD,
giver support. First, in an encounter
communication reaccurate communication
officers do not receive clear, accurate
police officers
Second, offidisability.
individual's
of
the
garding the nature
garding
cers untrained to recognize
recognize signs identifying
identifying ASD are unable to
respond with safe and appropriate
appropriate tactics. Third, overwhelmed
overwhelmed
turncaregivers
caregivers in crisis often have no means for relief besides turning to police for assistance.
The first key problem is poor communication
communication to law enpersonnel of information
forcement personnel
information about the situation, the inunfortunate endividual, and the disability. In many of the unfortunate
counters described
described above, someone tried to alert the law
enforcement officer to the individual's condition, saying he has
enforcement
"special-needs," 24 7 is "mentally
problem," 24 6 has "special-needs,"247
a "mental problem,"246
236.
237.

at 1A.
1A.
Filed,supra
supra note 231, at
DeLoach, Suit Filed,
Arrest, supra
supra note 235, at 2B.
Teenager'sArrest,
Lawsuit over Teenager's
DeLoach, Lawsuit
Id.
238. Id.
Id.
239. Id.
1A.
Filed, supra
supra note 231, at 1A.
240. DeLoach, Suit Filed,
supranote 235, at 2B.
Arrest, supra
Teenager'sArrest,
Lawsuit over Teenager's
241. DeLoach, Lawsuit
Id. The officers also claimed that the boy "attempted to gain control of one
242. Id.
officer's pistol and knife." Id.
Id.
243. Id.
244. Id.
at 1A.
1A.
supra note 231, at
245. DeLoach, Suit Filed,
Filed, supra
B1.
13, at Bl.
Recounts Slaying,
Slaying, supra
246. Kelly, Cop Recounts
supra note 13,
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4

ill,"2 8 or
or "has
"has aa disability."
disability." 249 But these
these words
words were
were not
ill,"248
not specific
enough
to
signal
to
the
officer
that
a
different
approach
or
cific enough to signal
officer that a
approach or
more subtle
subtle tactics
tactics may
may have
have been
been required.
required. Indeed,
Indeed, describing
describing
more
someone as
as mentally
mentally ill
ill may
may suggest
suggest tactics,
tactics, concerns, and
someone
fears to
to the
the mind
mind of
of an
an officer
officer very
very different
different from
from the ones
ones apapfears
2 50 Furpropriate
to
a
situation
involving
a
person
with
ASD.
propriate to a situation involving a
ASD.250 Furthermore, in
in the
the haste
haste to
to convey
convey information
information quickly,
quickly, the dethermore,
scriptions provided
provided are
are subject
subject to
to generalization:
generalization: the call from
scriptions
the kitten-owner
kitten-owner that
that described
described Brian
Brian Bates
Bates as
as having
having "some"somethe
thing
obviously
wrong
with
him"
was
passed
along
to
the
police
thing obviously wrong with him" was
2 5 1 and
as
a
"suspicious
person"
call,
the
as a "suspicious person" call,251
mop handle in Cody
weapon. '2 52
"a weapon."252
became "a
hands became
Brother's hands
Brother's
Another aspect
aspect of
of the
the communication
communication problem
problem amounts
amounts to
to
Another
who is
is heard
heard by
by police
police officers
officers during
during the
the encounter.
encounter. As illusilluswho
trated in
in the
the Wrongful
Wrongful Arrest cases of Jackson
Jackson and Lewis, law
trated
enforcement
officers appear
appear to
to hear
and internalize
internalize the opinenforcement officers
hear and
ions of
of third-party
third-party witnesses
witnesses over
over the
explanations offered
offered by
by
ions
the explanations
people who
who know
know the
the person
with aa disability
disability or the disabled
people
person with
5 3 Vital
person himself.
himself.2253
explanations to police or dispatchers
person
Vital explanations
may
be
interrupted
or
discarded as
as irrelevant
the heat of the
may be interrupted or discarded
irrelevant in the

B1.
247. Spencer, Not Prepared,
Prepared, supra
supra note 3,
3, at B1.
248. Champion
Inc., 380
380 F.
248.
Champion v.
v. Outlook
Outlook Nashville,
Nashville, Inc.,
F. 3d 893,
893, 896
896 (6th Cir. 2004).
249. Irvine
supra note 170,
249.
Irvine to Settle
Settle Suit,
Suit, supra
170, at
at Metro-5.
Metro-5. Only Mrs. Mitchell used
the
the word
word "autism" to
to describe
describe her
her son's condition, but
but even with
with this information,
the
the special tactics necessary
necessary to deal
the deputies
deputies were
were unaware
unaware or
or mindless
mindless of
of the
with
person with
supra note 220.
with aa person
with ASD.
ASD. Quan, Lewit, &
& Trone, supra
250.
DEBBAUDT, supra
250. DEBBAUDT,
supra note 28, at 23. Modell & Cropp,
Cropp, supra
supra note 51, at 61.
Modell
that "police
Modell and
and Cropp
Cropp observe
observe that
"police officers
officers tend
tend to
to develop attitudes
attitudes of apprehension,
and anxiety
anxiety based
based upon their perception
perception that
that [the
[the mentally
mentally ill]
ill)
hension, fear,
fear, and
population
a[s] paranoid
paranoid
population is
is primarily
primarily represented
represented by those
those with illnesses
illnesses such
such a[s)
schizophrenia."
schizophrenia." Modell
Modell & Cropp,
Cropp, supra
supra note
note 51,
51, at 61.
251.
251. Brief
Brief of
of Appellee,
Appellee, supra
supra note
note 188,
188, at 4-5.
252.
252. DeLoach,
DeLoach, Lawsuit
Lawsuit over
over Teenager's
Teenager's Arrest,
Arrest, supra
supra note 235,
235, at 2B.
2B. Note
Note
that
that these
these generalizations
generalizations are
are not
not inaccurate
inaccurate in themselves, but to
to an
an officer
officer who
is
the scene
scene without
without knowing
knowing the full
full situation, the descriptions
descriptions paint
paint
is arriving
arriving on
on the
aa different
different mental
mental picture
picture from the
the one
one originally
originally related.
related.
253.
253. See
See also
also Bates
Bates ex
ex rel.
rel. Johns
Johns v.
v. Chesterfield
Chesterfield County,
County, 216 F.3d
F.3d 367,
367, 369
369 (4th
(4th
Cir.
(A neighbor
neighbor who
who had witnessed
witnessed the
the kitten
kitten encounter,
encounter, but
but who had
had not
not
Cir. 2000)
2000) (A
spoken
spoken to
to Bates,
Bates, described
described Bates
Bates to
to the
the officer:
officer: "I don't
don't know
know ifif this
this boy
boy is
is on
on
drugs
drugs or
or drunk
drunk but
but he
he is
is acting
acting weird
weird or
or crazy."
crazy." Id.
Id. However, the officer
officer did not
not
speak
speak to
to the
the kitten
kitten owner,
owner, who
who would
would have
have been
been better
better able
able to
to describe
describe the
the kind
kind of
of
behavior
the inability
inability to
to respond
respond apbehavior Bates
Bates was
was demonstrating,
demonstrating, in
in other
other words,
words, the
propriately
Irpropriately to
to questions
questions and
and repeating
repeating the
the names
names of
of professional
professional wrestlers.);
wrestlers.); Irvine
to Settle
Settle Suit,
Suit, supra
supra note
note 170,
170, at
at Metro-5
Metro-5 (police
(police ignored
ignored Guido
Guido Rodriguez's
Rodriguez's
vine to
mother
that Rodriguez
Rodriguez could
could not
not understand
understand the
the offioffimother and
and neighbors
neighbors explanations
explanations that
cer's
cer's commands).
commands).

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situation. 2254
Of course, the nature of ASD itself may leave the
individual utterly unable to identify himself or to express
express what
what
is wrong. 255
The second key problem
problem is that officers
officers are unprepared
unprepared to
to
contacted
recognize and respond appropriately to signs that the contacted
individual has ASD. Because
Because the individual
individual may be unable to
communicate
effectively with the officer
communicate effectively
officer and may not even understand why the officer is there, a person with ASD is particularly at risk for experiencing discrimination
discrimination in the form of a
Wrongful
Accommodate and for the subWrongful Arrest or a Failure to Accommodate
sequent involvement
involvement in an Exigent Circumstance. For example, the Bates court observed
observed that "in the midst of a rapidly
rapidly escalating
situation,
the
officers
cannot
be
faulted
for
failing to
calating
cannot
to
'
2
56
diagnose
autism.
However,
diagnose Bates's
Bates's autism."256
However, the case briefs suggest
suggest
that at the time the officer first encountered
encountered Bates, there
there was
no "rapidly escalating situation."257
situation."2 57 Instead, Bates "jumped up
25 8
to commands.
unresponsive to
and down in the road," and was unresponsive
commands. 258
Furthermore,
"[Bates's] eyes
eyes
Furthermore, according
according to the Appellant's brief, "[Bates's]
were not bloodshot, his breath did not smell, he did not smell
smell
like marijuana, and he did not exhibit any other signs of intoxication." 25 9 The absence of those indicators coupled
coupled with the
cation."259
unusual behavior
behavior could have
have suggested
suggested to the officer-had
officer-had he
of
been trained to recognize
recognize the signs-that his initial suspicion of
intoxication was incorrect
incorrect and that another explanation
explanation for the
behavior, such as ASD, might require an alternative
alternative approach
approach
60
to the situation. 226o
Certainly, an ASD-accommodating
ASD-accommodating ap1
motorcycle. 26
the motorcycle.
proach would not include shoving the boy off the
261
officers encountering
encountering Champion and Mitchell
Similarly, if the officers
had recognized the signs of ASD, they might
might have avoided the
risk of death associated
with
placing
a
person
with ASD on his
associated

254.
Tape, supra
supra note 9, at Al (explaining that dispatcher
dispatcher
254. See, e.g., Kelly, 911 Tape,
twice
twice cut off caller
caller when
when she tried to explain her brother's disability).
255. See Champion
Champion v. Outlook
Outlook Nashville, Inc., 380
380 F. 3d 893, 896 (6th Cir.
2004)
(describing Champion as nonverbal
2004) (describing
nonverbal and nonresponsive).
Bates, 216 F.3d at 372.
256. Bates,
372.
supranote 188, at 6-7.
257. Brief
Brief of Appellee, supra
Id.
258. Id.
Id. at 25.
259. Id.
260. See
DAvIS &
& SCHUNICK,
SCHUNICK, supra
supra note
27, at
at 66-67
260.
See DAVIS
note 27,
6tH>7 (distinguishing
(distinguishing ASD
ASD beintent).
haviors from intoxication or acts having criminal intent).
261. Brief of Appellee,
Appellee, supra
supra note 188, at 7.
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367

262
stomach 262
outstomach
and could have avoided the encounters' tragic out·
comes.
The third key problem is that caregivers in crisis often
often
The
turn first to police for relief that police officers are ill-equipped
to provide. The presence of aa person with ASD places immense
263
stresses on a household. 263
The scenes described above make
adolescence
clear that as children diagnosed with ASD reach adolescence
overwhelmed
and adulthood, many caregivers find themselves overwhelmed
2 64
in moments of crisis by the person's size and strength. 264
As
with many people facing a situation that is out of control, the
enforcement for help. Unfortucaregivers often call on law enforcement
nately, many law enforcement officers are not properly
equipped, either by training or temperament, to give the kind
2 65 Clearly,
of support that is needed. 265
in order to preserve
preserve the
rights of people with ASD in encounters
encounters with law enforcement
enforcement
officers, their special needs require improved communication,
communication,
response
response and recognition, and caregiver
caregiver support.

262. See
262.
See DEBBAUDT, supra
supra note 28, at 27 ("Never place a person with autism
on his or her stomach.");
supra note 66 and accompanying
stomach."); see also
also supra
accompanying text.
263.
in Children
Children and
Parents: Unique
Unique ConCon263. See, e.g., Sheila Jennings,
Jennings, Autism in
and Parents:
siderations
siderations for
for Family
Family Court
Court Professionals,
Professionals, 43 FAM. CT. REV. 582 (2005) (describing extremely
extremely high rate of divorce among parents with an autistic child).
264.
Consider the
the situations
situations with Raymond
264. Consider
Raymond Mitchell and Cody Brother. Recall
that
that aa crisis
crisis may
may be unpredictable
unpredictable and can arise from many
many sources, including
including
frustration,
comprehend a situation, the need to satisfy an obsession,
frustration, inability
inability to comprehend
overwhelming
change in routine or suroverwhelming sensory stimulus, illness, or a sudden
sudden change
roundings.
roundings. Some crises have
have no observable
observable cause. See, e.g., DEBBAUDT,
DEBBAUDT, supra
supra
note
28, at
23; see
National Center for Mental
Health and Juvenile
Juvenile Justice,
note 28,
at 23;
see also
also National
Mental Health
Blueprint for
TreatBlueprint
for Change:
Change: A Comprehensive
Comprehensive Model for
for the Identification
Identification and Treatment
Youth with
with Mental
Health Needs in
in Contact
Contact with the Juvenile
Justice Sysof Youth
Mental Health
Juvenile Justice
ment of
tem,
Program Description,
Description, http://www.ncmhjj.com/Blueprintlprograms/Colorado.
http://www.ncmhjj.com/Blueprint/programs/Colorado.
tem, Program
shtml Oast
(last visited
("[In 2003, crisis calls involving youth acvisited Sept. 23, 2007) ("[I]n
counted for 14%
19% in
in Jefferson County.") [hereinafcounted
14% of responses
responses in Denver and 19%
Change].
ter Blueprint
Blueprint for
for Change).
265. See,
See, e.g., DeLoach,
DeLoach, Suit Filed,
Filed, supra
supra note
note 231,
231, at Al
Al (quoting Springfield,
Missouri, Police
Police Department
Department criminal
criminal investigation
investigation divisions commander, Steve
Steve
Ijames, "[T)here
"[T]here is
special set
Ijames,
is no
no special
set of
of options
options for what to do when
when officers encounter
encounter
someone both
enforcement and autism
someone
both mentally
mentally disabled and violent.").
violent."). Law
Law enforcement
autism
training specialist
Dennis Debbaudt
Debbaudt notes
training
specialist Dennis
notes that
that even in a peaceful
peaceful resolution to an
an
encounter between
ASD and
encounter
between aa person
person with
with ASD
and law
law enforcement,
enforcement, there
there may be
be additional
to the
If the officer is
tional risks
risks to
the person
person and
and his caregivers.
caregivers. If
is not trained to recognize ASD
nize
ASD and
and has
has no
no resources
resources with
with which
which to understand
understand the situation, the officer
officer
may interpret
interpret the unusual
caregiver must take
may
unusual safety
safety precautions
precautions that
that a caregiver
take to protect
or
tect aa person
person with
with ASD from
from wandering, the
the evidence
evidence of self-inflicted
self-inflicted bruising
bruising or
the
the existence
existence of
of clothing
clothing inappropriate
inappropriate to the
the weather,
weather, as
as signs of
of abuse
abuse or
or neglect.
Dennis Debbaudt
Team: A
glect. Dennis
Debbaudt &
& Matt
Matt Brown,
Brown, The
The Autism
Autism Response
Response Team:
A Concept
Whose
AUTISM SPECTRUM
9-10.
SPECTRUM Q.,
Q., Spring
Spring 2006, at 8,
8,9-10.
Whose Time
Time Has
Has Come,
Come, AUTISM

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SOLUTIONS
III. THE SEARCH FOR SOLUTIONS

The "mindblindness" and behavior
behavior escalation characteristic of ASD, together with the ADA prohibition on disability"better training." Exbased discrimination, justify the call for ''better
make plain
encounters
law
enforcement
unfortunate
amples of unfortunate
enforcement
desperate need for "better outcomes." The next question is
the desperate
how to answer this call and satisfy the need. This Part evaluates and suggests means for achieving
achieving both "better
''better training"
training"
advocated
and ''better
"better outcomes," beginning with the proposal advocated
by Paul Childs's family, "Paul's Law."

Denver's Response
A. The City of Denver's
Shortly after Paul Childs's death, his family hired Johnnie
Cochran to pursue a claim for excessive force resulting in death
66
against the City of Denver. 2266
The district attorney
attorney declined
declined to
26 7 but in a move that
file charges
against
Officer
Turney,
charges
Officer Turney,267
roused the resentment
police, 26 8 the city's Manager
Manager
resentment of the city police,268
of Safety suspended
for
suspended the officer for ten months without pay for
not
making numerous tactical
tactical errors at the scene, including not
"shut[ting] the
screen door
in front
front of
of the home and
"shut[ting]
the security
security screen
door in
269
away."
back[ing]
back[ing] away."269
266. Johnnie
Johnnie Cochran
Case, THE DENVER
Cochran Meets with Mayor
Mayor over Paul
Paul Childs
Childs Case,
CHANNEL,
http://www.thedenverchannel.com/news/4081046/detail.
CHANNEL, Feb. 17, 2004, http://www.thedenverchannel.comlnews/4081046/detail.
html. Best known
known for his "If the glove doesn't fit, you must acquit" defense of O.J.
Cochran that his name alone was often "enough to
Simpson, it was said of Mr. Cochran
cause the other side to initiate settlement
settlement discussions." Adam Liptak, Obituary,
Obituary,
Johnnie L. Cochran
Cochran Jr.,
Trial Lawyer Defined by O.J.
O.J. Simpson Case,
Case, is Dead
Dead at
Johnnie
Jr., Trial
67, N.Y. TIMES, Mar. 30, 2005, at A15. The Paul Childs case was among the last
67,
last
in which Mr. Cochran personally
personally would
would be involved. The city soon settled
settled the case
case
$1.3 million. Harrison, supra
with the Childs family for a reported
reported $1.3
supra note 10.
267. Kelly, Cop Cleared,
Cleared, supra
supra note 10.
268. Sean Kelly, Angry Cops
Cops Set to Visit Mayor:
Threats of 'Blue
'Blue Flu'
Flu' Follow
Mayor: Threats
Follow
Penalty for
Officer, DENVER POST, Apr. 19, 2004, at Al.
AI.
Penalty
for Officer,
269. Suspension
Suspension Overturned
Overturned in Paul
Paul Childs
CHANNEL,
Childs Shooting,
Shooting, THE DENVER
DENVER CHANNEL,
http://www.thedenverchannel.com/news408l046/detail.html.
It
Jan. 13, 2005, http://www.thedenverchannel.comlnews4081046/detail.html.It
connection with
was the "most severe penalty any Denver officer ha[d]
hard] received in connection
with
a shooting in the past decade." Id.
Id. However, the suspension
suspension would later be overturned by a Civil Service Commission hearing officer, who found that the officer
officer
had violated
violated no policies
policies in the shooting. Id.
Id. The City of Denver appealed this ruling. Jim Kirksey, Cop Penalty
Penalty Case
Case Moves Forward:
Forward: Appeal Heard
Childs
Heard in Childs
Shooting,
Civil SerShooting, DENVER POST, Mar. 17, 2006, at 3B. On April 11, 2007, the Civil
vice Commission
overturned the hearing
Commission overturned
hearing officer's
officer's decision, reinstating Turney's
Officer's Suspension
Suspension Upheld
Upheld in Death
suspension. John C. Ensslin, Officer's
Death of Disabled
Disabled
Teenager, RocKy
MTN. NEWS, Apr. 11,2007,
11, 2007, at 8. The commission
ROCKYMTN.
commission faulted Turney
Teenager,
for failing to take into account
account "the totality of the situation, [and] therefore
therefore disreHeinOnline -- 79 U. Colo. L. Rev. 368 2008

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The City of Denver and its mayor initiated
initiated significant police reforms
reforms to ensure that the city's "use of force policy and
2 70 The preamble to
training indeed reflected
reflected best practices."
practices."270
preamble to
emphasize the police dethe use of force policy was amended
amended to emphasize
partment's "commitment to preserving
preserving life," and the language
of the policy was changed
changed to clarify
clarify that officers would, "when
"when
confrontations." 27 1
practicable, employ tactics to de-escalate
practicable,
de-escalate confrontations."271
department also stepped up its acquisition, distribution,
The department
and training in the use of Tasers and other "less lethal" weapselfcertifying its officers
ons and began
began certifying
officers in Krav Maga, a selfdefense
defense system
system of martial
martial arts. 272 In August of 2003, dispatchers and call-takers
call-takers were trained
trained to deal more effectively
effectively with
with
mentally
ill,
developmentally
special populations, including
the
including
developmentally
2 73
emotional crisis.
disabled, and others experiencing
experiencing emotional
crisis. 273
At the same time, the City began working with the State
Criminal Justice and the Greater
Department
Department of Criminal
Greater Denver Minismental health
to
develop
a
"community-based
terial Alliance
Alliance
in
intervention
intervention program" which would
would assist in "getting people in
crisis the professional
professional help they need instead of placing them
system." 27 4 By October 2003, the city
into the criminal justice
justice system."274
raised its goal of administering
administering Crisis Intervention
Intervention Team
("CIT") training
training to the patrol division from 25% of the force to
to
of
50% of the force, twice the number required by the State
State of
75
December of that year, the mayor
Colorado guidelines. 2275
In December
mayor
announced that the City would require
announced
require all future recruits to
to
would
in
CIT
and
that
the
police
department
have a certificate
certificate
would
hire a "mental health case manager
manager to assist with the expanprogram. 2 7 6
sion of the CIT program."276
sponsoring "Paul's Law"
Meanwhile,
Meanwhile, the legislators sponsoring
planned
planned to meet with the state attorney general
general and other law
27
7
enforcement officials. 277 The resolution mandating special
enforcement
special
.... Id.
Id. During the continude-escalate [his] force ...."
gard[ing] the opportunity to de-escalate
ing appeals
appeals process, Turney
Turney had been
been assigned
assigned to the police
police property
property bureau. He
He
Id.
may appeal the Civil
Civil Service Commission
Commission ruling. Id.
supra note 14.
270. Letter from Gerald R. Whitman, supra
14.
Id.
271. Id.
271.
valuId. However, while Tasers and martial arts training give officers a valu272. Id.
able alternative to employing
employing lethal force, they are
are not necessarily
necessarily helpful when
when
de-escalationof force.
the tactical situation calls for de-escalation
273.
Id.
273. Id.
274. Id.
Id.
275. Id.
Id.
276. Id.
Id.
supra note 2.
277. See Gutierrez,
Gutierrez, supra
2.

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training
enforcement officers regarding encounters
encounters
training for all law enforcement
with developmentally
developmentally disabled persons was laid aside, however,
when the parties involved agreed that the expanded crisis intervention team training satisfied
satisfied the purposes
tervention
purposes of "Paul's
Law."278
police and sheriffs' associations
promised to
associations promised
Law." 278 State police
27 9 and basic crisismake crisis-response
training
apriority,
279
a
priority,
crisis-response
management
management and "interaction with special
special populations" princiincluded in the Peace Officers
Officers Standards
Standards and Trainples were included
ing ("POST") Board's Basic
Basic Academic Training
Training for all new law
280 Additionally, the state legenforcement officers
enforcement
officers in the state. 280
islature revised a statute in the summer
summer of 2004 to allow a pordischarging county
tion of the fees received for committing and discharging
county
prisoners to be used for training of local law enforcement
enforcement officers, which "may include a crisis intervention
intervention training compo281
mental illness."
nent to meet the needs of offenders
offenders with
with mental
illness."281
B. Insights
Insights for
for ASD Advocates
Childs
The City of Denver's response
response to the death of Paul Childs
and the outcome
outcome of the "Paul's Law" resolution
resolution do not completely satisfy
satisfy the concerns
concerns of people with loved ones with ASD.
However, the city's reforms do touch on each
each of the main areas
communication was addressed
addressed by
of concern. First, the issue of communication
82 Second, getthe specialized
specialized training offered to dispatchers. 2282
ting more officers trained in crisis intervention
intervention and requiring
intervention
new recruits to have received crisis
crisis intervention team certifica2
83
283
tion
increases the likelihood that an officer
tion
increases
officer encountering
encountering a
278. E-mail
E-mail from Michael Breeskin, Legal Counsel
Counsel to Arc of Denver, to author
author
(Oct. 13, 2006, 14:12:39 MST) (on file with author). Neither
Neither legislative
legislative sponsor of
"Paul's Law" responded to my inquiries on the subject.
279. Id.
Id.
280. COLORADO
COLORADO DEPARTMENT
DEPARTMENT OF LAW,
LAW, COLORADO PEACE OFFICER STANDARDS
STANDARDS
AND TRAINING MANUAL
MANUAL 2006, at C-20 to C-21, http://www.ago.state.co.us/post/
http://www.ago.state.co.us/postl
Of[hereinafter POST MANUAL
2006POSTMANUAL.pdf
2006POSTMANUAL.pdf (2006) [hereinafter
MANUAL 2006].
2006]. The Peace
Peace Officer Standards and Training Board was created in
in 1992 by the Colorado General
[peace officer] training programs
programs
Assembly to "approve and revoke the approval
approval of [peace
[such
and
and training academies, and
and to establish reasonable
reasonable standards
standards pertaining to
to [such
24-31-303(1)(a) (2007).
training]." COLO.
COLO. REV. STAT.
STAT. §§ 24-31-303(1)(a)
281.
281. COLO. REV. STAT.
STAT. §§ 30-1-119 (2)(b) (2007).
282. See text accompanying note 273,
273, supra.
supra.
supra. See POST MANuAL
MANUAL 2006, supra
283.
283. See text accompanying
accompanying note
note 271,
271, supra.
supra
officer learning
'The
note 280,
at F-3
(describing student
student law
law enforcement
enforcement officer
note
280, at
F-3 (describing
learning goal:
goal: ''The
'de-escalation of force."'); Blueprint
student will explain the concept
concept of 'de-escalation
Blueprint for Change,
Change,
supra note 264. CIT has addressed
supra
addressed the needs of persons
persons having
having aa mental health
crisis:
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person with
with a mental
mental disability
disability has
has been
been trained
trained in the use
use of
of
person
crisis
crisis de-escalation
de-escalation techniques.
techniques. Finally, the development
development of
of
84 offers the poscommunity-based crisis-intervention
crisis-intervention centers
centers2284
offers
community-based
sibility of effective
effective assistance
assistance to overwhelmed
overwhelmed caregivers.
caregivers.
sibility
While
While these
these solutions
solutions are
are all
all excellent
excellent advances
advances in the
the interaction between law enforcement
enforcement officers
officers and the developteraction
mentally
mentally disabled, they
they do not address the unique needs
needs of
of
Although the dispatchers
dispatchers are
people with ASD specifically. Although
it is not
now trained
trained to better
better handle mental
mental health crisis
crisis calls, it
not
precisely inquiring
clear that
that there
there is any system
system of precisely
inquiring about ASD
ASD
or communicating
communicating that
that information
information to police.
police. As observed
observed in
in
accurate and
described above, conveying
situations described
the real-life
real-life situations
conveying accurate
specific information
information about an individual's autism is of vital imspecific
portance to the safety of both the officers
officers and the individual.285
individual. 285
portance
Furthermore,
Furthermore, the sweeping reforms
reforms apply only in the City
of Denver, not to the whole state of Colorado. For example,
example, the
"community-based crisis
crisis intervention
intervention program"
program" supported in
"community-based
centered in
Department of Justice
part by the State
State Department
Justice would be centered
Denver. 286 As of January
January 2006, the state was still seeking
Denver.286
28 7
funding for statewide
statewide expansion
expansion of the program.
program. 287
Also, by
June 2004, officers
officers from only just over
over 60% of the law enforceenforcecrisis
intervention
ment
ment agencies in the state received
received
intervention team
training.288
training. 288 Crisis intervention
intervention team training requires fortyfive hours of an officer's
officer's time; the cost of increased
increased crisis interestimated in 2004 to be
vention training in Denver alone was estimated
be
289
afford
this
agencies
can
enforcement
Not
all
law
$450,000.289
$450,000.
enforcement
290
fiscal policy.
tight fiscal
voter-mandated tight
expense under Colorado's voter-mandated
policy.290
expense
enforcement
[A]s of June 2004, over 1,250 officers
officers from 46 local law enforcement
agencies had been trained
trained by Colorado's
Colorado's CIT program.
program. Reports from CIT
in transofficers indicate that over 74 percent
percent of CIT calls have resulted in
port to treatment, only 44 percent
percent of responses involving a CIT officer
officer
or
in an arrest, and for over 97 percent of calls, no civilian or
have resulted
resulted in
officer injuries occurred.

Id.
Id.
284.
285.
286.
287.
288.

supranote 274 and accompanying text.
See supra
supra Part II.D..
See discussion, supra
supra.
See text accompanying note 274, supra.
Change, supra
supra note 264.
Blueprint for
Blueprint
for Change,

Id. At that
that time, only forty-six agencies had received CIT training. Id.
Id. In
2006, there were 302 law enforcement agencies in the state. OFFICE OF THE
ATTORNEY
ATTORNEY GENERAL (COLO.), ANNUAL REPORT 20 (2006).
supra note 14.
289. Letter from Gerald R. Whitman, supra
Trainingon the
the Disabled,
Disabled,DENVER POST, July 31,
Cops Need Training
290. See Editorial, Cops
or
Training]. The Taxpayers Bill of Rights, or
[hereinafter Cops
Cops Need Training].
2003, at B6 [hereinafter
in 1992,
1992, imposes strict limits on the
TABOR, implemented by voter initiative in
the
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However, the changes in the POST basic
basic training standards
will eventually
eventually influence
influence the entire state, because
because all law en29 1
POST certified.
forcement
forcement officers are required to be POST
certified. 291
Even with POST certification, however, the exposure of
of
trainees
trainees to the particular
particular needs of persons
persons with ASD is limited.
The Basic Academic Training Program
of
Program requires
requires 546 hours of
training of future law enforcement
enforcement officers, only two hours of
of
which are devoted
devoted to studying "Interaction with Special Populations," through which the student is expected to "understand
the laws protecting
protecting the rights of persons
persons with disabilities in order to serve all individuals
apply. '2 92 The
individuals to whom the law[s]
law[s] apply."292
special
special populations
populations covered
covered "include but are not limited to the
mentally
mentally ill, the elderly
elderly and the physically impaired," persons
with disabilities under the ADA, and persons requiring the aid
29 3
of service animals. 293
Obviously, there is not much time in the
two hours to devote to the unique
unique needs of persons
persons with
294
ASD.294
ASD.
Of greater concern to ASD advocates
advocates is whether
whether Colorado
enforcement training includes
law enforcement
includes ASD as a disability. The
POST "Interaction with Special Populations" module requires
requires
the student
to
identify
and
apply
"state
laws
enacted
to
protect
student
identify
enacted
protect
the rights of persons
persons with disabilities," and specifies provisions
provisions
of the Colorado statutes defining the responsibility of state in29 5 Colorado
stitutions regarding
regarding persons with mental
mental illness. 295
law expressly
expressly declines to apply the federal definition
definition of "devel2
96
disability."
opmental disability."296
Instead, in specifying
specifying the responsibildevelopmental
ity of state institutions
institutions regarding persons
persons with developmental
disabilities, Colorado defines developmental
developmental disability
disability as a
"substantial disability
...attributable
attributable to
or
"substantial
disability ...
to mental
mental retardation
retardation or

amount of revenue
revenue that can be collected
collected or spent by state and local governments.
governments.
See COLO.
COLO. CONST., art. X, §§ 20.
291.
supra note 280, at A-6; see also
291. See POST MANUAL
MANUAL 2006, supra
also COLO. REV. STAT.
16-2.5-102 (2007).
§§ 16-2.5-102
292. See POST MANUAL
supra note 280, at C-20.
MANUAL 2006, supra
293.
Id. at C-20 to C-2!.
C-21.
293. Id.
294. Compare
TrainingPractitioners
Practitioners
Compare COUNCIL
COUNCIL OF STATE GOV'TS
GOV'TS JUSTICE
JUSTICE CTR.,
CTR., Training
and Policymakers
Policymakers and
and Educating
Educating the Community, in
in CRIMINAL
JUSTICE/MENTAL
and
CRIMINAL JUSTICEIMENTAL
HEALTH CONSENSUS
HEALTH
CONSENSUS PROJECT REPORT 204, 213-14 (2002) (recommending
(recommending that
that
training in
in ASD and other neurological disorders be part of twenty-hour in-service
advanced training
emphasizing the need for regular
regular
and forty-hour
forty-hour advanced
training programs;
programs; also emphasizing
refresher training).
295.
295. POST MANUAL
MANUAL 2006, supra
supra note 280, at C-20 (referencing
(referencing COLO. REV.
STAT. §
§ 27-10-102,
27-10-102, 105).
STAT.
296. COLO. REV. STAT.
STAT. §§ 27-10.5-102(11)(a)
27-1O.5-102(11)(a) (2007).
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conditions which include ...
... autism ...
... when such conrelated conditions
intellectual functioning
ditions result in impairment of general intellectual
reor adaptive behavior similar to that of a person with mental re297
tardation." 297
Although the definition expressly mentions autism, the
qualifying conditions which follow are a poor fit for the unique
characteristics of ASD. The statute fails to clarify which
which
characteristics
status-functional
impairment
or
mental
retardationstatus-functional impairment
retardationMost
qualifies an individual for inclusion within the definition. Most
but
individuals with ASD have normal or high intelligence, but
"mindblindness" nevertheless significantly
"mindblindness" nevertheless
significantly impairs their intellectual or adaptive behavior, 298 particularly in the kinds of socially-structured
enforcement officially-structured responses expected by law enforcement
299
Thus, for the purposes of having their needs addressed
cers. 299
by the state-directed
state-directed police training curriculum, many persons
with ASD might not be considered developmentally
developmentally disabled
30 0
30o
because
they
are
not
mentally
retarded.
clear
because
mentally
Without a clear
processing difficulty,
understanding that social and sensory processing
rather than mental retardation, gives rise to the behavioral
impairment associated
associated with ASD, 301 police training contemplated under current Colorado law is unlikely to be effective in
"better outcomes" for encounters
encounters between these peoproducing ''better
police.
ple and police.
enforcement officers'
officers' training, espeTo supplement law enforcement
cially in the area
of
dealing
with
ASD,
volunteers
area
volunteers have made
made a
grassroots
effort
to
get
vital
information
about
ASD
to
local
law
grassroots
302
302
enforcement officers.
enforcement
Without this information
information to help
help officers
of
cers recognize and specifically
specifically respond to the unique needs of
§ 18-6.5-102(3)(d)
in COLO.
297. COLO.
COLO. REV. STAT. §
18-6.5-102(3)(d) (2007) (applying definition in
REV. STAT.
(2007)).
STAT. § 27-10.5-102(11)(a)
27-1O.5-102(1l)(a) (2007».
298. See STROCK, supra
supra note 29, at 25.
299. Recall
Recall the
the behavioral
described by Shields,
299.
behavioral expectations
expectations described
Shields, supra
supra note 160.
300. Very
Very recent
recent research has suggested that because
because traditional measures
measures of
of
intelligence
intelligence depend
depend on functional social
social processing
processing systems,
systems, "intelligence
"intelligence has
has been
been
underestimated"
in persons
underestimated" in
persons with
with ASD.
ASD. Michelle
Michelle Dawson, et.al,
et.al, The Level
Level and NaNature of
SCI. 657, 661
of Autistic Intelligence,
Intelligence, 18
18 PSYCHOL. SCI.
661 (2007). Indeed, when
when intelligence
ligence was
was assessed
assessed using tools that
that did
did not demand functional
functional social processing
processing
systems,
systems, as
as few as
as five percent
percent of persons
persons with
with ASD would have
have scored
scored within
within the
"range
"range of mental retardation."
retardation." Id.
Id. at 659.
659.
301.I. See discussion, supra
30
supra I.B.1.
LB.!.
Society
302. See,
See, e.g.,
e.g., Message
Message from Theresa
Theresa K. Wrangham,
Wrangham, President,
President, Autism Society
of
of Boulder
Boulder County, to members
members (2006) (on file with author) (2006 goal
goal included
included
purchasing
purchasing and
and presenting
presenting to
to Boulder Police a field
field book
book and
and video to educate
educate offiofficers
threatening becers about
about the
the difference
difference between
between ASD behavior
behavior in comparison
comparison to threatening
havior).

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people with ASD, these people remain at risk of a Wrongful Arrest or a Failure
Failure to Accommodate
Accommodate their disability in an encounintervention training
not
ter with police. Additionally, crisis intervention
training is not
guarantee of a safe
a guarantee
safe resolution
resolution in an "exigent circumstance";
recall that one CIT-trained
CIT-trained officer was present at the shooting
3
03 "The CIT officers
of Paul Childs. 303
officers are trained to de-escalate
de-escalate
explained one Denver officer, "[b]ut that
and communicate,"
communicate," explained
doesn't mean they won't be forced to use lethal means to resituation."304
solve a situation."304
1.

What Can Friends and Family of People with ASD
Do?

The outcome of the "Paul's Law" proposal, along with an
an
understanding
understanding of how the ADA does and does not protect the
ASD 30 5 suggests that there are three
rights of people with ASD305
things that friends and family of persons
persons with ASD should do.
First, as far as it is practical, they should encourage
encourage "law enforcement awareness" in the person with ASD by familiarizing
what
the individual with local police officers: who they are, what
their vehicles and uniforms look like, and why it
it is important
important
30 6 They should practice "scripts"
to follow their instructions. 306
practice
and "social stories" with the individual, helping him develop
develop a
3077 Where possirote response
response for use in a contact with police. 30
ble, the script or story should include appropriate
appropriate ways to call
for help in an emergency
emergency and a method by which
which the individual
can inform a police officer
officer about his ASD, either orally or by
3088 Second, caregivers
caregivers and family members
sign or card. 30
members should
make local police aware
aware of the presence of a person with ASD
which
and should consider participating
participating in a local database
database which
Cops Need Training,
303. Cops
Training, supra
supra note 290. Officer Turney was not CIT-trained.
Id.
Id.
1.
304. Simpson && Ingold, supra
supra note 1.
responsibility to protect
discussed in I.C., supra,
305. As discussed
supra, the officer's responsibility
protect the rights
of the disabled individual depends largely on whether the officer
officer is or should have
been aware of the disability or not at the time of the encounter, before any escalation of behavior has taken place.
place.
supra note 28, at 99.
306. DEBBAUDT, supra
of
307.
307. DAVIS && SCHUNICK, supra
supra note 27, at 110-13. A script is a pattern of
what to say or do in a given situation, learned through repetition. A social story is
is
a story-telling description of possible events, suited to the individual's lifestyle,
foreseeable cirrepeated often to familiarize the person with what to expect in foreseeable
repeated
cumstances.
308. Id.
Id. at 99, 101.
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375

alerts law enforcement
enforcement and other first responder
responder personnel
personnel to
characteristic habits of the indiindithe presence, description,
description, and characteristic
30 9
sacrificing some
vidual. 309
The use of such a database, while sacrificing
some
ensure that accurate
information about the
privacy, will help to ensure
accurate information
individual and his ASD
ASD is relayed
during
a crisis. 310 Third,
relayed
members should prepare
prepare a handout or
caregivers and family members
caregivers
or
card describing
describing the individual, along with basic information
information
enforcement
about ASD,
ASD, to aid in quickly explaining
explaining to a law enforcement
officer what to do and what
to
expect
in
a
contact
with
the indiwhat
expect
contact
3 11
311
vidual.
ASD,
Even when
when officers
officers are aware that an individual
individual has ASD,
enforcement
however, they will not know to modify their law enforcement
techniques unless they have been trained in the unique needs
techniques
needs
3
12
and particular
particular dangers faced by persons with ASD.
ASD.312 The
training must promote understanding and attitudes that help
police officers
officers recognize and respond effectively, including opportunities
ASD in positive
portunities to interact with individuals
individuals with ASD
3 13 Parents and friends of persons with ASD can
situations. 313
persons
ASD can
and should create
opportunities for officers to receive this
create more opportunities
ASD-awareness camvital training
training by encouraging community ASD-awareness
paigns, by participating
participating in national advocacy
advocacy organizations,
14
presentations. 3314
ASD-awareness presentations.
and by becoming a trainer in ASD-awareness

309. Id.
39-43; DAVIS
DAVIS &
supra note 27, at 95. The Pensacola,
[d. at 39--43;
& SCHUNICK, supra
Pensacola,
Fla. Police Department
Department "Take Me Home
Home Program" program
program is an example of such
such
a database. See Pensacola
Pensacola Police Dep't, Take
Take Me Home Video, available
available at
http://www.ci.pensacola.fl.us/ppdlpages.asp?pg-id=5551
http://www.cLpensacola.f1.us/ppd/pages.asp?pg_id=5551 (last visited Sept. 24,
2007).
310. Indeed, because of federal privacy regulations
regulations such as the Health Insurance
Educational Rights
ance Portability
Portability and Accountability Act and the Family Educational
Rights Privacy Act, which severely restrict the release
release of personally identifiable medical and
educational
an ASD-response database
created
educational information, the only way
wayan
database can
can be created
is by voluntary participation. Families
of
Families and caregivers must weigh the benefit of
hopefully
hopefully better outcomes
outcomes against
against the price of reduced
reduced privacy. See JOINT STUDY
STUDY
COMMITTEE,
supra note 14, at 6.
COMMITIEE, supra
311. DAVIS &
& SCHUNICK, supra
109-10; DEBBAUDT,
supra note 28,
311.
supra note 27, at 109--10;
DEBBAUDT, supra
at 40-41; see also NAT'L AUTISTIC SOC'y,
SOC'Y, supra
supra note 30, at 14, 18 (describing the
'Autism Alert' card, a wallet-sized guide
guide to ASD
ASD designed to assist people with
ASD in explaining
ASD
explaining the condition).
312. Consider
Consider that Mrs. Mitchell informed the 911 dispatcher that her son was
autistic. Max &
& Quan, supra
supra note 64.
supra note 51,
313. See Modell
Modell && Cropp, supra
51, at 63.
DEBBAUDT, supra
314. DEBBAUDT,
supra note 28, at 113-27.
113-27.
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2.
2.

[Vol.
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79

Legislative
Legislative Solutions
Solutions

In
In Colorado, a state-level
state-level legislative
legislative solution may
may be
be necessary because
because reforms
reforms like
like those
those instituted
instituted following
following Paul
sary
Childs's
Childs's death did not reach the entire
entire state
state and did not
not ensure
ensure
that every
every law enforcement
enforcement officer
officer is made
made aware of the special
special
needs of people with
with ASD. Although
Although the sponsors
sponsors of "Paul's
Law" ultimately
ultimately decided
decided not to present
present the bill to the Colorado
General
General Assembly, other states recently
recently have
have considered
considered similar legislation. In the summer of 2006, the state
state of Delaware
Delaware
recognized
recognized the need for law enforcement
enforcement officer training regarding mental
mental disabilities
disabilities by unanimously
unanimously passing
passing House Bill
Bill
garding
443, which
which required
required specific police "training to assist them in
in
identifying symptoms of mental illness, mental disability
identifying
responding appropriately
appropriately to
and/or physical disability and in responding
to
situations involving
involving persons having a mental illness, mental
3 15
disability, and/or physical
physical disability."
disability."315
similar
At about the same time, a bill in Maine
Maine met a fate similar
Mandatory Trainto "Paul's Law." The bill, "An act to Require Mandatory
Prosecutors Regarding
Enforcement Officers and Prosecutors
ing for Law Enforcement
with
Developmental
Interaction
with
People
Interaction
Developmental Disabilities, Inintroduced to the
Spectrum Disorders," was introduced
cluding Autism Spectrum
legislature in late
legislature
late 2005 by State
State Senator Philip Bartlett at the
request of a constituent
constituent who had a daughter with ASD and had
encountered difficulties
difficulties getting a local prosecutor to under3 16
stand how best to deal with someone with ASD.
ASD.316
The trainMatt
program offered by Matt
ing proposed was based on a training
training program
ASD. 3 17 The
Brown, a federal probation
probation officer
officer whose son has ASD.317
evidenced at its public hearstrong support for the legislation evidenced
ing convinced the director of the state Criminal Justice
Justice Academy to directly implement the training program into the stan3 18
dard curriculum. 318
With most of the purpose of the bill
withdrawn from conaccomplished by this move, the bill was withdrawn
3 19
sideration. 319
Any legislation in Colorado regarding specialized police
training likely would be met with concerns similar to those ex-

315.
316.

1, 2007).
ANN. tit.
tit. 11,
11, §§ 8405 (2006)
(2006) (effective Jan. 1,2007).
DEL. CODE ANN.
E-mail from Philip Bartlett, Maine State Senator, to author (July 12,
with author).
2006, 06:36:49 PDT) (on file with
supra note 38, at slide 2.
317. Brown, supra
supra note 316.
318. E-mail from Philip Barlett, supra
Id.
319. [d.
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pressed
pressed by critics of "Paul's Law." Concerns about financing
20 Another criticism of
the training
training are likely to be paramount. 3320
criticism of
a training law such as "Paul's Law" might be that it
it would
32 1
"second-guess"
officers
in
the
field,
making
ineffective
"second-guess"32I officers in the field, making them ineffective
at their primary responsibility of "uphold[ing] the law and ensafety."32 2 A third major
sur[ing] public safety."322
major objection
objection would be
"coddle" 32 4
or "coddle"324
crime"3 23 or
that such aa law would be "soft on crime"323
wrong-doers. These issues likely would complicate the passage
awareness-training law, so advocates
of an ASD
ASD awareness-training
advocates need to show
325
addresses these concerns. 325
how the desired
desired solution addresses
For example, advocates
advocates can argue that training officers
to
recognize
officers
recognize
communication disabilities and thereby
communication
thereby adjust tactics in the
it reduces
long run results in taxpayer savings, because it
reduces the
risk of defending against
against a heartbreaking
heartbreaking and expensive
26
discrimination claim. 3326
wrongful death or disability discrimination
Advocates can also point out that effective
effective training promotes
promotes the
alleviating officer
mental health of officers, by alleviating
officer fear and anxiety
encouraging a practical balance
and by encouraging
balance between
between threat readi32 7 Finally, advocates
ness and social service. 327
advocates can emphasize
that concerns
concerns about "coddling wrong-doers"
wrong-doers" reflect the misequation of socially-atypical
socially-atypical ASD
criminal
taken equation
ASD behavior with criminal
correction by
wrong-doing, a mistake particularly
particularly susceptible to correction
education. 328

320. See supra
accompanying notes 289-93.
supra text
text accompanying
321.
911 Tape,
Tape, supra
9; see also
also Graham
Graham v.
v. Connor,
U.S.
321. See Kelly,
Kelly, 911
supra note
note 9;
Connor, 490 U.S.
386, 387 (1989)
(1989) (holding that reasonableness
reasonableness of an officer's actions
actions in a situation
situation
"must be judged from the perspective of a reasonable officer on the scene," rather
be judged from the perspective of a reasonable officer on the scene," rather
"must

than with the 20/20 vision of hindsight).
322.
rel. Johns v. Chesterfield
322. Bates
Bates ex reI.
Chesterfield County, 216 F.3d 367, 372 (4th Cir.
2000).
323.
323. See Gutierrez,
Gutierrez, supra
supra note 159.
324. See Simpson &
supra note 1,
1, at 7A.
& Ingold, supra
325.
325. ItIt should
should not be overlooked,
overlooked, however, that the people
people of the State
State of Colorado reserve
reserve to themselves the right to
to legislate
legislate by initiative. COLO. CONST. art
V, § 1(2). A
A direct appeal to the electorate
electorate could achieve the desired legislation,
simultaneously raise ASD awareness.
and simultaneously
326.
that the
City of
settled the
326. Recall
Recall that
the City
of Denver
Denver settled
the Paul Childs
Childs claim
claim for a reported
reported
$1.3 million. Harrison, Settlement Reached,
$1.3
Reached, supra
supra note 10.
327. See Modell
Modell & Cropp, supra
supra note 51,
51, at 62 ("It is critical that
that police stay
for physical
physical threats;
threats; however
however itit is equally
equally important
important to
to balance the
the warprepared for
rior attitude [the mindset
mindset that
that one is in
in aa battle
battle zone] with [the attitude] of
of social
social
service.").
328. Id.
perceptions and attiatti[d. at 63 ("Effective training is one way to address perceptions
tudes, thereby affecting predictable
predictable behavior
behavior to be more consistent with best prac.... .").
).
tices ...
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79

Recognizing the critical
critical need for accurate
accurate information
information
Recognizing
ASD, sensitive
sensitive response
response in
in police
police encounters,
encounters, and imabout ASD,
proved caregiver
caregiver support, ASD advocates
advocates recently
recently advanced
advanced
another approach.
approach. In 2006,
2006, law
law enforcement
enforcement and
and autismanother
awareness experts
experts Dennis
Dennis Debbaudt
Debbaudt and
and Matt
Matt Brown
Brown introawareness
idea of Autism Response
Response Teams
Teams ("ARTs"). These
These
duced the idea
teams would be groups of volunteers
volunteers serving
serving at state
state and local
local
specially tasked
tasked to ensure
ensure that law enforcement
enforcement
levels who are specially
officers have immediate
information and resources
resources
immediate access to information
329 An ART
ASD.329
An ART would:
about ASD.
enforcement and first response
state-certified law enforcement
Develop
Develop state-certified
response
training models with test
test modules to be used
used at roll call,
in-service training
pre-shift, academy,
academy, and in-service
training sessions.
responder] and [criminal justice
Assist and consult
consult [first responder]
system]
system] personnel
personnel either
either on-site or via telephone
telephone or radio,
throughout every
every step of the case.
and remain involved throughout
Develop and disseminate information that adults [with
[with
ASD], family members,
members, educators,
educators, and professional care
ASD],
themselves for an
providers
providers can use to avoid and/or prepare
prepare themselves
emergency, first response,
emergency,
response, or criminal justice
justice contact.
Promote
Promote partnerships
partnerships among those in the law enforcement
enforcement
professions, [persons with ASD, ASD service
service providers],
providers], and
the community at-large.
database alerts. Families
Assist in the creation of 9-1-1 database
volunteering inwhose loved ones wander can participate
participate by volunteering
formation that can be placed in the database so that dispatchers could alert first responders to specialized needs be3 30
scene. 330
fore they arrive on scene.
The need for specialized
specialized response
response teams for incidents
yond the scope of 'normal' police activities has long been
Officers
community. 3 3 1 Officers
enforcement community.331
in the law enforcement
knowledged in
knowledged
a
special
that
indicating
signs
trained first to recognize
recognize
indicating

329.
329.

beacare
rere-

supra note 265.
Debbaudt & Brown, supra
Id.
[d.
331. Jarrod J. Smith, Liability Issues of Developing and Maintaining a Special
331.
Enforcement
of-Law Enforcement
(Mar. 7, 2005) (unpublished thesis, School of"Law
Response Team, 3 (Mar.
at http://www.cji.edu/CJI/
availableat
Justice Institute), available
Supervision, Criminal Justice
http://www.cji.edulCJII Centerlnfo/lemc/papers/SpecialResponseTeam.pdf.
terInfonemc/papers/SpeciaIResponseTeam.pdf.

330.

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sponse is necessary and then to call for assistance from the appropriate team. ARTs would support
support police
police in their duty to
protect the community by providing
providing access to accurate and
immediate information
immediate
information and tactics for use in an encounter
encounter with
with
a person
person with ASD. Efforts to establish
establish and fund ARTs are
currently underway
underway in Maine. Colorado and other states would
do well to follow Maine's
Maine's lead.
CONCLUSION
CONCLUSION

Persons with ASD have very special needs that make them
treatment and increase
vulnerable
vulnerable to discriminatory
discriminatory treatment
increase the risk of
of
a dangerous
dangerous "exigent circumstance"
circumstance" situation
situation in an encounter
encounter
enforcement officers are not trained
with police. Too many law enforcement
increasingly common
to recognize
recognize the signs of this increasingly
common disability,
effective tactics in reand they are therefore unable to use effective
police officer,
sponse, resulting in harm to the individual, the police
and the community.
unfortunate situation can be changed.
However, this unfortunate
Those who recognize
recognize this problem can take action to safeguard
safeguard
the rights of their loved ones. First, ASD advocates can encourage training-both
courage
training-both for their loved
loved ones and for local police
police
advocates
officers-regarding
ASD-police interaction. Second, advocates
officers-regarding ASD-police
can work toward establishing methods, including Autism Recommunicating timely and precise
sponse Teams, for communicating
precise information to police
police about the presence and needs of people
people with ASD
advocates can promote
in
in the community. Third, advocates
promote changes
changes in
available to caregivers
caregivers and
the law that enhance the support available
that clarify that impairment
impairment of function-rather
function-rather than mental
the
developmental disability of
of
retardation-characterizes
retardation-eharacterizes
developmental
"better training" in place, we can
protection of ''better
can
ASD. With the protection
enjoy the ''better
"better outcome":
outcome": increased safety for our loved ones,
our valiant
valiant police officers, and our communities.

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