The story of Graham v. Connor is familiar to students and teachers of criminal procedure.
The facts of the case go something like this: Dethorne Graham was a thirty-nine-year-old Black man with diabetes.
On the day in question, Graham experienced the onset of an adverse insulin reaction.
He asked a friend to drive him to a nearby convenience store to purchase some orange juice to mitigate the reaction.
He grabbed a bottle of orange juice and went to stand in line at the store but decided that there were too many people in line.
Consequently, Graham rushed out of the store, returned to his friend’s car, and asked his friend to drive him to another friend’s house.
Officer Connor, a Black police officer, observed what had transpired in the convenience store, and it provoked his suspicion so much that he made an investigatory stop.
Graham’s friend then told Officer Connor that Graham was having a “sugar reaction.”
Unconvinced, Officer Connor wanted to verify this account, so he returned to his car to call the convenience store.
He also called for additional police backup.
In the meantime, Graham got out of the car, circled it a couple of times, and passed out briefly on or near the curb.
When responding officers arrived, Graham was drifting in and out of consciousness.
Nonetheless, officers still forcibly handcuffed him, and at some point during the ordeal, “Graham sustained a broken foot, cuts on his wrists, a bruised forehead, and an injured shoulder . . . [and] a loud ringing in his right ear.”
What is interesting about the case and how it is discussed in subsequent court opinions and legal scholarship and taught in criminal procedure courses is that Graham’s disability is at once hypervisible and yet still somewhat invisible. Graham’s disability is noted, but little interrogation ever arose of how disability mediated the police interaction or what it says about Fourth Amendment doctrine that suspicion could be based on behaviors caused by, or at least closely related to, a person’s disability. This is perplexing because Graham’s disability—or more precisely, his disability-related behaviors—furnished a large part of the basis for reasonable suspicion justifying Officer Connor’s investigatory stop. Subsequently, the responding officer misinterpreted Graham’s disability and attendant symptoms as indicia of drunkenness. Indeed, one of the officers was quoted in the opinion as stating, “I’ve seen a lot of people with sugar diabetes that never acted like this. Ain’t nothing wrong with the M.F. but drunk. Lock the S.B. up.”
Of course, Graham is an excessive force case, and the question of whether the investigatory stop was legal was not at issue by the time the case reached the Supreme Court. At oral argument, however, Justice Thurgood Marshall was cognizant that disability furnished a basis for the seizure and subsequent use of force. Marshall pressed respondent’s counsel to answer exactly “what reason . . . there [was] for handcuffing a diabetic in a coma.”
The Supreme Court went on to rule in Graham’s favor, remanding the case back to the court below to apply the correct standard—that of objective reasonableness. Yet despite Justice Marshall’s thorough engagement with Graham’s disability, the role it played in the encounter, and how it shaped the officers’ subsequent justifications for their use of force, disability does not feature prominently in the majority opinion.
This duality, both the hypervisibility and invisibility of Graham’s disability, comes through in a subsequent Supreme Court opinion some twenty-six years later, in a case involving another excessive force claim: City of San Francisco v. Sheehan.
In that case, officers from the San Francisco Police Department shot Teresa Sheehan, a white woman in her fifties with psychiatric disabilities, fourteen times.
The officers, Kimberly Reynolds and Katherine Holder, were called to the group home where Sheehan resided to effectuate a temporary detention order after a social worker had determined that Sheehan required temporary detention for psychiatric evaluation and treatment.
According to the social worker, Sheehan had stopped taking her medication, which concerned him, so he called the police.
When Officers Reynolds and Holder arrived at Sheehan’s room, they knocked and informed Sheehan that they were there to help her.
When Sheehan did not respond, the officers obtained a key from the social worker and entered the room, which startled Sheehan.
Sheehan picked up a “kitchen knife with an approximately 5-inch blade and began approaching the officers, yelling something along the lines of ‘I am going to kill you. I don’t need help.’”
The officers retreated and left Sheehan in her room alone.
Fearing that Sheehan would escape or harm herself or others, the officers reentered the room instead of waiting for backup.
Armed with pepper spray and their pistols, the officers sprayed Sheehan in the face. They testified that when Sheehan did not drop the knife after being pepper sprayed, they shot her multiple times.
Sheehan survived and sued, alleging that the officers had used excessive force in violation of the Fourth Amendment and that the officers had failed to accommodate her in violation of the Americans with Disabilities Act (ADA).
The Court dismissed the ADA claim as improvidently granted and held that the officers were entitled to qualified immunity, as no clearly established law existed that put them on notice that they were violating Sheehan’s Fourth Amendment rights.
In reaching that holding, Justice Samuel Alito, writing for the majority, sharply distinguished Graham from Sheehan—and overturned the Ninth Circuit’s holding that Graham controlled as clearly established law sufficient to defeat qualified immunity—noting that:
Even a cursory glance at the facts of Graham confirms just how different that case is from this one. That case did not involve a dangerous, obviously unstable person making threats, much less was there a weapon involved. There is a world of difference between needlessly withholding sugar from an innocent person who is suffering from an insulin reaction, and responding to the perilous situation Reynolds and Holder confronted. Graham is a nonstarter.
On the surface, distinguishing Graham from Sheehan on the facts seems correct. Yet while the facts of the cases differ dramatically, the Court’s move to sharply distinguish may indeed miss some of the more fundamental ways in which the cases are similar. Disability is both hypervisible and invisible in both cases: Disability and reactions to it prompt the police encounter, yet the role disability plays, whether in triggering the encounter or during the encounter, and its role in justifying the use of force, is largely ignored. Most importantly, the Court’s cursory glance does not take critical account of how the discretionary decisions (e.g., to stop, to seize) by police in Graham share similarities, or operating logics, with the discretionary decisions (e.g., to enter the room, to not wait for backup, to use force) at issue in Sheehan. These discretionary decisions or operating logics relate to the policing of disability and how norms, attitudes, and social practices related to, responding to, or produced by disability and disability-based subordination are reinforced through the policing powers the Fourth Amendment authorizes and upholds.
To date, the Supreme Court’s Fourth Amendment jurisprudence is undertheorized when it comes to issues relating to disability. A number of cases discuss disability and Fourth Amendment doctrine, but few offer a substantive critique or engage with disability as a subordinated identity or status.
Among the lower courts, though disability features prominently in excessive force cases, typically involving individuals with psychiatric disabilities, it features less prominently in other areas of Fourth Amendment doctrine.
Although there has been robust engagement with theories of criminalization and social control in Fourth Amendment critiques involving race, there is limited engagement with disability and its intersections with other subordinated identities, including race, class, and marginalized gender identities and expressions.
Finally, despite some recent legal scholarship addressing police violence as it affects disabled people, particularly people with psychiatric disabilities, scholars have yet to substantively address how the vast scope of police discretion afforded by the Fourth Amendment renders individuals with disabilities vulnerable to unwarranted police encounters and intrusions.
This Essay centers disability as a lens for analysis in Fourth Amendment jurisprudence. This Essay discusses the ways in which disability mediates interactions with law enforcement and how Fourth Amendment doctrine renders disabled people vulnerable to policing and police violence.
More specifically, this Essay focuses on a critique of the Terry doctrine, consensual encounters, consent searches, and the objective reasonableness standard under Graham. A critical lens focused on each of these doctrines, taken together, demonstrates how Fourth Amendment doctrine both fails to adequately protect disabled people and reinforces a “normative bodymind”
by rendering vulnerable to police surveillance, suspicion, and force those persons whose physical and psychological conditions, abilities, appearances, behaviors, and responses do not conform to the dominant norm.
This Essay also builds on and grows out of the work of many scholars who have written about racial bias and disparities in policing,
and the work of critical race theorists who have argued that legal doctrine constructs race and gender hierarchies.
Legal scholars have long recognized the role of race and racism in the criminal legal system, particularly with respect to policing.
These criminal legal scholars
have identified overpolicing and discriminatory enforcement with respect to racial minorities and low- to no-income persons of color in particular as central to the problem of mass criminalization and the mass punishment system in America.
Criminal law scholars have documented the manner in which race, class, and community—namely, the designation of a community as “high crime”—facilitates police stops based on a lack of individualized suspicion.
Beyond this, critical race theorists have documented the manner in which policing and legal doctrine construct racialized suspicion while at the same time omitting consideration of the experiences of racial minorities as policed subjects in Fourth Amendment jurisprudence.
This analysis is informed by Professor Devon Carbado’s work, which sought to uncover the pathways to police violence as both a theoretical framework for diagnosing the nature and scope of the problem of policing and remedial interventions.
In addition, this Essay builds on the work of Professor Camille Nelson, who has written on the role of policing in race- and mental disability-based subordination, to hone in on the Fourth Amendment and its role in reinforcing disability-based subordination, beyond mental disability and inclusive of physical, intellectual, and developmental disability.
Finally, this Essay rethinks aspects of Fourth Amendment doctrine, drawing from disability studies, critical disability theory, and disability critical race theory, and offers an analysis of police encounters that centers the experiences of people with disabilities, with a particular focus on multiple marginalized disabled people. Though this Essay provides a more nuanced analytical framework for understanding policing, it aims to do more than offer another identity to the significant and pervasive problem of racial bias in policing. Rather, this Essay aims to discuss how disability and race, gender, and class all intersect to form “multiple axes and forms of oppression.”
In short, this Essay is informed by Professor Kimberlé Crenshaw’s work on intersectionality and its applications to American law and politics and offers an intersectional analysis of policing through the lens of disability, with a focus on Fourth Amendment doctrine.
As such, this Essay aims to provide a thick description of individuals criminalized on account of their disabilities, but it rejects accounts that are rooted in medicalized notions of disability and that explain criminalization as a product of disability.
This Essay proceeds in three parts. Part I discusses the problems of policing and police violence as they affect disabled people. Part II provides an extensive critique of Fourth Amendment doctrine to demonstrate how the doctrine either erases disability or fails to recognize and adequately address issues relating to disability. Here, the focus of my critique is on the Terry doctrine and its progeny, consensual encounters, consent searches, and the objective reasonableness standard under Graham. Disability and critical race lenses applied to each of these doctrines and taken together demonstrate how Fourth Amendment doctrine fails to adequately protect the Fourth Amendment rights of disabled people. Part III notes how this erasure serves to reinforce a “normative bodymind” by rendering vulnerable to police surveillance, suspicion, searches, and force those persons whose physical and psychological conditions, abilities, appearances, behaviors, and responses do not conform to the dominant norm. This Essay then offers a set of doctrinal and policy solutions to address the problems identified in Fourth Amendment jurisprudence.