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. HeinOnline -- 79 U. Colo. L. Rev. 333 2008 334 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. HeinOnline -- 79 U. Colo. L. Rev. 334 2008 20081 2008] "PAUL'S LAW" 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. HeinOnline -- 79 U. Colo. L. Rev. 335 2008 336 UNIVERSITY COLORADO LAW REVIEW UNIVERSITY OF COWRADO [Vol. 79 79 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. HeinOnline -- 79 U. Colo. L. Rev. 336 2008 2008] 20081 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). HeinOnline -- 79 U. Colo. L. Rev. 337 2008 UNIVERSITY OF COLORADO lAW LAW REVIEW UNIVERSI'IY 338 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. HeinOnline -- 79 U. Colo. L. Rev. 338 2008 20081 2008] LAW" HAPPENED TO "PAUL'S LAW' WHAT HAPPENED 339 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. HeinOnline -- 79 U. Colo. L. Rev. 339 2008 340 UNIVERSITY OF COLORADO UNNERSITY COLORADO LAW REVIEW [Vol. 79 79 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. HeinOnline -- 79 U. Colo. L. Rev. 340 2008 WHAT HAPPENED TO "PAUL'S LAW' LAW' 2008] 2. 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, HeinOnline -- 79 U. Colo. L. Rev. 341 2008 342 UNIVERSITY UNNERSTIY OF COLORADO COLORADO LAW LAW REVIEW REVIEW [Vol. 79 79 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 HeinOnline -- 79 U. Colo. L. Rev. 342 2008 2008] WHAT HAPPENED HAPPENED TO "PAUL'S LAW' LAW" 343 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 HeinOnline -- 79 U. Colo. L. Rev. 343 2008 344 UNIVERSITY UNIVERSITY OF OF COLORADO COWRADO LAW REVIEW REVIEW 79 [Vol. 79 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 HeinOnline -- 79 U. Colo. L. Rev. 344 2008 "PAUL'S LAW' LAW" WHAT HAPPENED TO "PAUL'S 2008] 20081 345 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. HeinOnline -- 79 U. Colo. L. Rev. 345 2008 346 UNIVERSITY OF COWRADO COLORADO LAW REVIEW UNIVERSITY [Vol. 79 79 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. HeinOnline -- 79 U. Colo. L. Rev. 346 2008 2008] WHAT HAPPENED TO "PAUL'S LAW' LAW" 1. 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). HeinOnline -- 79 U. Colo. L. Rev. 347 2008 348 UNIVERSITY OF COLORADO LAW REVIEW UNIVERSITY [Vol. 79 79 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). HeinOnline -- 79 U. Colo. L. Rev. 348 2008 WHAT WHAT HAPPENED TO "PAUL'S LAW' LAW' 2008] 349 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. HeinOnline -- 79 U. Colo. L. Rev. 349 2008 350 UNIVERSITY OF COWRADO COLORADO LAW UNIVERSITY lAW REVIEW REVIEW [VoL [Vol. 79 79 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. HeinOnline -- 79 U. Colo. L. Rev. 350 2008 2008] 2008] HAPPENED TO TO "PAUL'S "PAUL'S LAW' LAW" WHAT HAPPENED 351 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. HeinOnline -- 79 U. Colo. L. Rev. 351 2008 352 UNIVERSITY OF COLORADO LAW REVIEW UNIVERSITY [Vol. 79 79 128 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. HeinOnline -- 79 U. Colo. L. Rev. 352 2008 2008] HAPPENED TO "PAUL'S "PAUL'S LAW"' LAW' WHAT HAPPENED 353 136 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». HeinOnline -- 79 U. Colo. L. Rev. 353 2008 UNIVERSITY UNIVERSITY OF COLORADO LAW REVIEW 354 [Vol. 79 79 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. HeinOnline -- 79 U. Colo. L. Rev. 354 2008 2008] LAW" WHAT HAPPENED HAPPENED TO "PAUL'S LAW' 355 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). HeinOnline -- 79 U. Colo. L. Rev. 355 2008 356 UNIVERSITY OF COLORADO LAW REVIEW UNIVERSITY [Vol. 79 [Vol. 79 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 HeinOnline -- 79 U. Colo. L. Rev. 356 2008 2008] 20081 WHAT WHAT HAPPENED HAPPENED TO "PAUL'S "PAUL'S LAW" LAW" 357 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 HeinOnline -- 79 U. Colo. L. Rev. 357 2008 UNIVERSITY LAW REVIEW UNIVERSITY OF COLORADO COLORADO lAW 358 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. HeinOnline -- 79 U. Colo. L. Rev. 358 2008 WHAT HAPPENED TO "PAUL'S LAW' LAW' 20081 2008] 359 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. HeinOnline -- 79 U. Colo. L. Rev. 359 2008 UNIVERSITY UNIVERSITY OF OF COLORADO COLORADO LAW LAW REVIEW REVIEW 360 360 [Vol. 79 79 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, HeinOnline -- 79 U. Colo. L. Rev. 360 2008 WHAT HAPPENED HAPPENED TO "PAUL'S LAW' 2008] 20081 361 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. HeinOnline -- 79 U. Colo. L. Rev. 361 2008 LAW REVIEW COLORADO lAW UNIVERSITY OF COWRADO UNIVERSITY 362 [Vol. 79 79 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. HeinOnline -- 79 U. Colo. L. Rev. 362 2008 20081 2008] WHAT LAW" WHAT HAPPENED HAPPENED TO "PAUL'S LAW' 363 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. HeinOnline -- 79 U. Colo. L. Rev. 363 2008 364 UNIVERSITY UNIVERSITY OF OF COLORADO COLORADO LAW LAW REVIEW REVIEW [Vol. 79 79 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, HeinOnline -- 79 U. Colo. L. Rev. 364 2008 20081 2008] HAPPENED TO TO "PAUL'S LAW" LAW" WHAT HAPPENED 365 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). HeinOnline -- 79 U. Colo. L. Rev. 365 2008 366 UNIVERSITY OF COLORADO LAW REVIEW UNIVERSITY 79 [Vol. 79 54 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. HeinOnline -- 79 U. Colo. L. Rev. 366 2008 2008] 2008] WHAT HAPPENED TO "PAUL'S LAW' LAW' WHAT 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 HeinOnline -- 79 U. Colo. L. Rev. 367 2008 368 UNIVERSITY LAW REVIEW UNIVERSITY OF COLORADO lAW [Vol. 79 79 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 2008] LAW" HAPPENED TO "PAUL'S LAW' WHAT HAPPENED 369 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. HeinOnline -- 79 U. Colo. L. Rev. 369 2008 370 370 UNIVERSITY OF COLORADO UNNERSI'IY COLORADO LAW REVIEW [Vol. 79 79 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: HeinOnline -- 79 U. Colo. L. Rev. 370 2008 2008] WHAT HAPPENED HAPPENED TO "PAUL'S LAW' LAW' 371 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 HeinOnline -- 79 U. Colo. L. Rev. 371 2008 372 UNIVERSITY OF COLORADO LAW REVIEW UNNERSITY COLORADO lAW [Vol. 79 79 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). HeinOnline -- 79 U. Colo. L. Rev. 372 2008 20081 2008] TO "PAUL'S LAW" LAW' WHAT HAPPENED TO 373 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). HeinOnline -- 79 U. Colo. L. Rev. 373 2008 374 374 UNIVERSITY lAW REVIEW REVIEW COLORADO LAW UNIVERSITY OF COWRADO [Vol. [Vol. 79 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. HeinOnline -- 79 U. Colo. L. Rev. 374 2008 2008] "PAUL'S LAW' LAW' WHAT HAPPENED HAPPENED TO "PAUL'S 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. HeinOnline -- 79 U. Colo. L. Rev. 375 2008 UNIVERSITY OF COLORADO COLORADO LAW REVIEW REVIEW UNIVERSITY 376 2. 2. [Vol. [Vol. 79 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. HeinOnline -- 79 U. Colo. L. Rev. 376 2008 2008] 20081 LAW' WHAT HAPPENED TO "PAUL'S LAW' 377 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 ... HeinOnline -- 79 U. Colo. L. Rev. 377 2008 UNIVERSITY OF OF COLORADO COLORADO LAW LAW REVIEW REVIEW UNIVERSITY 378 [Vol. [Vol. 79 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. HeinOnline -- 79 U. Colo. L. Rev. 378 2008 2008] 2008] LAW' WHAT HAPPENED TO "PAUL'S LAW" WHAT HAPPENED 379 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. HeinOnline -- 79 U. Colo. L. Rev. 379 2008 UNIVERSITY UNIVERSITY OF COLORADO COLORADO LAW LAW REVIEW REVIEW HeinOnline -- 79 U. Colo. L. Rev. 380 2008