Argument analysis: Can a really rough start be overcome?
It is very hard to maintain one’s composure, let alone salvage one’s legal argument, when an appearance before the Supreme Court begins this way: A Justice remarks, as soon as the lawyer begins speaking, that the case is not about what the lawyer is about to argue, that the lawyer is guilty of “bait and switch,” and that maybe the Court should appoint someone else to argue the real issue.
That’s the way it began on Monday for the deputy city attorney of San Francisco, Christine Van Aken, as she finished her first words, “Mr. Chief Justice, and may it please the Court.” Justice Antonin Scalia quickly interrupted her, telling her that, “Before you go further,” he was having some problems squaring the city’s merits brief with what the Court thought it had agreed to hear in City and County of San Francisco v. Sheehan.
That is a very difficult case that reached the Court amid the country’s current emotional debate about whether local police too often are overreacting in tense situations, and are harming — or even killing — when they should instead be helping out. The case grew out of an encounter in a San Francisco home for people with mental disabilities, where a woman wielding a knife flailed away at two officers, who then shot her four or five times, wounding her seriously.
The legal issue before the Court is, simply, whether the police should have backed off, to let things cool down, or were instead justified, for their own safety and that of others, in barging into the woman’s room in an attempt to take control. The Court spent an hour discussing that question, and how the federal Americans with Disabilities Act and the Constitution’s Fourth Amendment might apply.
At times, though, the Court seemed at least somewhat tempted to throw up its hands, not knowing what to do with a case that may have changed markedly once it got on the Court’s docket. Its options are somewhat complicated by the fact that only eight Justices are taking part, raising the risk of a four-to-four split which simply reaffirms a federal appeals court ruling that the Justices had questioned enough to grant review of it. (Justice Stephen G. Breyer is out of the case, because it came up from a trial court with his brother, U.S. District Judge Charles R. Breyer, presiding.)
In his opening thrust, Justice Scalia made it clear that he thought the Court had taken on the case to decide whether the ADA’s protection of disabled persons applies at all to police when they make arrests. But, looking at what the city had filed since, he said, it was not raising that issue at all. He recited from the city’s filings to drive home his point.
Bravely, Van Aken tried to fend off the criticism. What the city had argued all along, she said, was that the ADA’s protection “only applies when a threat [posed by a disabled person] has been eliminated.” Scalia was not satisfied, and pointed to her “principal brief.”
Justice Sonia Sotomayor chimed in, saying she had read the papers that the city filed in lower courts, and those showed that the city was trying to show that the ADA should not apply to arrests. “What are we supposed to do with this?” she asked somewhat plaintively.
Van Aken tried again to disagree, saying that, at most, the city previously had been arguing that “in a sense,” the ADA would not apply “because of an exigency” that would arise when a disabled person was “armed and violent.”
Justice Samuel A. Alito, Jr., stepped in then, complicating matters a bit by saying that, before the Court answered any other questions, it had to settle what amounted to discrimination under the ADA. What, he said, does discrimination mean in the context of police activity? That, he said, was a “threshold inquiry,” but nobody in the case had discussed it in their briefs.
There were a few other questions about what might be in the case — or might not — before Scalia moved back in to taunt Van Aken for not arguing what the city had asked the Court to address; she protested, but apparently in vain.
Before Van Aken sat down, the Court did spend a little time going over some of the facts in the incident in the group home that led to the shooting of Teresa Sheehan, and then to her civil rights lawsuit against the city and her Fourth Amendment claim against the two police officers who shot her.
The federal government’s lawyer, Deputy Solicitor General Ian H. Gershengorn, opened with the main point his brief had stressed: that the ADA definitely does, and should, apply to police arrests. He persisted in his argument even when some of the Justices suggested that the tense situation sometimes arising when police arrests were made raised questions about trying to accommodate an armed and violent person.
He did not seem to make much headway, however, in urging the Court to send the case back to lower courts to give Sheehan’s lawyers a chance to argue that this was an unusual case and that the officers should have delayed the encounter until things had cooled down. Officers should only have to make an accommodation in that situation, Gershengorn contended, when the person involved “was contained and visible” so that no emergency tactics needed to be used right away.
Justice Anthony M. Kennedy dismissed the alternative approach Gershengorn was offering as no help at all to police faced with a violent situation.
The lawyer for Sheehan, Leonard Feldman of Seattle, opened by arguing that the case as it reached the Court was not really about the scope of the law or the Constitution, but was instead only a dispute about the facts of this specific encounter. “Why did we take the case?” Justice Scalia asked, to which Feldman responded that the Court could simply dismiss the petition.
But as Feldman’s argument moved on, it appeared that most of the Justices were developing some skepticism about how police could actually try to calm a situation when an armed and violent person came at them with a knife and with a threat to kill them. How could they know, several asked, what Sheehan would do and whether public safety was, in fact, seriously at risk?
Chief Justice John G. Roberts, Jr., was somewhat insistent in pressing several questions about whether, in the situation that prevailed, Sheehan might have been a suicide risk. It was somewhat dismaying to the Chief Justice and to others when Feldman responded that the ADA simply does not require government agencies to take that into account.
Feldman spent much of the rest of his argument trying to fend off the federal government’s suggestion that the Court create a new rule that would modify the accommodation demands of the ADA, when police faced “special circumstances” that might rule out accommodation. “There is no reason,” he argued, “for the Curt to start changing the regulatory framework.”
Again, he stressed, the only real issue at stake in this particular case was whether Sheehan did, in fact, pose a “direct threat” to which the officers needed to respond as they did.
Justice Elena Kagan at that point commented that it was somewhat difficult to sort out “who is advocating what standard” the Court should apply in interpreting how the ADA applies to police arrests.
When Van Aken stood up for rebuttal, she had only a little to say, before Justice Sotomayor summed up by citing some statistics about how many people each year “are shot and killed by police” when dealing with the mentally disabled. The ADA, she said, was written by Congress to assure that police try to mitigate those situations.