|Monty Python: The Argument Clinic|
on oral arguments, are going to be even harder in this case, because the city changed their brief between cert (when SCOTUS took the case) and filing.
From the arguments, it’s clear that the court took the case so they could rule on the extent to which the ADA applies to arrest, particularly of a potentially violent individual with a known disability. They were not especially interested in the Fourth Amendment issues. The ADA question is vital.
However, after cert, perhaps due to pushback from the ACLU and other groups, the city changed their brief. Scalia launched in at the SF attorney (Christine Van Aken, who I interviewed for my Al Jazeera piece) saying that she had pulled a bait and switch, arguing a big point in the petition, and changing it to a narrow one in her brief.
Here’s an excerpt from the arguments [my emphasis]:
JUSTICE SCALIA: Your petition for for writ of certiorari, and it was a petition that had your name on it, said on on the reasons for granting the petition, this Court should resolve whether and how the Americans with Disabilities Act applies to arrests of armed and violent suspects who are disabled. The circuits are in conflict on this question. The question presented is recurring and important, and Title II of the ADA does not require accommodations for armed and violent suspects who are disabled, and that’s the issue on which there is a circuit conflict.
Van Aken replied that the issue is to what extent Title II applies, not whether it applies, but Scalia and the other justices, both liberal and conservative, seemed eager to weigh in on that question.
JUSTICE ALITO: But in the case I posited, there would be an issue about whether the officers should have known that this person was behaving bizarrely, had a mental illness?
MR. GERSHENGORN: We don’t believe that should have known is the standard in the ADA. So it’s not a should have known standard with respect to the disability.
This is the problem. The ADA medicalizes even though it emerged from the social model of disability. Instead, we need to reform police tactics to apply to all situations, not just for the Sheehans.
That said, Sheehan’s case remains strong to me. SF’s case is based entirely on hypotheticals. I hope the hypotheticals don’t carry the day.