When Mentally Ill People Get Tased By Police

#BipolarLivesMatter

The Forgotten Case of Judith Gray

This story is one in an ongoing series of articles from different parts of the country. Previous stories include a story out of Tulsa, Oklahoma.

The facts speak for themselves. This case illustrates how the system creates mentally ill victims of police violence and then provides them with no legal remedy. Extensive quotes from the First Circuit Court of Appeals decision are necessary because the facts must be accurate.

Judith Gray, who has bipolar disorder, had an encounter with Thomas Cumming, a police officer in the Town of Athol, Massachusetts, in May 2013. On May 2, 2013, Ms. Gray, aged 57, experienced a manic episode and called 911. Athol police responded at her home and took her to the Athol Memorial Hospital.

She was admitted to the hospital at around 4:00 a.m., according to Mass. Gen. Laws ch. 123, Section 12 (authorizing involuntary “[e]mergency restraint and hospitalization of persons posing risk of serious harm by reason of mental illness”). According to the police report, “Approximately six hours later, Gray absconded from the hospital on foot.” Hospital staff called the Athol Police Department, asking that Gray — “a section 12 patient” — be “picked up and brought back.” All the other states have similar laws.

In her deposition, Gray testified that she “really [did not] know what happened” during the incident because she “was in a full-blown manic phase.” She added that she “wouldn’t know Officer Cummings if [she] fell over him” and that she had reviewed the police report prepared by Officer Cummings and could not say whether it accurately described the events that had transpired. So, the Court relied solely on the facts from Officer Cumming’s account, although it stated that “we draw all reasonable inferences from those facts in Gray’s favor.”

Officer Cummings, who was six foot three inches tall and weighed 250 pounds, responded to the hospital’s call to “pick up and [bring] back” Gray, who was 5 feet, 10 inches tall and weighed 140 pounds. Cummings quickly located Gray, walking barefoot along the sidewalk less than a quarter-mile from the hospital. Officer Cummings got out of his police cruiser. “Gray swore at him, and Cummings told her that she’ ha[d] to go back to the hospital.’ Gray again used profanity, declared that she was not going back, and continued to walk away. In response, Cummings radioed for backup and followed Gray on foot. He repeatedly implored Gray to return to the hospital, but his importunings were greeted only by more profanity.”

The Court continued, citing Officer Cummings’ Report. “Initially, Cummings followed Gray at a distance of roughly one hundred feet. Within twenty-five to thirty seconds, he closed to within five feet. At that point, Gray stopped, turned around, ‘clenched her fists, clenched her teeth, flexed her bod and stared at [Cummings] as if she was looking right through [him].’ She again swore at Cummings and started walking toward him. Cummings grabbed Gray’s shirt, but he could feel Gray moving her body forward, so he “took her to the ground.”

“Cummings testified that once on the ground, he repeatedly instructed Gray to place her hands behind her back. She did not comply. Instead, she ‘tucked her arms underneath her chest and flex[ed] tightly, swearing all the while.” Officer Cummings told Ms. Gray that she was “going to get tazed” if she did not place her hands behind her back. According to Officer Cummings, Gray did not heed this warning but, instead, swore at Cummings again and told him to “do it.” Cummings made one last demand, set his Taser on drive-stun mode, and tased Ms. Gray’s back for four to six seconds. According to Ms. Gray, she felt “pain all over” at the moment she was tased, but she “must have passed out because [she] woke up in Emergency.”

Massachusetts filed charges against Ms. Gray for assault on a police officer, resisting arrest, disturbing the peace, and disorderly conduct, but the Commonwealth later dropped those charges.

Ms. Gray then sued Cummings and Athol in the United States District Court for the District of Massachusetts. She asserted claims for violations of her civil rights and Title II of the Americans with Disabilities Act, along with state law claims for assault and battery, malicious prosecution, and state civil rights violations.

The magistrate judge issued a report and recommendation, suggesting that the Court grant the motion by the Town and Officer Cummings for summary judgment because the magistrate judge found no violation of the Fourth Amendment to the U.S. Constitution on the part of either Cummings or the Town. The magistrate judge also found no viable state law claims. The magistrate judge further concluded that there had been no abridgment of the ADA because, regardless of Gray’s disability, Cummings was entitled to employ an “appropriate level of force in response to an ongoing threat.” Also, Cummings was entitled to “qualified immunity.”

On de novo review, the district court entered a two-sentence text order adopting the magistrate judge’s report and recommendation in substantial part and entered judgment dismissing Gray’s case. Ms. Gray appealed to the U.S. Court of Appeals for the First Circuit, which covers Massachusetts, Puerto Rico and several New England states.

First, the Court of Appeals found that, “[v]iewing the record most hospitably to Gray and drawing all reasonable inferences to her behoof, we think that a reasonable jury could find” that the force employed by Cummings violated the Fourth Amendment. “The Town’s policies describe a Taser in drive-stun mode as a ‘pain compliance tool.’” The Court recognized that “we think it important that Cummings was not called to the scene to investigate a crime;” he was there to return a person who has a mental illness to the hospital. “Failure to obey was at most a minor crime” in terms of evaluating the use of force in the context of the “severity of the crime.” The Court found that a reasonable jury could find that Gray’s actions in moving toward Cummings did not constitute “an assault” on Officer Cummings, as he claimed.

Moreover, a jury could find on these facts that “Gray — who was shuffling down the sidewalk barefoot and unarmed — only posed a danger to herself (especially given Cumming’s distinct height and weight advantage). “So, too, a jury could supportably find that, at the time of the tasing, Gray had been subdued to a point at which she no longer posed a threat.” On the other hand, Gray was resisting arrest, so the various factors conflicted. “Drawing [the] inferences beneficially to Gray and aware that Cummings not only had her down on the ground but also outweighed her by some seventy-five pounds, a reasonable jury could find that Gray had committed no crime and that she posed no threat to Cummings when he tased her.”

Having said all of that, “This conclusion does not end our inquiry. Cummings has invoked the defense of qualified immunity. Qualified immunity is a doctrine aimed at providing government officials (including police officers) a modicum of protection from civil damages liability for actions taken under color of state law.” That is how Officer Cummings got off the hook. Officer Cummings may invoke a defense of qualified immunity when his action, though causing injury, did “not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” The qualified immunity analysis has two prongs: “[t]he court must determine whether the defendant violated the plaintiff’s constitutional rights” and then must determine “whether the allegedly abridged right was ‘clearly established’ at the time of the defendant’s claimed misconduct.” The Court of Appeals said, “Specifically, we must ask whether, given the circumstances at hand, Gray’s right to be free from the degree of forced that Cummings used — particularly, the Taser — was clearly established.” The Court acknowledged that “the level of force that is constitutionally permissible in dealing with a mentally ill person ‘differs both in degree and in kind’ from the use of force that would be justified against a person who has committed a crime or who poses a threat to the community.”

The Court concluded that “Based on the body of available case law, we hold that an objectively reasonable police officer in May of 2013 could have concluded that a single use of the Taser in drive-stun mode to quell a nonviolent, mentally ill individual who was resisting arrest, did not violate the Fourth Amendment.” The Court concluded that “Gray was afforded an adequate opportunity to submit to Cumming’s authority before she was tased.” This sentence alone reveals a stunning failure of the Court of Appeals Justices to understand the basics of mental illness, despite being briefed by the American Psychiatric Association.

The Town of Athol also got off scot-free. Gray made a civil rights “failure-to-train” claim against the Town. “We cut directly to the chase. ‘Triggering municipal liability on a claim of failure to train requires a showing that municipal decisionmakers either knew or should have known that training was inadequate but nonetheless exhibited deliberate indifference to the unconstitutional effects of those inadequacies.” Gray made no such showing, and it is hard to imagine any victim of police violence be able to make such a showing.

In the end, the Court’s concern that the “police not be unduly hampered in the performance of their important duties” outweighed the rights of the disabled victim. Judith Gray v. Thomas A. Cummings and the Town of Athol, Massachusetts, Case №18–1303 in the United States Court of Appeals for the First Circuit, decided February 22, 2019.

#BipolarLivesMatter

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