Last year, the group Disability Rights Oregon brought a lawsuit against Washington County, alleging that when 911 is called for people in mental health crises, it’s often law enforcement officers who respond. The lawsuit claims these officers are more likely to exacerbate a crisis than resolve it. Last week, a federal judge ruled that the case can move forward. Dave Boyer, managing attorney for the Mental Health Rights Project at DRO, joins us to lay out their claims.
Note: The following transcript was transcribed digitally and validated for accuracy, readability and formatting by an OPB volunteer.
Dave Miller: I’m Dave Miller. This is Think Out Loud. The group Disability Rights Oregon sued Washington County last year, alleging that when 911 is called for people in mental health crises, it’s often law enforcement officers who respond. The suit argues that these officers are more likely to exacerbate a crisis than resolve it. Washington County had tried to get the case dismissed, but last week a federal judge ruled that it can move forward.
Dave Boyer is a managing attorney for the Mental Health Rights Project at Disability Rights Oregon. He joined us earlier this week. I started by asking him just to give us a sense for the range of what happens in Washington County when someone calls 911 for a behavioral health crisis.
Dave Boyer: Yeah, if someone calls 911 in Washington County in a mental health crisis, they will receive a law enforcement response.
Miller: You can just say that flat out, there’s always going to be a sheriff’s deputy or police officer involved?
Boyer: Flat out. That is right. Yeah, there were approximately, in the year that we looked at, 4,700 or so cases that would be classified as either suicidal ideation, a behavioral health incident or a welfare check. Just a simple welfare check – if somebody was laying out on the street and needed to be checked on, that would get a law enforcement rather than a mental health response.
Miller: But are non-police responders or mental health workers also showing up?
Boyer: At the time, after the law enforcement response arrives, then they can call on what they call their mental health response team.
Miller: As opposed to being the primary team that’s responding based on an emergency dispatch sending them out, that non-police response has to be brought in by police who have first arrived on the scene?
Boyer: That’s right. And even when the mental health rights team just arrives on scene, it’s always the law enforcement officer that initiates the contact, with the mental health provider typically sitting in the car until the law enforcement officer says it’s OK.
Miller: What’s the difference in outcomes between when law enforcement is responding … and obviously I’m sure there are a million possibilities, but I guess I’m talking about averages here. But when there’s some kind of behavioral health crisis, and mental health in particular, what’s the difference in outcomes, broadly, when it’s police officers who are responding or a mental health worker?
Boyer: Well, the basic thing is that law enforcement officers aren’t trained to be behavioral healthcare workers. They received a lot of training, months of training on arrests, crime investigations and things like that. They don’t receive very much training at all in behavioral health interventions; whereas a mental health provider would. So, just on the face of it, if I’m having a mental health crisis, I want a mental health provider who’s trained.
Miller: I understand that, but legally, do you need to be able to point to data to say, look, it’s demonstrably a problem to only have police responding?
Boyer: Yeah, we know that with mental health, the stigma is there that folks that are in mental health crisis might be dangerous. We know that only about 3-5% of any dangerous, violent encounter is by a person with a mental illness – and that’s not the ones probably that are calling 911. We also know that police, given their lack of training, the likelihood of [a use of] force in a police encounter with a person with a mental illness [is] about 11.6 times more likely in a situation as opposed to someone without a mental illness, and 16 times more likely to be killed in that encounter.
Miller: As a reminder for maybe newer Portlanders who weren’t here at the time, this is the reason not that long ago that the federal government intervened. The Justice Department said that specifically you have a problem, Portland Police Bureau, in your dealings with people who have mental illness.
Boyer: Right.
Miller: So you brought this action under two different parts of federal law, but you led with the Americans with Disabilities Act. How is that law relevant here?
Boyer: The Americans with Disabilities Act, and specifically Title II of that act, is when a government discriminates against a person with a disability. So in this case, we’re making the allegation that Washington County’s 911 service, if they send a different response to someone with a mental illness as opposed to someone without a mental illness, that’s discriminatory. If you break it down, if you have a heart attack in Washington County, you’ll get an EMS. If you have a panic attack, you will get the police. So on its face, discriminatory. They’re not receiving the right response for their condition.
Miller: Does existing federal law treat people with mental illness as a disability? Is it seen as such under the ADA currently?
Boyer: Yes, 100%.
Miller: So the ADA though, I feel like in a lot of households, it’s a household acronym and there’s some general awareness of what it’s meant in terms of curb cuts, in terms of reasonable accommodations in American society. The other law that was mentioned in your suit is one that I don’t think I’d heard of: the Rehabilitation Act of 1973. What is that and how does that play into this?
Boyer: The Rehabilitation Act essentially was based on the Civil Rights Act of 1964, which extended protections against discrimination for a wide variety of folks based on national origin, race, all of that. The Rehab Act then extended those protections to people with disabilities. And then later on in the 1990s, President Bush pushed through the Americans with Disabilities Act, which essentially strengthened all of those protections.
Miller: What exactly are you trying to force Washington County to do?
Boyer: We really want them to send the appropriate response to a crisis. So if it’s a crime, we want them to send it to the police. If it’s a traditional medical condition, we want them to send EMS. And if it’s a psychiatric crisis, we want them to send a mental health provider.
Miller: What if the dispatcher has decided that that the person, the subject of the call, is a potential or likely threat to themselves or others?
Boyer: Yeah, our suit doesn’t really cover that situation. This is a situation where there’s not a physical threat. This is simply a person in a mental health crisis.
Miller: Why do you think the county doesn’t currently do this? What have you heard?
Boyer: Well, I think that this is sort of a new way of responding to psychiatric crises. There’s not a lot of models around the country for this. And I think it’s kind of the status quo, the typical response in the past to send law enforcement. And it’s based largely on stigma. We believe that people with mental illness are dangerous, which is not the case.
Miller: You say that this has been the standard way to operate, but Oregon has also been seen as a pioneer for alternative responses. CAHOOTS in Eugene – which we talked about earlier this week because of massive budget cuts they’re facing – has, I think, been seen as a national model. Portland Street Response was modeled on that. So it’s not like other models don’t exist.
Boyer: That is correct. Yes. We also have models in Denver, we have models in San Francisco. All of these have tremendous benefits, not only for just providing the right treatment, the most humane treatment and avoiding police as the de facto mental health providers, but also the diversion of resources. CAHOOTS did divert about 3-8% of all 911 calls. So that leaves the police officers to do what they’re trained to do.
Miller: Why did you sue Washington County in particular? There are 35 other counties in Oregon.
Boyer: I think the basic answer is they’re violating the Americans with Disabilities Act and the Rehab Act. That’s the simple answer.
Miller: OK, but if that were the answer, then my obvious follow-up would be, are they doing so in a more egregious fashion than the rest of the state?
Boyer: No, we also considered several … Portland in Multnomah County was one of the considerations, but the Portland Street Response, when we were planning for this, was becoming funded and operating well. Washington County is one of those counties that’s large enough that it could provide a model for other counties. It’s large enough that if they change their policies like we would like them to, that would be a model for Jackson County and for Clackamas, for others.
Miller: Deschutes, Lane, come to mind as other mid-sized [counties], as opposed to, say, Malheur.
Boyer: Right.
Miller: So, you’re thinking is – and maybe this gets to the legal strategy side of using the courts to to change policy – if you can get Washington County, if you can force them through a settlement or actual ruling to change their ways, that might lead other counties to do the same because they would fear their own suit … that’s a fair way to put it?
Boyer: Partly, or they can just see the success of Washington County when they adopt this model that’s been successful throughout the country.
The other good thing about Washington County is that they’re almost there. They do have a mobile crisis team that is set to respond to these types of incidents. But of the 66,000 calls to 911 in Washington County in a year, the mobile crisis team responded to 106. So their hours are very limited. They’re not funded well, similar to the things we see in Portland Street Response now.
Miller: You brought this suit about a year ago. Has the situation changed in any significant way in that time?
Boyer: Not that we know of. We haven’t gone into discovery yet, so we haven’t gotten any updated records and things of that nature, but not that we’ve heard from other folks.
I also wanted to kind of address one interesting component of this case. We did reach out to Washington County before we filed this lawsuit and engaged in a couple meetings to talk about how we preferred to have them fix it before we sued them. But those conversations didn’t pan out to anything and that’s why we brought the suit.
Miller: So the U.S. District Judge Adrienne Nelson says this case can move forward. What’s the timing now?
Boyer: Now, we’ll enter into what’s known as discovery. So for the next few months, probably up to a year, we’ll be exchanging documents, interviewing folks, doing depositions and collecting all the information that we would need to either settle this case or go to trial.
Miller: Dave Boyer, thanks very much.
Boyer: Thank you.
Miller: Dave Boyer is a managing attorney for the Mental Health Rights Project at Disability Rights Oregon. We talked earlier this week.
After we talked, we got a statement from Washington County. I’ll read it in full:
“Although Washington County has a policy of not commenting on legal matters where the county is named in litigation, we’re committed to providing professional mental health services to community members experiencing a mental health crisis. For over two decades, we have worked diligently with our partners and stakeholders to develop a system of care to address these complex needs. The Washington County Behavioral Health Crisis Line has been operating for over 20 years. Additionally, for the past 19 years, Washington County Behavioral Health has provided a mobile crisis team that can respond to behavioral health calls 24 hours a day. Fourteen years ago, Washington County created the Mental Health Response Team program, which pairs specially trained deputies with mental health clinicians who respond to behavioral health calls together. The program has been so successful, not only in crisis intervention but also in safety planning and diverting people from the criminal justice system that several city police departments in Washington County now participate in as well.”
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