In his opinion in Deorle v. Rutherford, Ninth Circuit Judge Reinhardt raised an issue that continues to impact law enforcement.
Without outright creating a special category for the mentally ill within excessive force in California analysis, the judge held that: "The problems posed by, and thus the tactics to be employed against, an emotionally distraught individual who is creating a disturbance or resisting arrest are, and must be, differentiated from those involved in efforts to subdue an armed and dangerous criminal who has recently committed a serious offense."
But police officers continue to use excessive force in California when it comes to mentally disturbed individuals. Take the particularly tragic case of Kelly Thomas, the homeless man who died last summer after being repeatedly beaten and tased by Fullerton California police officers.
Kelly Thomas suffered from schizophrenia and his alleged criminal behavior and "provocation" of the officers will surely come up in the case as it unfolds in both the criminal and civil arena.
Hopefully California's peace officers, the agencies that employ them and the bodies that hold them accountable will remember Judge Reinhardt's words in Deorle v. Rutherford: "In the case of mentally unbalanced persons, the use of officers and others trained in the art of counseling is ordinarily advisable, and may provide the best means of ending the crisis."
The independent consultant tasked with investigating the Kelly Thomas case is expected to issue a report at next week’s Fullerton City Council meeting.