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73 Stan. L. Rev. 1401 (2021)
Policing under Disability Law

handle is hein.journals/stflr73 and id is 1449 raw text is: ARTICLE
Policing Under Disability Law
Jamelia N. Morgan`
Abstract. In recent years, there has been increased attention to the problem of police
violence against disabled people. Disabled people are overrepresented in police killings
and, in a number of cities, police use-of-force incidents. Further, though police violence
dominates the discussion of policing, disabled people also disproportionately experience
more ordinary forms of policing that can lead to police violence. For example, disabled
people, particularly those with untreated psychiatric disabilities, are vulnerable to policing
even in medical facilities-the very places they seek to access care. Many are also arrested
pursuant to aggressive enforcement policies aimed at removing so-called unwanted
persons or regulating those labeled disruptive or disorderly. Though they pose no risk of
physical harm, some are arrested and taken to jail, at times simply because they have no
place else to go.
This Article centers disability theory as a lens for understanding the problems of policing
and police violence as they impact disabled people. In doing so, the Article examines how
federal disability law addresses these ongoing problems. Disabled plaintiffs have alleged
disability discrimination and challenged policing and police violence under both Title II of
the Americans with Disabilities Act (ADA) and the Rehabilitation Act of 1973, another
federal disability law and the precursor to the ADA. The Supreme Court has yet to decide
whether Title II of the ADA applies to arrests, and federal appellate courts are split on
whether and to what extent Title II's antidiscrimination provisions apply to street
encounters and arrests. Although the Court granted certiorari to a case presenting the
question, City & County of San Francisco v. Sheehan, it subsequently dismissed that question
as improvidently granted. There is no telling when the question will reach the Supreme
Court again, but before it does, it is important to develop a theory not just of liability but
* Associate Professor of Law, University of Connecticut School of Law. For helpful
comments and feedback throughout the drafting process, I wish to thank Amna Akbar,
Bradley Areheart, Natalie Chin, Ruth Colker, Mattias Decoster, Doron Dorfman,
Elizabeth Emens, Katie Eyer, Sarah Lorr, Prianka Nair, Katherine Macfarlane, Barbara
McQuade, Jessica Roberts, Jennifer Hope Shinall, Charisa Smith, Ngozi Okedigbe, Sunita
Patel, Mark Weber, and India Thusi, and the participants in the Michigan Junior Scholars
Program, Disability Law Section's Works-in-Progress Virtual Workshop, Women of
Color Collective Junior Legal Scholars Writing Workshop, and the AALS Annual
Meeting, Civil Rights Section Work-in-Progress Panel. For exceptional research
assistance, I thank Sophie Bossart, Allyson Presskreischer, Michael Schultz, and Mallori
Thompson, as well as Tanya Johnson and Anne Rajotte at the University of Connecticut
School of Law Library.


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