In early December, Jessie Bratcher, 27, was placed under the jurisdiction of Oregon's Psychiatric Security Review Board.  A jury in Canyon City, Oregon had found him guilty except for insanity for the murder of Ceja Medina.  According to The Oregonian newspaper, the finding was based solely on Bratcher's post traumatic stress disorder (PTSD) which had emerged following his military service in Iraq.

It just so happens that a week before the Bratcher sentencing, the United States Supreme Court unanimously found that a Korean War veteran who had been sentence to die for one of two murders he committed should be spared.  When the veteran, George Porter, was originally sentenced, his lawyer did not give the court any information about Porter's military service, childhood history or symptoms of behavioral problems associated with PTSD and brain injury.  This failure violated Porter's constitutional right to effective counsel.

According to the justices:  "Our Nation has a long tradition of according leniency to veterans in recognition of their service, especially for those who fought on the front lines as Porter did."  If the jury had been told about Porter's past, the court says, it might have opted for a life sentence because of "the intense stress and mental and emotional toll that combat took on Porter."  The justices cite testimony from the Senate Committee on Veterans Affairs that 23% of Iraq and Afghanistan war veterans seeking treatment at VA medical facilities have a preliminary diagnosis of PTSD.  They also suggest that evidence of a significant brain abnormality might exempt Porter from capital punishment akin to the exemption for people with "mental retardation."

In Oregon (and around the country) juries are generally skeptical of the insanity defense.  Similarly, district attorneys fight to keep the option of the death penalty for aggravated murder prosecutions.  It's interesting to see how this calculus is affected when the defendant represents values that are held in high regard by a community.  In the case of Bratcher, was the jury more inclined to recognize his insanity defense because he was a veteran and deeply religious?  For Porter, was the Supreme Court more open to considering mitigating factors of childhood abuse because he had exhibited remarkable bravery in battle fifty years ago?

The insanity defense is more than a legal maneuver.  It is an expression of public morality.   It isn't surprising that community values that go beyond mere psychological evaluations and expert opinions become key factors in jury decisions.

In April, 2001, a Portland police officer shot and killed José Santos Victor MejÍa Poot.  Mr. Mejia Poot was a patient on a psychiatric ward at the time of the shooting.  Disability Rights Oregon investigated and found that the private psychiatric facility where Mr. Mejia Poot was held did not have adequate structural or staffing safeguards and that Multnomah County had continued to use the facility even though it was aware of these deficiencies.  Interestingly enough, it turned out that the patient did not have a mental illness.  He was experiencing seizures.

I bring this up because the Mejia Poot family hired a lawyer to sue various parties to this tragedy.  One suit involved the police.  That case was settled and, as part of the settlement, the Portland police agreed to buy a new device for its officers: taser guns.  The police said that they would limit use of the tasers to situations in which deadly force was the only alternative.

So it is ironic that the taser, which was introduced to Portland as a way to avoid the gunning down of mentally ill people, has now become the option of choice for police who merely want to take a mentally ill person into custody.  For Portland police, the taser is no longer a substitute for deadly force, but a preemptive maneuver to disable a person whom they see as irrational.

Let's check the stats: In the July 2009 follow up report on the use of force by Portland police, issued by the Force Task Force to Chief Rosie Sizer, data show that when officers use non-lethal force, tasers are the favored intervention for people with mental illness.  When choosing among physical control, blunt impact, pepper spray or taser, police used the taser 52% of the time for citizens with mental illness.  For all groups (those with weapons, who are assaultive, intoxicated or mentally ill), tasers were used in 225 situations in which no resistance was indicated or the person failed to comply with an order.  When people were physically resistant or aggressive, tasers were used 1,116 times. 

As the quotation goes, there are lies, damn lies and statistics.  So the question remains, do police use tasers unnecessarily when dealing with people with mental disabilities?  Yesterday, the Ninth Circuit Court of Appeals decided that a police officer in California used excessive force when tasering a man who was nonthreatening and not trying to flee.  Among other things, the officer argued that the taser was justified because the man "may have been mentally ill and thus subject to detention."

Here is how the court responded:

To the contrary: if Officer McPherson believed Bryan was mentally disturbed he should have made greater effort to take control of the situation through less intrusive means. As we have held, “[t]he problems posed by, and thus the tactics to be employed against, an unarmed, emotionally distraught individual who is creating a disturbance or resisting arrest are ordinarily different from those involved in law enforcement efforts to subdue an armed and dangerous criminal who has recently committed a serious offense.”  [W]e have found that even “when an emotionally disturbed individual is
‘acting out’ and inviting officers to use deadly force to subdue him, the governmental interest in using such force is diminished by the fact that the officers are confronted . . . with a mentally ill individual.”  The same reasoning applies to intermediate levels of force. A mentally ill individual is in need of a doctor, not a jail cell, and in the usual case —where such an individual is neither a threat to himself nor to anyone else—the government’s interest in deploying force to detain him is not as substantial as its interest in deploying that force to apprehend a dangerous criminal. Moreover, the purpose of detaining a mentally ill individual is not to punish him, but to help him. The government has an important interest in providing assistance to a person in need of psychiatric care; thus, the use of force that may be justified by that interest necessarily 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. Thus, whether Officer McPherson believed that Bryan had committed a variety of nonviolent misdemeanors or that Bryan was mentally ill, this ... does not support the deployment of an intermediate level of force. (Click here to read the entire opinion.)

The bottom line for police in Portland and elsewhere? It's time to rethink how you're using tasers.  Shock treatment is so yesterday.

Yes, we ask for your support now because the tax person cometh and your gift to DRO is tax-deductible.

But much more importantly, we make the "ask" because so many more Oregonians with disabilities are hurting right now, and it is only with advocacy that they can secure their income, housing, health care and support services.  It is only with advocacy that they can remain safe from harm.

Best wishes for a new year of recovery for all,

Bob Joondeph
Executive Director

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