When the Supreme Court heard argument in City & County of San Francisco v. Sheehan in the spring of 2015, it intended to resolve a circuit split. In granting certiorari, the Court planned to clarify whether individuals with disabilities can sue police officers under the ADA if an officer fails to accommodate a disability in the course of an arrest. However, because the petitioners failed to brief the Court on that question, the portion of the case involving the ADA was dismissed as improvidently granted. Justices Scalia and Kagan were so enraged by the failure to brief on the “certworthy” question that they issued a partial dissent, refusing to issue opinions on any of the attendant issues.

Nearly two years later, courts are still in tension, unable to agree on how to balance the statutory requirements for ADA compliance with the necessity of providing police the requisite leeway to keep both officers and the public safe. This Note provides an in-depth survey of existing jurisprudence, reorganizing the courts’ differing tests along clear lines. It then posits a solution: a tripartite test to be applied on a sliding scale that would require officers to afford increased accommodations to individuals with disabilities as a situation becomes more secure. Given that under the current regime individuals with untreated mental illnesses are sixteen times more likely than other citizens to be killed by police officers when stopped, a new sliding scale test would hopefully engender reforms in police departments throughout the country that could decrease the incidence of violent confrontations.