The Autism Spectrum and the Legal Process An Overview
By: Walewska M. Watkins, Esq.
An Autism Spectrum diagnosis identifies individuals with distinct, but not identical, approaches or challenges in the areas of social communication and interaction. These distinctions may also manifest themselves in the ways in which they approach sensory stimuli and how they organize their lives to cope with stimuli. Individuals who have received an Autism Spectrum diagnosis are sometimes referred to in “person first language” as “persons with Autism.”
Hereinafter, this writing includes what Autistic advocates designate as “identity first language” and refers to them as “Autistics” or “Autistic individuals.” This linguistic choice brings into focus a part of their identity relevant to the discussion and inseparable from how they experience the world. Not only is it espoused by Autistic self-advocates internationally, it has been decisively supported by experts in child psychology and psychiatry.
Public Perception of Autism
The public’s perception about Autistic individuals is rife with ableist stereotypes, condescension, and contempt. Depending upon the communicator’s bias, these individuals are portrayed as, for example, too naïve to understand the world around them, too aggressive to be reasonable, too rigid to follow or break the rules, too indifferent to empathize, and too inarticulate to self-advocate.
Even those purportedly well-meaning often contribute to these mischaracterizations by equating potential co-morbid conditions—such as brain injuries, intellectual disabilities, obsessive compulsive disorders, anxiety or depression, and epilepsy—with Autistic traits. Those less well-intended equate Autistic traits with criminal behavior.
Insidious stereotypes of incompetence, intransigence, and aggression disadvantage Autistics as students, parents, constituents, employees, and as participants within judicial and administrative systems. Stereotypes, after all, are still too frequently the only context that emergency responders, law enforcement personnel, civil and criminal counsel, and judicial and administrative adjudicators have when interacting with Autistic children and adults.
Thanks in no small measure to Autistic advocates, state and local governments have begun to recognize that when their agents fail to engage in meaningful personal interactions with Autistic individuals and to develop the skills necessary to adapt existing protocols, the civil and criminal consequences can be unnecessarily devastating and lifelong.
To an emergency responder without personal life experience with Autistic behaviors and without the training needed to recognize them, the actions or reactions of some Autistic individuals may easily seem suspicious or threatening enough to trigger physical confrontations and arrests or worse. For instance, some Autistic individuals respond to everyday life situations and crisis events in ways that may seem counterintuitive.
Thus, because of the hardships that our public environments impose (e.g., excessive noises, sounds, smells, vibrations, etc.) and the neurologically divergent ways in which Autistics process stimuli, some may misunderstand dangerous situations and either fail to stand back or flee when asked to remain. Others may misapprehend behavior intended as comforting and believe themselves imperiled.
Whether “situationally non-verbal” or hindered by confusion or anxiety, Autistics who are subject to unexpected or unfamiliar demands or who are otherwise in a crisis may be temporarily unable to understand or timely and appropriately react to a commanding presence, unfamiliar requests, and non-verbal communication. [I use the phrase “situationally non-verbal” because individuals unable to engage in an extended spoken exchange may be able to communicate when supported by alternative languages (or forms of language), visual aids, or technological supports.]
Failings of the Legal System Carry Costs
The case of Ricardo (“Ricky”) Hayes best illustrates the failings of our legal system. Ricky was an Autistic child who had been reported missing after wandering off from his caretaker. He posed no threat save to himself and was unarmed. Several home security videos recorded Ricky running through the streets, first merely lost and clearly tired then frightened by a dark vehicle chasing him.
After Ricky stopped on a residential sidewalk and turned to look at the vehicle—driven by a Chicago Police Department officer—, it stopped in the middle of the street. Ricky appeared to study the driver—who sat in the vehicle and was shielded from view by a parked car between them—and tentatively and calmly began to approach.
Whereupon, the officer shot him twice: once in the chest, once in the arm. As a result, the Chicago Police Department suspended the officer (with pay) and Ricky’s family filed a lawsuit against both the officer and the Department for violation of Ricky’s federal civil rights, rights under the American with Disabilities Act (ADA), and bodily and emotional injuries: Hayes v. City of Chicago et al., Civ. No 1:18-cv-05515 (assigned to the Hon. John Robert Blakey). As of this writing, the defendants had not yet filed an answer. Regardless of the legal outcome, a young man was injured and exposed to trauma not easily overcome.
Another example is the case of Arnaldo Ríos-Soto, an Autistic adult with limited speech ability, and his professional caretaker Charles Kinsey. According to a complaint filed on behalf of Mr. Ríos-Soto, shortly after Mr. Ríos-Soto had wandered off his North Miami residential treatment facility, he sat down on the street, oblivious to danger while playing with his toy truck. Soto v. City of Miami et al., Civ. No. 1:17-CV-22090-RNS, 2017 WL 8948716 (First Amended Complaint).
Assuming he was suicidal and holding a gun, a passerby alerted emergency responders, who showed up brandishing assault rifles and believing Mr. Ríos-Soto intended to engage in criminal conduct. As his caretaker, Mr. Kinsey attempted to communicate with the officers to inform them of Mr. Ríos-Soto’s diagnosis and to clarify that the latter was merely engaged in play.
While Mr. Kinsey lay on the ground—face up, unarmed, and with his hands raised—, two police officers (at least one of which was a sergeant) visually confirmed the statements and transmitted the information over recorded police radio waves. Despite this, another officer twice shot Mr. Kinsey, whose blood showered Mr. Ríos-Soto and whose agonizing screams frightened him further. Both were arrested and placed in handcuffs.
Shortly thereafter, the residential facility’s CEO arrived on the scene, but his efforts to speak on behalf of Mr. Ríos-Soto were actively rejected for at least thirty minutes. Police insisted on questioning him alone for more than two hours even after receiving information about Mr. Ríos-Soto’s diagnosis from this second source.
As a result of these events, Mr. Ríos-Soto’s complaint alleges that he has been traumatized, often reliving the incident and living in abject terror of anyone in uniform. He had to be transferred to a more restrictive treatment facility in a city five (5) hours away (resulting in his family’s need to relocate their work and residence) and is no longer able to participate in community life.
The Miami-Dade Officer of the State Attorney, 11th Judicial District, initiated a criminal investigation and the officer who fired the shots was indicted and charged with two felony counts of attempted manslaughter. Mr. Ríos-Soto’s caretaker, Mr. Kinsey, also filed a federal suit against the charged officer, other officers, and the City of North Miami: Kinsey v. Aledda, Civ. No. 1:16-cv-23330-JAL). Ríos-Soto’s case, once again, illustrates the failings of our legal system to young and old in our society who fall within the Autism Spectrum.
Need for Training of Police and Prosecutors
Inarguably, an Autistic who is unable to effectively engage police resources and to ensure the fair application of any restrictions to their civil and constitutional rights because of his or her neurodivergent thought processes experiences a substantial limitation to major life activities. This substantial limitation would likely qualify him or her as a person with a disability entitled to protection from state-sponsored discrimination under Title II of the ADA.
Specifically, Title II makes it incumbent upon State and local law enforcement to take reasonable steps—including training and the modification of existing practices or protocols—that ensure the protection of Autistics’ individual rights. 42 U.S.C. § 12132. Pursuant to ADA regulations, law enforcement agencies may not transfer the costs of such reasonable steps to the individual requiring them. 28 C.F.R. § 35.130(f).
Jurisdictions around the United States have embraced these obligations (as well as others arising under the Individuals with Disabilities Education Act, IDEA) to varying degrees. Some states have enacted statutes requiring and funding the development of policies and programs to train law enforcement officers on how to recognize certain Autistic behaviors and adapt their interactions. A few include proactive community policing practices that allow officers to build relationships with Autistic individuals and their support systems.
These interactions provide officers strategies to minimize the use of force, use alternative means of communication (including visual supports, electronic tablets, American Sign Language, slower pace, lower volume, and simple sentences), and recognize sensory overload (which may be confused with aggression) and information processing challenges (which may be confused with non-compliance).
The most detailed and effective programs train officers with specificity, expecting them to inquire about the individual’s caregivers or counselors. This training must also provide officers with practice scenarios that confront them with behaviors such as echolalia, the unconventional use of items or association of ideas, and repetitive motions, sometimes called stimming, such as flapping or jumping. (Generally, echolalia is the automatic repetition of sounds or words that may not serve as clear a communicative purpose as shared language that is directly responsive to a comment or question, but which may nevertheless have an expressive or socially interactive function.)
Need for Legislative Consideration
Exemplary legislation requires officers to allow the presence of support professionals—irrespective of the presence of counsel— when interviewing Autistic victims and suspects (though, strangely, not necessarily witnesses). It further ensures that—where relevant—all prosecutors, public defenders, and court officials who interact with these individuals are aware of their diagnosis.
This information may alter the balance when making determinations on the legal reasonableness of an Autistics perception or actions, their capacity to meaningfully participate in a hearing (and, if so, for how many minutes or hours at a time), and the appropriateness of any punishment meted out.
During an investigation and throughout any legal process, support professionals can help Autistic individuals articulate their strengths and deficits, slow down the speed of an interrogation, simplify complex language to avoid misunderstandings and frustration, safeguard their need for movement or other sensory accommodations, and alleviate the stress of such an unexpected experience.
Though better than the absence of legislation, some less comprehensive statutes merely require good faith efforts to obtain professional support and are only triggered when affirmatively requested by the individual or a knowledgeable third party.
There are also those jurisdictions that encourage Autistics to self-identify non-verbally by including diagnostic information in their state identification or driver’s license cards or by wearing a medical bracelet to alert officers about the latter’s obligation to provide reasonable accommodations and use alternative protocols (though what such includes may remain undefined).
Yet, as the Ríos-Soto case demonstrates, identification as an Autistic does not necessarily guarantee civil or constitutional rights in moments of crisis. Moreover, as many advocates have pointed out, an identification card that requires an Autistic in crisis and in the presence of law enforcement to reach into its clothing or a shiny metallic bracelet that may be confused with a weapon may be likely to aggravate an unready tense situation.
Current Legislative Efforts in Virginia
In Virginia, the General Assembly has considered various bills to establish training standards and protocols for police interactions with Autistic individuals. While legislation awaits approval, the Department of Criminal Justice Services has stepped in. The Department has multi-faceted responsibilities including oversight and management of training standards and regulations for the criminal justice community, training programs in public safety and homeland security, the Crime Prevention and Accreditation Programs, and the development of law enforcement policies.
The Department has also developed training events under the umbrella of “Autism Awareness for Law Enforcement, K-12 School Personnel, and Campus Security” and also offers “Law Enforcement Response to Individuals with Intellectual/Developmental Disabilities Train the Trainer,” which complement basic police academy training.
There are also interagency training efforts that bring together law enforcement officers with staff from other state agencies such as the Virginia Department of Health and the Department of Education and with members of the public-private partnerships. It is thus that law enforcement training academies across the Commonwealth now provide officer training on the recognition of Autistic traits and the reasonable adaptation of police protocols as part of their general curriculum.
As is done in other jurisdictions, Virginia police officers engage in community policing activities that place them in schools and other education centers that include Autistic students—often as School Resource Officers (SROs). Much of the emphasis of the SRO training is on de-escalation and non-interference strategies that allow the school’s educational and administrative staff to take control of volatile situations. These activities encourage the officers to limit their intervention to maintaining a safe perimeter, whenever possible.
In addition, some local and county officers voluntarily engage in community policing visits at area public and private schools for Autistic children. These visits provide officers an opportunity to engage the children in non-coercive settings, to interact with them in terms others than stereotypes, and to observe how—whether with ease or difficulty—Autistics can self-control when overloaded if allowed to do it in their own terms.
Finally, like other jurisdictions, the Commonwealth has enacted a self-identification initiative known as “JP’s Law.” VA Code §46.2-342; VA Code §46.2-345. The law allows Autistics to include a medical indicator of their Autism Spectrum diagnosis in their state issued identity card or driver’s license as may do those who are Diabetic, Epileptic, or Deaf.
Efforts by those in our public sectors to (re)educate themselves and reasonably accommodate our Commonwealth’s Autistic residents and visitors are not just a commendable indulgence but are rather an imperative of justice. It is clear, of course, that training alone is insufficient without the additional coordination of paramedics, mental health professionals, social workers, and law enforcement.
It is also clear, however, that all government officials who receive continuous education on Autistic behavior and who consistently engage with Autistics in non-crisis settings are better equipped to honor the civil and constitutional rights of this population. They are also better equipped to transform the outcome of any crisis resolution and to facilitate well-grounded fact finding, a fair adjudication of liabilities (if any), and the imposition of proportional remedies (when needed).
Ultimately, this is what all Virginians—rural, urban, and suburban—work for and expect and what no Virginian—Autistic or otherwise—must be denied. Virginia’s legal community needs to get involved; the challenges of autism affect every facet of our legal edifice.
The author, Walewska M. Watkins, is the neurotypical mother of an Autistic child. Ms. Watkins has a Juris Doctor from the Georgetown University Law Center and an LLM from the Tulane University Law School. She is licensed to practice law in the Commonwealth of Virginia as well as in New York, California, the District of Columbia, and her native Puerto Rico.
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