Monthly Archives: June 2019

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.

Pre-Law Institute Wins National Award

Pre-Law Institute Wins National Award

The Oliver Hill/Samuel Tucker Pre-Law Institute won first place in the 2019 Embracing Diversity Challenge hosted by the American Bar Association (ABA) Young Lawyers Division.

Named for legendary civil rights attorneys Oliver Hill and Samuel Tucker, the institute reaches future lawyers at an early age to provide them with exposure and opportunity to explore the legal profession, all at no cost to the participants.

Founded by the VSB Young Lawyers Conference and now co-sponsored by the VSB’s Diversity Conference, the Hill/Tucker Institute introduces minority high school students to the legal profession with a week of mock classes and seminars on career opportunities in the law, test taking strategies, and the college admissions process. Networking with lawyers and judges, as well as a mock trial, round out the week of activities on a college campus.  

The institute is funded through the Diversity Conference and through generous yearly grants from the Virginia Law Foundation.

The ABA Young Lawyers Division’s Embracing Diversity Challenge recognizes and awards top young lawyer organization programs that increase diversity in the legal profession. Programs developed by young lawyer groups across the country were showcased at the 2019 ABA Young Lawyers Division Spring Conference in Washington, D.C., and received grants.

This is the second award that the VSB has won in this competition, winning a third-place award for the Logsdon Mentorship Network in 2016. This is the first overall first place award that a Virginia bar has taken in this competition.

Wesley Allen and Courtney Frazier, chairs of the Hill/Tucker Institute, stated:

We are thrilled to learn of this honor. This award further enables the institute to scale its footprint, reach and ultimately serve a broader constituent base, and further bolster the diversity in the pipeline to the legal profession. We encourage other bar associations who are considering establishing such a program to contact us, as we can think of no greater privilege than to touch the lives of the next generation of lawyers.

Hill/Tucker Institute Chairs Wesley Allen (far left) and Courtney Frazier (second from left) and Diversity Conference Board Member Chris Fortier (center) accepting the Embracing Diversity Challenge grant at the Library of Congress on May 3, 2019, from Paula Martucci of Walmart (second from right), and ABA Young Lawyers Division Chair Tommy Preston (far right).


By Karla D. Carter, Esquire

John Whitfield knows hard times. Born and raised in rural Staunton, Virginia with the Blue Ridge and Allegheny mountains as a backdrop, Whitfield’s family was among the low- income population living in the predominantly rural community. When he was still a child, Whitfield’s mother faced a serious legal problem and could not afford to hire an attorney to represent her in the civil matter. A local lawyer stepped up to offer his services, pro bono. This lawyer’s decision to help a family facing a desperate situation left a lasting impression on the young Whitfield, who later went on to become a lawyer who has devoted his career to helping the poor. Whitfield now serves as Executive Director of Blue Ridge Legal Services, a legal aid organization serving the low-income population in his native Shenandoah and Roanoke River Valleys. His family has received the legal services he now gives to others, and he recognizes its value. “But for the charity of a willing lawyer, my mom’s legal rights would have been worthless,” Whitfield said. The “willing lawyer” who helped his family is now-retired Court of Appeals Judge Rudolph Bumgardner III. He was a private attorney who offered his services to meet a need, a need that continues to persist decades later and which exceeds the capabilities of the legal aid organizations across the Commonwealth.


Currently, there is one legal aid lawyer for every 7,237 Virginians. If you can afford a lawyer, that number drops considerably: there is one lawyer for every 349 Virginians.i While these statistics encompass the low-income populations of both rural and urban areas, rural communities in Virginia and across the nation face unique issues by virtue of their geographic location.


Often times, those in need in rural areas face isolation brought on by the lack of transportation options and limited broadband access in their areas. Also, some of these people are “land poor” in that they don’t have clear title to their land. These “intractable issues” relating to title problems can deprive people of basic needs, according to Ann Kloeckner, Executive Director of Legal Aid Works®, a legal aid organization serving the City of Fredericksburg and 17 rural counties surrounding Fredericksburg and in the Northern Neck region of Virginia. Soon after starting with Legal Aid Works®, Kloeckner toured the Northern Neck region of the state and visited with an attorney-turned-pastor who led a church which ran a “water ministry” in the community providing water to people who were unable to dig wells on their property because they lacked clear title to their land.

In other instances, property is often lost because one or more of the property owners are unknown. One summer, while volunteering at a legal aid office, John Whitfield recalls going through a drawer in the local clerk’s office filled with parcel information cards. All of the cards represented parcels with unknown owners, many of whom are likely part of a recurring scenario I have often come upon in my practice: a family member dies without a will, often leaving heirs spread across multiple generations, some of whom are incarcerated, laboring under some other disability, or otherwise unable to be found. The property sits vacant or becomes dilapidated and is often auctioned for unpaid taxes or is condemned due to blight.

Those undug wells and that drawer full of cards both represent the same thing: the loss of legacies, history, and wealth impacting many poor families in rural America, particularly those in the poor African-American communities.

Along with title problems, Whitfield and Kloeckner describe another issue impacting the communities they represent: affordable housing. According to Whitfield, “substandard housing” in rural areas of Virginia is only too common. “Rural landlords get away with a lot,” says Whitfield, because existing buildings are not subject to inspection and often there is no code enforcement services available in rural communities. “It is much harder when you don’t have a building code official to enforce,” says Whitfield. People living in “third world conditions” but don’t want to “rock the boat” because the housing, albeit substandard, is all they can afford, says Kloeckner. “The power of having a landlord/tenant attorney represent you in court makes so much difference,” said Kloeckner. A recent study of the Virginia court system underscores this truth.


Unrepresented tenants often fare poorly in court, compared to those who have attorneys, according to a study produced by the National Center for State Courts. (ii) The study, the first of its kind in Virginia, discusses civil case outcomes in the General District, Juvenile & Domestic Relations, and Circuit courts in the Commonwealth. The study shows a clear correlation between poverty and the lack of legal representation in the courts. The study found that the greater the extent of poverty in a locality (often a rural community), the less likely that parties will have an attorney. (iii)

This lack of representation of the poor in court more often than not translates into unfavorable outcomes for the unrepresented litigant. “Poverty, and the concomitant inability to retain counsel creates a significant barrier to successful outcomes for unrepresented poor litigants in Virginia’s courts, notwithstanding the best efforts of our judges to treat all litigants fairly,” said Whitfield in a presentation on the findings of the study. (iv)

Of the 24,168 active attorneys practicing in Virginia as of April 2017,(v) 132 are legal aid attorneys, (vi) in a state where nearly a million people live in poverty (942,122), according to U.S. Census 2016 estimates.vii The staggering need for the assistance of willing attorneys to provide pro bono services in Virginia cannot be emphasized enough.  


An attorney’s decision to serve, or if unable to serve, then to donate in support of legal aid organizations, has the potential to set into motion a course of events that could alter the trajectory of not only the person being represented, but that of their families and communities. In John Whitfield’s case, the choice one lawyer made many years ago to help his family in need was a seed sown in Whitfield’s life, a seed which continues to yield a great harvest in the form of the lives of the many people and families he has been able to assist during his career.

Consider being another “willing lawyer,” like the one who helped John Whitfield’s mother those many years ago. The Virginia Rules of Professional Conduct, Rule 6.1 encourages attorneys to devote time or money to pro bono service. The Comment to Rule 6.1 provides:

Every lawyer, regardless of professional prominence or professional work load, has a personal responsibility to provide legal services to those unable to pay, and personal involvement in the problems of the disadvantaged can be one of the most rewarding experiences in the life of a lawyer.

Attorneys who find themselves unable to take on pro bono cases are still able to help. Monetary donations are critical to the success of legal aid organizations and also meet the Virginia State Bar’s goals for attorney pro bono participation.viii An attorney’s donation of time or money will have a lasting impact. Every minute donated matters, as does every dollar, no matter the amount.

Just ask John Whitfield.


Contact the legal aid organization in your area to find out ways to volunteer or donate. Several of the organizations are listed below, but for additional information on pro bono resources available to attorneys, visit the Virginia State Bar’s website at:

•Blue Ridge Legal Services – (540) 433-1830 (main office in Harrisonburg, offices in Winchester, Lexington, and Roanoke)

•Central Virginia Legal Aid Society – (804) 200-6046 or (804) 648-1012 (main office in Richmond, offices in Petersburg, and Charlottesville)

•Legal Aid Justice Center – (434) 977-0553 (main office in Charlottesville, offices in Richmond, Petersburg, and Falls Church)

•Legal Aid Society of Eastern Virginia – (757) 627-5423 (main office in Norfolk, offices in Hampton, Virginia Beach, Belle Haven, and Williamsburg)

•Legal Aid Society of Roanoke Valley – (540) 344-2080 (Roanoke)

•Legal Services of Northern Virginia – (703) 778-6800 (main office in Falls Church, offices in Arlington, Alexandria, Fairfax, Leesburg, and Manassas)

•Legal Aid Works – (540) 371-1105 (main offices in Fredericksburg, offices in Culpeper, and Tappahannock)

•Southwest Virginia Legal Aid – (888) 201-2772 (main office in Marion, offices in Castlewood and Christiansburg)

•Virginia Legal Aid Society – (434) 455-3080 (main office in Lynchburg, offices in Danville, Farmville, and Suffolk)

•A new Pro Bono Portal is now available that connects attorneys with multiple legal aid services providers through one site, allowing attorneys to take on a case anywhere in the state. For more information visit:

i Source: “Ten Facts About Virginia’s Justice Gap,” Virginia State Bar Pro Bono/Access to Legal Services

ii Source: The Virginia Self-Represented Litigant Study, National Center for State Courts, 2017, see

iii Source: The Virginia Self-Represented Litigant Study, National Center for State Courts, 2017, see

iv Source: Powerpoint presentation of John Whitfield “The Virginia Self-Represented Litigant Study: Outcomes of Civil Cases in General District Court, Juvenile & Domestic Relations Court, and Circuit Court”

v Source: Powerpoint presentation of John Whitfield “The Justice Gap: Perspectives from the Bench on Pro Bono Services”

vi Source Source: Powerpoint presentation of John Whitfield “The Justice Gap: Perspectives from the Bench on Pro Bono Services” (quoting LSCV Annual Report, September 2016)

vii Source Source: Powerpoint presentation of John Whitfield “The Justice Gap: Perspectives from the Bench on Pro Bono Services”

viii From the Virginia State Bar Rules of Professional Conduct, Rule 6.1, subsection (c) provides: Direct financial support of programs that provide direct delivery of legal services to meet the needs described in (a) above is an alternative method for fulfilling a lawyer’s responsibility under this Rule.

AUTHOR BIO Karla Carter is an assistant city attorney for the City of Suffolk, Virginia where she represents the City, the Suffolk Economic Development Authority, and various boards and commissions on various matters involving real estate, land use, economic development, environmental law, franchises, and child welfare law. Prior to coming to Suffolk in 2006, Ms. Carter served as an assistant city attorney in Virginia Beach (1999-2006) and as a law clerk for the Seventh Judicial Circuit (Newport News) (1997-1999). A native of Lancaster County, a rural community in the Northern Neck of Virginia, Ms. Carter graduated from the College of William and Mary in 1993 and the University of Richmond School of Law in 1997.