By Martha S. Stonebrook, Senior City Attorney for Salt Lake City Corporation and Chief Counsel for the Salt Lake City Police Department
itle II of the Americans with Disabilities Act (ADA) provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefit of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity."1 A "public agency" is defined as "any department, agency, special purpose district, or other instrumentality of a State or States or local government."2 Similarly, section 504 of the Rehabilitation Act states that "no otherwise qualified individual with a disability…shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance."3 It has been determined that claims brought under these statutes will be analyzed together4and the case law interpreting each statute is applicable to both.5 Title II makes all activities of state and local governments subject to the same prohibitions against discrimination established by the Rehabilitation Act.6
Title II of the ADA applies to law enforcement agencies regardless of whether they receive federal grants or other federal funds because law enforcement agencies are deemed to be programs of state or local governments. The ADA affects the core activities of law enforcement departments including, but not limited to the following: receiving citizen complaints; interrogating witnesses; arresting, booking, and holding suspects; operating telephone (911) emergency centers; providing emergency medical services; and enforcing laws.7Nothing in Title II, its regulations, or its legislative history suggests that any police activities are excluded from Title II coverage.8
In order to state a claim for violation of Title II of the ADA, an individual must prove the following: (1) he or she is a qualified individual with a disability; (2) he or she has been excluded from participation in or denied the benefits of services, programs, or activities provided by a public entity or was otherwise discriminated against by the public entity; and (3) that such exclusion, denial or discrimination was because of the person's disability.9 A person is considered to have a disability if the person (1) has a physical or mental impairment that substantially limits one or more major life activities, (2) has a record of such impairment, or (3) is regarded as having such an impairment.10
Potential Liability for Title II Violators
Plaintiffs have brought claims in federal courts alleging violations of Title II arising out of arrests using three basic theories: wrongful arrest, failure to reasonably accommodate during an arrest, and failure to train. The courts that have addressed these claims are not unanimous in recognizing all or any of these theories as legitimate causes of action, but a prudent chief or sheriff should be aware that the potential for protracted and costly litigation in federal court exists.11
Not all complaints are initially filed by plaintiffs in federal court. An aggrieved individual can seek redress by filing a complaint with the United States Department of Justice (DOJ). The DOJ is authorized under 28 C.F.R. Part 35, Subpart F, and 28 C.F.R. 35.104 to conduct compliance reviews and to determine an entity's compliance with Title II of the ADA. The DOJ is authorized to issue findings and, where appropriate, negotiate and secure voluntary compliance agreements. Additionally, the attorney general of the United States is authorized pursuant to 42 U.S.C. 12133 to bring a civil action to enforce Title II of the ADA if the DOJ is unable to secure voluntary compliance. The mandates given by the DOJ to offending law enforcement agencies through settlement agreements and consent decrees are strict and leave the agency subject to DOJ oversight and compliance reviews at any time. Failure to comport with the requirements of the settlement agreement or consent decree exposes the agency to the potential for a civil action in federal court brought by the DOJ to demand specific compliance with the provisions and terms of the settlement agreement or consent decrees.12
The wrongful arrest theory arises when police have wrongfully arrested someone with a disability because they misperceived the effects of that disability as criminal activity.13 An example of this type of discrimination is when the police mistake the symptoms of an individual's stroke for operating under the influence and arrest him.14 Congress specifically addressed this type of wrongful arrest discrimination when the House Judiciary Committee stated that people with disabilities such as epilepsy "are frequently inappropriately arrested and jailed because police officers have not received proper training in the recognition of and aid of seizures."15
The DOJ recognizes some of the common problems that people with disabilities have when dealing with law enforcement personnel. These problems can form the basis for claims of wrongful arrest if the law enforcement personnel misperceive an individual's conduct based upon a disability as unlawful or suspicious conduct.16
- Unexpected actions taken by some individuals with disabilities may be misconstrued by officers or deputies as suspicious or illegal activity or uncooperative behavior.
- Individuals who are deaf or hearing impaired or who have speech disabilities or mental retardation or who are blind or visually impaired may not recognize or be able to respond to police directions. These individuals may erroneously be perceived as uncooperative.
- Some people with disabilities may have a staggering gait or slurred speech as a result of their disabilities or the medications they take. These characteristics, which can be associated with neurological disabilities, mental or emotional disturbances or conditions, or medical conditions such as hypoglycemia, may be misperceived as intoxication.
The wrongful arrest theory is not applicable when the plaintiff's actions were unlawful at the time of the arrest.17
Reasonable Accommodation during Arrest
The reasonable-accommodation-during arrest theory is based upon the contention that the law enforcement officer "failed to reasonably accommodate the person's disability in the course of investigation or arrest, causing the person to suffer greater injury or indignity in that process than other arrestees."18 Unlike the wrongful arrest theory, this theory is based upon a proper investigation or arrest of a person with a disability for unlawful conduct unrelated to that disability.19 Although courts have recognized the reasonable-accommodation-during-arrest theory as viable, they have essentially foreclosed the application of that theory to on-the-street responses to exigent circumstances. The Fifth Circuit articulated the well-accepted position that Title II of the ADA does not apply when the suspect the police are attempting to arrest creates an exigent and dangerous circumstance by threatening officers or civilians:
We hold that Title II does not apply to an officer's on-the-street responses to reported disturbances or other similar incidents, whether or not those calls involve subjects with mental disabilities, prior to the officer's securing the scene and ensuring that there is no threat to human life. Law enforcement personnel conducting in-the-field investigations already face the onerous task of frequently having to instantaneously identify, assess, and react to potentially life-threatening situations. To require the officers to factor in whether their actions are going to comply with the ADA, in the presence of exigent circumstances and prior to securing the safety of themselves, other officers, and any nearby civilians, would pose an unnecessary risk to innocents.20
Failure to Train
Another emerging theory of liability is based on a failure to train officers on Title II of the ADA and on how to interact with individuals with disabilities. Plaintiffs have successfully alleged that the failure of a city or county to properly train its law enforcement officers for peaceful encounters with individuals with disabilities resulted in Title II ADA discrimination.21
The regulations interpreting Title II of the ADA state that a public entity (such as a law enforcement agency) shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of a disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program or activity.22 A public entity must also take the appropriate steps to ensure that its communications with persons with disabilities are as effective as communications with others.23 In order to comply with the nondiscrimination mandate, public employees must be trained.24
The DOJ puts great emphasis on training, making it a key provision of settlement agreements it reaches with law enforcement agencies.25 The DOJ also closely monitors policies to make certain that law enforcement agencies, and other governmental entities, follow the mandates of Title II.26
How to Avoid Liability
Not all courts have addressed claims made against law enforcement under Title II of the ADA. Those that have addressed such claims are not entirely consistent in their approach to the claims. Nevertheless, law enforcement agencies should not simply wait until they become the object of a claim before they address some of the key issues raised by Title II of the ADA and the emerging theories of liability.
The DOJ does not wait for courts to rule before it pursues enforcement and compliance actions. The DOJ's commitment to enforcing the ADA is strong.27 The DOJ recently completed an initiative to help state and local law enforcement agencies "understand their responsibilities under the Americans with Disabilities Act."28 The DOJ mailed an offering to 25,000 police departments, sheriff's offices, highway patrols, and other state and local law enforcement agencies that included a variety of free ADA publications and videotapes developed specifically for law enforcement agencies.29 Of the initiative, U.S. Assistant Attorney General Wan J. Kim said, "This disability rights initiative demonstrates the department's continuing commitment to help state and local governments—including law enforcement—understand and comply with the ADA."30
If you have been the recipient of this recent DOJ mailing, take advantage of the resources it provides. In the event the DOJ performs a compliance review of your agency, it will be difficult for you to explain to the DOJ why your agency failed to use the information it provided to you. If you have not received the information from the DOJ, obtain it for your agency. Your proactive efforts to comply would help your agency deal with the DOJ during any future enforcement proceedings. The DOJ materials that are specifically directed to law enforcement agencies are readily accessible and easy to obtain. The DOJ provides a rich resource for agencies that want to ensure that their policies and training comport with the requirements of Title II of the ADA. The DOJ offers a toll-free ADA information line (800-5140301(voice) or 800-514-0383(TTY)) and provides access to numerous publications, pamphlets, and training materials on its Web site at (www.ada.gov).
It is time to incorporate the requirements and objectives of Title II of the ADA into your agency's training curriculum and to review and, if necessary, modify your agency's policies regarding interactions with individuals with disabilities. Don't wait until a lawsuit or an enforcement action by the DOJ forces you to make the necessary changes. ■
1 42 U.S.C. 12132.
2 42 U.S.C. 12132(1)(B).
3 29 U.S.C. 794(a).
4 Thompson v. Williamson County, 219 F.3d 555, 557 n.3 (6th Cir. 2000).
5 Hainze v. Richards, 207 F.3d 795, 799 (5th Cir. 2000).
6 Schorr v. Borough of Lemoyne, 243 F. Supp. 2d 232, 236 (M.D. Pa. 2003).
7 U.S. Department of Justice, Civil Rights Division, "Commonly Asked Questions about the Americans with Disabilities Act and Law Enforcement," (www.ada.gov).
8 Schorr, 243 F. Supp. 2d at 236.
9 Gohier v. Enright, 186 F.3d 1216, 1219 (10th Cir. 1999); Hogan v. City of Easton, 2004 WL 1836992 (E.D. Pa.).
10 U.S. Department of Justice, Civil Rights Division, "Commonly Asked Questions about the Americans with Disabilities Act and Law Enforcement," (www.ada.gov).
11 See, for instance, Kennington v. Carter, 2005 WL 555367 (S.D. Ind.) (Plaintiff awarded $51,201.95 in attorneys' fees and $2,511.56 in costs after court rules sheriff violated ADA).
12 42 U.S.C. 12133.
13 Gohier, 186 F.3d at 1220.
14 Buchanan v. Maine, 417 F. Supp. 2d 45, 72 (D.
15 Gohier, 186 F.3d at 1221, quoting H.R. Rep. No. 100-485, pt. III (1990) reprinted in 1990 U.S.C.C.A.N. 445.
16 U.S. Department of Justice, Civil Rights Division, "Commonly Asked Questions about
the Americans with Disabilities Act and Law Enforcement," (www.ada.gov).
17 Gohier, 186 F. 3d at 1221; see also Buchanan, 417 F. Supp. 2d at 72 (One can only reasonably conclude that the officers trained their weapons on plaintiff because he was carrying a high-powered rifle in a crowded shopping area, not because of misperceptions stemming from his disability.)
18 Gohier, 186 F. 3d at 1220.
19 Sudac v. Hoang, 378 F. Supp. 2d 1298 (D. Kan. 2005) citing Gohier, 186 F.3d at 1220-21.
20 Hainze v. Richards, 207 F3d 795, 801 (5th Cir. 2000). See also Thompson v. Williamson County, 219 F3d 555 (6th Cir. 2000); Bircoll v. Miami-Dade County, 410 F. Supp. 2d 1280, 1284 (S.D. Fla. 2006).
21 Schorr, 243 F. Supp. 2d at 239; Hogan, 2004
WL 1836992 (E.D. Pa.).
22 28 C.F.R. 35.130(b)(7).
23 28 C.F.R. 35.160(a).
24 Gohier, 186 F. 3d at 1221.
25 See, for example, Settlement Agreement between the United States of America and City of Franklinton, Louisiana, (www.usdoj.gov/crt/ada/franklintonpolice.htm), and Settlement Agreement between the United States of America and Glendale Police Department, Glendale, Arizona, (www.usdoj.gov/crt/foia/az2.txt).
27 On July 26, 2000, the 10th anniversary
of the ADA, then U.S. Attorney General Janet Reno said: "As attorney general, I have made enforcement of the ADA one of my top priorities. At the Justice Department we have engaged in extensive educational outreach, and entered into hundreds of agreements ensuring greater access to thousands of businesses and governments. We have also increased the number of attorneys who enforce the law, and stepped up funding for ADA-related programs across the country. . . . [W]e will continue to build on this past decade of access" (U.S. Department of Justice, Civil Rights Division, "Enforcing the ADA: Looking Back on a Decade of Progress," (www.usdoj.gov/crt/ada/pubs/10thrpt.htm).
28 U.S. Department of Justice, Civil Rights Division, "Disability Rights Online News," June 2006, (www.ada.gov/newsltr0606.htm).
29 Id. The mailing provided information on how to order the videotape "Police Response to People with Disabilities," which is divided into eight segments designed for roll-call training. The DOJ also provided a brochure for officers to use and a model policy regarding how to effectively communicate with the deaf and hard of hearing. "Failure to provide effective communication is the most frequent complaint the Department receives against law enforcement under the ADA."