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By: Brian Dempsey and Ali Sabzevari
Title II of the Americans With Disabilities Act (“ADA”) prohibits a “public entity” from discriminating against a “qualified individual with a disability” based upon that individual’s disability. An individual is deemed to have a disability in the context of the ADA if the individual: (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.
While individual officers will not be held liable under the ADA, counties and municipalities may be held liable for the discriminatory acts of its law enforcement officers if a plaintiff can show that: (1) he is a qualified individual with a disability; (2) he was either excluded from participation in or denied the benefits of a public entity’s services, programs, or activities, or was otherwise discriminated against by the public entity; and (3) the exclusion, denial of benefit, or discrimination was by reason of the plaintiff’s disability.
Although application of the ADA to law enforcement activities varies widely from circuit to circuit, claims mainly arise under three legal theories: (1) wrongful arrest; (2) failure to reasonably accommodate; and (3) failure to train. The following is a brief discussion of each of these commonly employed legal theories and certain aspects that warrant particular attention.
Courts that recognize a wrongful-arrest claim under the ADA do so in situations where law enforcement officers have wrongfully arrested a qualified individual with a disability because they misperceived the effects of that disability as criminal activity. In other words, liability may arise where law enforcement officers misconstrue certain actions taken by a qualified individual with a disability as suspicious, illegal, or uncooperative behavior. For example, a person may appear to be intoxicated when she in fact has a disability that causes her to have slurred speech, loss of balance, become lethargic, or become unconscious. Other examples include instances where a person suffering from a seizure may be perceived as being belligerent or disturbing the peace, or where a person who is deaf may appear as uncooperative.
However, a wrongful arrest claim under the ADA is not without limits. A disabled individual whose actions were unlawful receives no immunity from arrest due to his disability. For instance, an officer’s conduct in attempting to subdue an individual who is suffering from schizophrenia is not a wrongful arrest when the individual threatens the officers with a knife. As a result, probable cause to arrest a qualified individual with a disability will also likely foreclose liability under a wrongful arrest theory.
Failure to Make Reasonable Accommodations
Under a reasonable accommodations theory, liability is generally imposed where law enforcement officers fail to reasonably accommodate a qualified individual’s disability in the course of investigation or arrest, causing the person to suffer greater injury or indignity than other arrestees. For example, arresting, interrogating, or jailing a deaf individual without providing interpretive services may give rise to liability. However, an exception to this theory exists where law enforcement officers are faced with exigent circumstances in the line of duty. Law enforcement officers are not required to make accommodations prior to securing the safety of themselves, other officers, and any nearby civilians. In that light, the ADA would not apply to a law enforcement officer’s on-the-street responses, regardless of whether the incident involves subjects with physical or mental disabilities, prior to the officer securing the scene and ensuring that there is no threat to human life. That being said, once the officer has secured the area and the threat to human safety has been eliminated, the officer is under a duty to reasonably accommodate the qualified individual’s disability. The Eleventh Circuit has further limited potential liability under this theory by holding in Bircoll v. Miami-Dade County that the duty to provide a reasonable accommodation is not even triggered until a specific demand for an accommodation is made.
It is important to note that a wrongful accommodations claim is not limited to the context of arrests, but applies to providing accommodations after arrests, such as during police transportation and subsequent interrogations. For instance, an individual who sustains injuries while being transported in a police vehicle that was not equipped with wheelchair restraints may have an ADA claim. Moreover, liability may also arise for failing to provide reasonable accommodations to disabled inmates in jails and prisons. For example, a county jail may be liable under the ADA for depriving a disabled inmate of a wheelchair. Also, a prisoner who is denied access to certain amenities or programs because of a medical history may have a viable claim under the ADA.
Failure to Train
An emerging theory of liability under the ADA is based upon a failure to train. Courts have not been entirely consistent in their approach to this claim. In some jurisdictions, liability has been imposed on a county or municipality’s failure to train its law enforcement officers for peaceful encounters with disabled persons where such failure necessarily causes discrimination. Some jurisdictions, on the other hand, have failed to directly address whether a failure to train claim is even recognized under the ADA.
Courts which recognize such a claim look to the legislative history of the ADA. The House Judiciary Committee stated, “In order to comply with the non-discrimination mandate, it is often necessary to provide training to public employees about disability,” and such “discriminatory treatment based on disability can be avoided by proper training.” When enacting the ADA, Congress found that individuals with disabilities continually encounter various forms of discrimination, including failure to make modifications to existing practices.
Regulations promulgated by the Department of Justice are also instructive. According to the preamble of the regulations that interpret Title II of the ADA, “[t]he general regulatory obligation to modify policies, practices, or procedures requires law enforcement to make changes in policies that result in discriminatory arrests or abuse of individuals with disabilities.” Moreover, under 28 C.F.R. § 35.105(a), a public entity shall evaluate its current services, policies, and practices that do not or may not meet the requirements of the ADA, and if necessary, the public entity shall proceed to make necessary modifications. And, according to 28 C.F.R. § 35.130(b)(7), a public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.
Courts that decline to recognize a failure to train claim do so by turning to the plain language of the ADA itself. These courts hold that when looking at the plain language, a violation of Title II of the ADA does not occur until there has been an exclusion or denial of participation in, or the benefits of, a public entity’s services, which manifestly occurs well after any training of the public entity’s agents. Another reason to foreclose such a claim is that acts or omissions involved in failing to train an officer to deal with individuals with disabilities may have a disparate impact on these individuals as a class, but can never by itself equate to a specific act of intentional discrimination against a particular individual.
While it would be unreasonable to expect law enforcement officers to diagnose or recognize every disability, to avoid potential liability, officers should make an effort to distinguish between the effects of a disability from criminal behavior. Moreover, law enforcement officers should be cognizant that unless they are faced with exigent circumstances entailing a necessity to secure the scene or eliminate a threat of harm, they have a duty to provide reasonable accommodations to a qualified individual with a disability. Lastly, although jurisdictions are not uniform, counties and municipalities should consider incorporating the requirements and objectives of the ADA in training materials and to modify policies, if necessary, to guide officers’ interactions with disabled individuals.