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.
A person is considered to have a disability if the person A) has a physical or mental impairment that substantially limits one or more major life activities, B) has a record of such impairment, or C) is regarded as having such an impairment.
Plaintiffs have brought claims in federal courts alleging violations of Title II arising out of arrests using three basic theories; wrongful arrest, failure to train, as well as failure to reasonably accommodate during an arrest. The courts that have addressed these claims are not unanimous in recognition of all or any of these theories as legitimate causes of action, yet a prudent sheriff or chief of police should be aware that the potential for protracted and expensive litigation in federal court does indeed exist.
Not all complaints are initially filed by plaintiff's in federal court. An aggrieved person may 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. In addition, 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 not able 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.
The wrongful arrest theory arises when police have wrongfully arrested a person with a disability because they misperceived the effects of that disability as, 'criminal activity.' An example of this type of discrimination is when the police mistake the symptoms of a person's stroke for operating under the influence and arrest the person. 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."
The DOJ recognizes some of the common issues that people with disabilities have when dealing with law enforcement personnel. These issues may form the basis for claims of wrongful arrest if the law enforcement personnel misperceive a person's conduct based upon a disability as, 'unlawful,' or, 'suspicious,' conduct. For example:
The wrongful arrest theory is not applicable when a plaintiff's actions were unlawful at the time they were arrested.
The, 'reasonable-accommodation-during arrest theory is based on 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 the process than other arrestees." Unlike the wrongful arrest theory, this one is based on a proper investigation or arrest of a person with a disability for unlawful conduct related to that disability. While courts have recognized the reasonable-accommodation-during-arrest theory as being viable, they have basically foreclosed the application of the 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 trying to arrest creates an, 'exigent and dangerous circumstance,' by threatening civilians or police officers.
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 people with mental health disabilities, prior to the officer's securing the scene and making sure there is no threat to human life. Law enforcement personnel conducting in-the-field investigations already face the task of frequently having to instantaneously identify, assess, as well as 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 before securing the safety of civilians, themselves, as well as other police officers, would present an unnecessary risk to innocents.
Another theory of liability is based on a failure to train officers on Title II of the ADA and how to interact with people who experience forms of disabilities. Plaintiffs have successfully alleged that the failure of a city or county to appropriately train its law enforcement officers for peaceful encounters with people with disabilities resulted in Title II ADA discrimination.
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 needed 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. A public entity must also take the appropriate steps to ensure that its communications with people with disabilities are as effective as communications with others. In order to comply with the nondiscrimination mandate, public employees must receive training.
Not all courts have addressed claims made against law enforcement under Title II of the ADA. The courts that have addressed such claims are not entirely consistent in their approach to the claims. Despite this, law enforcement agencies should not just wait until they become the object of a claim before they address some of the main 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. The DOJ recently completed an initiative to assist state and local law enforcement agencies, "understand their responsibilities under the Americans with Disabilities Act (ADA)." 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. Of the initiative, U.S. Assistant Attorney General Wan J. Kim stated, "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."
The DOJ materials that are specifically directed to law enforcement agencies are readily accessible and easy to get. The DOJ provides a resource for agencies that want to make sure their policies and training conform with the requirements of Title II of the ADA. The DOJ also offers a toll-free ADA information line at: 800-514-0301 (voice) or 800-514-0383 (TTY) and provides access to a number of pamphlets, publications and training materials through its web site.
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