[Hpn] cops the ada and the courts
Thu, 27 Feb 2003 06:14:31 -0500
On Wed, 26 Feb 2003 19:21:44 -0500 "joe harcz kalamazoo adapt mcbvi"
ADA Applies in Context of Police Arrest
Coverage of law intended to be broad, judge rules
Shannon P. Duffy
The Legal Intelligencer
Ruling on an issue that has sharply divided the federal courts, a
Middle District of Pennsylvania judge has held that the public
accommodations prong of
the Americans with Disabilities Act covers police practices --
including arrests -- and that a police department can therefore be
sued for failing to train
its officers to handle disabled suspects.
"Nothing in the statute, regulations, or legislative history [of the
ADA] suggests any exceptions to the Act for certain police
activities," U.S. District Judge Yvette Kane wrote in her 12-page
opinion in Schorr v. Borough of Lemoyne.
The ruling green-lights an ADA claim in a civil rights suit brought
by the parents of a mentally ill man who was shot and killed by
police in a confrontation at his apartment after he escaped from
protective custody in an emergency psychiatric ward.
Lawyers for plaintiffs Keith and Susan Schorr contend in the ADA
claim that Ryan Schorr's death could have been prevented if police
had been trained to ensure that their encounters with mentally ill
persons remain peaceful.
U.S. Magistrate Judge Malachy E. Mannion found that the Schorrs
should be allowed to pursue a civil rights claim, but recommended
that the ADA claim be dismissed.
Mannion cited two recent federal appellate decisions that held the
ADA does not apply to actions taken by police officers during an
arrest -- the 10th Circuit's 1999 decision in Gohier v. Enright, and
the 5th Circuit's 2000 decision in Hainze v. Richards.
But Kane predicted that the 3rd Circuit would not follow suit, and
instead would join a growing list of appellate and district courts
that have allowed claims under Title II of the ADA in the context
of an arrest.
Kane found that the plain language of the ADA shows that Congress
intended "very broad" coverage.
She also found that the 3rd Circuit and the U.S. Supreme Court have
been reluctant to create exceptions.
In Yeskey v. Pennsylvania Department of Corrections, Kane found that
the 3rd Circuit applied Title II of the ADA to the programs and
activities of a state prison system.
In doing so, Kane said, the Yeskey court analyzed the statutory,
regulatory and ordinary definitions of "program" and "activity" and
concluded that the terms "were intended to be all-encompassing."
The U.S. Supreme Court unanimously affirmed Yeskey, finding that
"the statute's language unmistakably includes state prisons and
prisoners within its coverage."
Kane found there was no reason not to extend Yeskey to include
police practices, including arrest policies.
The 8th Circuit has already done so, Kane noted, by relying on
Yeskey to hold that the ADA was applicable in the context of an
In Gorman v. Bartch, the 8th Circuit green-lighted an ADA claim
brought by an arrestee in a wheelchair who said he sustained
injuries after being transported in a police van that was not
equipped with wheelchair restraints, Kane noted.
Kane found that basic statutory construction and the ADA's
legislative history both supported allowing the Schorrs' claim.
Title II of the ADA reads: "No qualified individual with a
disability shall, by reason of such disability, be excluded from
participation in or be denied the benefits of the services,
programs, or activities of a public entity, or be subjected to
discrimination by any such entity."
Kane found that although the ADA does not define the phrase
"services, programs, or activities," the courts have held that it
should be read broadly to include "all of the operations of ... a
department, agency, special purpose district, or other
instrumentality of a State or of a local government."
As a result, Kane concluded that the law's scope includes "all core
functions of government."
Police practices are also within the law's scope, Kane found,
because "among the most basic of these functions is the lawful
exercise of police powers, including the appropriate use of force
by government officials acting under color of law."
Since the ADA is a "remedial statute," Kane found that it was
designed "to eliminate discrimination against the disabled in all
facets of society."
As a result, she said, "it must be broadly construed to effectuate
The Justice Department's regulations to Title II of the ADA bear
that out, Kane noted, by stating that the statute "applies to all
services, programs, and activities provided or made available
by public entities."
In the preamble to the regulations, Kane noted, the Justice
Department explains that the broad language of the ADA is
comparable to the coverage under § 504 of the Rehabilitation
Act, so that Title II of the ADA "applies to anything a public
In his report and recommendation, Magistrate Mannion found there
were only two possible bases of recovery for police misconduct under
the ADA, and that neither applies to the Schorrs' claim.
The "wrongful arrest" theory, he said, "is not applicable when the
plaintiff's actions were unlawful at the time of the arrest."
And the "reasonable accommodations" theory, Mannion said, "does not
apply to the actions of officers while affecting an arrest."
Kane disagreed, saying she rejected Mannion's recommendation because
he relied entirely on the 5th Circuit's decision in Hainze.
"Even if this court were to anticipate Hainze becoming the law of
this circuit, which it cannot do, the findings of the Magistrate
Judge still cannot be sustained. At this stage of the proceedings,
it has not been established conclusively as a matter of fact or law
that the police conduct in question constitutes an 'arrest' or that
Schorr's actions were unlawful."
Kane found that the Hainze court was presented with a claim similar
to the Schorrs' that accused a county of failing to adopt a policy
protecting the well-being of people with mental illnesses in crisis
The court flatly rejected the claim, Kane found, by holding that
"Title II does not apply to an officer's on-the-street responses to
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."
The 5th Circuit panel found that an exception must be made for
certain police practices because "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."
Dodging the issue of whether the Hainze case was wrongly decided,
Kane found that its rationale for disallowing ADA claims when the
challenged conduct occurred during "exigent circumstances" did
not apply in the Schorrs' case.
The Schorrs didn't sue the two officers, Kane noted, and the suit
does not challenge the degree of force used by them.
Instead, Kane said, the suit focuses entirely on the police
department's alleged failure to properly train the officers.
"The alleged non-compliance with the training requirements of the
ADA did not occur the day that the officers shot Ryan Schorr; it
occurred well before that day, when the defendant policy makers
failed to institute polices to accommodate disabled individuals
such as Schorr by giving the officers the tools
and resources to handle the situation peacefully," Kane wrote.
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