[Hpn] cops the ada and the courts

Thomas Cagle nh-adapt@juno.com
Thu, 27 Feb 2003 06:14:31 -0500


On Wed, 26 Feb 2003 19:21:44 -0500 "joe harcz kalamazoo adapt mcbvi"
<michiganadapt@peoplepc.com> writes:
  
  ADA Applies in Context of Police Arrest
  Coverage of law intended to be broad, judge rules
  Shannon P. Duffy
 
 The Legal Intelligencer
 
 02-26-2003
 
  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 
 arrest.
 
 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 
 its purposes."
 
 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
 entity does."

  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
 situations.
 
 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 
 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."

 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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