TBI Rights under ADA 1990
TBI Rights under Americans with
Disabilities Act of 1990
“Protect Intellect!”
Law enforcement agencies are “public entities” under Title II of the Americans with Disabilities Act 1990, and are prohibited from discriminating against individuals with disabilities.
Title II of the Americans with Disabilities Act of 1990 states that:
“A public entity must reasonably modify its policies, practices, or procedures to avoid discrimination. If the public entity can demonstrate, however, that modification would fundamentally alter the nature of its service, program, or activity, it is not required to make the modification.”
Case Precedent:
Gorman (1998): “[a] local police department falls ‘squarely within the statutory definition of “public entity,”’ Police must offer you reasonable accommodations for your disability when you are stopped for questioning, arrested, or detained.
BRINGING A LAWSUIT under the Americans with Disabilities Act of 1990
Q. Can I sue the Police under the Americans with Disabilities Act of 1990, if they have “Qualified Immunity” from prosecution?
Courts began using two predominant approaches to determine whether discrimination occurred during an arrest:
1) the wrongful arrest theory,
2) the reasonable accommodation theory.
(Gohier v. Enright, 186 F.3d 1216, 1221-22 (10th Cir. 1999). If you want to sue for damages suffered during the arrest or detainment, you must bring your claim to the Federal Court under the Americans with Disabilities Act 1990. It is difficult to find an attorney who will take your case. You may have to sue Pro Se.
Wrongful Arrest Theory
The wrongful arrest theory generally applies when a police officer arrests a person with a disability because the officer misperceived the effects of the disability as criminal conduct. To fit within the wrongful arrest theory, an arrestee must be engaged in otherwise lawful conduct at the time of arrest.
Lewis (1997): “That is, although the officers realized the plaintiff was deaf, they allegedly treated the effects of his disability as criminal conduct.”
Jackson v, Inhabitants of Sanford: “Congress was concerned with unjustified arrests of disabled persons such as Jackson alleges here.”
Gohier (1999):”…has expressly declined to invoke the [reasonable accommodation theory,] . . . a broad rule categorically excluding arrests from the scope of Title II . . . is not the law.”
Reasonable Accommodation Theory (Discriminatory Intent)
A police officer is required by Americans with Disabilities Act 1990 to provide ‘reasonable accommodation’ during an arrest. The reasonable accommodation theory covers claims of improper treatment during arrest, improper treatment during post-arrest detainment, and inadequate police training. One must determine whether the requested modifications and accommodations are unreasonable. Police are not required to reasonably accommodate disabilities until the scene is secure.
Anthony: “…discriminatory intent was a motivating factor in [an officer’s] decision” to seize the plaintiff.”
Seremeth (2012): Police investigations are subject to the Americans with Disabilities Act’s framework, [although] the exigent circumstances involved in [the currently considered] suspected domestic violence situation render the accommodations provided as reasonable under the ADA 1990.”
Sheehan (2014): “Alleging that she would not have reacted so violently if the officers had attempted to accommodate her disability by employing tactics to de-escalate the situation.”
Williams (2012): If probable cause for the arrest existed, it also assumed a very high threshold for granting summary judgment in favor of the police when exigent circumstances exist: an unequivocal demonstration of “unjustifiable risk to public safety”.
Failure to Train Safety Officers
If an officer acts unreasonably—but only because s/he was inadequately trained—plaintiffs may attempt to bring a “failure-to-train” claim against state entities. Because proper training would provide officers with the tools necessary to accommodate disabilities, “failure to-train” claims are typically analyzed under the reasonable accommodation theory.
Training for Police regarding arrest of the disabled – Intent of Congress, 1990 House Judiciary Committee
The 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.” The appendix says “it would be appropriate” for public entities doing their self-evaluation “to evaluate training efforts because . . . lack of training leads to discriminatory practices, even when the policies in place are nondiscriminatory.”
Ulibarri v. City & County of Denver (2010): The District of Colorado allowed the plaintiffs to seek compensatory damages for the Americans with Disabilities Act 1990 arrest claims because “[a]lthough it appear[ed] that Denver ma[de] efforts to train its deputies and staff on disability issues, including those affecting deaf individuals, there [was] evidence sufficient for a jury to find that [those] efforts [were] insufficient.
Buben (2010): Because there is no immediate risk to human health or safety at the time the officers should be trained, departments cannot claim that their “failure to train” is exempted by exigent circumstances.
When Americans with Disabilities Act of 1990 can or cannot protect the disabled person:
ADA 1990 Title II “Direct threat” regulation—which is modeled on the Title III provision 257 states: “Public entities do not need to accommodate an individual with disabilities when “that individual poses a direct threat to the health or safety of others.”
Threats that can be mitigated by “reasonable modifications of policies, practices, or procedures” are not exempted, and the duty to accommodate remains intact.
In fact, reasonableness inquiries in the Fourth Amendment in ‘excessive force’ cases provide a strong parallel to ADA 1990. In the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen it should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard.” (490 U.S. 386, 395 (1989).
However, if courts are required to consider the totality of the circumstances—which would mean weighing the exigent circumstances against the proposed accommodation as well as third-party involvement, officer training, the ease with which an officer could have modified procedure, and any other factors that may be applicable—the reasonableness inquiry will be fairer, more balanced, avoiding defense arguments that enhance the court’s perception of officer danger.
Graham (1989)- “As Graham intimates, even when courts give deference to the need for officer discretion in dangerous situations, the countervailing interest—the plaintiff’s individual rights—should never be forsaken by the judiciary.”
Gorman, 2002, U.S. Supreme Court – “No Punitive damages for Americans with Disabilities Act 1990 claims.”