Tag Archives: disability

The Police’s Duty to Accommodate Under the Americans With Disabilities Act

The police investigate every type of person in society — even those with known disabilities.  Until the last fifteen years or so, the question of whether the police had to make any accommodations to qualified individuals with disabilities during an investigation was not even asked. Plaintiffs now are often asserting a violation of the Americans with Disabilities Act (ADA) and § 1983 civil rights.

The Americans with Disabilities Act was passed in 1990 with the intention of protecting the vulnerable of society because historically their rights have been stripped at times.

Discrimination, in the Fourteenth Amendment sense, connotes a substantive constitutional judgment that two individuals or groups are entitled to be treated equally with respect to something.

— City of Cleburne v. Cleburne Living Ctr, 473, U.S. 432, 470 (1985) (Marshall, J., concurring in part and dissenting in part).

The reason, in theory at least, why the Americans with Disabilities Act applies to police investigations is because people with disabilities are not given the same opportunities as those without disabilities.  A person who is deaf cannot communicate with police the same as a person with can hear.  A person who is autistic lacks in verbal and non-verbal skills and may have difficulty in communicating with the police. Both of these individuals suffer from disabilities, but how it affects them is completely different.  Lack of communication between police and an individual is something that people without disabilities do not have to worry about.  Thus, differential treatment can occur.

Where a plaintiff alleges that she was arrested because of his disability (and not because of the perpetration of some crime unrelated to his disability) the police generally have a duty to accommodate and 42 U.S.C. § 12132 comes into play.[1]   Section 12132 creates a duty that requires public entities to take appropriate steps to ensure communications with qualified individuals are as effective as communications with others.[2]  Reasonable accommodations shall be furnished to allow people with disabilities “an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity of a public entity.”[3]

The application of the ADA to law enforcement activities, such as prison administration,[4] parole board,[5]  access to court,[6] are held to be public programs or services within realm of § 12132.  However the courts do not agree on whether police investigations involving exigent circumstances are afforded reasonable accommodations.

The entire duty to accommodate is based upon the premise that disabled people are sometimes denied services based upon their disability.[7]  Persons with mental illness are historically a vulnerable population who are subject to discrimination.[8]  Congress created the ADA to help create an equal playing field for those suffering from disabilities.[9]  Because of the ADA public entities have an affirmative duty to make reasonable accommodations.[10]  The affirmative duty puts the burden on the public entity to act.[11]

However, police investigations are unique in their fluid nature it can be very difficult predict an action.[12]   Some courts reason a police officer responding to a 911 call or witnessing a crime has very little time in which to think or plan the best way to apprehend, subdue, and question the participants. [13]  In other areas of law enforcement activities allow more time to ensure their actions satisfy the requirements of the ADA.

Police investigations are special and are different from other types of law enforcement where the courts have clearly upheld the duty to provide reasonable accommodations.  However, there is still this general duty to accommodate people with disabilities that the police must adhere to.  The courts balance the general duty to accommodate with the safety of the police officers in making their decisions.

*** This is part 1 of a multi-part series that will look in-depth what the police must do to reasonably accommodate people with disabilities during police investigations.

Part 2: Police Have an Affirmative Duty to Accommodate Disabilities

[1] “Subject to the provisions of this subchapter, 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.” 42 U.S.C.A. § 12132 (2011).

[2] 28 C.F.R. § 35.160(a)(1).

[3] 28 C.F.R. § 35.160(b)(1).

[4] Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 212 (1998).

[5] Thompson v. Davis, 295 F.3d 890, 899 (9th Cir. 2002) (holding parole board may not categorically exclude inmates with history of drug abuse from consideration for parole).

[6] Tennessee v. Lane, 541 U.S. 509, 533 (2004).

[7] Frame v. City of Arlington, 616 F.3d 476 (5th Cir. 2010) (en banc) (holding for reasonable accommodations to be made there must be: 1. Qualified Individual with a disability; 2. Excluded, denied services or programs of a public entity, or was discriminated against; 3. Exclusion was because of the disability).

[8] “[T]he mentally retarded have been subject to a ‘lengthy and tragic history,’ of segregation and discrimination that can only be called grotesque.” City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 461 (1985) (Marshall, J., concurring in part and dissenting in part) (quoting University of California Regents v. Bakke, 438 U.S. 265, 303 (1978)).

[9] “[P]hysical or mental disabilities in no way diminish a person’s right to fully participate in all aspects of society, yet many people with physical or mental disabilities have been precluded from doing so because of discrimination.” 42 U.S.C.A. § 12132 (1) (2011).

[10] “A public service or program has the burden of proving that compliance with this subpart would result in an undue burden.” 28 C.F.R. § 35.164 (2012).

[11] Tennessee v. Lane, 541 U.S. 509, 533 (2004) (holding “Title II’s affirmative obligation to accommodate persons with disabilities”. . .  “[is] a reasonable prophylactic measure, reasonably targeted to a legitimate end.”)

[12] Tucker v. Tennessee, 539 F.3d 526, 536 (6th Cir. 2008) (explaining that “imposing a stringent requirement under the ADA is inconsistent with th[e] expectations [that]. . . law enforcement officers. . . respond fluidly to changing circumstances and individuals they encounter. . . and impedes their ability to perform their duties”).

[13] Seremeth v. Bd. of Cnty. Comm’rs Frederick Cnty., 673 F.3d 333, 340 (4th Cir. 2012) (stating “[n]evertheless, as in the criminal procedure context, we are reluctant to question the snap judgments of law enforcement officials in situations in which a reasonable officer would fear for his safety and for the safety of those he is charged to protect.”)