Tag Archives: equal protection

Equal Protection in Arizona Same Sex Marriages – A Look at the Change in Case Law

Last week a judge struck down a same-sex marriage ban in Arizona on equal protection grounds.  The ban was created by both state law and a state constitutional amendment.  United States District Judge John Sedwick on Oct. 17, 2014 declared Ariz. Const. art. 30, § 1, Ariz. Rev. Stat. § 25-101(C), and Ariz. Rev. Stat. § 25-125(A) all violated federally protected constitutional rights.  Majors v. Horne, No. 14-cv-00518 (D. Ariz. Oct. 17, 2014) (the full opinion is available at the bottom of this article).

But this was not the first time the state laws were challenged (the Arizona Constitutional Amendment was not created at the time).  In 2003, the Arizona Court of Appeals unanimously found both Ariz. Rev. Stat. § 25-101(C), and Ariz. Rev. Stat. § 25-125(A) to be reasonable laws, and upheld them in the face of constitutional challenges. Standhardt v. Superior Court of Ariz.,77 P.3d 451 (Ariz. Ct. App. 2003) (holding Arizona’s statutory prohibition of same sex unions does not violate either the Arizona or United States Constitution). These are the same state laws Judge Sedwick ruled unconstitutional last week.

So what gives?  What has changed so much in the past eleven years to warrant a complete reversal in judicial ideology?  I am very happy for this civil rights victory for same sex couples.

How two unanimous courts could come to completely opposite viewpoints on the same set of laws, really interests me from a civil rights perspective.  I want to delve into this really interesting situation and see what happened.

Couple Gets Married After Waiting 23 Years @ Same Sex Marriage Legalized in Iowa

Photo credit: Alan C., Flickr

Continue reading Equal Protection in Arizona Same Sex Marriages – A Look at the Change in Case Law

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Police Have Affirmative Duty to Accommodate Disabilities

The police are subject to Title II of the Americans with Disabilities Act.

[N]o 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. § 12132.

Before the analysis goes too far, it is important to note not all disabilities are covered by the Americans with Disabilities Act.  Not just anyone with a disability is covered — it must be a “qualified individual.”  An individual with a disability is: a person with a physical or mental impairment that substantially limits a “major life activity.”  Direction for which disabilities substantially limit major life activities is defined in the statute: 42 U.S.C. § 12131(b) and 42 U.S.C. § 12102.

The language of the legislation says that a qualified individual cannot be denied the benefits of a public service or program.  Courts have interpreted this to mean that there is an affirmative duty, or a legal obligation to serve the disabled in a reasonable manner.[1] The United States Supreme Court said to prevent unconstitutional behavior, it must be prophylactic.  In other words, there must be something in place ahead of time to reasonably anticipate the needs of those with known disabilities.

Planning ahead of time in how to accommodate the disabled is a challenging proposition because each investigation is different. Investigations into domestic abuse provide a different set of challenges than road side traffic stop.  Crafting universal policies to deal with the various disabilities is difficult enough, but to apply those policies to the multitude of investigation types can be daunting.

Allowing uniformly-applied, disability-neutral policies to trump the ADA requirement of reasonable accommodations would utterly eviscerate that ADA requirement.

— Holly v. Clairson Indus., L.L.C., 492 F.3d 1247, 1263 (11th Cir. 2007).

On the other hand, allowing the police to treat everyone the same during an investigation would directly contradict the intentions of the Americans with Disabilities Act.

The accommodation must be reasonable and not create an undue burden for the police (since we are specifically talking about police investigations).

What is reasonable is usually judged on a reasonable person standard.  To use the standard the judge or a jury is asked to put themselves in the place of an imaginary person who is completely objective and of reasonable intelligence.[2] To judge if the accommodations are reasonable, a reasonable person would look to see if the accommodations “take steps to ensure that disabled persons have equal access to the goods and services such places offer.”[3] There may be the possibility that there may be more than one reasonable accommodation.  If there is, in fact, more than one reasonable accommodation then the police have a choice on which accommodation to choose.  The Americans with Disabilities Act says only a reasonable accommodation must be provided, not the best accommodation.[4]

Thus, there is a balancing act that courts undertake, especially in police investigations to apply the affirmative duty unless it imposes an “undue burden.”[5] Undue burden is intentionally left undefined, because multiple factors are involved to determine what unduly burdens a public program or service.  Using the example of police investigations, situations that create an undue burden on the Payson Police Department are probably most likely different than the Phoenix Police Department. Notwithstanding, the size and resources of each police department, courts also look to see what resources may be ascertained on short notice. Payson is a fairly isolated town in the middle of the Tonto National Forest that lacks resources from neighboring towns or cities.  If a problem arises that the city of Phoenix cannot handle on its own, it can ask for the support from any city in Maricopa County.

As each case is different in nature, the court will undertake the determination of what is a reasonable accommodation and what is an undue burden.  The court will look at all of the facts in a particular case and weigh the totality of the circumstances in making a determination.

In conclusion, the Americans with Disabilities Act creates an affirmative duty for the police to take some measures to accommodate the disabled ahead of time.  However, what that duty is remains unclear because of the fluid nature of police investigations.  In future posts in this series examining the police’s duty to accommodate, it will be analyzed in depth what circumstances require accommodations by the different circuits.

Part 1: The Police’s Duty to Accommodate Under the Americans with Disabilities Act

[1] Tennessee v. Lane, 541 U.S. 509, 533 (2004) (holding “Title II’s affirmative obligation to accommodate persons with disabilities in the administration of justice cannot be said to be ‘so out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior. It is, rather, a reasonable prophylactic measure, reasonably targeted to a legitimate end.’”).

[2] Donahoo v. Master Data Ctr., 282 F. Supp. 2d 540, 557 (E.D. Mich. 2003). (“In this case, none of Defendant’s conduct was so extreme that a reasonable person would exclaim “Outrageous!” upon reviewing the facts described above”).

[3]Hahn ex rel. Barta v. Linn Cnty., 130 F. Supp. 2d 1036, 1057 (N.D. Iowa 2001) (stating “the ADA places an affirmative duty on owners and operators of places of public accommodation to make reasonable accommodations and to take steps to ensure that disabled persons have equal access to the goods and services such places offer”).

[4] “The agency was not required to provide [the Plaintiff] with the exact accommodations that [the Plaintiff] requested or the best accommodations, as long as what they provided was reasonable.” Ransome v. Barnhart, CCB-03-2532, 2005 WL 1075370 (D. Md. May 5, 2005).

[5] Toledo v. Sanchez, 454 F.3d 24, 32 (1st Cir. 2006) (stating “Title II imposes an affirmative obligation on public entities to make their programs accessible to qualified individuals with disabilities, except where compliance would result in a fundamental alteration of services or impose an undue burden.”)

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.”)

Death Penalty Discrimination – Part 2 Equal Protection

This is the second part of a discussion of discrimination in death penalty proceedings and will focus on how the different systems is a violation of the Equal Protection Clause.

The practice of equal protection in the constitutional sense is not as absolute as it is sometimes thought in our everyday lives.  “Equal protection does not require that all persons be dealt with identically, but it does require that a distinction made have some relevance to the purpose for which the classification is made.”  Baxstrom v. Herold, 383 U.S. 107, 111 (1966).  Traditionally claims of discrimination are made about race or gender.  To make an exception of equal protection when a claim of racial discrimination is made it must be proved the government has a compelling interest, but the action it takes is also narrowly tailored to meet its goal.  To make an exception of equal protection when a claim of gender discrimination is made, the government must have an important interest, and the policy must somehow further that interest. In other words, it would have to be shown how the different systems of adjudicating discrimination serves either a compelling or an important government interest.  The McCleskey court made a distinction between discrimination in the death penalty and discrimination in all other contexts. McCleskey v. Kemp, 481 U.S. 279, 294 (1987).  The Court argued that death penalty proceedings are more complex and fundamentally different than other types of discrimination cases.  Id.

My assertion is that even though there may be a fundamental difference between situations, the act of discrimination stays the same regardless of the surrounding circumstances.

The government can have two different systems for adjudicating discrimination and not violate the Equal Protection Clause; however, the government must show that it either has a important or compelling interest at stake to justify the difference in procedure.  The government has an interest in justice.  This can be a double-edged sword, especially in death penalty proceedings when the defendant may not be innocent.  The government has an interest in punishing the guilty.  Although even if the defendant is guilty, the government has an interest in pursuing justice in a fair and impartial manner. The public will lose faith in the judicial system if it does not act in a fair and impartial manner.  The two competing interest makes the government’s interest a balancing act.

Is that enough to meet the important or compelling threshold?  Probably not.  Since the government’s interests are divided between prosecuting crimes and ensuring procedural fairness.

Added to the weighing of interests is that both systems are not equal. The burden-shifting standard was created by a unanimous Supreme Court in the case McDonnell-Douglas Corp. v. Green 411 U.S. 792 (1973), which dealt with the order and allocation of proof in employment discrimination.  The analysis of the McDonnell Douglas burden-shifting framework works in three parts: 1. The plaintiff must establish a prima facie case of discrimination; 2. The employer must then articulate, through admissible evidence, a legitimate, nondiscriminatory reason for its actions; and 3. In order to prevail, the plaintiff must prove that the employer’s stated reason is a pretext to hide discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973).  Created as an option procedurally by the Court to be used if the case lacks direct evidence of discrimination.  Many times there is not hard evidence of discrimination, especially as our society becomes more aware of what discrimination is, thus forcing a claim of discrimination to be pieced together from multiple items or sources.

Indirect or circumstantial evidence is extremely useful in vague or unclear issues, for instance when an issue turns on an “actor’s motive or intent.” Anthony v. Sundlun, 952 F.2d 603, 605 (1st Cir. 1991) (stating “circumstantial evidence alone can support a finding of political discrimination”). “A discrimination suit (unlike, for instance, an action for negligence or breach of contract) puts the plaintiff in the difficult position of having to prove the state of mind of the person making the [sentencing] decision.”  Wright v. Southland Corp., 187 F.3d 1287, 1290 (11th Cir. 1999).  To prove the motive or intent, circumstantial evidence can be linked together as the basis of an argument. Piecing an argument together through circumstantial evidence can be daunting and confusing task both for the parties and for the judge.

That is why it is counter-intuitive to use a system that does not help with the order and allocation of evidence for significantly more complex fact patterns, like death penalty proceedings.  When it is also considered that the government has an interest in procedural fairness, then it becomes very difficult to show how a difficult more rigid procedure for adjudicating claims of discrimination in death penalty proceedings is not a violation of the Equal Protection Clause.

Part 1 – Different Systems

Part 3 – Procedural Due Process

To download and read my entire paper visit: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2353416.

Death Penalty Discrimination – Part 1 Different Systems

“Capital punishment be imposed fairly, and with reasonable consistency, or not at all.” Eddings v. Oklahoma, 455 U.S. 104, 112 (1982).

Ever since the death penalty was reinstated nationally in Gregg v. Georgia, 428 U.S. 153 (1976), it seems there is always some debate about whether or not the death penalty is applied in a discriminatory manner.  There are on-going discussions whether the death penalty is applied disproportionately against certain races or sex.

Without taking a stance as to if the system currently discriminates or not, I argue in my paper “Correcting a Fatal Lottery” that the system for adjudicating discrimination claims in the death penalty is unconstitutional.  I argue that there are two different systems of adjudicating discrimination: one for the death penalty and another for every other type of discrimination claim.

In the death penalty context, claims of discrimination use the evidentiary standard of  “exceptionally clear proof.”    McCleskey v. Kemp, 481 U.S. 279, 292 (1987).  Whether there is exceptionally clear proof of discrimination is argued in a single step.  Both sides make their arguments and the judge then makes her determination.

Every other type of discrimination – employment discrimination, housing discrimination, reverse-racial discrimination, racial profiling by police, racial profiling by private security, racial gerrymandering, qualified immunity by a state prison guard, qualified immunity by city officials and police, felon disenfranchisement laws, and discrimination in jury venire – are decided with a burden shifting system using the preponderance of the evidence standard.  The burden shifting standard allows the judge to organize evidence so it can be more easily digested.  The preponderance of the evidence standard is which ever side has the more convincing evidence shall win. See e.g. Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003) (employment discrimination in a mixed-motive case); Lindsay v. Yates, 578 F.3d 407, 421 (6th Cir. 2009) (housing discrimination); Weberg v. Franks, 229 F.3d 514, 522-23 (6th Cir. 2000) (reverse-racial discrimination) etc.

Is it just that claims of discrimination in administering the death penalty not only use a different system, but one that is much more rigorous?

My assertion in the paper is that with a defendant’s life on the line, the judicial system should not impose more strict measures to prove discrimination occurred.  If discrimination occurs then it is a flaw within the justice system.  We have all seen the pictures of where Lady Justice is blind.  If a person is being treated differently because of her sex or her skin color then Lady Justice is not administering proceedings with impartiality.  No matter what the crime a person is accused of, justice should be administered fairly and impartially.

This is the first of a  series that I will use to break down the argument of my paper detailing the differences in how the courts judge discrimination and why it is unconstitutional.

The race of the victim has been shown to be statistically significant in several studies.  Racial Discrimination and the Death Penalty in the Post-Furman era (full text). Prosecutorial Discretion in Requesting the Death Penalty (abstract only).

To download and read my entire paper visit: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2353416.