Are disabled persons suspected of driving under the influence, battering their spouses or wielding a loaded gun at officers entitled to any more rights than the non-disabled during police encounters? Photo AP Images/Gary Gardiner
FEATURED IN TRAINING
Unlike other professionals, police officers deal with people from all walks of life—the rich and poor, young and old, educated and uneducated, healthy and unhealthy. Sometimes officers come into contact with disabled individuals, and during those times, officers may not know the individuals are disabled until long after they’ve handcuffed them and transported them to the police station. Are disabled persons suspected of driving under the influence, battering their spouses or wielding a loaded gun at officers entitled to any more rights than the non-disabled during police encounters? And how does the law govern what police officers must do when they encounter and/or arrest individuals with disabilities?
A federal law entitled the Americans with Disabilities Act (ADA) was enacted in 1990 to provide civil-rights protections to individuals with disabilities similar to those provided to individuals on the basis of race, color, sex, national origin, age and religion. It guarantees equal opportunity for individuals with disabilities in state and local government services, public accommodations, employment, transportation and telecommunications.
Title II of the ADA prohibits discrimination against people with disabilities in state and local government services, programs and employment. Police agencies are covered by the federal law because they are “programs of state or local governments.” The ADA applies to many activities that law enforcement officials engage in, such as transporting, booking and holding suspects in a cell.
Who Is Protected?
The ADA prohibits discrimination against “a qualified individual with a disability.”1 Title II defines a “qualified individual with a disability” as “an individual with a disability who, with or without reasonable modifications ... or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.”2 Put simply, an individual is considered to have a disability if they have a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment or is regarded as having such an impairment.
Required Policies & Procedures
The Department of Justice developed regulations implementing Title II’s prohibition against discrimination of the disabled. The regulations require that “[a] public entity shall make reasonable modifications in policies, practices or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program or activity.”3 The regulations require police agencies to “furnish appropriate auxiliary aids and services where necessary to afford an individual with a disability an equal opportunity to participate in, and enjoy the benefits of, a service, program or activity conducted by a public entity.”4 However, the ADA does not require a public entity to employ any and all means to make auxiliary aids and services accessible to persons with disabilities, but only to make “reasonable modifications” that would not fundamentally alter the nature of the service or activity of the public entity or impose an undue burden.5
What Does This Mean for the Street Officer?
Policies and procedures look great on paper, but how do police officers realistically implement what Congress intended in enacting the ADA? What are police officers supposed to do when the criminal suspect they are arresting is deaf, wheelchair bound or mentally ill? If officers are confronted with a deaf individual suspected of driving under the influence of alcohol, is the officer required to provide a sign-language interpreter before requesting field-sobriety tests of the suspected drunk driver at the side of the road? If the person arrested is wheelchair bound, must the officer provide a special vehicle to secure them in while still conducting an investigation on the street? If a mentally ill man wields a knife in the middle of a grocery store, threatening the lives of innocent bystanders nearby, must officers wait until a mental-health specialist arrives? In general, the answer to all three scenarios is “No.”
It goes without saying police officers are entitled to respond appropriately to threats to the health and/or safety of themselves and others even if the suspect’s actions are the result of their disability. An officer’s response is governed by the objective-reasonableness test under the Fourth Amendment first enunciated in Graham v. Connor.6 Example: An officer stops a driver of a vehicle who is suspected of driving under the influence of alcohol and requests the driver to step out of the vehicle. In response, the driver reaches to the back seat to grab his cane. Is the officer liable for using the amount of force reasonably necessary to prevent the driver from reaching to the back seat to obtain what the officer could have reasonably perceived to be a weapon? Absolutely not.
The Debate Among the Circuit Courts
Not all of the federal circuit courts agree that disabled individuals involved in arrest situations fall under a “service, program or activity” provided for under Title II of the ADA. For example, the 4th Circuit Court of Appeals in Rosen v. Montgomery County7 stated that “calling a drunk driving arrest a ‘program or activity’ of the County, the ‘essential eligibility requirements’ of which (in this case) are weaving in traffic and being intoxicated, strikes us as a stretch of the statutory language and of the underlying legislative intent.”8 The 4th Circuit concluded, “[I]f we assume, however, that the police were required [under the ADA] to provide auxiliary aids at some point in the process, that point certainly cannot be placed before the arrival at the stationhouse. The police do not have to get an interpreter before they can stop and shackle a fleeing bank robber, and they do not have to do so to stop a suspected drunk driver, conduct a field sobriety test and make an arrest.”9
Other circuits have so held as well. In Hainze v. Richards,10 the 5th Circuit Court of Appeals stated, “Title II does not apply to an officer’s on-the-street responses to reported disturbances or other similar incidents ... prior to the officer’s securing the scene and ensuring that there is no threat to human life.”11 In Hainze, police officers responded to a residence to take Hainze, who was mentally ill, to a hospital. Upon arrival, the officers observed Hainze carrying a knife. Hainze began to walk toward the officers, and they ordered him to stop. Hainze responded with profanities and continued to walk toward the officers, and when Hainze was within six feet, the officers fired two shots into his chest.
The 5th Circuit concluded that the ADA did not govern the police officers’ actions and in doing so stated that police officers “already face the onerous task of frequently having to instantaneously identify, assess and react to potentially life-threatening situations.”12 It went on to say that by requiring 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.”13 The 5th Circuit concluded by stating, “[W]hile the purpose of the ADA is to prevent the discrimination of disabled individuals, we do not think Congress intended that the fulfillment of that objective be attained at the expense of the safety of the general public.”14
Note, however, the 5th Circuit indicated that “[o]nce the area was secure and there was no threat to human safety ... deputies would have been under a duty to reasonably accommodate Hainze’s disability in handling and transporting him to a mental health facility.”15 Other circuit courts agree that the ADA would apply to the police transportation of an arrestee to the police station.16 Additionally, once an arrestee is at the police station, the ADA would also apply, such as during investigative questioning of an arrestee or holding the arrestee in a cell.17
The Bottom Line
While the debate continues in the federal courts as to whether arrests fall under the “services, programs or activities” governed by Title II of the ADA, police officers should do what they can to accommodate those individuals with disabilities they arrest without jeopardizing the health and safety of anyone involved. No doubt, police officers cannot fully appreciate the situation they respond to until after the dust settles and the scene is secure.
Do not construe this column as legal advice. Each police officer should consult with an attorney in their jurisdiction for legal advice on any specific issue.
1. 42 U.S.C. § 12132.
2. 42 U.S.C. § 12131(2).
3. 28 C.F.R. § 35.130(b)(7).
4. 28 C.F.R. § 35.160(b)(1).
5. See, Tennessee v. Lane, 541 U.S. 509, 531-32 (2004).
6. 490 U.S. 386 (1989).
7. 121 F.3d 154 (4th Cir. 1997).
8. Id. at 157.
9. Id. at 158.
10. 207 F.3d 795 (5th Cir. 2000).
11. Id. at 801.
15. Id. at 802.
16. See, Gorman v. Bartch, 152 F.3d 907 (8th Cir. 1998).
17. See, Calloway v. Boro of Glassboro Dept. of Police, 89 F.Supp.2d 543 (D.N.J. 2000) (investigative questioning at police station was program, service, or activity of police department covered by ADA).
For More Information
For guides to your responsibilities in interacting with individuals with disabilities and to download the video “Police Response to People with Disabilities, Eight-Part Series,” visit the Department of Justice, ADA Web site at www.ada.gov/policeinfo.htm or call 800/514-0301.