IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF MISSOURI

JEFFREY GORMAN, )

)

Plaintiff, ) No. 95-0475-CV-W-8

vs. )

)

)

STEVEN BISHOP, [et]{.underline} [al]{.underline}, )

)

Defendants. )

)

**RESPONSE OF THE UNITED STATES AS [AMICUS]{.underline}
[CURIAE]{.underline}**

**TO DEFENDANTS\' SUPPLEMENTAL MOTION FOR SUMMARY JUDGMENT**

**TABLE OF CONTENTS**

**TABLE OF AUTHORITIES** ii

**I. BACKGROUND** 1

**II. ARGUMENT** 2

> **A. Section 504 Covers Arrests and All Related\
> Activities** 2

1\. On its Face, Section 504\'s Language Prohibits Discrimination With
Respect to All Activities of Recipients of Federal Financial Assistance
2

> 2\. An Official Interpretation of Section 504 by the Department of
> Justice Specifically Mentions Arrests 5
>
> **B. Plaintiff is an \"Otherwise Qualified\" Individual\
> With a Disability.** 6
>
> **C. Defendants Are Not Entitled to Summary Judgment on the Question
> of Whether They Provided Plaintiff With a \"Reasonable
> Accommodation.\"** 8
>
> **D. Defendants Are Not Entitled to Summary Judgment on the Issue of
> Whether Plaintiff\'s Injuries Resulted From Inadequate Officer
> Training.** 10

**III. CONCLUSION** 12

**TABLE OF AUTHORITIES**

# CASES

[Alexander v. Choate]{.underline}, 469 U.S. 287 (1985) 8

[Americans Disabled for Accessible Public Transportation v.
Skinner]{.underline}, 881 F.2d 1184 (3d Cir. 1989) 6

[Bonner v. Arizona Department of Correction]{.underline},\
714 F. Supp. 420 (D. Ariz. 1989) 4

[Chevron, U.S.A., Inc. v. Natural Resources Defense\
Council, Inc.]{.underline}, 467 U.S. 837 (1984) 6

[Cohen v. Brown University]{.underline}, 809 F. Supp. 978 (1992),\
[aff\'d]{.underline} 991 F.2d 888 (1st Cir. 1993) 4

[Grove City College v. Bell]{.underline}, 465 U.S. 555 (1984) 4

[Leake v. Long Island Jewish Medical Center]{.underline}, 695 F. Supp.
1414 (E.D.N.Y. 1988), [aff\'d]{.underline} 869 F.2d 130 (2d Cir. 1989) 4

[Southeastern Community College v. Davis]{.underline},\
442 U.S. 397 (1979) 8

[United States v. Board of Trustees for the University\
of Alabama]{.underline}, 908 F.2d 740 (11th Cir. 1990) 6

**STATUTES**

20 U.S.C. § 1687 4, 5

29 U.S.C. § 794(a) 3, 4

29 U.S.C. § 794(b)(1)(A) 5

Title II of the Americans with Disabilities Act,\
42 U.S.C. §§ 12115-12164 1

42 U.S.C. § 12131(2) 6

**REGULATORY AUTHORITY**

28 C.F.R. § 42.540(l) (1995) 7

45 Fed. Reg. 37,620 (1980) 5

**LEGISLATIVE HISTORY**

S. Rep. No. 64, 100th Cong., 2d Sess. 1-2 (1988),\
[reprinted in]{.underline} 1988 U.S.C.C.A.N. 3, 3-4 4

**MISCELLANEOUS**

Affidavit of Neil S. Becker 11

Affidavit of Jeffrey Gorman 9

Deposition of Neil S. Becker 9

Deposition of William J. Warren 9, 11

Memorandum of the United States as [Amicus]{.underline} [Curiae\
]{.underline}(filed Nov. 14, 1995) 5

Reply Brief of the United States as [Amicus]{.underline} [Curiae\
]{.underline}(filed Dec. 27, 1995) 5

Suggestions in Support of Supplemental Motion for Summary Judgment 3, 6,
7, 8, 10, 11

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF MISSOURI

JEFFREY GORMAN, )

)

Plaintiff, ) No. 95-0475-CV-W-8

vs. )

)

)

STEVEN BISHOP, [et]{.underline} [al]{.underline}, )

)

Defendants. )

)

**RESPONSE OF THE UNITED STATES AS [AMICUS]{.underline}
[CURIAE]{.underline}**

# TO DEFENDANTS\' SUPPLEMENTAL MOTION FOR SUMMARY JUDGMENT

## I. BACKGROUND

The defendants, members of the Board of Commissioners (\"the Board\") of
the Kansas City, Missouri Police Department (\"KCMOPD\"), have moved for
summary judgment on plaintiff\'s claims against them in their official
capacities under both title II of the Americans with Disabilities Act
(\"ADA\"), 42 U.S.C. § 12115-12164, and section 504 of the
Rehabilitation Act of 1973 (\"section 504\" or \"the Rehabilitation
Act\"), 29 U.S.C. § 794. The plaintiff has a spinal cord injury and uses
a wheelchair. He alleges that defendants\' failures to implement the
requirements of the ADA and section 504 within the KCMOPD resulted in
injuries to him during transportation to police headquarters following
his arrest on May 31, 1992.

This Court has granted summary judgment, on the basis of \"qualified
immunity,\" in favor of Officer Neil Becker, who arrested and
transported the plaintiff, Steven Bishop, former Chief of Police of the
KCMOPD, and persons who were members of the Board at the time plaintiffs
injuries occurred, on plaintiff\'s ADA and Rehabilitation Act claims
against them in their individual capacities. At the March 29, 1996
pretrial conference, counsel for the defendants requested leave to file
the present motion for summary judgment. By order dated April 1, 1996,
the Court granted that request and also granted the United States leave
to file a brief as [amicus]{.underline} [curiae]{.underline} in response
to defendants\' arguments concerning the Rehabilitation Act only.[^1]

For the reasons set forth below, the United States urges that
defendants\' motion for summary judgment be denied with respect to the
Rehabilitation Act claims.[^2]

**II. ARGUMENT**

**A. [Section 504 Covers Arrests and All Related
Activities.]{.underline}**

> **1. On its Face, Section 504\'s Language Prohibits Discrimination
> with Respect to All Activities of Recipients of Federal Financial
> Assistance.**

Section 504\'s prohibition of discrimination by recipients of federal
financial assistance is broad enough to cover arrests and all related
activities, including the transportation of arrestees. In pertinent
part, section 504 reads as follows:

> \[n\]o otherwise qualified individual with a disability in the United
> States . . . shall, solely by reason of her or his disability, be
> excluded from the participation in, be denied the benefits of, [or be
> subjected to discrimination under]{.underline} any program or activity
> receiving Federal financial assistance . . . .

29 U.S.C. § 794(a) (emphasis added). One of defendants\' theories is
that this language applies only to programs and services voluntarily
sought out by persons with disabilities from which they obtain some
benefit, not to arrests. [See]{.underline} Suggestions in Support of
Supplemental Motion for Summary Judgment (hereafter \"Def. Br.\") at
12-14, 15.[^3]

Section 504\'s plain language does not support this theory. Excluding a
qualified individual with a disability from participation in a program
or activity and denying to such an individual the benefit of a program
or activity are certainly two ways in which a recipient of federal funds
may violate section 504. However, Congress clearly expressed its
intention to prohibit a third type of conduct as well \-- that which
subjects individuals with disabilities to discrimination under
federally-funded programs and activities. [See]{.underline} 29 U.S.C. §
794(a). The statute does not limit the \"programs\" or \"activities\"
under which individuals may \"subjected to discrimination\" to those
voluntarily sought out for the purpose of obtaining a benefit.

The definition of the term \"program and activity\" in the Civil Rights
Restoration Act of 1988, which applies to section 504, underscores this
point. The term was amended to clarify its meaning in light of an unduly
narrow interpretation by the Supreme Court in [Grove City College v.
Bell]{.underline}, 465 U.S. 555 (1984). [See]{.underline} 20 U.S.C. §
1687; S. Rep. No. 64, 100th Cong., 2d Sess. 1-2 (1988), [reprinted
in]{.underline} 1988 U.S.C.C.A.N. 3, 3-4.[^4] Congress\' clarified
definition provides:

> \[T\]he term \'program or activity\' means [all of the operations
> of]{.underline}\--
>
> (1)(A) a department, agency, special purpose district, or other
> instrumentality of a State or of a local government; or
>
> \(B\) the entity of such State or local government that distributes
> such assistance and each such department or agency (and each other
> State or local government entity) to which the assistance is extended,
> in the case of assistance to a State or local government;

20 U.S.C. § 1687; 29 U.S.C. § 794(b)(1)(A) (emphasis added). By using
the phrase \"all of the operations of,\" the definition demonstrates
that section 504 applies to every action taken by an entity receiving
federal financial assistance.

> **2. An Official Interpretation of Section 504 by the Department of
> Justice Specifically Mentions Arrests.**

We have previously directed the Court\'s attention to commentary by the
Department of Justice that specifically identifies arrests as programs
or activities covered by section 504. [See]{.underline} Memorandum of
the United States as [Amicus]{.underline} [Curiae]{.underline} (filed
Nov. 14, 1995) at 9; Reply Brief of the United States as
[Amicus]{.underline} [Curiae]{.underline} (filed Dec. 27, 1995) at 8.
This commentary, which we have not previously quoted in full, appears in
the Preamble to the Department\'s 1980 regulation implementing section
504 with respect to its federally-assisted programs. It addresses a
police department\'s obligation toward arrestees who have hearing
impairments:

> If a hearing-impaired person is arrested, the arresting officer\'s
> [Miranda]{.underline} warning should be communicated to the arrestee
> on a printed form approved for such use by the law enforcement agency
> where thee \[sic\] is no qualified interpreter immediately available
> and communication is otherwise inadequate. The form should also advise
> the arrestee [that the law enforcement agency has an obligation under
> Federal law to offer an interpreter to the arrestee without cost and
> that the agency will defer interrogation pending the appearance of an
> interpreter.]{.underline}

45 Fed. Reg. 37,620 (1980) (emphasis added; citations omitted). This is
a reasonable interpretation of a statute by an agency empowered to
enforce it; thus it must be given controlling weight. [See]{.underline}
[Chevron, U.S.A., Inc. v. Natural Resources Defense Council,
Inc.]{.underline}, 467 U.S. 837, 844 (1984); [United States v. Board of
Trustees for the University of Alabama]{.underline}, 908 F.2d 740, 746
(11th Cir. 1990) (applying [Chevron]{.underline} to section 504
regulations issued by the Department of Education); [Americans Disabled
for Accessible Public Transportation v. Skinner]{.underline}, 881 F.2d
1184, 1991 (3d Cir. 1989) (principles of [Chevron]{.underline} apply to
section 504 regulations issued by Department of Transportation).[^5]

**B. [Plaintiff is an \"Otherwise Qualified\" Individual With a
Disability.]{.underline}**

Defendants also appear to be arguing that the plaintiff is not an
\"otherwise qualified individual with a disability\" within the meaning
of section 504. This argument is first raised with respect to the
definition of the term \"qualified individual with

a disability\" in title II of the ADA, [see]{.underline} 42 U.S.C. §
12131(2), which the plaintiffs contend demonstrates that that statute
was intended to apply only to services, programs and activities
voluntarily sought out for the purpose of obtaining a benefit.
[See]{.underline} Def. Br. at 11-12. It is apparent, however, that the
defendants intend to make the same argument with respect to section 504.
[See]{.underline} [id.]{.underline} at 13-14.

That meaning of the term \"otherwise qualified individual with a
disability\" is not limited in the manner that defendants suggest. The
term \"qualified handicapped person\" in the Department of Justice
regulation implementing section 504 with respect to its
federally-assisted programs is synonymous with the terms \"qualified
individual with a disability\" and \"otherwise qualified individual with
a disability.\" The regulation says that a \"qualified handicapped
person\" means \"a handicapped person who meets the essential
eligibility requirements for the receipt of . . . services.\" 28 C.F.R.
§ 42.540(l) (1995). The definition does not distinguish between services
that are voluntarily sought and those that, like the transportation of
an arrestee, are connected with an action to which a person with a
disability may be subjected involuntarily. The plaintiff certainly was
\"qualified\" for arrest within the meaning of this definition, since he
exhibited conduct that, according to the police, warranted placing him
under arrest.

**C. [Defendants Are Not Entitled to Summary Judgment on the Question of
Whether They Provided Plaintiff With a \"Reasonable
Accommodation.\"]{.underline}**

Once the plaintiff was arrested, he was entitled, under the
Rehabilitation Act, to be free from discrimination with respect to his
transportation to the police station. Since the decision in
[Southeastern Community College v. Davis]{.underline}, 442 U.S. 397
(1979), it has been clear that the obligation under section 504 to
refrain from discrimination requires a recipient of federal funding to
make \"reasonable accommodations\" for persons with disabilities that do
not fundamentally alter the nature of their programs and activities
(i.e., that do not eliminate eligibility criteria for participation that
are essential). [See]{.underline} [id.]{.underline}, at 410, 412.
[Alexander v. Choate]{.underline}, 469 U.S. 287 (1985), subsequently
clarified and re-affirmed the holding in [Davis]{.underline}.
[See]{.underline} [Id.]{.underline} at 300 & n.20, 308.

The defendants have failed to demonstrate that they satisfied their
legal obligation to make \"reasonable accommodations\" for the plaintiff
in connection with his arrest and subsequent transportation. They claim
that section 504 does not prohibit the use of a standard patrol wagon to
transport arrestees who use wheelchairs. [See]{.underline} Def. Br. at
17, 19. However, this point is irrelevant to their obligation to make
\"reasonable accommodations\" for particular individuals with
disabilities. It does not follow from the fact that one type of vehicle
may be appropriate for transporting some individuals in wheelchairs,
that the defendants had no obligation to make a \"reasonable
accommodation\" for the plaintiff.

Defendants also claim that they had no choice but to transport the
plaintiff in the manner they did, because he appeared intoxicated, was
uncooperative, and did not provide them with specific information about
the nature of his disability and the manner in which he should be
transported. [See]{.underline} Def. Br. at 20. There are, however,
factual disputes concerning the plaintiff\'s cooperativeness and the
information he provided to police officers. The plaintiff claims that he
informed the officers who arrested him and Officer Becker that the
patrol wagon was unsuitable to transport him. [See]{.underline}
Affidavit of Jeffrey Gorman, Exhibit \"B\" to Plaintiff\'s Suggestions
in Opposition to Separate Motion for Summary Judgment of Defendant
Becker, at ¶ 7. He further states that once the decision was made to
transport him in the patrol wagon, he requested that he be permitted to
sit on the cushion of his wheelchair for additional support.
[Id.]{.underline} at ¶ 8. This request appears to have been denied.
Officer William Warren, an off-duty officer who assisted Officer Becker
in placing the plaintiff into the patrol wagon, stated in his deposition
that the plaintiff provided no information about transporting him other
than the manner in which he should be lifted from his wheelchair.
Deposition of William J. Warren, Exhibit \"A\" to Def. Br. (hereafter
\"Warren Dep.\"), at 50, 54. Officer Becker does not recall whether the
plaintiff gave specific instructions about how to transport him.
Deposition of Neil S. Becker, Exhibit \"A\" to Plaintiff\'s Suggestions
in Opposition to Separate Motion for Summary Judgment of Defendant
Becker, at 14, 15-16.

Additionally, significant factual issues exist as to whether the
plaintiff could have been safely transported in some other vehicle, such
as in a patrol car. Defendants maintain that transporting the plaintiff
in a patrol car, unhandcuffed and with access to an armed police
officer, \"would not have been safe for the officer, the individual or
other traffic on the public streets.\" Def. Br. at 20.[^6] It does not
appear likely, however, that the plaintiff, with his particular type of
disability, would have been able to disarm or otherwise injure an
officer transporting him in a patrol car, even if he were not
handcuffed.

**D. [Defendants Are Not Entitled to Summary Judgment on the Issue of
Whether Plaintiff\'s Injuries Resulted From Inadequate Officer
Training.]{.underline}**

We believe that the Rehabilitation Act requires police departments to
train officers in the proper manner of detaining and transporting
persons with disabilities, including individuals who use wheelchairs.
Defendants do not argue that such training would have resulted in a
fundamental alteration of the KCMOPD\'s existing policies. Instead, they
make two arguments in response to the plaintiff\'s allegation that no
training or inadequate training had been provided.

First, by referring to the deposition testimony of Officer Warren, they
suggest that officers in the KCMOPD are in fact trained in the manner of
arresting individuals in wheelchairs. Def. Br. at 20. Officer Warren\'s
deposition is, at best, ambiguous on the point. At one point in his
deposition, he says that he cannot recall having received training about
handling people with disabilities in connection with arrests.
[See]{.underline} Warren Dep. at 25. The most that his deposition and
the affidavit of Officer Neil Becker (which also accompanies the summary
judgment motion) can establish is that KCMOPD police officers are
trained to deal with all arrestees \-- with and without disabilities \--
differently, depending upon the circumstances surrounding the arrest.
[See]{.underline} [id.]{.underline} at 22-29; Affidavit of Neil S.
Becker, Exhibit \"C\" to Def. Br., at ¶¶ 9, 10. [See]{.underline}
[also]{.underline} Def. Br. at 20.

Second, defendants insist that additional training would not have
affected the outcome of this case, because the plaintiff had not
provided specific information about the nature of his disability and the
manner in which he should have been transported. We have previously
highlighted the factual disputes precluding summary judgment that exist
on this point. [See]{.underline} Part II.C, [supra]{.underline}.

The government takes no position on the question of whether, as of May
31, 1992, the KCMOPD provided police officers with adequate training on
the manner in which to detain and transport arrestees with disabilities.
Nor do we express an opinion on whether such training would have averted
what occurred in this case. We do believe, however, that training law
enforcement officials in the proper techniques for detaining and
transporting persons with disabilities is a reasonable accommodation
which section 504 requires, and that factual disputes precluding summary
judgment exist as to whether such training was provided, and whether
appropriate policies were followed.

## III. CONCLUSION

For all of the foregoing reasons, the United States respectfully
requests this Court to deny defendants\' motion for summary judgment as
to plaintiff\'s Rehabilitation Act claims.

Respectfully submitted,

STEPHEN L. HILL, JR. DEVAL L. PATRICK

United States Attorney Assistant Attorney General

For the Western District Civil Rights Division

of Missouri

ALLEEN S. VANBEBBER By:

Deputy United States JOHN L. WODATCH

Attorney for the Western L. IRENE BOWEN

District of Missouri CHRISTOPHER J. KUCZYNSKI,

Missouri Bar #41460 Attorneys

Suite 2300 Disability Rights Section

1201 Walnut Street U.S. Department of Justice

Kansas City, MO 64106 P.O. Box 66738

Tel: (816) 426-3130 Washington, D.C. 20035-6738

Tel: (202) 307-1060

[^1]: ^?^ The United States previously intervened in this case to defend
    the constitutionality of title II of the ADA, and has also filed two
    briefs as [amicus]{.underline} [curiae]{.underline} concerning the
    applicability of title II to arrests and all related activities. On
    February 9, 1996, following a decision by this Court that title II
    is not unconstitutionally vague, defendants filed a motion
    requesting the Court to reconsider and set aside its November 14,
    1995 order allowing the United States to participate as
    [amicus]{.underline} [curiae]{.underline}. The Court granted this
    motion on March 5, 1996, and, on March 15, denied the United
    States\' motion for reconsideration.

[^2]: ^?^ We assume for the purpose of addressing this issue that the
    plaintiff has properly sued the defendants in their official
    capacities.

[^3]: ^?^ Defendants mistakenly assert that this Court has already ruled
    in their favor on this issue, pointing to the Orders of March 26 and
    March 29, 1996, granting summary judgment in favor of Officer Becker
    and former Chief of Police Bishop with respect to plaintiff\'s
    claims against them in their individual capacities.
    [See]{.underline} Def. Br. at 12, 13-14. We do not read the Court\'s
    decisions holding that defendants Becker and Bishop could assert the
    defense of \"qualified immunity\" as tantamount to a ruling in favor
    of the KCMOPD and the members of the Board in their official
    capacities. The Court has merely concluded that, for the purposes of
    the defense of \"qualified immunity,\" the plaintiff\'s rights under
    the ADA and section 504 were not \"clearly established.\" It has not
    concluded that these rights do not exist at all.

[^4]: ^?^ [See]{.underline} [also]{.underline} [Leake v. Long Island
    Jewish Medical Center]{.underline}, 695 F. Supp. 1414, 1416
    (E.D.N.Y. 1988), [aff\'d]{.underline} 869 F.2d 130 (2d Cir. 1989)
    (stating that the expressed purpose of the clarified definition of
    \"program or activity\" in the 1988 Civil Rights Restoration Act was
    to \"restore the broad scope of the coverage and to clarify the
    application of . . . Section 504 of the Rehabilitation Act of
    1973\") [Bonner v. Arizona Department of Correction]{.underline},
    714 F. Supp. 420, 422-23 (D. Ariz. 1989) (adopting the rationale in
    [Leake]{.underline}); [Cohen v. Brown University]{.underline}, 809
    F. Supp. 978, 982 (1992), [aff\'d]{.underline} 991 F.2d 888 (1st
    Cir. 1993) (discussing effect of Civil Rights Restoration Act upon
    the definition of \"program or activity\" in title IX of the Civil
    Rights Act).

[^5]: ^?^ The commentary set out above not only demonstrates that the
    statute covers arrests, but refutes defendants\' apparent contention
    that, if section 504 applies to arrests at all, it only applies in
    situations where a person is arrested because of a disability.
    [See]{.underline} Def. Br. at 13,14. The obligation to provide an
    interpreter obviously exists without regard to the reason for which
    a person with a hearing impairment was arrested. Likewise, the
    plaintiff was entitled to be free of discrimination in connection
    with all actions related to his arrest and transportation, even if
    he was not arrested because of his disability.

[^6]: ^?^ [See]{.underline} [also]{.underline} Def. Br. at 15
    (\"Compromising an established procedure such as the method of
    transporting arrestees could result in grave danger to police
    officers effecting the arrest, bystanders who may have already been
    victimized and indeed to the disabled individual who may be a threat
    to himself as well as others\").