Number range CHAPTER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

GEORGE CROCKER,

Plaintiff,

v\.

LEWISTON POLICE DEPARTMENT,

[et al.]{.underline},

Defendants.

[                                                                                  ]{.underline}

)))))))))))))

CASE NO. 00-13-P-C

**UNITED STATES\' MEMORANDUM AS [AMICUS CURIAE]{.underline} IN
OPPOSITION OF DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT**

**I. INTRODUCTION**

This case was filed by George Crocker, a deaf individual, against the
Lewiston Police Department, Andre Gagne in his official capacity as
District Court Bail Commissioner, and the Androscoggin County Sheriff's
Department.[^1] Plaintiff alleges that the defendants violated Title II
of the Americans with Disabilities Act of 1990, 42 U.S.C. §§12131-61
("ADA"), Section 504 of the Rehabilitation Act of 1973 (\"Section
504\"), 29 U.S.C. § 794, and the Maine Human Rights Act, 5 M.R.S.A.
§4592,[^2] by failing to provide sign language interpreters,
telecommunications equipment, and other appropriate auxiliary aids
necessary for effective communication.

Bail Commissioner Gagne filed a Motion for Summary Judgment challenging,
[inter alia]{.underline}*,* the constitutionality of the ADA's
abrogation of States' Eleventh Amendment immunity. The Lewiston Police
Department also filed a Motion for Summary Judgment arguing, [inter
alia]{.underline}*,* that "\[a\]s a matter of law, the arrest that took
place in this case cannot be considered a public program or benefit
within the meaning of these anti-discrimination statutes."

As [amicus curiae]{.underline}, the United States urges the Court to
deny the defendants' motions for summary judgment. Regarding Bail
Commissioner Gagne's constitutionality argument, the United States
Supreme Court granted certiorari in [University of Alabama Board of
Trustees v. Garrett]{.underline}, --- U.S. ---, 120 S.Ct. 1669, 146
L.Ed.2d 479 (2000), to address the validity of the abrogations of
States' Eleventh Amendment immunity under both Title I and Title II of
the Americans with Disabilities Act. Oral argument was heard on October
11, 2000, and the Supreme Court's decision will control the disposition
of the constitutional question regarding the Americans with Disabilities
Act. Therefore, we urge this Court hold in abeyance consideration of
this issue until the Supreme Court issues its opinion in
[Garrett]{.underline}.

The Lewiston Police Department's argument that the plaintiff's arrest in
this case cannot be considered a public program or benefit must fail
because Title II of the ADA and Section 504 of the Rehabilitation Act
cover all operations of a police department. As discussed below, the
plain language of both statutes, Title II's legislative history, the
Department of Justice's Title II implementing regulation, 28 C.F.R. Pt.
35 (1995), and the regulation's Preamble, 28 C.F.R. Pt. 35, App. A.
(1995), clearly establish that all operations of a police department,
including plaintiff's arrest in this case, are public programs covered
by Title II of the ADA.

**II. ARGUMENT**

[TITLE II AND SECTION 504 COVER ALL OPERATIONS OF A POLICE
DEPARTMENT]{.underline}

[A. The Statutory Language of Title II and Section 504 is Broadly
Inclusive]{.underline}

Congress enacted the Americans With Disabilities Act (ADA) as a \"clear
and comprehensive national mandate for the elimination of discrimination
against individuals with disabilities.\" 42 U.S.C. 12101(b). An exercise
of the \"sweep of congressional authority, including the power to
enforce the fourteenth amendment and to regulate commerce,\"
[ibid.]{.underline}, the ADA broadly covers, and prohibits
discrimination in, both private and public activity, including
employment (42 U.S.C. 12111-12117), commercial facilities (42 U.S.C.
12181-12189), public transportation (42 U.S.C. 12141-12150) and, as
relevant here, the full range of activities conducted by public entities
(42 U.S.C. 12131-12134). Federal agencies are given a leading role in
implementing and enforcing the ADA, in light of Congress\'s declared
purposes to \"provide clear, strong, consistent, enforceable standards
addressing discrimination\" against people with disabilities and to
\"ensure that the Federal Government plays a central role in enforcing\"
those standards on their behalf. 42 U.S.C. 12101(b)(2)-(3).[^3]

This case involves the anti-discrimination provisions of Part A of Title
II of the ADA, 42 U.S.C. 12132, and Section 504 of the Rehabilitation
Act. Section 12132 of the ADA provides:

> 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]{.underline} of a
> public entity, [or be subjected to discrimination by any such
> entity]{.underline}.

(Emphasis added). Similarly, Section 504 provides in pertinent part:

> \[n\]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 any [program or
> activity]{.underline} receiving Federal financial assistance.

29 U.S.C. 794(a) (emphasis added). Title II defines \"public entity\" to
include \"any State or local government\" and \"any department, agency,
special purpose district, or other instrumentality of a State or States
or local government.\" 42 U.S.C. 12131(A)-(B). Title II was modeled
closely on Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794,
and extended Section 504\'s prohibition against disability-based
discrimination in programs and activities (including state and local
programs and activities) receiving federal financial assistance to all
operations of state and local governments, whether or not they receive
federal assistance.[^4]

The broad reach of Section 504 is evidenced by the definition of
"program or activity" which includes "[all of the operations of a
department]{.underline}, agency, special purpose district, or other
instrumentality of a State or of a local government . . . any part of
which is extended Federal financial assistance." 29 U.S.C. §794(b)(1)(A)
(emphasis added). Therefore, Section 504 applies to arrests and actions
related thereto as they constitute \"operations of\" the police
department. See, e.g., [Gorman v. Bartch]{.underline}, 152 F.3d 907, 913
(8^th^ Cir. 1998) (applying Section 504 to an arrestee's
transportation); [Calloway v. Boro of Glassboro Dept. of Police, et
al.]{.underline}, 89 F.Supp.2d 543, 554 (D.N.J. 2000) (applying
Rehabilitation Act to investigative questioning at police station);
[Hanson v. Sangamon County Sheriff's Dept., et al.]{.underline}, 991
F.Supp. 1059, 1062-63 (C.D. Ill. 1998) (applying Rehabilitation Act to
arrestee's opportunity to post bond and make a telephone call).
Similarly, Title II has been interpreted to cover police arrest
procedures. [Gorman]{.underline}, 152 F.3d at 913 (applying Title II to
an arrestee's transportation); [Hainze v. Richards]{.underline}, 207
F.3d 795, 800 (5^th^ Cir. 2000) (applying Title II to an officer's
on-the-street responses to reported disturbances once the scene is
secure and there is no threat to human life).

B. Legislative History Establishes that Congress Intended

[Title II Cover All Activities of State and Local
Government]{.underline}

The legislative history of Title II confirms that both statutes prohibit
discrimination against qualified individuals with disabilities with
respect to everything a public entity does, including arrests. The House
Education and Labor Committee Report specifies that \"Title II . . .
makes [all activities]{.underline} of State and local governments
subject to the types of prohibitions against discrimination against a
qualified individual with a disability included in section 504.\" H.R.
Rep. No. 101-485, 151 (1990) (emphasis added). In addition, during
legislative debate, Congressman Levine asserted that the ADA
specifically addressed mistreatment by the police. He stated:

> One area that should be specifically addressed by the ADA\'s
> regulations should be the issue of nondiscrimination by police.
> Regretfully, it is not rare for persons with disabilities to be
> mistreated by the police. . . . Many times, deaf persons who are
> arrested are put in handcuffs. But many deaf persons use their hands
> to communicate, either through sign language or by writing a note to a
> nondisabled person who does not know sign language. The deaf person
> thus treated is completely unable to communicate.
>
> Although I have no doubt that police officers in these circumstances
> are acting in good faith, these mistakes are avoidable and should be
> considered illegal under the Americans With Disabilities Act. They
> constitute discrimination, as surely as forbidding entrance to a store
> or restaurant is discrimination.

136 Cong. Rec. H2599-01, H2633 (May 22, 1990) (statement of Rep.
Levine).

[C. Department of Justice's Title II and Section 504 Regulations Cover
Police Activity]{.underline}

Regulations issued by the Department that is charged with the
enforcement of the statute must be given \" \'controlling weight unless
it is plainly erroneous or inconsistent with the regulation.\' \"
[Thomas Jefferson Univ. v. Shalala]{.underline}, 512 U.S. 504, 512
(1994) (quoting [Bowles v. Seminole Rock & Sand Co.]{.underline}, 325
U.S. 410, 414 (1945)). See also [Bragdon v. Abbott et al.]{.underline},
524 U.S. 624, 646 (1998) (as the agency directed by Congress to issue
implementing regulations for the ADA, the Department of Justice's views
are entitled to deference); [Chevron U.S.A., Inc. v. Natural Resources
Defense Council, Inc.]{.underline}, 467 U.S. 837, 844 (1984) ("'When
Congress expressly delegates to an administrative agency the authority
to make specific policy determinations, courts must give the agency\'s
decision controlling weight unless it is \'arbitrary, capricious, or
manifestly contrary to the statute.\'\"). The same deference is due the
agency's Preamble or commentary accompanying a regulation because both
are part of a department\'s official interpretation of legislation.
[Stinson v. United States]{.underline}, 508 U.S. 36, 45 (1993); [Udall
v. Tallman]{.underline}, 380 U.S. 1, 16-17 (1965).

The Department of Justice has promulgated regulations for the
implementation of Title II. 28 C.F.R. Pt. 35. Section 35.190(b)(6)
designates the Department of Justice as the agency responsible for
coordinating the compliance activities of public entities that
administer \"\[a\]ll programs, services, and regulatory activities
relating to law enforcement, public safety, and the administration of
justice, including courts and correctional institutions.\" The
regulations state that the statute\'s coverage extends to \"[all
services, programs, and activities]{.underline} provided or made
available by public entities.\" 28 C.F.R. 35.102(a) (emphasis added).
The preamble to the regulations indicates that this language was
intended to apply to \"\[a\]ll governmental activities of public
entities,\" [i.e.]{.underline}, \"anything a public entity does.\" 28
C.F.R. Pt. 35, App. A, at 466. And the preamble\'s discussion of Section
35.130, which sets forth the general substantive prohibitions against
discrimination, notes that a public entity may be required to provide
assistance to individuals with disabilities \"where the individual is an
inmate of a custodial or correctional institution.\" 28 C.F.R. Pt. 35,
App. A, at 478.

The Department\'s Title II Technical Assistance Manual, published in
accordance with Section 12206 of the ADA, specifically lists \"jails and
prisons\" as types of facilities that, if constructed or altered after
the effective date of the ADA, must be designed and constructed so that
they are readily accessible to and usable by individuals with
disabilities. Title II Technical Assistance Manual at II-6.0000,
II-6.3300(6).[^5] In addition, the 1994 Supplement to the Technical
Assistance Manual uses police department encounters as an example of
when effective communication is critical:

> ILLUSTRATION 3: A municipal police department encounters many
> situations where effective communication with members of the public
> who are deaf or hard of hearing is critical. Such situations include
> interviewing suspects prior to arrest (when an officer is attempting
> to establish probable cause); interrogating arrestees; and
> interviewing victims or critical witnesses. In these situations,
> appropriate qualified interpreters must be provided when necessary to
> ensure effective communication.

Title II Technical Assistance Manual 1994 Supp. at II-7.1000 (b)(3).

The Department of Justice\'s Section 504 implementing regulations also
specify that the Rehabilitation Act applies to arrests. The word
\"program\" is defined to "mean\[\] [the operations]{.underline} of the
agency or organizational unit of government receiving or substantially
benefitting from the Federal assistance awarded, e.g., [a police
department]{.underline} or department of corrections.\" 28 C.F.R.
42.540(h) (emphasis added). The term \"benefit\" includes provisions of
services such as "treatment, handling, decision, sentencing,
confinement, or other prescription of conduct." [Id]{.underline}. at
42.540(j).

D. Case Law Overwhelmingly Supports Broad Coverage

[of State and Local Police Activities, Including Arrests]{.underline}

In [Pennsylvania Dept. of Corrections, et al. v. Yeskey]{.underline}.
524 U.S. 206 (1998), the Department of Corrections and several
department officials argued that the ADA was inapplicable to inmates in
state prisons. The U.S. Supreme Court unanimously disagreed, holding
that "the plain text of Title II of the ADA unambiguously extends to
state prison inmates\...." [Yeskey]{.underline}. 524 U.S. at 212. The
Court stated:

> the statute's language unmistakeably includes State prisons and
> prisoners within its coverage\.... \[T\]he ADA plainly covers state
> institutions without any exception that could cast the coverage of
> prisons into doubt . . . . \[Even\] assuming . . . Congress did not
> 'envisio\[n\] that the ADA would be applied to state prisoners, in the
> context of an unambiguous statutory text that is irrelevant. As we
> have said before, the fact that a statute can be 'applied in
> situations not expressly anticipated by Congress does not demonstrate
> ambiguity. It demonstrates breadth.'

[Id.]{.underline} at 209, 212 (citations omitted).

Relying on [Yeskey]{.underline}, the Court of Appeals for the Eighth
Circuit found that arrestee transportation is a program or service of a
local police department under the ADA in [Gorman v. Bartch]{.underline},
152 F.3d 907, 913 (8^th^ Cir. 1998). "The statutes must be interpreted
broadly to include [the ordinary operations of a public
entity]{.underline} in order to carry out the purpose of prohibiting
discrimination." [Gorman]{.underline}, 152 F.3d at 913 (emphasis added).
See also [Johnson v. City of Saline, et al.]{.underline}, 151 F.3d 564,
569-70 (6^th^ Cir. 1998) ("the phrase 'services, programs, or
activities' encompasses virtually everything that a public entity does.
. . . \[T\]he word \"activities,\" on its face, suggests great breadth
and offers little basis to exclude any actions of a public entity.");
[Innovative Health Systems, Inc. v. City of White Plains, et
al.,]{.underline} 117 F.3d 37, 44-45 (2^nd^ Cir. 1997) (demonstrating
the breadth of Title II and Section 504 by holding that zoning decisions
are covered under both statutes even though "zoning does not constitute
a 'service, program, or activity' . . . because making such decisions is
a normal function of a governmental entity"); [Crowder v.
Kitagawa]{.underline}, 81 F.3d 1480 (9^th^ Cir. 1996) (demonstrating the
breadth of Title II coverage by holding that Hawaii's 120-day quarantine
requirement for animals entering the State violates Title II by
discriminating against visually-impaired individuals even though the
quarantine requirement is not a "service," or "benefit"provided by the
State); [Calloway v. Boro of Glassboro Dept. of Police, et
al.]{.underline}, 89 F.Supp.2d 543, 554 (D.N.J. 2000) (applying ADA to
investigative questioning at police station); [Hanson v. Sangamon County
Sheriff's Dept., et al.]{.underline}, 991 F.Supp. 1059, 1062-63 (C.D.
Ill. 1998) (applying ADA to arrestee's opportunity to post bond and make
a telephone call); [Lewis v. Truitt, et al.]{.underline}, 960 F.Supp.
175, 178 (S.D. Ind. 1997) (applying ADA to the arrest of a deaf
individual).

In fact, this Court has held that arrests are covered under the ADA. In
[Jackson v. Inhabitants of the Town of Sanford, et al.]{.underline},
1994 WL 589617, at \*1 (D.Me. 1994), Jackson was mistakenly arrested for
driving under the influence of intoxicating liquor and/or drugs when, in
fact, his behavior reflected certain physical disabilities caused by a
stroke. Jackson filed suit in this Court alleging, [inter
alia]{.underline}, that his arrest was an act of discrimination based on
his disability and that the Town failed to properly train its police
officers to prevent discriminatory treatment of persons with
disabilities. [Id.]{.underline} at \*6. The Town argued that the ADA was
inapplicable. [Id.]{.underline} This court disagreed stating, "Title II
of the ADA clearly applies to acts of discrimination by a public entity
against a disabled individual." [Id.]{.underline} And in [Barber v.
Guay, et al.]{.underline}, 910 F.Supp. 790, 709 (D.Me.1995), Barber was
arrested for theft. The State never prosecuted Barber who filed suit in
this Court claiming, [inter alia]{.underline}, that he has a disability
or is perceived by others as having a disability and was denied proper
police protection and fair treatment due to his disability.
[Id.]{.underline} at 790, 796. This court rejected defendants' summary
judgment motion by finding that Barber stated a valid cause of action
under the ADA. [Id.]{.underline} at 802. Importantly, Barber was not
mistakenly arrested *because of* his disability, but rather, stated a
valid cause of action based on *his treatment during the arrest*.

Defendant relies on [Patrice v. Murphy]{.underline}, 43 F.Supp.2d 1156,
1157 (W.D. Wa. 1999), in asserting that an arrest is not a type of
service, program, or activity from which a disabled person could be
excluded or denied benefits.[^6] We disagree. Not only did the District
Court fail to consider the broad language of Title II, it failed to
consider the Supreme Court's decision in [Yeskey]{.underline} and relied
primarily on pre-[Yeskey]{.underline} decisions. See
[Patrice]{.underline}, 43 F.Supp.2d 1156, 1158 (citing, e.g., [Armstrong
v. Wilson]{.underline}, 124 F.3d 1019 (9^th^ Cir. 1997); [Crawford v.
Indiana Dept. of Corrections]{.underline}, 115 F.3d 481 (7^th^ Cir.
1997); [Rosen v. Montgomery County Maryland]{.underline}, 121 F.3d 154
(4^th^ Cir. 1997)).

**CONCLUSION**

For the foregoing reasons, the United States, as [amicus]{.underline}
[curiae]{.underline}, asks that this Court find that Title II of the ADA
and Section 504 apply to all of a police department\'s operations,
including plaintiff's arrest in this case.

Respectfully submitted,

BILL LANN LEE

Assistant Attorney General

Civil Rights Division

By: [                                          ]{.underline}

John L. Wodatch, Chief

Renee M. Wohlenhaus, Deputy Chief

Philip L. Breen, Special Legal Counsel

Angela N. Liang, Trial Attorney

U.S. Department of Justice

Civil Rights Division

Disability Rights Section

P.O. Box 66738

Washington, D.C. 20035-6738

Tel: (202) 307-0663

[^1]: 1 ^1^ Crocker settled out of court with the Androscoggin County
    Sheriff's Department.

[^2]: 2 ^2^ Crocker also filed a claim with the Maine Human Rights
    Commission which issued findings of reasonable grounds of
    discrimination by the police department, sheriff's department, and
    bail commissioner. Compl. at ¶24.

[^3]: 3 ^3^ The Department of Justice is the designated Federal agency
    responsible for investigating complaints regarding "All programs,
    services, and regulatory activities relating to law
    enforcement\...." Title II Technical Assistance Manual at
    II-9.2000(6).

[^4]: 4 ^4^ See S. Rep. No. 116, 101st Cong., 1st Sess. 44 (1989)
    (Senate Report) (\"The first purpose \[of Title II\] is to make
    applicable the prohibition against discrimination on the basis of
    disability, currently set out in regulations implementing section
    504 of the Rehabilitation Act of 1973, to all programs, activities,
    and services provided or made available by state and local
    governments or instrumentalities or agencies thereto, regardless of
    whether or not such entities receive Federal financial
    assistance.\"); H.R. Rep. No. 485, 101st Cong., 2d Sess. Pt. 2, at
    84, 151 (1990) (House Report) (same); [id.]{.underline}, Pt. 3, at
    50 (same).

[^5]: 5 ^5^ The Department\'s regulations also provide that public
    entities building new facilities or altering existing ones may
    follow either the Uniform Federal Accessibility Standards (UFAS) or
    the ADA Accessibility Guidelines for Buildings and Facilities
    (ADAAG), established by the Access Board. 28 C.F.R. 35.151(c); see
    41 C.F.R. 101-19.6, App. A; 28 C.F.R. Pt. 36, App. A. The UFAS lists
    \"jails, prisons, reformatories\" and \"\[o\]ther detention or
    correctional facilities\" as institutions to which the accessibility
    standards apply. 41 C.F.R. 101-19.6, App. A, at 149. Recent
    amendments to the ADAAG include specific accessibility guidelines
    for detention and correctional facilities. 63 Fed. Reg. 2000,
    2009-2013 (1998). The Access Board adopted those amendments as a
    final rule in 1998. 63 Fed. Reg. 2000. As adopted by the Access
    Board, they provide guidance to the Department of Justice in
    establishing accessibility standards under Title II. See
    [ibid.]{.underline}; 42 U.S.C. 12134(c); 12204(a). The Department of
    Justice has proposed adoption of the amendments. 59 Fed. Reg. 31,808
    (1994).

[^6]: 6 ^6^ Defendant cites [Hainze v. Richards]{.underline}, 207 F.3d
    795, 800 (5^th^ Cir. 2000) and [Gohier v. Enright]{.underline}, 186
    F.3d 1216 (10^th^ Cir. 1999) as cases relying upon the holding in
    [Patrice]{.underline}. However, both cases are inapplicable to the
    instant case. The [Hainze]{.underline} court held only that "Title
    II does not apply to an officer's on-the-street responses to
    reported disturbances . . . [prior to the officer's securing the
    scene and ensuring that there is no threat to human
    life]{.underline}. . . . Once the area \[is\] secure and there
    \[is\] no threat to human safety, the \[police department\] would
    have been under a duty to reasonably accommodate \[the arrestee's\]
    disability. . . ." [Hainze]{.underline}, 207 F.3d at 801-02
    (emphasis added). Because there is no allegation that there was a
    threat to human safety in Mr. Crocker's case, the holding in
    [Hainze]{.underline} is inapplicable here. Similarly,
    [Gohier]{.underline} is inapplicable to this case as the Court of
    Appeals for the Tenth Circuit explicitly stated that "a broad rule
    categorically excluding arrests from the scope of Title II . . . is
    not the law." [Gohier]{.underline}, 186 F.3d at 1221.

    In addition, the defendant's reliance on [Rosen v. Montgomery County
    Md.]{.underline}, 121 F.3d 154 (4^th^ Cir. 1997), for the
    proposition that "a deaf arrestee could not sustain an ADA claim
    where he admitted to the elements of the criminal charge," Def.'s
    Mot. for Summ. J. at 11, is also misplaced because the Court did not
    so hold. To the extent the Court stated that an arrest is "a stretch
    of the \[ADA's\] statutory language and of the underlying
    legislative intent," [Rosen]{.underline}, 121 F.3d at 157, the
    decision pre-dates the U.S. Supreme Court's decision in
    [Pennsylvania Dept. of Corrections, et al. v. Yeskey]{.underline}.
    524 U.S. 206 (1998).