IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF MISSOURI

JEFFREY GORMAN, )

)

Plaintiff ) No. 93-0487-CV-W-8

)

and )

)

UNITED STATES OF AMERICA, )

)

Plaintiff-Intervenor )

)

)

vs )

)

)

GUITARS & CADILLACS, L.P., )

et al, )

)

Defendants )

)

**COMBINED SUGGESTIONS OF THE UNITED STATES**

**AS INTERVENOR IN OPPOSITION TO**

**DEFENDANTS\' MOTION FOR SUMMARY JUDGMENT**

**AND MEMORANDUM [AMICUS]{.underline} [CURIAE]{.underline}**

**TABLE OF CONTENTS**

**TABLE OF AUTHORITIES** ii

**I. BACKGROUND** 1

**II. SECTION 504 APPLIES TO THE ACTS ALLEGEDLY ENGAGED IN BY THE
DEFENDANTS** 3

> A. The arrest and transportation of a person with a disability are
> programs and activities under section 504 4
>
> B. At the time of his arrest, the plaintiff was a \"Qualified
> Individual with a Disability\" within the meaning of section 504 8
>
> C The plaintiff has alleged facts sufficient to demonstrate that he
> was \"subjected to\" discrimination under section 504 9

**III. THE AMERICANS WITH DISABILITIES ACT APPLIES TO THE ACTS ALLEGEDLY
ENGAGED IN BY THE DEFENDANTS** 13

> A. Title II is not unconstitutionally vague 13
>
> B. The arrest and transportation of persons with disabilities are
> \"services, programs, or activities\" within the meaning of title II
> 18
>
> C. At the time of his arrest, the plaintiff was a \"Qualified
> individual with a Disability\" within the meaning of title II 22
>
> D. The plaintiff has alleged facts sufficient to demonstrate that he
> was \"subjected to discrimination\" within the meaning of title II 24
>
> E. The defendants have not demonstrated that making modifications to
> equipment would constitute an undue financial or administrative burden
> 25

**IV. CONCLUSION** 27

**[TABLE OF AUTHORITIES]{.underline}**

**CASES:**

[A.B. Small Co. v. American Sugar Refining Co.]{.underline},

267 U.S. 233, 239 (1925) 14

Alexander v. Choate, 469 U.S. 287 (1985) 9, 10

[Americans Disabled for Accessible]{.underline}

[Public Transportation v. Skinner]{.underline}, 881 F.2d 1184,

1991 (3d Cir. 1989) 7

[Arnett v. Kennedy]{.underline}, 416 U.S. 134, 158-64 (1974) 14

[Bonner v. Arizona Department of Correction]{.underline},

714 F. Supp. 420, 422-23 (D. Ariz. 1989) 5

[Boutillier v. Immigration and Naturalization Service]{.underline},

387 U.S. 118, 121 (1967) 14

[Boyce Motor Lines v. United States]{.underline},

342 U.S. 337 (1952) 15

[Chevron, U.S.A., Inc. v. Natural Resources]{.underline}

[Defense Council, Inc.]{.underline}, 467 U.S. 837, 844 (1984) 7, 21

[Cohen v. Brown University]{.underline}, 809 F. Supp. 978 (1992),

[aff\'d]{.underline} 991 F.2d 888 (1st Cir. 1993) 5

[Connally v. General Construction Co.]{.underline},

269 U.S. 385, 391 (1926) 14

[D.C. & M.S. v. City of St. Louis]{.underline},

795 F.2d 652, 654 (8th Cir. 1986) 13

[Ginsburg v. New York]{.underline}, 390 U.S. 629, 643 (1968) 15

[Grayned v. City of Rockford]{.underline}, 408 U.S. 104 (1972) 13, 14

[Horn v. Burns & Roe]{.underline}, 536 F.2d 251,

25 (8th Cir. 1976) 14, 17

[Kinney v. Yerusalim]{.underline}, 9 F.3d 1067 (3d Cir. 1993) 21

[Leake v. Long Island Jewish Medical Center]{.underline},

695 F. Supp. 1414, 14 (E.D.N.Y. 1988),

[aff\'d]{.underline} 869 F.2d 130 (2d Cir. 1989) 5

[Moore v. Clarke]{.underline}, 904 F.2d 1226, 1233 (8th Cir. 1989) 15

[Noland v. Wheatley]{.underline}, 835 F. Supp. 476,

483 (N.D. Ind. 1993) 21

[Petersen v. University of Wis. Bd. of Regents]{.underline},

818 F. Supp. 1276, 1279 (W.D. Wis. 1993) 21

[Pinnock v. International House of Pancakes]{.underline},

844 F. Supp. 574 (S.D. Cal. 1993), [appeal pending]{.underline},

No. 94-55030 (9th Cir. Nov. 23, 1993) 15, 16

[School Board of Nassau County v. Arline]{.underline},

480 U.S. 273 (1987) 8

[Simon v. St. Louis County, Missouri]{.underline},

656 F.2d 316, 320 (8th Cir.), [cert. denied]{.underline},

455 U.S. 976 (1982) 10

[Southeastern Community College v. Davis]{.underline},

442 U.S. 397 (1979) 9, 10, 16

[United States v. Articles of Drug]{.underline},

825 F.2d 1238, 1244 (8th Cir. 1987) 13, 14

[United States v. Schneiderman]{.underline}, 968 F.2d 1564,

1568 (2d Cir. 1992) 15

[United States v. Board of Trustees for]{.underline}

[the University of Alabama]{.underline}, 908 F.2d 740, 746

(11th Cir. 1990) 7

[Village of Hoffman Estates v. Flipside,]{.underline}

[Hoffman Estates, Inc.]{.underline}, 455 U.S. 489, 498 & n.7 (l982) 13,
15

[Ward v. Rock Against Racism]{.underline}, 491 U.S. 781, 795 (1989) 14

[Williams v. Meese]{.underline}, 926 F.2d 994 (10th Cir. 1991) 6

**STATUTES:**

**Americans with Disabilities Act of 1990**

42 U.S.C. § 12115(2) (Supp. III 1992) 23

42 U.S.C. § 12132 (Supp. III 1992) 18

42 U.S.C. § 12134(a) (Supp. III 1992) 20

42 U.S.C. §§ 12115-12164 (Supp. III 1992) 2

42 U.S.C. §§ 12181-12189 (Supp. III 1992) 1

**Rehabilitation Act of 1973**

29 U.S.C. § 794 (1988 & Supp. IV 1993) 2

29 U.S.C. § 794(a) (1988 & Supp. IV 1993) 4, 8

29 U.S.C. § 794(b)(1)(A) (1988 & Supp. IV 1993) 6

**Other Statutes**

20 U.S.C. § 1687 (1988) 5, 6

28 U.S.C. § 2403 (1988) 3

42 U.S.C. § 1983 (1988) 2

**REGULATIONS:**

28 C.F.R. Pt. 35 (1993) 13

28 C.F.R. Pt. 35, App. A (1993) 16, 17, 22, 23, 25

28 C.F.R. Pt. 36 (1993) 15

28 C.F.R. § 35.102(a) (1993) 21

28 C.F.R. § 35.102(b) (1993) 21

28 C.F.R. § 35.104 (1993) 23

28 C.F.R. § 35.130 (1993) 17

28 C.F.R. § 35.130(a) (1993) 21

28 C.F.R. § 35.130(b)(1)(vii) (1993) 25

28 C.F.R. § 35.130(b)(3)(i) (1993) 25

28 C.F.R. § 35.130(b)(7) (1993) 16, 24

28 C.F.R. § 35.150(a)(3) (1993) 27

28 C.F.R. § 35.150(d) (1993) 26

28 C.F.R. § 42.540(l) (1993) 8

45 Fed. Reg. 37,620 (1980) 7

**LEGISLATIVE HISTORY:**

136 Cong. Rec. E1913-01, E1916-01 (June 13, 1990) 20

136 Cong. Rec. H2599-01, H2633-01 (May 22, 1990) 20

H.R. Rep. No. 485 (II), 101st Cong., 2d Sess. 84 (1990), [reprinted
in]{.underline} 1990 U.S.C.C.A.N. at 367 19

S. Rep. No. 64, 100th Cong., 2d Sess. 1-2 (1988),

[reprinted in]{.underline} 1988 U.S.C.C.A.N. 3, 3-4 5

**MISCELLANEOUS:**

Deposition of Dean Kelly 12

Deposition of Donald D. Rey 11

Deposition of Randall Simms 11

Plaintiff\'s Second Amendment to Complaint

at ¶¶ 228, 249, 261 11

Suggestions in Support of

Separate Motion for Summary Judgment 3, 4, 9, 13, 17, 22, 25

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF MISSOURI

JEFFREY GORMAN, )

)

Plaintiff ) No. 93-0487-CV-W-8

)

and )

)

UNITED STATES OF AMERICA, )

)

Plaintiff-Intervenor )

)

)

vs )

)

)

GUITARS & CADILLACS, L.P., )

et al, )

)

Defendants )

)

**COMBINED SUGGESTIONS OF THE UNITED STATES**

**AS INTERVENOR IN OPPOSITION TO**

**DEFENDANTS\' MOTION FOR SUMMARY JUDGMENT**

**AND MEMORANDUM [AMICUS]{.underline} [CURIAE]{.underline}**

**I. BACKGROUND**

The plaintiff, Jeffrey Gorman, filed this action against the owners and
operators of Guitars & Cadillacs, a country western bar located in the
Westport section of Kansas City, Missouri; the chief of police and
several officers in the Kansas City, Missouri Police Department
(\"KCMOPD\"); and members of the Board of Commissioners for the KCMOPD.
Mr. Gorman has paraplegia secondary to a spinal cord injury. He alleges
that the owners and operators of Guitars & Cadillacs violated his rights
under title III of the Americans with Disabilities Act of 1990
(\"ADA\"), 42 U.S.C. §§ 12181-12189 (Supp. III 1992) and state laws by
refusing to allow him access to the dance floor level of the bar because
he uses a wheelchair, and by subsequently having him arrested for
trespass after he asserted his right to remain in that area of the
facility.

Mr. Gorman\'s claims against the remaining defendants are based upon
title II of the ADA, 42 U.S.C. §§ 12115-12164 (Supp. III 1992) (\"title
II\"), section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794
(1988 & Supp. IV 1993) (\"section 504\"), 42 U.S.C. § 1983, and state
law. He claims that the police officers who arrested him and the officer
who transported him to police headquarters failed to ensure that he and
his wheelchair were properly secured in the patrol vehicle, and that as
a result he was injured and his chair was damaged during transport. Mr.
Gorman further alleges that the KCMOPD\'s chief of police and members of
the Board were responsible for implementing section 504 and the ADA, and
as such should have ensured that policies, practices, and procedures for
the detention and transportation of persons with disabilities were in
place. The failure to have such policies, practices, and procedures and
to make them known to all police officers, according to the plaintiff,
resulted in discrimination on the basis of disability in connection with
his arrest.

On May 13, 1994, defendants Becker, Bishop, Tate, Dillingham, Paul,
Headley, and Cleaver[^1] served upon plaintiff their Suggestions in
Support of Separate Motion for Summary Judgment (hereafter cited as
\"Def. Mem.\"). In their memorandum, the defendants claimed that their
conduct is protected by sovereign and official immunity, Def. Mem. at
5-9; that title II of the ADA is unconstitutionally vague, Def. Mem. at
15, 16-17; and that neither section 504 nor title II applies to this
case in any event. Def. Mem. at 9-15, 17-20. The United States has
intervened in this action with respect to the constitutional challenge
to the ADA, pursuant to 28 U.S.C. § 2403, and is participating as
[amicus]{.underline} [curiae]{.underline} in support of plaintiff\'s
position that (1) section 504 and title II of the ADA apply to policies,
practices, and procedures incident to arrest that discriminate on the
basis of disability; and (2) that if the facts as alleged by plaintiff
are proven to be true, defendants\' conduct would in fact constitute a
violation of both section 504 and title II.

**II. SECTION 504 APPLIES TO THE ACTS ALLEGEDLY ENGAGED IN BY THE
DEFENDANTS.**

The defendants argue that section 504 does not apply to them for three
reasons. First, they suggest that section 504 was intended to cover only
programs and activities which persons with disabilities seek to
participate in or from which they seek to obtain some benefit.
[See]{.underline} Def. Mem. at 10-11. Defendants\' other two arguments
\-- that the plaintiff was not \"subjected to discrimination\" and was
not a \"qualified individual with a disability\" within the meaning of
section 504 \-- are similar to one another. The crux of each is that the
methods employed to arrest and transport the plaintiff did not violate
section 504 because they were a necessary response to an individual who
may have posed a danger to himself and others. [See]{.underline} Def.
Mem. at 11-14. For the reasons that follow, all three of the
defendants\' arguments are unavailing.

> **A. [The arrest and transportation of a person with a disability are
> programs and activities under section 504.]{.underline}**

Section 504\'s language plainly covers programs and activities other
than those sought out by individuals with disabilities for the purpose
of receiving a benefit. Section 504 says that

> \[n\]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 or under any program or
> activity conducted by any Executive agency or by the United States
> Postal Service.

29 U.S.C. § 794(a) (1988 & Supp. IV 1993) (emphasis added). Excluding a
qualified individual from participation in a program or activity and
denying to such an individual a benefit of a program or activity are two
ways in which a recipient of Federal financial assistance may violate
section 504. However, Congress also prohibited a third category of
conduct \-- that which subjects individuals with disabilities to
discrimination under federally-funded programs and activities. This
broad language covers all funded activities, including the detention and
transportation of persons with disabilities by law enforcement
officials, whether or not they are sought out for the purpose of
obtaining a benefit.

In 1988, Congress amended the definition of \"program or activity\"
which had been in effect since 1973, to emphasize its broad reach.
Through the Civil Rights Restoration Act of 1988, Congress clarified the
meaning of the phrase in light of an unduly narrow interpretation by the
Supreme Court. 20 U.S.C. § 1687 (1988); S. Rep. No. 64, 100th Cong., 2d
Sess. 1-2 (1988), [reprinted in]{.underline} 1988 U.S.C.C.A.N. 3, 3-4.
[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}). [See]{.underline} [also]{.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). Congress\' clarified
definition, which applies to section 504, 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 (1988); 29 U.S.C. § 794(b)(1)(A) (1988 & Supp. IV 1993)
(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]

The preamble to the Department of Justice\'s regulation implementing
section 504 in its Federally assisted programs clearly indicates that
the statute applies in arrest situations. It contains an illustration of
the duties of law enforcement officials with respect to arrestees who
are deaf:

> 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
discussion is set in the context of a broader statement about the duties
of law enforcement officials under section 504 and appears under the
heading \"Physical and Other Accessibility to Programs.\" It not only
supports the contention that an arrest is an \"activity,\" but that it
is part of a larger \"program\" of law enforcement as well. As a
reasonable interpretation of a statute by an agency empowered to enforce
it, the language of the preamble cited above 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).

**B. [At the time of his arrest, the plaintiff was a \"Qualified
Individual with a Disability\" within the meaning of section
504.]{.underline}**

The defendants also contend that the plaintiff was not a \"qualified
individual with a disability.\"[^3] As defined in the Department of
Justice\'s regulation implementing section 504 with respect to its
federally-assisted programs, the term \"qualified handicapped person,\"
which is synonymous with the terms \"qualified individual with a
disability and \"otherwise qualified individual with a disability,\"
means \"a handicapped person who meets the essential eligibility
requirements for the receipt of . . . services.\" 28 C.F.R. § 42.540(l)
(1993). In many circumstances, the qualifications for services,
programs, and activities are minimal. 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. The KCMOPD \"qualified\" the plaintiff by arresting him.
Having done so, the defendants were required to provide him with those
services and benefits customarily afforded other arrestees (e.g., safe
transport, freedom from the use of excessive force, freedom from
self-incrimination, and the right to counsel), in a way that would not
discriminate on the basis of disability.

The defendants\' reliance upon [School Board of Nassau County v.
Arline]{.underline}, 480 U.S. 273 (1987), therefore, is misplaced,
because whether the plaintiff is \"qualified,\" in light of the risk he
was perceived to present, is not at issue. As demonstrated in the
following section, the defendants were obligated to ensure that
reasonable modifications to their existing policies, practices, and
procedures related to arrest and transport were made when necessary to
avoid discrimination against an obviously qualified individual with a
disability. In doing so, as explained below, the defendants could
legitimately take into account the risk posed by the particular
arrestee. The relevant issue, then, is whether the plaintiff was
\"subjected to discrimination\" under the defendants\' programs or
activities, not whether he was \"qualified\" within the meaning of
section 504.

> **C [The plaintiff has alleged facts sufficient to demonstrate that he
> was \"subjected to\" discrimination under section 504.]{.underline}**

Defendants claim that the plaintiff was not \"subjected to\"
discrimination. They cite [Southeastern Community College v.
Davis]{.underline}, 442 U.S. 397 (1979), and [Alexander v.
Choate]{.underline}, 469 U.S. 287 (1985), and note that these cases
\"struck a balance between the statutory rights of the handicapped to be
integrated into society and the legitimate interest of federal grantees
in preserving the integrity of their programs.\" [See]{.underline} Def.
Mem. 12. While a State has a legitimate interest in eliminating the
danger arrestees could potentially cause to others and to themselves,
the defendants\' theory ignores that part of the balancing test,
articulated in [Davis]{.underline} and re-affirmed in
[Choate]{.underline}, that requires that in some circumstances
reasonable policy modifications be made in order to avoid discrimination
on the basis of disability.

In [Davis]{.underline}, for example, the Supreme Court affirmed the
district court\'s decision to grant summary judgment in favor of
Southeastern Community College, because the record did not demonstrate
that the plaintiff would have been able to meet essential eligibility
criteria for participation in the Federally-funded program at issue.
[Davis]{.underline}, 442 U.S. at 415. The plaintiff, who had a severe
hearing impairment and understood spoken words primarily by lipreading,
sought admission into the defendant\'s nursing program.
[Id.]{.underline}, at 398. The plaintiff proposed that she be provided
with an instructor to assist her with required clinical courses, which
involved actual patient contact, or that these course requirements be
waived in her case. [See]{.underline} [id.]{.underline}, at 407. The
Court accepted the defendant\'s assessment that being able to hear
speech was essential for licensure as a registered nurse, and that no
reasonable accommodation would have allowed the plaintiff to complete
its program. [Id.]{.underline}, at 398 & n.1. Nevertheless,
[Davis]{.underline} as subsequently clarified in [Choate]{.underline},
acknowledged that recipients of Federal funds are required to make
reasonable accommodations that do not fundamentally alter the nature of
their programs and activities (i.e., to eliminate eligibility criteria
for participation that are essential) and do not impose undue financial
or administrative burdens. [See]{.underline} [id.]{.underline}, at 410,
412; [Choate]{.underline}, 469 U.S. at 300 & n.20, 308.
[See]{.underline} [also]{.underline} [Simon v. St. Louis County,
Missouri]{.underline}, 656 F.2d 316, 320 (8th Cir.), [cert]{.underline}.
[denied]{.underline} 455 U.S. 976 (1982) (also articulating this
standard). Thus, section 504 required recipients of Federal funding to
make determinations about what types of accommodations are necessary
based upon the needs of each individual with a disability.

The plaintiff has alleged, [inter]{.underline} [alia]{.underline}, that
the defendants\' failure to train the KCMOPD\'s officers in proper
techniques for arresting and transporting persons with disabilities
violated the section 504 obligation to make reasonable policy
modifications. [See]{.underline} Plaintiff\'s Second Amendment to
Complaint (\"Second Amend. to Comp.\") at ¶¶ 228, 249, 261. At the very
least, the plaintiff has alleged that he is a person with a disability
and that some reasonable accommodation may have prevented him from
having been subjected to discrimination under a program or activity
receiving Federal financial assistance.

Additionally, however, the record as thus far developed raises factual
disputes concerning the reasonableness of the plaintiff\'s proposed
accommodation that precludes summary judgment. Some deposition testimony
suggests that police officers in the KCMOPD are trained to treat all
arrest situations differently, depending upon the circumstances they
encounter. [See]{.underline}, [e.g.]{.underline}, Deposition of Randall
Simms at 36. Other testimony indicates that police officers annually
receive in-service training on a variety of topics. [See]{.underline},
[e.g.]{.underline}, Deposition of Donald D. Rey at 6-7. This testimony
suggests that training officers in the proper procedures for arresting
and transporting persons with disabilities could be accomplished with
little or no financial or administrative burden, and without altering
the fundamental nature of the KCMOPD\'s law enforcement processes. This
type of training, which would presumably emphasize the individualized
treatment of arrestees with disabilities, would be consistent with the
police department\'s already existing policies of treating arrest
situations individually, and could be integrated easily into existing
training sessions.

The Department of Justice does not take a position about whether proper
training was actually conducted in this case, though some of the
deposition testimony suggests that it was not. [See]{.underline}
Deposition of Dean Kelly at 8-9. Nor does the record as developed to
date establish whether, even if such training was conducted, it would
have averted the situation that occurred. The Department does 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,[^4] and that
disputes that currently exist as to whether such training was provided,
and whether appropriate policies were followed here, preclude summary
judgment.

**III. THE AMERICANS WITH DISABILITIES ACT APPLIES TO THE ACTS ALLEGEDLY
ENGAGED IN BY THE DEFENDANTS.**

> **A. [Title II is not unconstitutionally vague.]{.underline}**

The defendants argue that title II is unconstitutionally vague because
it does not provide standards sufficiently specific to have allowed them
to \"steer between lawful and unlawful conduct\" and subjects them to
the possibility of \"arbitrary and discriminatory enforcement.\" Def.
Mem. at 17; [see]{.underline} [also]{.underline} Def. Mem. at 16 (citing
[Grayned v. City of Rockford]{.underline}, 408 U.S. 104 (1972). Their
position suffers from at least two infirmities. First, the defendants
have not pointed to any specific word, phrase, or concept in title II or
the Department of Justice title II implementing regulation,
[see]{.underline} 28 C.F.R. Pt. 35 (1993) (\"the title II regulation\"
or \"the regulation\"), that is unconstitutionally vague; thus it is
difficult, if not impossible, to frame a complete response to their
position.

Additionally, the defendants\' reliance upon [Grayned v. City of
Rockford]{.underline}, [supra]{.underline}, is misplaced. That case
involved a challenge on vagueness grounds to a statute affecting the
First Amendment right of free speech. It is firmly established that laws
which may abridge constitutionally protected rights and those which
carry criminal sanctions are subject to a more stringent vagueness test
than are laws, like the ADA, which impose civil liability and regulate
economic conduct. [Village of Hoffman Estates v. Flipside, Hoffman
Estates, Inc.]{.underline}, 455 U.S. 489, 498 & n.7 (l982); [United
States v. Articles of Drug]{.underline}, 825 F.2d 1238, 1244 (8th Cir.
1987); [D.C. & M.S. v. City of St. Louis]{.underline}, 795 F.2d 652, 654
(8th Cir. 1986). [Grayned]{.underline} itself recognized this
distinction. [See]{.underline} [Grayned]{.underline}, 408 U.S. at 109.

In order to violate due process, a statute must be \"so vague and
indefinite as really to be no rule or standard at all\"). [Boutillier v.
Immigration and Naturalization Service]{.underline}, 387 U.S. 118, 121
(1967) (quoting [A.B. Small Co. v. American Sugar Refining
Co.]{.underline}, 267 U.S. 233, 239 (1925)). A non-criminal statute in
particular is to be considered unconstitutionally vague only if \"its
language does not convey sufficiently definite warning as to the
proscribed conduct when measured by common understanding or practice.\"
[Horn v. Burns & Roe]{.underline}, 536 F.2d 251, 25 (8th Cir. 1976)
(citing [Arnett v. Kennedy]{.underline}, 416 U.S. 134, 158-64 (1974).
[See]{.underline} [also]{.underline} [Connally v. General Construction
Co.]{.underline}, 269 U.S. 385, 391 (1926) (a statute is vague if
\"\[persons\] of ordinary intelligence must necessarily guess at its
meaning and differ as to its application . . . \"); [A.B. Small Co. v.
American Sugar Refining Co.]{.underline}, 267 U.S. 233, 239 (1925)
(vagueness will result only where \"the exaction of obedience to a rule
or standard . . . was so vague and indefinite as to be really no rule or
standard at

all . . . \").

When interpreting the meaning of words in a statute challenged as
unconstitutionally vague, courts must consider the limiting construction
given to the words by the statute\'s legislative history,
[see]{.underline}, [e.g.]{.underline}, [U.S. v. Articles of
Drug]{.underline}, 825 F.2d at 1244, by the agencies charged with
enforcing the statute, [see]{.underline}, [e.g.]{.underline}, [Ward v.
Rock Against Racism]{.underline}, 491 U.S. 781, 795 (1989); [Hoffman
Estates]{.underline}, 455 U.S. at n.5, and by case law interpreting the
particular words at issue. [See]{.underline}, [e.g.]{.underline},
[Ginsburg v. New York]{.underline}, 390 U.S. 629, 643 (1968); [Moore v.
Clarke]{.underline}, 904 F.2d 1226, 1233 (8th Cir. 1989). Particularly
relevant in this case is the fact that administrative regulations and
interpretations may provide sufficient clarification for statutes that
might otherwise be deemed vague. [See]{.underline} [United States v.
Schneiderman]{.underline}, 968 F.2d 1564, 1568 (2d Cir. 1992).

Application of these principles demonstrates that title II is not
unconstitutionally vague. The Supreme Court has upheld statutes similar
to and less specific than the ADA, even when the imposed criminal
liability, like the one at issue in [Boyce Motor Lines v. United
States]{.underline}, 342 U.S. 337 (1952), which required truck drivers
who carry explosives or flammable liquids to avoid driving into
congested thoroughfares \"so far as practicable, and where feasible.\"
[Id.]{.underline}, at 339. Moreover, one district court has specifically
rejected the argument that title III of the ADA and the title III
regulation, 28 C.F.R. Pt. 36 (1993), are unconstitutionally vague.
[See]{.underline} [Pinnock v. International House of
Pancakes]{.underline}, 844 F. Supp. 574 (S.D. Cal. 1993), [appeal
pending]{.underline}, No. 94-55030 (9th Cir. Nov. 23, 1993). In
[Pinnock]{.underline}, the court observed that the title III regulation
and its preamble sufficiently clarified the meaning of \"reasonable
modifications\" so as to avoid a claim that this term was vague.
[Id.]{.underline}, at 582. The court also drew upon the Supreme Court\'s
use and interpretation of the term \"fundamental alteration\" in the
context of section 504,[^5] to clarify the meaning of the same term
under title III. [Id.]{.underline} As is discussed below, title II and
the title II regulation borrow explicitly from section 504 and extend
that act\'s coverage to those public entities which do not receive
federal funding.[^6] Since terms such as \"reasonable modifications\"
and \"fundamental alteration\" are consistent with the meanings of the
same terms in title III and with similar or the same terms in section
504 and its regulations, they cannot be found unconstitutionally
vague.[^7]

The defendants suggest that in order to withstand their constitutional
challenge, title II would virtually need to contain a list of the
specific actions it prohibits, if not a detailed description of how
police officers and police departments can avoid liability toward
arrestees with disabilities.[^8] Statutes which provide only for civil
liability, however, need not meet such an exacting standard.
[See]{.underline} [Horn]{.underline}, 536 F.2d at 254.[^9] Title II, as
clarified by the regulation and its preamble, [see]{.underline} 28
C.F.R. Pt. 35, App. A (1993), far exceeds the level of specificity
necessary under [Horn]{.underline}. The regulation contains a detailed
list of those acts and omissions which constitute \"discrimination.\"
[See]{.underline} 28 C.F.R. § 35.130 (1993). Several items in this list
are in turn elaborated upon in the preamble. Clearly, title II is not
unconstitutionally vague.

**B. [The arrest and transportation of persons with disabilities are
\"services, programs, or activities\" within the meaning of title
II.]{.underline}**

Like section 504, title II, on its face, does not prohibit
discrimination specifically with respect to the arrest and transport of
persons with disabilities. Instead, it uses extremely broad language to
prohibit discrimination with respect to everything that a public entity
does, including the types of actions with respect to which the plaintiff
claims the defendants discriminated against him. Section 202 says that

> 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. § 12132 (Supp. III 1992). These words prohibit the same three
types of acts or omissions by a public entities that section 504 does.
Under section 202, a qualified individual with a disability who is
subjected to discrimination is protected, even though the discrimination
may not have involved exclusion from participation in or the denial of
the benefits of some service, program, or activity.[^10]

The legislative history further demonstrates that title II was intended
to cover everything that a public entity does. Emphasizing title II\'s
link to section 504, the House Report explains that

> \[t\]he Committee has chosen not to list all the types of actions that
> are included within the term \'discrimination\' . . . because this
> title essentially simply extends the antidiscrimination prohibition
> embodied in section 504 to [all actions of state and local
> governments]{.underline}.

H.R. Rep. No. 485 (II), 101st Cong., 2d Sess. 84 (1990), [reprinted
in]{.underline} 1990 U.S.C.C.A.N. at 367 (emphasis added). Elsewhere the
report states 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 (nondiscrimination).

[Id.]{.underline} at 151, [reprinted in]{.underline} 1990 U.S.C.C.A.N.
at 434 (emphasis added).

In the House of Representatives\' discussions about title II, there are
at least two references to discriminatory treatment, including
discriminatory arrests, of persons with disabilities by law enforcement
officials. The remarks make clear that title II covers the acts and
omissions of the defendants as the plaintiff has described them.
Representative Mel Levine emphasized the importance of addressing in the
regulation implementing title II the problem of mistreatment of persons
with disabilities by law enforcement officials. \"Regretfully,\" he
said, \"it is not rare for persons with disabilities to be mistreated by
police. Sometimes this is due to persistent myths and stereotypes about
disabled people. Sometimes it is actually due to mistaken conclusions
drawn by the police officer witnessing a disabled person\'s behavior.\"
Representative Levine then cited examples of mistreatment of persons
with disabilities by law enforcement officials and concluded that, even
when conducted in good faith, \"\[t\]hey constitute discrimination, as
surely as forbidding entrance to a store or restaurant is
discrimination.\" 136 Cong. Rec. H2599-01, H2633-01 (May 22, 1990).

Representative Steny Hoyer, one of the ADA\'s principal sponsors and its
floor manager in the House of Representatives, added that title II
covers training of public employees to ensure that discrimination does
not occur. The example he cites to underscore this need involves a
discriminatory arrest:

> \[P\]ersons who have epilepsy are sometimes inappropriately arrested
> because police officers have not received proper training to recognize
> seizures and to respond to them. In my \[sic\] situations, appropriate
> training of officials will avert discrimination.

136 Cong. Rec. E1913-01, E1916-01 (June 13, 1990). Failures to provide
proper training and to act appropriately in an arrest situation and with
respect to events directly following arrests are, indeed, central to the
plaintiff\'s allegations.

The title II regulation and its preamble, issued pursuant to 42 U.S.C. §
12134(a) (Supp. III 1992), further support the plaintiff\'s position.
The regulation repeats section 202\'s nondiscrimination mandate that
\"no qualified individual with a 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
public entity.\" 28 C.F.R. § 35.130(a) (1993). Section 35.102(a) further
clarifies the meaning of these words. It says that Subtitle A of title
II, which contains this nondiscrimination mandate, applies to \"all
services, programs, and activities provided or made available by public
entities.\" 28 C.F.R. § 35.102(a) (1993). The only exception to this
broad coverage are those transportation services, programs, and
activities of public entities which are covered by Subtitle B of title
II. [See]{.underline} 28 C.F.R. § 35.102(a) and (b) (1993). This
interpretation is consistent with the language of title II and with its
legislative history, and is thus to be given controlling weight.
[Chevron]{.underline}, 467 U.S. at 844; [Noland v.
Wheatley]{.underline}, 835 F. Supp. 476, 483 (N.D. Ind. 1993) (applying
[Chevron]{.underline} to give controlling weight to Department of
Justice interpretations of Title II of the ADA); [see]{.underline},
[e.g.]{.underline}, [Kinney v. Yerusalim]{.underline}, 9 F.3d 1067 (3d
Cir. 1993) (relying on Justice Department interpretations of Title II);
[Petersen v. University of Wis. Bd. of Regents]{.underline}, 818 F.
Supp. 1276, 1279 (W.D. Wis. 1993) (same).

The preamble both re-affirms the broad coverage of title II and
specifically mentions the obligations of law enforcement officials under
title II to refrain from discriminatory arrests of persons with
disabilities. Commenting upon section 35.102(a), the Department of
Justice said that

> \[t\]he scope of title II\'s coverage of public entities is comparable
> to the coverage of Federal Executive agencies under the 1978 amendment
> to section 504, which extended section 504\'s application to all
> programs and activities \"conducted by\" Federal Executive agencies,
> in that title II [applies to anything a public entity
> does]{.underline}.

28 C.F.R. Pt. 35, App. A (1993). In connection with section 35.130 of
the regulation, the Department responded to comments it received from
persons with disabilities who believed that the regulation should
contain provisions requiring law enforcement officials to receive
training on how to distinguish behavior associated with various
disabilities from criminal activity. While it declined to include such a
provision, the Department hastened to add that

> \[d\]iscriminatory arrests and brutal treatment are already unlawful
> police activities. The general regulatory obligation to modify
> policies, practices, or procedures requires law enforcement to make
> changes in policies that result in discriminatory arrests or abuse of
> individuals with disabilities.

28 C.F.R. Pt. 35, App. A (1993). Clearly, title II covers the types of
activities as to which the plaintiff has alleged discrimination.

> **C. [At the time of his arrest, the plaintiff was a \"Qualified
> individual with a Disability\" within the meaning of title
> II.]{.underline}**

The defendants have challenged the plaintiff\'s status as a qualified
individual with a disability under section 504, but have not
specifically raised this issue under title II. However, given the
defendants\' assertion that the only relevant difference between section
504 and title II is that Federal funding is necessary to impose
liability under the former, [see]{.underline} Def. Mem. at 14-15, and
the conceptual relationship between the section 504 term \"otherwise
qualified individual with a disability\" and the title II phrase
\"qualified individual with a disability,\" we will briefly consider the
issue.

Section 201 of the ADA defines the term \"qualified individual with a
disability\" as

> an individual with a disability who, with or without reasonable
> modifications to rules, policies, or practices, the removal of
> architectural, communication, or transportation barriers, 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.

42 U.S.C. § 12115(2) (Supp. III 1992). Section 35.104 of the regulation
repeats this language [verbatim]{.underline}. [See]{.underline} 28
C.F.R. § 35.104 (1993) (definition of \"qualified individual with a
disability\"). Patterned on the language of regulations promulgated by
the Department of Health and Human Services to implement section 504,
[see]{.underline} 28 C.F.R. Pt. 35, App. A (1993),[^11]\
the title II definition also makes it clear that the qualifications
standards which a person with a disability is required to meet in order
to be protected by the ADA are minimal. As earlier noted,[^12] the
plaintiff not only met any eligibility requirements that might have
existed, but the KCMOPD accepted his qualifications. The only remaining
issue, then, is whether he was subjected to discrimination in the form
of a failure by the defendants to assure that reasonable modifications
were made to existing policies, practices, and procedures to ensure his
safety.

> **D. [The plaintiff has alleged facts sufficient to demonstrate that
> he was \"subjected to discrimination\" within the meaning of title
> II.]{.underline}**

Section 35.130 of the title II regulation lists several types of acts
and omissions that may constitute discrimination by a public entity. The
plaintiff has alleged facts which, if proven to be true, would
constitute discrimination within the meaning of that section of the
regulation. Most notably, a public entity must

> 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.

28 C.F.R. § 35.130(b)(7) (1993). As earlier noted in the discussion
concerning reasonable modifications under section 504,[^13] the
Department of Justice has not concluded that the defendants failed to
make reasonable modifications in this case, or that such modifications
would have averted the plaintiff\'s injuries. We do argue, however, that
the defendants were required to make such modifications, and that
factual disputes sufficient to preclude summary judgment exist at least
as to whether such modifications were made in this case and whether such
modifications would have prevented the plaintiff\'s injuries.[^14]

> **E. [The defendants have not demonstrated that making modifications
> to equipment would constitute an undue financial or administrative
> burden.]{.underline}**

The defendants\' argument concerning plaintiff\'s title II claim is that
it would have been an undue burden for the KCMOPD to have provided some
form of transportation other than a standard pre-existing patrol wagon
four months after title II\'s effective date. Def. Mem. at 20.[^15]
However, the defendants had an obligation to make reasonable
modifications that would have avoided discriminating against the
plaintiff. They have not demonstrated that no reasonable modification,
such as the installation of securement devices in existing patrol wagons
for arrestees with disabilities, was available to them. Nor have they
adequately supported their claim of undue burden. Section 35.150(a)(3)
of the title II regulation provides:

> In those circumstances where personnel of the public entity believe
> that the proposed action would fundamentally alter the service,
> program, or activity or would result in undue financial and
> administrative burdens, [a public entity has the burden of proving
> that compliance with § 35.150(a) of this part would result in such
> alteration or burdens.]{.underline} The decision that compliance would
> result in such alteration or burdens must be made by the head of a
> public entity or his or her designee after considering all resources
> available for use in the funding and operation of the services,
> program, or activity, and must be accompanied by a written statement
> of the reasons for reaching that conclusion.

28 C.F.R. § 35.150(a)(3) (1993). The defendants have not pointed to data
showing the financial resources of the KCMOPD, that any modifications to
transport vehicles could not be made, or the cost of making such
modifications. Not having demonstrated undue burden, the defendants are
not entitled to summary judgment.

**IV. CONCLUSION**

For all of the foregoing reasons, the United States respectfully
requests this Court to find that:

> 1\. Title II of the ADA is not unconstitutionally vague;
>
> 2\. Section 504 applies to policies, practices, and procedures related
> to the detention and transportation of persons with disabilities by
> law enforcement officials;
>
> 3\. Title II of the ADA applies to policies, practices, and procedures
> related to the detention and transportation of persons with
> disabilities by law enforcement officials;
>
> 4\. The plaintiff has sufficiently alleged a violation of section 504;
> and

5\. The plaintiff has sufficiently alleged a violation of title II of
the ADA.

Respectfully submitted,

STEPHEN L. HILL, JR. DEVAL L. PATRICK

United States Attorney Assistant Attorney General

For the Western District Civil Rights Division

of Missouri

[                                                    ]{.underline} By:
[                                                    ]{.underline}

ALEEN S. CASTELLANI JOHN L. WODATCH

Deputy United States L. IRENE BOWEN

Attorney CHRISTOPHER J. KUCZYNSKI,

Missouri Bar #41460 Attorneys

Suite 2300 Public Access 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]: ^?^ Defendant Neil Becker is the police officer who transported
    the plaintiff to police headquarters following his arrest on May 31,
    1992. Defendant Steven Bishop is Chief of Police for the Kansas
    City, Missouri Police Department. The remaining defendants were, at
    the time the actions and omissions giving rise to plaintiff\'s
    complaint occurred, members of the Board of Commissioners for the
    Kansas City Police Department.

[^2]: ^?^ The only authority that the defendants cite in an attempt to
    limit the definition of \"program or activity\" is [Williams v.
    Meese]{.underline}, 926 F.2d 994 (10th Cir. 1991). In that case, a
    prison inmate claimed, [inter]{.underline} [alia]{.underline}, that
    prison officials had discriminated against him with respect to
    certain prison work assignment on the basis of his disability. The
    court held that section 504 did not authorize an employment claim in
    these circumstances because the plaintiff was not an \"employee.\"
    The court also found, with no analysis, that the Bureau of Prisons
    is not a \"program or activity\" within the meaning of section 504.
    [Id.]{.underline}, at 997. The plaintiff in the instant case,
    however, has claimed that his arrest and transportation, as well as
    the policies, practices, and procedures which governed them, are the
    relevant programs and activities. He has not asserted that the
    KCMOPD or the Board of Commissioners are themselves programs or
    activities; hence [Williams]{.underline} is inapposite.

[^3]: ^?^ Section 504 actually refers to an \"otherwise qualified
    individual.\" [See]{.underline} 29 U.S.C. § 794(a) (1988 & Supp. IV
    1993).

[^4]: ^?^ [See]{.underline} [also]{.underline} Part III.C.,
    [infra]{.underline}.

[^5]: ^?^ [See]{.underline} [Southeastern Community College v.
    Davis]{.underline}, [supra]{.underline}.

[^6]: ^?^ [See]{.underline}, [e.g.]{.underline}, Part II.B,
    [infra]{.underline}. With respect to the term \"reasonable
    modifications\" specifically, the preamble to the title II
    regulation links the meaning of that term both with the title III
    definition of the same term upheld by the [Pinnock]{.underline}
    court as not unconstitutionally vague, and with the definition of
    similar language under section 504. With respect to section
    35.130(b)(7) of the title II regulation, the preamble says:

    > \[This paragraph\] is a specific application of the requirement
    > under the general prohibitions of discrimination that public
    > entities make reasonable modifications in policies, practices, or
    > procedures where necessary to avoid discrimination on the basis of
    > disability. Section 302(b)(2)(A)(ii) of the ADA sets out this
    > requirement specifically for public accommodations covered by
    > title III of the Act, and the House Judiciary Committee Report
    > directs the Attorney General to include those specific
    > requirements in the title II regulation to the extent that they do
    > not conflict with the regulations implementing section 504.

    28 C.F.R. Pt. 35, App. A (1993).

[^7]: ^?^ It is noteworthy that the defendants have neither raised the
    same arguments with respect to section 504, nor sought to justify
    why the two statutes should be treated differently with regard to
    their constitutional claims.

[^8]: ^?^ [See]{.underline} Def. Mem. at 17. There it is stated that

    > \[f\]rom a legal standpoint, there is absolutely no case law or
    > regulatory law that tells these Defendants how they are to arrest
    > or transport a person in the condition that the Plaintiff was in
    > on May 31, 1992. These Defendants are not able to steer between
    > lawful and unlawful conduct and are subjected to arbitrary and
    > discriminatory enforcement of the law because of the failure of
    > the law and regulations to apply explicit standards.

[^9]: ^?^ In [Horn]{.underline}, the plaintiff challenged as
    unconstitutionally vague a Nebraska statute which provided for a
    two-year statute of limitations of claims based upon \"professional
    negligence.\" The Eighth Circuit dismissed the plaintiff\'s claim,
    noting that he had not suggested more specific language that would
    have withstood the vagueness challenge short of a list of those
    professions that were covered. \"Even if more specific language
    could be devised,\" the court observed, \"it is apparent that the
    absence of criminal sanctions requires less literal exactitude in
    order to comport with due process.\" [Horn]{.underline}, 536 F.2d at
    254-55.

[^10]: ^?^ Indeed, section 202\'s coverage is arguably even broader than
    section 504\'s. Section 504 plaintiffs, while not always required to
    show that they were excluded from participation in or denied the
    benefits of a program or activity, must still identify a specific
    program or activity \"under\" which they were subjected to
    discrimination. Section 202 has eliminated this requirement. It is
    sufficient that plaintiffs alleging a violation of title II show
    that they were subjected to discrimination by a public entity. 42
    U.S.C. § 12132. Hence, the plaintiff in this case is not required to
    show that his arrest was a \"program\" in order to sustain his ADA
    claim, to the extent that the basis of this claim is that he was
    subjected to discrimination by a public entity.

[^11]: ^?^ The preamble establishes the following link between the title
    II definition of \"qualified individual with a disability\" and the
    section 504:

    > The definition of \"qualified individual with a disability\" is
    > taken from section 201(2) of the Act, which is derived from the
    > definition of \"qualified handicapped person\" in the Department
    > of Health and Human Services\' regulation implementing section 504
    > (45 CFR § 84.3(k)). It combines the definition at 45 CFR
    > 84.3(k)(1) for employment (\"a handicapped person who, with
    > reasonable accommodation, can perform the essential functions of
    > the job in question\") with the definition for other services at
    > 84.3(k)(4) (\"a handicapped person who meets the essential
    > eligibility requirements for the receipt of such services\").

    28 C.F.R. Pt. 35, App. A (1993). The definition found in the
    Department of Justice\'s section 504 implementing regulation is
    exactly the same. [See]{.underline}, Part II.B, [supra]{.underline}.

[^12]: ^?^ [See]{.underline} Part II.B, [supra]{.underline}.

[^13]: ^?^ [See]{.underline} Part II, [supra]{.underline}.

[^14]: ^?^ Other parts of section 35.130 may also apply to this case.
    Section 35.130(b)(3)(i), for example, says that a public entity may
    not \"utilize criteria or [methods of administration]{.underline}\
    . . . \[t\]hat have the effect of subjecting qualified individuals
    with disabilities to discrimination on the basis of disability.\" 28
    C.F.R. § 35.130(b)(3)(i) (1993). The preamble says that \"methods of
    administration\" refers to \"the official written policies of the
    public entity and to the actual practices of the public entity.\" 28
    C.F.R. Pt. 35, App. A. Certainly the manner in which police officers
    conduct arrests would constitute the \"actual practices\" of a
    public entity. Section 35.130(b)(1)(vii) prohibits a public entity
    from doing anything that would \"limit a qualified individual with a
    disability in the enjoyment of any right, privilege, advantage or
    opportunity enjoyed by others receiving the aid, benefit, or
    service.\" 28 C.F.R. § 35.130(b)(1)(vii) (1993).

[^15]: ^?^ In fact, the events here occurred twenty-two months after the
    ADA\'s enactment. The defendants\' memorandum creates some confusion
    about the period of time that elapsed between passage of title II
    and the events of May 31, 1992 on which the plaintiff\'s complaint
    is based. The date of title II\'s passage was July 26, 1990, not
    January 26, 1992, as the defendants claim. The eighteen-month period
    from the date of passage and the effective date (January 26, 1992)
    was certainly adequate to allow public entities to come into
    compliance. The defendants\' claim that they had only four months to
    come into compliance with the ADA prior to May 31, 1992 is,
    therefore, unpersuasive. Moreover, by the time title II became
    effective, the defendant were required to have to have formulated a
    \"transition plan\" if the public entity involved \"employ\[ed\] 50
    or more persons\" and if \"structural changes to facilities \[are
    to\] be undertaken to achieve program accessibility.\" 28 C.F.R. §
    35.150(d) (1993). The defendants have offered no evidence that such
    a plan existed on May 31, 1992, or that such a plan even now exists.
    Finally, because section 504 applied to the defendants, they should
    have been on notice as to their obligations toward individuals with
    disabilities even before passage of the ADA.