IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

GEORGE CROCKER,

Plaintiff,

v\.

LEWISTON POLICE DEPARTMENT,

[et al.]{.underline},

Defendants.

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

Docket No. 00-13-P-C

**UNITED STATES\' OBJECTIONS TO MAGISTRATE JUDGE\'S** **MEMORANDUM
DECISION ON MOTIONS TO STRIKE AND RECOMMENDED DECISION ON MOTIONS OF
DEFENDANTS GAGNE AND LEWISTON POLICE DEPARTMENT FOR SUMMARY JUDGMENT AND
MOTION OF PLAINTIFF FOR PARTIAL SUMMARY JUDGMENT**

**PRELIMINARY STATEMENT**

The United States, as [amicus curiae]{.underline}, respectfully objects
to the Magistrate Judge's "Memorandum Decision on Motions to Strike and
Recommended Decision on Motions of Defendants Gagne and Lewiston Police
Department for Summary Judgment and Motion of Plaintiff for Partial
Summary Judgment" (hereinafter referred to as "the Magistrate's
Recommendation"). The Magistrate's Recommendation mistakenly concluded
that the arrest of the plaintiff, a deaf individual, did not constitute
a service, program or activity protected by Title II of the Americans
with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§12131-61, and Section
504 of the Rehabilitation Act of 1973 (\"Section 504\"), 29 U.S.C. §
794, where, as here, the plaintiff was not wrongly arrested because of
his disability but because, during his arrest, the defendants allegedly
failed to make reasonable accommodations for him. As such, according to
the Magistrate, the defendant's failure to provide plaintiff with a sign
language interpreter, telecommunications equipment and other appropriate
auxiliary aids necessary for effective communication during the arrest
did not establish a prima facie violation of these statutes.^1^[^1] This
determination by the Magistrate is incorrect and should be reversed.

**ARGUMENT**

A.  **The Statutes and Regulations Require that Qualified Individuals Be
    **\
    **Provided Reasonable Accommodations During An Arrest**

The Magistrate recognized that both the ADA and Section 504 of the
Rehabilitation Act prohibit the defendant police department from
excluding the plaintiff, as a qualified individual, from participation
in, or denial of benefits of, the defendant's services, programs or
activities, [see]{.underline} Magistrate's Recommendation at 6-7, 11-12.
The Magistrate implicitly assumed that a person wrongly arrested because
of his disability would be so excluded from the police department's
services, programs or activities, in violation of the statutes.
[Id]{.underline}. at 12-13. However, he then created an exception to
such protection in situations where defendants fail to provide
reasonable accommodations for qualified individuals during arrests.
Neither statute creates such an exception nor encourages such a narrow
reading of its terms, nor did the Magistrate cite to any such language
in support. In contrast, as set forth more fully in the United States'
Memorandum as Amicus Curiae in Opposition of Defendants' Motions for
Summary Judgement (hereinafter referred to as "the United States'
Memorandum") at 2-4, both statutes are to be read broadly.

Moreover, the Magistrate's Recommendation was surprisingly silent
regarding the import of the legislative history of these statutes. As
set forth in the United States' Memorandum at 4-5, the legislative
history of Title II of the ADA makes clear that both the ADA and the
Rehabilitation Act prohibit discrimination against qualified individuals
with respect to\
everything a public entity does, including all aspects of an arrest. 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 the
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 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).
Clearly, Congress intended the protections of the ADA to encompass all
aspects of an arrest, including the provision of reasonable
accommodations to a qualified individual during an arrest. Yet the
Magistrate's Recommendation inexplicably ignored this legislative
history.

In addition, the United States Department of Justice, in its regulations
and its interpretation thereof, has consistently interpreted Title II of
the ADA and Section 504 of the Rehabilitation Act to include all
operations and activities of a police department, including the
provision of reasonable accommodations during an arrest. For example,
Section 504\'s implementing regulations specify that the Rehabilitation
Act applies to arrests - "the term 'program' means [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
Title II implementing regulation states that Title II 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).^2^[^2] Also, the 1994 Supplement to the Department's Title II
Technical Assistance Manual, published in accordance with Section 12206
of the ADA, uses arrest situations as an example of when effective
communication is critical to ensuring that a qualified individual
receives the protections afforded him under the ADA:

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]{.underline} (when an officer is attempting to establish probable
cause); [interrogating arrestees]{.underline}; 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)(emphasis added).

However, the Magistrate's Recommendation accorded the Department of
Justice's interpretation no deference, in contravention of the mandates
of [Thomas Jefferson Univ]{.underline}. v. [Shalala]{.underline}, 512
U.S. 504, 512 (1994), which requires that such regulations must be given
"controlling weight," [Bradgon]{.underline} v. [Abbott, et
al.]{.underline}, 524 U.S. 624, 646 (1998), which mandates that the
views of the Department of Justice, as the agency directed by Congress
to issue implementing regulations for the ADA, are entitled to
deference, as well as longstanding principles of administrative law
urging deference to federal agency construction of the law and the
regulations that implement it. [See]{.underline} [Olmstead v.
Zimring]{.underline}, 527 U.S. 581, 582 (1999) (the well-reasoned views
of the agencies implementing a statute constitute a body of experience
and informed judgment to which courts and litigants may properly resort
for guidance); [see also]{.underline} [Auer v. Robbins]{.underline}, 519
U.S. 452, 461 (1997); [St. Francis Health Care Ctr. v.
Shalala]{.underline}, 205 F.3d 937, 943-944 (6th Cir. 1999); [Paralyzed
Veterans of Am. v. D.C. Arena, L.P.]{.underline}, 117 F.3d 579, 584-85
(D.C. Cir. 1997). Therefore, this Court should defer to the
Department\'s position that the ADA and the Rehabilitation Act require
the provision of reasonable accommodations to qualified individuals
during an arrest. However, should this Court find the requirements of
the regulations to be ambiguous, this Court [must]{.underline} defer to
the United States' interpretation. [See]{.underline} [Christensen v.
Harris County]{.underline}, 529 U.S. 576,120 S.Ct. 1655, 1663 (2000)
(holding that an agency's interpretation of its own regulation is
entitled to deference when the language of a regulation is ambiguous).
As such, lack of such deference by the Magistrate is wrong.

B.  **Case Law Also Requires that Qualified Individuals Be Provided With
    Reasonable Accommodations During An Arrest **

In 1998, the United States Supreme Court made abundantly clear that the
ADA was applicable to inmates in state prisons, holding that:

\[T\]he \[ADA\]'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]{.underline}. . . . Petitioners contend that the
phrase "benefits of the services, programs, or activities of a public
entity," creates an ambiguity, because state prisons do not provide
prisoners with "benefits" of "programs, services, or activities" as
those terms are ordinarily understood. We disagree. . . . [The text of
the ADA provides no basis for distinguishing these programs, services,
and activities]{.underline}. . . . \[Even\] 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]{.underline}.'"

[Pennsylvania Dept. of Corrections, et al. v. Yeskey]{.underline}. 524
U.S. 206, 209, 210, 212 (1998) (emphasis added) (citations omitted).

Since [Yeskey]{.underline}, most courts have held that the circumstances
surrounding an arrest are covered by the ADA. In [Gorman v.
Bartch]{.underline}, 152 F.3d 907, 910 (8^th^ Cir. 1998), the United
States Court of Appeals for the Eighth Circuit, relying on
[Yeskey]{.underline}, reversed the lower court's finding, [inter
alia]{.underline}, that Congress had not intended to extend the ADA to
police work, that "the ADA\'s terms do not apply to the circumstances
surrounding Plaintiff\'s arrest," and that "\[t\]he general
requirements, appearing in § 35.130 \[of Title II's implementing
regulation\], also do not apply to policies for arresting individuals."
Instead, the Eighth Circuit correctly interpreted Title II and Section
504 "broadly to include the ordinary operations of a public entity in
order to carry out the purpose of prohibiting discrimination."
[Gorman]{.underline}, 152 F.3d at 913. That Court held that the local
police department, when providing transportation to an arrestee, must
comply with the ADA's mandates. [Id]{.underline}. at 912-13.

Again, in [Calloway v. Boro of Glassboro Dept. of Police, et
al.]{.underline}, 89 F.Supp.2d 543, 547 (D.N.J. 2000), the court,
relying on [Yeskey]{.underline}, [Gorman]{.underline}, and the
Department of Justice's implementing regulations, held that
investigative questioning at a police station is an "activity" and
"ordinary operation" of the police department and, thus, covered under
Title II and Section 504. [Calloway]{.underline}, 89 F.Supp.2d at
554-55. In [Calloway]{.underline}, the plaintiff, a deaf and
functionally illiterate woman, went to the police station to file a
complaint for assault. At some point after the plaintiff's arrival at
the police station, a police officer informed her that she had been
accused of criminal sexual contact and child endangerment.
[Id]{.underline}. at 547. After the police failed to locate a certified
sign language interpreter to aid in the investigation, the County
Prosecutor's Office contacted an acquaintance, an uncertified
interpreter whom the plaintiff argued was unqualified to serve as an
interpreter, to interpret for the plaintiff. [Id.]{.underline} at
547-48. The police department and other defendants unsuccessfully
argued, [inter alia]{.underline}, that the plaintiff had failed to make
out cognizable claims under Title II and Section 504. [Id.]{.underline}
at 550. The Court, however, unequivocally stated that "This Court
expresses no hesitation in placing station-house investigative
questioning, an 'ordinary operation of a public entity,' within the
ambit of the Disability and Rehabilitation Acts." [Id]{.underline}. at
555.^3^[^3]

Furthermore, in [McNally v. Prison Health Services]{.underline}, 46
F.Supp.2d 49 (D.Me. 1999), a case decided in this Court involving a
prison inmate infected with HIV allegedly deprived of his HIV
medication, the Court recognized the breadth of the Supreme Court's
holding in [Yeskey]{.underline} and relied on the Department of
Justice's Section 504 and Title II implementing regulations in denying
the defendant's summary judgment motion. This Court cited with approval
the Department's Title II implementing regulation which makes clear that
discriminatory treatment during arrests is covered under the statutes.
[McNally]{.underline}, 46 F.Supp.2d at 58.^4^[^4]

The Magistrate, while noting some of these decisions, failed to apply
them to the present case and instead relied on two other cases, [Gohier
v. Enright]{.underline}, 186 F.3d 1216, 1220-21 (10^th^ Cir. 1999), and
[Patrice v. Murphy]{.underline}, 43 F.Supp.2d 1156, 1157 (W.D. Wa.
1999), for the unusual proposition that the statutes draw distinctions
between two types of discrimination claims arising out of arrest
situations, only one of which is covered under Title II and Section 504.
[See]{.underline} Recommended Decision at 11-17. However, the
Magistrate's reliance on [Gohier]{.underline} was misplaced. The
Magistrate erroneously cited [Gohier]{.underline} for the proposition
that "\[f\]ederal courts have generally recognized two distinct types of
disability discrimination claims arising out of arrests,"
[i.e.]{.underline} when the police arrest a person with a disability
because of the disability ("wrongful arrest theory"), and when the
police properly arrest a person with a disability but fail to reasonably
accommodate the person's disability ("reasonable accommodation during
arrest theory"). See [id.]{.underline} at 12 (quoting
[Gohier]{.underline}, 186 F.3d at 1220-21). However, the
[Gohier]{.underline} court expressly refused to determine if such a
distinction was appropriate, stating:

This court need not decide whether this case is better analyzed under a
wrongful-arrest or reasonable-accommodation-during-arrest theory. Even
assuming both theories are viable, the first does not apply to the facts
of this case, and Gohier has expressly declined to invoke the second.
Accordingly, this court merely clarifies that a broad rule categorically
excluding arrests from the scope of Title II . . . is not the law. It
remains an open question in this circuit whether to adopt either or both
the wrongful-arrest theory . . . and the
reasonable-accommodation-during-arrest theory . . . .

[Gohier]{.underline}, 186 F.3d. at 1221.^5^[^5]

The Magistrate then cited [Patrice]{.underline} for the proposition that
the second type of arrest situation, a
reasonable-accommodation-during-arrest theory, failed to state a viable
cause of action under the ADA. See Magistrate's Recommendation at 15
(quoting [Patrice]{.underline}, 43 F.Supp.2d at 1160). This district
court decision, however, was wrongly decided. The court, in reaching its
erroneous decision, neglected to consider the broad language of Title
II, failed to consider the Supreme Court's decision in
[Yeskey]{.underline}, and instead relied primarily on
pre-[Yeskey]{.underline} decisions. [Patrice]{.underline}, 43 F. Supp.
2d at 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)).^6^[^6] [See]{.underline} [also]{.underline} United States\'
Memorandum at 9-10.

More importantly, the Magistrate Judge failed to follow the holding in
[Barber v. Guay, et al.]{.underline}, 910 F.Supp. 790, 709 (D. Me.1995)
and unduly limits the holding of [Jackson v. Inhabitants of the Town of
Sanford, et al.]{.underline}, 1994 WL 589617, at \*1 (D. Me. 1994), both
cases decided in this Court. In [Barber]{.underline}, the plaintiff, a
qualified individual, brought suit regarding the circumstances
surrounding his arrest, claiming he was denied proper police protection
and fair treatment due to his psychological and alcohol problems.
[Barber]{.underline}, 910 F.Supp. at 802. The [Barber]{.underline}
court\
implicitly recognized that the ADA required that police provide
reasonable accommodation during an arrest of a qualified individual,
finding that the plaintiff had, in fact, stated a valid cause of action
under the ADA. [Id]{.underline}. However, the Magistrate, in his
Recommendation, while citing [Barber]{.underline} in support of his
contention that federal courts generally recognize two types of
disability discrimination claims arising out of arrests, Magistrate's
Recommendation at 13, did not apply its holding to the present case nor
did he explain why.

The Magistrate also summarily referred to the district court in
[Jackson]{.underline}, simply stating that the [Jackson]{.underline}
decision involved a situation where a plaintiff was wrongfully arrested
because of his disability and so was discriminated against based upon
his disability. Magistrate's Recommendation at 12. The Magistrate
appears to use this decision to support his contention that the ADA and
the Rehabilitation Act protect qualified individuals under a wrongful
arrest theory but not under a reasonable-accommodation-during-arrest
theory. However, the Magistrate failed to recognize that the District
Court did not draw any such distinction and did not limit its holding to
only those arrests that were improperly made *because of* a person's
disability. Although the plaintiff in [Jackson]{.underline} was indeed
mistakenly arrested because of his disability, the Court held that
"Title II of the ADA clearly applies to acts of discrimination by a
public entity against a disabled individual. The Town and its police
force are a public entity and the plaintiff is a qualified individual
with a disability. . . ." [Jackson]{.underline}, 1994 WL 589617, at \*6
(citations omitted). Both of these cases further support the United
States' position that the ADA and the Rehabilitation Act require that
qualified individuals be provided with reasonable accommodations during
an arrest.

**CONCLUSION**

For the forgoing 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 Yeomans

Acting Assistant Attorney General

Civil Rights Division

By: [                                  ]{.underline}

John L. Wodatch, Chief

Renee M. Wohlenhaus, Deputy Chief

Philip L. Breen, Special Legal Counsel

Kathleen S. Devine, Trial Attorney

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^The Magistrate went on to conclude that regardless of whether
    the plaintiff's arrest constitute a service, program or activity,
    the plaintiff suffered no exclusion or denial of benefits and failed
    to present any evidence of injury.

[^2]: ^2^ The summary to 28 C.F.R. Part 35 states:

    Subtitle A protects qualified individuals with disabilities from
    discrimination on the basis of disability in the [services,
    programs, or activities of all State and local
    governments]{.underline}. It extends the prohibition of
    discrimination in federally assisted programs established by section
    504 of the Rehabilitation Act of 1973 to [all activities of State
    and local governments]{.underline}, including those that do not
    receive Federal financial assistance. . . . This rule, therefore,
    adopts the general prohibitions of discrimination established under
    section 504, as well as the requirements for . . . providing equally
    effective communications.

    See 56 FR 35694 (emphasis added).

[^3]: ^3^In the Magistrate's Recommendation, he unduly limited the
    holdings of [Calloway]{.underline}, [Gorman]{.underline} and
    [Hanson]{.underline} v. [Sangamon County Sheriff's
    Dep't]{.underline}, 991 F. Supp. 1059, 1062-63 C.D. Ill.
    1998)(applying the ADA to an arrestee's opportunity to post bond and
    make a telephone call.) The Magistrate distinguished each one by the
    particular facts surrounding the investigatory questions or arrest,
    so limiting their applicability. This interpretation establishes a
    piecemeal analysis under which the ADA's protections would be unduly
    restricted. Such an interpretation ignores the plain language of the
    ADA and the teachings of [Yeskey]{.underline}, that the ADA is to be
    read broadly and covers all operations and activities of a police
    department, including the provision of reasonable accommodations
    during an arrest. Moreover, these cases further support a broad
    reading of the language of the statutes to protect qualified
    individuals during all aspects of an arrest.

    The Magistrate also cites to [Hainze]{.underline} v.
    [Richards]{.underline}, 207 F. 3d 795 (5^th^ Cir. 2000) for the
    proposition that a mentally ill plaintiff shot by police as he
    approached police with a knife, despite police orders to stop, did
    not have a cause of action under the ADA. Magistrate's
    Recommendation at 14. The holding in [Hainze]{.underline}, however,
    is inapplicable to the present 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. #d at 801-02
    (emphasis added). In the present case, unlike in
    [Hainze]{.underline}, there is no allegation that the area was not
    secure or that there was a threat to human safety. As such, as the
    [Hainze]{.underline} court noted, the present defendant was under a
    duty to reasonably accommodate the plaintiff's disability, which it
    failed to do.

[^4]: ^4^The appendix to Title II states:

    Discriminatory arrests [and brutal treatment]{.underline} 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]{.underline}.

    28 C.F.R. § 35, App. A, Subpart B, at 485 (2000)(emphasis added).

[^5]: ^5^ The Court of Appeals for the Tenth Circuit recognized that
    facts in the case were "logically intermediate between the two
    archetypes envisioned by those \[two\] theories," and that arrests
    include several different scenarios. See [Gohier]{.underline}, 186
    F.3d at 1221; 1220 n.2.

[^6]: ^6^ The Magistrate Judge incorrectly states that the court in
    [Rosen v. Montgomery County Md.]{.underline}, 121 F.3d 154 (4^th^
    Cir. 1997), "held that a drunk driving arrest was not a program or
    activity of the defendant county, of which the police department
    involved was apparently an agency, and that arrests did not come
    'within the ADA's ambit.'" See Recommended Decision at 13. Rather,
    the Court of Appeals for the Fourth Circuit held that the plaintiff
    in [Rosen]{.underline} lacked any discernible injury.
    [Rosen]{.underline}, 121 F.3d at 158. While the Court did state that
    a drunk driving arrest, the essential eligibility requirements of
    which are weaving in traffic and being intoxicated, is "a stretch of
    the \[ADA's\] statutory language and of the underlying legislative
    intent," [Rosen]{.underline}, 121 F.3d at 157, this decision
    pre-dates the U.S. Supreme Court's decision in [Yeskey]{.underline}.
    524 U.S. 206 (1998), which reaffirms the ADA's broad coverage and so
    is clearly distinguishable. See discussion supra.