IN THE UNITED STATES DISTRICT COURT FOR THE
                             WESTERN DISTRICT OF MISSOURI
                                 WESTERN DIVISION
JEFFREY GORMAN,                         )
                                        )
                Plaintiff               )       No. 95-0475-CV-W-8
                                        )
         vs.                            )
                                        )
                                        )
STEVEN BISHOP, Chief,                   )
KCMO Police Dept.,                      )
et al.,                                 )
                                        )
                Defendants.             )
                                        )
                          UNITED STATES' MOTION FOR LEAVE
                              TO INTERVENE AS OF RIGHT
        The United State of America hereby moves this court for leave to
intervene as of right in the above-captioned action for the following reasons:
        1.      Fed. R. Civ. P. 24(a) allows anyone to intervene as of right
in any action whenever a statute of the United States confers an unconditional
right to intervene.
        2.      A Federal statute grants the United States the right to
intervene in any suit or proceeding, before any court in the United States, in
which "the constitutionality of any Act of Congress affecting the public
interest is drawn in question." 28 U.S.C.  2403(a).
       3.      Defendants in the above-captioned action have filed a motion
asking that the plaintiff's claims based upon title II of the Americans with
Disabilities Act ("ADA"), 42 U.S.C.  12115-12161, be dismissed on the ground
that the statute is unconstitutionally vague.
01-06266
        4.      Title II of the ADA is a statute "affecting the public
interest" within the meaning of 28 U.S.C.  2403(a).
        THEREFORE, the United States respectfully requests that this Court
grant its Motion for Leave to Intervene as of Right
                                                  Respectfully submitted,
STEPHEN L. HILL, JR.                            DEVAL L. PATRICK
 United States Attorney                         Assistant Attorney General
For the Western District                        Civil Rights Division
of Missouri
                                                 By:
GAY TEDDER                                      JOHN L. WODATCH
Assistant United States                         L. IRENE BOWEN
Attorney                                        CHRISTOPHER J. KUCZYNSKI,
Missouri Bar #34846                             Attorneys
Suite 2300                                      Disability Rights Section
1201 Walnut Street                              U.S. Department of Justice
Kansas City, MO 64106                           P.O. Box 66738
Tel: (816) 426-3130                             Washington, D.C. 20035-6738
                                                Tel: (202) 307-1060
                                                                         2
01-06267
                                 IN THE UNITED STATES DISTRICT COURT FOR THE
                                                WESTERN DISTRICT OF MISSOURI
                                                       WESTERN DIVISION
  JEFFREY GORMAN,                         )
                                          )
          Plaintiff                       )       No. 95-0475-CV-W-8
                                          )
          vs.                             )
                                          )
                                          )
  STEVEN BISHOP, Chief,                   )
  KCMO Police Dept.,                      )
  et al.,                                 )
                                          )
          Defendants.                     )
                                          )
                     UNITED STATES' SUGGESTIONS IN SUPPORT OF ITS MOTION
                                   TO INTERVENE AS OF RIGHT
        The United States hereby moves this Court, pursuant to Federal Rule of
Civil Procedure 24(a), for an order granting intervention as of right under 28
U.S.C.  2403(a). The United States moves to intervene as of right because
defendants have filed a motion asking that the plaintiff's claims, based upon
title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. 
12115-12161, be dismissed on the ground that the statute is unconstitutionally
vague.
I. BACKGROUND
        Plaintiff Jeffrey Gorman, filed this action on May 30, 1995 alleging
that defendant Neal Becker, a police officer working for the Kansas City,
Missouri Police Department ("KCMOPD"), violated title II of the ADA, and
section 504 of the Rehabilitation Act of 1973 (as amended), 29 U.S.C.  794,
when Officer Becker detained and transported him to police headquarters on May
31, 1992. The  plaintiff also claims that Steven Bishop, as Chief of Police of
01-06268
the KCMOPD at the time of the incident, and the remaining defendants, as
members of the KCMOPD's Board of Commissioners ("the Board"), failed to
fulfill their responsibility to implement the requirements of the ADA and
section 504.  On June 7, 1995, defendants served upon plaintiff and upon the
United States copies of their Partial Motion to Dismiss and Suggestions in
Support of Partial Motion to Dismiss, asserting that title II of the ADA is
unconstitutionally vague. For the reasons stated below, this Court should
grant the government's motion to intervene as of right to defend the
constitutionality of the ADA.
II. THE UNITED STATES IS ENTITLED TO INTERVENE AS OF RIGHT.
        Under Fed. R. Civ. P. 24(a), a party may, if application is timely,
intervene as of right "when a statute of the United State confers an
unconditional right to intervene." The United States  has such an
unconditional right, pursuant to 28 U.S.C.  2403(a), which provides as
follows:
        In any action, suit, or proceeding in a court of the United States to
which the United States or any agency, officer or employee thereof is not a
party, wherein the constitutionality of any Act of Congress affecting the
public interest is drawn in question the court shall certify such fact to the
Attorney General, and shall permit the United States to intervene for
presentation of evidence, if evidence is otherwise admissible in the case, and
for argument on the question of constitutionality.
28 U.S.C.  2403(a) (emphasis added). See also Jones v. City of Lubbock, 727
F.2d 364, 372 (5th Cir. 1984) (government had an "absolute right" to intervene
in a case challenging the
                                                                        2
01-06269

constitutionality of the Voting Rights Act); O'Keefe v. New York City Board of
Elections, 246 F. Supp. 978, 980 (S.D.N.Y. 1965) (same).
        The ADA, like the Voting Rights Act, is an Act of Congress that
affects the public interest.  Congressional findings show that, at the time
the ADA was enacted, there were nearly 43,000,000 people with disabilities in
the United States who were subjected to discrimination based on their
disabilities in nearly every facet of American life. 42 U.S.C.  12101(a).
Congress further stated that its goal in passing this landmark legislation was
to "provide a comprehensive national mandate for the elimination of
discrimination against individuals with disabilities." 42 U.S.C.  12101(b).
Clearly, the requirements of 28 U.S.C.  2403 are satisfied in this case.1
        1 It should be noted that although the Court has not yet ctified the
issue of title II's constitutionality to the Attorney General, as 28 U.S.C. 
2403(a) requires it to do, the government's motion for leave to intervene at
this time is proper. A court may certify a constitutional issue to the
Attorney General pursuant to  2403(a) after a motion for leave to intervene
has been made. See Wallach v. Lieberman, 366 F.2d 254, 258 (2d Cir. 1966);
Thatcher v. Tennessee Gas Transmission Co., 180 F.2d 644, 648 n.7 (5th Cir.),
cert. denied, 340 U.S. 829, (1950). Indeed, that is precisely what this Court
did in the previous case Mr. Gorman filed, in which the same defendants that
are named in the present complaint raised the exact same constitutional
challenge to title II of the ADA. See Gorman v. guitars and Cadillacs, L.P.,
et al., No. 93-0487-CV-W-8.
                                        3
01-06270
III. CONCLUSION
        For the reasons stated above, the United States' respectfully requests
this Court to grant its Motion to Intervene as of Right.
                                     Respectfully submitted,
\
STEPHEN L. HILL, JR.                DEVAL L. PATRICK
United States Attorney              Assistant Attorney General
For the Western District            Civil Rights Division
of Missouri
                                By:
GAY TEDDER                          JOHN L. WODATCH
Assistant United States             L. IRENE BOWEN
Attorney                            CHRISTOPHER J. KUCZYNSKI,
Missouri Bar #34846                 Attorneys
Suite 2300                          Disability Rights Section
1201 Walnut Street                  U.S. Department of Justice
Kansas City, MO 64106               P.O. Box 66738
Tel: (816) 426-3130                 Washington, D.C. 20035-6738
                                    Tel: (202) 307-1060
                                                                    4
01-06271
                                IN THE UNITED STATES DISTRICT COURT FOR THE
                                           WESTERN DISTRICT OF MISSOURI
                                                          WESTERN DIVISION
JEFFREY GORMAN,                         )
                Plaintiff               )       No. 95-0475-CV-W-8
                                        )
        and                             )
                                        )
UNITED STATES OF AMERICA,               )
                                        )
                Plaintiff-Intervenor    )
                                        )
        vs.                             )
                                        )
                                        )
STEVEN BISHOP, Chief,                   )
KCMO Police Dept.,                      )
et al.,                                 )
                                        )
                Defendants.             )
                        UNITED STATES' SUGGESTIONS IN OPPOSITION
                        TO DEFENDANTS' PARTIAL MOTION TO DISMISS
01-06272
                                             TABLE OF CONTENTS
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
I.      BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . .  1
II.     TITLE II OF THE AMERICANS WITH DISABILITIES ACT IS NOT
        UNCONSTITUTIONALLY VAGUE. . . . . . . . . . . . . . . . . . . . . . 3
        A.      Police Departments Are Required to Provide
                Police Officers With Training in the Proper
                Treatment of Persons With Disabilities,
                Including Arrestees. . . . . . . . . . . . . . . . . . . .  5
        B.      The Statute and the Title II Regulation Make
                it Clear That Public Entities Must Provide
                Vehicles Accessible to Persons With
                Disabilities, or at Least Modify Existing
                Vehicles, Where Necessary to Avoid
                Discriminating on the Basis of Disability. . . . . . . . . .7
        C.      Caselaw Has Upheld as Constitutional Words,
                Phrases, and Concepts in Title III of the ADA
                That Are Similar to Those in Title II. . . . . . . . . . . 10
III.    CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
                                        i
01-06273
                                       TABLE OF AUTHORITIES
CASES
Boyce Motor Lines v. United States,
342 U.S. 337 (1952) . . . . . . . . . . . . . . . . . . . . . . . . . . .  10
D.C. & M.S. v. City of St. Louis,
795 F.2d 652 (8th Cir. 1986) . . . . . . . . . . . . . . . . . . . . . . . 10
Ginsburg v. New York, 390 U.S. 629 (1968) . . . . . . . . . . . . . . . . . 4
Gorman v. Guitars & Cadillacs, L.P., et al., No. 93-0487-CV-W-8
(W.D. Mo.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  2
Grayned v. City of Rockford, 408 U.S. 104 (1972) . . . . . . . . . . . . . 10
Horn v. Burns & Roe, 536 F.2d 251 (8th Cir. 1976) . . . . . . . . . . . .  10
Kohl v. Woodhaven Learning Center, 865 F.2d 930 (8th Cir. 1989),
cert. denied, 493 U.S. 892 (1990) . . . . . . . . . . . . . . . . . . . . . 9
Moore v. Clarke, 904 F.2d 1226 (8th Cir. 1989) . . . . . . . . . . . . . .  4
Noland v. Wheatley, 835 F. Supp. 476 (N.D. Ill. 1993) . . . . . . . . . .  12
Pinnock v. International House of Pancakes,
844 F. Supp. 574 (S.D. Cal. 1993), cert denied,
114 S. Ct. 2726 (1994), appeal dismissed as moot,
No. 94-55030 (9th Circ. July 21, 1994) . . . . . . . . . . . .  5, 10, 11, 12
Pottgen v. Missouri State High School Activities Association,
40 F.3d 926 (8th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . 9
Southeastern Community College v. Davis,
442 U.S. 397 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
United States v. Articles of Drug,
825 F.2d 1238 (8th Cir. 1987) . . . . . . . . . . . . . . . . . . . . . 3, 10
United States v. Schneiderman,
968 F.2d 1564 (2d Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . .  4
Village of Hoffman Estates v. Flipside,
Hoffman Estates, Inc., 455 U.S. 489 (1982) . . . . . . . . . . . . . . . 4, 9
Ward v. Rock Against Racism, 491 U.S. 781 (1989) . . . . . . . . . . . . .  3
                                        ii
01-06274
STATUTORY AUTHORITY
28 U.S.C.  2403(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
29 U.S.C.  794 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
29 U.S.C.  794(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
Title II of the Americans with Disabilities Act of 1990,
42 U.S.C.  12115-12161 . . . . . . . . . . . . . . . . . . . . . . . . .  1
42 U.S.C.  12131(2) . . . . . . . . . . . . . . . . . . . . . . . . 4, 7, 12
42 U.S.C.  12132 . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6, 8
42 U.S.C.  12134(a) . . . . . . . . . . . . . . . . . . . . . . . . . . .  4
42 U.S.C.  12134(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
Title III of the Americans With Disabilities Act of 1990,
42 U.S.C.  12181-12189 . . . . . . . . . . . . . . . . . . . . . . . . .  5
42 U.S.C.  12182(b)(2)(A)(ii) . . . . . . . . . . . . . . . . . . . . . . 11
42 U.S.C.  1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
REGULATORY AUTHORITY
28 C.F.R. Pt. 35 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . 3
28 C.F.R. Pt. 35, App. A (1994) . . . . . . . . . . . . . . . .  8, 9, 11, 12
28 C.F.R.  35.130 . . . . . . . . . . . . . . . . . . . . . . . . . . . .  6
28 C.F.R.  35.130(b)(1)(iii) . . . . . . . . . . . . . . . . . . . . . . . 7
28 C.F.R.  35.130(b)(1)(iv) . . . . . . . . . . . . . . . . . . . . . . .  7
28 C.F.R.  35.130(b)(7) . . . . . . . . . . . . . . . . . . . . . . .  7, 11
28 C.F.R.  35.150 . . . . . . . . . . . . . . . . . . . . . . . . . . . .  7
28 C.F.R.  35.150(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . .  9
28 C.F.R.  35.150(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . .8
28 C.F.R. Pt. 36 (1994) . . . . . . . . . . . . . . . . . . . . . . . . .  10
28 C.F.R. Pt. 36, App. B (1994) . . . . . . . . . . . . . . . . . . . . .  10
                                       iii
01-06275
28 C.F.R. S 36.302 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
LEGISLATIVE HISTORY
H.R. Rep. No. 485(III), 101st Cong., 2d Sess.,
reprinted in, 1990 U.S.C.C.A.N. 445 . . . . . . . . . . . . . . . 6, 7, 8, 11
MISCELLANEOUS
Plaintiff's Complaint . . . . . . . . . . . . . . . . . . . . . . .2, 3, 5, 7
Defendants' Suggestions in Support of
Partial Motion to Dismiss . . . . . . . . . . . . . . . . . . . . . . .  3, 9
                                        iv
01-06276
                     IN THE UNITED STATES DISTRICT COURT FOR THE
                           WESTERN DISTRICT OF MISSOURI
                                 WESTERN DIVISION
JEFFREY GORMAN,                         )
                                        )
                Plaintiff               )       No. 95-0475-CV-W-8
                                        )
        and                             )
                                        )
UNITED STATES OF AMERICA,               )
                                        )
                Plaintiff-Intervenor    )
                                        )
        vs.                             )
                                        )
                                        )
STEVEN BISHOP, Chief,                   )
KCMO Police Dept.,                      )
et al.,                                 )
                                        )
                Defendants.             )
                                        )
                      UNITED STATES" SUGGESTIONS IN OPPOSITION
                      TO DEFENDANTS' PARTIAL MOTION TO DISMISS
I. BACKGROUND
        On May 30, 1995, Jeffrey Gorman, an individual with a
disability who uses a wheelchair, filed this civil action against
Steven Bishop, Chief of Police of the Kansas City, Missouri
Police Department ("KCMOPD"), Neal Becker, a police officer with
the KCMOPD, and several persons who, on and prior to May 31,
1992, were members of the KCMOPD's Board of Commissioners ("the
Board"). The complaint alleges violations of title II of the
Americans with Disabilities Act ("ADA"), 42 U.S.C. SS 12115-
12161, and section 504 of the Rehabilitation Act of 1973, (as
amended) ("Section 504"), 29 U.S.C. S 794.1
        1 The same acts and omissions complained of by the
plaintiff in this action were the basis of a lawsuit that the
                                                                (continued...)
01-06277
        The plaintiff alleges that on May 31, 1992, defendant Becker
detained him, arranged for his transport in connection with his
arrest, removed him from his wheelchair, and transported him to
police headquarters in a vehicle that was not suitable for
individuals with his disability. As a result of this conduct,
the plaintiff claims he sustained injuries and his wheelchair was
damaged during transport. See Complaint at PP 14, 19, and 20.
The plaintiff also claims that defendant Bishop, as Chief of
Police of the KCMOPD, and the remaining defendants, as members of
the Board, failed to fulfill their responsibility to implement
the requirements of the ADA and section 504 within the KCMOPD.
This responsibility included, the plaintiff contends, providing
vehicles suitable for transporting individuals who use
wheelchairs, id. at P 15; making reasonable modifications in
departmental policies, practices, and procedures that were
        1 (...continued)
plaintiff filed in 1993. Gorman v. Guitars & Cadillacs, L.P., et
al., No. 93-0487-CV-W-8 (W.D. Mo.). In their motion for summary
judgment in that case, the present defendants argued that, for
exactly the same reasons as they have stated in their motion and
supporting suggestions in this case, title II is
unconstitutionally vague. They also argued that title II and
section 504 do not apply to arrest procedures.
        This court granted the United States leave to intervene in
that case with respect to the constitutional issue and leave to
participate as amicus curiae with respect to the coverage issues.
On June 17, 1994, the United States circulated to all parties a
brief, as intervenor and amicus curiae, in support of the
plaintiff's opposition to the defendants' motion for summary
judgment. On June 24, 1994, this court dismissed case No. 93-
0487-CV-W-8 without prejudice, following a June 21, 1994
agreement between the parties that permitted re-filing of the
action within one year of dismissal. The complaint in the
present action was filed in accordance with that agreement.
                                        2
01-06278
necessary to avoid discriminating against the plaintiff on the
basis of his disability, id. at P 16; and training police
officers in the proper handling of arrestees with spinal cord
injuries, like the plaintiff. Id. at P 17.
        On June 7, 1995, defendants served upon the plaintiff and
upon the United States copies of their Partial Motion to Dismiss
("motion") and their Suggestions in Support of Partial Motion to
Dismiss ("Suggestions" or "Def. Mem."), in which they argued that
the plaintiff's claims based upon title II of the ADA should be
dismissed on the ground that the statute is unconstitutionally
vague. Pursuant to 28 U.S.C. S 2403(a), the United States has
filed a motion to intervene in this case as of right with respect
to the issue of the ADA's constitutionality. This brief argues
that title II of the ADA is not unconstitutionally vague.
II.     TITLE II OF THE AMERICANS WITH DISABILITIES ACT IS NOT
        UNCONSTITUTIONALLY VAGUE.
        It is well-settled that when interpreting the meaning of
words in a statute challenged as unconstitutionally vague, courts
must consider not only the words of the statute themselves, but
the limiting construction given to them by the statute's
legislative history, see, e.g., U.S. v. Articles of Drug, 825
F.2d 1238, 1244 (8th Cir. 1987), by the agencies charged with
enforcing the statute, see, e.g., Ward v. Rock Against Racism,
                                        3
01-06279
491 U.S. 781, 795 (1989),2 Village of Hoffman Estates v.
Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494 n.5 (1982),
and by caselaw interpreting the particular words at issue. See,
e.g., Ginsburg v. New York, 390 U.S. 629, 643 (1968); Moore v.
Clarke, 904 F.2d 1226, 1233 (8th Cir. 1989).
        The language of title II itself is sufficiently clear to
have put defendants on notice of their obligations to make
modifications to existing police department policies, practices,
and procedures and to remove "transportation barriers," in order
to avoid discriminating against individuals with disabilities.
The ADA's legislative history supports the plaintiff's claim that
a failure to train police officers in the proper manner of
interacting with individuals with disabilities may constitute
discrimination within the meaning of title II. The regulation
implementing title II, 28 C.F.R. Pt. 35 (1994) ("the regulation"
or "the title II regulation"), that was promulgated by the
Department of Justice pursuant to statutory directive,3 and the
Department's interpretation of the regulation in the regulation's
Preamble, 28 C.F.R. Pt. 35, App. A (1994), support this theory as
well, and also define the extent of the defendants' obligation to
provide vehicles suitable for arrestees with mobility
        2 See also United States v. Schneiderman, 968 F.2d 1564,
1568 (2d Cir. 1992) (administrative regulations and
interpretations may provide sufficient clarification for statutes
that might otherwise be deemed vague).
        3 Section 204(a) of the ADA, 42 U.S.C. S 12134(a), requires
that within one year after enactment of the ADA, "the Attorney
General shall promulgate regulations in an accessible format that
implement this subtitle."
                                        4
01-06280
impairments. Finally, a Federal court has upheld, against a
vagueness challenge, terms in title III of the ADA, 42 U.S.C.
 12181-12189, that are intended to have the same meaning as the
same terms in title II. See Pinnock v. International House of
Pancakes, 844 F. Supp. 574 (S.D. Cal. 1993), cert denied, 114 S.
Ct. 2726 (1994), appeal dismissed as moot, No. 94-55030 (9th Cir.
July 21, 1994). That case strongly favors a finding in the
instant case that title II is not unconstitutionally vague.
        A.      Police Departments Are Required to Provide Police
                Officers With Training in the Proper Treatment of
                Persons With Disabilities, Including Arrestees.
      The plaintiff has alleged that the defendants violated title
II by failing to make "reasonable modifications" to existing
policies, practices, and procedures, see Complaint at  16, and,
with respect to the Chief of Police and the members of the Board,
by failing to ensure that police officers were adequately trained
in arresting and transporting persons with mobility impairments.
Id. at  17. Title II specifically contemplates that in some
circumstances modifications to a public entity's policies,
practices, and procedures will be necessary to avoid
discrimination. Section 202 protects from discrimination by
public entities any "qualified individual with a disability," see
42 U.S.C.  12132, whom section 201(2) defines 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 or services, meets the
                                        5
01-06281
                essential eligibility requirements for the
              receipt of services or the participation in
              programs or activities provided by a public
              entity.
42 U.S.C.  12181(2) (emphasis added).
        Section 35.130(b)(7) of the title II regulation perhaps most
pointedly defines the obligation. It states that modifications
to policies, practices, and procedures shall be made when
"necessary to avoid discrimination on the basis of disability,"
unless it can be demonstrated that making the modifications would
"fundamentally alter the nature of [a] service, program, or
activity." 28 C.F.R.  35.130(b)(7).
        A police department's obligation to provide adequate
training to officers in the proper treatment of individuals with
disabilities is a specific application of this general rule.4
The House Judiciary Committee Report states that title II
requires such training when it is necessary to avoid
discriminating against persons with disabilities, including
persons arrested by the police:
                In order to comply with the
                non-discrimination mandate, it is often
                necessary to provide training to public
                employees about disability. For example,
                persons who have epilepsy, and a variety of
                other disabilities, are frequently
                inappropriately arrested and jailed because
                police officers have not received proper
                training in the recognition of and aid for
                seizures. Often, after being arrested, they
                are deprived of medications while in jail,
        4 The obligation may also as a specific application of section
202's general requirement that individuals with disabilities not be
"subjected to discrimination" by public entities. See 42 U.S.C.
 12132.
                                        6
01-06282
                resulting in further seizures. Such
                discriminatory treatment based on disability
                can be avoided by proper training.
H.R. Rep. No. 485(III), 101st Cong., 2d Sess., at 51, reprinted
in, 1990 U.S.C.C.A.N. 445, 473 (hereafter "House Judiciary
Report"). The discussion of section 35.130 (b) of the title II
regulation found in the Preamble says essentially the same thing.
See 28 C.F.R. Pt. 35, App. A, at 451.5
        B.      The Statute and the Title II Regulation Make it Clear
                That Public Entities Must Provide Vehicles Accessible
                to persons With Disabilities, or at Least Modify
                Existing Vehicles, Where Necessary to Avoid
                Discriminating on the Basis of Disability.
      The plaintiff also alleges that the KCMOPD should have had
vehicles suitable for arrestees with mobility impairments.
Complaint at  15. This allegation is consistent with section
201(2) of the ADA, which requires "the removal of architectural,
communication, or transportation barriers," 42 U.S.C.  12131(2),
and with section 35.150(b) (1) of the regulation, which states
that, in meeting the requirement to provide access to programs,
services, and activities, public entities may undertake
        5 The Department of Justice declined to add a provision
specifically requiring that police officers receive training on the
subject of how to treat persons with disabilities because the
Department believed 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, at 449.
                                        7
01-06283
"alteration of existing facilities and construction of new
facilities" and may use "accessible rolling stock or other
conveyances." 28 C.F.R.  35.150(b)(1).
        Of course, this obligation, like the obligation to make
reasonable modifications to policies, practices, and procedures,
is not without limitation. Section 35.150(a)(3), for example,
says that public entities are not required to take any actions to
afford access to their services, programs, and activities that
would result in a "fundamental alteration" of those services,
programs, and activities or in "an undue financial or
administrative burden." 28 C.F.R.  35.150(a)(3). The
regulation itself does not define the terms "fundamental
alteration" and "undue financial and administrative burden."
However, the Preamble discussion of section 35.150(b)(3) clearly
indicates that these terms are intended to be defined in the same
way that cases interpreting the same terms under section 504,
including Southeastern Community College v. Davis, 442 U.S. 397
(1979), and the Circuit court decisions following Davis, have
defined them. See 28 C.F.R. Pt. 35, App. A, at 457, 463.6 The
        6 The purpose of title II is to extend the same rights and
remedies available under section 504 to those State and local
government entities that do not receive Federal financial
assistance. See House Judiciary Report at 49, reprinted in, 1990
U.S.C.C.A.N. 445, 472. Compare 42 U.S.C.  12132, with, 29
U.S.C.  794(a). Consistent with this Congressional intent,
section 204(b) of the ADA reads as follows:
       (b) Relationship to Other Regulations. Except for
        "program accessibility, existing facilities" and
        "communications", regulations [promulgated by the
        Attorney General] under subsection (a) shall be
                                                         (continued...)
                                        8
01-06284Eighth Circuit has had no difficulty applying the standards set
out in Davis. See, e.g., Pottgen v. Missouri State High School
Activities Association, 40 F.3d 926 (8th Cir. 1994); Kohl v.
Woodhaven Learning Center, 865 F.2d 930 (8th Cir. 1989), cert.
denied, 493 U.S. 892 (1990).
        It is true that there is no regulatory language or caselaw
interpreting title II that specifically tells police officers how
to arrest and transport individuals who have disabilities like
the plaintiff's. See Def. Mem. at 2. This degree of specificity, however, is
not required to withstand a vagueness challenge. It is firmly established that
statutes that regulate economic conduct and impose civil rather than criminal
liability, like the ADA, are subject to less stringent vagueness standards
than are statutes that impose criminal liability or abridge constitutionally
protected rights. Hoffman Estates, 455 U.S. at
  6     ( ... continued)
        consistent with this Act and with the coordination
        regulations under part 41 of title 28, Code of Federal
        Regulations (as promulgated by the Department of
        Health, Education, and Welfare on January 13, 1978),
        applicable to recipients of Federal financial
        assistance under section 504 of the Rehabilitation Act
        of 1973 (29 U.S.C. S 794). With respect to "program
        accessibility, existing facilities" and
        "communications", such regulations shall be consistent
        with analysis as in part 39 of title 28 of the Code of
        Federal Regulations, applicable to Federal conducted
        activities under such section 504.
42 U.S.C.  12134(b). It is noteworthy that despite the linkage
between title II and section 504, the defendants have not
challenged section 504 as unconstitutionally vague. Their motion
and supporting evidence suggestions offer no explanation of what
differences exist between title II and section 504 that would
justify challenging the former as unconstitutional while
apparently conceding the constitutionality of the latter.
                                        9
01-06285
495 n.7 & 498; Grayned v. City of Rockford, 408 U.S. 104, 109
(1972); U.S. v. Articles of Drug, 825 F.2d at 1244; D.C. & M.S.
v. City of St. Louis, 795 F.2d 652, 654 (8th Cir. 1986); Horn v.
Burns & Roe, 536 F.2d 251, 254 (8th Cir. 1976).7 Indeed, the
Supreme Court has upheld, in the face of vagueness challenges,
statutes imposing criminal liability that have language similar
to title II's. See, e.g., Boyce Motor Lines v. United States,
342 U.S. 337, 339 (1952) (upholding a statute requiring truck
drivers who carry explosives or flammable liquids to avoid
driving into congested thoroughfares "so far as practicable, and
where feasible").
        C.      Caselaw Has Upheld as Constitutional Words,
                Phrases, and Concepts in Title III of the ADA That
                Are Similar to Those in Title II.
        We are aware of at least one case in which a court upheld
title III of the ADA in the face of a vagueness challenge. See
Pinnock, supra. In Pinnock, the court held that the title III
implementing regulation, 28 C.F.R. Pt. 36 (1994), and its
Preamble, 28 C.F.R. Pt. 36, App. B (1994), sufficiently clarified
the meaning of the term "reasonable modifications" so as to avoid
        7 In Horn, 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, 536 F.2d at 254-55.
                                        10
01-06286a claim that this term was vague. Pinnock, 844 F. Supp. at 582.8
Pinnock also relied upon the fact that several cases have
interpreted the term "fundamental alteration" under section 504
when it concluded that the same term in title III was not
unconstitutionally vague. Id.
        The concepts of "reasonable modifications" and "fundamental
alteration" found in title II are intended to carry essentially
the same meanings as they do in title III. See 28 C.F.R. Pt. 35,
App. A, at 451; House Judiciary Report at 52, reprinted in, 1990
U.S.C.C.A.N. at 475.9 Pinnock's analysis of title III is, we
8 Section 302 (b) (2) (A) (ii) defines as unlawful discrimination
a public accommodation's
        failure to make reasonable modifications in policies,
        practices, or procedures, when such modifications are
        necessary to afford [a public accommodation's] goods,
        services, facilities, privileges, advantages, or
        accommodations to individuals with disabilities, unless
        the entity could demonstrate that making such
        modifications would fundamentally alter the nature of
        such goods, services, facilities, privileges, advantages,
        or accommodations.
42 U.S.C.  12182 (b) (2) (A) (ii). The regulation implementing this
section of the ADA is found at 28 C.F.R.  36.302.
        9 The Judiciary Committee Report unequivocally states the
Committee's intention that "the regulations under title II
incorporate interpretations of the term discrimination set forth
in titles I and III of the ADA to the extent that they do not
conflict with the Section 504 regulations." House Judiciary
Report at 52, reprinted in, 1990 U.S.C.C.A.N. at 475. The
Preamble to the title II regulation makes it clear that this
general directive applies specifically to the terms "reasonable
modifications" and "fundamental alteration" found in section
35.130(b) (7) of the title II regulation. 28 C.F.R. Pt. 35, App.
A, at 451. Section 35.130(b) (7) is essentially the same
requirement as that found in section 302 (b) (2) (A) (ii), except
that the former requirement applies to public entities while the
latter applies to public accommodations. See 42 U.S.C.
 12182 (b) (2) (A) (ii).
                                        11
believe, careful and persuasive, and no Federal court has reached
a contrary conclusion. Pinnock, therefore, strongly supports the
government's position in the present case that title II of the
ADA is not unconstitutionally vague.10
III. CONCLUSION
        For all of the foregoing reasons, the United States asks
this Court to deny Defendants' Partial Motion to Dismiss.
                                        Respectfully submitted,
STEPHEN L. HILL, JR.                    DEVAL L. PATRICK
United States Attorney                  Assistant Attorney General
For the Western District                Civil Rights Division
of Missouri
                                     By:
GAY TEDDER                              JOHN L. WODATCH
Assistant United States                 L. IRENE BOWEN
Attorney                                CHRISTOPHER J. KUCZYNSKI,
Missouri Bar #34846                     Attorneys
Suite 2300                              Disability Rights Section
1201 Walnut Street                      U.S. Department of Justice
Kansas City, MO 64106                   P.O. Box 66738
Tel: (816) 426-3130                     Washington, D.C. 20035-6738
                                        Tel: (202) 307-1060
        10 See Noland v. Wheatley, 835 F. Supp. 476 (N.D. Ill. 1993).
In Noland, the court was faced with the question of whether the ADA
creates an enforceable right sufficient to support a claim brought
pursuant to 42 U.S.C.  1983. The court held that "[t]he ADA's use
of the term "reasonable" in 42 U.S.C.  12131(2) to describe the
required modifications of programs or services [did] not render
[plaintiff's] interest, and that of all other individuals with
disabilities, "vague and amorphous." Id. at 484.
                                        12
01-06288