at his deposition as to whether he spoke with Williams and how he communicated with her; indeed, he stated at his second deposition that he did not consider Williams, who is deaf, to be disabled. (Pl. Stat. ¶¶ 40-42, 51 (citing Romano Dep. 47:25 – 49:8).) Officer Romano then arrested the tenant and Williams, without providing Williams with Miranda warnings or the reason for her arrest. (Pl. Stat. ¶¶ 48-49, 52.) Williams was handcuffed with her hands behind her back, preventing her from signing or using a pad and pen to communicate. (Pl. Stat. ¶ 48.) ARGUMENT THE ADA APPLIES TO LAW ENFORCEMENT ACTIVITIES, INCLUDING ARRESTS, AND REQUIRES THAT OFFICERS COMMUNICATE EFFECTIVELY WITH PEOPLE WITH DISABILITIES Consistent with the statutory and regulatory provisions described above, the ADA requires arresting officers to provide auxiliary aids and services necessary to communicate effectively with people with disabilities in the conduct of arrests. A. Title II Applies To All Law Enforcement Activities, Including Arrests 1. The Language of the Statute, and the Department of Justice Regulations and Guidance, Make Plain That Title II Applies to Arrests The starting point in determining the ADA’s applicability to law enforcement operations is the statutory text. See Pennsylvania Dep’t of Corr. v. Yeskey, 524 U.S. 206, 209-10 (1998) (ruling that state prisons “fall squarely within the statutory definition of ‘public entity’” in Title II of the ADA). Title II’s antidiscrimination provision provides that no 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. By its plain terms, Title II applies to all governmental entities, including law enforcement agencies. Title II uses the term “any” in its ordinary “expansive” sense, i.e., “one or some indiscriminately of whatever kind.” United States
v. Gonzales, 520 U.S. 1, 5 (1997) (citation omitted). Moreover, the statutory text contains no “exception that could cast the coverage of ” law enforcement entities “into doubt.” Yeskey, 524 U.S. at 209. Accordingly, law enforcement agencies fall within the ADA’s comprehensive definition of a public entity. The statutory text further demonstrates that law enforcement entities are subject to Title II’s antidiscrimination mandate with respect to all of their operations, including arrests. The reference to “services, programs, or activities,” 42 U.S.C. § 12132, is an all-inclusive phrase that covers everything a public entity does. See, e.g., The Random House Dictionary of the English Language 20 (2d ed. 1987) (defining “activity” as “a specific deed, action, function, or sphere of action”); Webster’s Third New International Dictionary 1812 (1986) (defining “program” as “a plan of procedure: a schedule or system under which action may be taken toward a desired goal”). Notably, Congress expressly defined the term “[p]rogram or activity” in Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., which served as the model for Title II, to “mean[ ] all of the operations of ” a covered entity. See 29 U.S.C. § 794(b). Because Congress directed that Title II should not “be construed to apply a lesser standard than the standards applied under” Section 504, 42 U.S.C. § 12201(a), the phrase “service, programs, or activities” carries a similarly broad meaning under the ADA. See Bragdon, 524 U.S. at 631-32. The statute further protects individuals with disabilities from being “subjected to discrimination,” 42 U.S.C. § 12132, which can occur during any aspect of an individual’s interaction with a public entity. The statute therefore extends to all law enforcement operations, including arrests. The legislative history confirms that Congress contemplated that Title II would apply to law enforcement operations generally, and to arrests in particular. The House Report specified that Title II’s anti-discrimination mandate would “extend[ ] . . . to all actions of state and local
governments.” H.R. Rep. No. 101-485 (II), at 84 (1990) (emphasis added). The Report further singled out arrests as an example of an activity where “discriminatory treatment based on disability can be avoided by proper training.” Id. Pt. 3, at 50. In addition, legislators emphasized that Title II would address discrimination in law enforcement, including the arrest of individuals with disabilities. See, e.g., 136 Cong. Rec. 11,461 (1990) (“Many times, deaf persons who are arrested are put in handcuffs. But many deaf persons use their hands to communicate. . . . [T]hese mistakes . . . constitute discrimination.”); id. at E1913, E1916 (daily ed. June 13, 1990) (“[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.”). Congress thus expected and intended Title II to cover all law enforcement operations in accordance with the statute’s plain text. The administrative implementation of Title II also demonstrates that Title II of the ADA applies to arrests. The Department of Justice has construed Title II to “appl[y] to anything a public entity does.” 28 C.F.R. Pt. 35, App. B; see id. (“All governmental activities of public entities are covered.”). In particular, the Department oversees the implementation of Title II with respect to “[a]ll programs, services, and regulatory activities relating to law enforcement.” 28 C.F.R. § 35.190(b)(6). And the Department has further stated that “[t]he 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.” 56 Fed. Reg. 35,703 (July 26, 1991). Consistent with this interpretation, the Department has repeatedly issued guidance to assist law enforcement entities in complying with the ADA, including in the context of arrests. For example, the Department’s Title II Technical Assistance Manual states that “[a] municipal
police department encounters many situations where effective communication with members of the public who are deaf or hard of hearing is critical,” including “interviewing suspects prior to arrest,” and “interrogating arrestees.” U.S. Dep’t of Justice, Americans with Disabilities Act: Title II Technical Assistance Manual Covering State and Local Government Programs and Services § II- 7.1000(B), illus. 3, at 3 (Nov. 1993 & Supp. 1994), available at . (A copy of this document is attached as Exhibit C to the Kennedy Decl. (“Title II Technical Assistance”).) In addition, 2006 guidance states that “[t]he ADA affects virtually everything that officers and deputies do,” including “arresting, booking, and holding suspects.” U.S. Dep’t of Justice, Commonly Asked Questions About the Americans with Disabilities Act and Law Enforcement § I, question 2 (Apr. 4, 2006). (A copy of this document is attached as Exhibit D to the Kennedy Decl. (“2006 Guidance”).) Because Congress expressly vested the Department with authority to implement the ADA through regulations and technical assistance, the Department’s interpretation of Title II must be accorded “controlling weight unless it is ‘arbitrary, capricious, or manifestly contrary to the statute.’” ABF Freight Sys., Inc. v. NLRB, 510 U.S. 317, 324 (1994) (quoting Chevron, 467 U.S. at 844); see Bragdon, 524 U.S. at 646 (recognizing that “the Department’s views are entitled to deference”); Johnson v. City of Saline, 151 F.3d 564, 570 (6th Cir. 1998) (granting deference to Title II Technical Assistance). The Department’s conclusion that Title II extends to all law enforcement activities follows from the text and history of the statute and definitively establishes that Title II applies to arrests. 2. Defendant’s Assertion that Arrests Do Not Fall Within the Scope of Title II Is Clearly Erroneous The Second Circuit has yet to address the question of whether Title II’s antidiscrimination mandate applies to arrests. See Valanzuolo v. City of New Haven, 972 F. Supp. 2d 263, 273 (D. Conn. 2013) (noting that the Second Circuit has not decided the issue);
Indeed, the Fourth Circuit itself recognized in 2012 that its own precedent in Rosen is not good law on this point, explaining that “[c]ourts across the country have called Rosen’s holding into question in light of the Supreme Court’s decision” in Yeskey. Seremeth v. Board of County Cmssrs. Frederick Cty., 673 F.3d 333, 337 (4th Cir. 2012); see also id. at 338 (noting Waller’s holding that “the ADA applies to police interrogations”). The other cases upon which Defendant relies both note the existence of contrary authority, but ultimately decide to follow Rosen, a choice that was plainly incorrect. See Patrice, 43 F. Supp. 2d at 1158-61 (rejecting legislative history and caselaw in favor of Rosen and “policy reasons”); Crocker, 2001 WL 114977, at *7 n.9 (noting contrary authority, but following Rosen and Patrice on the point upon which the Supreme Court curtailed Rosen). The Court should decline Defendant’s request to rely upon a case that has been limited by the Supreme Court, the very court that decided it, and multiple other courts, and that is flatly inconsistent with the plain language of the statute, the implementing regulations, and authoritative guidance. B. Title II Requires Law Enforcement Entities To Provide Effective Communication When Arresting An Individual With A Disability 1. The Language of the Statute, and the Department of Justice Regulations and Guidance, as Well as the Settlement Agreement, Require the Provision of Effective Communication Because law enforcement entities are subject to Title II, they must first “take appropriate steps to ensure that communications with . . . members of the public . . . with disabilities are as effective as communications with others.” 28 C.F.R. § 35.160(a)(1). Law enforcement entities must also “make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability.” 28 C.F.R.