In a comment to a previous blog entry, I discussed the case of Gipson v. Popeye’s Chicken and Biscuits. In that case, the Northern District of Georgia said that considering what police have to do, it wasn’t right to impose ADA liability on the police since the police are not lawyers and have to deal with things in real time.
Now comes this case, Van Velzor v. City of Burleson (I have actually been to this quaint town. It is about 45 minutes to an hour south of Fort Worth Texas, and it is also the hometown of Kelly Clarkson), from the Northern District of Texas, Dallas division. As is my usual practice, I have divided the entry into separate categories: facts; court’s reasoning; and takeaways. The reader is free to focus on any or all of the separate categories of the blog entry.
In this case, the plaintiff was a mobility impaired individual who frequently uses a wheelchair and has disability plates and placards issued by the Texas Department of Motor Vehicles. When he visited a Walmart supercenter store in Burleson, he found a note on occupied accessible parking spots or spots reserved for those with disabilities. Further, some of those occupied accessible parking spots were taken by vehicles lacking required accessible parking placards and license plates in violation of Texas law. He called the Burleson Police Department about the violations and informed the dispatcher that the illegally parked cars were preventing him from being able to park and enter the store. The dispatcher told him that she would send an officer to address the situation, but no such officer arrived and the dispatcher allegedly did not speak to anyone about the call. He subsequently learned that the store manager had called the police department to request enforcement but as with what happened to him, no officers ever arrived. It turns out that the city of Burleson had a special program known as citizens on patrol to handle violations of accessible parking laws. In essence, the police department outsourced enforcement of the law to a group of volunteer citizens. The plaintiff alleged that this outsourcing was restricted to the accessible parking law and that the city retained its authority to enforce non-disability related parking laws within the regular operations of the police department. Further, the plaintiff alleged that the police dispatcher does not actually refer calls related to accessible parking violations to that program and that people with disabilities are not able to contact the program directly since it does not have a separate dispatch line. In other words, the plaintiff claimed that the program did not provide persons with disabilities the actual means of getting the accessible parking law enforced. In a separate matter, the plaintiff claimed that the city of Burleson refused to provide him relief when he was denied assistance with respect to pumping gas in violation of Texas law. In fact, when he called the police regarding that violation, he was told by the dispatcher that the police would be of no help. After getting the runaround from various parts of the bureaucracy, the plaintiff sued alleging that the refusal to enforce disability related traffic laws violated title II of the ADA.
1. There was no dispute that the plaintiff was a person with a disability.
2. When it comes to title II matters, any accommodation must be sufficient to provide a person with a disability meaningful access to the benefit or service offered by a public entity.
3. A benefit or service under the ADA means the performance of work commanded or paid for by another for an act done for the benefit or at the command of another. That means discrete portions of law enforcement activities can be considered separate services or benefits for purposes of the ADA.
4. One such discrete portion of law enforcement activity is the enforcement of traffic and parking laws, which is a service or benefit separate and apart from police enforcement as a whole, and therefore, reversing what this court had said in an earlier decision, the critical question was did the city deny the plaintiff the benefits of meaningful access to police enforcement of traffic and parking laws and not whether he was denied meaningful access to police enforcement as a whole.
5. Courts have found that a public entity is not only prohibited from affording persons with disability services not equal to that afforded to others that are not as effective in affording equal opportunity, but also that public entities cannot prevent a qualified individual with a disability from enjoying any aid, benefit, or service, regardless of whether other individuals are granted access. Therefore, a plaintiff is not required to identify a comparison class of similarly situated individuals given preferential treatment.
6. While cases exists giving deference to police enforcement decisions, those cases predate the ADA. The ADA is a game changer because it imposes upon public entities and affirmative obligation to make reasonable accommodations for persons with disabilities to avoid discrimination and where a defendant fails to meet that affirmative obligation, the cause of that failure is irrelevant.
7. A policy that denies persons with disabilities a state law of right, law enforcement services available to citizens generally, is against the letter and spirit of federal law.
8. While it is true that the Fifth Circuit has specifically carved out an exception to the ADA coverage with respect to police enforcement, that exception only applies in the context of an officer’s on the street responses to reported disturbances or other similar incidents and occurring prior to the officer’s securing the scene and ensuring that there is no threat to human life. That is, this particular exception only applies in situations that legitimately present a threat of imminent danger and call for instantaneous decision-making.
The italicized phrase is intentional on my part. That is, this case is specifically saying that the exception for police enforcement with respect to the ADA is narrowly focused to the situation where the officer is securing the scene and ensuring that there is no threat to human life. Once that condition precedent is satisfied, the ADA obligations kick in.
9. The text of the ADA provides no basis for distinguishing Police Department program, services and activities from those provided by public entities that are not police departments.
10. Plaintiff’s allegations show that the benefit he received from the city were not equal to that afforded others since his ability to travel due to the lack of traffic law enforcement was impeded in such a way that he could hardly be said to receive an equal benefit from the department’s enforcement of traffic and parking laws.
11. The police department did not provide an effective alternative to standard enforcement through the program, with they had outsourced. Not only that, the plaintiff alleged that he had never seen a volunteer actually enforcing the accessible parking law.
12. The plaintiff states a claim under the ADA when he alleges that the city failed to make reasonable accommodation to his needs as a person with a disability because they denied him access to police officers who could decide whether to enforce disability related laws in the same way they decide whether to enforce other laws and that the city failed to accommodate persons with disabilities by refusing to train its police officers to properly handle violations of disability related laws. The court said that requiring disability related training is generally reasonable under the ADA and that at this stage of the proceedings there was no evidence that such an accommodation would cause an undue burden because the plaintiff was simply asking for his call to be referred to officers for ordinary enforcement in the same way that calls regarding non-disability related violations are referred. The city did not establish that either of those accommodations would cause an undue burden on the city.
1. If this case is the law, then Gipson would have been decided completely differently. Thus, what this means is that under this case police are at a real risk of liability for violating title II of the ADA if they lack knowledge of what the ADA requires and then make erroneous decisions with respect to whether ADA violations have occurred where those decisions occur after the need for securing the premises and the need for instantaneous decision-making has passed.
2. Police need training on the ADA in terms of what the law requires. That training has to include both title II and title III of the ADA.
3. Police need to be cautious about outsourcing their enforcement activities. If they do, they need to ensure that such enforcement and any alternatives are accessible to persons with disabilities. Also, they should be cautious about outsourcing enforcement activities anyway, because, as we have discussed before, complying with the ADA is a non-delegable duty.
4. With respect to a person with a disability accessing governmental services, the critical question is going to be whether with or without reasonable modifications that person has meaningful access to the governmental entity’s programs, activities, or services.
5. This case is another nail in the coffin of requiring comparables when it comes to disability discrimination. See also this blog entry.