Litigation over commas: How far Does Title II Extend?

 

My colleague, Jon Hyman, has previously written about what can happen when commas are not used when they should be. You can find that blog entry here. Today’s blog entry raises the question as to what happens when a comma is used when perhaps it shouldn’t have been. The case is Haberle v. Troxell, decided by the Third Circuit on March 20, 2018, and it deals with the question of accessibility upon arrests. The case had various issues, but we are only going to focus on the ADA issue. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning allowing amending of ADA portion of complaint; and takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

Timothy Nixon had a variety of mental health problems, including longtime depression. He lived off and on with his longtime partner and their two children. On May 20^th, 2013, Nixon had a serious mental health episode involving severe depression and called his longtime partner saying that he was suicidal. He then broke into her friend’s home and took a handgun. He next went to his cousin’s apartment. Fearing for Nixon’s life, Nixon’s partner contacted the Borough of Nazareth Police Department where police officer Troxell obtained a warrant for Nixon’s arrest and then went with other officers to Nixon’s cousin apartment. Upon arriving at the apartment, some of the officers suggested setting up a perimeter and asking the Pennsylvania State police to send in crisis negotiators. Other officers suggested asking Nixon’s partner to help communicate with Nixon. Troxell turned away all those suggestions calling the other officers, “ a bunch of f—ing pussies.” He declared his intention to immediately go to the apartment because that is how they do things in Nazareth. He did exactly that, knocked on the door the apartment, and identified himself as a police officer. Nixon then promptly went into one of the bedrooms of the apartment, turned the stolen gun on himself, and killed himself. According to Nixon’s partner, Nixon was not a danger to anyone and was peacefully drinking beer with his cousin when the police knocked on the door. That said, no allegations were made that Troxell knew what was happening inside the apartment when he knocked. Nixon’s partner then sued alleging a myriad of causes of action, including violation of title II of the ADA.

 

II

Court’s Reasoning Allowing Amendment of ADA Portion of Complaint

1. The ADA does generally apply when police officers make an arrest.
2. In order to state a claim under title II of the ADA, a plaintiff has to demonstrate: 1) he or she is a qualified individual; 2) with a disability; 3) who was excluded from participation in or denied the benefits of the services, program, or activities of a public entity, or was subjected to discrimination by any such entity; 4) by reason of his or her disability.
3. An ADA violation occurs if and when a disabled individual is excluded from participation in or denied the benefits of the services, program, or activities of the public entity, or is subjected to discrimination by any such entity. So, it is the denial giving rise to the claim.
4. Nothing categorically excludes people who are arrested from the ADA’s broad coverage. So, people who are arrested can be qualified individuals under the ADA, though not always.
5. Arrestees certainly may have a disability covered by the ADA.
6. If the arrestee’s disability plays a role in the decision-making process and has a determinative effect on the outcome of that process, i.e., if the arrestee’s disability was a “but for,” cause in the deprivation or harm he suffered, then causation is satisfied.
7. Police departments fall squarely within the statutory definition of a public entity.
8. Persuasive precedents indicate that the ADA’s reference to the services, program, and activities of a public entity must be interpreted broadly to encompass virtually everything that a public entity does.
9. 42 U.S.C. §12132 as phrased makes it unnecessary to figure out whether arrests are a service, program, or activity of a public entity since the very last clause is a catchall phrase prohibiting all discrimination by a public entity regardless of the context.
10. Discrimination under the ADA includes not only adverse action motivated by prejudice against persons with disabilities, but also includes failing to make reasonable accommodations for plaintiff’s disabilities.
11. The catchall phrase means that police officers may violate the ADA when making arrests by failing to provide reasonable accommodation for a qualified arrestee’s disability thereby subjecting him to discrimination.
12. While there is some disagreement in the courts concerning the point during a law enforcement encounter at which the ADA applies to police conduct, no Court of Appeals has held that the ADA does not apply at all.
13. While plaintiff cannot show deliberate indifference and so the complaint fails with respect to damages, allegations could have been made to show deliberate indifference. Those allegations could have included facts suggesting that existing policy caused the failure to adequately respond to a pattern of past occurrences of injuries like Nixon’s. It might have also included facts indicating that the risk of calculable harm was so great and so obvious that the risk and failure to respond alone supports a finding of deliberate indifference. Accordingly, Nixon’s partner should be given an opportunity to amend her complaint since it could not be definitively said that amendment would be futile.

III

Takeaways:

1. 42 U.S.C. §12132 actually states: “Subject to the provisions of this subchapter, 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.”
2. As an attorney who has done a lot of contracts work over the years, the biggest issue that a contracts attorney deals with when drafting contracts is the difference between parenthetical and restrictive. That is, if information is parenthetical, it is not something that has to be done but could be. On the other hand, if information is restrictive, then it is something that has to be done. Where a phrase is surrounded by commas, the information is parenthetical. If commas are missing, then the information is restrictive. With respect to the actual wording of 42 U.S.C. §12132 it isn’t clear to my mind whether the very last clause is parenthetical because it is surrounded by a comma and a period. It would be an easier call if it was surrounded by commas, then it would be clearly parenthetical. The phrasing of the statute makes it unclear. If no comma appeared after “public entity,” then clearly, “or be subjected to discrimination by any such entity” would be restrictive and an additional requirement. However, the comma is there, which creates in my mind, the argument that it might be parenthetical. On the other hand, if it is indeed the Oxford comma, which Jon discusses in the above-mentioned blog entry, then you get to the same place as it being an additional requirement. So, in this situation, if it is indeed an additional requirement, the drafters would have been better off leaving out the last comma in the series.
3. Why am I making such a big deal over this comma? The answer is because until this case, I have not seen a title II case talk about accessibility in any other way besides programs, services, and activities. The issue doesn’t come up that often because as the court mentions, title II has been held to apply to virtually everything that a public entity does. Even so, this case says that there is more to it.
4. Expect this case to be used by plaintiff’s attorneys to say that even if they cannot show that a program, service, or activity is involved, it doesn’t matter because public entities cannot discriminate against people with disabilities even where there is no program, service, or activity.
5. If the last phrase is indeed a catchall provision going beyond program, services, and activities, then why is the phrase, “program, services, and activities” in there at all?
6. We have previously discussed Sheehan here. In that decision, both parties told the Court that the ADA does apply to arrests and so the Court didn’t deal with that issue when it decided that certiorari had been improvidently granted.
7. This case is going to be very interesting to follow because it takes the ADA to a place I have not seen before. One wonders whether the arrests issue will be appealed to the United States Supreme Court. In that eventuality, I don’t even want to hazard a guess at the how the Court will go.
8. Preventive law would demand focusing on program, services, and activities first with respect to title II compliance. If somehow the situation does not seem to involve a program, service, or activity, then you do want to think about accommodating the person anyway under the so-called catchall phrase. Remember, title II case law is very clear that the ADA applies to just about everything a public entity does. Alternatively, you could elect as a public entity to stand your ground and claim that the last phrase is parenthetical as described above, but that might be expensive.
9. It isn’t clear from this decision whether the court is looking at causation in terms of mixed motive or but for. They do use the term “but for,” but they also used the phrase, “disability plays a role in the decision-making process….” The reader may want to review this blog entry of mine discussing causation when it comes to the ADA.
10. Moral of the story is that you can’t be cavalier about when you use commas. That is, there is the Oxford comma, but maybe sometimes it is better off not following that rule strictly and remembering that commas also deal with the issue of restrictive and parenthetical information.