One of the most complicated topics around is the doctrine of sovereign immunity, which comes from England and says that the King cannot be sued without his consent. We have carried over this doctrine into our 11th amendment to the U.S. Constitution. As we have discussed previously numerous times, there are situations where a State can be sued without its consent. For that to be true, Congress has to do two things. First, it has to state in the law that States are waving their sovereign immunity. Second, the law has to be a proportional response to the harm seeking to be redressed. Whether the law is a proportional response to the harm being addressed, depends entirely upon what equal protection classification the group falls in. Depending upon the classification, the legislators get more discretion to come up with comprehensive schemes to remedy the past harms. As you may recall, there are varying levels of equal protection classification: rational basis (for everyone not in the intermediate or strict scrutiny class); intermediate scrutiny (gender); and strict scrutiny (race). It is unclear as to where Gays and Lesbians will fall. On that, we may know more when the pending gay marriage decisions come down from the United States Supreme Court. As is typical for my blog entries, I have divided the blog entry into categories: introduction; facts; court’s reasoning (supervisory liability of the state); court’s reasoning (sovereign immunity of the sheriff); and takeaways. The reader is free to focus on any or all of the categories.
Case of the Week, Zemedagegehu v. Arthur, 2015 U.S. Dist. LEXIS 55603 (E.D. Va. April 28, 2015)
Plaintiff is deaf with no functional ability to speak English or read lips (it is a myth that all deaf people are capable of reading lips. I happen to be fortunate that I can get 50% of what is said on the lips, which is the absolute best a deaf person could do in any event, but I am not typical). Plaintiff was born and raised in Ethiopia and became a United States citizen in 2008. His knowledge of English is limited as a result of courses he took through Gallaudet University but he struggles to read, write, and understand even basic English sentences. His primary language is ASL, and his employment history is limited to manual labor jobs not requiring proficiency in spoken or written English. On February 2, 2014, plaintiff was arrested at Ronald Reagan Washington National Airport after he went there to find somewhere warm to sleep. From there, things went downhill in a big way. Shortly after his arrest, in the early morning hours of February 3, 2014, he was transported to the jail where he started the booking process. While there he attempted to communicate with the national airport police officers and jail personnel using gestures and in writing. He also requested an ASL interpreter but one was not provided. As a result, plaintiff had no idea why he had been arrested nor did he understand why he was being detained in the jail. The plaintiff also appeared in front of a judge via videoconference, but he could not signal to the judge that he was deaf because jail personnel instructed him to remain still. As part of the booking process, he underwent a medical evaluation where he made additional request for assistance. His requests were again denied. Since he did not have an ASL interpreter, he did not understand the medical evaluation process and refused to sign a consent form that he could not read. Even so, jail personnel forced the needle into his arm without his consent and placed him in isolation. Scared and confused, the plaintiff banged on the cell door repeatedly gesturing for assistance still being unaware as to why he was being incarcerated. He then had a negative skin reaction to the fourth medical procedure and underwent an additional medical procedure, but still did not understand what was happening. It was only at his arraignment because he had the assistance of an ASL interpreter, that he learned he had been arrested and incarcerated for allegedly stealing an IPad. He then returned to the jail after his arraignment and remain incarcerated for nearly 6 weeks. During that period of incarceration, defendant refused to provide effective means for plaintiff to communicate, and consequently, plaintiff missed private meals, recreation, and rehabilitative services at various times. As if that wasn’t enough, the jail also failed to provide plaintiff with inadequate accommodation for telephone access. While the jail did offer plaintiff a TTY, that was ineffective because of the plaintiff’s limited knowledge of the English language. The jail did not have videophone or any device equipped with a video phone software allowing plaintiff to be able to make telephone calls. As a result, plaintiff was unable to make a telephone call for the duration of his incarceration at the jail. He also could not regularly communicate with the court appointed attorney via telephone unlike other inmates and had to rely on in person visit made on the attorney’s own accord.
Plaintiff sued both the local Sheriff and the State for violating title II of the ADA and § 504 of Rehabilitation Act and sought both declaratory and compensatory relief. Interestingly enough, no claims of constitutional violations were made. Both the Sheriff and the State defended on the grounds of sovereign immunity. The State also defended on the ground that they were not liable as supervisors for the acts that occurred in the jail, which is run solely by the Sheriff (prisons are usually run by the state while jails are usually run by the county).
Court’s Reasoning (Supervisory Liability of the State)
1. With respect to supervisory liability of the State, the court was not buying it. For such liability to occur, you need to find inaction or deliberate indifference on the part of the State that affirmatively causes the particular constitutional injury the plaintiff suffers. Further, that inaction or deliberate indifference must be a direct cause of the injury. Since the State of Virginia clearly has a separate set up for county jails versus prisons, the court concluded that Virginia does not supervise the sheriff in the manner necessary to make a prima facie case of supervisory liability. Therefore, the State was dismissed from the case because a sufficient showing could not be made that the state was liable as a supervisor.
Court’s Reasoning (Sovereign Immunity of the Sherrif)
1. The ADA unequivocally expresses Congress intent to waive sovereign immunity under title II of the ADA.
2. While it is true, that the Supreme Court has said that sovereign immunity is waived by the State with respect to ADA violations that rise to a violation of the 14th amendment, the plaintiff did not make any 14th amendment claims.
3. Title II of the ADA is a proportionate response to the harm seeking to be redressed in this situation (failure to comply with title II of the ADA with respect to the pretrial, temporary detention setting of the local jail), because:
A. Citing Tennessee v. Lane, the court said that title II was enacted in response to a pattern of unconstitutional disability discrimination by States and non-State governmental entities with respect to the provision of public services.
B. Plaintiff was a qualified individual with a disability. That is, the plaintiff was deaf and he was also capable with the provision of auxiliary aids and services of meeting the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by the jail.
C. Title II of the ADA authorizes the Attorney General to promulgate regulations implementing title II of the ADA. Those particular regulations makes clear that qualified inmates or detainees with disabilities cannot be subject to disability-based discrimination, and that jails and prisons are also required to furnish appropriate auxiliary aids and services where necessary so inmates and detainees with disabilities have an equal opportunity to participate in, and enjoy the benefits of, or service, program or activity of the jail. Auxiliary aids and services do include qualified ASL interpreters as well as video remote interpreting services.
D. Inmates possess a significant liberty interest in avoiding the unwanted administration of antipsychotic drugs under the Due Process Clause of the 14th amendment.
E. The Due Process Clause of the 14th amendment and the Confrontation Clause of the sixth amendment, which is applied to the States via the 14th amendment, both guarantee to a criminal defendant the right to be present at all stages of the trial where his absence might frustrate the fairness of the proceedings. Since the deaf detainee was eligible to participate in the hearing, title II applied and he was denied the ability to participate in the hearing to the same extent as a person without a disability.
F. Not only did the plaintiff not understand the judicial proceeding, the jail personnel actively prevented his participation thereby frustrating his right to be present at all stages of the trial.
G. Factual allegations support the claim that the plaintiff was prevented from seeking and receiving the assistance of counsel throughout his six week period of detention in violation of his sixth amendment right to counsel.
H. The allegations also implicate plaintiff’s constitutional rights under the 14th amendment as the legislative history of the ADA indicates congressional intent to specifically remedy differential treatment of inmates in local jails. Accordingly, public entities do have the obligation under title II of the ADA to accommodate access to the most basic jail services for deaf pretrial detainees such as ensuring access to medical procedure information, access to the courts, and counsel. Failure to do so falls short of the guarantees of the 14th amendment.
I. Title II is also proportional because it only requires reasonable modification to services, programs, activities and nothing more.
J. There is an important distinction between being incarcerated in the state prison after conviction and temporary pretrial detention at the local jail because due process requires that a pretrial detainee not be punished. On the other hand, a sentenced inmate can be punished although that punishment may not be cruel and unusual. I would also add that it should be kept in mind that prisons are subject to Title II of the ADA per this case.
1. This case focuses on pretrial detention in the county jails.
2. Keep in mind, as mentioned above, prisons are also subject to the ADA.
3. Interesting that no constitutional violations were alleged in this case even though as the court discussed many of them may be present. Also, keep in mind, that many of the first 10 amendments to the U.S. Constitution have been incorporated into the 14th amendment. Therefore, a violation of one of the amendments that has been incorporated into the 14th amendment would also be a violation of the 14th amendment. That is important to know because per U.S. v. Georgia, a violation of the 14th amendment waives sovereign immunity.
4. Since showing that title II of the ADA is a proportional response means trying to find the most egregious things that could’ve been violated so that even if a person with a disability is in the rational basis class, the response is still proportional because of the rights (such as constitutional ones), being violated.
5. Since showing a proportional response means searching for the most egregious things that could have been violated, why not, on the plaintiff’s side, allege constitutional violations as well in addition to § 504 violations and ADA violations? Further, since the court lays out many constitutional violations, one wonders if the plaintiff will not now seek to amend the complaint to add various constitutional violations.
6. The proportional response exercise has to be gone through every time a person with a disability sues a state entity where they have not expressly consented to being sued for disability discrimination since, per Tennessee v. Lane, persons with disabilities classification vis a vis equal protection jurisprudence varies depending upon the facts. As mentioned in other blog entries of mine dealing with sovereign immunity, I am not aware of any other group of people whose classification for equal protection jurisprudence varies depending upon the facts.
7. It is never wise to engage in stereotyping. That is, don’t make the assumption that a TTY will allow a deaf person to effectively communicate because ASL is a visually-based language with a different grammatical structure than English and many deaf people are just not all that familiar with English, though quite a few certainly are. Also keep in mind, the effective communication regulations as well.
8. The impact of this case is potentially huge. I can’t tell you how many times you see ADA disputes involving prisons or jails. In any given week, I would say almost half of the cases that I see in my Lexis alert involve matters involving disability discrimination complaints against prisons or jails.