In a comment to a prior blog post, I mentioned a case, Gipson v. Popeye’s Chicken and Biscuits, where a court, the Northern District of Georgia, found no ADA liability when a police officer not knowing the ADA, told a person who otherwise had a right to be in a restaurant with his service dog that he had to leave that restaurant. That court said since the police officer was not acting in a biased manner, there could be no liability. However, what happens if the police do take actions that do not account for the disability and wind up causing the person harm? Is there ADA liability?
A case exploring this question is Wingard v. Pennsylvania State Police, 2013 WL 3551109 (W.D. Pa. July 11, 2013). The facts of this case are particularly egregious and you can read the opinion to see the details. For our purposes, the court itself towards the end of the opinion does a great job of summarizing the facts. In particular, state troopers were called to a house where they found the victim mentally impaired, anxious, and reacting to medication for his Crohn’s disease. That said, he was unarmed and seated on a couch talking to his mother. Rather than accommodate the victim’s mental illness by modifying their approach and providing support until medical treatment arrived, the defendant taunted him until a physical confrontation ensued, and then left him unconscious, in cardiac arrest, and failed to commence CPR. The victim wound up dying and a wrongful death suit ensued alleging violations of title II of the ADA. In particular, in the amended complaint, it was alleged that the Commonwealth and State police failed to properly train troopers to have peaceful encounters with persons with mental and physical disabilities. It was also alleged that they failed to establish proper policies for handling such encounters. As a result of all this, the victim suffered injuries and death. The complaint also alleged that the victim was entitled to the benefit of the lawful exercise of police powers, including the right not to be subjected to unlawful use of force and the right to emergency care.
For plaintiff attorneys looking to hold police forces accountable for not accommodating persons with disabilities, this decision has some great language in it. First, the court noted that the defendants in this case conceded that a duty of reasonable accommodation in the course of a police response existed and that the duty can be breached where police are aware of the disability and then respond in such a manner so as to cause the person to suffer greater injury or indignity than what would otherwise occur if they had accommodated the disability. This is extremely broad language. For example, certainly the police by not enforcing the law properly in the restaurant case linked to above, caused the person with a disability to suffer greater indignity. Thus, the question becomes, if the Western District of Pennsylvania was faced with the same case as the Northern District of Georgia, our restaurant case, would they reach the same conclusion? The answer to that question is maybe. While it is true that the person in the restaurant case in the Northern District of Georgia faced greater indignity because the police did not apply the law properly, such a plaintiff would still have to get around causation. As we have mentioned elsewhere, when it comes to title II matters, the remedies are hooked into § 504 of the Rehabilitation Act. See 42 U.S.C. § 12133. Also, title II uses the phrase “by reason of,” and not “on the basis of,” with respect to causation. See 42 U.S.C. § 12132. Therefore, the police in the situation of the Georgia case noted above, could argue that being ignorant of the law was not the same as discriminating against a person by reason of their disability. Therefore, it is possible that the Western District of Pennsylvania would reach the same conclusion at the Northern District of Georgia with respect to the restaurant case.
Second, the court said that where first responders are both aware of the disability and can safely modify police practices to accommodate the disability reasonable accommodation of the disability is required.
Third, if an individual suffers from mental illness but is not presenting a danger to himself or anyone else, the duty of reasonable accommodation could well encompass a requirement on the part of the police to better train its police officers so that they recognize disturbances likely to involve persons with mental disabilities and to investigate and arrest that person in a manner that reasonably accommodates the disabilities. One such accommodation would be to have the police refrain from taking aggressive action up until the point the plaintiff presents an immediate threat to human life.
Takeaways: If this case does anything, it says that the police would do well to audit their practices and procedures to ensure that such practices and procedures are in compliance with Title II of the ADA. Also, if the police force truly wants to prevent exposure to ADA liability, it would be a good idea for the police force to not only be trained on their obligations under title II of the ADA but also to be trained so that they understand the obligations of places subject to title III of the ADA as well. That way, they would have a better understanding of what to do in situations where a title III entity wrongfully discriminates against a person with a disability and then calls in the police to enforce their wrongful decision. By doing this, the police force would be able to avoid the problem of having argue that no causation exists in the restaurant case. After all, it seems to be a very fine line between not enforcing the law properly and acting by reason of the disability, especially where the police officer is on notice that potential disability discrimination is involved. Finally, training the police on the legal requirements of title III of the ADA would also prevent the argument that the police was not properly trained to have peaceful encounters with persons with disabilities. After all, persons with disabilities are oftentimes quite aware of their rights and should a police officer wrongfully tell a person with a disability what their rights are, an explosive situation could be created.