Previously, I have blogged on the Sheehan case and its oral argument before the United States Supreme Court. Yesterday, the United States Supreme Court came down with the decision in this case, which can be found here:

As expected, they decided with respect to the ADA matter, that the writ of certiorari had been improvidently granted. That is, the issue of how title II of the ADA might apply to arrests is not answered or even addressed. Justice Alito noted that how the ADA applies to arrests is an important question and one that would benefit from briefing and adversarial presentation. However, the way the case got argued before the court, all of the parties believed that the ADA did apply to arrests. Accordingly, it was imprudent to decide the question.

The court also noted that all the parties agree that a public entity can be held vicariously liable for money damages for violating title II of the ADA for the purposeful or deliberately indifferent conduct of its employees, but that is a point of law that has never been decided by the Supreme Court as to whether that is correct and the court declined to do so in the absence of adversarial briefing.

They did decide to address the question of whether the officers could claim qualified immunity for violating the fourth amendment. The Supreme Court held in a decision by Justice Alito that the law in the area is so uncertain with respect to how police officers needed to behave given the facts of this case, that therefore, it was proper to grant the police officers qualified immunity. For qualified immunity to be waived, the law would have to be crystal clear so that the police would know how to conform their conduct, which wasn’t the case here. Also, the police acted reasonably under the circumstances with respect to fourth amendment jurisprudence.

Justice Scalia and Justice Kagan concurred and dissented. They concurred that the court was correct to dismiss the ADA question as being improvidently granted. They go further and accused the City and County of San Francisco of bait and switch. That is, setting up the system so that the court would grant certiorari and then switching it once the court grants it. These two Justices say that such a practice should not be encouraged and that by deciding the second issue they have given a victory to the City and County of San Francisco despite their engaging in inappropriate practices before the United States Supreme Court. Accordingly, they would have dismissed the second question as being improvidently granted as well so as to avoid being snookered and to deter future snookering.

Importantly, they note that the City and County of San Francisco will still be subject to liability under the ADA if the trial court determines that the facts demanded accommodation because the Court of Appeals vacated the District Court’s judgment that the ADA was inapplicable to police arrests of violent and nondisabled persons, and remanded for the accommodation determination.


1. With respect to the fourth amendment, the police officers behaved reasonably in this case, and the police officers were allowed to exercise qualified immunity because of the uncertainty in the law at the time of their behavior, which uncertainty still remains after this decision.

2. The court leaves open the question of whether a public entity can be vicariously liable for damages under title II for the purposeful or deliberately indifferent conduct of its employees. One would think that the answer would be yes, since title II is tied into the Rehabilitation Act with respect to remedies, and under the Rehabilitation Act, vicarious liability does exist as noted in this blog entry .

3. Since the first question was improvidently granted and the Ninth Circuit vacated the District Court’s judgment that the ADA was inapplicable to police arrest of violent and disabled persons, the ADA case and San Francisco’s liability for ADA violations remain very much alive. San Francisco got a lot of heat for pursuing the case at the Supreme Court, and one wonders what that means with respect to fully defending the ADA suit in the District Court. One also wonders if the switch at the Supreme Court was not a result of that heat rather than something more nefarious as suggested by the dissenters.