Before getting started on the blog entry of the week, the Atlanta Braves are world champions!! Our local school district is not going to have school tomorrow. It was senior skip day and the Atlanta Braves parade is tomorrow. So, the decision not to have school makes perfect sense. The community we live in is about 20 minutes directly east of the Atlanta capital building. The county we live in is also shutting down its school system for tomorrow as well. Congratulations to the Braves!
Also, CMS and OSHA have now released their interim final rules on Covid-19 vaccination. I am sure labor and employment and health law bloggers will be all over that. I don’t rule out commenting on either or both of those regulations in the future, but it is entirely possible that other bloggers will be very comprehensive about it. So, I will wait to see what develops there.
Today’s blog entry deals with the question of whether police officers and forces who do not understand the rights of people with disabilities can be held liable for interfering with their protected rights when a person with a disability with a service animal gets thrown out of the place of public accommodation. The case is Wilhelm v. City of Alexandria, decided by the United States District Court for the Western District of Louisiana on February 7, 2020, which can be found here. I have actually in another life been to Alexandria, Louisiana. A very nice town. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning granting summary judgment to defendants on ADA claims; and thoughts/takeaways. Of course, the reader is free to read any or all of the categories.
- At approximately 9:30 p.m. on July 22, 2017, Wilhelm and her fiancé Parker went to Buds N Suds, a bar in Alexandria, Louisiana to celebrate their engagement. ECF Nos. 17-2 at 1, 17-6 at 23-24.
- Wilhelm brought her dog, Viggo, with them. ECF Nos. 17-2 at 1, 1-2 at 1. Viggo is a very large eight-year-old Nebolish mastiff. ECF Nos. 17-2 at 1, 17-6 at 18-19.
- Shortly after they entered the bar, Buds N Suds’s security guard Mumford told Wilhelm she could not bring Viggo inside. ECF Nos. 17-2 at 1, 17-6 at 25, 17-7 at 2. Mumford was reportedly acting at the direction of Buds N Suds’s owner, Michael Barnhill (“Barnhill”), who did not want Viggo inside the bar because he was turning away customers and created a liability issue. ECF Nos. 17-2 at 1-2, 18.
- Wilhelm refused to leave and remained inside the bar with Parker and Viggo for approximately two hours. ECF Nos. 17-2 at 2, 17-6 at 25.
- Because Wilhelm refused to leave, Mumford called the Alexandria Police Department. ECF Nos. 17-2 at 2, 17-6 at 26. Before the police arrived, Wilhelm, Parker, and Viggo went outside. ECF Nos. 17-2 at 2, 17-6 at 27.
- Officers Helminger and Voorhies responded to the scene. Upon arrival, Helminger and Voorhies spoke to Mumford and Barnhill, who explained they wanted Wilhelm to leave. ECF Nos. 17-2 at 2, 17-4 at 1, 17-5 at 1, 19.
- The officers then went to speak to Wilhelm, who was seated outside on a picnic table with Viggo standing by her side. ECF Nos. 17-2 at 2, 19. Parker was standing nearby. Id.
- Wilhelm told the officers she felt she had the right to remain on the property with Viggo because he is her “service dog.” ECF Nos. 17-2 at 2-3, 19.
- Voorhies explained that Wilhelm was on private property and the owner wanted her to leave. ECF Nos. 17-2 at 3, 19. Wilhelm continued to argue her position. Id.
- Voorhies then explained to Wilhelm if she did not leave she would be arrested for “remaining after being forbidden.” ECF Nos. 17-2 at 3, 19.
- Voorhies also explained to Wilhelm if she felt she was being discriminated against by Buds N Suds, she had the right to get an attorney and pursue a civil matter against the bar. ECF Nos. 17-2 at 3, 19.
- Wilhelm, Parker, and Viggo finally complied and left the bar. ECF Nos. 17-2 at 3, 19.
- Throughout the encounter, the officers remained extremely calm and polite, even after being called “dumb.” ECF Nos. 17-2 at 3, 19.
- At no time did either officer use any force against Wilhelm, Parker, or Viggo. ECF Nos. 17-2 at 3, 18, 19.
- Viggo does not qualify as a “service animal” under the ADA. ECF Nos. 17-2 at 3, 17-9 at 2-25.
- No history existed between the plaintiff and the City of Alexandria with respect to ADA noncompliance issues in the past.
- Plaintiff also filed excessive force claims, which we are not going to discuss in this blog entry.
Court’s Reasoning Granting Summary Judgment to Defendants on ADA Claims
- In a footnote, the court noted that there is no individual liability under the ADA and parallel 42 U.S.C. §1983 claims are not allowed either.
- The Fifth Circuit has allowed title II claims in the specific context of police officers failing to reasonably accommodate the known limitations of persons with disabilities they detain.
- Since the ADA does not require clairvoyance, the burden is on the plaintiff to specifically identify the disability and resulting limitations, and to request an accommodation in direct and specific terms.
- The Fifth Circuit has also held that title II does not apply to an officer’s on the street response to reported disturbances or other similar incidents, whether or not those calls involve subjects with mental disabilities, prior to the officer securing the scene and ensuring that there is no threat to human life.
- To establish a prima facie case of discrimination under title II of the ADA, plaintiff have to demonstrate that: 1) he or she is qualified per the ADA; 2) he or she is being excluded from participation in, or being denied benefits of, services, program, or activities but with the public entity is responsible, or is otherwise being discriminated against by the public entity; and 3) such exclusion, denial of benefits, or discrimination is by reason of his or her disability.
- The two officers who were called to the scene told the plaintiff that the matter was a civil matter and if she felt she was being discriminated against by the place of public accommodation, she should then retain an attorney and pursue a civil suit.
- Whether a service dog is permitted in a restaurant is a straightforward question of law.
- The plaintiff had no previous experience with the officers or the City of Alexandria with respect to ADA noncompliance issues. As a result, there wasn’t intentional discrimination.
- In a footnote, the court said that in order to recover compensatory damages for disability discrimination under title II of the ADA, a plaintiff must show that the discrimination was intentional, i.e. more than disparate impact. In this same footnote, the court said that the Fifth and Ninth Circuit have taken the position that an entity lacking knowledge and understanding about ADA compliance requirements does not even suggest deliberate indifference, which is the standard you have to meet to get damages under title II of the ADA, which we discussed here.
- While plaintiff allegations were poorly pleaded and the lack of evidence proved fatal to her claims, her complaint was not frivolous, unreasonable, or groundless. Therefore, the defendants request for costs was denied.
- No individual liability exists for violating the ADA in any of the titles, with a rare exception in the 11th Circuit pertaining to public entities per this case.
- If the reasoning of this court is taken at face value, there is no incentive for police forces to learn about the rights of people with disabilities because they never have to worry about damages since ignorance does not equal deliberate indifference.
- A critical piece of this case was that the plaintiff had no history of working with the police force regarding ADA noncompliance issues. If the plaintiff had such a history, it is possible the outcome of this case would be different.
- Within the next couple of months, the Supreme Court will be hearing a case asking the question of whether §504 of the Rehabilitation Act includes a disparate impact cause of action.
- Another way the police force can escape damages for not knowing the law in these situations is to simply advise the individual that they can retain a private attorney to sue the owner for disability discrimination.
- Another option for a plaintiff in this situation to consider is to file a claim under the Rehabilitation Act. True, the standard for damages is the same. However, 29 U.S.C. §794(b)(1)(A) states that all operations of an instrumentality of local governments must be meaningfully accessible to persons with disabilities. As such, the Rehabilitation Act goes further than the requirements of title II, which focuses on program accessibility. That said, many cases have held that title II applies to everything that a public entity does.
- The case doesn’t discuss 42 U.S.C. §12203(b), the ADA’s interference provisions.
- What is concerning about the case that there is now an incentive for police forces to not know the ADA. The history requirement for establishing deliberate indifference has the weird incentive of actually promoting serial suits.
- The Supreme Court will also be hearing a case asking the question of whether §504 of the Rehabilitation Act includes damages for emotional distress. If a Rehabilitation Act claim had been filed in this case, whether §504 allows for emotional distress would be a very real issue as actual damages do not seem to be in existence here.
- The facts listed by the court says a service dog was not involved. However, no mention of that is found in the court’s reasoning. That is interesting in and of itself because it should have been game over for the plaintiff at that point.
- The court said that the plaintiff has the burden to request accommodations in specific and direct terms. However, we know, as we discussed here, that magic words are not required.
- The Supreme Court let stand a Ninth Circuit decision, here, holding that title II of the ADA applies to arrests when it decided she can on other grounds, as we discussed here.