IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF MISSOURI

WESTERN DIVISION

JEFFREY GORMAN,	)

)

Plaintiff	)	No. 95-0475-CV-W-8

)

and	)

)

UNITED STATES OF AMERICA,	)

)

Plaintiff-Intervenor	)

)

vs.	)

)

)

STEVEN BISHOP, Chief,	)

KCMO Police Dept.,	)

et al.,	)

)

Defendants.	)

)

UNITED STATES' SUGGESTIONS IN OPPOSITION

TO DEFENDANTS' PARTIAL MOTION TO DISMISS

TABLE OF CONTENTS

TABLE OF AUTHORITIES	ii

I.	BACKGROUND	1

II.	TITLE II OF THE AMERICANS WITH DISABILITIES ACT IS NOT UNCONSTITUTIONALLY VAGUE.	3

A.	Police Departments Are Required to Provide
Police Officers With Training in the Proper
Treatment of Persons With Disabilities,
Including Arrestees.	5

B.	The Statute and the Title II Regulation Make
it Clear That Public Entities Must Provide
Vehicles Accessible to Persons With
Disabilities, or at Least Modify Existing
Vehicles, Where Necessary to Avoid
Discriminating on the Basis of Disability.	7

C.	Caselaw Has Upheld as Constitutional Words,
Phrases, and Concepts in Title III of the ADA
That Are Similar to Those in Title II.	10

III.	CONCLUSION	12

TABLE OF AUTHORITIES

CASES

Boyce Motor Lines v. United States,

342 U.S. 337 (1952)	10

D.C. & M.S. v. City of St. Louis,

795 F.2d 652 (8th Cir. 1986)	10

Ginsburg v. New York, 390 U.S. 629 (1968)	4

Gorman v. Guitars & Cadillacs, L.P., et al., No. 93-0487-CV-W-8 (W.D. Mo.)	2

Grayned v. City of Rockford, 408 U.S. 104 (1972)	10

Horn v. Burns & Roe, 536 F.2d 251 (8th Cir. 1976)	10

Kohl v. Woodhaven Learning Center, 865 F.2d 930 (8th Cir. 1989), cert. denied, 493 U.S. 892 (1990)	9

Moore v. Clarke, 904 F.2d 1226 (8th Cir. 1989)	4

Noland v. Wheatley, 835 F. Supp. 476 (N.D. Ill. 1993)	12

Pinnock v. International House of Pancakes,

844 F. Supp. 574 (S.D. Cal. 1993),cert denied,

114 S. Ct. 2726 (1994), appeal dismissed as moot,

No. 94-55030 (9th Circ. July 21, 1994)	5, 10, 11, 12

Pottgen v. Missouri State High School Activities Association,

40 F.3d 926 (8th Cir. 1994)	9

Southeastern Community College v. Davis,

442 U.S. 397 (1979)	8

United States v. Articles of Drug,

825 F.2d 1238 (8th Cir. 1987)	3, 10

United States v. Schneiderman,

968 F.2d 1564 (2d Cir. 1992)	4

Village of Hoffman Estates v. Flipside,

Hoffman Estates, Inc., 455 U.S. 489 (l982)	4, 9

Ward v. Rock Against Racism, 491 U.S. 781 (1989)	3

STATUTORY AUTHORITY

28 U.S.C. § 2403(a)	3

29 U.S.C. § 794	1

29 U.S.C. § 794(a)	8

Title II of the Americans with Disabilities Act of 1990,

42 U.S.C. §§ 12115-12161	1

42 U.S.C. § 12131(2)	4, 7, 12

42 U.S.C. § 12132	5, 6, 8

42 U.S.C. § 12134(a)	4

42 U.S.C. § 12134(b)	9

Title III of the Americans With Disabilities Act of 1990,

42 U.S.C. §§ 12181-12189	5

42 U.S.C. § 12182(b)(2)(A)(ii)	11

42 U.S.C. § 1983	12

REGULATORY AUTHORITY

28 C.F.R. Pt. 35 (1994)	3

28 C.F.R. Pt. 35, App. A (1994)	8, 9, 11, 12

28 C.F.R. § 35.130	6

28 C.F.R. § 35.130(b)(1)(iii)	7

28 C.F.R. § 35.130(b)(1)(iv)	7

28 C.F.R. § 35.130(b)(7)	7, 11

28 C.F.R. § 35.150	7

28 C.F.R. § 35.150(a)(3)	9

28 C.F.R. § 35.150(b)(1)	8

28 C.F.R. Pt. 36 (1994)	10

28 C.F.R. Pt. 36, App. B (1994)	10

28 C.F.R. § 36.302	11

LEGISLATIVE HISTORY

H.R. Rep. No. 485(III), 101st Cong., 2d Sess.,

reprinted in, 1990 U.S.C.C.A.N. 445	6, 7, 8, 11

MISCELLANEOUS

Plaintiff's Complaint	2, 3, 5, 7

Defendants' Suggestions in Support of
Partial Motion to Dismiss	3, 9

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF MISSOURI

WESTERN DIVISION

JEFFREY GORMAN,	)

)

Plaintiff	)	No. 95-0475-CV-W-8

)

and	)

)

UNITED STATES OF AMERICA,	)

)

Plaintiff-Intervenor	)

)

vs.	)

)

)

STEVEN BISHOP, Chief,	)

KCMO Police Dept.,	)

et al.,	)

)

Defendants.	)

)

UNITED STATES' SUGGESTIONS IN OPPOSITION

TO DEFENDANTS' PARTIAL MOTION TO DISMISS

I. BACKGROUND

On May 30, 1995, Jeffrey Gorman, an individual with a disability who uses a wheelchair, filed this civil action against Steven Bishop, Chief of Police of the Kansas City, Missouri Police Department ("KCMOPD"), Neal Becker, a police officer with the KCMOPD, and several persons who, on and prior to May 31, 1992, were members of the KCMOPD's Board of Commissioners ("the Board"). The complaint alleges violations of title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12115-
12161, and section 504 of the Rehabilitation Act of 1973, (as amended) ("section 504"), 29 U.S.C. § 794.1

The plaintiff alleges that on May 31, 1992, defendant Becker detained him, arranged for his transport in connection with his arrest, removed him from his wheelchair, and transported him to police headquarters in a vehicle that was not suitable for individuals with his disability. As a result of this conduct, the plaintiff claims he sustained injuries and his wheelchair was damaged during transport. See Complaint at ¶¶ 14, 19, and 20. The plaintiff also claims that defendant Bishop, as Chief of Police of the KCMOPD, and the remaining defendants, as members of the Board, failed to fulfill their responsibility to implement the requirements of the ADA and section 504 within the KCMOPD. This responsibility included, the plaintiff contends, providing vehicles suitable for transporting individuals who use wheelchairs, id. at ¶ 15; making reasonable modifications in departmental policies, practices, and procedures that were necessary to avoid discriminating against the plaintiff on the basis of his disability, id. at ¶ 16; and training police officers in the proper handling of arrestees with spinal cord injuries, like the plaintiff. Id. at ¶ 17.

On June 7, 1995, defendants served upon the plaintiff and upon the United States copies of their Partial Motion to Dismiss ("motion") and their Suggestions in Support of Partial Motion to Dismiss ("Suggestions" or "Def. Mem."), in which they argued that the plaintiff's claims based upon title II of the ADA should be dismissed on the ground that the statute is unconstitutionally vague. Pursuant to 28 U.S.C. § 2403(a), the United States has filed a motion to intervene in this case as of right with respect to the issue of the ADA's constitutionality. This brief argues that title II of the ADA is not unconstitutionally vague.

II.	TITLE II OF THE AMERICANS WITH DISABILITIES ACT IS NOT UNCONSTITUTIONALLY VAGUE.

It is well-settled that when interpreting the meaning of words in a statute challenged as unconstitutionally vague, courts must consider not only the words of the statute themselves, but the limiting construction given to them by the statute's legislative history, see, e.g., U.S. v. Articles of Drug, 825 F.2d 1238, 1244 (8th Cir. 1987), by the agencies charged with enforcing the statute, see, e.g., Ward v. Rock Against Racism, 491 U.S. 781, 795 (1989),2 Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494 n.5 (1982), and by caselaw interpreting the particular words at issue. See, e.g., Ginsburg v. New York, 390 U.S. 629, 643 (1968); Moore v. Clarke, 904 F.2d 1226, 1233 (8th Cir. 1989).

The language of title II itself is sufficiently clear to have put defendants on notice of their obligations to make modifications to existing police department policies, practices, and procedures and to remove "transportation barriers," in order to avoid discriminating against individuals with disabilities. The ADA's legislative history supports the plaintiff's claim that a failure to train police officers in the proper manner of interacting with individuals with disabilities may constitute discrimination within the meaning of title II. The regulation implementing title II, 28 C.F.R. Pt. 35 (1994) ("the regulation" or "the title II regulation"), that was promulgated by the Department of Justice pursuant to statutory directive,3 and the Department's interpretation of the regulation in the regulation's Preamble, 28 C.F.R. Pt. 35, App. A (1994), support this theory as well, and also define the extent of the defendants' obligation to provide vehicles suitable for arrestees with mobility impairments. Finally, a Federal court has upheld, against a vagueness challenge, terms in title III of the ADA, 42 U.S.C. §§ 12181-12189, that are intended to have the same meaning as the same terms in title II. See Pinnock v. International House of Pancakes, 844 F. Supp. 574 (S.D. Cal. 1993), cert denied, 114 S. Ct. 2726 (1994), appeal dismissed as moot, No. 94-55030 (9th Cir. July 21, 1994). That case strongly favors a finding in the instant case that title II is not unconstitutionally vague.

A.	Police Departments Are Required to Provide Police Officers With Training in the Proper Treatment of Persons With Disabilities, Including Arrestees.

The plaintiff has alleged that the defendants violated title II by failing to make "reasonable modifications" to existing policies, practices, and procedures, see Complaint at ¶ 16, and, with respect to the Chief of Police and the members of the Board, by failing to ensure that police officers were adequately trained in arresting and transporting persons with mobility impairments. Id. at ¶ 17. Title II specifically contemplates that in some circumstances modifications to a public entity's policies, practices, and procedures will be necessary to avoid discrimination. Section 202 protects from discrimination by public entities any "qualified individual with a disability," see 42 U.S.C. § 12132, whom section 201(2) defines as

an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids or services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.

42 U.S.C. § 12181(2) (emphasis added).

Section 35.130(b)(7) of the title II regulation perhaps most pointedly defines the obligation. It states that modifications to policies, practices, and procedures shall be made when "necessary to avoid discrimination on the basis of disability," unless it can be demonstrated that making the modifications would "fundamentally alter the nature of [a] service, program, or activity." 28 C.F.R. § 35.130(b)(7).

A police department's obligation to provide adequate training to officers in the proper treatment of individuals with disabilities is a specific application of this general rule.4 The House Judiciary Committee Report states that title II requires such training when it is necessary to avoid discriminating against persons with disabilities, including persons arrested by the police:

In order to comply with the non-discrimination mandate, it is often necessary to provide training to public employees about disability. For example, persons who have epilepsy, and a variety of other disabilities, are frequently inappropriately arrested and jailed because police officers have not received proper training in the recognition of and aid for seizures. Often, after being arrested, they are deprived of medications while in jail, resulting in further seizures. Such discriminatory treatment based on disability can be avoided by proper training.

H.R. Rep. No. 485(III), 101st Cong., 2d Sess., at 51, reprinted in, 1990 U.S.C.C.A.N. 445, 473 (hereafter "House Judiciary Report"). The discussion of section 35.130(b) of the title II regulation found in the Preamble says essentially the same thing. See 28 C.F.R. Pt. 35, App. A, at 451.5

B.	The Statute and the Title II Regulation Make it Clear That Public Entities Must Provide Vehicles Accessible to persons With Disabilities, or at Least Modify Existing Vehicles, Where Necessary to Avoid Discriminating on the Basis of Disability.

The plaintiff also alleges that the KCMOPD should have had vehicles suitable for arrestees with mobility impairments. Complaint at ¶ 15. This allegation is consistent with section 201(2) of the ADA, which requires "the removal of architectural, communication, or transportation barriers," 42 U.S.C. § 12131(2), and with section 35.150(b)(1) of the regulation, which states that, in meeting the requirement to provide access to programs, services, and activities, public entities may undertake "alteration of existing facilities and construction of new facilities" and may use "accessible rolling stock or other conveyances." 28 C.F.R. § 35.150(b)(1).

Of course, this obligation, like the obligation to make reasonable modifications to policies, practices, and procedures, is not without limitation. Section 35.150(a)(3), for example, says that public entities are not required to take any actions to afford access to their services, programs, and activities that would result in a "fundamental alteration" of those services, programs, and activities or in "an undue financial or administrative burden." 28 C.F.R. § 35.150(a)(3). The regulation itself does not define the terms "fundamental alteration" and "undue financial and administrative burden." However, the Preamble discussion of section 35.150(b)(3) clearly indicates that these terms are intended to be defined in the same way that cases interpreting the same terms under section 504, including Southeastern Community College v. Davis, 442 U.S. 397 (1979), and the Circuit court decisions following Davis, have defined them. See 28 C.F.R. Pt. 35, App. A, at 457, 463.6 The Eighth Circuit has had no difficulty applying the standards set out in Davis. See, e.g., Pottgen v. Missouri State High School Activities Association, 40 F.3d 926 (8th Cir. 1994); Kohl v. Woodhaven Learning Center, 865 F.2d 930 (8th Cir. 1989), cert. denied, 493 U.S. 892 (1990).

It is true that there is no regulatory language or caselaw interpreting title II that specifically tells police officers how to arrest and transport individuals who have disabilities like the plaintiff's. See Def. Mem. at 2. This degree of specificity, however, is not required to withstand a vagueness challenge. It is firmly established that statutes that regulate economic conduct and impose civil rather than criminal liability, like the ADA, are subject to less stringent vagueness standards than are statutes that impose criminal liability or abridge constitutionally protected rights. Hoffman Estates, 455 U.S. at 495 n.7 & 498; Grayned v. City of Rockford, 408 U.S. 104, 109 (1972); U.S. v. Articles of Drug, 825 F.2d at 1244; D.C. & M.S. v. City of St. Louis, 795 F.2d 652, 654 (8th Cir. 1986); Horn v. Burns & Roe, 536 F.2d 251, 254 (8th Cir. 1976).7 Indeed, the Supreme Court has upheld, in the face of vagueness challenges, statutes imposing criminal liability that have language similar to title II's. See, e.g., Boyce Motor Lines v. United States, 342 U.S. 337, 339 (1952) (upholding a statute requiring truck drivers who carry explosives or flammable liquids to avoid driving into congested thoroughfares "so far as practicable, and where feasible").

C.	Caselaw Has Upheld as Constitutional Words, Phrases, and Concepts in Title III of the ADA That Are Similar to Those in Title II.

We are aware of at least one case in which a court upheld title III of the ADA in the face of a vagueness challenge. See Pinnock, supra. In Pinnock, the court held that the title III implementing regulation, 28 C.F.R. Pt. 36 (1994), and its Preamble, 28 C.F.R. Pt. 36, App. B (1994), sufficiently clarified the meaning of the term "reasonable modifications" so as to avoid a claim that this term was vague. Pinnock, 844 F. Supp. at 582.8 Pinnock also relied upon the fact that several cases have interpreted the term "fundamental alteration" under section 504 when it concluded that the same term in title III was not unconstitutionally vague. Id.

The concepts of "reasonable modifications" and "fundamental alteration" found in title II are intended to carry essentially the same meanings as they do in title III. See 28 C.F.R. Pt. 35, App. A, at 451; House Judiciary Report at 52, reprinted in, 1990 U.S.C.C.A.N. at 475.9 Pinnock's analysis of title III is, we believe, careful and persuasive, and no Federal court has reached a contrary conclusion. Pinnock, therefore, strongly supports the government's position in the present case that title II of the ADA is not unconstitutionally vague.10

III. CONCLUSION

For all of the foregoing reasons, the United States asks this Court to deny Defendants' Partial Motion to Dismiss.

Respectfully submitted,

STEPHEN L. HILL, JR.	DEVAL L. PATRICK

United States Attorney	Assistant Attorney General

For the Western District	Civil Rights Division

of Missouri

By:

GAY TEDDER	JOHN L. WODATCH

Assistant United States	L. IRENE BOWEN

Attorney	CHRISTOPHER J. KUCZYNSKI,

Missouri Bar #34846	Attorneys

Suite 2300	Disability Rights Section

1201 Walnut Street	U.S. Department of Justice

Kansas City, MO 64106	P.O. Box 66738

Tel: (816) 426-3130	Washington, D.C. 20035-6738

Tel: (202) 307-1060