by Conor Gaffney*

How should police officers take into account the different needs of a person with disabilities during an arrest? In this Contribution, Conor Gaffney (’18) examines the role of the Americans with Disabilities Act in governing arrests and investigations by police of persons with disabilities. Ultimately, this Contribution argues that the ADA’s reasonable accommodation requirement modifies what searches and seizures of individuals with disabilities are considered reasonable under the Fourth Amendment.

Title II of the Americans with Disabilities Act (ADA) contains a simple, but powerful antidiscrimination rule: public entities must make reasonable accommodations in their activities if failing to do so would deny individuals with disabilities the benefits of those activities.2 This preferential treatment rule is unique among federal antidiscrimination laws, most of which prohibit intentional or express differential treatment, but do not require accommodating treatment of people who are differently situated.3 Moreover, Title II’s language sweeps broadly, applying this affirmative antidiscrimination duty to practically any public entity activity.4 But the statute does have limits, both from the statutory text itself, and—more substantively—from interacting constitutional provisions.

This Contribution examines the role of the ADA in governing arrests and investigations by police of persons with disabilities and argues that the ADA’s reasonable accommodation requirement modifies what searches and seizures of individuals with disabilities are considered reasonable under the Fourth Amendment. This is for one basic reason: reasonableness under the Fourth Amendment analyzes the totality of circumstances, and the ADA expands those circumstances to include the congressional judgment as to whether there must be an accommodation or not.

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In 2015, the United States Supreme Court granted certiorari in City and County of San Francisco v. Sheehan to decide whether and how the ADA applies to police activities during arrests.5 In the several decades since Congress passed the ADA, and especially following the Court’s expansive interpretation of Title II’s applicability in Pennsylvania Department of Corrections v. Yeskey,6 the Circuit Courts of Appeals have fragmented on what law enforcement conduct the ADA reaches, and what exactly a reasonable accommodation is in the uncertain and potentially dangerous circumstances that police regularly encounter during arrests.7 But Sheehan did not resolve the issue, as a sudden change in position by the petitioner, San Francisco, pushed a somewhat exasperated Court to deem certiorari improvidently granted on this issue, leaving the circuit’s various splits in place.8

The rules in the circuits vary widely. In the Fifth Circuit, the ADA categorically does not apply during an officer’s on-the-street response until the officer secures the scene and ensures that there is no threat to human life.9 In the Fourth, Ninth, and Eleventh Circuits, the ADA applies generally to arrests, and the law’s reasonable accommodation requirement is integrated into the Fourth Amendment reasonableness analysis of the arrest.10

The methodologies behind the circuits’ various analyses, though, appear to converge. All asked whether a threat to officer and public safety—classically recognized exigent circumstances in Fourth Amendment jurisprudence11—also introduced judicially determinable exceptions to the ADA’s reasonable accommodation analysis. Thus, the Fifth Circuit was able to formulate a categorical rule that unsecured street arrests are ADA-exempt scenarios because requiring a police officer to make an accommodation before ensuring his own safety is per se unreasonable.12 The Fourth Circuit came the opposite conclusion because it thought that since the reasonableness of a given accommodation requires analyzing the totality of circumstances, categorical exemptions for arrests are inappropriate, even though exigent circumstances common to arrests can render the procedures used “reasonable under the ADA.”13

ADA arrest cases present a collision, then, between the ADA’s reasonable accommodation requirements and the constitutional pronouncements on what constitutes reasonable law enforcement conduct during the course of an arrest, and commentators looked with great anticipation towards the Supreme Court’s decision in Sheehan.14 However, clarity would be denied as the petitioner, San Francisco, shifted arguments before the Supreme Court. Instead of arguing, as it had before the Ninth Circuit, that the ADA did not require officers to make any additional accommodations when presented with safety exigencies per Hainze,15 San Francisco instead argued that a previously unmentioned regulation controlled the question. 28 C.F.R. § 35.139 states that Title II does not require public entities to allow people to participate in their programs or activities if that person poses a “direct threat to the health or safety of others.”16 Following this regulation, the City argued, Sheehan is excluded from the Title II’s protections because she posed a direct threat.

The Supreme Court decided that San Francisco’s position conceded that Title II does generally apply to arrests—a position it had opposed below in the Ninth Circuit.17 The question of whether, and how, the ADA applies to arrests such as Sheehan’s remains open.

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There are two major interpretive questions that a case like Sheehan presents. Are arrests the kind of benefit-conferring activity of a public entity covered by Title II?18 And if so, how might Title II’s reasonable accommodation requirement be circumscribed by exigency exceptions for law enforcement found in Fourth Amendment jurisprudence?

In Pennsylvania Department of Corrections v. Yeskey, writing for the Court, Justice Scalia gave a first, authoritative gloss on the scope of 42 U.S.C. § 12132’s phrase “benefits of the services, programs, or activities of a public entity.”19 There, the Court analyzed whether an incarcerated individual rejected from a prison boot camp because of his hypertension was denied the benefit of a public entity program under Title II. He was, the Court found, reading § 12132 to apply broadly to state institutions “without any exceptions” and to contain a notion of benefit-conferring activities that captures a wide range of activities, from medical care to vocational programs, without any apparent limitation from the text of the statute or its legislative history.20 Applying this reasoning, the Ninth Circuit figured that “services programs or activities . . . encompass anything [a police department] does,”21 so the remaining limitation on the sweep of Title II’s liability is found in the phrase “benefit.” And since a person with disabilities must be denied the benefit of some public entity activity for there to be discrimination, the activity has to be capable of conferring a benefit in the first place.

What is the benefit in an arrest? Lower courts have found several, and from this it becomes clear that arrests are complex, multi-phase events and that not all arrests may be equal for Title II purposes. At one end of the spectrum are arrests that are highly analogous to the positive material benefits Congress identified in its purposes and findings section of the ADA.22 In Gorman v. Bartch,23 the Eighth Circuit held that the ADA applied to transportation in a police van after custodial arrest. The court noted that including “transportation of an arrestee to the stationhouse” within the ambit of “services” covered by the ADA fit both with stated purposes of the legislation in 42 U.S.C. § 12101 and with the statute’s accompanying regulations.24 And in Bircoll v. Miami-Dade County,25 the Eleventh Circuit suggested that the benefit of effective communication, described specifically in 28 C.F.R. § 35.160, would be denied if an officer did not provide a hearing-impaired individual with an interpreter or other auxiliary aid during a DUI stop.26

Further from the benefits described in the regulations and identified by Congress in the ADA’s findings and purposes is the argument that any part of an arrest is a benefit-providing activity because the arrestee benefits from the arresting officer’s training. A number of constitutional and statutory rights are at stake during an arrest, and police are highly trained to ensure that those rights are honored. Questioning techniques, de-escalation training, and rules governing the use of force are all public entity activities or programs that an arrestee concretely benefits from. This idea also squares with the theory of Title II liability for Individuals with Disabilities Education Act violations, in which the failure to provide an adequate individualized education plan denies a claimant educational benefits through inadequate teacher training.27 Even the Fifth Circuit, with its categorical rule exempting police conduct prior to securing the scene from the ADA,28 recognized that there is a benefit in mental health training for officers that the arrestee was denied.29

The more significant hurdle for advocates of ADA liability during arrests is arguing that exigent circumstances—like those that pose a threat to the arresting officer’s safety—do not, as a matter of law, render any accommodation unreasonable. Fourth Amendment jurisprudence contains a detailed set of exceptions to the Amendment’s standard reasonableness requirements of a warrant and probable cause. These standards are solicitous of officer safety and of the split-second decision-making required in many street interviews. The community caretaking exception in Brigham City v. Stuart, for instance, frees police from the constraints of the warrant requirement when they respond to a scene where violence is imminent.30 Similarly, the investigation evidence exigency “does not require police officers to delay in the course of an investigation if to do so would gravely endanger their lives or the lives of others.”31 But perhaps the strongest statement of the Supreme Court’s deference to police judgment in arrests was expressed in Terry v. Ohio, when the Court articulated Fourth Amendment doctrine’s goal of providing law enforcement with “an escalating set of flexible responses, graduated in relation to the amount of information [officers] possess.”32 These doctrines, and the Terry principle, provide ample room for police to claim that on-the-street encounters and arrests present exceptional circumstances and that reasonable officer conduct is safe, defensive officer conduct. Any possible further accommodation would, under these circumstances, be unreasonable and thus not required by the ADA.

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But in the collision of the ADA and the Fourth Amendment, it isn’t clear that one would override the other. Some integration of the standards is possible. Both the ADA and the Fourth Amendment require reasonableness. Though the former uses reasonableness to limit what Congress affirmatively requires of public entities, while the latter uses reasonableness to determine negative prohibitions on law enforcement conduct, in arrests that is often a distinction without a difference. A police officer’s decision to provide an ASL interpreter when questioning a deaf driver is the same as her decision to refrain from conducting a street interview before the appropriate accommodation is in place. The officer’s choice both provides a reasonable accommodation and refrains from an unreasonable stop and search. Ergo, a particular course of action during an arrest can be reasonable for both ADA and Fourth Amendment purposes, and that conduct can confer benefits on the arrestee.

Aside from a few general floor statements during the ADA’s passage and a brief mention in a House Report, Congress was largely silent on the application of the statute to law enforcement activities,33 and completely so on the question of whether the ADA’s reasonable accommodation requirement modifies the Fourth Amendment’s reasonableness standards. But there are good policy reasons—in addition to Congress’s textual invitation—for harmonizing ADA and Fourth Amendment reasonableness into a single standard in a way that preserves the effect of the statute. Providing a clear, workable legal standard to police officers has long been a concern of the Court’s, lest judge-created law inappropriately burden the difficult task of law enforcement.34

Moreover, though the ADA does not speak with any specificity about its application to arrests, it does speak to what counts as reasonable actions for public entities interacting with disability—they are accommodations. The preferential nature of the ADA’s antidiscrimination provisions, “a more comprehensive view of the concept of discrimination” according to the Supreme Court,35 imposes an affirmative duty on police to make accommodations for individuals with disabilities. Though these accommodations are limited by the concept of “reasonableness,” Congress nonetheless adjusted upward the care that police must take when arresting a person with a disability. This new duty alters the boundaries of reasonable searches and seizures under the Fourth Amendment,36 and in the statute’s limitation of its duty to only reasonable accommodations, Congress indicated that the affirmative actions required under the ADA represents the new boundary for reasonable government conduct.

As the majority of the circuits have recognized, the Fourth Amendment reasonableness analysis is a flexible, totality of the circumstances analysis, and the boundaries of reasonable conduct adjust with factual circumstances.37 One such factual circumstance is the definition (or redefinition) of a police officer’s duties towards arrestees pursuant to a congressional act. At a minimal level, the substance of applicable law partially determines reasonable officer conduct. By defining the substance of criminal offenses, a legislature affects the reasonableness of a probable cause determination from a set of facts. But stronger still, legislatures can impose additional duties on police during searches and arrests, and these can adjust what is reasonable under the Fourth Amendment. Mandatory arrest laws adjust the threshold of reasonableness for certain arrests by imposing an affirmative duty on police officers to depart from the constitutional minimum in certain arrest scenarios.; for example, laws mandating the arrest of violators of protection orders—passed to address the dangerous dynamics of domestic violence—have been upheld as constitutional under the Fourth Amendment.38

An officer arrives at the scene of an arrest with the affirmative duty to make a reasonable accommodation for an ADA-qualified individual already in place. Congress’s command is part of the factual landscape that makes up such an arrest. In this way, the law always minimally adjusts the reasonableness of the arrest. But by specifically imposing the affirmative duty to make a reasonable accommodation, however, Congress legislated a concept of reasonableness that requires more than mere reasonableness under the Fourth Amendment.39 It requires reasonableness under the ADA.

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The Fourth Amendment describes a constitutional minimum for what is reasonable law enforcement conduct during an arrest. It does not place a ceiling on what Congress may legislate as reasonable public entity activity during an arrest.40 Because duties and other substantial provisions of laws may make up the factual circumstances of an arrest, Congress can adjust the boundaries of reasonableness upward through legislation. And because the ADA requires specifically that law enforcement make reasonable accommodations, and not merely act reasonably under the Fourth Amendment, the ADA modifies upward the reasonableness analysis courts should employ when assessing ADA arrest claims.

* Conor Gaffney is 3L at New York University School of Law. This piece is a commentary on one issue presented at the American Bar Association’s 2018 National Appellate Advocacy Competition. The competition problem considered whether Title II of the ADA authorizes claims against municipalities for law enforcement’s failure to modify arrest and interview techniques for persons with disabilities. The views expressed in this article do not necessarily represent the views of the author on this point of law. Rather, this article is a distillation of one side of an argument assigned to the author at the American Bar Association’s 2018 National Appellate Advocacy Competition.
2. See 42 U.S.C. § 12132 (“[N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity”).
3. See Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 616 (1999) (Thomas, J., dissenting) (“Until today, this Court has never endorsed an interpretation of the term ‘discrimination’ that encompassed disparate treatment among members of the same protected class. Discrimination, as typically understood, requires a showing that a claimant received differential treatment vis-à-vis members of a different group on the basis of a statutorily described characteristic.”)
4. See 28 C.F.R. § 35.102 (“this part applies to all services, programs, and activities provided or made available by public entities”). Title II was upheld as a valid exercise of Congress’s section 5 enforcement power under the Fourteenth Amendment. Tennessee v. Lane, 541 U.S. 509 (2004).
5. 135 S. Ct. 702 (2014).
6. See generally 524 U.S. 206 (1998) (Scalia, J.) (holding that the plain language of the ADA applies to the programs of even a punitive public entity like a state prison).
7. For a helpful survey and synthesis, see Robyn Levin, Responsiveness to Difference: ADA Accommodations in the Course of an Arrest, 69 Stan. L. Rev. 269, 282-313 (2017).
8. City and Cty. of San Francisco v. Sheehan, 135 S. Ct. 1765, 1772-74 (2015) [hereinafter Sheehan II].
9. Hainze v. Richards, 207 F.3d 795, 801 (5th Cir. 2000) (“Title II does not apply to an officer’s on-the-street responses to reported disturbances or other similar incidents, whether or not those calls involve subjects with mental disabilities, prior to the officer’s securing the scene and ensuring that there is no threat to human life”).
10. See Seremeth v. Bd. of Cty. Comm’rs, 673 F.3d 333, 339 (4th Cir. 2012) (“[W]hile there is no separate exigent-circumstances inquiry, the consideration of exigent circumstances is included in the determination of the reasonableness of the accommodation . . . nothing in the text of the ADA suggests that a separate exigent-circumstances inquiry is appropriate.”); Sheehan v. City and Cty. of San Francisco, 743 F.3d 1211, 1232 (9th Cir. 2014) [hereinafter Sheehan I] (“[W]e agree with the Eleventh and Fourth Circuits that exigent circumstances inform the reasonableness analysis under the ADA, just as they inform the distinct reasonableness analysis under the Fourth Amendment.”); Bircoll v. Miami-Dade Cty., 480 F.3d 1072, 1085 (11th Cir. 2007) (“The exigent circumstances presented by criminal activity and the already onerous tasks of police on the scene go more to the reasonableness of the requested ADA modification than whether the ADA applies in the first instance.”).
11. See generally Brigham City v. Stuart, 547 U.S. 398 (2006); Terry v. Ohio, 392 U.S. 1 (1968).
12. See Hainze, 207 F.3d at 801.
13. Seremeth, 673 F.3d at 336.
14. See Lyle Denniston, Argument preview: Police and disability rights, SCOTUSblog (Mar. 21, 2015, 12:03 AM), http://www.scotusblog.com/2015/03/argument-preview-police-and-disability-rights/.
15. In Sheehan, the officers responded to a call from a group care facility for people with intellectual and developmental disabilities. They believed that the plaintiff, armed with a knife, suffering from a psychotic episode, and displaying violent behaviors was likely to escape from the room she had locked herself in and posed a threat to public safety. Sheehan I, 743 F.3d at 1217-21.
16. See Brief for Petitioner at 22, City and Cty. of San Francisco v. Sheehan, 135 S. Ct. 1765 (2015) (No. 13–1412), 2015 WL 254639, at *22 (citing 28 C.F.R. § 35.139).
17. See Sheehan II, 135 S. Ct. at 1773 (2015).
18. See 42 U.S.C. § 12132.
19. See Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 208 (1998) (Scalia, J.).
20. See id. at 210.
21. Sheehan I, 743 F.3d at 1232 (following Yeskey’s approach to interpreting public entity activity broadly).
22. See 42 U.S.C. § 12101 (expressly identifying discrimination against persons with disabilities in “such critical areas as employment, housing, public accommodations, education, transportation,” among others).
23. 152 F.3d 907 (8th Cir. 1998).
24. Id. at 912-13.
25. 480 F.3d 1072 (11th Cir. 2007).
26. See id. at 1082. The court resolved the claim on alternative grounds, holding that even if a benefit were at stake, the officer did not act unreasonably in proceeding with a field sobriety test because of the exigencies presented by a traffic stop made waiting for an interpreter unreasonable. Id. at 1086.
27. See e.g., K.M. ex rel. Bright v. Tustin Unified Sch. Dist., 725 F.3d 1088 (9th Cir. 2013).
28. See Hainze, 207 F.3d at 801.
29. Id. at 800-801 (“Hainze was not denied the benefits and protections of Williamson County’s mental health training by the County, Sheriff Richards, or the officers. Rather, Hainze’s assault of Allison with a deadly weapon denied him the benefits of that program” (emphasis in original)).
30. Brigham City v. Stuart, 547 U.S. 398, 403 (2006) (“Accordingly, law enforcement officers may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury.”).
31. Warden v. Hayden, 387 U.S. 294, 298-99 (1967).
32. Terry v. Ohio, 392 U.S 1, 10 (1968).
33. For the lone report, see H.R. Rep. No. 485(III), 101st Cong., 2d Sess.
34. See Terry, 392 U.S. at 27 (“[I]n determining whether the officer acted reasonably in such circumstances, due weight must be given…to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience”) (emphasis added); Graham v. Connor, 490 U.S. 386, 396-97 (1989) (“The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving.”); see also Anna Lvovsky, The Judicial Presumption of Police Expertise, 130 Harv. L. Rev. 1997, 2025-35 (June 2017).  
35. Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 598 (1999).
36. For the view that a legislature can change the boundaries of reasonableness around Fourth Amendment-related issues, see the separate opinion of Justice Alito in Riley v. California, 134 S. Ct. 2473, 2497-98 (2014) (Alito, J., concurring in part and concurring in the judgment) (“[I]t would be very unfortunate if privacy protection in the 21st century were left primarily to the federal courts using the blunt instrument of the Fourth Amendment. Legislatures . . . are in a better position than we are to assess and respond to the changes that have already occurred and those that almost certainly will take place in the future.”).
37. See, e.g., Waller ex rel. Estate of Hunt v. Danville, 556 F.3d 171, 175 (4th Cir. 2009) (“Reasonableness in law is generally assessed in light of the totality of the circumstances, and exigency is one circumstance that bears materially on the inquiry into reasonableness.”).
38. See Hedgepeth v. Washington Metro. Area Transit, 284 F. Supp. 2d 145, 158 (D.D.C. 2003), aff’d sub nom. Hedgepeth ex rel. Hedgepeth v. Washington Metro. Area Transit Auth., 386 F.3d 1148 (D.C. Cir. 2004) (rejecting a Fourth Amendment challenge to a zero tolerance arrest ordinance, and examining the constitutionality of other mandatory arrest laws under the Fourth Amendment).
39. See generally United States v. Torres, 751 F.2d 875 (7th Cir. 1984) (borrowing the complex warrant procedure Congress described in the Wiretap Act to determine the reasonableness of surveillance similar to that within the Act’s scope); see also Orin S. Kerr, The Effect of Legislation on Fourth Amendment Protection, 115 Mich. L. Rev. 1117, 1122-39 (2017) (providing a typology of judicial responses to the impact of legislation addressing searches and seizures on Fourth Amendment analyses).
40. The limit on Congress’s power to impose duties and requirements under Title II, if any, would come from section 5 of the Fourteenth Amendment. See Tennessee v. Lane, 541 U.S. 509 (2004).