by Andrew Breland*
How should police officers take into account the different needs of a person with disabilities during an arrest? In this Contribution, Andrew Breland (’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.
The 1990 passage of the Americans with Disabilities Act (ADA) was intended to eliminate discrimination on the basis of disability and fully integrate persons with disabilities into the social and political mainstream.2 Within the ADA, Title II applies these protections to public entities.3 While that effort has produced some significant advances for the rights of people with disabilities,4 interactions with police continue to be, perhaps, the single largest category of public entity activities where disabled individuals have vastly different experiences from non-disabled individuals. Thus, courts are often asked whether and to what extent the ADA protects people with disabilities in the course of police conduct.
The Supreme Court sought to answer this question in City of San Francisco v. Sheehan,5 a 2015 case asking whether police had to make accommodations for the disabilities of a mentally disabled person they were trying to arrest. However, the relevant part of that case was dismissed as improvidently granted when the petitioner assumed the answer to that question and instead argued how officers should determine what accommodations are appropriate.6 Since Sheehan, courts have continued to divide over the extent of accommodations that police are required to make for disabilities during the normal course of investigations or arrests.7 In the circuits where an accommodation is required, multiple tests have emerged for determining what accommodations are appropriate and when, precisely, police must make them.8
This Contribution argues those two points. First, it argues that the protections of the ADA apply to police conduct, including conduct during arrests and on-the-ground investigations. Second, it turns to the types of accommodations required during arrests and investigation, with specific emphasis on the additional efforts necessary to accommodate someone with a mental disability, concluding that exigency should be considered as part of the reasonableness of an accommodation, but that exigency on its own does not excuse the accommodation duty.
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Title II of the ADA explicitly requires that “no 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, or be subjected to discrimination by any such entity.”9 To comply with these demands, public entities must make reasonable modifications to policies, practices, or procedures when necessary to avoid discrimination against individuals with disabilities.10 Those modifications (“accommodations,” in ADA terms) must only be reasonable. Under the ADA, a public entity has no duty to take any action that would result in a “fundamental alteration” in the nature of a program, service or activity or cause undue financial and administrative burdens.11
The Supreme Court first spoke to the application of Title II to law enforcement in Pennsylvania Department of Corrections v. Yeskey.12 In that case, the Court held that the Pennsylvania state prison system could not deny an inmate participation in a diversion program solely because he had a disability.13 The Court first held that the ADA applied to the Department of Corrections generally,14 but then proceeded to examine whether an “involuntary” program like a prison term counts as an eligible program under the ADA.15 Writing for the Court, Justice Scalia noted that government programs and activities are often not voluntary; but even though they occur in the context of involuntary incarceration, things like access to a prison library, working, and the diversion program were indeed programs under the ADA.16
Since Yeskey, the circuit courts have divided on the extent to which the ADA impacts other kinds of law enforcement activity. As a preliminary matter, circuit courts agree that law enforcement generally is subject to the restraints of Title II.17 Instead, the question percolating before circuit courts—the question granted but dismissed in Sheehan—is whether that general application of Title II also covers police activity during arrests and so-called “on-the-ground” investigations.18
Concerning application first, several courts have adopted a broad reading of ADA, applying the requirements of Title II to “anything a public entity does,” including on-the-ground investigative and arrest activities.19 Reading the statute that broadly, these courts offer, is consistent with the Supreme Court’s instructions to read the ADA broadly to effectuate its purposes as a remedial statute.20 In contrast to those broad readings, other circuit courts have refused to apply Title II at all to this branch of police conduct. For example, the Fourth Circuit continues to hold that arrests and investigations do not confer benefits such that they can be denied by discrimination.21
Even when lower courts apply Title II, most circuits adopt some form of exigency exception to the general presumption of application.22 However, even when implementing that exception, the courts of appeals disagree on the form such an exception should take. In one form, suggested by the Fifth Circuit, Title II protections do not apply at all to officers’ conduct until the scene of the police encounter is secure and the officers know they are safe from attack.23 In other circuits, certain kinds of situations are necessarily exigent and preclude any accommodation, even if the police officer is not in immediate danger of bodily harm. Traffic stops on the side of a highway are the most common example of this kind of exception.24 Finally, other circuits perform the “reasonableness” analysis for accommodations with an eye toward the level of exigency the officer encountered.25 Under that analysis, even an extremely exigent circumstance may not preclude an inexpensive and easily administered accommodation for a disability.
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Nearly every court of appeals has spoken to some version of this question without guidance from the Supreme Court. Two questions then remain ripe for answers. First, do the requirements of Title II apply at all to arrests and investigations? Second, even if they do, how is a court to account for exigency in those situations? The answer for both questions should err toward protection of disabled people. As a remedial statute, the ADA should apply to all police conduct. In an effort to balance the interests and safety of officers though, courts should analyze the reasonableness of any requested accommodation in light of exigent circumstances.
Title II encompasses all the activities of a public entity like a police department, including on-the-ground investigative and arrest activity. The plain meaning of Title II does not limit, either explicitly or implicitly, the kinds of police activities subject to Title II.26 Acknowledging this, the courts that refuse to apply Title II to arrests and investigations focus on the “benefit” required by the text of Title II; that is, if arrests and investigations do not confer a “benefit,” they fall outside the protection of the ADA.27 In response, pro-application courts have held that injuries (physical or emotional) that result from an arrest where the plaintiff was denied an accommodation are “denial of a benefit” for ADA purposes.28 Such emotional injuries are understood to include pains from wrongful arrests that occur because the police failed to accommodate a disability.29 As a result, when a disabled person is wrongfully denied an accommodation during the course of an arrest or interrogation, that denial itself constitutes the denial of a benefit under Title II.
The implementing regulations for Title II similarly acknowledge that everything a police department could do is subject to the strictures of Title II.30 Specifically, “services, programs, and activities” encompasses “all of the operations of a department, agency, special purpose district, or other instrumentality of a State or local government.”31 These regulations are entitled to deferential treatment by courts and controlling weight when determining what the ADA covers.32 For at least one court, these regulations have been enough to apply Title II to all police activities without exceptions including for recognized exigent activities.33
Likewise, the legislative history of Title II indicates Congress’s intent to cover all police activity generally, and arrests specifically, to the demands of Title II. While the legislative history of a statute cannot overcome a reading of the plain text, here the record indicates even more substantial support for the proposition that police arrests and investigations are covered by the ADA. In the House Report accompanying the passage of the ADA, police training for recognizing disabilities during arrests was explicitly mentioned as an intended consequence of the law.34 Separately, one of the co-sponsors of the ADA made a floor speech immediately before the law’s passage about the impact of the ADA on law enforcement:
Regretfully, it is not rare for persons with disabilities to be mistreated by the police. Sometimes this is due to persistent myths and stereotypes about disabled people. At other times, it is actually due to mistaken conclusions drawn by the police officer witnessing a disabled person’s behavior. . . .
Although I have no doubt that police officers in these circumstances are acting in good faith, these mistakes are avoidable and should be considered illegal under the Americans With Disabilities Act. They constitute discrimination, as surely as forbidding entrance to a store or restaurant is discrimination.35
While a single statement made by a single legislator cannot be given controlling effect, that the statement is consistent with statutory language is evidence of intent.36 The evidence overwhelmingly supports that Title II applies to arrests and investigations.
All this means, however, is that the police should make accommodations that are reasonable during an arrest or investigation. It leaves open, at least to some extent, the question of exigent circumstances. Even if an arrest requires some kind of accommodation, concerns for police safety might require that accommodations be delayed until the scene is secure. Instead of the bright line rules adopted by the Fourth and Fifth Circuit Courts of Appeals, courts should analyze exigency as an element of determining what accommodation is reasonable.
As a preliminary matter, it is important to understand why an exigency exception is necessary at all. Some advocates might demand that police are required to make any accommodation that will ensure equality of outcomes between a disabled and non-disabled person. However, no court has adopted that view. The Supreme Court has previously noted that the ADA does not require governments to “employ any and all means to make” services accessible.37 The standard is lower: accommodations are required when they “would not fundamentally alter the nature of the services provided” or “impose an undue financial or administrative burden.”38 In an arrest, accommodations that endanger police or require them to devote resources to accommodations that they otherwise may devote to securing a crime scene might impose too high a burden. Correctly, at least one circuit has required that the government prove such an “undue” burden exists after the plaintiff makes out a prima facie case under the ADA.39 Without that proof, the accommodation is presumed reasonable.40
Requiring exigency be analyzed as a part of the reasonableness analysis creates positive consequences. Rather than a bright line rule that no accommodation is possible until a scene is “secure,” asking whether the particular accommodation at issue is reasonable encourages police to make the accommodations during each stage of the arrest that are indeed possible without posing an undue threat to their safety. It is possible, for example, that when a scene is not entirely secure, police could feasibly provide some, even if not all, of the requested accommodations. This also encourages police to consider de-escalation behavior as an accommodation in response to a disabled individual who herself is posing a threat to the officers’ safety.
The facts from Sheehan indicates why this approach is superior. There, police entered Ms. Sheehan’s room to respond to concerns from her social worker that Ms. Sheehan had stopped taking her medication.41 After Ms. Sheehan pulled a knife on the officers, they exited her room and called for backup.42 Rather than waiting, the officers forced their way back into the room and shot Ms. Sheehan six times.43 The Ninth Circuit found that the exigency of the situation did not validate the officers’ decision to fire their weapons at Ms. Sheehan.44 One might think that the police should always take such careful action in any encounter, but because the police initially closed the door here, that eliminates any argument for refusing an accommodation. Once the door was closed, Ms. Sheehan was alone in her room. Any threat she posed to the officers and the public no longer existed—the situation was no longer exigent. When the officers reentered the room and recreated the exigency, it was just that, their own creation. They cannot rely on such officer-created exigencies as an excuse to refuse an accommodation.45 The government cannot claim an exigency defense that government agents in fact fabricated.
Under the bright line rules adopted in some circuits, the police’s actions in Sheehan would almost certainly have been permissible. With a threat to public safety and an unsecured scene, Ms. Sheehan would reasonably present the kind of situation that other courts might determine excuse an accommodation.46 Instead, proceeding on a fact-based inquiry about the reasonableness of any specific accommodation ensures better outcomes.
Even in those cases where accommodations were deemed unreasonable, performing a case-by-case balancing opens the door to more accommodation, in line with congressional intent, without any decrease in efficiency or effectiveness. For example, in Seremeth v. Board of County Commissioners, police responded to a 9-1-1 call alleging domestic violence.47 Before police secured the scene, they began questioning the plaintiff, Seremeth, who was deaf.48 During the discussion, the police used the plaintiff’s father as an interpreter instead of immediately calling for a professional interpreter.49 The court found that no violation of the ADA had occurred because the police took sufficient steps to accommodate Mr. Seremeth’s disability.50 Rather than simply secure the scene and prolong Mr. Seremeth’s discomfort in not communicating, the police took a “next-best” action to accommodate his disabilities. This is the type of action required by the balancing approach that would not necessarily be required by a bright line rule.
At heart, all of these approaches simply require police to make a good faith effort to accommodate a disability under Title II. Such a phrasing of the accommodation obligation is not novel. Several courts have interpreted the strictures of Title II (and of the ADA more broadly) to impose a duty of good faith on actors.51 This recognizes that the level of possible accommodation will not always be the same while encouraging police interacting with disabled individuals to weigh the possible accommodations that are available, and to use those that maximize welfare while also ensuring their own safety. As a remedial statute covering police activities, that seems to be the least the ADA can require.
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Police officers are required to make accommodations for disabilities of individuals they encounter during arrests and on-the-ground encounters. As a blanket rule, the accommodations requested cannot fundamentally alter an activity. In the arrest context however, as an added safeguard for police, the reasonableness of accommodations must also include an exigency analysis. That said, exigency cannot be a total bar to accommodation, and police must make a good faith effort to accommodate disabilities. Only then will the ADA’s promise of equal treatment be validated for citizen encounters with police.
* Andrew Breland is a 3L at New York University School of Law. This Contribution is a commentary on the 2018 National Appellate Advocacy Competition (NAAC) Moot Court Competition, hosted by the American Bar Association. The views expressed in this article do not necessary 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 competition.
2. PGA Tour, Inc. v. Martin, 532 U.S. 661, 675 (2001) (“After thoroughly investigating the problem, Congress concluded that there was a ‘compelling need’ for a ‘clear and comprehensive national mandate’ to eliminate discrimination against disabled individuals, and to integrate them ‘into the economic and social mainstream of American life.’ (citing S. Rep. No. 101-116, p. 20 (1989), and then citing H.R. Rep. No. 101-485, pt. 2, p. 50 (1990))).
3. 42 U.S.C. § 12132.
4. While individuals’ accounts of improvements in their lives as a result of the ADA vary, see generally Elaine Katz & Rodger DeRose, The ADA 20 Years Later: The 2010 Survey of Americans with Disabilities, 33 J. of Spinal Cord Med. 345 (2010) (analyzing survey data about the gaps between the experiences and attitudes of disabled persons with those of nondisabled persons, including in education, employment, socializing, and life satisfaction), the ADA and subsequent amendments put in place a series of structural changes providing services to Americans with disabilities, cf. U.S. Commission on Civil Rights, Sharing the Dream: Is the ADA Accommodating All? (2000), http://www.usccr.gov/pubs/ada/ch2.htm (describing the federal government programs that the ADA put in place).
5. City of San Francisco v. Sheehan (“Sheehan II”), 135 S. Ct. 1765 (2015). Sheehan II was particularly striking, both on its facts and in the procedural history. For the facts of the case, see infra at text accompanying notes 42-45. The procedural history, however, is as follows. After Ms. Sheehan was tried on assault charges, but was not convicted, she brought a lawsuit alleging a failure to accommodate her disability under the ADA. Id. at 1771. The District Court dismissed her suit and the Ninth Circuit reversed. Id. at 1771-72. In their petitioner for certiorari to the Supreme Court, the City of San Francisco urged the court to answer whether the ADA “requires law enforcement officers to provide accommodations” to a mentally disabled person. Id. at 1772. However, during the merits briefing stage, San Francisco conceded issue question and instead argued that the police do have to make accommodations. Id. at 1773. Because of this reversal of position and a lack of adversary briefing on the question granted, the Court dismissed the question. Id. at 1773-74. At oral argument, Justice Scalia termed this course of actions as a “bait-and-switch.” See Transcript of Oral Argument at 4, City of San Francisco v. Sheehan, 135 S. Ct. 1765 (2015) (No. 13-1412).
6. Sheehan II, 135 S. Ct. at 1773.
7. Compare Williams v. City of New York, 121 F. Supp. 3d 354 (S.D.N.Y. 2015) (finding an accommodation obligation existed during an investigation) with Roell v. Hamilton Cty., 870 F.3d 471 (6th Cir. 2017) (finding no accommodation obligation existed).
8. Compare Hainze v. Richards, 207 F.3d 795 (5th Cir. 2000) (no requirement to accommodate a disability until the scene is entirely secure—bright line rule), with Sheehan v. City of San Francisco (“Sheehan I”), 743 F.3d 1211 (9th Cir. 2014) (exigency of the situation is part of a balancing test to determine whether to accommodate a disability).
9. 42 USC § 12132 (emphasis added).
10. 28 C.F.R. § 35.130(b)(7)(i); cf. Olmstead v. Zimring ex rel. L.C., 527 U.S. 581, 589 (1999) (Title II of the ADA “set[s] forth prohibitions against discrimination in . . . public services furnished by governmental entities.”).
11. Olmstead, 527 U.S. at 582 (“The reasonable-modifications regulation speaks of ‘reasonable modifications’ to avoid discrimination, and allows States to resist modifications that entail a ‘fundamenta[l] alter[ation]’ of the States’ services and programs.” (citing 28 C.F.R. § 35.130(b)(7))).
12. 524 U.S. 206 (1998).
 Id. at 211.
14. Id. at 210 (“State prisons fall squarely within the statutory definition of ‘public entity’ . . . . Modern prisons provide inmates with many recreational ‘activities,’ medical ‘services,’ and educational and vocational ‘programs,’ all of which at least theoretically ‘benefit’ the prisoners (and any of which disabled prisoners could be ‘excluded from participation in’). . . . The text of the ADA provides no basis for distinguishing these programs, services, and activities from those provided by public entities that are not prisons.” (internal citations omitted)).
15. Id. at 211 (“Petitioners argue that the words ‘eligibility’ and ‘participation’ imply voluntariness on the part of an applicant who seeks a benefit from the State, and thus do not connote prisoners who are being held against their will. This is wrong on two counts”).
16. Id. (While ‘eligible’ individuals ‘participate’ voluntarily in many programs, services, and activities, there are others for which they are ‘eligible’ in which ‘participation’ is mandatory. A drug addict convicted of drug possession . . . might . . . be required to ‘participate’ in a drug treatment program for which only addicts are ‘eligible.’ . . . [E]ven if the words did connote voluntariness, it would still not be true that all prison ‘services,’ ‘programs,’ and ‘activities’ are excluded from the ADA because participation in them is not voluntary. The prison law library, for example, is a service (and the use of it an activity), which prisoners are free to take or leave.”).
17. See Sacchetti v. Gallaudet Univ., 181 F. Supp. 3d 107, 128-29 (D.C. Cir. 2016); Sheehan I, 743 F.3d at 1232 (9th Cir. 2014) (police are subject to the ADA), rev’d in part on other grounds, cert. dismissed in part, 135 S. Ct. 1765 (2015); Waller v. City of Danville, 556 F.3d 171, 174 (4th Cir. 2009) (same); Tucker v. Tennessee, 539 F.3d 526, 532 (6th Cir. 2008) (same), abrogated on other grounds, by Anderson v. City of Blue Ash, 798 F.3d 338 (6th Cir. 2015); Bircoll v. Miami-Dade Cty., 480 F.3d 1072, 1085 (11th Cir. 2007) (same); Hainze v. Richards, 207 F.3d 795, 802 (5th Cir. 2000) (same); Gohier v. Enright, 186 F.3d 1216, 1221 (10th Cir. 1999) (same); Gorman v. Bartch, 152 F.3d 907, 915-16 (8th Cir. 1998) (same).
18. See, e.g., Roell, 870 F.3d at 489-90 (discussing the application of the ADA to arrests but reserving judgment).
19. Cf. Seremeth v. Bd. of Cty. Comm’rs, 673 F.3d 333, 338 (4th Cir. 2012) (collecting cases and describing the “appeal” of this approach, but reserving judgment); Johnson v. Saline, 151 F.3d 564, 569 (6th Cir. 1998) (“[Title II] encompasses virtually everything that a public entity does.”); Innovative Health Sys., Inc. v. City of White Plains, 117 F.3d 37, 44–45 (2d Cir. 1997) (“As the preamble to the Department of Justice regulations explains, ‘[T]itle II applies to anything a public entity does . . . . All governmental activities of public entities are covered.’” (quoting 28 C.F.R. pt 35, app. A at 456)), abrogation recognized on other grounds, Zervos v. Verizon N.Y., Inc., 252 F.3d 163, 171 n.7 (2d Cir. 2001).
20. See, e.g., Gorman, 152 F.3d at 913 (In enacting the ADA, Congress “provide[d] a clear and comprehensive mandate for the elimination of discrimination against individuals with disabilities.”); see also Tcherepin v. Knight, 389 U.S. 332, 336 (1967) (“[W]e are guided by the familiar canon of statutory construction that remedial legislation should be construed broadly to effectuate its purposes.”).
21. See Rosen v. Montgomery Cty., 121 F.3d 154, 158 (4th Cir. 1997) (“Rosen was in no way ‘denied the benefits of’ his arrest. As far as the police officers were concerned, Rosen adequately participated in the various tests for intoxication. . . . Rosen was simply not ‘discriminated against’ just because he could not follow everything the officers were telling him.”).
22. Cf. Roell, 870 F.3d at 489 (holding that the plaintiff’s brandishing a hoe and charging at police permitted them to bypass de-escalation techniques when responding to a 911 call; exigency was part of the balancing for the “reasonableness” of the accommodation); Bahl v. Cty. of Ramsey, 695 F.3d 778, 784 (8th Cir. 2012) (holding it would be unreasonable to expect police to communicate by writing during a traffic stop during rush hour, when public safety was at risk); Hainze, 207 F.3d at 801 (“Title II does not apply [at all] to officers’ on-the- street responses to [disturbances] . . . prior to the officer’s securing the scene and ensuring there is no threat to human life.”).
23. Hainze, 207 F.3d at 801 (“Despite Hainze’s claims, we hold that Title II does not apply to an officer’s on-the-street responses to reported disturbances or other similar incidents . . . prior to the officer’s securing the scene and ensuring that there is no threat to human life.”).
24. See, e.g., Bircoll v. Miami-Dade Cty., 480 F.3d 1072, 1086 (11th Cir. 2007) (holding that waiting for an interpreter during a DUI stop on the highway is “per se not reasonable”).
25. See, e.g., Roell, 870 F.3d at 489 (holding a requested accommodation “‘unreasonable . . . in light of the overriding public safety concerns.’” (citing Tucker v. Tennessee, 539 F.3d 526, 536 (6th Cir. 2008))).
26. The ADA language is merely that it covers “services, programs, or activities” of a “public entity.” As the Supreme Court held in Yeskey, the language of the ADA should be read broadly. As in Yeskey, the language is broad and covers almost anything a governmental entity might do. This is not an issue of ambiguity but rather illustrates the breadth of the statute. Cf. Pennsylvania Dep’t of Corr. v. Yeskey, 524 U.S. 206, 212 (1998) (“[T]he fact that a statute can be applied in situations not expressly anticipated by Congress does not demonstrate ambiguity. It demonstrates breadth.” (internal quotation marks and citations omitted)); see also Henson v. Santander Consumer USA, Inc., 137 S. Ct. 1718, 1722 (2017) (“[W]e begin, as we must, with a careful examination of the statutory text”).
27. See Rosen v. Montgomery Cty., 121 F.3d 154, 157-58 (4th Cir. 1997) (“[Plaintiff] was in no way denied the benefit of his arrest;” arrests are not covered “services” under the ADA.); Torcasio v. Murray, 57 F.3d 1340, 1347 (4th Cir. 1995) (“The terms ‘eligible’ and ‘participate’ imply voluntariness on the part of an applicant who seeks a benefit from the state; they do not bring to mind [individuals] who are being held against their will.”); Patrice v. Murphy, 43 F. Supp. 2d 1156, 1160 (W.D. Wash. 1999) (“[A]n arrest is not the type of service, program, or activity from which a disabled person could be excluded or denied the benefits.”), abrogated by Sheehan v. City and County of San Francisco, 743 F.3d 1211 (9th Cir. 2014).
28. See, e.g, Sheehan I, 743 F.3d at 1232-33 (describing the asserted ADA claim as claiming the police did no employ tactics that would have been likely to resolve the situation without injury to [Sheehan] or others”); Williams v. City of New York, 121 F. Supp. 3d 354, 367 (S.D.N.Y. 2015) (holding that a Title II claim was cognizable because the plaintiff was injured).
29. Seremeth v. Bd. of Cty. Comm’rs, 673 F.3d 333, 337 (4th Cir. 2012) (“In contrast, Seremeth has established an injury cognizable under the ADA. . . . Seremeth has sought counseling to address his ‘emotional issues [and] persistent anger’ stemming from the confrontation. . . . Seremeth’s injuries are greater than those emotions experienced by almost every person interrogated by the government, because his injuries stemmed from the very failure to communicate—an injury that would not have been inflicted on a person with full hearing capabilities.” (internal citations omitted)).
30. See generally 28 C.F.R. § 35.102 (“[T]his part applies to all services, programs, and activities provided or made available by public entities.”); U.S. Dep’t of Justice, Examples and Resources to Support Criminal Justice Entities in Compliance with Title II of the Americans with Disabilities Act (2010), https://www.ada.gov/cjta.html.
31. 29 U.S.C. § 794(b)(1)(A) (“For the purposes of this section, the term ‘program or activity’ means all of the operations of a department, agency, special purpose district, or other instrumentality of a local government.”); cf. 28 C.F.R. § 35.103(a) (applying that definition, from the Rehabilitation Act, to the interpretation of the ADA).
32. Helen L. v. DiDario, 46 F.3d 325, 331 (3d Cir. 1995) (“Because Title II was enacted with broad language and directed the Department of Justice to promulgate regulations as set forth above, the regulations which the Department promulgated are entitled to substantial deference. . . . [T]he agency’s regulations are “given controlling weight”(internal citations omitted)). See also Olmstead, 527 U.S. at 597-98 (“Because the [DOJ] is the agency directed by Congress to issue regulations implementing Title II, its views warrant respect.”)
33. Williams, 121 F. Supp. 3d at 365 n. 13 (“Title II applies to ‘all of the operations’ of the NYPD.”)
34. H.R. Rep. No. 101–485, pt. III, at 50 (1990), reprinted in 1990 U.S.C.C.A.N. 445, 473. Specifically, the first example of the ADA’s effect on public governments was to cut down on arrests of disabled persons for manifestations of their disabilities. Id.
35. 136 Cong. Rec. 11,461 (May 22, 1990) (statement of Rep. Meldon Levine).
36. See Brock v. Pierce Cty., 476 U.S. 253, 263 (1986) (“[S]tatements by individual legislators should not be given controlling effect, but when they are consistent with the statutory language . . . they provide evidence of Congress’ intent.”).
37. Tennessee v Lane, 541 U.S. 509, 531-32 (2004) (“But Title II does not require States to employ any and all means to make judicial services accessible to persons with disabilities, and it does not require States to compromise their essential eligibility criteria for public programs. It requires only ‘reasonable modifications’ that would not fundamentally alter the nature of the service provided, and only when the individual seeking modification is otherwise eligible for the service.).
38. Id. at 532.
39. Cf. Disabled in Action v. Bd. of Elections, 752 F.3d 189, 202 (2d Cir. 2014) (“Plaintiffs have, however, made a prima facie showing . . . It is [the government’s] responsibility, then, to show that the accommodations plaintiffs propose would be unreasonable to implement or impose an undue financial or administrative burden on its operation”(internal citations omitted)).
40. Id. (“In sum, we agree with the district court that the undisputed facts demonstrate that [the government] fails to provide individuals with meaningful access to its voting program and that the proposed accommodations . . . are reasonable . . . .”).
41. Sheehan I, 743 F.3d at 1215.
42. Id. at 1216.
44. Id. at 1233.
45. See id. at 1225-28 (vacating summary judgment city on a Fourth Amendment claim because questions existed whether “the officers continued to carry out the search or seizure in a reasonable manner when they decided to force the second entry, without taking Sheehan’s mental illness into account and in an apparent departure from their police officer training”); id. at 1233 (vacating summary judgment for the city on an ADA claim because “a reasonable jury nevertheless could find that the situation had been defused sufficiently, following the initial retreat from Sheehan’s room, to afford the officers an opportunity to wait for backup and to employ less confrontational tactics, including the accommodations that Sheehan asserts were necessary”). But see Cty. of Los Angeles v. Mendez, 137 S. Ct. 1539, 1546 (2017) (refusing to endorse a circuit rule that finds police used excessive force when “an officer intentionally or recklessly provokes a violent confrontation, if the provocation is an independent Fourth Amendment violation,” because it artificially creates a second constitutional violation from a single earlier one (quoting Billington v. Smith, 292 F.3d 1177 (9th Cir. 2002)). The Mendez court was reviewing a case concerning only constitutional violations. It is possible that the same antecedent force analysis—that earlier unconstitutional action cannot taint even later forces—would not apply in ADA cases since the cause of action already exists. That is, Mendez concerned creating a second cause of action out of whole cloth; ADA claims following unreasonable force do not present the same issue.
46. Such an approach was validated, for example in Roell, where police were held to be acting reasonably when an individual was running toward the police with a garden hose and basket as weapons, with which he hit police. See Roell v. Hamilton Cty., 870 F.3d 471, 477 (6th Cir. 2017). Even without a weapon, some courts have validated this type of behavior by police because of “exigency.” See De Boise v. Taser Int’l, 760 F.3d 892, 894-96 (2014) (Police were found to have not violated the ADA or Section 1983 when they tased a man standing outside his mother’s home, shouting he was God, after he had previously broken windows and thrown furniture but was no longer doing so).
47. Seremeth v. Bd. of Cty. Comm’rs, 673 F.3d 333, 335 (4th Cir. 2012).
49. Id. at 335-36.
50. Id. at 340.
51. Cf. Folkerts v. City of Waverly, 707 F.3d 975, 984 (8th Cir. 2013) (approving officer conduct that is not the “best practice” but is instead were “reasonable”); Vinson v. Thomas, 288 F.3d 1145, 1154 (9th Cir. 2002) (noting that a failure to engage in a good faith effort to make an accommodation for a disability will result in liability if “a reasonable accommodation would have been possible”); Bartlett v. New York State Bd. of Law Examiners, 970 F. Supp. 1094, 1151 n.42 (S.D.N.Y. 1997) (Sotomayor, J.) (noting that the defendants had not made a good faith effort to accommodate the plaintiff’s learning disability and thus had violated Title II), aff’d in part and vacated in part on other grounds, 226 F.3d 69 (2d Cir. 2000); see also Pierce v. District of Columbia, 128 F. Supp. 3d 250, 279 (D.D.C. 2015) (holding that deliberate indifference to a known disability and requests for accommodation violates Title II).