by Andrew Bre­land1

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.

* * * * *

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.

* * * * *

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.

* * * * *

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.


1. 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), (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).
[13] 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),
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.
43. Id.
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).
48. Id.
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).