©2012 Brian S. Batterton, Attorney, PATC Legal & Liability Risk Management Institute (www.llrmi.com)
On March 12, 2012, the Fourth Circuit Court of Appeals decided Seremeth v. Frederick County, et al. [i] which discussed whether the Americans with Disabilities Act (ADA) applied in the context of a police investigation. The facts of Seremeth, taken directly from the case, are as follows:
On January 13, 2008, Seremeth was at home in Middletown, Maryland, with his four children and his parents. Seremeth, his children, and his parents are deaf. Seremeth and his daughter had an argument about whether the daughter had to go to bed, which followed an earlier incident that day when Seremeth told the daughter that she was not allowed to use the videophone to call her mother, Dawn Rood. The daughter then ran away from home, and Seremeth retrieved her from a nearby field 15 or 20 minutes later. The daughter then contacted Rood using a videophone. Rood placed a 9-1-1 call to the Frederick County Sheriff’s Department because she claims she saw Seremeth hit their daughter. During the 9-1-1 call, Rood told the operator that the family is deaf and there were no weapons at the house.
The parties differ somewhat on their accounts of the encounter that followed between the sheriff’s office and Seremeth and his family. The facts in the light most favorable to Seremeth, however, show the following. Prior to the deputies’ arrival at Seremeth’s house, dispatch warned the deputies that the entire family is deaf and advised them to use their headlights to alert the residents of their presence. Sheriff’s deputies had been to Seremeth’s house on three or four occasions for alleged domestic disputes. In each of the previous instances, Seremeth was able to communicate with the deputies with notes, and he was not charged with an offense. On one such occasion, a neighbor’s daughter served as an interpreter. This time, the dispatcher contacted Meg Ryan, an officer of the Frederick City Police Department who was learning American Sign Language (“ASL”), to help communicate with Seremeth.
Upon arriving at Seremeth’s house, the deputies shined their flashlights into the house to get the family’s attention. Seremeth opened the door. The officers entered with guns drawn, one with his weapon aimed at Seremeth. Deputy Travis Rohrer ordered Seremeth via hand motions to drop the remote control that he was holding. Rohrer then handcuffed Seremeth’s wrists behind his back. The deputies forced him to kneel outside on a cement walkway. This, Deputy Rohrer testified, was standard procedure for a domestic violence call. The handcuffs prevented Seremeth from writing notes or signing, so the deputies could not effectively interview Seremeth, and Seremeth could not ask why he was being detained. Seremeth tried to communicate vocally with the officers, and the officers responded by putting their fingers to their lips, indicating that Seremeth should remain silent. While Seremeth was outside and handcuffed for 30-45 minutes without shoes or a coat, an unknown officer gave him a note saying that the situation would be explained to him and that an interpreter was being called to the scene. The officers did not tell Seremeth why they were there.
The deputies woke the sleeping children and interviewed them without a qualified sign language interpreter. The sheriff’s office has professional qualified-interpreter services available to it by contract with Maryland Interpreting Services, d/b/a WeInterpret. The contract provides for an emergency interpreter to arrive within one hour of the request. Seremeth was brought inside, and Seremeth’s father, who is somewhat able to read lips and speak understandably, attempted to interpret for Seremeth and the officers. Ryan arrived 45 minutes into the encounter, carrying her ASL course book. Her efforts to communicate failed because of her lack of fluency. Through the questioning, with Seremeth’s father as an interpreter, and more than an hour into the encounter but about ten minutes after Ryan had arrived, the deputies determined no abuse had occurred, and they left. [ii]
Seremeth filed suit against Frederick County in federal district court in Maryland and alleged that the officers and county violated his rights under the Rehabilitation Act and Title II of the ADA by not making reasonable accommodations for him during the domestic violence investigation at his residence. The district court held the ADA did not apply and granted summary judgment for the county. Seremeth appealed to the Fourth Circuit Court of Appeals.
The issues before the court were (1) whether Seremeth suffered an injury to due a lack of accommodation of his disability, (2) whether the ADA applies in the context of a criminal investigation and (3) if the ADA does apply, whether the actions taken by the officers were reasonable based on the exigent circumstances that accompany domestic violence investigation.
The Fourth Circuit first noted that, for Seremeth to have a valid complaint under the ADA, he must have suffered an injury from the lack of accommodations that is more than any non-disabled person in a similar situation would have suffered. The court examined a Fourth Circuit case, Rosen v. Montgomery County [iii], in which Rosen, who was deaf, was subjected to a DUI investigation and subsequently arrested. The court stated:
Rosen’s allegations of injury implausible because he merely felt the “emotions experienced by almost every person stopped and arrested for drunk driving.” Id. In other words, Rosen could not show that he suffered an injury distinct from the embarrassment of being subjected to a roadside DUI stop. [iv]
The Fourth Circuit then contrasted the holding in Rosen to Seremeth’s case. The court stated:
Unlike Rosen, 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. [v] [internal citations omitted]
As such, the Fourth Circuit determined that Seremeth did suffer a cognizable injury based upon his disability.
The court then set out to determine whether the ADA applied in the context of a police investigation. First, the court noted that:
[T]he public services subchapter of the ADA, 42 U.S.C. § 12131, provides, “[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, or be subjected to discrimination by any such entity.” Id. § 12132. “Discrimination” includes “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability.” Id. § 12112(b)(5)(A) (from Title I’s definition). [vi]
The Fourth Circuit then noted that the Department of Justice regulations state that Title II (of the ADA) applies to anything that a public entity does and encompasses all actions of state and local governments. [vii] The court also examined various precedent from the Fourth, Sixth, Eighth and Tenth Circuits that support the proposition that the ADA does apply in the context of a police investigation. [viii] As such, the Fourth Circuit, in Seremeth’s case, held that the ADA does apply during a police investigation.
The court then turned to the final issue, which was whether the accommodations that the deputies attempted were reasonable in light of the exigencies that the deputies faced during the investigation. At the outset of its analysis of this issue, the court stated that although there is no separate exigent circumstance inquiry contained in the text of the ADA, various exigent circumstances may be considered when a court seeks to determine whether accommodations made by law enforcement were reasonable under the specific circumstances of a case.
Seremeth argued that (1) deputies should have handcuffed his hands in front of his body so that he could communicate by writing notes, and (2) deputies should have provided him with a qualified interpreter.
The court first stated:
A public entity must “make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.” 28 C.F.R. § 35.130(b)(7). With regard to communication-related disabilities, the regulations require public entities to “take appropriate steps to ensure that communications with . . . members of the public . . . with disabilities are as effective as communications with others,” id. § 35.160(a)(1), and to “furnish appropriate auxiliary aids and services where necessary to afford individuals with disabilities . . . an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity of a public entity,” id. § 35.160(b)(1). [ix] [emphasis added]
The court also stated that just because an “appropriate auxiliary aid and service” may cost money, is not a sufficient reason to reject a particular type of aid or service. [x] However, the court also stated:
the provision of accommodation [cannot] trump legitimate law enforcement needs when responding to an emergency situation. [xi] [emphasis added]
The Fourth Circuit then observed that during the investigation at Seremeth’s residence, the deputies handcuffed him behind his back and attempted to communicate with him but were unsuccessful. The deputies called another deputy who was training on sign language but she was unable to effectively communicate with Seremeth. Additionally, the deputies attempted to have Seremeth’s father, who was also deaf, assist in communicating with Seremeth but that was also unsuccessful. Then after about one hour and fifteen minutes, the deputies concluded no crime occurred and released Seremeth.
The court also noted that it would have taken about one hour to have a qualified interpreter come to their location. This would have delayed the investigation further. The court then held that the officer’s attempts and accommodations for communicating with Seremeth were reasonable. Additionally, the deputies were not required to rely on the initial complainant’s statement that no weapons were present or involved in the dispute. The court also noted that domestic violence calls are considered dangerous for law enforcement officers. Thus, the court stated it was reasonable to handcuff Seremeth behind his back, rather than in front of his body, in this situation.
The Fourth Circuit then stated:
Under the circumstances, it was reasonable for the deputies to attempt to accommodate Seremeth’s disability by calling Ryan, an ASL trainee, to assist in communication, and by attempting to use Seremeth’s father as an interpreter. It was reasonable even though these accommodations were not best practices—practices that in other circumstances could be evidence of a failure to reasonably accommodate. The accommodations afforded to Seremeth by the deputies were reasonable given their overwhelming need to obtain information quickly to protect themselves and others from possible violence. The further accommodations requested by the Appellant in his suit would have been unreasonable under the circumstances. [xii]
As such, the court of appeals affirmed the district court’s grant of summary judgment for the defendants in this case but for the reasons stated above, rather than the reasons initially articulated by the district court.
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
[i] No. 10-1711, 2012 U.S. App. LEXIS 5105 (4th Cir. Decided March 12, 2012)
[ii] Id. at 1-4
[iii] 121 F.3d 154 (4th Cir. 1997)
[iv] Seremeth at 8
[v] Id. at 9
[vi] Id. at 6
[vii] Id. at 12 (citing 28 C.F.R. Pt. 35, App. B; see also H.R. Rep. No. 485(II), 101st Cong., 2d Sess. 84 (1990) (stating that Title II is intended to apply to “all actions of state and local governments.”)
[viii] Id. at 13 (citing See Waller v. Danville, 556 F.3d 171, 174 (4th Cir. 2009) (noting that courts recognize HN10 an ADA case is established when “police properly arrest a suspect but fail to reasonably accommodate his disability during the investigation or arrest, causing him to suffer greater injury or indignity than other arrestees.”) (citing Gohier v. Enright, 186 F.3d 1216, 1220-21 (10th Cir. 1999); Gorman v. Bartch, 152 F.3d 907, 912-13 (8th Cir. 1998)); see also Johnson v. City of Saline, 151 F.3d 564, 569 (6th Cir. 1998) (finding that “the phrase ‘services, programs, or activities’ encompasses virtually everything that a public entity does”).
[ix] Id. at 15
[x] Id. at 17
[xii] Id. at 19-20