OVERCOMING SECTION 1983 HURDLES USING THE ADA CHAPTER 17

OVERCOMING SECTION 1983 HURDLES:
USING THE AMERICANS WITH DISABILITIES ACT
TO RE-OPEN THE CIVIL RIGHTS DOOR AND
HOLD GOVERNMENT AND POLICE ACCOUNTABLE

TABLE OF CONTENTS
I. DOCTRINES OF DIFFICULTY IN §1983 ACTIONS………………………………………… PAGE 2
A. Qualified (―Good Faith‖) Immunity……………………………………………

PAGE

2

B. Interlocutory Appeal……………………………………………………………

PAGE

2

C. Municipal Immunity……………………………………………………………

PAGE

2

D. Appellate Courts‘ Propensity to Construe and Interpret Facts on Appeal………. PAGE 3
E. Sovereign Immunity……………………………………………………………... PAGE 3
II. AMERICANS WITH DISABILITIES ACT (ADA)…………………………………………... PAGE 3
A. Diminished Immunities…………………………………………………..……… PAGE 6
B. The Section 504 Safety Net……………………………………………………… PAGE 7
C. Class Actions and Standing……………………………………………………… PAGE 8
III. TITLE II POSSIBILITIES INSTEAD OF, OR IN ADDITION TO, §1983 ACTIONS…………... PAGE 9
A. Self-Evaluation and Transition Plan…………………………………………….. PAGE 9
B. Jails and Prisons………………………………………………………………….. PAGE 10
1. HIV……………………………………………………………………...…. PAGE 12
2. Suicidal and Mentally Ill Prisoners………………………………………... PAGE 12
3. Interpreters and Accommodating Blind Prisoners………………………… PAGE 14
4. Prison Litigation Reform Act……………………………………………… PAGE 14
5. Private Prison and Jail Facilities…………………………………………... PAGE 15
C. Police Activities………………………………………………………………….. PAGE 15
1. Use of Force………………………………………………………………... PAGE 16
2. Suicide Calls & Emergencies……………………………………………… PAGE 18
D. Parole and Probation…………………………………………………………….. PAGE 19
E. Administration of Justice………………………………………………………… PAGE 19
F. Damages & Jury Trials…………………………………………………………... PAGE 20
G. Attorney‘s Fees, Costs, and Litigation Expenses………………………………… PAGE 21
IV. CONCLUSION…………………………………………………………………………... PAGE 22

OVERCOMING SECTION 1983 HURDLES USING THE ADA CHAPTER 17

OVERCOMING SECTION 1983 HURDLES:
USING THE AMERICANS WITH DISABILITIES ACT
TO RE-OPEN THE CIVIL RIGHTS DOOR AND
HOLD GOVERNMENT AND POLICE ACCOUNTABLE
© James C. Harrington*
Federal court decisions in recent years have made civil rights cases more difficult for plaintiffs to litigate, and,
even when successful at trial level, problematic on appeal. Doctrines of qualified (―good faith‖) immunity,
interlocutory appeals from the denial of qualified immunity, municipal immunity, and sovereign immunity all
coalesce to make traditional civil rights actions under 42 U.S.C. §19831 ever more troublesome.
People with disabilities face an even greater hurdle in §1983 cases because the United States Supreme Court
has refused to accord them any cognizable class status or greater equal protection status than that which attends to
people in general.2 Despite the horrible history of maltreatment, segregation, and isolation at the hands of majority
society, discrimination against people with mental disabilities, remarkably enough, does not even rise to middle-tier
equal protection constitutional scrutiny.3
However, the Americans with Disabilities Act (―ADA‖),4 enacted in 1990, offers an alternative vehicle for
vindicating the rights of people with physical, developmental, and mental disabilities beyond that accorded by
§1983. The ADA, one of the most comprehensive civil rights laws passed by Congress, provides relief in a number
of situations where §1983 does not.
This article offers examples in which the ADA fills a void left by §1983 decisional law in the context of
government and law enforcement personnel. The examples are just that — not a comprehensive list, but suggestions
of possibilities for the practitioner, advocate, and court. The article also shows how, in some situations, §1983 and
the ADA go hand-in-hand to make a stronger lawsuit, and how at times the ADA can inform §1983 standards. The
examples here point toward the direction in which careful and creative civil rights litigation is moving, and where it
may move further in the future.
While it addresses §1983 and the ADA in terms of state and local government and their law enforcement
operations, this article may be helpful in a broader context. Although the ADA does not apply to the federal
government, the Rehabilitation Act of 1973 (―Section 504") 5 does. Regulations, legal theories, and decisional law
under Title II of the ADA and Section 504 are virtually the same, and the courts interpret them as such. Therefore,
the concepts put forward in this article have similar counterparts and court decisions under Section 504 with regard
to federal entities, and a similar interplay with a Bivens action.

* Director, Texas Civil Rights Project. Adjunct Professor of Law, The University of Texas. B.A., Pontifical College Josephinum, 1968; M.A. (Philosophy), University of Detroit, 1970; J.D., University of Detroit, 1973. Director, Americans with
Disabilities Act National Backup Center, 1995-1998. The author has been lead counsel or co-counsel in more than 350 ADA
cases. This is an updated and greatly expanded version of ―The ADA and Section 1983: Walking Hand-in-hand, Using the
Americans with Disabilities Act to Re-Open the Civil Rights Door,” 19 REV.LITIG.435 (Summer 2000) by the author.
1
References throughout the article to 42 U.S.C. §1983 (2000), which applies to state and local governments and officials,
parallel actions brought against the federal government and officers directly through a Bivens action under the Fourteenth
Amendment. See Bivens v. Six Unknown Agents, 403 U.S. 388 (1971) (allowing government agents to be sued for actions
conducted under governmental authority). The courts have steadily harmonized the case law under §1983 and Bivens. See, e.g.,
Evans v. Ball, 168 F.3d 856, 862-63 (5th Cir. 1999) (noting that ―a Bivens action parallels a §1983 action‖)
2
See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 442 (1985) (declaring that mental retardation is not a ―quasisuspect classification calling for a more exacting standard of judicial review than is normally accorded economic and social
legislation‖).
3
See id. at 444-47; see also Americans with Disabilities Act, 42 U.S.C. §12101(a)(3) (2000) (―discrimination against individuals with disabilities persists in such critical areas as employment, housing, public accommodations, education, transportation,
communication, recreation, institutionalization, health services, voting, and access to public services‖).
4
42 U.S.C. §§12101-12213.
5
See 29 U.S.C. §794.
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OVERCOMING SECTION 1983 HURDLES USING THE ADA CHAPTER 17

I. DOCTRINES OF DIFFICULTY IN §1983 ACTIONS
There are five major impediments to a plaintiff in typical §1983 litigation: qualified (―good faith‖) immunity,
interlocutory appeals from the denial of qualified immunity, sovereign immunity, municipal immunity, and the
appellate courts‘ propensity to review factual situations, a realm once left to the trial court. 6
A quick overview of these immunities and practices helps show the pitfalls in §1983 actions. The remainder of
the article suggests how the ADA, sometimes with the help of Section 504, can surmount these roadblocks in many
instances.
A. Qualified (“Good Faith”) Immunity
Qualified immunity comes into play when a public official claims to have acted in an objectively reasonable
fashion and the law under which the official operated at the time was not well-settled or clearly-established.7 This is
not to say that the officer‘s conduct itself was reasonable, but only that the official behaved in a not-unreasonable
fashion.8 This test, obviously, serves to make the civil rights plaintiff‘s burden almost insurmountable such that, as a
practical matter, officials quite often secure qualified immunity, either from the trial court or appellate tribunal. 9
Only the most flagrant and shocking conduct will defeat qualified immunity.10
B. Interlocutory Appeal
The U.S. Supreme Court has created an interlocutory appeal to review denial of summary judgment to an
official claiming qualified immunity; this saves the official the time and expense of a defense, and allows the official
to go about public service without looking over the shoulder, worrying about liability for every action. 11 On the
other hand, an interlocutory appeal puts the plaintiff in a bind because it delays the litigation by months, if not more,
and may require the plaintiff to overcome an immunity claim without being able first to complete anything but
perfunctory discovery.12
C. Municipal Immunity
Municipal liability is a high hurdle for civil rights plaintiffs to jump. To do so, Monell v. New York City
Department of Social Services13 requires that a civil right plaintiff prove that the implementation or execution of a

6

For an excellent overview of 42 U.S.C. §1983, see Martin A. Schwartz, ―Fundamentals of Section 1983 Litigation,‖ 731
PLI/Lit 73 (Oct. 2005).
7
See Saucier v. Katz, 533 U.S. 194, 200-07 (2001); Wilson v. Layne, 526 U.S. 603, 609 (1999); Siegert v. Gilley, 500 U.S.
226, 231-33 (1991); Harlow v. Fitzgerald, 457 U.S. 800 (1982); Gómez v. Toledo, 446 U.S. 635, 639-42 (1980). For an
excellent compilation of qualified immunity cases, in the U.S. Supreme Court and Circuit-by-Circuit, see Karen M. Blum,
―Section 1983: Qualified Immunity,‖ 748 PLI/Lit 79 (Oct. 2006).
8
See Steffanoff v. Hayes County, 154 F.3d 523, 525 (5 th Cir. 1998)(holding that the court must determine whether the
official's conduct was objectively reasonable in light of clearly established law as it existed at the time of the conduct in
question). See also Lisa R. Eskow & Kevin W. Cole, The Unqualified Paradoxes of Qualified Immunity: Reasonably Mistaken
Beliefs, Reasonably Unreasonable Conduct, and the Specter of Subjective Intent That Haunts Objective Legal Reasonableness,
50 BAYLOR L. REV. 869, 869-919 (1998).
9
See Alton v. Texas A&M University, 168 F.3d 196, 201 (5th Cir. 1999) (affirming summary judgment for Corps of Cadets
officials based on qualified immunity despite defendants‘ failure to take immediate action to protect a cadet from nightly beatings
and physical abuse after learning of earlier incidents); and see Snyder v. Trepagnier, 142 F.3d 791 (5th Cir.1998) (upholding
qualified immunity for police officer who shot unarmed man in the back at a range of six to ten inches, while the man was stuck
in the mud in a swamp).
10
See Hope v. Pelzer, 536 U.S. 730 (2002) (denying qualified immunity to guards who handcuffed prison inmate to
hitching post on two occasions, one of which lasted for seven hours without regular water or bathroom breaks); Malley v. Briggs,
475 U.S. 335, 341 (1986) (―As the qualified immunity defense has evolved, it provides ample protection to all but the plainly
incompetent or those who knowingly violate the law.‖).
11
See Harlow, 457 U.S. at 818 (ruling defendants were entitled to qualified immunity standard that permits the defeat of
insubstantial claims without resort to trial); Mitchell v. Forsyth, 472 U.S. 511, 526-27, 529 (1985) (holding that a district court's
denial of qualified immunity, to the extent it turns on an issue of law, is an appealable ―final decision‖ within the meaning of 28
U.S.C. §1291, notwithstanding the absence of a final judgment.).
12
See Shultea v. Wood, 47 F.3d 1427, 1433-34 (5th Cir. 1995) (en banc) (holding that qualified immunity issue must be
determined prior to unlimited discovery in order to avoid burdening official, but allowing some discovery to disprove immunity).
13
436 U.S. 658 (1978).
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OVERCOMING SECTION 1983 HURDLES USING THE ADA CHAPTER 17

municipality‘s policy, custom, or longstanding policy-like practice inflicted the alleged constitutional injury. 14 Even
if the plaintiff meets this burden, only actual damages, not punitive damages, are available.15
D. Appellate Courts’ Propensity to Construe and Interpret Facts on Appeal
The appellate bench‘s propensity to substitute its own interpretation of facts for that of judge or jury makes
municipal and qualified immunities even more problematic. The appeals judges contend they are not really
construing the facts but merely ascertaining whether they are sufficient for denying an immunity claim. 16 In reality,
they often become involved in fact-deciding, which favors the official.17 The role of appellate judges is not to
resolve fact issues, but to respect their rendition below, or, where there is lack of clarity, remand for further factfinding.
E. Sovereign Immunity
The Eleventh Amendment shields state government agencies from liability for damages.18 Courts consider suits
against state officials in their official capacities as against the person's office, and therefore against the state itself. 19
A plaintiff may not recover damages against the state, but are limited to an equitable remedy, such as declaratory and
prospective injunctive relief.20
II. AMERICANS WITH DISABILITIES ACT (ADA)
Most ADA cases arise under Titles I, II, and III of the Act.21 Title I deals with public and private employment.22
Title II generally requires government agencies to modify their programs and facilities to accommodate people with
disabilities.23 Before the advent of the ADA, Section 504 (the Rehabilitation Act of 1973) had imposed the same

14

Monell, 436 U.S. at 690-92 (finding a municipality may be subject to suit under §1983 if a policy or custom is the source
of the constitutional or statutory deprivation); see Snyder, 142 F.3d 791 (granting City of New Orleans municipal immunity for
actions of a police officer who shot an unarmed man in the back at a range of six to ten inches while the man was stuck in swamp
mud). For an excellent compilation of municipal immunity cases over the last twenty years, see Karen M. Blum, ―Local
Government Liability under Section 1983,‖ 749 PLI/Lit 7 (Oct. 2006).
15
Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981). See Carey v. Piphus, 435 U.S. 247, 256-257 (1978) (―To the extent
that Congress intended that awards under §1983 should deter the deprivation of constitutional rights, there is no evidence that it
meant to establish a deterrent more formidable than that inherent in the award of compensatory damages.‖) (citation omitted).
16
Tamez v. City of San Marcos, 118 F.3d 1085, 1098 (5th Cir. 1997) (affirming magistrate judge‘s overturning of jury
verdict and granting judgment as a matter of law because officer who entered house without a warrant and shot resident enjoyed
qualified immunity), cert. denied, 522 U.S. 1125 (1998). See Snyder, 142 F.3d at 794-99 (affirming a finding of qualified
immunity for police officer who shot an unarmed man who was not resisting arrest).
17
See, e.g., Colston v. Barnhart, 130 F.3d 96, 99 (5th Cir. 1997) (panel decision granting police immunity in shooting of
unarmed automobile passenger), reh’g en banc denied by equally divided court, Colston v. Barnhart, 146 F.3d 282, 285-86 (5th
Cir. 1998).
18
See U.S. CONST. amend. XI; see also Cory v. White, 457 U.S. 85, 89-91 (1982) (―the Eleventh Amendment bars suits
against state officers unless they are … acting contrary to federal law or … the authority of state law‖).
19
See Brandon v. Holt, 469 U.S. 464, 471-72 (1985).
20
See Edelman v. Jordan, 415 U.S. 651, 663-69 (1974)
21
42 U.S.C. §§ 12101-12189.
22
See 42 U.S.C. §§12111-12117.
23
See id. §§12131-12165. Title II of the ADA provides 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." 42 U.S.C. §12132. See generally 28 C.F.R. §35.130(b)(1):
A public entity, in providing any aid, benefit, or service, may not, directly or through contractual, licensing, or other
arrangements, on the basis of disability –
(i) Deny a qualified individual with a disability the opportunity to participate in or benefit from the aid, benefit, or service;
(ii) Afford a qualified individual with a disability an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others;
(iii) Provide a qualified individual with a disability with an aid, benefit, or service that is not as effective in
affording equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as that provided to others;
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OVERCOMING SECTION 1983 HURDLES USING THE ADA CHAPTER 17

obligations on entities receiving federal funds,24 but compliance was spotty and sporadic, as was litigation under the
statute.25 Thus, the duties to accommodate and modify are not new as to governmental entities that receive federal
monies, and the vast majority of such entities have received federal funds. As this article shows, the ADA has
served to revitalize Section 504 and, in many instances, turn it into a helpmate.26
Title III was a great expansion over Section 504 in that the ADA extended federal disability law into the private
sector. It requires private businesses, as public accommodations, to modify their programs and facilities in the same
fashion as demanded of governmental entities.27
The ADA prohibits discrimination based on disability, perceived disability, or association with a person with a
disability.28 On the flip side of the same coin, the ADA also requires reasonable modification to accommodate
individuals with disabilities.29 The exceptions are few;30and the exemptions, limited.31 Titles II and III, on which
this article focuses, may be enforced by the Department of Justice or through a private cause of action for injunctive,
declaratory, and, in the case of Title II, monetary relief (as well as attorneys‘ fees, costs, and litigation expenses) 32
Title II of the ADA generally was modeled after, and restates, Section 504.33
One may collect damages through a private cause of action under Title II to the extent that one may collect
damages under Section 504 in the circuit in which the action arises.34 In most circuits, damages are available, but
only for intentional violations of Section 504,35 although, as this article points out in the following pages, ―intentional‖ for disability actions may not be as strictly construed as ―intentional‖ for §1983 actions.
Title III of the ADA extends the principles of Section 504 and Title II to the private sector, except that damages
are not allowed in a private cause of action.36
Disability "discrimination," however, "differs from discrimination in the constitutional sense" because the ADA
and Section 504 contain their own definitions of discrimination.37 For example, discrimination may include a
(iv) Provide different or separate aids, benefits, or services to individuals with disabilities or to any class of
individuals with disabilities than is provided to others unless such action is necessary to provide qualified individuals
with disabilities with aids, benefits, or services that are as effective as those provided to others ....
24
See 29 U.S.C. §794.
25
See, e.g., Washington v. Indiana High School Ath. Ass'n, 181 F.3d 840, 845 n.6 (7th Cir. 1999) (holding that Rehabilitation Act required a basketball association to allow a disabled student to finish his season).
26
For two excellent resources on disability law, see Laura Friesen Rothstein & Julia Rothstein, Disabilities and the Law
(Thomson/West 2006); and Laura F. Rothstein, Disability Law: Cases, Materials, Problems (4th Ed.) (Matthew Bender 2006).
27
See 42 U.S.C. §§12181-12189.
28
42 U.S.C. §§12101(2), 12132, 12182(b)(2).
29
Id. §§12182(b)(2)(A)(ii).
30
Id. §12182(3) (excepting ADA applicability when the individual poses a direct threat to the health or safety of others).
31
Id. §12187 (exempting religious organizations and some private clubs).
32
Id. §§12133, 12188.
33
See generally Mark C. Weber, ―Disability Discrimination by State and Local Government: The Relationship Between
Section 504 of the Rehabilitation Act and Title II of the Americans with Disabilities Act,‖ 36 WM. & MARY L. REV. 1089 (1995).
34
42 U.S.C. §12201(a). However, damages are not recoverable against the federal government under Section 504 because
the Supreme Court has found no waiver of sovereign immunity by the United States for Section 504 purposes. Lane v. Pea, 518
U.S. 187, 192 (1996) (reinstatement, but not damages, allowed for Merchant Marine Academy cadet, whose enrollment was
wrongly terminated because of his recently diagnosed diabetes mellitus).
35
See, e.g., Powers v. MJB Acquisition Corp., 184 F.3d 1147, 1153 (10th Cir. 1999) (reversing $560,000 jury award to
paraplegic technical school student and remanding for new trial with a jury instruction on intentional discrimination); Ferguson v.
City of Phoenix, 157 F.3d 668, 674 (9th Cir. 1998) (holding that deaf and hearing-impaired users of 9-1-1 emergency telephone
service not entitled to damages under Title II and Section 504, absent discriminatory intent); Wood v. President & Trustees of
Spring Hill College, 978 F.2d 1214, 1219-20 (11th Cir. 1992) (upholding jury verdict that schizophrenic student failed to show
college intentionally constructively dismissed her because of her disability); Carter v. Orleans Parish Public Schools, 725 F.2d
261, 264 (5th Cir. 1984) (father failed to prove that school had violated the Rehabilitation Act with respect to placement of his
children in classes for the mentally retarded students); United States v. Forest Dale, Inc., 818 F.Supp 954 (N.D. Tex. Dallas
1993) (―any award of monetary damages under Section 504 requires a finding of intentional discrimination.... Further, damages
under Section 504 are limited to retrospective equitable damages; punitive damages and damages for emotional distress, mental
suffering, and the like are not available under Section 504.‖), citing Shinault v. American Airlines, Inc., 738 F.Supp. 193, 198-99
(S.D.Miss.1990), aff'd in part and rev'd in part, 936 F.2d 796 (5th Cir.1991).
36
See 42 U.S.C. §12184.
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OVERCOMING SECTION 1983 HURDLES USING THE ADA CHAPTER 17

defendant's failure to make reasonable accommodations to the needs of a disabled person. 38 In a sense, there are
three theories of discrimination under the statutes: (1) intentional discrimination; (2) discriminatory impact; and (3)
a refusal to make a reasonable modification or accommodation.39
While the legal mandate requires reasonable accommodation, whether an accommodation is "reasonable"
requires consideration of various factors, such as: (1) the size, facilities, and resources of an entity, (2) the nature
and cost of the accommodation, (3) the extent to which the accommodation is effective in compensating for the
person‘s disability, and (4) whether the accommodation would require a fundamental alteration in the nature of an
entity's program.40
As such, whether an accommodation is reasonable is generally a question of fact, precluding resolution on
summary judgment.41 This well-accepted legal proposition obviates the difficult summary judgment motions in
§1983 practice.
Pursuant to Congress‘ direction, the Department of Justice promulgated the Americans with Disability Act
Accessibility Guidelines (ADAAG) for the purpose of implementing Title III. 42 Although the ADA does not require
that Title II entities use ADAAG, the courts and the Department of Justice generally apply ADAAG to Title II

37

Melton v. Dallas Area Rapid Transit, 391 F.3d 669, 672 (5th Cir. 2004) (acknowledging that failure to reasonably modify
paratransit system would constitute discrimination prohibited by the ADA and the Rehabilitation Act, but finding paratransit
operation compliant with both statutes).
38
See id. (under Title II of the ADA "public entities generally are required ... to make reasonable modifications to avoid
discrimination on the basis of disability"); see also Tennessee v. Lane, 541 U.S. 509, 531 (2004) (Congress recognized "that
failure to accommodate persons with disabilities will often have the same practical effect as outright exclusion" or discrimination)
(failure to make courthouse accessible); Henrietta D. v. Bloomberg, 331 F.3d 261, 273 (2d Cir. 2003) (discussing claims of
discrimination based on failure to make a "reasonable accommodation" for failing to provide meaningful access to public
assistance programs, benefits, and services for persons with AIDS or HIV-related illnesses).
39
Swenson v. Lincoln County School Dist. No. 2, 260 F.Supp.2d 1136, 1144 (D.Wyo.2003) (claim by student with cerebral
palsy, confined to a wheelchair, that school was inaccessible). See Delano-Pyle v. Victoria County, 302 F.3d 567, 575 (5th
Cir.2002) (noting differences between constitutional claims and the ADA, including the fact that there is ―no 'deliberate
indifference' standard applicable to public entities‖ for purposes of the ADA or Section 504) (upholding $230,000 jury award to
man, alleging that county violated ADA and Section 504 when deputy failed to take into account his serious hearing impairment
during process of arresting him for driving while intoxicated and holding that evidence was sufficient to support jury's finding of
intentional discrimination)..
40
See, e.g., 45 C.F.R. §84.12(c)(1-3); School Bd. of Nassau County v. Arline, 480 U.S. 273, 288 n.17 (1987) (holding that
school teacher with tuberculosis was a "handicapped individual" within meaning of Rehabilitation Act and remanding to
determine whether she was otherwise qualified for her position); Nathanson v. Medical College of Penn., 926 F.2d 1368, 1386
(3d Cir.1991)(remanding case to determine whether medical college knew that student's condition was disability and had failed to
provide reasonable accommodations, required by Section 504).
41
See, e.g., Buskirk v. Apollo Metals, 307 F.3d 160, 170-71 (3d Cir.2002) ("Generally, the question of whether a proposed
accommodation is reasonable is a question of fact")(Title I); Chisolm v. McManimon, 275 F.3d 315, 327 (3d Cir.
2001)("[g]enerally, the effectiveness of auxiliary aids and/or services is a question of fact precluding summary judgment")(reversing summary judgment in suit by hearing-impaired detainee against pretrial detainment facility and county court
system); Kennedy v. Dresser Rand Co., 193 F.3d 120, 122 (2d Cir.1999) ("the question of whether a proposed accommodation is
reasonable is fact-specific and must be evaluated on a case-by-case basis"); Oconomowoc Residential Programs v. City of
Milwaukee, 300 F.3d 775, 784 (7th Cir.2002) ("Whether a requested accommodation is reasonable or not is a highly fact-specific
inquiry and requires balancing the needs of the parties")(upholding summary judgement that city wrongly denied residential
program for brain injured and developmentally disabled individuals a zoning variance); Niece v. Fitzner, 922 F.Supp 1208, 1218
(E.D. Mich.1996)(the "reasonableness of an accommodation under the ADA is a question of fact appropriate for resolution by the
trier of fact")(denying prison‘s motion to dismiss ADA and Section 504 case by prisoner and his deaf fiancé to accommodate her
disability with the TDD/relay system
42
See 42 U.S.C. §12204; 28 C.F.R. pt.36, App. A (Standards for Accessible Design) & App. B (Analysis and Response to
Comments). See also ADA Standards for Accessible Design, U.S. Dept. of Justice, http://www.usdoj.gov/crt/ada/stdspdf.htm,
sometimes also referred to as Justice Department Standards of Accessible Design (JDSAD). Paralyzed Veterans of America v.
Ellerbe Becket &Architects & Engineers, P.C., 950 F.Supp 389, 390 (D.D.C.,1996). The U.S. Department of Justice ―ADA
Home Page‖ is an invaluable resource for the ADA, Section 504, and other disability rights laws.
See
http://www.usdoj.gov/crt/ada/adahom1.htm.
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OVERCOMING SECTION 1983 HURDLES USING THE ADA CHAPTER 17

entities, reasoning that, when Title II requires a government entity to remove barriers in buildings that pre-date the
ADA or to construct new buildings in compliance with the ADA, ADAAG provides appropriate standards. 43
The ADA also contains an anti-retaliation proviso, protecting any individual making a charge, testifying,
assisting, or participating in any manner in an investigation, proceeding, or hearing under the ADA. 44
A. Diminished Immunities
Because Title II ADA actions lie against state and local government entities, and not against individuals
employed by those entities (although an individual‘s actions may cause liability on an agency theory), 45 issues of
qualified (―good faith‖) immunity do not arise,46 and thus neither does the interlocutory appeal problem. Nor is
there municipal immunity.
Until recently, the law was unsettled as to the extent to which the ADA overcomes state sovereign immunity for
Fourteenth Amendment purposes.47 However, in Board of Trustees of University of Alabama v. Garrett,48 the
Supreme Court decided Title I of the ADA was an invalid use of Congress‘ §5 enforcement power under the
Fourteenth Amendment. The court concluded Title I was unsupported by sufficient evidence of a history of
discrimination, and, in any case, was not a proportional remedy. Therefore, with respect to Title I, Congress did not
validly abrogate the States‘ Eleventh Amendment immunity. As a result, private citizens may not sue the States for
money damages under Title I.49 As noted, Garrett was limited to Title I.
Three years later, in Tennessee v. Lane, the Court addressed the same question with respect to Title II. The
Court distinguished Garrett in determining that Congress had acted properly within its §5 powers and had validly
abrogated Eleventh Amendment immunity from money damages in some contexts.50 Lane implicated the fundamental right of access to the courts, and the Court found that Congress had intended to protect that right through the
ADA. The Court‘s holding is limited in that respect and involves the pairing of the ADA with a fundamental right.
In both Garrett and Lane, the Court relied on reasoning from City of Boerne v. Flores51 to determine whether
Congress had legitimately exercised its §5 authority in each instance. 52 Thus, courts will apply this framework as
they consider the validity of Title II with respect to rights besides access to the courts.
First, a court must identify the constitutional rights Congress sought to enforce when it enacted Title II. In
Lane, the Supreme Curt found that Title II sought to enforce the prohibition against irrational discrimination based

43

See, e.g., Garcia v. S.U.N.Y Health Sciences Center of Brooklyn, 280 F.3d 98, 107 (2nd Cir. 2001); Walker v. Snyder,
213 F.3d 344, 346 (7th Cir. 2000); Alsbrook v. City of Amumelle, 184 F.3d 999, 1004 n.8 (8th Cir. 1999) (en banc); Deck v.
City of Toledo, 29 F.Supp.2d 431, 433 (N.D. Ohio 1998); Paralyzed Veterans of Am. v. Ellerbe Becket Architects & Eng'rs,
P.C., 950 F.Supp 393, 395 (D.D.C. 1996); AMERICANS WITH DISABILITIES ACT: ADA COMPLIANCE GUIDE ¶840 (Thompson
Publishing Group, 1994).
44
42 U.S.C. §12204.
45
See Montez v. Romer, 32 F.Supp.2d 1235, 1240 (D. Colo. 1999) (―individual defendants in their individual capacities are
not properly subject to suit under the Rehabilitation Act or the Disability Act‖). But see Henrietta D., 331 F.3d at 289 (―[n]either
§504 nor Title II displays any intent by Congress to bar a suit against state officials in their official capacities for injunctive
relief‖); and see Board of Trustees of Univ. of Alabama v. Garrett, 531 U.S. 356, 374 n.9 (2001), citing Ex parte Young, 209
U.S. 123 (1908).
46
See 28 C.F.R. §35.178 (2006). In one case, the Fifth Circuit seemed to imply, albeit in a brief per curiam opinion, that a
state prison official might lose §1983 qualified immunity in a health care case if the trial court were to find the ADA, as applied
in the case, constituted settled law and the official did not act objectively reasonably in the situation. See Hall v. Thomas, 190
F.3d 693, 695-97 (5th Cir. 1999) (affirming summary judgment against arrestee with diabetes, kidney condition, and epilepsy on
§1983 and ADA claims against Harris County jail officials).
47
Congress passed the ADA pursuant to the Commerce Clause (U.S. Const. Art. I) and §5 of the Fourteenth Amendment,
and specifically overrode state sovereign immunity. 42 U.S.C. §§12101(b)(4), 12202. However, the U.S. Supreme Court since
held that Commerce Clause legislation cannot abrogate state sovereign immunity, leaving only §5 as the only viable underpinning
for Title II. See Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996) (Indian tribe filed suit against Florida to compel
negotiations under the federal Indian Gaming Regulatory Act).
48
Garrett, 531 U.S. at 374.
49
Id. at 370-74.
50
Lane, 541 U.S. at 513-34.
51
City of Boerne v. Flores, 521 U.S. 507 (1997).
52
Lane, 541 U.S. at 522-33; Garrett, 531 U.S. at 370-74.
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OVERCOMING SECTION 1983 HURDLES USING THE ADA CHAPTER 17

on disability, but that, as applied to a case involving access to the courts, it also implicated other constitutional rights
such as the First, Sixth, and Fourteenth Amendments.53
Next, courts must consider whether Congress identified a pattern of unconstitutional discrimination by the
states against people with disabilities.54 Whereas in Garrett the Court found the record of unconstitutional
employment discrimination on the basis of disability insufficient to support the broad remedies of Title I, in Lane,
the high court found the evidence of discriminatory provision of public services ample under Title II. 55
Finally, a court must consider whether the remedy provided by Title II is congruent and proportional to the
violation. Whereas in Garrett, the Supreme Court took issue with the elements of Title I as overly broad and rigid,
in Lane, the Court was impressed by Title II‘s limitations: that it requires only ―reasonable modifications‖ which
will not constitute an ―undue‖ financial or administrative burden. 56 The varying means by which an entity could
comply with Title II and the standards which were tailored differently toward existing as opposed to new facilities
supported the court‘s finding that Title II was a congruent and proportional remedy for unconstitutional discrimination against people with disabilities in accessing the courts.
Two years after Lane, the Supreme Court decided another sovereign immunity case involving Title II, United
States v. Georgia, holding that a prisoner could maintain a damages action, alleging conditions of confinement
violated Title II, declaring:
While the Members of this Court have disagreed regarding the scope of Congress's ―prophylactic‖
enforcement powers under §5 of the Fourteenth Amendment ... no one doubts that §5 grants Congress the power to ―enforce ... the provisions‖ of the Amendment by creating private remedies
against the States for actual violations of those provisions.... This enforcement power includes the
power to abrogate state sovereign immunity by authorizing private suits for damages against the
States.... Thus, insofar as Title II creates a private cause of action for damages against the States for
conduct that actually violates the Fourteenth Amendment, Title II validly abrogates state sovereign
immunity.57
United States v. Georgia will facilitate suits by prisoners with disabilities against jails and prisons. It remains
to be seen how Title II will fare in the circuits as applied to rights other than access to the courts.58 The Eleventh
Circuit recently extended Lane to public education.59
One should note the Eleventh Amendment problem arises only with regard to damages actions. Suits for
injunctive and declaratory relief remain completely viable, whether under an Ex parte Young theory against officials
in their official capacities or even directly against the entity since there is no practical or legal difference. 60
B. The Section 504 Safety Net
However, to the extent that Title II is limited by state sovereign immunity in future cases, Section 504 will pick
up the slack.61 Section 504 rests on the Spending Clause: accepting federal money has an agreed-upon quid pro quo

53

Lane, 541 U.S. at 522-23.
See Lane, 541 U.S. at 541; Garrett, 531 U.S. at 368.
55
Garrett, 531 U.S. at 370-72; Lane, 541 U.S. at 529-31.
56
See Lane, 541 U.S. at 531-33.
57
United States v. Georgia, 126 S.Ct 877, 882 (2006) (citations omitted).
58
See Pace v. Bogalusa City School Bd., 403 F.3d 272, 303 (5th Cir. 2005) (declining to decide whether Title II was valid
exercise of Congress‘ enforcement power under the Fourteenth Amendment as applied to access to public education).
59
Ass'n for Disabled Americans., Inc. v. Fla. Int'l Univ., 405 F.3d 954, 957-59 (11th Cir. 2005) (deciding that Title II is a
valid exercise of §5 authority as applied to access to public education).
60
See Bd. of Trustees of Univ. of Alabama, 531 U.S. at 374 n. 9, citing Ex parte Young, 209 U.S. 123 (1908); and see
Miller v. King, 384 F.3d 1248 (11th Cir. 2004); and Henrietta D., 331 F.3d at 288 (a suit against a state official in his or her
official capacity is in effect against a "public entity" and is authorized by Title II). See also McCarthy v. Hawkins, 381 F.3d 407,
417 (5th Cir. 2004); Chaffin v. Kansas State Fair Bd., 348 F.3d 850, 866-67 (10th Cir. 2003); Henrietta D., 331 F.3d at 288;
Bruggeman ex rel. Bruggeman v. Blagojevich, 324 F.3d 906, 913 (7th Cir. 2003); Miranda B. v. Kitzhaber, 328 F.3d 1181, 1187
(9th Cir.2003); Carten v. Kent State Univ., 282 F.3d 391, 396 (6th Cir. 2002); Randolph v. Rodgers, 253 F.3d 342, 348 (8th Cir.
2001); Armstrong v. Wilson, 124 F.3d 1019, 1025-26 (9th Cir. 1997) (permitting prisoners and parolees to maintain suit for
wide-ranging reforms of state prison system, based on violations of the ADA and Section 504).
61
Title II monetary liability still continues to run against local government entities because sovereign immunity does not
attach to them.
54

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OVERCOMING SECTION 1983 HURDLES USING THE ADA CHAPTER 17

obligation to implement disability law requirements62 that are virtually the same as those required by the ADA63 and
vice versa.64
The courts are clear that accepting federal funds is a waiver of sovereign immunity. 65
In fact, if a Section 504 claim is paired with an ADA claim, a court may well avoid deciding the sovereign
immunity issue under the ADA since there was a waiver under Section 504 and there is no practical difference
between the two disability laws.66
C. Class Actions and Standing
As a general observation, the ADA for all practical purposes functions as a class statute when it comes to Title
II access to government facilities and program, and framing relief. Congress devised the law that way. Its
prospective plan of relief was through injunctive and declaratory relief, indicia of a class statute.67 Thus, with some
exceptions, there is little reason to file ADA cases as class actions.
Standing under the ADA is generous, and, as some of the subsequent footnotes observe, has great ramifications
in actions against government entities.
The ADA and the Rehabilitation Act, respectively, provide relief to any person alleging discrimination on the
basis of a disability (ADA), and any person aggrieved by the discrimination of a person on the basis of his or her
disability (Rehabilitation Act).
Although the ADA states that no qualified individual with a disability shall be denied benefits by a public
entity,68 the ADA's Title II enforcement provision, states that the statute extends its remedies to "any person alleging
discrimination on the basis of disability."69 Similarly, the Rehabilitation Act protects "any person aggrieved" by
discrimination because of his or her disability.70
As noted already, Congress granted authority to the Department of Justice to implement regulations pertaining
to Title II. According to those regulations, a public entity shall not exclude or otherwise deny equal services,
programs, or activities to an individual or entity because of the known disability of an individual with whom the
individual or entity is known to have a relationship or association.71
In adopting these regulations, the Department of Justice was following the intent of Congress, which directed
that Title II should be read to incorporate the provisions of Titles I and III that expressly define discrimination to
include conduct based on relationship or association with persons with disabilities. 72
In addition, the appendix to the regulations explains "the individuals covered … are any individuals who are
discriminated against because of their known association with an individual with a disability."73
This associational standing rule applies not only to individuals, but also to entities. 74 For example, as the
regulations note, if a local government refused to allow a theater company to use a school auditorium because it had
62

42 U.S.C. §2000d-7. See, e.g., Pace, 403 F.3d at 282-89 (5th Cir. 2005) (acceptance of federal funds constituted knowing
waiver of immunity under Rehabilitation Act); Barbour v. Washington Metropolitan Area Transit Authority, 374 F.3d 1161 (D.C.
Cir. 2004) (deciding that accepting federal funds constituted knowing waiver of immunity under Rehabilitation Act).
63
See 42 U.S.C. §12133 (stating that the "remedies, procedures, and rights" of Title II of the ADA are the same as those set
forth in the Rehabilitation Act).
64
See 42 U.S.C. §§12134(b), 12201(a) (requiring consistency between Section 504 and Title II); and see Rogers v. Department of Health, Envtl. Control, 174 F.3d 431, 433-34 (4th Cir. 1999) (―Relevant Rehabilitation Act precedent, then, may
inform our understanding of what [Title II] requires.): Zukle v. Board of Regents of Univ. of Cal., 166 F.3d 1041, 1045 n.11 (9th
Cir. 1999) (id.).
65
Miller v. Texas Tech University Health Sciences Center, 421 F.3d 342 (5th Cir. 2005) (en banc), cert. denied by Louisiana Dept. of Educ. v. Johnson, 126 S.Ct 1332, 164 L.Ed.2d 49 (2006); Barbour, 374 F.3d 1161.
66
See ,e.g., Bennett-Nelson v. Louisiana Bd. of Regents, 431 F.3d 448, 455 (5th Cir. 2005) (two deaf students brought
claims under Section 504 and Title II that university had failed to provide them "reasonable accommodations," namely
interpreters or note takers).
67
See 42 U.S.C. §12188.
68
Id. §12132.
69
Id. §12133.
70
29 U.S.C. §794a(a)(2).
71
28 C.F.R. §35.130(g).
72
42 U.S.C. §§12112(b)(4), 12182(b)(1)(E).
73
28 C.F.R., pt. 35, App. A to 28, §35.130(g).
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OVERCOMING SECTION 1983 HURDLES USING THE ADA CHAPTER 17

recently performed for an audience of individuals with HIV, the theater company would have a right of action
because of the wrong done to it.75
Likewise, associational standing extends to familial relationships with an individual who has a disability.
Companions, health care providers, employees of social service agencies, and others who provide professional
services to persons with disabilities. They all would have a cause of action for discrimination because of their
association with persons with disabilities.76 In this context, then, standing under the ADA and Section 504 may be
more expansive than the state law standing that is usually incorporated into federal proceedings by virtue of 42
U.S.C. §1988.77
III. TITLE II POSSIBILITIES INSTEAD OF, OR IN ADDITION TO, §1983 ACTIONS
This section offers situations where Title II of the ADA (and Section 504) may be used instead of, or in
conjunction with, §1983 to strengthen civil rights actions. As the following comments show, there is no end to legal
creativity in situations that pertain to the civil rights of people with disabilities.
A. Self-Evaluation and Transition Plan
Civil rights cases often arise because of nonexistent policies and inadequate training. The remedies sought by
litigation are improved policies and additional training. One area of the ADA offers great help in this situation, but
is frequently overlooked by government entities: the requirement of a self-evaluation and subsequent modifications
of the program, and, if physical alterations are required, a transition time or timetable within which the agency will
make the alterations.78
The regulations promulgated by the Department of Justice to implement Part A of Title II of the ADA require
each government entity to conduct a self-evaluation of its programs and services (or the lack thereof) related to
persons with disabilities:
(a) A public entity shall, within one year of the effective date of this part [that is, by January 26, 1993],
evaluate its current services, policies, and practices, and the effects thereof, that do not or may not meet
the requirements of this part and, to the extent modification of any such services, policies, and practices is required, the public entity shall proceed to make the necessary modifications.
(b) A public entity shall provide an opportunity to interested persons, including individuals with
disabilities or organizations representing individuals with disabilities, to participate in the selfevaluation process by submitting comments.79
Section 504 has the same requirements.80 Thus, as of 1978, when Section 504 regulations went into effect, a
government entity should have done the self-evaluation and subsequent modifications, and met physical building
access requirements. This makes it more difficult for a public agency to explain why it has not met its disability law
mandate nearly thirty years later, which often is a powerful argument for a disability rights plaintiff. 81
74

See, e.g., MX Group, Inc. v. City of Covington, 293 F.3d 326 (6th Cir. 2002) (drug treatment provider challenging denial
of zoning permit for methadone clinic and asserting claims under ADA and Section 504); Innovative Health Sys. Inc. v. City of
White Plains, 117 F.3d 37, 44 (2nd Cir. 1997) (Title II and the Rehabilitation Act apply to discriminatory zoning decisions
against rehabilitation center), overruled on other grounds by Zervos v. Verizon New York, 252 F.3d 163, 171 n.7 (2nd Cir.
2001).
75
28 C.F.R., pt. 35, App. A to 28, §35.130(g).
76
Id.
77
See, e.g., L.J. McCoy, et al. v. Texas Dept. of Criminal Justice, et al., 2006 WL 2331055 (S.D.Tex. Aug 09, 2006) (No.
C.A. C 05 370) (unpublished) (denying parties‘ summary judgment motions and finding that standing under Texas wrongful
death and survival statutes was superseded by standing under ADA and Section 504) (monetary settlement of case, pairing Title
II and Eighth Amendment, where prisoner died during asthma attack, after being denied proper medical care) (the author was cocounsel for plaintiffs).
78
The ADA requires retrofitting and alterations of buildings that existed as of January 26, 1992, to the extent that doing so
does not cause an ―undue burden‖ on the agency. Facilities built, or substantially renovated, after that date must be in compliance
with the ADA, without exception. See 42 U.S.C. §2182(b) (2)(A)(iii); 28 C.F.R. §35.151.
79
28 C.F.R. §35.105(a)-(b); see 28 C.F.R. §35.151.
80
See 28 C.F.R. § 35.105(d) 150(d)(4);.
81
To have standing to raise the issue of no self-evaluation, a plaintiff need show only a causal connection between the selfevaluation and a concrete threat of discrimination, but not a causal connection between no self-evaluation and a particular injury.
See Tyler v. Kansas Lottery, 14 F.Supp.2d 1220, 1225 (D. Kan. 1998).
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OVERCOMING SECTION 1983 HURDLES USING THE ADA CHAPTER 17

Government agencies tend to be more proactive on physical access issues and deficient on program access
issues. For example, a county sheriff may see to it that the jail and department offices are physically accessible, but
fail completely to conduct any self-evaluation of procedures and training for law enforcement personnel about how
to handle encounters with persons who have mental illness or another disability. When appropriate training and
policies are lacking, a creative plaintiff can use this lack of self-evaluation and modification to push for better
training programs and proper policies.
The absence of ill motive or intent is not an excuse for failing to conduct the Title II self-evaluation and
program modification.82 Nor does the excuse of inadequate government appropriations or lack of funds justify the
failure to conduct a thorough self-evaluation and subsequent program and facility modification.83
Therefore, a beneficiary of the ADA may be entitled to a declaratory judgment concerning a government
entity‘s failure to conduct a self-evaluation plan under Section 504 and the ADA and injunctive relief, requiring it to
modify its programs and services to accommodate persons with disabilities. This may well entail implementation of
new ADA-specific policies and training procedures. However, at least two circuits have ruled that the requirements
to perform a self-evaluation and formulate a transition plan are not enforceable by individual citizens through a
private cause of action, but only by the Department of Justice.84
Nevertheless, failure to comply with this federal mandate might inform a §1983 deliberate indifference claim
against a municipality by a person with a disability. Conversely, doing the self-evaluation puts an entity on notice
about the services and training it needs to provide to its officers and employees regarding people with disabilities,
and the lack of such services and training may show the deliberate indifference needed to maintain a §1983 action
against a municipality.85
B. Jails and Prisons
Conditions of confinement are subject to considerable civil rights litigation under both §1983 and the ADA. 86
In a unanimous 1998 opinion by Justice Antonin Scalia, Pennsylvania Department of Corrections v. Yeskey,87 the
Supreme Court made it clear that the ADA extends to state prisons, based on the plain reading of the statute. The
Court suggested some prison activities to which the ADA would apply: medical services, education and vocation
programs, library, visiting, recreational activities, and boot camp like that at issue in Yeskey.88
On the issue of sovereign immunity, the Supreme Court, in United States v. Georgia, overturned earlier circuit
decisions that declared Title II an improper use of Congress‘ §5 power as applied to Title II violations in prisons.89

82

Tyler v. City of Manhattan, 857 F.Supp 800, 818-819 (D. Kan. 1994) (finding discrimination based on disability despite
defendant's good faith effort to remove particular barriers).
83
See L.C. by Zimring v. Olmstead, 138 F.3d 893, 904-05 (11th Cir. 1998) (―the ADA does not permit the State to justify
its discriminatory treatment of individuals with disabilities on the grounds that providing non-discriminatory treatment will
require additional expenditures of state funds.‖), aff’d in part, vacated in part, and remanded, 527 U.S. 581 (1999).
84
Iverson v. City of Boston, 452 F.3d 94, 103 (1st Cir. 2006) (―The self-evaluation and transition plan regulations impose
obligations different than, and beyond, those imposed by Title II of the ADA. Accordingly, they are not enforceable through the
instrumentality of the private right of action available under that statute.‖); Ability Center of Greater Toledo v. City of Sandusky,
385 F.3d 901, 914 (6th Cir. 2004). But see Chaffin v. Kan. State Fair Bd., 348 F.3d 850, 857-60 (10th Cir. 2003) (holding that
both the self-evaluation and transition plan regulations are enforceable through a private action).
85
See City of Canton v. Harris, 489 U.S. 378, 388 (1989) ("[T]he inadequacy of police training may serve as a basis for
§1983 liability only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police
come into contact.").
86
See Emily Alexander, The Americans With Disabilities Act and State Prisons: A Question of Statutory Interpretation, 66
FORDHAM L.REV. 2233, 2283 (1998).
87
Pennsylvania Dep't of Corrections v. Yeskey, 524 U.S. 206, 213 (1998). See 28 C.F.R. §39.170(d)(1)(ii) (institutions
administered by Federal Bureau of Prisons are subject to Section 504).
88
Id. at 210. See Crawford v. Indiana Dept. of Corrections, 115 F.3d 481 (7th Cir. 1997) (education program provided by
state prison is a program, and use of law library and dining hall are activities, within meaning of the ADA); Duffey v. Riveland,
98 F.3rd 447 (1996) (prison disciplinary and classification hearings are programs with definition of the ADA); Spurlock v.
Simmons, 88 F.Supp.2d 1189, 1195 (D. Kansas 2000) (use of prison telephones is a service or activity under the ADA); and see
Niece v. Fitzner, 922 F.Supp (E.D. Mich. 1996) (prison must accommodate communication needs of deaf fiancée of prisoner who
was visiting him); and see 28 C.F.R. §35.190(b)(6) (ADA regulations apply to correctional facilities).
89
See United States v. Georgia, 546 U.S. 151 (2006) (―insofar as Title II creates a private cause of action for damages
against the States for conduct that actually violates the Fourteen Amendment, Title II validly abrogates state sovereign immunity
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OVERCOMING SECTION 1983 HURDLES USING THE ADA CHAPTER 17

However, as noted in the earlier discussion on sovereign immunity, Title II in the state prison context will have to
utilized to protect an Eighth or Fourteenth Amendment right, rather than Title II standing alone as it would for city
and county jails.90
Four areas tend to predominate in prison ADA cases: physical accessibility91; accommodating prisoners with
HIV infection; handling inmates who are suicidal or mentally ill; and interpreters/accommodations for prisoners who
are deaf or blind.92
Federal courts accord enormous deference to prison officials in §1983 cases, alleging Eighth Amendment
―cruel and unusual‖ prison conditions93 and Fourteenth Amendment cases alleging pre-conviction violations of due
process, especially regarding medical care.94 The test is one of ―deliberate indifference to a substantial risk to health
or safety,‖ a rather steep standard for a §1983 plaintiff.95
The ADA, on other hand, requires officials to reasonably accommodate the needs of a prisoner with a
disability,96 unless to do so would result in a fundamental alteration of the prison or undue financial and administrative burdens.97 The obligation imposed by the ADA, depending on the situation, may be greater than that imposed by
§1983. Because the ADA places an affirmative burden on the officials, 98 it may be sometimes easier for a prisoner
with a disability to prevail under the ADA than under §1983.
In some instances, a court may even look to the ADA as a way of informing Eighth or Fourteenth Amendment
standards.99 This approach might offer great promise in prison and jail conditions litigation by prisoners with
disabilities.
[even with respect to complaints concerning conditions of confinement]‖) (emphasis in original) (failure to accommodate
paraplegic inmate).
90
See, e.g., Miller, 384 F.3d 1248 (failure to accommodate paraplegic prison inmate violated Eighth Amendment and Title
II); L.J. McCoy, 2006 WL 2331055 (denying parties‘ summary judgment motions in case where prisoner died during asthma
attack, after being denied proper medical care).
91
Love v. Westville Correction Center, 103 F.3d 558 (7th Cir. 1996) (confining quadriplegic prisoner in infirmary and
denying him access to prison library and to education, transition, and work programs violated Title II).
92
See Armstrong v. Wilson, 942 F.Supp 1252 (N.D.Cal. 1996), aff’d, 124 F.3d 1019 (9th Cir. 1997) (injunction under Title
II and Section 504 to improve prison facilities and programs for a range of prisoners with different physical disabilities); Raines
v. Florida, 983 F.Supp 1362 (N.D. Fla. 1997) (approving settlement of class action by prisoners with physical and mental
disabilities, suing for access to various prison programs).
93
See Farmer v. Brennan, 511 U.S. 825, 837 (1994) (‖a prison official cannot be found liable under the Eighth Amendment
for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate
health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious
harm exists, and he must also draw the inference.‖).
94
See, e.g., Newton v. Black, 133 F.3d 301, 308-09 (5th Cir. 1998). Because Title II applies to prisons and jails alike, in
light of Yeskey, this article uses cases involving them interchangeably. There is not much difference ultimately in the nature of
rights afforded by the Eighth and Fourteenth Amendments, the former applying to persons convicted of crime and the latter
applying to pre-trial detainees. See Hare v. City of Corinth, Miss., 74 F.3d 633, 648-49 (5th Cir. 1996) (en banc); City of Revere
v. Massachusetts General Hosp., 463 U.S. 239, 244 (1983) (holding that city fulfilled its constitutional due process obligation by
promptly taking injured detainee to hospital).
95
See Farmer, 511 U.S. at 837.
96
See Yeskey, 524 U.S. at 208, 213.
97
28 C.F.R. Pt.35, App. A at 466 (1995).
98
See 42 U.S.C. §§12131-12165.
99
See Stevens v. Illinois DOT, 210 F.3d 732, 738 (7th Cir. 2000) (―In sum, the ADA replaces the Fourteenth Amendment's
constitutional protections with a higher set of legislative standards, thereby making illegal under the ADA conduct that is
constitutional under the Fourteenth Amendment.‖); Schmidt v. Odell, 64 F.Supp.2d 1014, 1031 (D. Kansas 1999) ("Although
ADA requirements are clearly not synonymous with or incorporated into the Eighth Amendment, the ADA reflects, to some
degree, contemporary standards of decency concerning treatment of individuals with disabilities. Because the Eighth Amendment
draws from the evolving standards of decency that mark the progress of a maturing society, a reasonable jury could find that
treatment of a disabled inmate such as that described here falls short of the basic concept of human dignity at the core of the
Eighth Amendment.") (citations omitted) (denying summary judgment for officials on claims brought under the Eighth
Amendment, Section 504, and the ADA by inmate who had both legs amputated beneath knees and finding that use of toilet,
shower, recreational areas, and obtaining meals are basic services within meaning of the ADA).
Although ADA requirements are clearly not synonymous with or incorporated into the Eighth Amendment, the ADA reflects, to some degree, contemporary standards of decency concerning treatment of individu-11-

OVERCOMING SECTION 1983 HURDLES USING THE ADA CHAPTER 17

1. HIV
HIV is a major problem in jails and prisons.100 One frequent inmate complaint is the treatment and isolation of
prisoners with HIV. On the treatment issue, the ADA requires that a jail facility provide medical care that
accommodates people with disabilities as part of the jail‘s genera; medical regime, 101 although the ADA ipso facto
doesn‘t become a vehicle for an inmate specifying one kind of treatment over another. 102 The ADA also requires
integrating the prisoner into the jail‘s facilities103 and programs,104 more so than what a §1983 action might require.
However, Yeskey notwithstanding, the Supreme Court refused to review an Alabama prison case allowing the
segregation of HIV+ inmates from general prison activities for health and safety reasons. 105
2. Suicidal and Mentally Ill Prisoners
America went through a de-institutionalization process in the latter part of the Twentieth Century, the goal of
which was to move people with mental illnesses from large institutions to smaller, community-based housing and
centers. The reality, however, was to shut down or ―downsize‖ larger facilities and deny funding for appropriate
services in the smaller settings.
As a result, more and more people with mental illness found themselves living on the streets or in other
inappropriate settings. Many eventually end up in jails and prisons for their conduct, and that number is ever
increasing.106 This raises significant issues about how jails and prisons should accommodate them under the
disability laws.
Suicide is a major problem in county jails, and it manifests itself in the cases. 107 For §1983 purposes, courts
analyze these situations as either a ―condition of confinement‖ case or as one involving an ―episodic act or
omission.‖108

als with disabilities. Because the Eighth Amendment draws from the ―evolving standards of decency that mark
the progress of a maturing society,‖ Rhodes v. Chapman, 452 U.S. at 346, a reasonable jury could find that
treatment of a disabled inmate such as that described here falls short of ―the basic concept of human dignity at
the core of‖ the Eighth Amendment. See Gregg v. Georgia, 428 U.S. 153, 182 … (1976).
100
Susan Okie, ―Sex, drugs, prisons and HIV,‖ NEW ENG. J.MED 356:105-108 (Jan. 11, 2007) (highlighting how U.S.
prisons are acting as ―reservoirs‖ of HIV infection, and that as many as 25% of HIV-infected individuals in the U.S. may be
imprisoned at some point, as well as 33% of persons with hepatitis C virus (HCV) infection, and 40% of those with active
tuberculosis).
101
See McNally v. Prison Health Servs., 46 F.Supp.2d 49, 58 (D. Me. 1999) (applying distinction ―between [nonactionable] claims that the medical treatment received for a disability was inadequate from [actionable] claims that a prisoner has
been denied access to services or programs because he is disabled,‖ and overruling summary judgment against ADA and §1983
claims by prisoner denied HIV medication for three days); Rivera v. Sheahan, No. 97 C 2735, 1998 WL 531875, at *4 (N.D. Ill.
1998) (granting motion to dismiss ADA, access to courts, and equal protection claims based on failure to plead properly and
denying motion with respect to Eighth Amendment and §1983 claims for failure to provide treatment); May v. Sheahan, No. 99 C
0395, 1999 WL 543187, at *7 (N.D. Ill. 1999), aff’d, 226 F.3d 876 (7th Cir. 2000) (granting motion to dismiss ADA claim
against sheriff on qualified immunity grounds and denying motion to dismiss on all other claims in a suit by a pre-trial county jail
inmate with AIDS who was shackled to the bed).
102
Id.
103
See Roop v. Squadrito, 70 F.Supp.2d 868, 877 (D. Ind. 1999) (denying summary judgment on ADA and §1983 claims by
HIV+ county jail inmate based on totality of conditions and treatment); John Doe, et al. v. Ed Richards, Sheriff of Williamson
County, et al., No. A-97-CA-643-JN (U.S. Dist. Ct., W.D. Tex., Austin Div. 1997) (settlement regarding medical care and access
to county jail recreational activities for HIV+ prisoners) (the author was counsel for the Doe plaintiffs).
104
Dennis Vaughn v. Texas Dept. of Criminal Justice, et al., No. H-00-0205 (U.S. Dist. Ct., S.D. Tex., Houston Div. 2000)
(monetary settlement regarding denial of participation in parole diversionary alcohol treatment program because of HIV+ status)
(the author was counsel for the plaintiff).
105
Onishea v. Hopper, 171 F.3d 1289, 1305 (11th Cir. 1999), cert. denied sub nom., Davis v. Hopper, 528 U.S. 1114
(2000), relying on Turner v. Safley, 482 U.S. 78 (1987) (regulation that infringes on a prisoner‘s constitutional right is valid if
reasonably related to legitimate penological interest).
106
See Doris J. James and Lauren E. Glaze, "Mental Health Problems of Prison and Jail Inmates,‖ Bureau of Justice
Statistics, U. S. Department of Justice (NCJ-213600, September 2006) (reporting that 56% of jail inmates in state prisons and
64% of inmates across the country reported mental health problems within past year).
107
See, e.g., Hare v. City of Corinth, 135 F.3d 320, 327 (5th Cir. 1998) (discussing a range of suicide cases); Flores v.
County of Hardeman, 124 F.3d 736, 736-39 (5th Cir. 1997).
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A ―condition of confinement‖ case is a constitutional attack on general conditions, practices, rules, or
restrictions of the facility.109 In such cases, the court assumes, by the municipality's promulgation and maintenance
of the complained-of condition, that it intended to cause the alleged constitutional deprivation.110
If the complained-of harm is caused by a particular act or omission of one or more officials, the action is
characterized as an ―episodic act or omission‖ case.111 To hold a municipality accountable for such a violation, the
plaintiff must show that the municipal employee violated clearly established constitutional rights with subjective
deliberate indifference, and the violation resulted from a municipal policy or custom adopted or maintained with
objective deliberate indifference.112 The question is whether the defendant had actual knowledge of the substantial
risk of suicide and responded with deliberate indifference.113
In a suicide case with egregious facts, the Fifth Circuit extended qualified immunity to city jail officials of
Corinth, Mississippi in a suit by the estate of a pre-trial detainee who committed suicide.114 The court held the
officials did have actual knowledge of the substantial risk of suicide; and that, at minimum, they had a duty not to be
deliberately indifferent to the medical needs of pre-trial detainees. However, given their low level of suicide
prevention training, their conduct regarding the possibility that the decedent would kill herself was objectively
reasonable.115 The court simply found the facts did not show objectively unreasonable conduct when applied against
the subjective deliberate indifference standard.116
The opinion states that the objective reasonableness standard does not afford a ―simple bright-line‖ test. Why
this is true is unclear. The very reason the courts have revised the qualified immunity test over the years is to
eliminate subjectivity from it, and to concentrate on objectivity. This case certainly appears to introduce subjectivity
back into the test, but only as it favors the officer. 117 There is circularity in the court‘s reasoning: the officer's
subjective knowledge provides the benchmark against which to measure objective conduct. The test has been, and
should be, what a reasonable officer should have done in this situation, not what the officer was thinking.
The result of rulings like Hare is to take away whatever motivation a lawsuit offers to cajole jail officials into
receiving appropriate training and exercising proper care. Under this ruling, the less officials know about appropriate conduct with respect to potentially suicidal inmates, the less objective legal responsibility they have. This cannot
be consistent with the purpose of the Constitution, §1983, or the case law.118
There likely would be a very different result under the ADA, given the statute‘s affirmative duty to accommodate persons with mental illness, and, a fortiori, suicidal tendencies. The accommodations might include, for
example, specialized training of jail staff, different kinds of selling alternatives, heightened level of medical care,
and diligent surveillance.119 One might also argue that the ADA mandate has removed from officers the ability to

108

Flores, 124 F.3d at 738 (citing Hare, 74 F.3d at 644).
Id.
110
Hare, 74 F.3d at 644-45.
111
Flores, 124 F.3d at 738 (quoting Hare, 74 F.3d at 644).
112
Id. (citing Farmer, 511 U.S. 825).
113
Id. (citing Hare, 74 F.3d at 650); see Scott v. Moore, 114 F.3d 51, 54 (5th Cir. 1997) (en banc).
114
Hare, 135 F.3d at 329 (reversing denial of summary judgment on qualified immunity grounds, rendering judgment in
favor of officers, and remanding).
115
Id. In Hare, the officers knew the woman prisoner was suicidal, but did not remove the blanket from her cell because
they believed, since she only weighed 100 pounds, she was not strong enough to tear it to hang herself, which is exactly what she
did. Moreover, they only checked her cell once every forty-five minutes; and, when a trustee discovered her, he left her hanging
until the state investigator arrived, though she may have survived with emergency treatment. Id. at 323, 328 & n.1.
116
Id. at 329.
117
See id. at 327-29.
118
See, e.g., Anderson v. Creighton, 483 U.S. 635, 640 (1987)
119
See, e.g., Debbie Mergele, etc. v. Margo Frasier, et al., Civil Action No. A-03-CA-836-SS (U.S. Dist. Ct., W.D. Tex.,
Austin Div. 2003) (settling suicide case for monetary damages and adoption of specialized suicide procedures); Janice Elliot, etc.
v. Andrews County, Texas, et al., Civil Action No. MO-03-CV-125 (U.S. Dist. Ct., W.D. Tex., Austin Div. 2003) (monetary
settlement in suicide case); Carmen Morales v. U. E. Skains, Tom Green County Sheriff, No. 6-96CV-054-C (U.S. Dist. Ct., N.D.
Tex., San Angelo Div. 1996)(settling suicide case for monetary damages and the adoption of specialized suicide procedures).
The (the author was lead counsel for plaintiffs in Elliott and Morales..
109

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plead they did not know any better; the ADA sets on them an affirmative requirement to act appropriately with
respect to prisoners with mental disabilities.120
Finally, it is clear that jails and prisons may not discriminate against prisoners simply because of their mental
illness.121 The analysis in this section also applies with equal force to physical ailments that qualify as disabilities,
such as asthma.122
3. Interpreters and Accommodating Blind Prisoners
There is not much dispute that prisoners are entitled to appropriate interpreting services123; the only question is
which situations require an interpreter, and which allow alternate means. 124 The consensus seems to be that
qualified American Sign Language interpreters should be present during important facets of incarceration, such as
the booking in and classification processes, explanation of jail rules; other-than-routine medical125 and attorney
visits, and grievance hearings, for example.126 At other times, other means (writing notes, using student interpreters,
etc.) may pass muster.127 Some jails have a video that explains jail rules to new prisoners, which is also captioned
for the hearing impaired, and has a sign language interpreter in a cutaway in a corner of the screen.128
There are few cases involving accommodations for blind inmates, but the most comprehensive case required a
prison to provide means to make use of its library and educational program and navigational assistance around the
prison.129
4. Prison Litigation Reform Act
By way of caveat, one should note a provision of the Prison Litigation Reform Act (PLRA) bars prisoners‘
claims for mental and emotional damages without a prior showing of physical injury.130 Both the Seventh and

120

See, e.g., Moeineddin Ghavami v. Juan Alanis, et al., Civil Action No. SA-05-CA-0700-RF (U.S. Dist. Ct., W.D. Tex.,
San Antonio Div. 1996) (monetary settlement of case, where mentally ill county jail prisoner was denied proper medical care)
(the author was co-counsel for plaintiff).
121
Sites v. McKenzie, 423 F.Supp 1190 (N.D.W.Va. 1976) (summary judgment granted in favor of prisoners who alleged
denial of vocational rehabilitation opportunities to mentally ill prisoners violated Section 504); D.M. v. Terhune, 67 F.Supp.2d
401, 412 (D.N.J. 1999) (approving class action settlement of case in which inmates with mental disorders claimed to have been
denied appropriate treatment and medication).
122
See, e.g., L.J. McCoy, 2006 WL 2331055 (denying parties‘ summary judgment motions in case where prisoner died
during asthma attack, after being denied proper medical care).
123
See, e.g., Brown v. King County Dep't of Adult Corrections, 1998 WL 1120381(D. Wash. Dec. 9, 1998) (failure to
provide accommodations, such as TDD, TV captioning, and facilitate sign language during visitation actionable under Title II).
124
See, e.g., Randolph v. Rogers, 170 F.3d 850, 859 (8th Cir. 1999) (providing sign language interpreter for inmate as a
reasonable accommodation involved question of fact and whether it implicated prison safety and security and posed undue
financial burden)
125
Bonner v. Lewsi, 857 F.2d 559, 563 (9th Cir. 1988) (failure to accommodate inmate who is deaf, mute, has tunnel
vision, and has difficulty communicating with people who do not know American Sign Language actionable under Section 504).
126
See, e.g., Chisolm, 275 F.3d at 332 (reversing summary judgment in favor of officials who denied a detainee‘s request
for a sign language interpreter and a machine that allows those with hearing disabilities to communicate with others by
telephone); Duffy v. Riveland, 98 F.3d 447 (9th Cir. 1996) (certified interpreter might be necessary for prison disciplinary and
classification hearings).
127
See Curtis Lynn Stainbrook v. Ralph López, Bexar County Sheriff, et al., No. SA-97-CA-1468 (W.D. Tex., San Antonio
Div. 1997) (comprehensive settlement regarding providing interpreters for jail classification, grievance and disciplinary
processes, attorney visits, and medical care) (the author was lead counsel for plaintiff); Settlement Agreement Between the
United States and the Office of the Sheriff, County of Fairfax, Virginia re: Effective Communication (DOJ Complaint No. 204-918), available at http://www.usdoj.gov/crt/ada/fairfax.htm (providing for TDD and interpreters for inmates who are deaf or
hearing impaired, and appropriate training for jail officers); and see Clarkson v. Coughlin, 898 F.Supp 1019 (S.D.N.Y. 1995
(failure to provide interpreters, communications devises, and visual safety alarms for deaf inmates violated Title II of ADA); but
see Spurlock, 88 F.Supp.2d at 1196 (restricting TDD phone calls to two 30-minute calls per week is not unreasonable
accommodation in view of the burden placed on prison officials).
128
See Stainbrook, supra n.127.
129
Williams v. Illinois Dept. of Corrections, 1999 WL 1068669 (N.D. Ill. 1999) (granting summary judgment to legally
blind inmate that denial of books on tape, braille materials, or large-print books violated ADA and Section 504 and entering
injunctive relief).
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District of Columbia Circuits have ruled that the plain language of the PLRA proviso also precludes claims for
mental and emotional damages under the ADA and Section 504, to the extent they might be available, without a
showing of physical injury, Yeskey notwithstanding.131 Additionally, several courts have held that the PLRA‘s
administrative remedy exhaustion requirement applies to claims brought under the ADA and Section 504. 132
However, some courts have held that PRLA‘s restrictions on attorneys‘ fees awarded pursuant to 42 U.S.C.
§1988, the standard civil rights fees statute, are trumped by the specific attorneys‘ fees provisions of the ADA and
Section 504,133 discussed later in this article.
5. Private Prison and Jail Facilities
Title III, not Title II, applies to private prisons and jails. 134 In these Title III cases, the standard negligence
theories apply, not §1983 – although §1983 applies to private facilities.135 There are no damages available through a
private action for a violation of Title III. However, one might argue that Title III standards help define the
parameters of reasonable care and negligence in cases involving prisoners with disabilities, 136 which, in turn, if the
officials‘ misconduct is egregious enough, may show deliberate indifference for §1983 purposes.137
One important aspect of the ADA is that an entity cannot contract away its ADA responsibilities; there is joint
and several responsibility and liability.138 In the case of a private jail, for example, both the contracting county and
the private jail are liable for non-compliance with the ADA. This is true of Section 504 responsibilities as well.139
C. Police Activities
Considerable judicial attention has focused on the interplay between Title II and police activities, especially
after Yeskey.140 Even before Yeskey, the U.S. Department of Justice ADA, the Congressionally-mandated enforcer of
the ADA, had posted a manual on its website about ADA applicability to police activities, entitled ―Commonly
Asked Questions about the Americans with Disabilities Act and Law Enforcement.‖141
The ADA-sensitive areas listed in the manual include: receiving citizen complaints; interrogating witnesses;
arresting, booking, and holding suspects; operating telephones (911) emergency centers; providing emergency

130

42 U.S.C. §1997e(e).
See Yeskey, 524 U.S. at 213; Cassidy v. Indiana Dept. of Corr, 199 F.3d 374, 375-76 (7th Cir. 2000) (PRLA limits ADA
and Section 504 damages).
132
Porter v. Nussle, 534 U.S. 516, 524, 532 (2002) (deciding that administrative remedy exhaustion requirement in the
PLRA applies to §1983 and Bivens actions and all claims related to ―prison life‖); Anderson v. XYZ Corr. Health Servs., 407
F.3d 674, 677 (4th Cir. 2005); Butler v. Adams, 397 F.3d 1181, 1183 (9th Cir. 2005) (holding that a blind inmate did exhaust his
administrative remedies with respect to his ADA claims); Post v. Taft, No. 03-3664, 2004 WL 959070, at *2 (6th Cir. May 3,
2004) (dismissing claims under ADA, Section 504, and several constitutional amendments for failure to exhaust administrative
remedies required by PLRA); Jones v. Smith, No. 04-6116, 2004 WL 2053280, at *2 (10th Cir. Sept. 13, 2004) (―Under the
Prison Litigation Reform Act (PLRA), a prisoner who files a civil action challenging the conditions of his confinement must first
exhaust administrative remedies ....‖).
133
E.g., Armstrong v. Davis, 318 F.3d 965, 974 (9th Cir. 2003); D.M., 67 F.Supp.2d at 412; Beckford v. Irvin, 60
F.Supp.2d 85, 88 (W.D.N.Y. 1999); but see Cassidy, 199 F.3d at 375-76 (PLRA limits ADA and Section 504 attorney fees).
134
See Warren Martin v. Corrections Corp. of Am., Inc., No. 3-97-CV-2895-BD (N.D. Tex., Dallas Div. 1997) (monetary
settlement in suicide case alleging inappropriate self-medication regime for mentally ill and suicidal inmate). The author was cocounsel for plaintiffs.
135
Richardson v. McKnight, 521 U.S. 399 (1997).
136
See, e.g., Smith v. Wal-Mart Stores, Inc., 167 F.3d 286, 293 (6th Cir. 1999) (using Title III physical access standards to
establish negligence in personal injury case by customer with wheel chair).
137
See Hall, 190 F.3d 695-97 (suggesting that state prison official might lose §1983 qualified immunity in health care case
if trial court were to find that ADA, as applied in case, constituted settled law and official did not act objectively reasonably in
situation).
138
See 28 C.F.R. §35.130(b)(1).
139
Henrietta D., 331 F.3d at 286.
140
See, e.g., James D. Johnson, Note & Comment, Does the Americans with Disabilities Act Apply to the Conduct of Law
Enforcement Officers Pursuant to Arrests? A Survey of Gorman v. Bartch, 14 GA. ST. U. L. REV. 901, 901-24 (1998).
141
http://www.usdoj.gov/crt/ada/q&a_law.htm (U.S. Dept. of Justice, Civil Rights Div., Disability Rights) (―Last Revised
April 4, 2006).
131

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medical services; enforcing laws; and other duties. The manual specifically refers to disabilities, such as blindness,
mental retardation, speech disabilities, physical impairments, mental illness, and neurological disorders.142
The areas of police accommodation for people with disabilities are as myriad as the functions the police
perform.143 Here, too, is where the self-evaluation process is very important. The areas where the ADA seems to
come most into play involve accommodation of physical disabilities, appropriate use of force, mental illness calls,
and the need for interpreting.144 The courts, however, do tend to allow police more discretion about ADA accommodations before and during an arrest,145 than afterwards when transporting someone to jail146 or confining the
person.147
1. Use of Force
In light of Yeskey, the Eighth Circuit Court of Appeals reversed a summary judgment ruling in favor of a police
department on a claim by a person in a wheelchair that police denied him proper handling and transportation during
and after his arrest.148 The plaintiff claimed the Kansas City, Missouri Police Department failed to modify its arrest
and transportation policies and procedures to accommodate individuals with spinal cord injuries, and to insure
proper training for officers on handling such arrestees.149 The appellate court held:
Our task in considering whether [the plaintiff's] allegations come under the ambit of federal statutes
has been made easier by the Supreme Court's unanimous decision … in [Yeskey]. In applying Title
II of the ADA to state prisons and prison services, Justice Scalia emphasized the broad language
used by Congress and its choice not to include exceptions ....
A local police department falls ―squarely within the statutory definition of 'public entity,‘‖ ... just
like a state prison.150
The Eighth Circuit noted the expanse of ―programs‖ and ―benefits‖ covered under the ADA; the fact the ADA
can be ―applied in situations not expressly anticipated by Congress does not demonstrate ambiguity. It demonstrates
breadth.‖151 The court observed that the general regulatory obligation to modify policies, practices, or procedures
requires law enforcement to make changes in policies that result in discriminatory arrests or abuse of individuals
with disabilities.152
142

Id.
See, e.g., "Recognizing Special Needs: A Police Officer's Field Guide to Selected Disabi-lities,‖ by Municipal Police
Officers' Education & Training Commission (Hershey, Pennsylvania 2001).
144
Richard Bell, et al. v. Catfish Parlour, Inc., et al., Civil Action No. A-01-CA-583-JN (U.S. Dist. Ct., W.D. Tex., Austin
Div. 2002) (comprehensive settlement:http://www.usdoj.gov/crt/ada/-q&a-law.htm monetary and procedures for police to use
interpreters when dealing with deaf people on calls).
145
Compare, e.g., Rosen v. Montgomery County, 121 F.3d 154, 157, 159 (4th Cir. 1997) (rejecting claim that police
violated Title II by failing to provide an interpreter when stopping, detaining, or arresting individuals with hearing impairments,
while commenting that fitting an arrest into the ADA ―strikes us as a stretch of the statutory language and of the underlying
legislative intent.‖) with Barber v. Guay, 910 F.Supp 790 (D. Me. 1995) (denying sheriff defendants summary judgment because
plaintiff stated valid cause of action under the ADA by alleging that ―he was denied proper police protection and fair treatment
due to his psychological and alcohol problems‖). But see Thompson v. Davis, 295 F.3d 890, 897 (9th Cir. 2002) (rejecting
Rosen‘s reliance on voluntariness as a required element of a ―program or activity‖ under the ADA in light of Yeskey).
146
See, e.g., Gorman v. Bartch, 152 F.3d 907, 916 (8th Cir. 1998) (arrestee with paraplegia stated Title II claim based on
manner in which he was transported from site of arrest to police station).
147
See, e.g., Smith v. Indiana, 904 F.Supp 877, 880 (N.D. Ind. 1995) (denying defendant doctor‘s motion for summary
judgment because arrestee with paraplegia stated Title II claim based on treatment at jail following apprehension).
148
See Gorman, 152 F.3d at 916.
149
Id. at 910.
150
Id. at 912 (citations omitted).
151
Id. (quoting Yeskey, 524 U.S. at 212). Gorman further recognized that the ADA and Section 504 "must be interpreted
broadly to include the ordinary operations of a public entity in order to carry out the purpose of prohibiting discrimination." Id.
at 912-13 (citing Innovative Health Sys. v. City of White Plains, 117 F.3d 37, 44-45 (2d Cir. 1997)). Nor may a public entity
provide services in a manner denying disabled individuals equal benefit of the service. 28 C.F.R. §35.130(b)(1).
152
Gorman, 152 F.3d at 913 (citations omitted). In reversing summary judgment, the Eighth Circuit held that the
"allegations pass the threshold required to bring a case under the ADA and the Rehabilitation Act,‖ and remanded the case for the
trial judge to determine whether the plaintiff was actually discriminated against or denied the benefit of a service because of his
disability. Id.
143

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The Tenth Circuit also examined arrest situations in ADA terms in Gohier v. Enright,153 a suit by a representative of the estate of Michael Lucero who died in a police shooting. There, an officer responded to a dispatch call
that a man was wandering a street, bashing cars with a baseball bat. The officer saw Lucero walking down the
middle of the street, and decided to question him, though Lucero did not match the description of the bat-wielding
miscreant.154
The officer identified himself, and Lucero turned and charged the officer with a ―Charles Manson-type look‖ in
his eyes. Lucero began making a stabbing motion with a long slender object toward the officer with what he thought
was a knife. The officer moved behind his car and ordered Lucero to stop and drop his weapon. Lucero approached
the police car and lunged toward the officer, who then fired his gun twice, killing Lucero. 155
The appellate court analyzed the case under a §1983 wrongful arrest theory and a ―reasonable-accommodationduring-arrest‖ Title II theory.156 The case was not actionable under a wrongful arrest theory because the officer used
force to defend himself, not to arrest Lucero.157
The court then examined a ―reasonable-accommodation-during-arrest‖ theory of Title II liability, and accepted
the proposition that Lucero‘s estate could have argued that the police failed to reasonably accommodate Lucero‘s
paranoid schizophrenia in the course of investigating him.158 The problem for Lucero‘s estate, however, was that it
chose not to pursue such a claim against the municipality, Colorado Springs, but only the officer. Thus, because a
proper Title II entity thus was not before the court, the judge did not decide whether the facts stated a ―reasonableaccommodation-during arrest‖ theory.159
The lower court had relied on an unpublished New Mexico District Court opinion for the proposition that ―‘the
individual [police] protection of a particular person or ... class of persons is not ... a municipal service, benefit, or
program.‘‖160 The Tenth Circuit limited the opinion to its facts: the plaintiff there alleged that police failure to arrest
him resulted in his ability to attempt his own life.161 While a municipality may not have a duty to protect persons
from the detrimental effects of their disabilities, even if suicidal, this principle did not limit the scope of Title II‘s
application to actual police activities.162
In an Indiana case, Lewis v. Truitt, police officers arrested a deaf man, but refused to acknowledge he could not
hear.163 They entered his home without a warrant, and without cause, physically assaulted him, handcuffed him,
verbally abused him, kicked and hit him causing several injuries, and charged him with resisting law enforcement. 164
The officers sought summary judgment on the man's ADA claims, but lost the motion. The district court noted the
importance of training for law enforcement in situations involving persons with disabilities, quoting from a House
Judiciary Committee Report:
In order to comply with the non-discrimination mandate, it is often necessary to provide training to
public employees about disability. For example, persons who have epilepsy, and a variety of other
disabilities, are frequently inappropriately arrested and jailed because police officers have not re-

153

Gohier v. Enright, 186 F.3d 1216 (10th Cir. 1999).
Id. at 1217
155
Id. at 1218.
156
Id.
157
Id. at 1222.
158
Id. at 1221-22 (relying on Gorman, 152 F.3d at 912-13).
159
Gohier, 186 F.3d .at 1222.
160
Id. at 1219.
161
Id. at 1220-21. Amirault held the plaintiffs‘ claim failed under the second prong of Tyler v. City of Manhattan, 849
F.Supp 1429 at 1434-42, which requires a Title II plaintiff to show denial in participation in or the benefits of a public entity‘s
services, programs, activities, or that he or she was otherwise discriminated against by the entity: ―the City ... had no duty to
protect plaintiff from himself ... nor was plaintiff denied a municipal or police service, benefit to which he or another individual
or class of individuals was entitled....‖ (Tyler, 849 F.Supp at 1439).
162
Gohier, 186 F.3d at 1220-21.
163
Lewis v. Truitt, 960 F.Supp 175, 176-77 (D. Ind. 1997).
164
Id. at 176.
154

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ceived proper training in the recognition of and aid of seizures. Such discriminatory treatment based
on disability can be avoided by proper training.165
Thus, in light of congressional intent, courts have held plaintiffs may recover under the ADA against a public
entity by showing (1) they were disabled, (2) the officers knew or should have known they were disabled, and (3) the
officers arrested the plaintiff because of legal conduct related to the disability. 166 Part and parcel of this reasoning,
including the rationale for proper training, is that the ADA mandate applies to pre-arrest interdiction.
Indeed, in a Pennsylvania case, a young man was involuntarily admitted to the hospital because he was
exhibiting signs of mental illness.167 While waiting to be evaluated, he escaped from the hospital. Later, when his
whereabouts were discovered, two police officers were dispatched to take him back to the hospital. When they
entered his house, a confrontation ensued, and the man was shot and killed by one of the officers. The court found
that training officers to handle interactions with mentally ill individuals peacefully and modifying police practices to
accommodate mentally ill individuals are included in ―programs, services, or activities of a public entity‖ under
§12132 of the ADA.168 Thus, the plaintiffs had stated a claim under the ADA, and the court denied the motion to
dismiss.169
There is no question this area will continue to see significant ADA litigation, particularly as society depends
more and more on the police to handle problematic situations with people who have disabilities.170
2. Suicide Calls & Emergencies
Another common call to the police is for help with an individual who has suicidal tendencies, or is threatening
suicide. In this situation, as well, the ADA would require police to adapt their procedures and policies to accommodate such situations, perhaps by being less confrontational, ―talking down‖ the person, or stepping away from a stand
off to give the individual ―more space‖ to calm down.171
The courts are wrestling with how the ADA and Section 504 apply to these confrontations, especially in the
pre-arrest context; the result often varies with whether the court focuses on the confrontation itself 172 or on the
totality of circumstances leading up to, and involved in, the confrontation.173 There will likely continue to be
considerable litigation in this area.174

165

Id. at 178 (quoting H.R. REP. No. 101-485, pt. III, 101st Cong., 2nd Sess. 50, reprinted in 1990 U.S.C.C.A.N. 473). See
28 C.F.R. §35, App. A, Subpart B (Department of Justice commentary that the ―general regulatory obligation to modify policies,
practices, or procedures requires law enforcement to make changes in policies that result in discriminatory arrests or abuse of
individuals with disabilities‖). See also Ygnacia Martínez v. Carl L. Schrier, Jr., Beeville Police Officer, et al., No. V-97-019
(S.D. Tex., Victoria Div. 1997) (alleging violations of ADA and §1983 and claiming officer‘s assault on woman with mental
retardation resulted from lack of proper training as to how to identify and handle people with mental retardation, as opposed to
judging and handling them as intoxicated) (settlement providing monetary damages). The author of this article was co-counsel
for plaintiff.
166
See Lewis, 960 F.Supp at 178 (citing Barber v. Guay, 910 F.Supp 790, 802 (D. Me. 1995); Jackson v. Inhabitants of
Town of Sanford, 1994 U.S. Dist. LEXIS 15367, No. 94-12- P-H, 1994 WL 589617, at *6 (D. Me. Sept. 23, 1994); Gorman v.
Bartch, 925 F.Supp. 653, 656 (W.D.Mo., 1996)).
167
Schorr v. Borough of Lemoyne, 243 F.Supp.2d 232, 233 (M.D. Pa. 2003).
168
Id. at 235-37.
169
Id. at 238-39.
170
See, e.g., Arnold v. City of York, 340 F.Supp.2d 550, 554 (M.D. Pa. 2004) (denying motions to dismiss Fourteenth
Amendment, Section 504, and ADA claims based on city‘s failure to train officers to peacefully and properly handle individuals
with mental illnesses). In Arnold, parents of mentally ill boy, who died of positional asphyxia from being ―hog-tied,‖ following
struggle with police.
171
See Rachel E. Brodin, Comment, Remedying a Particularized Form of Discrimination: Why Disabled Plaintiffs Can and
Should Bring Claims for Police Misconduct under the Americans with Disabilities Act, 154 U.PA L.REV. 157 (2005).
172
Thompson v. Williamson County, 219 F.3d 555, 557 (6th Cir. 2000) (deciding that plaintiff failed to state a claim under
the ADA after his mentally disturbed son was shot by a sheriff dispatched to assist him because he failed to show that his son was
denied a public service because of his disability and not because of his threatening behavior); Hainze v. Richards, 207 F.3d 795,
803 (5th Cir. 2000), cert. denied, 531 U.S. 959 (2000) (dismissing ADA and Section 504 claims on the ground that those laws do
not apply to pre-arrest police activity). In Hainze, plaintiff alleged that deputy wrongly shot him, a suicidal young man for whom
his family had called the police to take him to the hospital for psychiatric treatment. The author is co-counsel for the plaintiff.
173
Arnold, 340 F.Supp.2d at 554 n.2 (refusing to follow Hainze, ―we decline to split the events ... into two distinct, pre- and
post-seizure events,‖ and finding reasoning in Shorr more persuasive); Schorr, 243 F.Supp.2d at 233; See also Pickens v. City of
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D. Parole and Probation
Probation and parole are government programs and services. They seek to correct behavior, foster rehabilitation, and minimize recidivism. The result benefits the individual, and saves the taxpayers significant tax dollars that
would otherwise be expended on incarcerating such persons.
People with disabilities should be able to benefit from these programs and services. Government agencies may
have to modify them somewhat to provide reasonable accommodations,175 but people with disabilities have as much
right to participate in them as people without disabilities.176
One area certain to focus considerable attention on in the future will be juvenile probation programs and youth
offender programs and how they should accommodate young people with disabilities, and modify themselves
accordingly.177
E. Administration of Justice
In the administration of justice, the greatest ADA problems that tend to arise are physical access 178 and program
access at the courthouse.179 No state court is exempt from Title II.180 The issues run the gamut from getting into the
courthouse to getting into the jury box, from lower service counters in the tax office to real-time captioning or
interpreters in trials.181 The tables have flipped from the time that judges automatically excused citizens with
disabilities from serving on juries; they now must make efforts to accommodate jurors with disabilities. 182

Austin, No. A-04-CA-340-LY (U.S. Dist. Ct., W.D. Tex., Austin Div., March 15, 2005) (court refused to dismiss action brought
by surviving children of mentally-ill woman who had been acting out for a day and whom police confronted after repeated visits,
provoking her to act out even more, and police killed her, but jury rendered verdict against plaintiffs); and see Abraham v. Raso,
183 F.3d 279, 291 (3rd Cir. 1999) (expressing ―… disagreement with those courts which have held that analysis of ‗reasonableness‘ under the Fourth Amendment requires excluding any evidence of events preceding the actual ‗seizure.‘‖) (citations omitted)
(reversing summary judgment against plaintiffs in a §1983 claim for killing a fleeing shoplifting suspect in mall parking lot) .
174
For a detailed discussion of police use of force with people with mental disabilities, see Michael Avery, Unreasonable
Seizures of Unreasonable People: Defining The Totality of Circumstances Relevant To Assessing The Police Use of Force
Against Emotionally Disturbed People, 34 COLUM. HUMAN RTS. L. REV. 261 (2003).
175
See, e.g., Mildred Weaver, et al. v. Texas Dept. of Criminal Justice, et al., No. L-93-85 (S.D. Tex., Laredo Div. 1993)
(class settlement providing, inter alia, specialized parole officers with adapted procedures for 1250 parolees with mental
disabilities). The author was lead counsel for the Weaver plaintiffs.
176
See Dennis Vaughn v. Texas Dept. of Criminal Justice, et al., No. H-00-0205 (S.D. Tex., Houston Div. 2000) (settlement
of suit, alleging denial of participation in county alcohol treatment probation program because potential participant was HIV+
and was confined to prison instead). The author was co-counsel for plaintiff. See also Thompson, 295 F.3rd 890 (automatically
denying parole to prisoners with substance abuse histories violates Title II of ADA).
177
See, e.g., In re Nicholas M., 731 N.Y.S.2d 332, 328 (N.Y. Fam. Ct. 2001) (finding insufficient evidence to support claim
of denial of services or benefits in violation of ADA while participating in residential treatment program because the program‘s
provision of a single American Sign Language interpreter was a reasonable accommodation).
178
See, e.g., Settlement Agreement between the United States of America and Oklahoma County, Oklahoma (DOJ Complaint No. 204-60-22) (providing for physical access remedial measures at courthouse), available at http://www.usdoj.gov/crt/ada/oklaco.htm.
179
See Kristi Bleyer, et al., Into the Jury Box: A Disability Accommodation Guide for State Courts, 1994 A.B.A. Sec. State
Justice Inst. (providing suggestions to assist courts in increasing access to jury service to disabled persons); Jeanne Dooley, et al.,
Opening the Courthouse Door: An ADA Access Guide for State Courts, 1992 A.B.A. Sec. State Justice Inst. (suggesting ways in
which courts can increase their physical accessibility and the accessibility of courthouse services to persons with disabilities);
Nat'l Ctr. for State Cts., The Americans with Disabilities Act: Title II Self-Evaluation (1992) (providing courts with a
comprehensive list to evaluate the compliance of their physical premises and their policies and procedures under the ADA).
180
Tennessee v. Lane, 541 U.S. 509; and see, e.g., Chris Jonas, et al. v. General Servs. Comm'n, No. A-95-CV-468-JN
(U.S. Dist. Ct., W.D. Tex., Austin Div. 1995) (settlement of Section 504 and ADA physical access suit against the Texas
Supreme Court Building). The author was lead counsel for plaintiffs.
181
Texas Civil Rights Project, Courts Closed to Justice: A Survey of Courthouse Accessibility in Texas for People with
Disabilities, Third Annual Report on the State of Human Rights in Texas (1996).
182
Settlement Agreement between United States of America and Florida State Courts System (June 20, 1996), available at
http://www.usdoj.gov/crt/foia/fl11.txt (setting forth guidelines in ―court proceedings where real-time transcription services are
utilized as a reasonable and necessary method of ensuring effective participation by a party, witness, attorney, judge, court
employee, juror, or other participant who is deaf or hard of hearing‖).
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This area of litigation will see considerable attention, too, because the rights under the ADA are substantially
better than any rights required by §1983.
F. Damages & Jury Trials
As noted earlier, with some exceptions involving particularly bad fact situations, the courts generally only
allow compensatory damages,183but not punitive damages,184 in Title II and Section 504 cases.185 Damages are never
available in a Title III case.
The question of whether compensatory damages under Title II of the ADA (and Section 504) require a showing
of intentional discrimination remains unsettled, although most circuit courts of appeal have ruled that way with
regard to Section 504,186 which controls for Title II purposes.187
Generally, however, intent is not difficult to prove -- by showing a person has made and request for accommodation, which was rejected,188 or the discrimination is so obvious that it a specific request was unnecessary, 189 or the
governmental entity has failed to follow specific regulations, implemented under the ADA or Section 504.
Neither Title II of the ADA nor the Rehabilitation Act specifically creates a right to a jury trial, in contrast to
other civil rights statutes that do explicitly create a jury right to a jury trial. 190 Courts have consistently held that,
when a federal statute does not explicitly provide for a right to a jury trial, a party may not demand one.191 Because
the ADA and Section 504 do not specifically provide for jury trials, courts have routinely denied juries in suits under
those statutes.192 As noted already, the legal procedures applicable to ADA and Rehabilitation Act claims are
identical. Thus, if no right to a jury exists under the Rehabilitation Act, no such right exists under the ADA.

183

E.g., Rodgers v. Magnet Cove Pub. Schls, 34 F.3d 642, 645 (8th Cir.1994) (―... plaintiffs are afforded the full range of
legal remedies under the Rehabilitation Act.‖); Pandazides v. Virginia Bd. of Educ., 13 F.3d 823, 830 & n. 9 (4th Cir.1994);
Miener v. Missouri, 673 F.2d 969, 979 (8th Cir) ("damages are available under §504 as a necessary remedy for discrimination
against an otherwise qualified handicapped individual"), cert. denied, 459 U.S. 909 (1982); Smith v. Barton, 914 F.2d 1330,
1338 (9th Cir.1990) ("plaintiffs suing under section 504 of the rehabilitation act 'may pursue the full panoply of remedies,
including ... monetary damages'")(citation omitted), cert. denied, 501 U.S. 1217 (1991); Waldrop v. Southern Co. Services, Inc.,
24 F.3d 152, 156-57 & n. 5 (11th Cir.1994). See also, supra, n.35.
184
E.g., Moreno v. Consolidated Rail Corp., 99 F.3d 782, 790-92 (6th Cir. 1996) (no punitive damages); but see Beckford
v. Irvin, 49 F.Supp.2d 170, 185 (W.D.N.Y 1999) (allowing punitive damages of $25,000 to plaintiff whose requests to use
wheelchair and treat bed sores were denied).
185
However, as noted earlier, damages are not recoverable against the federal government under Section 504 because the
U.S. Supreme Court has found no waiver of sovereign immunity by the United States for Section 504 purposes. Lane, 518 U.S.
at 192.
186
E.g., Powers, 184 F.3d at 1153 (Section 504 requires intent); Ferguson, 157 F.3d at 674-75 (Section 504 and ADA Title
II require discriminatory intent); Wood, 978 F.2d 1214 (Section 504 requires intent); Carter, 725 F.2d 261(id.).
187
42 U.S.C. §12201 (2000).
188
E.g. Love, 103 F.3d at 561.
189
Reed v. LePage Bakeries, Inc., 244 F.3d 254, 261 n.7 (1st Cir. 2001) (noting that a request for accommodation may not
be required, for example, where the disabled individual's needs are "obvious"); Chisolm, 275 F.3d at 330 (reversing district
court's holding that request for accommodation was necessary, where the public entity "had knowledge of [plaintiff's] hearing
disability but failed to discuss related issues with him") (citing Randolph, 170 F.3d at 858-59); Taylor v. Principal Financial
Group, Inc., 93 F.3d 155, 165 (5th Cir.1996) (noting that the disabled individual's burden to request an accommodation applies
"[w]here the disability, resulting limitations, and necessary reasonable accommodations, are not open, obvious, and apparent");
L.J. McCoy, 2006 WL 2331055*26-*28).
190
See, e.g,, 42 U.S.C. §1981a(c).
191
See, e.g., Goar v. Compania Peruana de Vapores, 688 F.2d 417, 424 (5th Cir. 1982). See also Landgraf v. USI Film
Prods, 511 U.S. 244 (1994) (Civil Rights Act of 1991, creating the right to a jury trial in employment discrimination cases, did
not apply retroactively); but see Waldrop v. Southern Co. Services, Inc. 24 F.3d 152, 157-59 (11th Cir. 1994) (holding that jury
trial required to measure Section 504 monetary relief, but not equitable relief).
192
See, e.g., Doe v. Region 13 Mental Health-Mental Retardation Comm‘n, 704 F.2d 1402, 1407 (5th Cir. 1983) (―jury
trials do not appear to be a matter of right under the Rehabilitation Act… the ‗procedures‘ available do not include juries‖);
Tyler, 849 F.Supp at 1443 (―ADA does not provide ... a right to a jury trial‖); Rivera Flores v. Puerto Rico Telephone Co., 776
F.Supp 61, 71 (D. P.R. 1991) (Section 504 ―provides no statutory right to a jury trial‖); but see Waldrop, 24 F.3d at 157-59
(holding that jury trial required to measure Section 504 monetary relief, but not equitable relief).
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Even determining the amount of damages, as opposed to finding liability, appears to be an equitable matter, and
hence not something for a jury.193
G. Attorney’s Fees, Costs, and Litigation Expenses
One should note, finally, that ADA actions allow a potentially broad recovery of a successful attorney‘s out-ofpocket expenses, as well as the attorney‘s fees and costs.194 This is important because damages are not available in
Title III actions, and minimally available, if at all, in Title II suits. Nor are attorneys‘ fees awards particularly large,
thus making the recovery of out-of-pocket expenses all the more important. These expenses include expenses of
experts whom ADA plaintiffs need to employ, such as an expert assessing compliance with ADAAG‘s physical
access requirements or a jail expert on suicide prevention.
The ADA proviso is broader than the traditional civil rights fees statute, 42 U.S.C. §1988, in that the latter
provides for attorney‘s fees, costs, and limited expert fees, but not ―litigation expenses,‖ and does not allow fees
against a judicial officer unless the officer acted ―clearly in excess‖ of the officer‘s jurisdiction.195 The ADA does
not contain language, extending protection to judicial officers.196
The ADA is not clear as to the meaning of ―litigation expenses,‖ although Congressional history does offer
guidance. The House of Representatives attempted to clarify ―litigation expenses‖ by publishing, for the record, an
explanatory comment, the relevant portion of which states:
Litigation expenses include the costs of expert witnesses. This provision explicitly incorporates the
phrase "including litigation expenses" to respond to rulings from the Supreme Court [footnote omitted] that items such as expert witness fees, travel expenses, etc., be explicitly included if intended to
be covered under an attorney's fee provision. Further, such expenses are included under the rubric
of "attorney's fees" and not "costs"....197
The Senate adopted the ―litigation expenses‖ language used by the House of Representatives and the accompanying report.198 Crawford Fitting,199 the Supreme Court ruling referenced in the House comment, which Congress
clearly sought to overrule, held that, absent explicit statutory or contractual authorization for the taxation of the
expenses of a litigant‘s expert witness as ―costs,‖ federal courts are bound by the parsimonious $40/day limitation in
28 U.S.C. §§1821 and 1920.200
Congress passed §12205 of the ADA as an incentive for private attorneys to take ADA cases and thus help
enforce the ADA as matter of national policy.201 Perhaps because of the ADA‘s language, the regulation promulgated thereunder,202 and the clear congressional intent, there has been little litigation on this point. 203

193

See Consolidated Rail Corp. v. Darrone, 465 U.S. 624, 630 (1983) (indicating that, while recovery of money damages is
available under Rehabilitation Act, the nature of the remedy is equitable).
194
42 U.S.C. §12205 provides:
In any action or administrative proceeding commenced pursuant to this Act, the court or agency, in its
discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee, including
litigation expenses, and costs, and the United States shall be liable for the foregoing the same as a private individual.
Attorneys‘ fees are also available under Section 504. 29 U.S.C. §794a(b).
195
42 U.S.C. §§1988(b), 1988(c).
196
See 42 U.S.C. §§12101-12189.
197
H.R. Rep. No. 101-485, pt. III, § 505, at 73 (1990), citing Crawford Fitting Co. v. Gibbons, 482 U.S. 437 (1987).
198
S. 933, 101st Cong. (1989). The Senate bill passed in lieu of the House bill (H.R. 2273, 101st Cong. (1990)) after its
language was amended to contain much of the text of the House bill. H.R. REP. NO. 101-485, pt. III, at 1. The Senate, through
acquiescence, signaled its adoption of the House‘s language (codified at 42 U.S.C. §12205) and accompanying explanatory
comments.
199
Crawford Fitting Co., 482 U.S. at 445.
200
Congress also subsequently amended 42 U.S.C. §1988 to provide for expert fees for actions under 42 U.S.C. §§1981,
1981a. See 42 U.S.C. §1988(c).
201
Congress has done this as well for other civil rights statutes, for example, enacting the attorneys‘ fees provision of 42
U.S.C. §1988 as a way of encouraging private attorneys to handle civil rights cases under 42 U.S.C. §§1981, 1981(A), &1983.
See H.R. REP. NO. 1558, at n.5 (1976). See Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402 (1968) (aggrieved
parties more likely to vindicate Congressional policy and advance the public interest when not forced to bear their own attorneys‘
fees.).
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IV. CONCLUSION
While this article considers only the ADA and Section 504 and how they interface with government in the
context of law enforcement, one should recognize that other federal laws also protect people with disabilities in a
whole host of situations, in virtually every facet of people‘s lives in the community.
One should also note that states often have their own disability laws that a plaintiff may join with ADA and
Section 504 claims by way of supplemental jurisdiction,204 depending on the nature of the statute.205 In fact, in some
instances, a state law might be broader206 than federal law or might enhance the recovery of damages.207 All the
states and the District of Columbia have disability laws in some fashion or another. 208
As this article suggests, the possibilities are limited only by the creativity of counsel and the consensus of the
courts when calling forth the ADA to fill in the void left by §1983 decisional law for people with disabilities, to
augment a civil rights action along with §1983, and to set contemporary standards that inform §1983.
Thus, when pleading a lawsuit in which there is a viable ADA claim, counsel first should plead the ADA Title
II action against the government entity involved and, if appropriate, also plead a Section 504 claim. Next, plead a
§1983 action, carefully and in great factual detail, against an individual and/or municipality, as appropriate, to
overcome potential immunity issues. Finally, as part the second step, use the ADA (and Section 504) to establish the
standards applicable for the ―reasonableness‖ and ―well-settled law‖ prongs of the qualified immunity test or that
establish municipal liability.209
Hopefully, this article has provided insight as to how the ADA may provide relief in civil rights cases in which
§1983 itself would not typically allow recovery for people with disabilities with regard to government and law
enforcement because of various court-created doctrines and decisional law that have come to make §1983 more
problematic.

202

The preamble to ADA Title II regulations explains "[l]itigation expenses include items such as expert witness fees, travel
expenses, etc." 28 C.F.R. Pt.35, App.A, Section-by-Section Analysis, §35.175.
203
See Lovell v. Chandler, 303 F.3d 1039 (9th Cir. 2002), cert. denied, 537 U.S. 1105 (2003); Corbett v. National Products
Co., No. 94-2652, 1995 WL 284248 (E.D.Pa. May 9, 1995) (finding §12205's specific language allowing ―litigation expenses is
much broader than the provisions of §1920 controls‖ and granting plaintiffs expert witness fees, in excess of what §1920
permitted. But see Clark v. Virginia Bd. of Bar Examiners, No. 94-211-A, 1995 WL 795674 (E.D. Va. Aug. 22, 1995)
(construing ―costs‖ in §12205, but not ―litigation expenses,‖ and denying reimbursement for expert fees as costs); Lara v.
Cinemark USA, Inc., 207 F.3d 783 (2000) (adversely construing plaintiffs‘ expert expenses in dictum,) (the author was counsel
for the Lara appellants).
204
See, e.g., Tex. Gov. Code §469 (Elimination of Architectural Barriers); Tex. Human Resources Code Ann. §§121.001121.004 (providing private cause of action, with an unlimited statutory penalty of at least $100 and attorney‘s fees, for
discrimination against persons with disabilities and violation of their rights); §§121.005-121.007 (prohibition of discrimination
against people with disabilities using animals). Some states offer broader protection than the ADA.
205
There is the caveat, however, that the Eleventh Amendment bars a federal court from adjudicating supplemental state
law claims against non-consenting state defendants. Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 120-21 (1984).
Nor may a state be sued in its own courts, without its consent, for Title II violations. See Alden v. Maine, 527 U.S. 706 (1999)
(suit in state court by probation officers against state for violation of overtime provisions of federal Fair Labor Standards Act
barred by Eleventh Amendment).
206
See, e.g., Colmenares v. Braemar Country Club, Inc., 130 Cal.Rptr.2d 662 (Cal. 2003) (unlike the ADA, which requires
that the individual's condition pose a "substantial limitation" to a major life activity, the California Fair Employment and Housing
Act protects any limitation, substantial or not).
207
See, e.g., Department of Corrections v. Human Rights Comm'n, --- A.2d ---- (Vt. 2006), 2006 WL 3821475 (Dec 29,
2006) (holding that Vermont‘s public accommodations law, which prohibits disability discrimination, applies to state prisons).
Vermont‘s public accommodations law allows suits for compensatory and punitive damages and attorneys‘ fees. VT ST T. 9
§4506(a).
208
John W. Parry, A.B.A. Comm‘n on Mental and Physical Disability Law, Monograph on State Disability Discrimination
Laws With State Charts on Employment, Public Services, Public Accommodations, Housing, and Education (a comprehensive
compilation of state disability discrimination laws in the 50 states and the District of Columbia). American Bar Ass‘n (2005).
209
See City of Canton, 489 U.S. at 388.
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ADDENDUM: ADA AMENDMENTS ACT OF 2008
The ADA Amendments Act — Pub.L. No. 110-325, 122 Stat. 3553 (2008), effective January 1, 2009, makes
several important changes to the ADA and Section 504 (Rehabilitation Act), many of which are definitional:
I. MITIGATING MEASURES
A. Mitigating measures are no longer considered in assessing disability
The ADA Amendments Act overturns the mitigating-measures analysis; disability must now be assessed
without considering mitigating measures.
In addition, the Act‘s findings expressly disapprove of the Sutton trilogy, stating that one of its purposes is
to reject Sutton‘s mitigating-measures analysis. The new law also eliminates two findings in the original ADA that
the Supreme Court relied on for its mitigating measures analysis.
B. Definition of mitigating measures
The Act defines mitigating very broadly, and the definition includes a non-exhaustive list. But mitigating
measures do not include ―ordinary eyeglasses or contact lenses.‖ In other words, whether or not a person‘s vision is
substantially limited may be assessed in light of his or her eyeglasses.
However, an employer cannot use qualification standards, employment tests, or other selection criteria based
on an individual‘s uncorrected vision unless it is job-related and consistent with business necessity. Thus, ―if an
applicant or employee is faced with a qualification standard that requires uncorrected vision (as the sisters in the
Sutton case were), an employer will be required to demonstrate that the qualification standard is job-related and
consistent with business necessity.‖
II. BROAD INTERPRETATION OF DISABILITY
The Rules of Construction require that the definition of disability ―shall be construed . . . in favor of broad
coverage of individuals . . . to the maximum extent permitted by the terms of this Act.‖ The Act expressly
disapproves the contrary holding of Toyota Motor v. Williams.
Proof of disability should no longer require extensive evidence. The Act explicitly states that the primary
subject in ADA cases ―should be whether [covered entities] have complied with their obligations, and to convey that
the question of whether an individual‘s impairment is a disability under the ADA should not demand extensive
analysis.‖
A. ―Substantial limitation‖ is broadly interpreted
The Act states that the Toyota Motor standard for assessing ―substantially limits,‖ both in the Supreme
Court and as applied by lower courts in numerous decisions, ―has created an inappropriately high level of limitation
necessary to obtain coverage under the ADA.‖
The Act rejects the holding in Toyota Motor ―that the term[] ‗substantially‘ . . . in the definition of disability
under the ADA ‗need[s] to be interpreted strictly to create a demanding standard for qualifying‘ as a disability.‖
The Act also rejects the Toyota Motor view that ―substantial‖ requires proof of a severe restriction. Further, the
Findings disapprove the EEOC Title I regulation defining the term ―substantially limits‖ to mean ―significantly
restricted,‖ finding that it sets too high a standard. One explicit purpose of the new law is to reject that standard.
Importantly, an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.
B. The definition of ―major life activities‖ is expanded
One purpose of the new law is to reject the analysis in Toyota Motor that:
• the term ―major‖ in the ADA‘s definition of disability must be interpreted strictly to create a demanding standard for disability, and
• the term refers only to ―activities that are of central importance to most people‘s daily lives.‖

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OVERCOMING SECTION 1983 HURDLES USING THE ADA CHAPTER 17

Major life activities ―include, but are not limited to, caring for oneself, performing manual tasks, seeing,
hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating,
thinking, communicating, and working.‖
But ―major life activities‖ are also defined to include ―the operation of a major bodily function, including
but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological,
brain, respiratory, circulatory, endocrine, and reproductive functions.‖
Both the list of major life activities and major bodily functions are illustrative and non-exhaustive, and the
absence of a particular life activity or bodily function from the list does not create a negative implication as to
whether such activity or function constitutes a major life activity under the statute.
Only one major life activity need be limited; an impairment that substantially limits one major life activity
need not limit other major life activities in order to be considered a disability. This confirms that an individual is not
excluded from coverage because of an ability to do many things, as long as the individual is substantially limited in
one major life activity.
C. ―Impairment‖
Although the Act does not include a definition for the term ―impairment,‖ the legislative history supports the
EEOC‘s current regulatory definition of the term.
III. REGARDED-AS CLAIMS
The ―regarded as‖ prong is changed substantially, in two different ways.
A. Regarded-as disability only requires proof of an impairment
―Regarded as‖ simply requires proof of an actual or perceived impairment; there is no requirement that the
impairment be limiting in any way (either actually or perceived). But the impairment (whether actual or perceived)
cannot be something that is both transitory and minor. ―Transitory‖ means lasting less than six months. The term
―minor‖ is not defined in the statute, but the legislative history suggests that it refers to trivial impairments.
B. No accommodations in regarded-as claims
A regarded-as disability will not support a failure-to-accommodate claim.
In creating this exception, Congress expressed confidence that individuals who need accommodations or
modifications will receive them because those individuals will now qualify for coverage under the first or second
prongs (under the less demanding interpretation of ―substantial limitation‖).
But ―regarded as‖ will support a claim involving any other conduct that violates the ADA.
IV. EXAMPLES OF DISABILITIES
Among the conditions referenced in the legislative history as disabilities are epilepsy, diabetes, muscular dystrophy, amputation, intellectual disabilities, multiple sclerosis, cancer, head trauma, cerebral palsy, heart conditions, mental illness, HIV, immune disorders, liver disease, kidney disease, dyslexia, and learning disabilities.
V. OTHER MATTERS
A. Authority to issue regulations
The Act clarifies that the authority to issue regulations implementing the Act‘s definition of disability is
granted to the EEOC, DOJ, and DOT.
B. Rehabilitation Act conformed
The Act changes the definition of disability for claims under the Rehabilitation Act of 1973 to conform to
the above.

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