Remedying a particularized form of discrimination: why disabled plaintiffs can and should bring claims for police misconduct under the Americans with Disabilities Act.

• Author: Brodin, Rachel E.

INTRODUCTION

On November 18, 2000, Ryan K. Schorr, a twenty-five-year-old who suffered from bipolar disorder, was involuntarily committed to the Holy Spirit Hospital in Camp Hill, Pennsylvania, after his family and roommate noticed that his condition was deteriorating. (1) Though Schorr was placed in a high security room at the hospital, when a crisis intervention worker opened his door to enter, he pushed past her and escaped confinement. (2) After Schorr answered his family's phone call to his apartment, his family informed the police of his whereabouts. (3) West Shore Regional Police Officers Harry Hart Jr. and Gary Berresford arrived at Schorr's apartment and, after knocking on the door and receiving no response, entered the residence through a partially open back door. (4) The officers found Schorr in his bedroom, where a violent confrontation ensued. (5) Schorr shot at Berresford's hand and Hart struck Schorr with a baton; eventually Schorr fled the room. (6) The officers called for backup, but before assistance arrived, Schorr, brandishing pots and pans, returned to the bedroom. (7) Hart shot and killed him. (8) Schorr's parents brought an action in their own right and as representatives of their son's estate against the police officers, the police commission, and the chief of police. (9)

The circumstances of Schorr's death are, unfortunately, not unique. There are a number of cases in which police officers, in attempts to apprehend people with mental disabilities, have injured or killed them, even when the victim's family or friend originally summoned the officers to provide assistance. (10) However, what distinguishes the Schorrs' case from the majority of excessive force cases is that the Schorrs not only brought the usual claims for police misconduct under Section 1983, (11) but also sued the police commission under the Americans with Disabilities Act (ADA) (12) and the Rehabilitation Act. (13) The Schorrs alleged that the police commission violated their son's right to be free from discrimination on the basis of disability by "failing to make reasonable modifications to [its] policies, practices and procedure to ensure that his needs as an individual with a disability would be met," (14) in violation of Title II of the ADA. (15) The court agreed that the Schorrs could state a claim under Title II, (16) as well as under Section 1983. (17)

While the court's decision in Schorr I was a significant step toward acceptance of the ADA's application to law enforcement activities, (18) it was not the first judicial opinion to espouse such a notion. As early as 1998, courts began laying the foundation for claims of police misconduct under Title II. (19) The United States Supreme Court has not yet ruled on the applicability of Title II to police actions in effecting an arrest, (20) and historically the circuit courts have been split on the question. (21) However, in many jurisdictions plaintiffs can now bring ADA claims pertaining to police misconduct and realistically believe that they have a chance for recovery. (22)

The growing possibility that disabled plaintiffs (23) can bring claims for police misconduct under Title II has significant benefits for the practice of civil rights law in this country. The traditional route for police misconduct lawsuits, Section 1983, presents many obstacles to success for both disabled plaintiffs (24) and the general population. (25) Any alternative means of bringing a subset of civil rights cases--even one that is limited to a specific group of plaintiffs (disabled persons) and a specific type of claim (police misconduct)--should not be ignored.

This Comment will explore courts' treatment of actions for police misconduct under Title II and the contours of the decisional law in that area. Part I will discuss the theoretical bases for application of the ADA to arrests, namely the wrongful arrest theory and the reasonable accommodation theory. Part II will analyze the case law that has arisen out of plaintiffs' attempts to bring claims for police misconduct under Tire II. Part II will also demonstrate how initial assumptions that lower courts made about the applicability of the ADA to such lawsuits--which prevented them from allowing the claims to go forward--were discredited by the Supreme Court in Pennsylvania Department of Corrections v. Yeskey, (26) leaving the path clear for acceptance of Title II in the law enforcement context. Part III addresses the question of why a disabled plaintiff should bring ADA claims for civil rights violations when the traditional remedy is an action under Section 1983. Part III will also compare the obstacles to recovery under each claim and will attempt to determine under what circumstances an ADA claim might succeed even when a parallel Section 1983 action would likely fail. In addition, Part III will describe the distinction between the ADA and the Rehabilitation Act and the advantages and disadvantages of pleading a parallel claim under the Rehabilitation Act in addition to an ADA claim. Finally, Part III will provide reasons, beyond strategic benefits, for disabled plaintiffs to plead claims in addition to the usual Section 1983 claims. In conclusion, this Comment will bring together two strands of argument--the feasibility of ADA claims for police misconduct and the desirability of those actions over the traditional civil rights claims--to demonstrate that there are important practical and symbolic reasons for plaintiffs to plead their disability claims under the ADA.

1. THEORETICAL BASES FOR APPLYING THE ADA TO ARRESTS: WRONGFUL ARREST THEORY AND REASONABLE ACCOMMODATION THEORY

   Courts have developed two different theories under which a plaintiff may state an ADA claim based on police officers' actions in effecting an arrest. (27) The "wrongful arrest theory" applies when police officers have "wrongly arrested someone with a disability because they misperceived the effects of that disability as criminal activity." (28) A claim under the "reasonable accommodation theory," on the other hand, posits that even though police officers properly investigated and arrested a person with a disability, they "failed to reasonably accommodate the person's disability in the course of investigation or arrest, causing the person to suffer greater injury or indignity in that process than other arrestees." (29) In addition, there are cases that fall in between the two theories, to which courts have generally declined to apply Title II. (30)

   1. Wrongful Arrest Theory

      A plaintiff has a valid claim under the wrongful arrest theory if police officers have arrested her because of lawful actions that she has taken as result of her disability. The paradigm case illustrating this theory is Lewis v. Truitt. (31) In Lewis, three police officers went to plaintiff Charles Lewis's home in order to take his granddaughter to police headquarters to resolve a custody dispute. (32) The officers attempted to speak with Lewis, even though other people present at the house had told the officers that Lewis was deaf and that the best way to communicate with him was by writing questions down on a piece of paper. (33) The officers proceeded to enter the plaintiff's home and "physically assault[]" him, causing "bruises, contusions, and severe internal injuries." (34) They eventually arrested him and charged him with resisting law enforcement. (35) Lewis filed an action against the officers and the city under the ADA, and the court partially denied defendants' motion for summary judgment on the claim, stating that "a genuine issue of material fact exists on the question of whether Defendants arrested Plaintiff because of his disability." (36)

      Courts have similarly allowed ADA claims to go forward based on allegations of wrongful arrest as the result of other disabilities. In Jackson v. Inhabitants of Sanford, plaintiff Roland Jackson argued that he was arrested because of symptoms that he suffered after a stroke and that the Town of Sanford had failed to train its police officers to recognize such symptoms and to modify its policies, practices, and procedures to prevent discriminatory treatment of the disabled. (37) Jackson had been arrested for driving under the influence of intoxicating liquor and/or drugs after a police officer noticed that he was "unsteady on his feet, swayed noticeably, slurred his speech, and appeared confused." (38) Even though Jackson informed the officer that he was not drunk and that he had suffered a brain aneurysm that left him with physical difficulties, the officer insisted that Jackson perform sobriety tests. (39) After Jackson could not satisfactorily complete the tests due to his physical disabilities, the officer arrested him. (40) The court denied the town's motion for summary judgment on the ADA claims. (41)

      Although few judges have specifically recognized the existence of the wrongful arrest theory in their rulings on plaintiffs' ADA claims for police misconduct, the idea behind the wrongful arrest theory--that police officers violate the ADA when they arrest a disabled individual because of actions that the individual was engaged in due to her disability--has been espoused by courts in a number of circuits. (42)

   2. Reasonable Accommodation Theory

      While the wrongful arrest theory applies when an arrest results from an individual's disability, the reasonable accommodation theory applies when there is a legitimate basis for the arrest, but in making that arrest the police officers do not take steps to reasonably accommodate the plaintiff's disability. Even though a number of courts have noted their preference for the wrongful arrest theory over the reasonable accommodation theory, with some even stating that only claims under the former are viable, (43) recent developments in Title II jurisprudence (44) have opened the door to plaintiffs' arguments under the reasonable accommodation theory.

      In Rosen v. Montgomery County, plaintiff...