*3 Spears, Lauren’s mother. Blake had driv- GRIFFIN, KEITH and Circuit Before: pick up from Alabama to en Tennessee TATENHOVE, District Judges; VAN wife, Lauren, and their small child his Judge.* disagreement Donna’s home. A arose from to return to as to whether Lauren desired TATENHOVE, D.J., delivered the VAN Blake, and a neighbor Alabama with GRIFFIN, court, in which opinion of the they ar- phoned the Police. When 542-45), J., KEITH, (pp. J. joined. rived, it became clear concurring in separate opinion delivered speech from a and im- suffered dissenting part. part and uti- pairment. Consequently, the officers to communicate. pen paper lized OPINION After these written discussions with Lau- TATENHOVE, Judge. District VAN ren,2 initially engage who was reluctant challenge the district Appellants officers, appeared it the matter was summary judgment in fa- grant court’s and Lauren would leave with resolved government entities as to their vor of two Blake. under the Amer- claims for accommodation Although the exact sur- circumstances arrest, icans with Disabilities Act clear, rounding departure are not detention, appearance, initial post-arrest into an appears got that Blake altercation dispositional hearing charges. on their neighbor, Judy with a Crotts. One of the Generally, the district court determined officers, Pope, Officer saw Blake strike at were not either the actions issue Crotts, Spears. push Ms. Ms. Officer com- covered and/or attempted then to restrain Blake and Pope munication effective was as him place responded that available to non-disabled under arrest. Blake * Tatenhove, ques- Gregory F. Van claims under the ADA raise a federal The Honorable Judge tion. United States District for the Eastern sitting by designation. Kentucky, District requested that Lauren 2. The Tuckers claim jurisdiction pursuant conversation, to 28 1. This Court has interpreter during this but to claims, § U.S.C. 1291 because the district court’s forgone the extent Lauren has this here, grant summary judgment was a "final deci- point is irrelevant and further had no impact analysis sion.” Jurisdiction in the district court was on the district court's remaining proper under 28 U.S.C. 1331 because the Tuckers’ claims. morning. Pope. Although Although Blake the Tuckers claim by striking Officer intentionally assaulted requested sign language interpreter that he disputes Crotts, fell down and jail, Judge he concedes she while at the Smith testified that Ms. Pope, screaming. As Officer the first time he started learned Odis and him, again but Blake admits he struck hearing impaired Blake were was when After wit- that it was intentional. disputes they appeared Monday at morning assaults, Pope arrested nessing two Officer hearing. charged resisting him with ar- Blake and official, Through a court assault, officer,
rest, assault on an provided a containing written card *4 disorderly conduct. rights, they their nodded their understand- police the apparently Odis came towards ing, plea guilty” wrote a of “not a piece on during Blake’s arrest with his fists officers paper, Judge Smith released them ar- Consequently, clenched. he was also on recognizance pending both their own interference with an charges rested on hearing. further The matter was then set conduct, officer, disorderly resisting hearing for on March 19. The state court arrest. attorney, received notification that an Larsen, Rusty had been repre- retained to arrests, City the Police
After their Judge sent Odis and Blake. In a letter to Blake and Odis to the Hardin transported Smith, Mr. Larsen that a sign advised There, County and Blake re- Jail. Odis language interpreter “appreciat- would be quested telephone to make a TDD/TTY March hearing. ed” for the After jail phone Although call. the did not have learning not be jailers could requested technology, the the al- date, Vonnie, particular Judge obtained for that phone lowed Blake and Odis to Larsen, Smith called Mr. as counsel for by way relay who talked with them of a Blake, Odis and and offered to continue operator. To facilitate effective communi- hearing. Odis, dispute the The Tuckers do not jailers cation for Blake and the facts, these nor does the record refute through relay translated on their behalf them, although Mr. Larsen does not recall forty-five operators for over minutes. telephone Judge the conversation with overnight detained Odis were record, however, The Smith. contains appearance following until their initial from showing records the call made morning. to Mr. Larsen’s office. Judge Smith jurisdiction, those typical As was Further, an initial in Mr. Larsen appearance deposition, individuals entitled to his that, the criminal admits after consultation with his placed were on docket. case, Tuckers’, clients, turn, not to including each Blake and Odis decided hearing the March 19 morning. Judge postpone was set and called Smith, presided théy anticipated entering guilty plea proceeding, who over Specifically, he recognized charges against that Odis and Blake suffered them. hearing that he advised his clients that no impairment. from a He discerned testified impairment they based on the sounds would be available at they making hearing, and their mannerisms while March 19 declined continuance; rather, they at- awaiting arraignment. Accordingly, request he agree- that an proceedings anticipation to the end of the tended with the moved their regarding could communicate more ment could be reached docket so he effectively sign, lan- Mr. Larsen testified that he met charges. with them because morning that with his clients on the of March guage interpreter present was not County where under the ADA. Both Hardin in of the advance summary judg- Police moved for potential plea, and made the discussed the claims, all ment on and these motions were final, proceed voluntary decision granted. interpreter. morning without The district court concluded that Von- charges against
Ultimately,
Odis
nie’s claim
failed
hearing.
were dismissed
advance
voluntarily
in-
because she
served as an
counsel, Blake
Through his
entered
terpreter
dispositional hearing
charges
guilty plea to reduced
and was
charges.
and Blake’s criminal
Her
diversionary program. During
on a
placed
requested
light
sign
service was
of her
proceeding,
voluntarily acted
this
Vonnie
language
skills and not for
discrimina-
Odis, Blake,
a translator between
Mr.
tory
purpose.
disposed
lower court
Larsen,
request
and the state court. This
Blake and Odis’ claims
accordance with
Again,
was made
Mr. Larsen.
temporal
upon
event
which
dispute
Tuckers do not
Mr. Larsen’s testi-
claimed discrimination.
mony
veracity
or the
of the chain of
*5
Instead, they
they
now claim that
arrest,
events.
respect to the
With
the district
choice but
Police,
felt that
had no
to enter
City
arresting
court held that the
plea
Odis,
the
because
did not believe an
performing
Blake and
were not
“service,
would be
at a
interpreter
program,
activity”
subse-
to which the
addition, they
quent hearing.
they were,
make ADA
if
applied, or that even
general allegations
regard-
any
intentionally
of “confusion”
denial was not
ing
proceedings.
opinion
the
disabilities. The
relied on
jurisdictions holding
the rationale of other
foregoing,
Based on the
that,
context,
such
the “arrest” was
rights
against
filed this civil
action
the
type
activity
by
not the
covered
the
Appellees. Specifically,
held,
Although
explicitly
ADA.
it ap-
City
claim that
the
Police discriminated
that,
pears the court reasoned
even if the
against
by
them violation of the ADA
arrest,
applied
ADA
to the
there was no
failing
provide a qualified sign language
intentional discrimination based on their
interpreter or other such reasonable ac-
hearing impairment.
commodation(s) during their arrest follow-
order,
By separate
the district court
Next,
ing the domestic disturbance call.
reached two
regarding
conclusions
the
allege
Odis and Blake
Police
post-arrest
jail. First,
detention at the
the
civil rights
failing
violated their
to have
court concluded that
the brief detention
provide
available
tele-
and/or
TDD/TYY
“service, activity,
was not a
program”
jail
where Odis and Blake
meaning
Second,
within the
of the ADA.
were
pending
detained
an initial appear-
reasoned that even if the detention was
Finally,
ance.
Odis and Blake claim that
covered
the
Odis and Blake failed
violated the ADA when the
any injury
to show
resulting from the use
judge
sign
state court
failed to
relay operator
jail
and that
language interpreter at either the initial
accommodated Odis and Blake in a manner
appearance
dispositional
or the
hearing on
that resulted in communication that was as
charges
against
the criminal
asserted
them
that
effective as
received
non-disabled
in state court. Vonnie asserts that
judge’s
state court
use of her services as
Next,
during
dispositional
that,
the lower court concluded
at
hearing
rights
arraignment,
likewise violated her civil
Odis and Blake received
appear-
of an “initial
Federal Rule of Civil Procedure
the same benefits
56(c) provides
judgment
that
for the mov
Tennessee law as those af-
ance” under
ing party
appropriate
plead
when “the
persons, despite the
forded to non-disabled
ings, depositions,
interrogato
answers to
unavailability
sign language interpret-
aof
ries,
file, together
and admissions on
ADA violation oc-
Accordingly,
er.
no
affidavits,
any,
if
show
there is no
curred.
genuine
issue as to
material fact and
Finally, the district court held that Odis
that the moving party
judg
is entitled to
standing
did not have
to assert
ment as a matter of law.” See also
dispositional hearing
claims related to the
692,
Browning Dep’t Army, 436 F.3d
given
charges
dropped
(6th Cir.2006) (citations omitted).
participate
him and he did not
in it.
While all inferences are drawn in favor of
Blake,
heavily
court
As for
relied
non-moving party,
party
still must
he,
counsel,
advice of
the fact
with the
present
support
some affirmative evidence
continuance,
attend
declined
and chose to
ing
ap
its
to defeat an otherwise
position
guilty knowing that
plead
propriate
summary
motion for
judgment.
present,
not be
but
would
id.,
See
see also Matsushita
Indus.
Elec.
at a
could be available
later date without
Corp.,
v. Zenith Radio
Co.
475 U.S.
Admittedly,
detriment to him.
Blake had
586-587,
106 S.Ct.
novo. Because of B. law, ment made as a matter of is grant summary judg district court’s of Congress enacted the Americans with (“ADA”) v. ment reviewed de novo. See DiCarlo Act with the noble Disabilities Potter, 408, Cir.2004); 414 358 F.3d a and com- purpose “provid[ing] clear v. Thompson County, Williamson Tennes national mandate for the elimi- prehensive (6th Cir.2000). see, 555, 219 F.3d 557 nation of discrimination individuals 12101(b)(1). words, § 42 apply other we the same standard with disabilities.” U.S.C. A under the ADA if he applied by person as that the district court. is disabled say This is not to that there are impair- or mental physical has “a or she obligations imposed by no limits to the more substantially limits one or ment First, II we have public Title entities.3 of such individu- major life activities of the requirements of Title II are noted al; impairment; of such an a record [has] “subject to the bounds of reasonableness.” impair- such an regarded having or [is] Second, regulations Id. the federal 12102(2)(A)-(C). § Title ment.” 42 U.S.C. promulgated have been to effectuate com qualified “no individual provides II make clear that pliance public entities shall, by of such disability a reason duty upon entities is not abso public disability, participation be excluded from example, lute. For the ADA “does not services, in or be denied the benefits require public entity to take action public entity, of a programs, or activities that it can demonstrate would result subjected by any discrimination or be alteration in the nature aof fundamental 12132; § entity.” 42 see also such U.S.C. service, program, activity or or in undue Lane, 509, 517, 124 Tennessee v. 541 U.S. and administrative burdens.” financial 1978, (2004); L.Ed.2d 820 S.Ct. added). So, (emphasis 28 C.F.R. 35.164 Thompson County, Tennes- Williamson prima to establish a facie case of discrimi (6th Cir.2000). see, 219 F.3d Fur- plaintiff nation under the must ther, it individual with “qualified defines prove that: disability” (“QID”) as one: “(1) (2) disability; she has a she is oth- who, with or without reasonable modifi- (3) qualified; being she is erwise rules, policies, practices, cations to or in, participation being excluded from de- architecture, the removal of communica- of, being subjected or nied benefits tion, or transportation barriers program to discrimination under services, provision aids and solely disability.” her eligibility require- meets the essential City Sandusky, Dillery v. 398 F.3d receipt par- ments services or the (6th Cir.2005) (citing Jones v. ticipation pro- programs activities *7 (6th Cir.2003)). Monroe, 474, 341 F.3d 477 by public entity. vided Further, plaintiff must show that the 12131(2) added). § (emphasis 42 U.S.C. intentionally discrimination was directed Consequently, we have held that “the dis- particular. toward him or her in See id. at crimination forbidden Section 12132 (“ 568 and omissions which have ‘[A]cts services, regard programs must be with disparate impact persons on disabled in or activities quite otherwise would be general specific [are] acts intentional plain- unclear how we would determine if a against plaintiff] par- discrimination [the QID.” Saline, ticular.’”) tiff is a Johnson v. (citing Tyler City Manhat- Cir.1998). (6th 564, (10th Cir.1997)). tan, 1400, 151 F.3d 569 Of 118 F.3d course, we also have concluded that “the plaintiff requirements, If the meets these ‘services, phrase programs, or activities’ then the burden shifts to the defendant to encompasses virtually everything public provided show that the accommodation effective,4 entity does.” Id. either or that the aceommo- was (a) "public entity” public entity appropriate 3. The ADA 4. A take defines term shall steps ap- to ensure that communications with governments, include state and local as well participants, plicants, and members of the agencies as their and instrumentalities. See public with disabilities are as effective as 12131(1). § 42 U.S.C. with others. communications provided prima and not would have facie case of sought dation discrimination. Therefore, in a alteration of the resulted fundamental only we need consider whether or an undue financial or admin- procedures Appellant each has established that he or Lane, e.g., 541 U.S. istrative burden. See intentionally she was par- “excluded from 532,124 at 1978. S.Ct. in, of, ticipation being denied the benefits subjected case, being to discrimination under
In
Tuckers are deaf and
this
mute;
therefore,
question
program solely
becomes
[his or] her
(cita-
appropriate axillary
whether
aids
disability.” Dillery,
County, 480 F.3d Cir. Vonnie Tucker asserts 2007) A); (citing pt. app. 28 C.F.R. see judge’s state court use of her services as 35.160(b)(2) (“In also 28 C.F.R. deter- during dispositional mining type what aid and ser- rights violated her civil under the necessary, public entity give vice is shall ADA. The district court concluded primary consideration to requests claim Vonnie’s disabilities.”). the individual with voluntarily failed because she served as dispositional hearing matter, assume, preliminary
As a
we
*8
charges.
criminal
Her
Odis and Blake’s
parties
Tuck-
agree,
because the
the
requested
light
sign
service was
in
of her
qualified
ers are
individuals under
the
Second,
language
any
not
parties stipulate
ADA.
the
skills and
discrimina
in
prongs
tory purpose.
finding
Tuckers have met the first two
of
This
was not
(b)(1)
public entity
appro-
A
shall furnish
28 C.F.R. 35.160.
priate auxiliary aids and services where
question of
necessary
an
5. The dissent contends that the
to afford
individual with a
disability
equal opportunity
partici-
entity may
an
whether an
be excused under this
in,
of,
service,
pate
enjoy
the benefits
a
provision a "factual
that should be ad-
one
program,
activity
by public
or
conducted
a
jury.”
a
our
dressed
Because
decision
entity.
rests on the reasonableness and effectiveness
(2)
determining
type
In
what
of
actually provided
the
to the
communication
necessary, public entity
aid and service
a
Tuckers, we do not address this issue.
give primary
shall
consideration to the re-
quests of the individual with disabilities.
“service, program,
correctly
whether an “arrest” is a
court
con-
The district
error.
ADA.7 In
activity” contemplated
or
the
not denied the
was
cluded that Vonnie
not,
determining that it is
the district court
“service, program, or activi-
any
benefit of
guidance
this cir-
fact,
noted the lack of
from
disability.
In
she
her
ty” because of
cuit,
a
proceeded
spe-
to conduct
“fact
be an
by agreeing to
provided a service
analysis consistent with that of other
cific”
hearing.
If
dispositional
facts.
role,
having
courts
considered similar
in
a
she
uncomfortable
such
was
she
Further,
it.
perform
didn’t have
in
example,
Montgomery
For
Rosen v.
importantly,
performed
she
this role
most
ically, the Rosen Court found that an ar- eligibility requirements essential challenge Blake Tucker Odis and partic- a voluntariness in their rest assume grant summary judgment favor of ipation very that contradicts the circum- City Police as it relates to their arrest. stances, voluntariness, and lack of which City Blake claim that the Police Odis and usually surround an arrest. Id. at 157. discriminated them violation words, a conclusion which finds a other by failing qualified ADA eligi- person’s criminal behavior meets the sign language interpreter or other such ADA bility requirements implicating the accommodation(s) during reasonable language both the and intent of distorts domestic disturbance call resulted the statute. See id. The district court found that their arrest.6 went on to consider The Fourth Circuit Police, in arresting Blake and auxiliary aids should have been whether “service, Odis, performing pro were not arrest, during available to Rosen his made gram, activity” ap to which the requirement and found that such a would Further, if plied. it concluded that even impede ability per- of the officers to activity, the arrest an ADA-covered was jobs during on-the-spot, form their in-the- the Tuckers failed to show intentional (“The do not police field arrest. See id. solely denial of benefits get have to before can disabilities. robber, fleeing stop and shackle bank matter, language stop
As an initial
do not have to do so to
driver, conduct a field
specifically
suspected
statute does not
enumerate
drunk
*9
er,
allege
City
opinion
not address the situa
6. Odis and Blake also
that
does
tion,
here,
complete
required
presented
failed to
the self-evaluation
offi
like the one
where
exists,
failure,
Any
arrest,
under the ADA.
such
if it is
conducting an
cers are
or
arrestee
Pennsylvania
cause
action that the one
is
different
being
pre-arraignment.
detained
See
presented
e.g.,
here. See
42 U.S.C.
1983.
Yeskey,
Dep
Corrections v.
524
t.
1952,
210-211,
U.S.
118 S.Ct.
141
Notably,
Supreme
the U.S.
Court has held
(1998).
L.Ed.2d 215
prisons
that state
fall within the
howev-
arrest”)-
test,
Likewise,
make an
The
to conclude that an
sobriety
may
arrest
“activity” subject
be an
ultimately concluded that the
to the ADA
Rosen court
does
finding
interpreter
not direct a
that an
that
use of
was
plaintiff failed to show
Each
here.
of the Tuckers must
changed
aids would have
that
show
he or she was intentionally
that
any way,
events in
and further noted
against solely
discriminated
because
his
justice system
provides
the criminal
itself
or her
in
disability
the context of that
adequate protections for an invalid arrest
service,
public
activity,
program,
or that
evidence).
id. at
(e.g., suppression of
See
reasonable accommodations were not made
157-158;
Murphy,
F.Supp.2d
Patrice v.
to provide them with
that
communications
(W.D.Wash.1999)
(finding
that
were as effective as those
to non-
require
arrests often involve and
immedi-
disabled
Dillery,
See
398 F.3d at
responses
ate
from law enforcement such
(citations omitted); Bircoll,
567-568
“only
that
ADA
to an arrest
applies
(noting
F.3d at 1085
the ADA pre-
subjected to
where the arrestee was
dis-
vents
in
regard-
discrimination
all contexts
disability”).
crimination
of his
service,
presence
“program,
less of the
of a
court,
not cited
the district
Athough
activity”).
all
Assuming
facts
recently
the Eleventh Circuit
considered favor, we believe Odis and Blake fail to
strikingly
facts
similar to those here and
given
meet this burden
the undisputed ma-
found no ADA violation.
In Bircoll v.
terial
facts
the record.
(11
County,
Miami-Dade
As an initial matter in this we is no in the record evidence to show that find that applies to the post- the denial intentionally discriminatory was jail, arrest detention at the and note that to sustain an ADA claim. To parties stipulated have Tuck contrary, any delay appears to have qualified ers are individuals. Upon re been in an effort to find an accommodation view, however, we conclude that the Tuck for them to ensure were able to com- ers were not intentionally discriminated effectively municate as as non-disabled *12 they claim re- noted, the As Tuckers the Then, assisted jailers the
persons.
allege
and
phone,
TTY
quested a
phone
requested
their
making
Tuckers
jail constitutes
at the
phones
of these
lack
did so
relay operators,
utilizing
call
the
rights under
ADA.
of their
a violation
To
forty-five minutes.
approximately
for
Department
the
they reference
support,
In
pro-
their due
feel
the Tuckers
extent
the
(“DOJ”) website,
in its
where
of Justice
the Ten-
under
violated
were
rights
cess
section, there are
and answer
question
have
they may not
nessee Code
in-
Department’s
the
regarding
comments
they
the call before
to make
able
been
regula-
enabling
of the ADA
terpretation
“booked,”
presents
that
officially
were
required accommoda-
the
regarding
tions
under
than one
action
cause of
different
again,
But
qualified
for
individuals.
tions
ADA.
the
light
in the
reviewing the record
after
Odis
Moreover,
Blake and
both
since
Tuckers,
con-
we
to the
most favorable
call, they
a phone
make
permitted to
were
communication
that
received
clude
all.
activity at
service or
not denied
were
provided
as those
as effective
opportunities
words,
reason-
conclude that
In other
we
persons.
to non-disabled
their
made on
were
accommodations
able
com-
that
the DOJ
conceding
Without
that
the
complaint is
The
behalf.
chief
cited
binding,
provision
the DOJ
ments are
was
requested
auxiliary equipment
specific
who
that “Arrestees
Tuckers notes
by the
failure was intention-
and this
available
not
hearing may require
hard of
are
deaf
Here,
ar-
the Tuckers
ally discriminatory.
making outgoing
devise for
TDD/TYY
jailers
Sunday evening,
the
late
rived
commentary only suggests
The
calls.”
arrival of Blake
anticipate the
not
did
may be
auxiliary devices
specific
that those
Therefore, the
jail.
failure
their pres-
It does
mandate
required.
not
not
phone
a TTY
was
have
provide or
fact,
enabling regulations
In
ence.
attempt
to dis-
in an
intentionally done
only that the communica-
note
themselves
either of them because
criminate
provided
as that
be as effective
tion must
them a ser-
deprive
disability, or
their
that
re-
persons,
to non-disabled
disabili-
without a
that other detainees
vice
be considered. See
quested device should
fact,
jail made
In
receive.
ty would
not require
§
It does
C.F.R.
35.160.
efforts
accommo-
than reasonable
more
auxiliary device be
every potential
that
made
disability once
were
date
request
partic-
standby so that whatever
phone
by aiding them their
of it
aware
can
makes
be accommodat-
ular individual
as effec-
communication
providing
call and
that,
light
contends
ed.
dissent
per-
provided
non-disabled
aids,
tive as
auxiliary
provided
the definition
dissent,
assume, as does the
way
sons. Nor we
jailers provided
the assistance
task.
up
to the
jailers
relay operators
denied
Tuckers
of the
authority
no
Moreover,
cite
appropriate
the Tuckers
a “qualified”
private.
regulations.
had to be
call
aid
jail or
like
re-
fact,
made
other
both overstates the
argument
calls
from
This
by prison
literal
quirements
monitored
institution
often
II
Therefore,
itself. Title
of the statute
giving
language
officials.
doubt,
entity
pro-
must
specifically
of the
states that
every factual benefit
“auxiliary
had
aids and services” which
during the call
vide
jailers
presence
ef-
interpreters or other
oppor-
“qualified
rights or
include
on the Tuckers’
no effect
aurally
making
deliv-
methods
different
fective
that would
than
tunities
materials
individuals
ered
available
to non-disabled
impairments.”
Dillery
U.S.C.
v. City
Sandusky,
398 F.3d
12102(1)(A).
(6th Cir.2005)
enabling regula-
*13
While the
(citing Tyler v. City of
Manhattan,
may-
(10th
note what items and
1400,
tions
services
118 F.3d
Cir.
1997)).
definition,
meet
this
is not
exhaustive
certainly
While we
recognize that
exclusive
list.
See
28 C.F.R.
provided
accommodation
to the Tuck-
35.104(1)
(“auxiliary
ideal,
aids and
ers is
services”
not
that alone does not make it
include, among
things “qualified
other
in- unreasonable or a violation of the ADA
terpreters”
“telecommunications under these facts.
e.g.,
and/or
See
Jones v. City
(TDD’s)”).
Monroe,
(6th
devices for
persons
Cir.2003)
deaf
In’
capped-accessible sidewalks and to train employees its about the ADA all affects The district court concluded that disabled persons, just not Dillery. was not failing liable for Thus, Dillery cannot demonstrate that sign language interpreter at the Sandusky intentionally discriminated initial appearance because Odis and Blake against specifically by her failing to un- received the same benefits of an “initial dertake these actions. appearance” “[A]cts omis- under Tennessee law as those disparate sions which have a impact on persons, despite afforded to non-disabled persons disabled in general unavailability. [are] of. an interpreter. specific acts of facts, intentional Again, discrimination finding these this was not plaintiff] in particular.” [the error. communi- effective every to ensure effort stipulation accept the continue
We
in accordance
cations for
individuals
qualified
parties
that these
ap-
ADA.
the ADA
with the
agree that
under
proceedings,
to court
plies
Tuckers were
Having concluded
crimi-
to aid
shall
service,
for a
opportunity
not denied
communication
effective
nal defendants
of their
activity because
dis-
program or
e.g., Tennessee
See
the courts.
they received
ability, we turn
whether
509, 532, 124 S.Ct.
*14
Lane, 541 U.S.
as non-disabled
as effective
communication
(citations omitted);
(2004).
158 L.Ed.2d
a crimi-
appearance,
an initial
At
persons.
Saline, 151 F.3d
Johnson
things:
to three
is entitled
nal defendant
Cir.1998).
before
question
The
(2)
(1)
receive
plea;
to enter a
opportunity
however,
us,
court,
now
is
the district
(3)
date;
present.
physically
be
trial
a
intentional
Tuckers suffered
whether the
beyond
is
dis-
P.
It
Tenn. R.Crim.
disabilities,
of their
because
discrimination
Blake Tucker
Odis and
that both
pute
reasonable accommodations
and whether
at their
benefits
initial
all of these
received
them to have
that allowed
provided
were
however,
claim,
that
They
appearance.
non-dis-
as effective as
communications
proceedings
the
understand
they did not
abled
of their
properly
not
advised
and were
on Tenn.
rely primarily
Tuckers
however,
claims,
are belied
rights. These
24-l-211(b)(l)
re-
which
Ann.
Code.
Upon deter-
evidence.
undisputed
language
appoint
sign
to
a court
quires
were
Blake and Odis
mining that
in which a
any proceeding
interpreter
they
the sounds
were
on
impaired based
true,
While
is a defendant.
person
deaf
during the
courtroom
initial
making in the
person
requires the deaf
also
provision
this
a hand-written
judge
appearance,
sent
make
need and
court of the
notify
move their
that he
advising
note
would
the state
interpreter
from
request for
that
of the docket so
he
to the end
case
24-l-211(c). Although
§at
See
court.
id.
At
time with them.
that
spend more
could
they made this re-
claim
Blake and Odis
ap-
initial
delay
than
their
point, rather
night,
jail
previous
there
at
quest
the state court
hearing,
pearance and bond
us that
before
record
is no evidence
Tuckers
judge communicated
at their initial
request
this
they repeated
by way
a court
*15
violation relying primarily on the fact that
court,
requested,
even
interpret-
the
an
Blake,
counsel,
with the advice of
declined
true,
hearing.
er for this
Even if
continuance,
a
and chose to attend the
request
jail
equate
request
to the
does
to a
hearing
plead guilty
and
knowing that an
court,
jail
nor does a failure of the
interpreter
present
would not be
until a
relay
request
this
impute liability to the
later date. This is correct as well.
court if
provided.
one was not
Blake and
Although
regulations require
have
request
Odis could
made this
to the
persons with
provided
disabilities be
hearing,
court
the initial
at
made some
option
declining
accommodation,
an
see
effort to communicate
necessity
this
to the
Olmstead L.C. ex rel Zimring, 527 U.S.
court.
of entering
Instead
their “not
581, 602,
119 S.Ct.
entered by denying Plaintiffs the ADA testified that He himself way. voluntary opportunity to equal Tucker the doing, considered Odis he was knew what he after their arrests. phone call plea, burdens the benefits go forward. decision an informed made mute, and the deaf and The Tuckers are plea to reduced guilty Blake entered post-arrest treat- question regarding diversionary on a placed charges and was Whether straightforward: is ment dispute this do The Tuckers program. jail use offi- may, under the events, challenge the district chain of but guaran- call carry out the cials to they felt that ruling because court’s law, by Tennessee to the Tuckers teed plea choice but enter had no acceptable auxil- providing than rather would believe they did not complaint this To dismiss iary device? hearing. subsequent at a jury to ad- allowing reasonable without addition, allega- general make entirely premature. is question dress this pro- regarding of “confusion” tions only judgment appropriate is Summary belied, allegations are These ceedings. discovery and disclo- pleadings, “if the testimony that however, by Blake’s he own file, affidavits sure materials on plea and that the effect of understood issue as to genuine no show that there is re- to him his explained it had been that the movant any material fact and *16 fact, counsel, In Mr. Larsen. tained matter of judgment as a law.” entitled to testimony re- deposition detailed provided 56(c). making this deter- Fed.R.Civ.P. decision-making process he garding in mination, all inferences we draw “pros regarding the and through went non-moving to the most light favorable Likewise, entering guilty plea. a cons” of Elec. Indus. Co. v. Ze- party. Matsushita knowing voluntarily went forward 574, 587, Corp., 475 U.S. 106 nith Radio interpreter, in would be Vonnie (1986). 1348, 538 S.Ct. 89 L.Ed.2d fact, so. All evidence requested she do disputes of genuine There are two mate- conscious deci- record demonstrates Hardin denial of rial fact that support knowledge with full sions Blake Tucker summary judgment County’s claim options. had been offered other that he (1) the accommodation stage: whether that an inter- subjective disbelief His own adequate; to the Tuckers was provided provided, is insuffi- would not preter (2) acceptable an whether providing action under a of cient to establish cause device for auxiliary telecommunication genuine a and does not create the ADA (“TDD”), teletypewriter as a deaf such sum- of material fact overcome issue (“TTY”) Hardin cause Coun- phone, would mary judgment. ty hardship. undue m. County provided an I. Whether reasons, we AFFIRM.
For these auxiliary adequate aid or service KEITH, Judge, concurring Circuit individual “[n]o The demands dissenting part. part, on the basis shall be discriminated equal enjoy- full and disability in the majority con- of I concur with While facilities, services, privi- goods, of the ment brought cerning most claims of advantages, or accommodations case, leges, agree I cannot in this plaintiffs 42 any public accommodation.” place de- appropriate for summary judgment is 12182(a). protection § This ex- About the Americans With Disabilities Act U.S.C. county jail. Enforcement,” those detained in a tends to and Law stating: Yeskey, Dep’t Corr. v. See Penn. Arrestees who are deaf or hard of hear- 1952, 141 L.Ed.2d 118 S.Ct. U.S. disabilities, ing, speech or who have may (1998) (“State squarely fall prisons TDD require making outgoing statutory ‘public within the definition calls. TDD’s must be available to in- ”). requires public ADA also entity.’ mates with disabilities under the same accommodations that entities telephone privi- terms and conditions as enjoy individuals to allow disabled inmates, leges are offered to all to non-disabled same services information indicating availability Department Pursuant to the the TDD provided.1 should be Regulation, C.F.R. Justice’s 35.160(b)(1), public entity post-arrest phone § shall fur- A call “a “[a] service” auxiliary and ser- appropriate nish aids under the County pro- and Hardin necessary vices where to afford individ- per- vides this service to all non-disabled disability equal opportunity ual with a sons who are arrested.2 Under Tennessee in, of, enjoy the benefits participate law: service, program, activity conducted or person by any [n]o under arrest officer added). entity.” “In public (emphasis private any citizen shall be named in determining type auxiliary what aid and book, ledger any other record until necessary, public entity service is shall person successfully after the has com- give primary requests consideration to the pleted telephone attorney, call to an at of the individual disabilities.” Id. relative, minister or other person 35.160(b)(2). The definition of person choose, shall without aids includes: delay. undue takers, Qualified interpreters, note tran- *17 40-7-106(b). § T.C.A. Based on this services, materials, scription written service, post-arrest state-mandated we telephone amplifiers, handset assistive must therefore assess there are whether devices, listening listening sys- assistive any genuine material issues of fact as to tems, telephones compatible with hear- County provide whether Hardin failed to aids, decoders, ing caption open closed “equal opportunity the Tuckers with an to captioning, and closed telecommunica- in participate ... service” “fur- [this] (TDD’s), for persons tions devices deaf nishing] appropriate auxiliary aids and displays, videotext or other effective 35.160(b)(1) (em- § 28 C.F.R. services!.]” making aurally methods delivered ma- added). phasis terials available to individuals with hear- ing impairments. question There is no in the record that 35.104(1). § 28 C.F.R. County recognized Hardin Tuck- yet ers were deaf and mute and conscious- Department The of Justice has further meaning ly provide in decided not to a TDD device policy clarified the of this its “Commonly Questions to phone. answers Asked such as a TTY After Questions "Commonly Interpreting 1. Asked held About this Court has 'services, phrase programs, that or activ- "the Americans With Act and Law En- Disabilities encompasses virtually everything forcement,” ities’ http://www.usdoj. available at Saline, a_law.htm public entity does.” Johnson v. added). gov/crt/ada/q (emphasis & Cir.1998) (quoting 42 151 F.3d 12132). § U.S.C. auxiliary includes defining aids regulation a TTY requested arrested, takers, interpreters, [and] note “qualified ADA mandates Although device. services,” in the nothing auxiliary type transcription determining what “[i]n entity used to officers necessary, public suggests record aid service the re- to here received consideration calls primary make give shall disabilities,” communicating with deaf and training of the individual quests (em- 35.104(1) failed 35.160(b)(2), County Hardin § §at 28 C.F.R. id. mute any of the added). or even device a TTY provide phasis to aids listed under acceptable Second, non-dis- the same reason 35.104(1). fact, the ten § C.F.R. opportuni- guaranteed abled detainees mandate, the ADA’s following years are not place phone calls—and ties to ac- any of these acquire to County failed jail officials with to merely asked or mute for deaf detainees. commodations on their behalf —a to call phone numbers aids, any of these furnishing than Rather easily conclude that jury could reasonable district what County County give to Hardin requires the ADA the “assistance as characterized court “equal oppor- and mute detainees deaf unqualified jailers,” untrained themselves. Just tunity” place to calls County, Tucker v. Hardin officials. prison the absence unwilling excuse we are (W.D.Tenn. 901, 906-07 F.Supp.2d in which in situations ramps wheelchair 2006). physically carried could be individuals pro- public entities requires Title II jury buildings, a reasonable out ... “auxiliary aids and services vide not excuse the ADA does could find that disability an awith an individual afford sim- of TDD accommodations the absence in, and participate equal opportunity calls on to make officers offer ply because service, of, program, enjoy the benefits And a individuals. rea- behalf of disabled 35.160(b)(1), activity,” 28 C.F.R. that such jury could also conclude sonable here sufficient evidence there is more than harmful to only might approach may violated this have that Hardin Tuckers, also seem un- but would Eleventh Cir- majority and the duty. The itself. dermine cites,3 however, merely gloss ruling cuit differential of Tuckers’ assessment Coun- the harms created over and non-mute versus non-deaf treatment ty’s approach. *18 they to which and the extent detainees Foremost, highly suspect it seems issues of materi- genuine are were harmed very require harmful to deaf potentially must be as- These considerations al fact. rely on the “assis- mute detainees inap- are therefore by jury a sessed very who jailers” officials tance of —the summary judgment. propriate for carry out arresfc-An placed them under which these detainees phone call to a TTY providing II. Whether First, law. entitled under Tennessee unduly be burdensome would that an guarantee there is no untrained County may be excused from Hardin commu- willing or able officer would be accommo- appropriate any of providing who are both deaf persons nicate with doing if so would by law dations effectively enough express mute and administrative financial cause “undue con- be ideas the manner would Again, § ],” 35.164. how- 28 C.F.R. The or TTY call. veyed via telephone burdenf Cir.2007). County, F.3d 3. Bircoll v. Miami-Dade ever, assessment is a factual one that this TUCKER, Sonia Plaintiff-Appellant, jury. be addressed In a re
should case, cent the Tenth Circuit denied a de v. county’s summary judgment fendant mo PLACE, MIDDLEBURG-LEGACY against hearing impaired tion individual’s LLC, Larsen, and Jennifer lawsuit for denial of access to a TTY de Defendants-Appellees. vice after his arrest. Robertson Las County Animas No. 07-4393. Dep’t, 500 F.3d Sheriff’s (10th Cir.2007). 1185, 1196 Unlike the ma United States Appeals, Court of jority, the Tenth properly Circuit found Sixth Circuit. question requiring of whether TTY phones Argued: July to arrestees causes undue 2008. “pres-
financial and administrative burden Decided and Filed: Aug. question of fact.” entad] Id. at 1199. TTY designed precisely device was purpose plaintiffs
for the in Robertson
and this case envision. Despite the avail-
ability of options, such TTY
failed to device or
the other eleven alternatives mentioned 35.104(1).
under refusing 28 C.F.R. require any of these accommodations obviously necessary
when are so available, easily majority
so takes a
step backward in our efforts to uphold the
rights guaranteed of disabled individuals my the ADA. colleagues may While
disagree question on the using whether
an officer to a post-arrest make call for
hearing-impaired or mute detainees is an service,”
appropriate “auxiliary aid and
is clear that such an assessment is a factu-
al jury. one that is to addressed reasons,
For these I dissent from this
portion majority’s ruling. notes through written following morning. Even appearance provided a and Blake official. were request this made if the Tuckers they containing rights, card their written informa- this jailers, absent evidence that plea understanding, wrote nodded their court, to the state tion was communicated paper, piece on a guilty” of “not the court liable we cannot hold Notably, the a trial date. information. jail relay failure of the any request for an not write Tuckers did This true when it does not particularly is note, any other in- on this interpreter Tuckers made themselves appear as a be construed could formation which it is diffi- Accordingly, the court aware. which was request for an accommodation the failure of us conclude that cult for undisput- upon these provided. not Based one judge provide the state court facts, cannot said ed be- intentional discrimination evidence court, intention- its state County, through fact, the evi- disability. cause their individuals ally these discriminated that, disability despite their dence shows they disability, or did unavailability sign language of a accommodations reasonable not judge receive the state made interpreter, court seek, which allowed them communication as ef- this not the result person. requires. fective as a non-disabled what the law Next, Blake and Odis claim that truly Had Blake and Odis not under- the district court incorrectly concluded rights they stood their or the fact that had the failure to sign language an opportunity plea, to enter a or been interpreter dispositional hearing vio communicate, effectively why able to did lated their rights under the Specifi ADA. guilty” plea write “not on á card cally, the district court held that Odis did provided to them? Would Blake and Odis standing not have to assert ADA claims plea not have entered this same had an dispositional related to the hearing given Why been available? did charges were dropped against him request part of their participate he did not in it. agree. We written communication with the court? Blake, As for the court found no ADA Thus, it is not clear that Blake and Odis