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Ruling on an issue that has sharply divided the federal courts, a Middle District of Pennsylvania judge has held that the public accommodations prong of the Americans with Disabilities Act covers police practices — including arrests — and that a police department can therefore be sued for failing to train its officers to handle disabled suspects. “Nothing in the statute, regulations, or legislative history [of the ADA] suggests any exceptions to the Act for certain police activities,” U.S. District Judge Yvette Kane wrote in her 12-page opinion in Schorr v. Borough of Lemoyne. The ruling green-lights an ADA claim in a civil rights suit brought by the parents of a mentally ill man who was shot and killed by police in a confrontation at his apartment after he escaped from protective custody in an emergency psychiatric ward. Lawyers for plaintiffs Keith and Susan Schorr contend in the ADA claim that Ryan Schorr’s death could have been prevented if police had been trained to ensure that their encounters with mentally ill persons remain peaceful. U.S. Magistrate Judge Malachy E. Mannion found that the Schorrs should be allowed to pursue a civil rights claim, but recommended that the ADA claim be dismissed. Mannion cited two recent federal appellate decisions that held the ADA does not apply to actions taken by police officers during an arrest — the 10th Circuit’s 1999 decision in Gohier v. Enright, and the 5th Circuit’s 2000 decision in Hainze v. Richards. But Kane predicted that the 3rd Circuit would not follow suit, and instead would join a growing list of appellate and district courts that have allowed claims under Title II of the ADA in the context of an arrest. Kane found that the plain language of the ADA shows that Congress intended “very broad” coverage. She also found that the 3rd Circuit and the U.S. Supreme Court have been reluctant to create exceptions. In Yeskey v. Pennsylvania Department of Corrections, Kane found that the 3rd Circuit applied Title II of the ADA to the programs and activities of a state prison system. In doing so, Kane said, the Yeskey court analyzed the statutory, regulatory and ordinary definitions of “program” and “activity” and concluded that the terms “were intended to be all-encompassing.” The U.S. Supreme Court unanimously affirmed Yeskey, finding that “the statute’s language unmistakably includes state prisons and prisoners within its coverage.” Kane found there was no reason not to extend Yeskey to include police practices, including arrest policies. The 8th Circuit has already done so, Kane noted, by relying on Yeskey to hold that the ADA was applicable in the context of an arrest. In Gorman v. Bartch, the 8th Circuit green-lighted an ADA claim brought by an arrestee in a wheelchair who said he sustained injuries after being transported in a police van that was not equipped with wheelchair restraints, Kane noted. Kane found that basic statutory construction and the ADA’s legislative history both supported allowing the Schorrs’ claim. Title II of the ADA reads: “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.” Kane found that although the ADA does not define the phrase “services, programs, or activities,” the courts have held that it should be read broadly to include “all of the operations of … a department, agency, special purpose district, or other instrumentality of a State or of a local government.” As a result, Kane concluded that the law’s scope includes “all core functions of government.” Police practices are also within the law’s scope, Kane found, because “among the most basic of these functions is the lawful exercise of police powers, including the appropriate use of force by government officials acting under color of law.” Since the ADA is a “remedial statute,” Kane found that it was designed “to eliminate discrimination against the disabled in all facets of society.” As a result, she said, “it must be broadly construed to effectuate its purposes.” The Justice Department’s regulations to Title II of the ADA bear that out, Kane noted, by stating that the statute “applies to all services, programs, and activities provided or made available by public entities.” In the preamble to the regulations, Kane noted, the Justice Department explains that the broad language of the ADA is comparable to the coverage under � 504 of the Rehabilitation Act, so that Title II of the ADA “applies to anything a public entity does.” In his report and recommendation, Magistrate Mannion found there were only two possible bases of recovery for police misconduct under the ADA, and that neither applies to the Schorrs’ claim. The “wrongful arrest” theory, he said, “is not applicable when the plaintiff’s actions were unlawful at the time of the arrest.” And the “reasonable accommodations” theory, Mannion said, “does not apply to the actions of officers while affecting an arrest.” Kane disagreed, saying she rejected Mannion’s recommendation because he relied entirely on the 5th Circuit’s decision in Hainze. “Even if this court were to anticipate Hainze becoming the law of this circuit, which it cannot do, the findings of the Magistrate Judge still cannot be sustained. At this stage of the proceedings, it has not been established conclusively as a matter of fact or law that the police conduct in question constitutes an ‘arrest’ or that Schorr’s actions were unlawful.” Kane found that the Hainze court was presented with a claim similar to the Schorrs’ that accused a county of failing to adopt a policy protecting the well-being of people with mental illnesses in crisis situations. The court flatly rejected the claim, Kane found, by holding that “Title II does not apply to an officer’s on-the-street responses to reported disturbances or other similar incidents, whether or not those calls involve subjects with mental disabilities, prior to the officer’s securing the scene and ensuring that there is no threat to human life.” The 5th Circuit panel found that an exception must be made for certain police practices because “law enforcement personnel conducting in-the-field investigations already face the onerous task of frequently having to instantaneously identify, assess, and react to potentially life-threatening situations. To require the officers to factor in whether their actions are going to comply with the ADA, in the presence of exigent circumstances and prior to securing the safety of themselves, other officers, and any nearby civilians, would pose an unnecessary risk to innocents.” Dodging the issue of whether the Hainze case was wrongly decided, Kane found that its rationale for disallowing ADA claims when the challenged conduct occurred during “exigent circumstances” did not apply in the Schorrs’ case. The Schorrs didn’t sue the two officers, Kane noted, and the suit does not challenge the degree of force used by them. Instead, Kane said, the suit focuses entirely on the police department’s alleged failure to properly train the officers. “The alleged non-compliance with the training requirements of the ADA did not occur the day that the officers shot Ryan Schorr; it occurred well before that day, when the defendant policy makers failed to institute polices to accommodate disabled individuals such as Schorr by giving the officers the tools and resources to handle the situation peacefully,” Kane wrote.

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