Title II of the Americans With Disabilities Act (ADA) prohibits discrimination against persons with disabilities with respect to “the benefits of the services, programs or activities of a public entity.” 42 U.S.C. sec. 12132. Thiscase raises the question of whether a disabled person being arrested by police is receiving the benefits of a service, program or activity of a municipality.
Abbott was a customer at a store in a mall in Salem. When she became involved in an altercation with a store employee, the police were called. Abbott was told to leave or be arrested. She refused to leave and asked to communicate with the police officer with pen and paper. Abbott was hearing impaired but later admitted she had understood the order to leave. The officer refused to communicate in writing, a struggle ensued, and Abbott was arrested.
Abbott filed a lawsuit in federal court against various parties, including the Town of Salem and several police officers. She alleged that the police had violated the ADA by denying the means of effective communication during the incident. She claimed that this caused her to be unlawfully arrested and to suffer mental and physical pain, requiring medical and psychiatric treatment.
The Town and its police officers sought dismissal by a motion for summary judgment. In its analysis the Court noted: “Whether or not the ADA provides any rights to an arrestee who is also a person with a disability is a question of first impression in this circuit … And, there is a ‘debate [among the circuits] about whether police conduct during an arrest is a program, service or activity cover by the ADA.’” It was unnecessary to decide this broad issue, however, because Abbott had admitted that she, in fact, had understood and knowingly disobeyed the officer’s order to leave the store. Thus the officers had not failed to provide effective communication. The Court dismissed the case against the Town and its officers, but the question of whether an arrest is a “program, service or activity” requiring police to accommodate an arrestee’s disability remains open.