VALERIE CAPRONI, District Judge.
This case arises from the arrest and overnight detention of a deaf woman by the New York City Police Department ("NYPD"). New York City takes the extraordinary position that, even though the Americans with Disabilities Act ("ADA") has been the law of the land for twenty-five years, it has no obligation to provide any accommodation to the hearing-impaired at the time of an arrest, even if doing so could easily be accomplished without endangering the officers or the public safety and without interfering in the lawful execution of the officers' duties. For the reasons that follow, the Court disagrees that the City's responsibilities to the hearing-impaired are so limited.
On September 11, 2011, Plaintiff Diana Williams, who is deaf,
In 2011, Plaintiff and her husband Chris Williams owned property on Staten Island; Mr. Williams resided in the basement, and two upstairs rooms were rented to Lorena White and Nicole Sabella. Pl. Local Rule 56.1 Response to Def. Statement of Facts ("Pl. 56.1 Resp.") ¶¶ 3-4. Mr. Williams, who is deaf and communicates primarily through ASL, can speak and read lips to some degree, and he can read and write English. Rozynski Decl. Ex. D ("C. Williams Dep.") at 10, 12, 14-15, Dkt. 66-4. The tenant Lorena White is also deaf, but she can read and write English. C. Williams Dep. at 59. The other tenant, Nicole Sabella, hears normally and can communicate using ASL. Rozynski Decl. Ex. C ("Sabella Dep.") at 28, Dkt. 66-3; C. Williams Dep. at 38.
When White and Sabella fell behind on their rent, the Williamses notified them by letter that they would have to vacate the property by September 11, 2011. Pl. 56.1 Resp. ¶ 7. White, who had a history of aggressive behavior, responded to the letter with threats to Mr. Williams and made false complaints about him to the police. Id. ¶¶ 6, 8. In an attempt to avoid any problems during White's departure, the Williamses, using a video relay service, called the NYPD at 9:15 a.m. on September 11 to request a police presence at the residence. Id. ¶¶ 9, 14, 16. The police did not appear as requested. Id. ¶ 33.
The Williamses' prediction that White's departure would not be without drama proved accurate, but, by all accounts, it was much ado about nothing. At some point that morning, the Plaintiff's dog ran into White's bedroom, and Plaintiff followed to retrieve him. D. Williams Dep. at 97. She bent down to pick him up, and White was "in [her] face" when she stood. Id. Plaintiff's brother, David Rivera, who was also present, said that at that point
Shortly thereafter, White went outside to greet her boyfriend, Alendi, who had arrived at the residence. Rivera Dep. at 59.
Officers Christopher Romano and Gillio Costanzo responded to Mr. Williams' "man with a gun" call; the dispatch report showed that incident was reported using a video relay service for the deaf. Pl. 56.1 Stmt. ¶¶ 31-32; Zuckerman Decl. Ex. I, Dkt. 62-9. The officers arrived at the residence approximately five minutes after the call was received. C. Williams Dep. at 83. Both Mr. Williams and Rivera testified that they attempted to convey to the officers that they were the callers who had sought help, but the officers gravitated toward Alendi, who was able to communicate orally. Rivera Dep. at 80; C. Williams Dep. at 87.
Officer Costanzo interviewed White, with whom he communicated through Alendi, but never spoke or interacted with Plaintiff. Rozynski Decl. Ex. J ("Costanzo Dep.") at 12, 41. According to Officer
Officer Romano's recollection is, at best, hazy. He remembers speaking to one of the women through her husband, who could communicate orally. Rozynski Decl. Ex. K ("Romano Apr. 4 Dep.") at 34, 39. He recalls that a woman told him that she and the other woman had gotten in a fight, but there was no mention that the woman had been involved in an assault. Id. at 36-37, 40. He deduced that by "fight" the woman meant "physical fight" based on his observation of visible injuries. Romano Apr. 4 Dep. at 40, 43. At his first deposition, he could not recall the specific injuries; at his second, he recalled a scratch on Plaintiff's face and that she complained of pain in her arm. Romano Apr. 4 Dep. at 40-41; Rozynski Decl. Ex. L ("Romano Oct. 9 Dep.") at 17. Officer Romano concluded that the visible injury was the result of an assault "[b]ecause the husband told me that they were both fighting, so did the other woman and that's really all we need." Romano Apr. 4 Dep. at 43. He did not recall "if they informed [him] that they were fighting physically" — his conclusion was based solely on his observations at the scene. Romano Apr. 4 Dep. at 43-44; Romano Oct. 9 Dep. at 91. Curiously, Officer Romano testified at his second deposition that he was able to communicate with Plaintiff directly:
Romano Oct. 9 Dep. at 33. From all of this, Officer Romano concluded that Plaintiff and White had both "committed an arrestable offense [so] they were both arrested." Romano Apr. 4 Dep. at 36.
Plaintiff, on the other hand, testified that Officer Romano arrested her without making any effort to communicate with her. D. Williams Dep. at 88-89. She pleaded for an ASL interpreter, but her pleas were lost without the benefit of an ASL interpreter or other auxiliary aid. Id. at 89. Rivera and Mr. Williams also testified that Officer Romano approached them and arrested Plaintiff after speaking to Alendi, Sabella, and White for 15 to 20 minutes. Rivera Dep. at 80; C. Williams
From the scene of her arrest, Plaintiff was taken to the 122nd Precinct. Pl. 56.1 Resp. ¶ 54. Despite holding her for an extended period (overnight), at no time did the NYPD provide her with an ASL interpreter or any other form of auxiliary aid to inform her why she was under arrest or how long she would be held in police custody. Def. 56.1 Resp. ¶¶ 67, 81. Plaintiff was released the next day without any charges being brought. Pl. 56.1 Resp. ¶ 63.
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party bears the burden of "show[ing] that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). "A material fact is one that would `affect the outcome of the suit under the governing law,' and a dispute about a genuine issue of material fact occurs if the evidence is such that `a reasonable [factfinder] could return a verdict for the nonmoving party.'" Sista v. CDC Ixis N. America, Inc., 445 F.3d 161, 169 (2d Cir.2006) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). In determining whether there is a genuine issue of material fact, the court must "resolve all ambiguities, and draw all inferences, against the moving party." Id. (citation omitted). The nonmoving party, however, "must do more than simply show that there is some metaphysical doubt as to the material facts," and "may not rely on conclusory allegations or unsubstantiated speculation." Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir.2005) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Fujitsu Ltd. v. Fed. Express Corp., 247 F.3d 423, 428 (2d Cir. 2001)). "The nonmoving party must come forward with specific facts showing that there is a genuine issue for trial." Higazy v. Templeton, 505 F.3d 161 (2d Cir.2007) (quoting Matsushita, 475 U.S. at 586-87, 106 S.Ct. 1348). "[I]f the evidence is such that a reasonable jury could return a verdict for the nonmoving party," a motion for summary judgment must be denied. Liberty Lobby, 477 U.S. at 248, 106 S.Ct. 2505.
Title II of the ADA prohibits any public entity from discriminating against "qualified" individuals with disabilities "in the provision or operation of public services, programs, or activities." Tennessee v. Lane, 541 U.S. 509, 517, 124 S.Ct. 1978, 158 L.Ed.2d 820 (2004).
To establish a violation of the ADA, the plaintiff must demonstrate (1) that she is a "qualified individual" with a disability; (2) that the defendants are subject to the ADA; and (3) that she was denied the opportunity to participate in or benefit from the defendant's services, programs, or activities, or was otherwise discriminated against by the defendant by reason of her disability. Disabled in Action v. Bd. of Elections in City of New York, 752 F.3d 189, 196-97 (2d Cir.2014) (citing McElwee v. Cnty. of Orange, 700 F.3d 635, 640 (2d Cir.2012)). To establish a claim under the Rehabilitation Act, the plaintiff must also demonstrate that the defendant receives federal funding. Henrietta D. v. Bloomberg, 331 F.3d 261, 272 (2d Cir.2003).
There is no dispute that Plaintiff is a qualified individual with a disability
"Congress enacted Title II against a backdrop of pervasive unequal treatment in the administration of state services and programs, including systematic deprivations of fundamental rights" and "a pattern of unequal treatment" in a wide range of public services and activities "in the administration of justice." Lane, 541 U.S. at 524-25, 124 S.Ct. 1978. The Department of Justice's implementing regulations for the ADA make clear that, with exceptions not relevant here, Title II of the ADA "applies to all services, programs, and activities provided or made available by public entities," 28 C.F.R. § 35.102(a), and requires public entities to make "reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability," unless the required modification would fundamentally alter the nature of the service, program, or activity, 28 C.F.R. § 35.130(b)(7). The phrase "services, programs, or activities" is "a catch-all phrase" that prohibits all discrimination by a public entity. Noel v. N.Y.C. Taxi & Limousine Comm'n, 687 F.3d 63, 69 (2d Cir.2012) (quoting Innovative Health Sys., Inc. v. City of White Plains, 117 F.3d 37, 45 (2d Cir.1997), recognized as superseded on other grounds, Zervos v. Verizon N.Y., Inc., 252 F.3d 163, 171 n. 7 (2d Cir.2001)).
A number of courts have considered whether interactions between law enforcement and disabled individuals — whether initiated by the disabled individual or the police and whether the interaction culminates in an arrest — are "services, programs, or activities" subject to the requirement of accommodation under Title II of the ADA. Those courts have generally found that Title II applies, but the reasonableness of the accommodation required must be assessed in light of the totality of the circumstances of the particular case.
In Rosen, the Fourth Circuit evaluated the Title II claim of a deaf plaintiff who was arrested for drunk driving. 121 F.3d at 157. The court expressed skepticism about "fitting an arrest into the ADA at all," because "calling a drunk driving arrest a `program or activity' of the County, the `essential eligibility requirements' of which (in this case) are weaving in traffic and being intoxicated, strikes us as a stretch of the statutory language and of the underlying legislative intent." Id. The plaintiff did "not contend that his consent to the intoxication test was the product of his inability to understand the police," and, "[a]s far as the police officers were concerned, Rosen adequately participated in the various tests for intoxication." Id. at 158. The Court noted that if it were to "assume" that "the police were required to provide auxiliary aids at some point in the
More recent decisions from the Fourth Circuit have narrowed Rosen considerably. In Seremeth v. Board of County Commissioners of Frederick County, 673 F.3d 333 (4th Cir.2012), the Fourth Circuit again considered whether a plaintiff could state a claim under the ADA based on police officers' failure to provide an ASL interpreter to a deaf person during a law enforcement interaction and "concluded that the ADA applies to the investigations of criminal conduct" that do not result in an arrest. Id. at 339. In Seremeth, the police responded to a domestic disturbance call placed by the mother of the plaintiff's children. Id. at 335. The caller, who was deaf, reported that while on a video call she had seen the plaintiff hit their child; she also informed the dispatcher that the entire family is deaf. Id. The dispatcher contacted an officer who was ASL trained to respond to the scene, but that officer did not arrive until 45 minutes after the non-ASL-trained officers arrived. Id. When the first officers arrived on the scene, they placed the plaintiff in handcuffs and escorted him outside while they interviewed the other witnesses. Id. This was consistent with their standard procedure for domestic disturbance calls. Id. An officer waiting with the deaf plaintiff provided him a note stating that an interpreter was being called to the scene and would explain the situation when she arrived. Id. at 336. When the interpreter arrived, she could not effectively communicate with the plaintiff. Id. Nevertheless, about ten minutes later, without having ever formally arrested the plaintiff, the deputies released him from handcuffs and departed having concluded that no abuse had occurred. Id. The court concluded that the officers' accommodations provided were "reasonable under the circumstances" "due to the exigencies inherent in responding to a domestic violence situation," even though the accommodations "were not best practices." Id. at 339-40. Rather than announcing a categorical rule, the Fourth Circuit opted for a case-by-case approach to determine whether compliance with the ADA is required during police interactions: "while there is no separate exigent-circumstances inquiry, the consideration of exigent circumstances is included in the determination of the reasonableness of the accommodation." Id. at 339. Seremeth recognized that the dicta in Rosen has been called into doubt but noted that "Rosen's precedential reach is more properly cast as limited to the injury grounds necessary to reach its conclusion." Id. at 337-38.
The Fourth Circuit's approach is not helpful to the City. Unlike Rosen, who did not suffer an injury from the alleged failure to accommodate because he was arrested for driving while intoxicated (an arrest that occurred based on objective evidence observed by the police, unrelated to his inability to hear), there is a clear question of fact whether Plaintiff in this case would have been arrested had the police been able to communicate with both
Patrice v. Murphy, the Western District of Washington case cited by the City that held that "an arrest is not the type of service, program, or activity from which a disabled person could be excluded or denied the benefits," 43 F.Supp.2d at 1160, is no longer good law. The Ninth Circuit abrogated Patrice in Sheehan v. City and County of San Francisco when it "agree[d] with the majority of circuits to have addressed the question that Title II applies to arrests," and that the terms "services, programs, or activities" under Title II of the ADA "encompass[es] `anything a public entity does.'" 743 F.3d at 1232. The Ninth Circuit stated that it agreed with the Fourth Circuit and Eleventh Circuit that "exigent circumstances inform the reasonableness analysis under the ADA, just as they inform the distinct reasonableness analysis under the Fourth Amendment." Id. (citing Waller, 556 F.3d at 175; Gohier, 186 F.3d at 1221).
The only reasonable interpretation of Title II is that law enforcement officers who are acting in an investigative or custodial capacity are performing "services, programs, or activities" within the scope of Title II. Whether a disabled individual succeeds in proving discrimination under Title II of the ADA will depend on whether the officers' accommodations were reasonable under the circumstances. See Waller, 556 F.3d at 175 ("Accommodations that might be expected when time is of no matter become unreasonable to expect when time is of the essence."); 28 C.F.R. § 35.164. The City's argument that exigent circumstances may excuse law enforcement officers from providing accommodations fits within this standard; its argument that on-the-street interactions are categorically excluded from Title II coverage does not. Def. Mem. at 12.
The City also argued that, even if on-the-street encounters are not categorically exempt from ADA coverage under an exigent circumstance exception, it would have been unreasonable to expect the officers in this case to provide an accommodation for Plaintiff's (and White's) disability before arresting both women. Def. Mem. at 12. The City argues that arresting Plaintiff without calling for an ASL interpreter was, as a matter of law, reasonable because the officers needed to secure the scene in light of Mr. Williams' report that a man was making threats with a gun and they believed that an assault had occurred prior to their arrival. Id. Assuming that the City would be entitled to summary judgment if the record unequivocally demonstrated that providing an accommodation before making the arrest would have posed an unjustifiable risk to public safety, the record in this case does not do so.
Finally, the City argues that it was reasonable to arrest Plaintiff without providing an ASL interpreter because the officers had probable cause for the arrest based on White's alleged report that Plaintiff assaulted her, which would not have been affected by the presence of an interpreter. Def. Mem. at 12. The City's argument proves too much because there is a genuine question of fact whether it was objectively reasonable for Officer Romano to believe that either woman physically assaulted the other. Moreover, probable cause to arrest Plaintiff would establish only that Plaintiff's right to be free from false arrest was not violated; it would not establish that she was not subjected to discrimination by the NYPD on the basis of her disability in its performance of a public service.
Id. (citing Waller, 556 F.3d at 174; Gohier, 186 F.3d at 1220-21).
Even assuming that a jury finds that there was probable cause to arrest Plaintiff, the City must establish that providing her an accommodation during the police officers' "investigation" would have been "unreasonable" to rebut Plaintiff's prima facie case that an accommodation was available. See Henrietta D., 331 F.3d at 280-81. Given that numerous people were already on the scene who could have served as effective interpreters between the police and Plaintiff, the Court cannot conclude that, as a matter of law, it was reasonable for the police officers not to provide Plaintiff any accommodation before placing her under arrest.
For the foregoing reasons, the City's motion for summary judgment on Plaintiff's claims alleging discrimination based on her disability before she arrived at the stationhouse arising under Title II of the ADA, the Rehabilitation Act, the NYSHRL, and the NYCHRL is DENIED.
In addition to seeking a private remedy for the City's alleged disability-based discrimination, Plaintiff also brought a claim under 42 U.S.C. § 1983 to enforce her statutory rights protected by the ADA.
A plaintiff does not have a claim under § 1983 for every violation of a right created by federal statute. See City of Rancho Palos Verdes, Cal. v. Abrams, 544 U.S. 113, 120, 125 S.Ct. 1453, 161 L.Ed.2d 316 (2005) ("[Section] 1983 does not provide an avenue for relief every time a state actor violates a federal law."). "[T]o sustain a § 1983 action, the plaintiff must demonstrate that the federal statute [allegedly violated] creates an individually enforceable right in the class of beneficiaries to which [she] belongs." Id. at 120, 125 S.Ct. 1453. "Even after this showing, `there is only a rebuttable presumption that the right is enforceable under § 1983.'" Id. (quoting Blessing v. Freestone, 520 U.S. 329, 341, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997)). "The defendant may defeat this presumption by demonstrating that Congress did not intend that remedy for a newly created right." Id.
The City does not dispute that Plaintiff has individually enforceable rights under Title II of the ADA and the Rehabilitation Act. The issue, then, is whether the City may defeat the presumption that her rights are also enforceable under § 1983 by showing that Congress did not intend that result.
When determining whether a federal statute can be enforced under § 1983, the "primary emphasis [is] on the nature and extent of that statute's remedial scheme." Fitzgerald, 555 U.S. at 253, 129 S.Ct. 788. "When the remedial devices provided in a particular Act are sufficiently comprehensive, they may suffice to demonstrate congressional intent to preclude the remedy of suits under § 1983." Id. (quoting Middlesex Cnty. Sewerage Auth. v. Nat'l Sea Clammers Assoc., 453 U.S. 1, 20, 101 S.Ct. 2615, 69 L.Ed.2d 435 (1981)). In Fitzgerald, the Supreme Court held that Title IX's implied private right of action and its express administrative procedure of withdrawing federal funding from noncompliant federally-funded institutions do not demonstrate congressional intent to preclude a private suit under § 1983. Id. at 255-56, 129 S.Ct. 788. Unlike statutes that "require[] plaintiffs to comply with particular procedures and/or to exhaust particular administrative remedies prior to filing suit," Title IX "has no administrative exhaustion requirement and no notice provisions." Id. at 254, 129 S.Ct. 788. Under Title IX's "implied private right of action, plaintiffs can file directly in court, and can obtain the full range of remedies." Id. at 255, 129 S.Ct. 788 (internal citations omitted). "`[T]he existence of a more restrictive private remedy for statutory violations has been the dividing line between" statutes that preclude an action under § 1983 and those that do not. Id. at 256, 129 S.Ct. 788
Title II of the ADA "incorporates the remedial scheme of the Rehabilitation Act of 1973, see 29 U.S.C. § 794a(a)(2) (incorporated into Title II by 42 U.S.C. § 12133), which in turn incorporates the remedial scheme of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq." Garcia v. S.U.N.Y. Health Sci. Ctr. of Brooklyn, 280 F.3d 98, 110-11 (2d Cir. 2001); see also Barnes, 536 U.S. at 185, 122 S.Ct. 2097 ("[T]he remedies for violations of § 202 of the ADA [42 U.S.C. § 12132] and § 504 of the Rehabilitation Act are coextensive with the remedies available in a private cause of action brought under Title VI of the Civil Rights Act of 1964." (citing the enforcement provisions of Title II of the ADA, 42 U.S.C. § 12133, and the Rehabilitation Act, 29 U.S.C. § 794a(a)(2))). The Supreme Court also "interpret[s] Title IX consistently with Title VI." Barnes, 536 U.S. at 185, 122 S.Ct. 2097. In Fitzgerald, the Court reasoned that because "Congress modeled Title IX after Title VI of the Civil Rights Act of 1964," and "passed Title IX with the explicit understanding that it would be interpreted as Title VI was," it followed that "Congress intended Title IX to be interpreted... to allow for parallel and concurrent § 1983 claims," or, at least, "did not affirmatively intend Title IX to preclude such claims." 555 U.S. at 258-59, 129 S.Ct. 788.
Because the remedial scheme of Title II of the ADA derives from the same source as the remedial scheme of Title IX, the Supreme Court's conclusion that parallel and concurrent § 1983 claims and implied private causes of action are available under Title IX applies with equal force to Title II of the ADA. Accordingly, a plaintiff can bring a cause of action under § 1983 to enforce rights protected by Title II of the ADA.
The City argues that Plaintiff has not produced sufficient evidence to establish a prima facie case that a municipal policy or custom caused her injury in order to establish municipal liability under § 1983
In response, Plaintiff argues that the record is sufficient to create a question of fact whether her injury was caused by the City's failure adequately to train officers on how to interact with citizens who are disabled due to hearing impairments. Pl. Mem. at 23-25.
In reply, the City argued that it had a "policy" in place at the time of Plaintiff's arrest — a procedure in the NYPD Patrol Guide called "Interaction with the Hearing Impaired"
It is well-established that a municipality may be liable under § 1983 only "if the governmental body itself `subjects' a person to a deprivation of rights or `causes' a person `to be subjected' to such deprivation." Connick v. Thompson, 563 U.S. 51, 131 S.Ct. 1350, 1359, 179 L.Ed.2d 417 (2011) (quoting Monell, 436 U.S. at 692, 98 S.Ct. 2018). Municipalities "are responsible only for `their own illegal acts,'" they "are not vicariously liable under § 1983 for their employees' actions." Id. (citing Pembaur v. Cincinnati, 475 U.S. 469, 479, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986)). Thus, a "plaintiff must demonstrate that, through its deliberate conduct, the municipality was the `moving force' behind the alleged injury." Cash v. Cnty. of Erie, 654 F.3d 324, 333 (2d Cir. 2011) (quoting Roe v. City of Waterbury, 542 F.3d 31, 37 (2d Cir.2008)). "[T]o establish municipal liability under § 1983, a plaintiff must prove that `action pursuant to official municipal policy' caused the alleged injury." Id. (quoting Connick, 131 S.Ct. at 1359).
"A municipal policy may be pronounced or tacit and reflected in either action or inaction." Id. at 334. A municipality's "decision not to train certain employees about their legal duty to avoid violating citizens' rights may rise to the level of an official government policy for purposes of § 1983" if the "failure to train its employees in a relevant respect" amounts to "deliberate indifference to the rights of persons with whom the [untrained employees] come into contact." Connick, 131 S.Ct. at 1359 (citing Oklahoma City v. Tuttle, 471 U.S. 808, 822-23, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985) (plurality opinion); Canton v. Harris, 489 U.S. 378, 388, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989)). "[W]hen city policymakers are on actual or constructive notice that a particular omission in their training program causes city employees to violate citizens' constitutional rights, the city may be deemed deliberately indifferent if the policymakers chose to retain that program." Id. at 1360. "The city's `policy of inaction' in light of notice that its program will cause constitutional violations `is the functional equivalent of a decision by the city itself to violate the constitution.'" Id. (quoting Bd. of Comm'rs of Bryan Cnty. v. Brown, 520 U.S. 397, 407, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997)). "[D]eliberate indifference may [also] be inferred where `the need for more or better supervision to protect against constitutional violations was obvious,' but the policymaker `fail[ed] to make meaningful efforts to address the risk of harm to plaintiffs." Cash, 654 F.3d at 334 (citing Reynolds v. Giuliani, 506 F.3d 183, 192 (2d Cir.2007); Vann v. City of New York, 72 F.3d 1040, 1049 (2d Cir. 1995)) (internal citations and alterations omitted).
Contrary to the City's assertion, a pattern of similar violations is not absolutely necessary to prove municipal liability for failure to train. The operative inquiry is whether the municipality was on notice that "a particular omission in their training program causes city employees to
In Cash, the Second Circuit concluded that a plaintiff could establish deliberate indifference through evidence that showed: the municipality knew of a particular risk and had a policy in place to address that risk; a single incident alerted the policymaker to deficiencies in the policy; and the policymaker failed to take affirmative steps to cure the deficiencies. See id. at 339. Cash involved a claim by a woman in pretrial detention who was raped by a prison guard. Id. at 327. The plaintiff brought a § 1983 claim against the county, alleging that the county was liable for her sexual assault due to its failure to supervise or implement procedures to protect inmates from sexual assault by guards. Id. Following a jury verdict for the plaintiff, the district court granted the defendant's Rule 50 motion for judgment notwithstanding the verdict; on appeal, the Second Circuit reversed. Id.
The Second Circuit found that there was sufficient evidence for the jury to find deliberate indifference to the municipality's affirmative duty to protect female prisoners in their custody from sexual assault even though there had only been one prior reported incident of sexual contact and that was between an allegedly "willing" female prisoner and a male guard. Id. at 336. The court reasoned that the policymaker had been alerted of the "moral certainty" that female prisoners were at risk of sexual exploitation because New York law "pronounces prisoners categorically incapable of consenting to any sexual activity with guards." Id. at 335. Although the prior incident and "`highly publicized incidents' at other New York correctional facilities'" had alerted the relevant policymaker that "mere proscriptions on sexual contact between guards and prisoners had proved an insufficient deterrent to sexual exploitation," the only response to the earlier incident had been to circulate a memorandum that reiterated existing law and policy. Id. at 337-38. The court concluded that a reasonable jury could have found that, "in these circumstances, the defendants' mere reiteration of the proscriptive policy unaccompanied by any proactive steps to minimize the opportunity for exploitation ... demonstrated deliberate indifference to defendants' affirmative duty to protect prisoners from sexual exploitation." Id. at 339; see also Connick, 131 S.Ct. at 1360 ("Policymakers' continued adherence to an approach that they know or should know has failed to prevent tortious conduct by employees may establish the conscious disregard for the consequences of their action — the `deliberate indifference' — necessary to trigger municipal liability.").
Although the U.S. Agreement mandated certain changes to the training that officers received as new recruits, see U.S. Agreement § 9, Roberson testified that she did not make any changes to the training program following the U.S. Agreement. The only evidence in the record of any officer receiving relevant training is Officer Romano's training in the academy, which occurred prior to 2009. Thus, although Plaintiff, like Cash, can point to only a single prior incident where the NYPD treated a person with a hearing impairment badly, a jury could find that the single prior incident put the NYPD on notice of the need to train its officers on procedures to comply with the ADA. And, the evidence of the NYPD's treatment of the Plaintiff could be sufficient for a jury to conclude that the City was deliberately indifferent to its ADA obligations.
Plaintiff seeks to hold the City liable for intentional torts allegedly committed by its police officers under theories of agency and respondeat superior. Am. Compl. ¶¶ 50, 45, 56, 62. Specifically, she alleges that the City is liable for false arrest because the officers lacked probable cause to believe that she had committed a crime, and for assault and battery based on conduct by an unidentified police officer that was intended to and did cause her apprehension and subjected her to unwanted physical contact. The City claims that it is protected from suit based on state law immunity and that, even if it does not enjoy immunity, it is entitled to summary judgment because her arrest was supported by probable cause rendering any physical contact that occurred after her lawful arrest privileged. Def. Mem. at 13-17.
The City argues that it enjoys state law immunity for the officers' allegedly tortious actions. Def. Mem. at 20-21. Eleventh Amendment sovereign immunity
"A long line of cases" from the New York Court of Appeals "has held the State or municipalities liable for the actions of their police officers in the line of duty." Jones v. State of New York, 33 N.Y.2d 275, 279, 352 N.Y.S.2d 169, 307 N.E.2d 236 (1973) (citations omitted). Because municipal immunity is an extension of State immunity, the State's waiver of sovereign immunity makes municipalities "answerable equally with individuals and private corporations for wrongs of officers and employees." Bernardine v. City of New York, 294 N.Y. 361, 365, 62 N.E.2d 604 (1945); accord Thomas v. Consol. Fire Dist. No. 1 of Town of Niskayuna, 50 N.Y.2d 143, 146-47, 428 N.Y.S.2d 443, 405 N.E.2d 1009 (1980) (noting that the dicta in Bernardine "has been frequently cited with approval by th[e] court in cases finding municipalities liable for the acts of their agents and is now generally understood to permit municipal liability even in the absence of particular statutory enactments"); Green v. City of New York, 465 F.3d 65, 86 (2d Cir.2006) ("A New York employer, such as the City, is liable for intentional torts, such as assault and battery, committed by its employees provided that the tort is committed within the scope of the [employees'] employment." (citing Carnegie v. J.P. Phillips, Inc., 28 A.D.3d 599, 815 N.Y.S.2d 107 (2d Dep't 2006))).
Despite this broad waiver of immunity, the City argues that the officers' decision to arrest Plaintiff, as well as any other allegedly tortious conduct that followed, were discretionary acts that cannot form a basis for municipal liability. Def. Mem. at 21. "A public employee's discretionary acts — meaning conduct involving the exercise of reasoned judgment — may not result in the municipality's liability even when the conduct is negligent." Lauer v. City of New York, 95 N.Y.2d 95, 99, 711 N.Y.S.2d 112, 733 N.E.2d 184 (2000). Although Plaintiff's claims (false arrest and assault and battery) are intentional torts, the "discretionary act" line of decisions on which the City relies all discuss whether municipalities may be held liable for negligent acts of its employees given the State's waiver of immunity.
The City argues that it is entitled to summary judgment on Plaintiff's common law assault and battery claim because she failed to allege facts in her Amended Complaint to put the City on notice that her claim was based on contact other than contact that occurred during her arrest, which was purportedly privileged. Def. Mem. at 17; cf. Bancroft v. City of Mount Vernon, 672 F.Supp.2d 391, 404 (S.D.N.Y. 2009) (handcuffing and escorting a person under arrest is privileged physical contact). At her January 27, 2014, deposition, Plaintiff testified that while she was in a holding cell she was "pushed" or "shoved" "very forcefully against the wall when [she] attempted to touch [a] police officer's hand" to get the officer's attention. Pl. Mem. at 16-17; see D. Williams Dep. at 106-109, Dkts. 66-5, 78-4; Def. Resp. to Pl. 56.1 Stmt. ¶ 65.
Under New York law, "assault" is the "intentional placing of another person in fear of imminent harmful or offensive contact," and "civil battery" is "an intentional wrongful physical contact with another person without consent." Green, 465 F.3d at 86 (quoting Charkhy v. Altman, 252 A.D.2d 413, 678 N.Y.S.2d 40 (1st Dep't 1998)). "In the civil context ..., the common meanings of `assault' and `battery' subsume all forms of tortious menacing and unwanted touching." Girden v. Sandals Int'l, 262 F.3d 195, 203 (2d Cir.2001) (quoting United Nat'l Ins. Co. v. Waterfront N.Y. Realty Corp., 994 F.2d 105, 108 (2d Cir.1993)).
The City argues that Plaintiff's testimony about the alleged tort that occurred in her cell should be disregarded because the event described was not alleged in Plaintiff's Amended Complaint, and the Amended Complaint failed to satisfy the Rule 12(b)(6) pleading standard under Twombly and Iqbal for an assault and battery claim. Def. Mem. at 20; Def. Reply Mem. at 9. A Rule 12(b)(6) motion "must be made before pleading if a responsive pleading is allowed." Fed.R.Civ.P. 12(b)(6). Because the City answered the Amended Complaint on February 19, 2014, it must do more than challenge Plaintiff's factual pleadings. The City must "show[] that there is no genuine dispute as to any material fact" based on admissible evidence in the record, and that it is "entitled to judgment as a matter of law." Fed. R.Civ.P. 56(a). Plaintiff's testimony is not refuted by any evidence in the record, and her testimony alone is sufficient to establish a prima facie case. Because the City has not presented any evidence to dispute Plaintiff's testimony — let alone such compelling evidence that establishes there is no genuine dispute regarding what happened — the City's motion for summary judgment must be denied.
The City argues that it is entitled to summary judgment on Plaintiff's false arrest claim because Officer Romano had probable cause to arrest Plaintiff based on White's complaints of assault, which was corroborated by his observation of injuries on the two women. Def. Mem. at 16.
Plaintiff contends that summary judgment is not appropriate because the facts underlying Officer Romano's probable cause determination are disputed, and because a reasonable jury could conclude that his determination was not objectively reasonable. Pl. Mem. at 13-16. Officer Romano admitted that the woman he interviewed did not specify whether what she called a "fight" was physical or merely a "shouting match" (for lack of a better term), but that he inferred from his observations of injuries on the two women that the fight was physical. Romano Apr. 6 Dep. at 40, 43. Officer Costanzo did not recall either woman accusing the other woman of assault or admitting to an assault. Costanzo Dep. at 36. Plaintiff admits that she had a scratch on her chin, but denies that there were any other signs of a physical altercation. D. Williams Aff. ¶ 1, Rozynski Decl. Ex. I, Dkt. 66-9. The testimonies of Mr. Williams, Rivera, and Sabella all support Plaintiff's testimony that she did not have injuries indicative of a physical altercation. C. Williams Dep. at 98; Rivera Dep. at 87; Sabella Dep. at 66. Moreover, according to all of the witnesses, Plaintiff and White simply did not have a physical altercation that would have produced injuries. Because the undisputed facts do not establish that Officer Romano's determination that there was probable cause to arrest Plaintiff for assault was objectively reasonable, the City is not entitled to judgment as a matter of law on Plaintiff's common law false arrest claim.
Because the City may be held liable for discrimination on the basis of disability at the scene of an arrest and is not immune from liability under New York law for Plaintiff's false arrest and assault and battery claims under a theory of respondeat superior, the City's motion for summary judgment is DENIED. The Clerk of Court is respectfully requested to terminate the open motion at Docket Entry 60.
To the extent that the City reads Crocker to stand for the broader proposition that the ADA does not apply at the scene of the arrest (rather than its holding being limited to the facts of the case), the issue does not appear to be settled in the First Circuit. In Buchanan v. Maine, 417 F.Supp.2d 45, 73 (D.Me.2006), the District of Maine denied a plaintiff's failure-to-accommodate ADA claim at the scene of an arrest because the ADA's reasonable accommodation requirement "does not come into play" until "exigent circumstances have dissipated." The First Circuit reversed that decision, but "bypass[ed] the question of whether Title II of the ADA imposes a duty on a county sheriff's department" to train officers on interacting with disabled individuals at the scene of an arrest because "[w]hether obliged to do so by Title II or not, the County did in fact have such policies and such training." Buchanan v. Maine, 469 F.3d 158, 177 (1st Cir.2006). Based on the Court's research, the question of how the ADA applies in an arrest situation appears to remain undecided in the First Circuit.
