Questions and Answers
Here is a sample of questions related to the justice system we’ve received in our Center.
Are police officers trained in how to handle people with intellectual disabilities or mental illness, so they will understand what behavior might be due to a disability?
Many law enforcement officers and other first responders receive training on disability issues, and many law enforcement agencies have policies and procedures for officers to follow in certain situations, such as when responding to a call for help from an individual known or thought to be experiencing a mental health crisis.
While there is no specific requirement in the ADA or its regulations for law enforcement officers to be trained on disability issues, it’s certainly a good practice that can help ensure compliance and reduce risks for both officers and citizens. The Department of Justice, in its analysis of the original Title II rule published in 1991, noted that “ … in many cases, lack of training leads to discriminatory practices, even when the policies in place are nondiscriminatory.”
There are resources available to help law enforcement agencies plan, deliver, or obtain training on the ADA and disability issues, including, of course, our Mid-Atlantic ADA Center and the ADA National Network.
Additionally, the National Center on Criminal Justice and Disability (NCCJD) is a national clearinghouse for information and training related to people with disabilities, especially people with intellectual and developmental disabilities, as victims, witnesses, suspects, or offenders within the criminal justice system. NCCJD offers trainings such as webinars, training materials, and publications for individuals with disabilities, family members and advocates, service providers, attorneys and other legal professionals, and professionals in the fields of law enforcement and corrections.
I have a disability that causes my hands to shake. I am afraid that if I get pulled over while driving, the officer will assume I have been drinking. What are my rights in this situation?
Even routine traffic stops can be fraught with anxiety, for officers and citizens alike. Many people with various types of disabilities are concerned that the effects of their conditions will be misinterpreted, and unfortunately, these concerns are not entirely unfounded. Many encounters between law enforcement officers and citizens are conducted safely and successfully, but people with disabilities have experienced arrest, restraint, injury, and even death as a direct or indirect result of their conditions.
Individuals may want to explain if they have disabilities that cause trembling, slurred speech, unsteady gait, or other issues that might raise concern for an officer. If the officer intends to test for alcohol or other driving impairment, an individual who knows he or she will not be able to perform standard field sobriety tests (walking a straight line, standing on one leg, etc.) can request a chemical test (blood, breath, or urine), which will usually require transportation to a facility but will produce a more accurate and reliable result.
Again, training for officers on disability issues can help them interact effectively with people with disabilities.
I am deaf and use American Sign Language (ASL) to communicate; can I ask for an interpreter if I am in a situation where I could be arrested? What if I am in jail or prison for an extended period of time? I was told it would be too expensive to provide interpreters.
Public entities are required to ensure effective communication by providing “auxiliary aids and services” when necessary (this includes sign language interpreter services, as well as other devices or methods of communicating with people with hearing, vision, and speech disabilities). These requirements are essentially the same in any setting, including police interactions, detainment, and incarceration.
These obligations are likewise subject to the same limitations as in other settings; aids and services do not have to be provided if they would result in a “fundamental alteration” of a program, service, or activity, or in an “undue burden.” An undue burden is a significant difficulty or expense, taking into account all the resources available to the department, agency, or program.
However, the circumstances and practical issues that can arise in law enforcement situations and incarceration can present unique challenges and limitations. Law enforcement officers do not have to set aside legitimate safety concerns or postpone actions (including arrests) that are clearly warranted. If an individual who is deaf is arrested in an urgent situation, an interpreter may be summoned to the station to facilitate booking, informing the suspect of his or her rights, interrogations, etc.
There are situations, even in law enforcement, when an interpreter may not even be needed for effective communication. For example, issuing a routine speeding ticket is often accomplished effectively through the exchange of written notes. But other situations, including many that involve complex, lengthy, and important issues, such as interrogations, medical assessments and services, rehabilitative classes, and counseling, just to name a few, will likely require interpreter services for a person whose primary language is ASL.
If I have to go to state court, do my rights under the ADA still apply?
Absolutely. State and local government courts are covered by the ADA just like all other programs and activities of states, counties, cities, townships, boroughs, etc. In fact, the Supreme Court, in Tennessee v Lane, a case that challenged the constitutionality of Title II, called access to the courts a “fundamental right.”
I get regular treatment for my disability and I can't be in court on the day/time scheduled; can I ask to have that rescheduled?
Scheduling adjustments are examples of “reasonable modifications in policies, practices, or procedures” that may be needed to accommodate individuals with disabilities. Individuals can always make requests, but whether granting requests is “reasonable” may depend on a number of factors. Simple schedule changes are often easily accommodated, and most courts routinely grant requests for schedule changes for reasons other than disability.
Many court systems have an established procedure for disability-related requests, often handled by the system’s “ADA Coordinator” (an employee designated to manage ADA compliance issues).
Do ADA rights still apply to people in jail?
Yes, the ADA covers state and local jails and prisons, and protects prisoners with disabilities. The Supreme Court, in Pennsylvania Department of Corrections v Yeskey, rejected Pennsylvania’s arguments that the application of Title II to state prisons was inappropriate. The court found the broad language of Title II to “unambiguously” extend protections to prison inmates.
Writing in the recent case of Pierce v District of Columbia (see the article in the “Zoom in on Court Decisions and Settlements” section) the judge explained that “[i]ncarceration inherently involves the relinquishment of many privileges; however, prisoners still retain certain civil rights, including protections against disability discrimination.” Prisoners with disabilities should not be denied access to facilities or activities, or subjected to more severe punishment or less favorable conditions than inmates without disabilities whose circumstances are similar.
Will I be permitted to keep and use my mobility device or other aids, such as canes or braces, in jail or prison?
In many cases individuals will be able to keep their personal assistive devices during arrest procedures or while they are in jails or prisons. Modifications in policies or procedures may sometimes be needed to safeguard devices from theft or abuse, and to ensure that devices are not used as weapons. When devices cannot be allowed in certain settings or at certain times where there are valid safety and security issues, law enforcement and corrections agencies may need to provide alternatives (possibly including personal assistance) so that detainees and inmates are able to access facilities and participate in activities.
What if I develop a disability while incarcerated? Is a prison responsible for providing equipment needed for my disability (hearing aids, wheelchairs, etc.?) How do prisons handle people with severe food allergies?
While most entities covered by the ADA are not generally required to provide devices or services of a personal nature to people with disabilities, things are different in jails and prisons. It is a well-established legal principle that when a public entity takes custody of an individual, including confining a person against his will, the public entity has a duty to provide for his safety and general well-being. All detainees and inmates must be provided with the health care they need, and related devices and services are often part of that. Inmates with disabilities may need to be provided with medication, treatment, equipment, devices, and medical supplies. Likewise, medical dietary needs must be met for individuals with severe allergies, diabetes, and other conditions.
Again, alternatives, along with modifications in policies or practices, may sometimes be needed to ensure safety and security are not compromised.
What can I do if I think my rights have been violated by a police department, a court, or a prison?
All entities covered by Title II of the ADA, if they employ at least 50 people, are required to designate at least one employee to coordinate ADA compliance efforts, and to establish a grievance procedure to resolve complaints. These requirements, therefore, apply to all but the smallest public entities. This creates an option for addressing problems within the agencies.
Complaints alleging violations of the ADA can be filed with the U.S. Department of Justice against any state or local government police department or other law enforcement agency, court system, jail, or prison.
Individuals can also bring private lawsuits against state or local government agencies, although there are limitations on the types of damages that can be obtained. It should be noted that some cases that have been brought by prisoners have alleged not only violations of the ADA, but violations of their basic constitutional rights as well (the right to due process under the law, or the right to be free from cruel and unusual punishment).