Rosen v. Montgomery County ( 1997 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JEFFREY T. ROSEN,
Plaintiff-Appellant,
v.
MONTGOMERY COUNTY MARYLAND,
No. 96-1833
Defendant-Appellee,
and
NEAL POTTER, County Executive,
Defendant.
Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Alexander Williams, Jr., District Judge.
(CA-94-3356-AW)
Argued: April 10, 1997
Decided: July 31, 1997
Before HALL and NIEMEYER, Circuit Judges, and
DUFFY, United States District Judge for the
District of South Carolina, sitting by designation.
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Affirmed by published opinion. Judge Hall wrote the opinion, in
which Judge Niemeyer and Judge Duffy joined.
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COUNSEL
ARGUED: Marc P. Charmatz, NATIONAL ASSOCIATION OF
THE DEAF LAW CENTER, Silver Spring, Maryland, for Appellant.
Clifford Lee Royalty, Assistant County Attorney, Rockville, Mary-
land, for Appellee. ON BRIEF: Sarah S. Geer, Laura L. Rovner,
NATIONAL ASSOCIATION OF THE DEAF LAW CENTER, Sil-
ver Spring, Maryland; Jerry R. Goldstein, GOLDSTEIN, HANDLER
& WHITE, P.C., Bethesda, Maryland, for Appellant. Charles W.
Thompson, Jr., County Attorney, Linda B. Thall, Senior Assistant
County Attorney, Rockville, Maryland, for Appellee.
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OPINION
HALL, Circuit Judge:
Jeffrey T. Rosen, who is deaf, sued Montgomery County, Mary-
land, under the Americans with Disabilities Act (ADA), § 504 of the
Rehabilitation Act of 1973 (29 U.S.C. § 794), and 42 U.S.C. § 1983,
for injuries suffered during and as a result of his arrest for drunk driv-
ing. The district court granted summary judgment to the County on
all claims, and Rosen appealed. We affirm.
I
A
In 1994, Rosen was stopped by a County policeman for erratic
driving. He failed a field sobriety test and, after signing a consent
form, failed a breath test. He was then arrested and taken to the sta-
tion house, where he signed a form that explained his rights and gave
consent to a chemical test. The test registered a reading indicating a
blood-alcohol content above the legal limit. He was then driven home.
He claims that the police made no attempt to communicate in writing
and that they ignored his requests for an interpreter and for a TTY
telephone so he could call a lawyer.
B
Rosen met with Donald McGean, a County employee, to discuss
the possibility of enrolling in REDDO,1 a diversionary program
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1 REDDO is an acronym for "Rehabilitation and Education for Drink-
ing Driver Offender." Under the REDDO program, the County refers
2
offered to first-time offenders. The County provided an interpreter for
this meeting. Rosen alleges that McGean told him that he (Rosen)
would have to provide his own interpreter for a local REDDO pro-
gram or have the judge order the County to provide one, but that in
any event the County would not pay for an interpreter. McGean testi-
fied in a deposition that he was "pretty sure" that he told Rosen about
a private contractor, Family Service Foundation (FSF), that provided
a program to hearing-impaired persons in neighboring Prince
George's County. Rosen signed a form that stated that he agreed to
participate in an "alcohol education program," to which was added in
handwriting, "in sign language." Rosen asserts that McGean never
told him about the FSF program.
C
When he appeared in state court to answer the drunk driving
charge, Rosen requested that the court order the County to provide an
interpreter so he could attend a REDDO program. The judge denied
the request, and Rosen pleaded guilty. He was given probation before
judgment, fined, and ordered to attend six Alcoholics Anonymous
meetings as a condition of having his conviction expunged. Rosen did
attend the AA meetings, though without an interpreter.
II
Rosen brought his ADA claim2 under the "public services" sub-
chapter, 42 U.S.C. § 12131 et seq. Section 12132 provides:
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first-time offenders to various privately operated alcohol treatment and
education programs. The County does not run any such education pro-
grams itself. The cost of these programs to the clients is based on their
income.
2 Rosen's Rehabilitation Act claims parallel the ADA claims. For con-
venience' sake, we combine the analysis of the two statutes. See Shafer
v. Preston Memorial Hosp. Corp., 107 F.3d 274, 276 n.3 (4th Cir. 1997).
Rosen's § 1983 claim is that the County failed to adequately train its
police officers regarding the ADA's requirements and that this failure-to-
train resulted in a denial of his due process and equal protection rights
under the 14th Amendment. We agree with the district court that this
claim hinges on, at the minimum, a ruling that Rosen's ADA rights were
violated.
3
[N]o 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.
The County is a public entity within the meaning of§ 12131(a), and
Rosen has adduced sufficient evidence that he has a"disability" as
that term is defined in 42 U.S.C. § 12102(2). Rosen's claim comprises
two distinct parts, the arrest and the REDDO program.
The district court ruled that the ADA does not require the police
to provide interpreters or TTY telephones to arrestees. In addition, the
court found that the policemen were trained to communicate with deaf
persons and, in any event, that the arresting officers reasonably
thought that they could communicate with Rosen without auxiliary
aids.
With regard to the REDDO claim, the court ruled that Rosen had
created no genuine dispute about two factual components. First, the
court found that the County refers all hearing-impaired persons eligi-
ble for REDDO to FSF and that Rosen had been informed about the
FSF program by McGean. Second, the court rejected Rosen's argu-
ment that the County was obligated to provide a REDDO program
"accommodating the time and location preferences of the Plaintiff."
We review a district court's grant of summary judgment de novo.
See Higgins v. E.I. DuPont de Nemours & Co., 863 F.2d 1162, 1167
(4th Cir. 1988). We affirm the judgment below, though under an anal-
ysis that is slightly different in a few respects. See Shafer, 107 F.3d
at 275 n.1 ("We have consistently recognized that we may affirm a
district court's decision on different grounds than those employed by
the district court.") (citations omitted). We will treat the arrest and
REDDO portions of Rosen's claim separately.3
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3 As a preliminary matter, we reject the County's first argument that
there is no respondeat superior liability under the ADA and that the
County can only be held for a policy of discrimination. Under the ADA
and similar statutes, liability may be imposed on a principal for the statu-
tory violations of its agent. See, e.g., Birbeck v. Marvel Lighting Corp.,
30 F.3d 507, 510-11 (4th Cir. 1994) (ADEA); EEOC v. AIC Sec. Investi-
gations, Ltd., 55 F.3d 1276, 1279 (7th Cir. 1995) (ADA); Bonner v.
Lewis, 857 F.2d 559, 566-567 (9th Cir. 1988) (Rehabilitation Act).
4
III
In his "Statement of Material Facts in Dispute," filed in opposition
to the County's motion for summary judgment, Rosen pointed out
that there remained factual disputes as to whether the police ignored
his requests for writing materials or an interpreter, whether he under-
stood the policeman's instructions, and whether the police received
adequate training in dealing with deaf persons. The claimed violation
of the ADA is the failure of the police to have and use "auxiliary aids
and services" on the street and at the stationhouse "for use in stop-
ping, detaining and/or arresting individuals with hearing impair-
ments," and the claimed injury is the humiliation and embarrassment
he suffered by not being able to communicate with the police officers.
Appellant's brief at 9. His argument is weak on a number of fronts.
A
The most obvious problem is fitting an arrest into the ADA at all.
Section 12131(b) defines "[q]ualified individual with a disability" as
"an individual with a disability who, with or without . . . the provision
of auxiliary aids and services, meets the essential eligibility require-
ments for the receipt of services or the participation in programs or
activities provided by a public entity." Rosen clearly has a disability,
but 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. See
Gorman v. Bartch, 925 F. Supp. 653, 655 (W.D.Mo. 1996) ("It
stretches the statute to talk about the Plaintiff's`eligibility' to be
arrested and taken to jail or to participate in being arrested . . . ."); cf.
Torcasio v. Murray, 57 F.3d 1340, 1347 (4th Cir. 1995) ("The terms
`eligible' and `participate' imply voluntariness on the part of an appli-
cant who seeks a benefit from the State; they do not bring to mind
prisoners who are being held against their will."), cert. denied, 116
S. Ct. 772 (1996).
Rosen points to nothing in the ADA itself or in the regulations that
specifically bring arrests within the ADA's ambit, despite the fact that
such "program or activity" is one that is"participated in" by millions
of persons every year. The closest he can come to an express inclu-
5
sion of arrests is a 1980 "analysis of final rule," issued in conjunction
with the regulations under the Rehabilitation Act, that notes that "law
enforcement agencies should provide for the availability of qualified
interpreters to assist the agencies when dealing with hearing impaired
persons." 45 Fed. Reg. 37629-30 (June 3, 1980). The analysis also
notes that Miranda warnings should be given on a written form
"where there is no qualified interpreter immediately available and
communication is otherwise adequate" and that a free interpreter
should be offered and interrogation deferred until one is obtained. Id.
These "requirements" are obviously aimed at complementing the con-
stitutional protections that are aimed at insuring that confessions are
voluntarily and intelligently given. Rosen, however, does not contend
that his consent to the intoxication tests was the product of his inabil-
ity to understand the police.
Rosen was in no way "denied the benefits of" his arrest. As far as
the police officers were concerned, Rosen adequately participated in
the various tests for intoxication, and the officers obtained the infor-
mation they needed to complete the booking process. Rosen was sim-
ply not "discriminated against" just because he could not follow
everything the officers were telling him.
If we assume, however, that the police were required to provide
auxiliary aids at some point in the process, that point certainly cannot
be placed before the arrival at the stationhouse. The police do not
have to get an interpreter before they can stop and shackle a fleeing
bank robber, and they do not have to do so to stop a suspected drunk
driver, conduct a field sobriety test, and make an arrest.
If Rosen signed the consent forms because he felt, as he asserts in
his complaint, "intimidated," the criminal justice system has ample
protections to guard against such pressures. For example, if a deaf
individual in Rosen's situation could demonstrate that the police
failed to communicate in certain material respects or that such failure
to communicate constituted undue coercion, the evidence obtained
might well have to be suppressed in the context of any criminal
action. Rosen is simply unable to point to any tangible adverse conse-
quences resulting from the manner of his arrest. 4 Moreover, he does
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4 A Department of Motor Vehicles administrative hearing officer dis-
missed the license revocation proceeding on the ground that the arresting
officers did not communicate with him effectively.
6
not claim that the officers' refusal to use auxiliary aids led in any way
to his guilty plea. Our decision to affirm, however, is based on an
even more fundamental infirmity: the lack of any discernible injury.
B
What the policemen should have done is beside the point, unless
Rosen can show that he was somehow damaged by their failure to
communicate. Rosen does not assert that better communication would
have changed events one iota, and, in the end, he is forced to fall back
on his claim that he was "humiliated and embarrassed." But these are
emotions experienced by almost every person stopped and arrested
for drunk driving. Rosen, who is a lawyer, failed a field test, signed
a form, failed another test, was arrested, signed another form, and
failed another test. Without some better indication of precisely what
it was that he did not understand, we cannot find an injury that would
suffice to invoke the ADA's protections.
IV
The other part of Rosen's ADA claim involves the County's
alleged failure to provide interpreter services for the alcohol educa-
tion programs or to inform him that alternative services were avail-
able. This claim, however, evaporated before Rosen left the
courtroom where he was sentenced.
The evidence is that the County, including the police department,
made fairly extensive use of interpreters.5 Rosen's own evidence dem-
onstrates that the FSF program was offered to other deaf persons prior
to his discussion with McGean.6 Nevertheless, even if we assume that
there is a genuine issue of fact regarding what McGean told him or
did not tell him,7 the fact is not a material one. Again, we need first
to determine what the violation and injury being claimed are.
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5 For instance, in 1994, the year in which Rosen was arrested, the
County spent $98,253 on interpreter services. J.A. 416.
6 See deposition of Carol Rose Ethridge, J.A. 266, which was offered
by Rosen in support of his summary judgment motion.
7 The following factors throw doubt on Rosen's version. He met with
McGean for two hours with an interpreter, but the interpreter's version
7
Rosen's argument seems to be that had the County provided a free
interpreter or, alternatively, had he at least known of the FSF pro-
gram, he could have represented to the state court he was qualified for
a treatment program. The court then would have likely have placed
his case on the inactive docket for a year, after which time the case
would have been dismissed upon proof that he had completed the
treatment program. As it turned out, the court refused to order that the
County provide an interpreter and instead required Rosen to attend
AA meetings under a "probation before judgment" program. The end
result is essentially the same either way; he has no drunk driving
record, and he makes no effort to explain how the legal consequences
differ.
Rosen seems to be arguing that the ADA requires the County to
provide an interpreter at every privately operated education program
that is part of REDDO. See appellant's brief 27 ("ADA requires the
County to make its REDDO program accessible to deaf individuals.").
However, he has made no effort to show that FSF is segregated,
inconvenient (or even less convenient), more expensive, or anyhow
inferior to other REDDO programs operated in Montgomery County.
To the extent, then, that Rosen is insisting that the County be required
to provide him with an interpreter so that he can participate in the par-
ticular program he desires, we have held that the Rehabilitation Act
says otherwise. See Barnett v. Fairfax County School Bd., 927 F.2d
146, 154 (4th Cir. 1991) (school board not required to "provide every
hearing-impaired student with his interpreter of choice at his base
school, instead of at mainstreamed but centralized locations . . . . ").8
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of what happened is not in the record. Prior to his meeting, he had spo-
ken to Mauro Ramos, a clinical supervisor at the County DWI Treatment
Services Program, which administers the REDDO program. Ramos
stated in a deposition that "[a]t all times relevant herein, our office has
provided alcohol treatment and counseling to deaf and hearing impaired
clients through [FSF]." J.A. 418-19. Finally, Rosen worked with William
Ethridge, the father of a woman who had been arrested in 1993 for drunk
driving in the County and who had been offered the FSF program with
a counselor who could sign. J.A. 266; J.A. 272. It is difficult to believe
that not one of these people ever mentioned the FSF program to Rosen.
8 At appellant's brief at 31, Rosen comments that "disputed issues of
fact exist as to the scope of the FSF program, its location, hours, cost,
8
The only claim left would be that (1) McGean forgot to tell him
about FSF, therefore (2) he could not tell the court that he had been
accepted into a program in which he could fully participate, and,
therefore, (3) he ended up at AA, where (4) he was denied the bene-
fits of full and meaningful participation in some educational program.
This claim depends entirely on the unwarranted assumption that the
court would have placed the case on the inactive docket and would
have required Rosen to attend either FSF as the diversionary program
(had that program been brought to the court's attention) or another
REDDO program for which the County was providing an interpreter.
Finally, Rosen might be complaining about having to suffer the
embarrassment of attending the court-ordered AA meetings without
an interpreter. If this is the case, his claim would be against the court,
an entity over which the County exercises no control whatsoever.
V
With regard to the alleged ADA violations arising from the arrest,
we affirm because Rosen has failed to demonstrate that he was
injured by such violations. His REDDO-related claim fails because
the possibility of any ADA violation blossoming into a claim evapo-
rated when he pleaded guilty and was sentenced by the state court.
AFFIRMED
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and accessibility to public transportation." However, in his "Statement of
Disputed Facts", which was filed in opposition to the County's motion
for summary judgment, there is nothing about FSF's program. Neverthe-
less, the record does contain basic information about the program. J.A.
456-57.
9