The Americans with Disabilities Act is still being disobeyed

On July 26, the disability community celebrated the passage of the Americans with Disabilities Act. Yet, after 29 years, noncompliance with the ADA continues to be routine. People with disabilities continue to face discrimination in education, in the workplace and in accessing public accommodations.

But one of the most prolific areas of discrimination comes from interactions with law enforcement.

In 1998, Ronald Yeskey was sentenced to 18 to 36 months in a Pennsylvania correctional facility. The sentencing court recommended his placement in Pennsylvania's Motivational Boot Camp for first-time offenders. Successful completion would have led to release on parole in just six months.

Because he had a medical history of hypertension, Yeskey's admission to the program was denied. He sued, alleging that his exclusion violated the ADA. The case made its way up to the Supreme Court, which ruled unanimously in his favor.

In his opinion for the court, the late Justice Antonin Scalia wrote that the "broad language " of Title II of the Americans with Disabilities Act of 1990 (ADA) covers inmates in state prisons and local jails. The ruling has been used by lower courts to apply the ADA to virtually everything law enforcement does, including arrests.

Despite the substantial amount of favorable case law, the ADA continues to be an underutilized tool in holding law enforcement accountable for their actions and they continue to come out on top in lawsuits brought against them under section 1983 of the Civil Rights Act, typically due to qualified immunity.

Qualified immunity only applies to suits against government officials as individuals, not suits against the government for damages caused by the officials' actions. Title II of the ADA covers public entities; a qualified immunity defense is unavailable to them.

There are two main defenses used against ADA lawsuits.

The first is the direct-threat exception, which is a difficult standard to meet because it only applies when there is a significant risk of substantial harm that cannot be mitigated by the accommodation. The showing of a direct threat is an individualized, fact-specific analysis.

For example, in Deorle v. Rutherford, the Ninth Circuit Court of Appeals determined that an officer had made a "calculated and deliberate decision" when he fired multiple shots at an individual with mental illness who was walking toward him. The individual was unarmed and the officer had been at the scene for over half an hour and was able to observe the individual. The court determined the officer had failed to provide reasonable accommodation.

Additionally, the courts and Department of Justice have decided that the direct-threat exception does not apply in situations where the reason for the encounter relates specifically to the person's disability.

The other defense commonly used by law enforcement is that the force used to effect a particular seizure was reasonable under the Fourth Amendment. But the court will use an objective test to determine whether the officer's actions were reasonable, in light of the circumstances. Courts will consider an individual's disability in contemplating reasonableness, particularly here in the Eighth Circuit, where the appeals court previously held in Ludwig v. Anderson that whether or not an individual was emotionally disturbed is material to the reasonableness of police officers' actions.