Rosen v. Montgomery County, 4th Cir. (1997)
Rosen v. Montgomery County, 4th Cir. (1997)
Clifford Lee Royalty, Assistant County Attorney, Rockville, Maryland, for Appellee. ON BRIEF: Sarah S. Geer, Laura L. Rovner,
NATIONAL ASSOCIATION OF THE DEAF LAW CENTER, Silver 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, Maryland, 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 driving. 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 station 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 Drinking Driver Offender." Under the REDDO program, the County refers
2
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 understood 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 stopping, detaining and/or arresting individuals with hearing impairments," 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 requirements 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 applicant 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 inclu5
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 education programs or to inform him that alternative services were available. 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 demonstrates 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
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 benefits 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 evaporated 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. Nevertheless, the record does contain basic information about the program. J.A.
456-57.
9