legal memo 法律备忘录(16)

legal memo

addition to the enumeration of TB as a disability under federal regulations, Mr. Daniels meets the disability definition under subsection one. Breathing is an enumerated major life activity, 28 C.F.R. 35.104(2) ("The phrase major life activities means functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working."), and TB typically attacks the respiratory system. As a result of the TB, Mr. Daniels is unable to breathe properly, which has substantially limited a major life activity. Comp. ¶ ¶ 55-57. Additionally, the severity of his particular TB has necessitated substantial medical treatment, thereby creating a vast record of his impairment. Lastly, his civil confinement and isolation indicate that the state of Arizona and its agents regard him as having such impairment.16

B. Mr. Daniels should be able to establish the second element; because he is only challenging the conditions of his confinement a court is likely to determine that he is an otherwise qualified individual.17

Since Mr. Daniels is challenging the conditions of his confinement and not the confinement itself, a court is likely to determine that he does not pose a direct threat such that he would not be an otherwise qualified individual within the meaning of Title II of the ADA. However, because the Ninth Circuit seems to include "direct threat" as part of the plaintiff's burden, Mr. Daniels should prepare to address this as part of the presentation of his case and not wait to debunk a defense put forth by the state.

An otherwise qualified individual is one "who, with or without reasonable modifications, meets the essential eligibility requirements to receive public service or participate in a public program." 42 U.S.C. § 12131(2); see also Thompson v. Davis, 295 F.3d at 896 (concluding that since the plaintiffs were "statutorily eligible for parole" they were "otherwise qualified for the public benefit they seek, consideration for parole").18Additionally, the plaintiff will have to establish as part of being "qualified" that he does "not pose a direct threat to the health or safety of others …" 42 U.S.C. § 12111(3), the so-called "direct threat" standard. Something is a "direct threat" when there is a "significant risk to the health or safety of others that cannot be eliminated by a modification of polices, practices, or procedures or by the provision of auxiliary aids or services." 42 U.S.C. § 12182(b)(3); see also Bragdon v. Abbott, 524 U.S. 624, 649 (1998) (stating of the direct threat exception, "[b]ecause few, if any, activities in life are risk free ... the ADA do[es] not ask whether a risk exists, but whether it is significant"). Some jurisdictions analyze "direct threat" solely as an affirmative defense. However, for ADA claims involving communicable diseases such as the one here, the Ninth Circuit seems to adjudicate on the premise that the plaintiff bears the burden of establishing that he poses not a direct threat, and as such remains "otherwise qualified." McGary v. City of Portland, 386 F.3d 1259 (9th Cir. 2004).

The Ninth Circuit applies the test for "direct threat" laid out by the United States Supreme Court in School Board of Nassau County v. Arline, 480 U.S. 273 (1987). The factors indicative of direct threat are: "(a) nature of the risk (how the disease is transmitted), (b) duration of the risk (how long is the carrier infectious), (c) the severity of the risk (what is the potential harm to third parties) and (d) the probabilities the disease will be transmitted and will cause varying degrees of harm." Id. at 288. On remand the district court applied these factors and concluded that the plaintiff/schoolteacher "posed no threat of communicating [her latent] tuberculosis to the schoolchildren she was teaching." Arline, 692 F. Supp. 1286, 1291-92 (M.D. Fla. 1988).19

As part of the analysis, due deference is given to the judgments of public health officials, as long as those determinations are based on the latest medical and scientific knowledge available. Arline, 480 U.S. at 287. However, because of the long-standing stigmatization of contagious diseases generally, and of TB specifically ii, each determination of whether an individual is a significant risk must be an individualized, fact-specific inquiry. Id. at 287. The level of risk needed to satisfy the Arline standard is one that is not remote, speculative, theoretical, Bragdon, 524 U.S. at 649, or even "elevated." City of Newark v. J.S., 279 N.J. Super. 178, 198, 652 A.2d 265, 275, (Law Div. 1993), citing H.R. Rep. No. 101-485(III), at 46 (1990), reprinted in 1990

U.S.C.C.A.N. 445, 469 (Title I of ADA) ("The plaintiff is not required to prove that he or she poses no risk"). A person's past conduct can also be used as evidence of future conduct. The disability, itself, may be considered in this evaluation, but it may not be the reason for a categorical denial of the benefit. Anderson v. Schwartz, 2006 WL 2472210 (N.D. Cal. 2006),20 interpreting Thompson, 295 F.3d at 898, n4 ("Thompson therefore does not preclude the consideration of evidence on [sic] an inmate's disability but, in fact recognizes its validity … [an individual's] 'disability that leads one to a propensity to commit crime may certainly be relevant in assessing whether that individual is qualified for parole.'").

Here, it is probable that the issue of direct threat will need to be confronted from the outset.21The state defendants will most certainly point to his past behavior of avoiding his medication and appearing in public places without protective face masks as indicative of future threatening conduct and …… 此处隐藏：3730字，全部文档内容请下载后查看。喜欢就下载吧 ……