legal memo 法律备忘录(17)

legal memo

that given the threat of TB, they are unable to provide a "reasonable modification" such that he would be an otherwise qualified individual within the statutory definition. Although this argument would be used at this juncture to defeat Mr. Daniel's claim, it is discussed fully on p. 21 as part of the overall legal theory of failure to provide a reasonable modification.

To successfully establish that he is an otherwise qualified individual, Mr. Daniels must stress that is not arguing for a release from his civil confinement, but merely a change of confinement conditions.22He must convincingly argue that an individualized "direct threat" assessment, based on the Arline factors, should be conducted with respect to the risks associated with changing or altering those conditions. Clearly, some of the conditions of confinement alleged in the complaint would require a more detailed assessment of direct threat or risk, i.e., outside exposure since TB is an airborne condition, shackled hands in the event that he attempted to remove a face mask, and solitary confinement and no ability to interact if he was in fact so contagious that he could not be among others. Comp. ¶ ¶ 28(ii-iv), 28 (xiv-xv), 28 xviii. However, many of the conditions seem to have very little connection to the risk or threat created by his contagious TB, i.e., his exposure to lights for 24 hours a day in his room, no external view outside because of the frosted windows, and interception, opening and reading of mail. Comp. ¶ ¶ 28(v-vii), 28(xvi).

Mr. Daniels must continually stress that the "direct threat" to be evaluated is one of changed circumstances and conditions. Any argument that seems to indicate a release from his confinement will likely open the door for the state to argue that his past conduct was reckless and posed a grave danger to the public health. This could ultimately bar him from establishing that he is an otherwise qualified individual and disqualify him from ADA protection under Title II.23

C. Mr. Daniels should be able to establish the third element; that certain conditions of confinement are benefits within the meaning of Title II of the ADA.

Before establishing that he was denied a public benefit or opportunity to participate in a public program or service because of disability-based discrimination, the Title II plaintiff needs to establish that the benefit desired, here certain conditions of confinement, actually fall within the ADA meaning of public benefit. Mr. Daniels will have to try to argue that the intent of the ADA, the applicable Ninth Circuit cases, and persuasive cases in other jurisdictions allow for a ruling that persons civilly committed to jail ward treatment facilities are entitled to at least the same conditions of confinement and benefits as criminally incarcerated persons. Once he has established this ruling then he should be able to argue that he is entitled to certain changes in the conditions of his confinements based on past adjudications in which prisoners and inmates have successfully argued for these benefits.24

1. 25Arguing that civilly committed persons with disabilities are entitled to at least the same baseline conditions of confinement as criminally incarcerated persons for purposes of the ADA.

Generally, what constitutes an ADA covered public benefit, participation in a program, or service can be broadly defined. Lee v. City of Los Angeles, 250 F.3d at 691 (noting that "the ADA's broad language brings within its scope 'anything a public entity does' … [and] includes programs or services provided at jails, prisons, and any other "'custodial or correctional institution") 28 C.F.R. Pt. 35, App. A, preamble to ADA regulations). Pursuant to the Rehabilitation Act of 1973 (which only applies to public entities receiving federal funds and may not apply to these specific defendants)26, conditions of confinement are arguably benefits provided by public entities receiving federal funds. 28 C.F.R. 42.540(j) ("Benefit includes provision of services, financial aid or disposition (i.e., treatment, handling, decision, sentencing, confinement, or other prescription of conduct)."). If under the Rehabilitation Act of 1973, conditions of confinement are benefits to which a disabled individual is entitled to, then it is arguable that they would also apply under Title II of the ADA. 28 C.F.R. 35.103(a). Rule of interpretation. ("Except as otherwise provided in this part, this part shall not be construed to apply a lesser standard than the standards applied under title V of the Rehabilitation Act of 1973 (29 U.S.C. 791) or the regulations issued by Federal agencies pursuant to that title.")27

Within the Ninth Circuit, the rule is clear that programs, benefits, and accommodations provided at correctional facilities to criminally incarcerated disabled persons fall within the meaning of the ADA. Lee, 250 F.3d at 691. Similarly, civil detainees not yet civilly committed are entitled to bring claims under the ADA, even though they are not criminally detained and covered by the Eighth Amendment. Id. But the law is not as clear on what the benefits and guarantees are to the person who is civilly confined.

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