for the district of colorado civil action no. 16-cv …...jan 24, 2019 · civil action no....
TRANSCRIPT
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 16-cv-02691-WYD-SKC JODIE ADAMS-CHEVALIER, TIMOTHY CHEVALIER, ZACHARY ENGSTLER, and CARTER ENGSTLER, by and through his parent and next fried JODIE ADAMS-CHEVALIER,
Plaintiffs, v. TONY SPURLOCK, in his official capacity as Sheriff of Douglas County, Colorado,
Defendant.
DEFENDANT’S RESPONSE TO PLAINTIFFS’ REVISED MOTION FOR PARTIAL SUMMARY JUDGMENT ON LIABILITY
Defendant, Tony Spurlock, in his official capacity as Sheriff of Douglas County,
Colorado (“Sheriff”), by and through the Douglas County Attorney, hereby submits his response
in opposition to Plaintiffs’ Revised Motion for Partial Summary Judgment on Liability (Doc. No.
123, the “Motion”).
INTRODUCTION
Plaintiffs’ Motion focuses largely on the issue of whether or not the circumstances
alleged in the Third Amended Complaint constitute an “emergency” under 28 C.F.R. § 35.160.1
In doing so, Plaintiffs claim there are no material issues of fact notwithstanding their knowledge
that the factual question of whether an emergency existed is hotly contested in this case.
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Plaintiffs also insist that Defendant failed to provide effective communication but, in doing so,
ignore the factual circumstances surrounding the parties’ communications. Critically, Plaintiffs
ignore their obligation to establish that Defendant acted with deliberate indifference in order to
establish liability for damages. Instead, “Plaintiffs concede that Defendant provided training . . .
and had policies in place . . . designed to comply with the laws at issue[,]” (Doc. No. 123 at 2),
but claim that the occurrence of a single alleged violation alone somehow establishes that
Defendant acted with deliberate indifference. That is not the law. Contrary to Plaintiffs’
assertions, the undisputed facts at this stage do not entitle Plaintiffs to partial summary judgment
on liability as a matter of law, and Plaintiffs’ Motion must be denied.
RESPONSE TO MOVANTS’ MATERIAL FACTS
1. Undisputed for purposes of the Motion only.
2. Disputed. First, this assertion calls for a legal conclusion. Second, the record
does not support the assertion. Deputy Nicolas Arnone and Deputy Charles Curry responded to
the 9-1-1 call at Plaintiffs’ residence on November 2, 2014, and upon arrival and after initially
speaking with Plaintiff Chevalier, Deputy Arnone was informed by Mr. Chevalier that Ms.
Adams-Chevalier and Mr. Engstler are deaf. (Ex. 1, Arnone Aff., ¶¶ 4, 12.) Deputy Arnone was
not aware that Ms. Adams-Chevalier and Mr. Engstler had been identified as deaf until after he
arrived at the Chevalier Residence. (Id. at ¶ 12.)
3. Undisputed that these are partial quotations. However, the quotation in 3.j. omits
“or auxillary service” from the quotation so as to improperly suggest that only a qualified
interpreter may be provided when that is not the case, and the quotation in 3.k. omits the express
1 Plaintiffs’ Motion was filed in March 2018, before the Court ruled on Defendant’s Motion to Dismiss Plaintiffs’ Third Amended Complaint. Defendant has not addressed issues regarding Plaintiffs’ claims for injunctive relief in
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clarification that the Policy is not intended to be exhaustive by opening with “Although not every
situation can be addressed within this policy….”
4. Undisputed.
5. Disputed. The pages of the training slides referenced (pp. DCSO 138, 151, 168,
180, 182, 183, 186, 191, 196 and 200) do not set out “requirements” regarding contacting a sign
language agency or legally certified sign language interpreter or “requirements” regarding how
to do so and Timothy Chevalier’s presentations only include DCSO 151, DCSO 196 (a cover
page), and DCSO 200 from that list; of those three pages, only DCSO 151 addresses the
identified topics and that slide merely provides a link and pathway to “find Colorado’s list of
Legally Certified Interpreters[.]”
6. Disputed. Deputies Curry and Charles J. Nunley engaged in only brief
conversation with Plaintiff Carter Engstler, lasting only a matter of minutes, and which was
limited to the Deputies gathering information as to his observations and generally gathering
information regarding what had occurred and who may have been hurt. (Ex. 2, Nunley Aff., ¶¶
9-11.) When Plaintiff Adams-Chevalier wrote a note to the Deputies requesting they stop talking
to Plaintiff Carter Engstler, the Deputies stopped speaking with him. (Id. at ¶¶ 14-15.) The
Deputies did not use or attempt to use Plaintiff Carter Engstler as a translator to conduct any
witness interviews. (Id. at ¶¶ 12-13; see also Ex. 1, Arnone Aff., ¶¶ 16-17.)
7. Defendant does not dispute that Jodie Adams-Chevalier requested an American
Sign Language interpreter, but she was the one who directed a request to the Deputies at the
Chevalier Residence, not Mr. Chevalier or Zachary Engstler. (See Ex. 1, Arnone Aff., ¶ 15; Ex.
2, Nunley Aff., ¶ 14.) Additionally, without waiving any objections to the admissibility of
light of the Court’s dismissal of those claims.
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Exhibit C, Defendant disputes the characterization that “Deputy Arnone’s Case Narrative admits
‘Jodie and Zachary both deaf and requested an American Sign Language Interpreter.’” (emphasis
added.) Deputy Arnone’s Case Narrative does not indicate one way or the other whether the
quoted language reflects his own beliefs or something he was told, and Plaintiffs’ counsel has no
personal knowledge about the quoted statement.
8. Disputed. The Chevalier Family Members were not interviewed until November
26, 2014, and the Deputies promptly made efforts on November 2, 2014 to contact an American
Sign Language Interpreter after the scene was secure and there were no further safety or welfare
needs to attend to. (Ex. 2, Nunley Aff., ¶ 18; Ex. 4, Duffy Aff., ¶¶ 6-7, 9-11; Ex. 5, 11/26/14
Interview Recordings.) The Deputies did not use any victims or witnesses to translate for
purposes of interviewing another victim or witness. (Ex. 1, Arnone Aff., ¶ 16-17; Ex. 2, Nunley
Aff., ¶ 12-13.)
9. Disputed. Deputy Nunley contacted dispatch at 3:37 p.m. to obtain a qualified
sign language interpreter as he was in the field and did not have ready access to the means to
obtain an interpreter. (Ex. 2, Nunley Aff., ¶ 19, 21, 23; see also Ex. 6; Ex. 1, Arnone Aff., ¶ 19.)
Deputy Arnone, who was en route to the hospital, then assumed the task of continuing to work
on obtaining an interpreter, and Deputy Nunley returned to patrol. (Ex. 2, Nunley Aff., ¶ 22.)
Consistent with DCSO policy, Deputy Arnone spoke with the shift supervisor at dispatch while
driving to the hospital. (Ex. 1, Arnone Aff., ¶ 20.) Deputy Arnone was informed that dispatch
checked internally for interpreters, as well as contacting the Colorado Bureau of Investigations
but that neither avenue had yet been successful. (Id.) Dispatch also contacted Sky Ridge
Hospital, the location where Plaintiffs would be arriving, to inquire as to whether the hospital
had any qualified sign language interpreters. (Id. at 21-22; see also Ex. 8.) Deputy Arnone
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believed that if the hospital had a qualified interpreter that would be the fastest option to secure
interpreter services. (Ex. 1, Arnone Aff., ¶ 21.) The hospital did not have any interpreters
qualified for law enforcement work. (Id. at ¶ 23.)
Defendant disputes the assertion set forth by Plaintiffs that “[i]n stead of contacting a sign
language interpreting agency or a legally certified sign language interpreter, as is required by the
ADA and Defendant’s own Policy….” This statement calls for a legal conclusion. In addition, it
mischaracterizes the requirements of the ADA and internal policy, neither of which specify how
an entity must go about securing a qualified sign language interpreter. Furthermore, dispatch and
the Deputies worked consistently to obtain a qualified interpreter while Plaintiffs were en route
to the hospital via ambulance.
Upon not having success securing an interpreter internally, through the Colorado Bureau
of Investigation or through the hospital, dispatch provided Deputy Arnone with a list of agencies
to contact to continue to work to obtain an interpreter. (Ex. 1, Arnone Aff., ¶ 24.) The first call
Deputy Arnone made to an agency from the list was to 24 Hour Sign Language Service and was
informed they would check on availability of an interpreter qualified to work with law
enforcement and contact him back. (Id.)
10. Undisputed for purposes of this Motion only.
11. Defendant does not dispute the mileage between Fort Collins, Colorado to Sky
Ridge Medical Center as depicted on Plaintiffs’ Exhibit JJ. Defendant does however dispute the
implied conclusion Plaintiffs ask the Court to make with Exhibit JJ. (See Doc. No. 119 at ¶¶ 11-
12.) The record does not contain information regarding the exact location the 24 Hour
interpreter was to depart from, “Fort Collins” is a general location description. The record also
does not contain information regarding traffic conditions, particularly on Interstate-25, on the
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evening of November 2, 2014, nor is travel time between locations, especially unspecified
locations, a fact whose accuracy cannot reasonably be questioned. Any correlation between the
distance and times depicted on Exhibit JJ are not evidentiary support for the distance and times
for 24 Hour’s interpreter to travel from their location in the Fort Collins area to Sky Ridge
Medical Center on the evening of November 2, 2014, and any conclusion to that effect is
speculation. Defendant therefore objects to the Plaintiffs’ request for the Court to take judicial
notice of Exhibit JJ.
12. Disputed. Deputy Arnone was informed shortly before 4:45 p.m. by a
representative from 24 Hour that their Denver Metro area ASL interpreter had been needed in
Fort Collins, Colorado and would need approximately two hours to get to Sky Ridge Hospital.
Furthermore, Deputy Arnone was the one providing updates to the Chevalier family on
November 2, 2014 about the anticipated arrival time of the interpreter and he conveyed the 2
hour expectation that he had been given. (Ex. 1, Arnone Aff., ¶ 25.)
13. Disputed. Defendant disputes that the statement made in Plaintiffs’ Exhibit W is
an “admission.” Deputy Arnone provided updates to the Plaintiffs, including updates regarding
the timing of a qualified sign language interpreter to arrive. (Ex. 1, Arnone Aff., ¶ 27.)
14. Undisputed.
15. For purposes of this Motion only, Defendant does not dispute the time of the 911
call or the time at which Mr. Chevalier arrived at the hospital. Defendant disputes the arrival
time of the deputies at the Chevalier Residence; they did not all arrive together. (Ex. 1, Arnone
Aff., ¶ 4; Ex. 2, Nunley Aff., ¶ 4.).
16. Disputed. While Plaintiffs’ Paragraph 16 irrelevant, it is also inaccurate in that
Defendant’s last filed motion to dismiss prior to the filing of the Motion does not have any
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documents attached. as a mischaracterization of the record. Deputies Nunley and Arnone were
in contact with dispatch to obtain a qualified sign language interpreter and inquiries were made
internally, to the Colorado Bureau of Investigation and to Sky Ridge Hospital as to the
availability of an interpreter. (Ex. 2, Nunley Aff., ¶¶ 18-19, 21-23; Ex. 1, Arnone Aff., ¶¶ 19-
24.) Deputy Arnone was in contact with 24 Hour for interpreter services and was informed that
an interpreter would be available later that evening. (Ex. 1, Arnone Aff., ¶¶ 24-25.) Deputy
Arnone was further informed by 24 Hour that it was difficult to find ASL interpreters that were
qualified to work with law enforcement. (Ex. 1, Arnone Aff., ¶¶ 25, 27, 32.)
17. Undisputed for purposes of this Motion only.
18. Disputed. The assertion made by Plaintiffs regarding the timing and availability
of 24 Hour’s interpreter in Paragraph 18 is not supported by the record and call for speculation.
The record does not contain information regarding the exact location the 24 Hour interpreter was
to depart from, “Fort Collins” is a general location description. The record also does not contain
information regarding traffic conditions, particularly on Interstate-25, on the evening of
November 2, 2014, nor is travel time between locations, especially unspecified locations, a fact
whose accuracy cannot reasonably be questioned. Any correlation between the distance and
times depicted on Exhibit JJ are not evidentiary support for the distance and times for 24 Hour’s
interpreter to travel from their location in the Fort Collins area to Sky Ridge Medical Center on
the evening of November 2, 2014, and any conclusion to that effect is speculation. Defendant
therefore objects to the Plaintiffs’ request for the Court to take judicial notice of Exhibit JJ.
19. Disputed. Deputy Arnone was informed shortly before 4:45 p.m. by a
representative from 24 Hour that their Denver Metro area ASL interpreter qualified for law
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enforcement work had been needed in Fort Collins, Colorado and would need approximately two
hours to get to Sky Ridge Hospital. (Ex. 1, Arnone Aff., ¶ 25.)
20. Disputed. Deputy Arnone was told by the 24 Hour representative that ASL
interpreters that were qualified to work with law enforcement were not widely available. (Ex. 1,
Arnone Aff., ¶¶ 25-27, 32.) In addition, the Deputies were not aware Plaintiffs Adams-Chevalier
and Zachary Engstler were deaf when they first arrived at the apartment complex. (Ex. 1,
Arnone Aff., ¶ 12; Ex. 2, Nunley Aff., ¶ 6.) Further, the Deputies and dispatch pursued
numerous avenues on November 2, 2014 to obtain a qualified sign language interpreter before
being informed by 24 Hour that they had an interpreter qualified to work with law enforcement
available. (Ex. 1, Arnone Aff. ¶¶ 19-25; Ex. 2, Nunley Aff., ¶¶ 18-19, 21-23.)
21. Defendant does not dispute that Timothy Chevalier reported during his 911 call
that Joshua Engstler had left the Chevalier Residence or that, when Deputies Curry and Arnone
arrived at the apartment and performed a protective sweep, they did not find Joshua Engstler in
the apartment, but Defendant disputes the statement to the extent disputed Defendant and his
employees should not and could not ignore their training, endanger their own safety and that of
others in the apartment and assume that Joshua Engstler was gone and posed no threat. (Ex. 1,
Arnone Aff., ¶¶ 6-8; Ex. 2, Nunley Aff., ¶¶ 7-8.)
22. Undisputed for purposes of this Motion only. However, for clarity of the record
Plaintiff Chevalier was transported to the hospital via emergency medical service and Deputy
Arnone followed the ambulance to the hospital separately. (Ex. 1, Arnone Aff., ¶¶ 18-19.)
23. Disputed. The Deputies did not attempt to use Mr. Chevalier or Carter Engstler to
translate for purposes of conducting witness interviews of Ms. Adams-Chevalier or Zachary
Engstler. (Ex. 1, Arnone Aff., ¶¶ 15-17; Ex. 2, Nunley Aff., 11-12.) In addition, the Deputies
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and dispatch did work to secure a qualified sign language interpreter, and one was in fact secured
on November 2, 2014. (Ex. 1, Arnone Aff., ¶¶ 19-25, 31; Ex. 2, Nunley Aff., ¶¶ 18-19, 21-23.)
24. Undisputed for purposes of this Motion only.2
25. Defendant does not dispute that the Douglas County Sheriff’s Office receives
federal assistance. (See Doc. No. 163, ¶ 4.) Defendant disputes the remaining assertion by
Plaintiffs in Paragraph 25 regarding liability as it calls for a legal conclusion.
26. Disputed. The Deputies did not use Plaintiffs Chevalier or Carter Engstler as
interpreters for purposes of interviewing other family members. (Ex. 1, Arnone Aff., ¶¶ 15-18,
26-27, 31; Ex. 2, Nunley Aff., ¶¶ 9-15.) Additionally, Deputies Curry and Charles J. Nunley
engaged in only brief conversation with Plaintiff Carter Engstler, lasting only a matter of
minutes, and which was limited to the Deputies gathering information as to his observations and
generally gathering information regarding what had occurred and who may have been hurt. (Ex.
2, Nunley Aff., ¶¶ 9-11.) When Plaintiff Adams-Chevalier wrote a note to the Deputies
requesting they stop talking to Plaintiff Carter Engstler, the Deputies stopped speaking with him.
(Id. at ¶¶ 14-15.) The Deputies did not use or attempt to use Plaintiff Carter Engstler as a
translator to conduct any witness interviews. (Id. at ¶¶ 12-13; see also Ex. 1, Arnone Aff., ¶¶ 16-
17.) The Deputies were also part of brief communications with Ms. Adams-Chevalier and, to a
lesser extent, Mr. Zachary Engstler, but those took place largely through the use of written notes
and gestures and periodic utterances. (Ex. 1, Arnone Aff., ¶ 15; Ex. 2, Nunley Aff., ¶ 14.)
2 Plaintiffs’ references to Plaintiffs’ Class Action Amended Complaint (Doc. No. 23) and Defendant’s Answer to Class Action Amended Complaint (Doc. No. 44) are to moot documents pursuant to subsequent filings by both Plaintiffs and Defendant. (See e.g. Doc. No. 117 & Doc. No. 163.)
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27. Disputed. The Deputies did not use Plaintiffs Chevalier or Carter Engstler as
interpreters for purposes of interviewing other family members. (Ex. 1, Arnone Aff., ¶¶ 15-18,
26-27, 31; Ex. 2, Nunley Aff., ¶¶ 9-15.)
28. Disputed. A qualified sign language interpreter was secured through 24 Hour at
4:43 p.m. on November 2, 2014 by Deputy Arnone, which information was communicated to
Plaintiffs by Deputy Arnone. (Ex. 1, Arnone Aff., ¶¶ 25-27.) The interpreter’s services were
cancelled upon request by Plaintiffs at 6:20 p.m. on November 2, 2014. (Id. at ¶¶ 28, 30-31.)
29. Undisputed that Mr. Chevalier made those statements but disputed to the extent
Defendant and his employees should not and could not ignore their training, disregard signs and
symptoms of serious medical concerns and refuse to seek medical care. (Ex. 1, Arnone Aff., ¶
9.)
STATEMENT OF ADDITIONAL MATERIAL FACTS
30. At approximately 3:03 p.m. on Sunday, November 2, 2014, the Douglas County
Sheriff’s Office (“DCSO”) dispatch aired a 911 emergency call for service at 9651 Timber Hawk
Circle, Apt. 22, Highlands Ranch, Colorado in Douglas County (the “Chevalier Residence” or
“Residence”) to respond to an alleged assault. (Ex. 1, Arnone Aff., ¶¶ 2-3, 10; Ex. 2, Nunley
Aff., ¶ 2-3, 20; Ex. 3, CAD Notes, at 1.)
31. Dispatch aired that an assailant had kicked the door open; that the assailant was
having anger control problems sufficient to cause the reporting party (Mr. Chevalier) to try to
call 911; and that Mr. Chevalier possibly had broken ribs and was having a hard time breathing.
(Ex. 3, CAD Notes, at 1.)
32. Dispatch’s call focused on basic details of the assault on Mr. Chevalier rather than
on the remaining family members. As a result, the Deputies responding to the Chevalier
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Residence did not become aware that Ms. Adams-Chevalier and Zachary Engstler were
apparently deaf until their initial communications with the Chevalier family members. (Ex. 1,
Arnone Aff., ¶ 12; Ex. 2, Nunley Aff., ¶ 6; cf. Ex. 3, CAD Notes, at 1.)
33. Deputies Nicholas Arnone and Charles Curry, in DCSO’s Patrol Division, arrived
at the apartment complex where the Chevalier Residence was located at approximately 3:09
p.m., parked and proceeded to the Chevalier’s second floor apartment. (Ex. 3, CAD Notes, at 1;
Ex. 1, Arnone Aff., ¶¶ 4-5.)
34. When responding to a 911 emergency call such as that at the Chevalier Residence,
where an assault has occurred and the assailant has been reported to have left the premises, the
responding patrol officers’ primary tasks are to verify that the assailant is no longer at the scene
to ensure that the scene is secure and anyone on scene is not at risk; to determine whether and to
what extent anyone at the scene has been injured and requires medical attention; and to attempt
to determine the location of the assailant and potentially minimize risk to other members of the
public. (Ex. 2, Nunley Aff., ¶ 7, 20; Ex. 1, Arnone Aff., ¶¶ 2-3, 10.)
35. Deputies Arnone and Curry initially conducted a protective sweep of the
residence for safety purposes and in conformity with their practice. The reason for doing so is
twofold: first, it is possible that the caller could intentionally try to mislead responders as to an
assailant’s whereabouts; and second, a caller could believe the assailant had left when, in fact,
they have not left the premises, or they have returned unbeknownst to the caller. (Ex. 1, Arnone
Aff., ¶ 7.)
36. After ensuring that the suspect, Joshua Engstler, was no longer in the apartment,
Deputy Arnone took the lead in making preliminary inquires of Timothy Chevalier to get a basic
understanding of what had happened, how and to what extent he had been injured, whether
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anyone else in the home had been injured and where the suspect may have gone. He made those
inquiries for the purpose of ensuring the immediate safety and welfare of the family members.
(Ex. 1, Arnone Aff., ¶ 8.)
37. Once Deputy Arnone began speaking to Mr. Chevalier, Mr. Chevalier
complained that he was having difficulty breathing. That type of complaint is something that, as
a matter of practice, should prompt an immediate call for an ambulance, and Deputy Arnone did
so in this case. (Ex. 1, Arnone Aff., ¶ 9.)
38. Deputy Arnone called for the ambulance at approximately 3:13 p.m. (Ex. 1,
Arnone Aff., ¶ 11; Ex. 3, CAD Notes, at 1.)
39. Deputy Arnone had some limited additional communications with Mr. Chevalier
to determine the extent of his injuries, whether other family members had been injured and were
in need of medical care or treatment, and where Joshua Engstler might be located. (Ex. 1,
Arnone Aff., ¶ 13.)
40. From Mr. Chevalier, Deputy Arnone learned:
His step-son, Joshua Engstler, was arguing with Ms. Adams-Chevalier by the kitchen;
Joshua started yelling at his mother, so he (Mr. Chevalier) asked Joshua to calm down or he would call the police;
He started calling 911 and Joshua started walking into the kitchen towards the knives;
Ms. Adams-Chevalier asked Joshua to stop, and Joshua turned around and came back toward him;
He stood up from a recliner and Joshua shoved him with both hands; He fell backwards into the coffee table, landing on the coffee table with his right
side and then landing on the floor between the coffee table and recliner; He could not breath, was trying to catch his breath and was not sure of what
happened after that; It was his understanding that Joshua had assaulted Zachary as well, but he was not
sure about what had happened.
(Ex. 1, Arnone Aff., ¶ 14.)
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41. Deputy Nunley arrived at the apartment complex at approximately 3:20 p.m. and
proceeded to the Chevalier’s second floor apartment. When he got to the apartment, Emergency
Medical Services had already arrived. (Ex. 2, Nunley Aff., ¶ 5.)
42. While at the Chevalier Residence, Deputy Nunley and Deputy Curry took part in
a brief conversation with Carter Engstler. Carter was asked about what he had observed, and that
discussion was brief and was for the purpose of generally understanding what had happened and
who may have been hurt during the assault. (Ex. 2, Nunley Aff., ¶¶ 9, 10.)
43. While the Deputies may have briefly made an inquiry about whether his mother
had been hurt and where Joshua Engstler might be, the inquiry was brief and made for the
purpose of ensuring the immediate safety and welfare of the Chevalier family members. (Ex. 2,
Nunley Aff., ¶ 10-12.) In total, these basic inquiries to Carter Engstler lasted only a matter of
minutes. (Ex. 2, Nunley Aff., ¶ 15.)
44. It was only after Carter Engstler made the requested inquiry to his mother that the
Deputies were asked not to do so by Ms. Adams-Chevalier writing a note on paper and providing
it to the Deputies. (Ex. 2, Nunley Aff., ¶¶ 14.) After she did so, the Deputies stopped speaking
to Carter Engstler. (Ex. 2, Nunley Aff., ¶¶ 15.)
45. The Deputies were also part of brief communications with Ms. Adams-Chevalier
and, to a lesser extent, Mr. Zachary Engstler, that took place largely through the use of written
notes and gestures and periodic utterances. (Ex. 1, Arnone Aff., ¶ 15; Ex. 2, Nunley Aff., ¶ 14.)
In fact, it was through a written note that Ms. Adams-Chevalier also expressed her desire for a
sign language interpreter. (Ex. 1, Arnone Aff., ¶ 15; Ex. 2, Nunley, Aff. ¶ 14.)
46. After Ms. Adams-Chevalier made the written request to have an American Sign
Language interpreter, communications with Ms. Adams-Chevalier and Mr. Engstler were limited
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to verifying that Ms. Adams-Chevalier had not been injured and the extent of the injuries Mr.
Engstler had suffered. (Ex. 1, Arnone Aff., ¶ 15.)
47. The inquiries made of Ms. Adams-Chevalier and Mr. Engstler were brief and
made for the purpose of ensuring the immediate safety and welfare of the Chevalier family
members. (Ex. 1, Arnone Aff., ¶ 15; Ex. 2, Nunley Aff., ¶ 14.)
48. None of the Deputies at the Chevalier Residence used, or attempted to use, Carter
Engstler or Timothy Chevalier as a translator to conduct a witness interview of Ms. Adams-
Chevalier or Zachary Engstler or to get their statement about what had occurred. (Ex. 1, Arnone
Aff., ¶ __; Ex. 2, Nunley Aff., ¶ 12.)
49. As a general matter of training and practice, the Deputies would not have
attempted to conduct the interview of one witness by using another witness to translate because
there is a risk that the translating witness could influence the translation based on their own
observations. (Ex. 1, Arnone Aff., ¶ 17; Ex. 2, Nunley Aff., ¶ 13.)
50. Once Emergency Medical Services was in the process of getting Mr. Chevalier
ready to be transported to the hospital, and there were no further pressing safety or welfare needs
to attend to, Deputy Nunley promptly reached out to dispatch about trying to secure an American
Sign Language interpreter. (Ex. 2, Nunley Aff., ¶ 18-19, 21; Ex. 6, Nunley Audio Recording.)
51. Deputy Arnone went to the hospital, following behind the ambulance. (Ex. 1,
Arnone Aff., Ex. 2, Nunley Aff., ¶ 22.)
52. While Deputy Arnone was en route to the hospital, he and dispatch made
numerous efforts to secure a qualified sign language interpreter authorized to work with law
enforcement, including searching internally for a DCSO employee, contacting the Colorado
Bureau of Investigation to coordinate an ASL interpreter, contacting Sky Ridge Hospital to
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coordinate an ASL interpreter, and compiling contact information for sign language
interpretation services. (Ex. 1, Arnone Aff., ¶¶ 19-23.)
53. After learning that there were no interpreters available through the hospital
qualified to work with law enforcement, Deputy Arnone reached out to 24 Hour Sign Language
Services and was able to secure an interpreter qualified to work with law enforcement. (Ex. 1,
Arnone Aff., ¶ 30.) At approximately 4:45 p.m., he was told by a representative from 24 Hour
that they could have a qualified interpreter there in approximately two hours. (Ex. 1, Arnone
Aff., ¶ 27.)
54. On 3 or 4 occasions, Deputy Arnone went to Mr. Chevalier’s room and updated
the family on his efforts to get a sign language interpreter. During those updates, he did not talk
to any of the family members about the incident; rather, the discussions were about the steps that
were being taken to get an ASL interpreter. (Ex. 1, Arnone Aff., ¶ 26.)
55. After Deputy Arnone notified Plaintiffs that the interpreter was two hours out, Mr.
Chevalier interpreted for Ms. Chevalier to inquire about why it was taking that long. Deputy
Arnone explained that he had been told there were not many sign language interpreters who were
qualified to work with law enforcement. (Ex. 1, Arnone Aff., ¶ 27.)
56. The Chevalier family subsequently elected to fill out written statements rather
than waiting for the interpreter to arrive, and, as a result, Deputy Arnone then, at approximately
6:20 p.m., canceled the ASL interpreter he had already secured. (Ex. 1, Arnone Aff., ¶ 30.)
57. None of the Deputies that responded to the 911 emergency call at the Chevalier
Residence had any desire to prevent Ms. Adams-Chevalier or Zachary Engstler from utilizing a
sign language interpreter. Rather, the Deputies made repeated efforts to secure those services for
Ms. Adams-Chevalier or Zachary Engstler. (Ex. 1, Arnone Aff., ¶ 31; Ex. 2, Nunley Aff., ¶ 23.)
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58. The case was then transferred to Investigations. (Ex. 4, Duffy Aff., ¶ 2.)
59. In felony cases, such as that in which Mr. Chevalier was a victim, the
Investigations Division of the Douglas County Sheriff’s Office would typically handle victim
and witness interviews to prepare a felony filing for the District Attorney’s Office, which, in
turn, could file felony charges. Those interviews are not ordinarily handled by Patrol. (Ex. 4,
Duffy Aff., ¶ 3.)
60. Detective Michael Duffy, from Investigations, was assigned to investigate the
November 2, 2014 assault of Timothy Chevalier. (Ex. 4, Duffy Aff., ¶ 2.)
61. As part of his investigation, he interviewed Timothy Chevalier, Jodie Adams-
Chevalier and Zachary Engstler (collectively, the “Chevalier Family Members”). (Ex. 4, Duffy
Aff., ¶ 4.)
62. Detective Duffy was aware from reviewing the initial patrol report that Ms.
Adams-Chevalier and Zachary Engstler represented themselves to be deaf and had expressed
their desire to have an American Sign Language interpreter present for their witness interviews.
(Ex. 4, Duffy Aff., ¶ 5.)
63. Detective Duffy made arrangements for an American Sign Language interpreter
to be available for the interviews, which took place on November 26, 2014 at the Douglas
County Sheriff’s Office. (Ex. 4, Duffy Aff., ¶¶ 6-7.)
64. Detective Duffy initially met with all three Chevalier Family Members to explain
the interview process, which was interpreted by the ASL interpreter, and then interviewed each
of the Chevalier Family members individually. (Ex. 4, Duffy Aff., ¶¶ 9-10.)
65. During the interviews of Ms. Adams-Chevalier and Mr. Engstler, the ASL
interpreter and a Victim’s Advocate from Deaf Overcoming Violence through Empowerment
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were present in the interview room and the interviews were interpreted by the sign language
interpreter. (Ex. 4, Duffy Aff., ¶¶ 12-13.)
66. The witness interviews of the Chevalier Family Members were detailed and lasted
roughly one half hour per witness. (See Ex. 4, Duffy Aff., ¶ 11; Ex. 5, 11/26/14 Interview
Recordings.)
67. Plaintiffs did not express any complaints about the manner in which the witness
interviews were conducted. (Ex. 4, Duffy Aff., ¶¶ 14.)
ARGUMENT
I. Standard of Review
Pursuant to Federal Rule of Civil Procedure 56, a moving party is entitled to summary
judgment “if the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “An issue is ‘genuine’
if there is sufficient evidence on each side so that a rational trier of fact could resolve the issue
either way.” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998). “An issue of
fact is ‘material’ if under the substantive law it is essential to the proper disposition of the
claim.” Id. When ruling on a motion for summary judgment, a court must “examine the record
and all reasonable inferences that might be drawn from it in the light most favorable to the non-
moving party.” Havens v. Colo. Dep’t of Corrections, 897 F.3d 1250, 1259 (10th Cir. 2018)
(quoting Barber ex rel. Barber v. Colo. Dep’t of Revenue, 562 F.3d 1222, 1228 (10th Cir. 2009)).
Plaintiffs seek partial judgment on the issue of liability on each of three claims alleged
against Defendant, for violations of Title II of the Americans with Disabilities Act (“Title II”),
section 504 of the Rehabilitation Act (“Section 504”), and the Colorado Anti-Discrimination Act
(“CADA”). The language of Title II generally tracks that of Section 504, and the two provisions
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are generally interpreted in the same manner. Hainze v. Richards, 207 F.3d 795, 799 (5th Cir.
2000). Courts hearing claims asserted under C.R.S. § 24-34-802 (“CADA”) apply the same
standard and defenses applicable to the ADA. C.R.S. § 24-34-802(4). Accordingly, Plaintiffs’
Title II, Section 504 and CADA (collectively, the “Statutes”) claims are addressed collectively.
II. Disputed Issues Of Fact Remain As To Whether An Emergency Existed.
Under Title II of the ADA, “no 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.”
42 U.S.C. § 12132. Section 504 of the Rehabilitation Act similarly prohibits an otherwise
qualified individual with a disability from being excluded from participation in, denied the
benefits of, or be discriminated against by any program or activity receiving Federal financial
assistance solely by reason of their disability. 29 U.S.C. § 701.
Plaintiffs argue that Defendant purportedly failed to provide Plaintiffs with their
preferred choice of auxiliary aid or service to communicate with DCSO Deputies and, in doing
so, denied Plaintiffs access to effective communication in violation of § 35.160 of Title II’s
implementing regulations, 28 C.F.R. § 35.160 (“Regulation”). Plaintiffs assert that the Deputies
relied on Mr. Chevalier and his minor step-son, Carter Engstler, to serve as translators for Ms.
Adams-Chevalier and Zachary Engstler and that doing so violated the Regulation because no
emergency existed at the time. Plaintiffs seem to suggest that the record is devoid of facts
evidencing an emergency because there was no one was “wielding a knife” and there was no
“violent hostage situation.” (Doc. No. 123 at 13.) Plaintiffs’ argument is contrary to language of
§ 35.160 and the DOJ guidance upon which they rely and devoid of supporting case law.
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Section 35.160 directs public entities to “take appropriate steps to ensure that
communications with applicants, participants, members of the public, and companions with
disabilities are as effective as communications with others.” 28 C.F.R. § 35.160(a)(1). In doing
so, § 35.160 generally prohibits a public entity from relying on an adult or child accompanying
an individual with a disability to interpret or facilitate communication with an individual with a
disability. See 28 C.F.R. § 35.160(c)(2) & (3). However, § 35.160 contains an express exclusion
in “an emergency involving an imminent threat to the safety or welfare of an individual or the
public where there is no interpreter available.” 28 C.F.R. § 35.160(c)(2)(i) & (3).
Plaintiffs acknowledge, as they must, that 28 C.F.R. § 35.160(c)(2)(i) & (3) create an
exception to the prohibition against relying on other persons to communicate with a deaf person
in cases of emergency. As Plaintiffs themselves point out, “[e]xigent circumstances [are]
defined as situations where the police, whether in the course of an arrest or investigation,
reasonably believe that any officer or third party’s life is in danger.” (Doc. No. 123 at 14 (citing
Doc. No. 43 at 14 n.4).) However, Plaintiffs’ argument wholly ignores the possibility that a
person may be in need of emergency medical care.
The circumstances presented to the Deputies prior to and upon responding to Mr.
Chevalier’s 911 call reasonably led them to believe that Mr. Chevalier’s life was in danger. 3 It
is undisputed that Defendants were called upon to respond to a 911 emergency call for an assault
and that, en route, dispatch aired that the assailant had kicked the door open; that the assailant
was having anger control problems sufficient to cause the reporting party (Mr. Chevalier) to try
3 While Plaintiffs claim there was no medical emergency because Mr. Chevalier’s wife could have driven him to the hospital, no one knew at the time how severe Dr. Chevalier’s injuries were—only that his chest injury caused him to have difficulty breathing. Obtaining immediate basic information to assist with medical care was not only reasonable, it was the only appropriate course of action under the circumstances.
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to call 911; and that Mr. Chevalier possibly had broken ribs and was having a hard time
breathing.4 (Add’l Facts, supra, ¶ 31.) With this information, Deputy Arnone reasonably
believed once he arrived that the medical situation was emergent and possibly life-threatening.
Based on his training and experience, the violent behavior of the suspect, Joshua Engstler, also
raised concerns that he may return to the scene. His primary instinct, again based on his training
and experience, was to obtain medical care for the injured party and to secure the scene for the
protection of the persons remaining. (Id. ¶¶ 34-36.)
Although his job would ultimately include obtaining witness statements, investigation
was secondary to securing safety and medical attention. Doing so required some basic inquiry
about what happened, Mr. Chevalier’s condition and his step-son’s (the assailant’s) possible
location. From the outset, Mr. Chevalier repeated that he was having trouble breathing. Based
on his training, Deputy Arnone considered such an injury to be serious and possibly life-
threatening, and he promptly called for an ambulance. (Add’l Facts, supra, ¶ 37.) Mr. Chevalier
provided very basic information about what had happened to him, including that Joshua Engstler
moved in the kitchen toward knives when he initially attempted to call 911 until his wife asked
him to stop; that his step-son shoved him with both hands, causing him to fall and strike his side
on the coffee table; that he could not remember what happened after that; and that he could
barely breath. (Id. ¶ 40.) All of these details reaffirmed that the injury could be life-threatening.
As Mr. Chevalier struggled to breathe, emergency medical services arrived and began
examining him and Deputies Curry and Nunley attempted to obtain basic information from
Carter Engstler. (Id. ¶¶ 42-43.) Ms. Adams-Chevalier noted her desire that the communications
4 The Deputies were not aware until they arrived at the Chevalier Residence and began communicating with the family members that Ms. Adams-Chevalier and Zachary Engstler identified as being deaf. (Add’l Facts, supra, ¶
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stop, so they stopped. (Id. ¶ 44.) The limited information obtained was to provide immediate
medical care for a person the Deputies perceived to have sustained possible life-threatening
injury and to assure the safety and welfare of the remaining persons in the house. (Id. ¶¶ 43, 47.)
Failure to provide medical care to an individual repeatedly complaining of difficulty
breathing and expressing concern that he could have fractured ribs “could have life-altering or
life-ending consequences.” (Doc. No. 123 at 23.) A broken rib can puncture lungs, breathing
pathways can collapse, there can be significant internal bleeding, or any number of other life-
threatening complications. Plaintiffs’ view that officers should ignore signs and symptoms of a
medical emergency based on a victim’s untrained say-so, and forestall all police activity until a
sign language interpreter arrives, could have serious, if not fatal, consequences for both hearing
and deaf individuals—to the detriment of the goals underlying the ADA in the first place.
Plaintiffs also dismiss any suggestion that a safety threat existed at the time the Deputies
arrived at the Chevalier Residence because Mr. Chevalier reported during his 911 call that
Joshua Engstler had left the Residence and was probably driving back to Iowa. Regardless of
Mr. Chevalier’s comments on the call, the Deputies should not have, and in this case
appropriately did not, dismiss the possible safety threat from a violent assailant merely because
Mr. Chevalier believed he had left the premises. (Add’l Facts, supra, ¶¶ 34-35.) The Deputies
must consider the risk that a reporting party, particularly someone that had been seriously injured
and reported that he did not remember what had happened after hitting the coffee table, could
have missed the assailant returning to the premises or even that the reporting party had
knowingly misled law enforcement about the assailant’s whereabouts. (Id.) Failing to take
32.)
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adequate precautions to ensure the scene was secure itself poses a significant safety risk to
responding officers and, potentially, the remaining residents.
Courts have repeatedly declined to impose liability pursuant to Title II to in-the-field
investigations by police officers involving exigent circumstances. The facts identified herein
surrounding the Deputies’ in-the-field response to a violent felony that caused potentially life-
threatening injury to Timothy Chevalier identified herein create a triable issue of fact as to
whether an emergency existed. See, e.g., Waller v. City of Danville, 515 F. Supp. 2d 659, 663
(W.D.Va. 2007) (“courts have found situations of exigent circumstances beyond the scope of the
ADA’s requirement of reasonable accommodation); Thompson v. Williamson County, 219 F.3d
555, 558 (6th Cir. 2000) (plaintiff’s Title II and Section 504 claims arising out of emergency
response to 911 call failed as a matter of law); Patrice v. Murphy, 43 F. Supp. 2d 1156, 1160
(W.D. Wa. 1999) (“Where underlying criminal activity has occurred, such as a bank robbery,
drunken driving, or domestic violence, and the officers are engaged in an on-the-street response,
investigation, and arrest, forestalling all police activity until an interpreter can be located to aid
communication with the deaf protagonist would be impractical and could jeopardize the police’s
ability to act in time to stop a fleeing suspect, physically control the situation, or interview
witnesses on the scene. The decisions we ask our officers to make under already stressful, and
sometimes dangerous, circumstances should not be subjected to second guessing by comparing
their in-the-field actions to the requirements of the ADA.”); see also Hainze v. Richards, 207
F.3d 795, 801 (5th Cir. 2000) (“Law enforcement personnel conducting in-the-field
investigations already face the onerous task of frequently having to instantaneously identify,
assess, and react to potentially life-threatening situations. To require the officers to factor in
whether their actions are going to comply with the ADA, in the presence of exigent
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circumstances and prior to securing the safety of themselves, other officers, and any nearby
civilians, would pose an unnecessary risk to innocents.”).
III. Disputed Facts Exist As To Whether Plaintiffs Were Deprived Of Appropriate Auxiliary Aids.
Even ignoring the factual disputes that exist regarding the exigency of the circumstances
to which the Deputies were responding, Plaintiffs cannot demonstrate the absence of a factual
dispute as to whether Defendant complied with its obligations under the Statutes. Plaintiffs’
Motion takes the position that the provisions of 28 C.F.R. § 35.160 are mandatory and that, in the
absence of exigent circumstances, the only means of providing effective communication between
the Deputies, on the one hand, and Ms. Adams-Chevalier and Mr. Zachary Engstler, on the other
hand, was for the Deputies to cease all communication until an ASL interpreter arrived and, only
then, to conduct all communications through the interpreter. Plaintiffs’ assertions are contrary to
law and to the facts in the summary judgment record.
Plaintiffs assert that the Deputies’ communications with Plaintiffs violated 28 C.F.R. §
35.160, which provides, in relevant part:
(b)(1) A public entity shall furnish appropriate auxiliary aids and services where necessary to afford individuals with disabilities, including applicants, participants, companions, and members of the public, an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity of a public entity. (2) The type of auxiliary aid or service necessary to ensure effective communication will vary in accordance with the method of communication used by the individual; the nature, length, and complexity of the communication involved; and the context in which the communication is taking place. In determining what types of auxiliary aids and services are necessary, a public entity shall give primary consideration to the requests of individuals with disabilities. In order to be effective, auxiliary aids and services must be provided in accessible formats, in a timely manner, and in such a way as to protect the privacy and independence of the individual with a disability.
The DOJ’s implementing regulations define “auxiliary aids and services” to include qualified
interpreters on-site as well as written materials, the exchange of written notes and “other
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effective methods of making aurally delivered information available to individuals who are deaf
or hard of hearing.” 28 C.F.R. § 35.104. Thus, while on-site qualified interpreters are one
possible auxiliary aid, they are not the only permissible auxiliary aid, and the Regulation clarifies
that auxiliary aids and services deemed necessary to ensure effective communication will vary
based upon the particular circumstances.
“No bright line rule defines essential steps required to establish effective communication
with a hearing-impaired person; instead the inquiry is a fact-specific one.” Hans v. Bd. of
Shawnee Cty. Comm’rs, No. 16-4117-DDC, 2018 WL 1638503, at *19 (D. Kan. Apr. 5, 2018),
appeal docketed, No. 18-3096 (10th Cir. May 4, 2018). “In many circumstances, oral
communication plus gestures and visual aids or note writing will achieve effective
communication.” Id. (quoting Bircoll v. Miami-Dade Cty., 480 F.3d 1072, 1087 (11th Cir.
2007). Further, “the quality of communication between a hearing-impaired person and a police
officer does not have to be ‘perfect’ to place the hearing-impaired person ‘on equal footing’ with
non-disabled people.” Id.
The evidence before the Court on the efficacy of Defendant’s communications with the
Chevalier family minimally presents a question of fact. On November 2, 2014, while the
Deputies were at the Chevalier Residence, they communicated with Ms. Adams-Chevalier and
Mr. Zachary Engstler primarily through the exchange of written notes and gestures and some
limited verbalizations. (Add’l Facts ¶¶ 45-46.) The Deputies deny that they relied on Carter
Engstler and Timothy Chevalier to conduct interviews of Zachary Engstler and Jodie Adams-
Chevalier and have testified that only brief interactions involving translation occurred at the
Chevalier Residence and was to allow the Deputies to determine if anyone other than Timothy
Chevalier had been injured and could be in need of medical attention. (Id. ¶¶ 46-48.) The facts
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also demonstrate that time was of the essence, particularly given the apparent seriousness of Mr.
Chevalier’s injuries and the need to transport him to the hospital for medical examination and
treatment. (Id. ¶¶ 37-38, 50.) Plaintiffs’ assertion that the Deputies should have forestalled all
police activities until an ASL interpreter qualified to work with law enforcement could arrive at
the apartment is impractical and would have jeopardized the Deputies’ ability to ensure the
security of the scene and attend to Mr. Chevalier’s medical emergency.
Plaintiffs also argue that Deputy Arnone was improperly interviewing Ms. Adams-
Chevalier and Zachary Engstler at the hospital by relying on Mr. Chevalier to interpret. Contrary
to Plaintiffs’ assertions, Deputy Arnone was not interviewing any of the Chevalier family
members about the assault; he was merely providing updates on his progress in securing an ASL
interpreter and, after having done so, the interpreter’s anticipated arrival time. (Id. ¶¶ 54-55.)
The brief nature of the contacts, the limited scope of discussion, the very nature of the discussion
itself, and the Chevalier family’s reactions and inquiries—demonstrating their understanding and
later conveying their desire not to proceed that evening with interviews with an ASL translator,
all evidence effective communication. (See id. ¶¶ 54-55.) Plaintiffs’ apparent belief that Deputy
Arnone should not have informed the family about the status of obtaining an interpreter until
after the interpreter arrived would have defeated the entire purpose for the communications in the
first place, and would also have left the family with no idea of what was going on.
Moreover, the Sheriff’s Office did utilize Plaintiffs’ preferred auxiliary aid, an on-site
interpreter, when Plaintiffs were interviewed as witnesses in the criminal investigation later that
month. Unlike the 911 emergency response, the circumstances of those interviews counseled in
favor of the use of an on-site interpreter rather than the more basic written notes and gestures
primarily utilized during the 911 emergency response. The witness interviews took place at a
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scheduled location and time, making Plaintiffs’ request for an interpreter an accommodation that
was reasonably feasible to provide. (See Add’l Facts, supra, ¶¶ 62-63.) Additionally, the nature
and scope of the communications, which were extended witness interviews for the purpose of
investigating and potentially initiating criminal charges against the alleged assailant, favored the
use of an on-site interpreter to ensure effective communication. (See id. ¶¶ 59-61.)
On this record, a trier of fact could readily conclude that Plaintiffs received the auxiliary
aids and services necessary under these sets of particular circumstances consistent with the
provisions of 28 C.F.R. § 35.106(b). See Hans, 2018 WL 1638503, at *20 (granting summary
judgment in favor of defendant where law enforcement used written notes, gestures and verbal
utterances to communicate with deaf individual during 911 response, finding such measures
achieve effective communication in many circumstances); Waller ex rel. Estate of Hunt v.
Danville, 556 F.3d 171, 175 (4th Cir. 2009) (“Accommodations that might be expected when
time is of no matter become unreasonable to expect when time is of the essence.”); Bircoll, 480
F.3d at 1086 (affirming summary judgment in favor of defendant law enforcement agency and
rejecting plaintiff’s claim that he had been deprived of effective communication where he was
not provided with an interpreter, explaining that “DUI stops involve a situation where time is of
the essence. Forestalling all police activity at a roadside DUI stop until an oral interpreter arrives
is not only impractical but also would jeopardize the police’s ability to act in time to obtain an
accurate measure of the driver’s inebriation.”). Accordingly, Plaintiffs have not established that
they are entitled to judgment on liability as a matter of law.
IV. Plaintiffs’ Evidence Does Not Establish Intentional Discrimination.
Plaintiffs’ claims for injunctive relief under Title II, Section 504 and CADA have already
been dismissed, leaving Plaintiffs with only their claims for compensatory damages under the
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foregoing statutes. In addition to the litany of factual disputes that remain in this case, Plaintiffs’
Motion fails to establish any facts proving that Defendant intentionally discriminated against
them as is required to support summary judgment in their favor on such claims. Indeed,
Plaintiffs’ Motion now concedes the absence of the very factual allegations that kept their claims
alive at the motion to dismiss stage. (See Doc. No. 123 at 24-25; cf. Doc. No. 154 at 15-16.)
Courts have consistently required private plaintiffs seeking compensatory damages
against a public entity under Section 504 and Title II to establish intentional discrimination. See
Powers v. MJB Acquisition Corp., 184 F.3d 1147, 1153 (10th Cir. 1999) (“We agree with the
course charted by our sister circuits and hold that entitlement to compensatory damages under
section 504 of the Rehabilitation Act requires proof that the defendant has intentionally
discriminated against the plaintiff.”); Tyler v. City of Manhattan, 118 F.3d 1400, 1403 (10th Cir.
1997) (affirming district court order striking plaintiff’s claim for compensatory damages where
plaintiff’s claims did not establish intentional wrongdoing); see also, e.g., Tafoya v. Bobroff, 865
F. Supp. 742, 749-50 (D.N.M. 1994) (pointing to the district court’s decision in Tyler and
explaining “[t]he Tyler decision highlights the importance of a condition every court has
imposed as a prerequisite to a damages remedy under § 794a(a)(2) of the Rehabilitation Act or §
12133 of the ADA: the plaintiff must allege intentional discrimination.”), aff’d, 74 F.3d 1250
(10th Cir. 1996) (unpublished); cf. 42 U.S.C. § 12133 (adopting the remedies of Section 504 for
alleged violations of section 12132 of the ADA).
This Court has previously held that the Tenth Circuit does not require proof of personal
ill-will or animosity toward the disabled individual but has concluded that “intentional
discrimination can be inferred from a defendant’s deliberate indifference to the strong likelihood
that pursuit of its questioned policies will likely result in a violation of federally protected
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rights.” (Doc. No. 154 at 14 (quoting Barber, 562 F.3d at 1228-29).) Deliberate indifference in
the ADA context has been construed to be consistent with deliberate indifference in the context
of section 1983 claims. J.V. v. Albuquerque Pub. Schs., 813 F.3d 1289, 1298 (10th Cir. 2016).
Plaintiffs’ Motion is entirely devoid of facts supporting a finding of deliberate
indifference on the part of the Defendant. The Motion argues, without citation to any factual
evidence or supporting legal authority, that Defendant’s policy and training program:
[S]hould have informed Defendant of its obligation under the law to have contacted an interpreting agency or qualified interpreter and provided an interpreter in a timely manner as required by the Regulation and DOJ guidance. Defendant acted with deliberate indifference.
(Doc. No. 123 at 25.) In doing so, Plaintiffs appear to conflate the Sheriff with the specific
employees that responded to the single incident on November 2, 2014. However, Plaintiffs offer
no evidence of “any knowledge of the [Sheriff] that its policies and training were not being
followed or were deficient and that it failed to act.” (Doc. No. 154 at 15.) Plaintiffs also provide
no evidence that the Sheriff’s policies and training themselves were deficient or non-complaint
with the Statutes’ requirements, let alone that the Sheriff was aware of those deficiencies but
failed to do anything about it. Instead, Plaintiffs concede that the Sheriff had a policy in place
and provided thorough training to his employees, “both addressing providing effective
communication to [deaf] witnesses and victims under the circumstances of this case[.]” (Doc.
No. 123 at 24-25.)
Even the conduct of the responding Deputies themselves does not reflect deliberate
indifference. The facts demonstrate that Deputies Arnone and Nunley both made efforts to
secure an interpreter once they believed the exigencies of the emergency response to have
dissipated. Deputy Arnone reached out repeatedly to different sources, including DCSO’s
dispatch department, Sky Ridge Hospital, and 24 Hour Sign Language Services in an effort to
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accommodate Ms. Adams-Chevalier’s request that she and Zachary Engstler have an ASL
interpreter. (Add’l Facts, supra, ¶¶ 52-53.) Similarly, the dispatch calls that Plaintiffs criticize
reflect their ongoing efforts to provide a sign language interpreter as well, searching internally at
DCSO, contacting CBI, contacting Sky Ridge Hospital, and providing Deputy Arnone with
agency contacts as well. (Id.) The result of those efforts was that Deputy Arnone did secure an
ASL interpreter to come and assist, but Plaintiffs decided they did not want wait for the
interpreter to arrive, even though she was on the way and Deputy Arnone expected her to arrive
shortly after (i.e., 15 or 20 minutes) Mr. Chevalier was finished with his medical treatment.5
(See id. ¶ 56.) When Plaintiffs later came to the Sheriff’s Office for interviews, the interviewing
detective also secured an ASL interpreter for those communications. (Id. ¶ 63.)
These facts unquestionably preclude summary judgment in Plaintiffs’ favor. See, e.g.,
Saltzman v. Bd. of Comm’rs, 239 Fed. App’x 484, 487-88 (11th Cir. 2007) (holding no
reasonable juror could find intentional discrimination under the deliberate indifference standard
where, over a span of five days, hospital did not provide sign language interpreter for hard-of
hearing-patient and hard-of-hearing spouse, but it had policy in place to accommodate hearing-
impaired patients, had a list of two agencies to contact for sign language interpreters and
employees attempted to obtain a sign language interpreter from one of the listed agencies but
were unable to coordinate with the doctor’s schedule, finding “[t]he facts are that pursuant to
5 Plaintiffs also criticize Deputy Arnone for booking an interpreter who needed two hours to get there, but Deputy Arnone was under the impression after speaking with a representative at 24 Hour Sign Language Service that ASL interpreters certified to work with law enforcement were not readily available in the area. (Add’l Facts, supra, ¶ 55.) Furthermore, even Plaintiffs acknowledge that it is more difficult to secure a sign language interpreter on a Sunday. (Doc. No. 123 at 22.) Their assertion that DOJ requires an interpreter to be provided at the earliest reasonable time within one hour is, in fact, a provision requiring the interpreter be provided at the earliest reasonable time, with the proviso that “[i]n most cases during normal business hours” (which was not the case here) “an interpreter will be provided within one hour of the first identification of a need.” See, e.g., Settlement Agreement Between U.S. and City of Henderson, ADA.gov (Aug. 5, 2013), https://www.ada.gov/henderson-nv-sa/henderson-nv-sa.htm.
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policy, [hospital] employees attempted to locate an interpreter for the [plaintiffs]. Although that
attempt may have been negligently made, negligence is not intentional discrimination. There is
no indication that [the hospital’s] hearing-impaired accommodation policy was inadequate, or
that [the hospital] had a practice of not following the written policy it had enacted.”); see also
Havens, 897 F.3d at 1267 (granting summary judgment in favor of defendant on Section 504
claim based on lack of evidence of deliberate indifference where plaintiff offered no evidence
that policy implementation had previously resulted in violations or that entity was aware when
fashioning its policies that those policies were substantially likely to result in infringement of
inmates’ rights, finding any such knowledge on the part of the entity to be “purely speculative
and conjectural” and further finding that even if defendant “was negligent in not discerning such
a substantial likelihood under these circumstances, that would not be good enough.”); Fortin on
behalf of TF v. Hollis Sch. Dist., No. 15-cv-179-JL, 2017 WL 4157065, at *4 (D.N.H. Sept. 18,
2017) (where entity did not become aware of single wrongful act by employee until after conduct
occurred, entity could not have been deliberately indifferent to the actions taken by employee).
CONCLUSION
WHEREFORE, for the reasons stated herein, Defendant respectfully requests that the
Court deny Plaintiffs’ Motion and award him such further relief as the Court deems appropriate.
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Respectfully submitted this 24th day of January, 2019, OFFICE OF THE COUNTY ATTORNEY, COUNTY OF DOUGLAS, COLORADO s/ Dawn L. Johnson Kelly Dunnaway Deputy County Attorney Dawn L. Johnson Senior Assistant County Attorney 100 Third Street Castle Rock, CO 80104 Telephone: 303-660-7414 FAX: 303-484-0399 E-mail: [email protected] [email protected]
Attorneys for Defendant
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CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 24th day of January, 2019, I electronically filed the foregoing DEFENDANT’S RESPONSE TO PLAINTIFFS’ REVISED MOTION FOR PARTIAL SUMMARY JUDGMENT ON LIABILITY with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following counsel of record: Andrew C. Montoya ([email protected]) Kevin W. Williams ([email protected]) Colorado Cross-Disability Coalition Legal Program 1385 South Colorado Blvd., Suite 610-A Denver, Colorado 80222
s/ Patrick D. Fiedler Pursuant to USDC ECF Procedure Version 6, a printed copy of this document with original signatures will be maintained by the Office of the Douglas County Attorney and made available for inspection upon request.
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