Indeed, the Fourth Circuit itself recognized in 2012 that its own precedent in is not good Rosen law on this point, explaining that the country have called holding into “[c]ourts across Rosen’s question in light of the Supreme in Yeskey. Seremeth v. Board of County Court’s decision” 673 F.3d 333, 337 (4th Cir. 2012); at 338 (noting Cmssrs. Frederick Cty., see also id. Waller’s holding that ADA applies to police The other cases upon which Defendant “the interrogations”). relies both note the existence of contrary authority, but ultimately decide to follow a Rosen, choice that was plainly incorrect. 43 F. Supp. 2d at 1158-61 (rejecting legislative See Patrice, history and caselaw in favor of and 2001 WL 114977, at *7 Rosen Crocker, “policy reasons”); n.9 (noting contrary authority, but following and on the point upon which the Rosen Patrice Supreme Court curtailed Rosen). The Court should decline request to rely upon a case that has been limited by Defendant’s the Supreme Court, the very court that decided it, and multiple other courts, and that is flatly inconsistent with the plain language of the statute, the implementing regulations, and authoritative guidance. B. Title II Requires Law Enforcement Entities To Provide Effective Communication When Arresting An Individual With A Disability 1. The Language of the Statute, and the Department of Justice Regulations and Guidance, as Well as the Settlement Agreement, Require the Provision of Effective Communication Because law enforcement entities are subject to Title II, they must first appropriate “take steps to ensure that communications with . . . members of the public . . . with disabilities are as effective as communications with 28 C.F.R. § 35.160(a)(1). Law enforcement entities others.” must also reasonable modifications in policies, practices, or procedures when the “make modifications are necessary to avoid discrimination on the basis of 28 C.F.R. disability.”
Indeed, the Fourth Circuit itself recognized in 2012 that its own precedent in Rosen is not good law on this point, explaining that “[c]ourts across the country have called Rosen’s holding into question in light of the Supreme Court’s decision” in Yeskey. Seremeth v. Board of County Cmssrs. Frederick Cty., 673 F.3d 333, 337 (4th Cir. 2012); see also id. at 338 (noting Waller’s holding that “the ADA applies to police interrogations”). The other cases upon which Defendant relies both note the existence of contrary authority, but ultimately decide to follow Rosen, a choice that was plainly incorrect. See Patrice, 43 F. Supp. 2d at 1158-61 (rejecting legislative history and caselaw in favor of Rosen and “policy reasons”); Crocker, 2001 WL 114977, at *7 n.9 (noting contrary authority, but following Rosen and Patrice on the point upon which the Supreme Court curtailed Rosen). The Court should decline Defendant’s request to rely upon a case that has been limited by the Supreme Court, the very court that decided it, and multiple other courts, and that is flatly inconsistent with the plain language of the statute, the implementing regulations, and authoritative guidance. B. Title II Requires Law Enforcement Entities To Provide Effective Communication When Arresting An Individual With A Disability 1. The Language of the Statute, and the Department of Justice Regulations and Guidance, as Well as the Settlement Agreement, Require the Provision of Effective Communication Because law enforcement entities are subject to Title II, they must first “take appropriate steps to ensure that communications with . . . members of the public . . . with disabilities are as effective as communications with others.” 28 C.F.R. § 35.160(a)(1). Law enforcement entities must also “make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability.” 28 C.F.R.
williams_new-york_soi.docx