Bircoll v. Miami-Dade County

Citation480 F.3d 1072
Decision Date07 March 2007
Docket NumberNo. 06-11098.,06-11098.
PartiesSteven M. BIRCOLL, Plaintiff-Appellant, v. MIAMI-DADE COUNTY, a political subdivision of the State of Florida, Defendant-Appellee.
CourtU.S. Court of Appeals — Eleventh Circuit

Jay M. Levy, Jay M. Levy, P.A., Miami, FL, for Plaintiff-Appellant.

Eric Alexander Hernandez, Miami, FL, for Defendant-Appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before TJOFLAT, HULL and BOWMAN,* Circuit Judges.

HULL, Circuit Judge:

This case arises out of Plaintiff-Appellant Steven M. Bircoll's DUI arrest. Bircoll, who is deaf, sued Defendant-Appellee Miami-Dade County, Florida ("Miami-Dade"), alleging that its law enforcement officers violated Title II of the Americans with Disabilities Act ("ADA") and the Rehabilitation Act by discriminating against him because of his disability. Specifically, Bircoll claims that the officers failed to reasonably modify their procedures in order to ensure effective communication with Bircoll. This case presents an issue of first impression in this circuit as to the applicability of the ADA and the Rehabilitation Act to police conduct during arrests.

I. FACTUAL BACKGROUND

We first discuss Bircoll's disability and the events during his arrest.1

A. Bircoll's Disability

Bircoll is a profoundly deaf individual with no hearing in his left ear and ten percent hearing in his right ear. When wearing his hearing aid, Bircoll has a twenty percent hearing capacity.

Bircoll, who has been deaf for most of his life, was raised in the hearing world. Bircoll graduated from a mainstream high school and attended two years of community college. Bircoll reads, writes, and speaks English. Although Bircoll sometimes relies on other people to speak for him and uses his friends and relatives for help, Bircoll's primary form of communication is lipreading. Bircoll has been lipreading for over thirty years. Bircoll does not know or use sign language.

Bircoll is more effective in reading lips if he is facing the speaker with good light and little background noise. Bircoll has greater success in communicating with speakers who do not have facial hair, make few facial expressions, and keep their hands away from their faces. When reading lips, Bircoll usually understands about fifty percent of what is said. Bircoll speaks with a speech impediment.

As for telephone communication, Bircoll usually communicates with an amplified telephone (one that is louder than a normal phone) and a teletypewriter, a telecommunication device for the deaf ("TDD phone"). Bircoll also has a cell phone that he uses primarily for emergencies, such as calling someone to say he will be late. Bircoll cannot hear on the cell phone, but he will make the phone call, do the talking, and hang up.2

B. Traffic Stop

On April 6, 2001, Bircoll went to dinner around 9:00 p.m. with his then-girlfriend. He was wearing his hearing aid that evening. Bircoll testified that he had less than one drink, a 7-Up with whiskey. Bircoll did not finish his drink because his stomach was bothering him. Around midnight or 1:00 a.m. on April 7th, Bircoll argued with his girlfriend and drove her back to their shared home. Bircoll went into their house, argued with his girlfriend, and then left in his car.

After about an hour of driving south on I-75, Bircoll exited the interstate. He stopped at a gas station to ask for directions back to I-75. As he was leaving the gas station, Bircoll stopped and made a right turn out of a parking lot and arrived at an intersection with a flashing red light where he stopped again. Because trees and bushes were obstructing his view, Bircoll pulled into the intersection to see if there were any oncoming cars. When Bircoll saw that it was clear, he turned left. As Bircoll was trying to determine which ramp to take for I-75, he saw lights flashing in his mirror. Bircoll realized a police officer was pulling him over and stopped.

Sergeant Charles Trask, a police officer with the Miami-Dade County Police Department, was in his patrol car and observed Bircoll's car pull forward into the intersection, reverse because of an oncoming car, and then turn left. Trask pulled Bircoll over at approximately 3:00 a.m. on April 7, 2001. Trask stated that Bircoll failed to stop at both the right turn from the parking lot and at the flashing red light where Bircoll turned left. Trask noted that Bircoll delayed in pulling his vehicle over after Trask activated the overhead lights of his police car.

C. Field Sobriety Tests

As Trask approached Bircoll's car, Bircoll rolled down his window. When Trask tried to speak to him, Bircoll informed Trask that he was deaf and had a speech impediment. Either by virtue of his lipreading or hearing aid, or a combination of both, Bircoll was able to respond to Trask during the traffic stop.

Trask asked Bircoll how many drinks he had consumed that night. Bircoll responded that he had not been drinking. When Bircoll spoke, Trask realized that Bircoll had a speech impediment but also noticed that Bircoll responded to sound.

Trask told Bircoll to step out of his car, and Bircoll did. Trask asked Bircoll for his driver's license and registration, which Bircoll provided. Once Bircoll was out of the car, Trask realized that Bircoll smelled of alcohol and had red and watery eyes. Trask offered to communicate by fingerspelling in American Sign Language, but Bircoll responded that he did not understand sign language.3

Trask contends that he established face-to-face communication with Bircoll, that he spoke loudly, and that Bircoll spoke back in understandable English. Bircoll, however, states that he had difficulty understanding Trask, that there was "little lighting" and it was "almost dark,"4 that Trask was standing five or six feet away, that Trask's heavy moustache obscured his mouth, and that Trask had to repeat himself "a lot of times."

Bircoll testified that Trask told him if Bircoll would do what Trask told him, Bircoll would be free to go. Trask began to administer field sobriety tests. According to Bircoll, when Trask began instructing him, Bircoll asked if Trask could "call somebody to help me out with this."5 Trask did not do so, but instructed Bircoll to perform the tests. In his deposition, Bircoll admitted that he understood Trask was asking him to perform sobriety tests, but he did not understand why.

As to the first sobriety test, Trask instructed Bircoll on the Romberg balance exercise. In that test, the individual must keep his feet together, hold his arms by his side, tilt his head back, close his eyes, and count silently for thirty seconds. Trask gave Bircoll verbal instructions and a physical demonstration of the exercise. Trask testified that Bircoll passed this test.

Bircoll admits that he tried the Romberg balance test but contends that he did not complete this test. After he closed his eyes, Trask continued talking. Bircoll opened his eyes in order to read Trask's lips. When Trask ordered him to close his eyes, Bircoll stated that he needed to be able to see to read Trask's lips. Bircoll testified that he again suggested that they should get "a lawyer or somebody."6 Bircoll also stated that Trask shined the flashlight in his eyes, that Trask had heavy facial hair, and that he had a hard time understanding Trask. Bircoll told Trask several times that he was deaf and could not hear.

As to the second test, Bircoll performed the one-leg stand exercise, standing on one leg for thirty seconds. Trask gave Bircoll verbal instructions and a physical demonstration of the exercise. Bircoll testified that he had no problems performing this test. Trask contends that Bircoll failed the test because he waved and raised his arms and shuffled his feet to maintain his balance.

As to the third test, Trask gave verbal instructions and demonstrated the walk-and-turn test. In that test, the individual must walk in a straight line, turn, and walk back in the same line. Bircoll understood the instructions and attempted to perform the test, but asked if he could remove his boots. Bircoll had trouble balancing because of his knee injury and his boots. According to Bircoll, after removing his shoes, he had no trouble walking straight. Trask contends that Bircoll did not maintain his balance and failed the exercise.

As to the fourth test, Bircoll does not remember performing the finger-to-nose test, where the individual must tilt his head back, close his eyes, and touch his index finger to the tip of his nose. Bircoll denied that Trask ever asked him to do this, and testified that he did not complete any test that required him to close his eyes. Trask contends that he verbally instructed and demonstrated the test for Bircoll and that Bircoll failed the finger-to-nose test because he did not keep his eyes closed, missed the tip of his nose, and did not use the correct hand.

Around 3:30 a.m., or thirty minutes after the stop, Trask concluded that Bircoll was too impaired to drive and arrested him for driving under the influence. Trask told Bircoll he was under arrest for DUI, handcuffed Bircoll, and put him in the police car. According to Bircoll, Trask did not inform Bircoll that he was under arrest or read him his rights. After waiting for the tow truck for Bircoll's car, Trask and Bircoll arrived at the police station at 4:10 a.m.

D. Intoxilyzer Consent Form

Once Bircoll arrived at the police station, another police officer, Officer Everett Townsend, tried to communicate with him and obtain his consent to take an Intoxilyzer test. Bircoll told Townsend that he was deaf. Townsend sat down on Bircoll's left side about a foot away. Townsend had two copies of the Intoxilyzer consent form. Townsend read from one form and handed the other form to Bircoll to read. Bircoll acknowledges that Townsend handed him "a piece of paper" but denies that Townsend asked him to read it.7

The consent form advises a DUI arrestee that he...

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