Ferguson v. City of Phoenix, 96-17350

Citation157 F.3d 668
Decision Date08 October 1998
Docket NumberNo. 96-17350,96-17350
Parties8 A.D. Cases 862, 13 NDLR P 121, 98 Cal. Daily Op. Serv. 6943, 98 Cal. Daily Op. Serv. 7687, 98 Daily Journal D.A.R. 10,833, 98 Daily Journal D.A.R. 9599 William D. FERGUSON; Elizabeth T. Ferguson; Bonnie P. Tucker; Jay T. Frankel; Barbara Jean Coffman, Plaintiffs-Appellants, v. CITY OF PHOENIX, a municipality; Lyle Rodabough; Jane Doe Rodabough, Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Stanley Ray Watts and Suzanne M. Dohrer, Dohrer & Watts, Phoenix, Arizona, for plaintiffs-appellants.

Eileen Joan Dennis and William R. Jones, Jr., Jones, Skelton & Hochuli, Phoenix, Arizona, for defendants-appellees.

Douglas L. Parker, Georgetown University Law Center, Washington, DC, for amicus California Coalition of Agencies Serving the Deaf and Hard of Hearing, Inc., and National Association of the Deaf.

Susan M. Freeman, Lewis & Roca, Phoenix, Arizona, for amicus National League of Cities, United States Conference of Mayors, League of Arizona Cities and Towns, and International Municipal Lawyers' Association.

Jessica Dunsay Silver, United States Department of Justice, and Gregory B. Friel, United States Department of Justice, Civil

Rights Division, Washington, DC, for amicus United States of America.

Appeal from the United States District Court for the District of Arizona; Robert C. Broomfield, District Judge, Presiding. D.C. No. CV-95-0260-RCB.

Before: WOOD, * RYMER, and TASHIMA, Circuit Judges.

Opinion by Judge WOOD; Dissent by Judge TASHIMA.

WOOD, Circuit Judge:

Plaintiffs, who are deaf or hearing impaired, in lieu of the common telephone must rely on telecommunications devices (TDDs). TDDs are considered standard communication equipment for those with a hearing disability in order to enable them to communicate by telephone, including making 9-1-1 emergency system calls. Three separate lawsuits, later consolidated, seeking declaratory, injunctive and damages relief, were filed in February 1996 by plaintiffs against the City of Phoenix (City). The City was alleged to have operated its 9-1-1 emergency service in a way which discriminated against individuals with plaintiffs' hearing disabilities in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. ("Title II"); Section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 794 and 794(a)(" § 504"); and 42 U.S.C. § 1983. Additionally named as defendant in his individual capacity was Lyle Rodabough, Commander of the Phoenix Police Department's Communication Bureau. 1

The district court granted summary judgment to defendants after concluding that compensatory damages were not available in cases of unintentional discrimination. Plaintiffs appeal. 2

BACKGROUND

Plaintiffs allege that the City's 9-1-1 emergency system did not respond effectively, if at all, to plaintiffs' TDD emergency calls. The use of a TDD to communicate is similar to the use of electronic mail. Each party must be equipped, the caller and the called, with a TDD which has a typewriter-like keyboard and a screen. The TDD caller types a message which can be transmitted by telephone line to the recipient's TDD screen. Most TDDs have a space bar feature which causes the emission of an audible signal at the receiving end of the line when the caller presses it. Not all TDD machines, however, emit an audible signal.

Prior to 1995, under the City's 9-1-1 system, a TDD caller was required to press the space bar when initiating a 9-1-1 call. The emergency operator who received a TDD call was expected to recognize it as a TDD call by the audible signal. If that operator was equipped with a TDD, he could then respond. If the operator was not TDD-equipped, the call was switched manually to a TDD-equipped operator for a response. Sometimes, it is explained, the audible signal was not recognized by the operator or there was no audible signal as the caller neglected to press the space bar.

Generally, when TDD users initiate telephone calls, they dial a telephone number and then wait for the person receiving the call to answer the call by typing "GA," meaning "go ahead." The callers do not begin typing a message until they receive the go ahead from the person receiving the call. Under the City's old 9-1-1 system, if a caller did not press the space bar when initiating an emergency call or if the operator did not recognize the audible signal as a TDD call The significance of an alleged lack of an effective 9-1-1 response from the City can be better understood by briefly setting forth some of the 9-1-1 experiences alleged by plaintiffs, although fortunately none had tragic consequences. Plaintiff Ferguson, for example, early in the morning saw two suspicious figures outside his family home. He used his TDD to call 9-1-1 four times for help, but each time he was disconnected. When Ferguson saw the prowlers break into his pickup truck and drive it away, he gave up on 9-1-1 and chased after the thieves himself. The police arrived, but too late to help.

the call would be treated as a 9-1-1 hang-up. The City's hang-up policy was for the operator to disconnect the 9-1-1 call and then try to call back. If the operator was unable to contact the caller, the police as a precaution were dispatched to the place where the 9-1-1 call had originated to check on a possible emergency situation, but on a less priority basis than a call for a known emergency. It is claimed that the City in a year receives approximately two million 9-1-1 emergency system calls, of which only a very small percentage are TDD calls.

Ferguson's complaints to the City resulted in an explanation by Commander Rodabough that Ferguson had not been disconnected, but in three of his four 9-1-1 calls he had failed to use his TDD space bar correctly to alert the operator. His fourth call, it was claimed, was answered and the 9-1-1 operator sent him a message, but Ferguson himself failed to respond, possibly because he was already out in the street chasing after his truck. During another incident later that same year Ferguson was unable to promptly report vandalism in progress next door to his home though he claimed he had used the 9-1-1 system correctly. He blamed his 9-1-1 problem on the lack of adequate training of the City's 9-1-1 personnel.

Plaintiff Bonnie Tucker is deaf, as is her father. On one occasion, when Tucker's father was seriously ill, he attempted to contact 9-1-1 by his TDD for what he believed was a medical emergency. His call did not receive a response. Plaintiff Tucker placed another 9-1-1 call and also got no response. On her second attempt, she was able to communicate with the 9-1-1 operator. At that time, Tucker notified the City of their 9-1-1 difficulties. At the request of the City she undertook to test their TDD system again. The system failed to work during her first two test calls, but functioned on the third call.

Plaintiff Frankel also had 9-1-1 problems. On one occasion in 1995, Frankel unsuccessfully attempted to call 9-1-1 five times on his TDD to report a theft from his residence. City officers did arrive at Frankel's residence in accordance with their hang-up response policy; however they did so on the non-emergency response basis. While the officers were at Frankel's residence a 9-1-1 test call was made, but that call was likewise disconnected. Frankel's prime concern was for his father who lived with him and who had a serious heart condition which might cause need for an emergency 9-1-1 response.

Plaintiffs filed a complaint against the City, alleging that the City's 9-1-1 system ineffectively served the deaf. Plaintiffs claimed that this conduct violated Title II of the ADA, § 504 of the Rehabilitation Act, and § 1983. The City responded to plaintiffs' complaint with a motion for summary judgment. Partial summary judgment was granted to the City on plaintiffs' § 1983 claims on the basis that municipalities are immune from punitive damage under that section. Ferguson v. City of Phoenix, 931 F.Supp. 688, 698 (D.Ariz.1996) (citing City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981)). The district court denied the remainder of defendant's summary judgment motion on the merits. Id. at 693-98. The district court held that plaintiffs could not recover compensatory damages unless they could prove that the City intentionally discriminated against them. This standard was defined by the district court to include conduct which could be viewed as intentional if the City, at a minimum, acted with deliberate indifference in situations where there was a strong likelihood that the City's conduct could result in a violation of federally protected rights. Id. at 697. Appropriate discovery, the district court held, was to be permitted for plaintiffs Plaintiffs claimed the whole factual background of their case evidenced intentional discrimination. In general, they blamed the City's official policies and practices as well as the City's alleged continuing and knowing violations of plaintiffs' civil rights for more than a year. In particular, plaintiffs' allegations were that only deaf callers had to use a TDD space bar and thereby were treated differently than non-hearing impaired callers; sometimes the 9-1-1 TDD system did not function for them; only TDD 9-1-1 calls had to be transferred on occasion to a 9-1-1 ancillary operator position equipped with TDD capability, slowing down the 9-1-1 process; the 9-1-1 TDD training of operators to recognize and respond to TDD calls was inadequate; the City neglected to perform the necessary self-evaluation of its TDD system; the City neglected to take corrective action after it knew of the deficiencies; and finally, that Commander Rodabough had failed to take any corrective actions before a partial settlement consent order was entered during the course of this...

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