Opposition Brief — City of New York v. Green

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IN THI eee | .

Supreme Court of the Trited States

a a

Cary oF NEW YoRK and PAUL GIBLIN

Petitioners,

SUSAN ROSS GREEN, Executrix of the state

of Walter Green, deceased

Respondent

ON PETITION FOR A WRIT OF CERTIORARL TO THE UNITED STATI

COURT OF APPEALS FOR THE SECOND CIRCUTI

BRIEF IN OPPOSITION TO PETITION

FOR A WRIT OF CERTIORARI

MLISA BARNES

Counsel of Record

LAW OFFICE OF ILISA DARNES

350 Broadway, Suite 1100

New York, New York 1LOOIS

(212) 698 2330

ebarnesesg@aolcoi

Dienist M, DUNLEAVS

KRAMER & DUNLEAVY LLP

350 Broadway, Suite 1100

New York, New York 10013

(212) 226-6662

Counsel for Respondent

TABLE OF CONTENT!

prca pre

fntroduction |

Statement of act

Walter breathing

Problem and the 911 Call (5

Bo Walter's Refusal of

Medical Aid

( Phe City l’arlure to Provide

Walter Green the Service

Provided to Non Disabled

People a

1) kemoval of Walter Green

from his Home io

I At the Hospital | /

Reasons for Denying the Petition 20

|. Petitioner Did Not Argue

Por A Blanket luxception ‘To

The ADA For Emergency Worke:

In The District Court O1

The Second Circuit yAe

Il. No Court Has Recognized

Blanket Immunity From

ADA laability tor lamergency

Medical Worke

[tf Petitioners Propo ed xe pulron

Rests on Impermuissible

mtercotypuny 54

A Paternalism is a Social

llkthe ADA soupht to

eliminate, not lioxcuse OY

Bs. Paternalism Does Not

Justify Denying People

with Disabilities the Right

to Accept or Refuse Medical

Treatment Based on ther

Mode of Communication ,

(. Amony the Milhons of

Americans with Disabilitie

Many Use ‘Technological

Assistance to Communicate

I). The Jury's Verdict 1

Due Special Delerence 3

Conclusion

TABLE OF AU'THORETIE:

Bates vo. Chesterfield

216 FL 38d 867 (4 Cir. ZOO0) rer AL

Bircoll v. Miamt-Dade County

Ok. bd LOT (TT On O71) Pek. ate. wD

Brandenburg vo. Ohto

395 U.S. 444 (1969) 2

Brigham City vo. Stuart

547 U.S. 398 (2006) oF

Chevron U.S.A. 1

Kschazabal

A&E US. 78 (200%) Ey

Cruzan vo. Director, Missourt

Dept of Health,

A97 U.S. 261 (1990) IG. BI

('yrus v. Town of Mukwonga

20009 US Dist. LE ATS 384859

(1.1). Wis. 2009) 23

Delta Aur Lines, [ne

vo. August

ADO ULS. 346, 362 (1981) 2 |

Green v. City of New York

2004 U.S. Dist. LINATS 5 20

flode Lt

\ Reclamation As f

‘

{

47 I

I> Mus

Winces

moe U

AGL@ hs,

( i)

i)

> { \ ai ( if

fe an Pdi

Virginta

204 (1081)

County of Dake

’d 108]

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| | sis Et € E Soy }

iy t/ / {

{ } —,d4 ‘ae Pyiel

/ nant vo. Peo ar ste. 2 (

statute

» | ( (‘tT |

IP US. IPIsSt, et seq

\rme ricati With Le ibyatits ACT } ! Ld

{ i t

} | { t {} t

Paul F ) LCN) bt);

LOY Stat. 1044 (repealed 190%)

Mther Levi lative Documensl

H.R. Rep. No. 101-48

heprinted at 1p) | 7.8 \ } 7

Vi

Other Sources

Issues in Creating Livable

Communities for People with

Disabilties: Proceeding:

of the Panel, National Counerl

on Disability at 5 (Oct. 1, 2007)

(available at http://www/ned.pov/

newsroom/publications/Z007/pdl/

livable communitie 10-01-07 pat) jan

dames |. Charleton

Nothing About Us Without U:

DL-eded CL WIO) 18)

John Walltams, Pech Opens Stephen

Hawking’s Universe, Business Weel

Online (June 20, 2001) )Cavailable at

http://www.businessweek .com/bwdatly

dnflash/junZ001/nf2Z001/062Z0 O67. htm) 34

Joseph x Shapiro,

No Pity, 229 (1993) 35

Vrevalence of Disability in America

National Center on Physical Activity

and Disabslity(Dec. 2) 2OO5)(available at

http: //www.nepad.org/research/fact_ sheet

f

phpvsheed PKGALSEeCtion— 14%.) 3Sn

peech to Speech PePrViICEs hederal

(Communications Commuiussion)(avallable at

http //www i rovieyb/dro/st bitayil) 4

val

Within our Within Our Reach: hindiny

and Recommendations of the National

Task FPoree on Pechnology & Disability

Jational ‘| at I. hore cS Wis ‘| c"¢ hnoloyy and

Disability. at 11 (004)(avanlable at

http://222.nthd orp/ntitd. pdt)

2005 American Community ourvey

US. Census Bureau (available at http

factfinder.consus.pove/servlet/DT Table ?

bmoay& state=dt&-context=dt&

ds name=ACS 2005 EST GOO &

mt name=ACS 2005 LST GZ000

Bog s&tree 1d B05k&-redolLop=truc&

calle) CO elect&é CO 1da=31200

US35620365 1000&-geo 1d=NBSP&

earch result: OQLTOOQOOUS& format > & lany Ch)

Respondent Susan Ross Green, as Mxecutrix of

the Estate of Walter Green, deceased, respeetfully

asks this Court to deny the petition for writ) of

certioran to review two judgments by the United

States Court of Appeals for t he Second Cireust

Introduction

Vetitioners have presented no compelling

reasons for this Court to review the decisions of the

Second Circuit. They request review of the claim

asserted here for the first time—that the Americans

with Disabilities Act, 4% U.S.C. §141341 et seq

(“ADA”) simply should not apply to emergency

medical service (IMMS”) workers in “exigent

circumstances.” (Petitioners’ Brief at 1, 12, 17) Their

application should be demied: first, because it wa:

not raised during the 9 years this case has been

pending an the district court and the Second Circuit

Second. the decisions of the Second Cireuit are not in

conflict with a decision of thas Court or other circuits.

No court has recognized the type of sweeping

exeeption for emergency medical service: workers

proposed by petitioners; instead, courts have

uniformly concluded that a finding of discrimination

calls for an intensive fact-based inquiry. Third, any

eCxeCeplion that would cnceom pass the facts of this case

would effectively revoke the applicability of the ADA

to emergency medical services workers and subject

persons suffering from disabilities to stercotypical

treatment based on untested paternalism, in direct

olution of the statute and the decisions of this

(Court

finally, there is no reason for review on the

vround that the Second Circuit has “so far departed

from the aceepted and usual course of judicial

proceedings.” Sup. Ct. R. 10 (a) The judgments of the

Second Carcuit were judicious, reasoned and wholly

in accord with settled law. It is petitioners who have

strayed into the realm of fantasy in their ‘Statement

of the Case’ (Pet. Bnef at 3.11), which bears almost

no resemblance to the record of the events of March

19 2000 The evidence adduced at trial

demonstrated that Walter Green’s life was never “at

stake’ during the 9O minutes that the 5 emergency

medical services workers and 3 police officers were

in Green’s apartment, nor did the presence of the

officers there for an hour and a half deprive any

other New Yorkers from nceded services. Moreover,

the EMS officers did not save Green’s life: he had

been resuscitated by his wife before SMS arrived at

his door. and was “breathing’, as he often did, via

manual ventilation provided by his wife and teenage

daughter, while waiting for his ventilator repat

technician who was en-route to his apartment

Walter Green had organized his affairs so that

he could be cared for at home, despite suffering from

late stage amyotrophic lateral sclerosis (“ALS” or

“Lou Gehnip’s disease”). During the entirety of the

hour and a half of the standoff in his apartment,

Walter Green’s condition was under control: he was

no more in “extremis” then than he was a day or a

week before. He was, by the City’s own documentary

evidence, “alert and onented” and communicating

repeatedly that he did not want to go to the hospital

~

An evaluation of his “decisional capacity” to refuse

further treatment was required by the City’s own

guidelines and, the evidence showed, it would have

been feasible, quick and easily performed. It was not

done because petitioners concluded that they knew

better than Walter Green what he needed.

Statement of Facts

On March 19, 2000, Walter Green, a G1 year

old Manhattan resident, suffered from ALS, a

progressive and invanably fatal neuromuscular

disease. He had been diagnosed some years earlier

and was, by then, in the late stages of the disease

He could not ambulate, speak with his voice, or

breathe on his own, He was confined to a wheelchair

and required full-time use of a mechanical ventilator

(respirator) attached to a tracheotomy tube at the

base of his neck. (Materials in the Joint Appendix

submitted to the Second Circuit: are cited as “CA”

137 at 2%)

Despite his disease, Walter led an active fife:

in November 1998 he participated as a wheel chair

entrant in the NYC Marathon. (CA 514) He rode to

Washington D.C. with ‘Ride for Lafe, to draw

attention to the need for additional funding for ALS

sufferers. (CA-515; CA-141) He participated fully in

the life of his family and community. As Wilham

Hall, Walter’s respiratory therapist testified:

() During the time you took care of Walter

(green did he just stay in his house and

live there?

():

():

A:

No, not Walter.

What do you mean by that?

Walter was a very vibrant personality

and he was a very vibrant person before

he contracted ALS and he | was

determined not to let ALS stop him

from living his life. And so Walter

part of our discharge plan was talking

to Walter about what his expectations

were and what we could do for him.

And so he wanted to be able to leave his

house, he wanted to be able to vo to ball

games, he wanted to be able to go to the

park, he wanted to be able to go down

to the ice cream parlor if he wanted to.

Not that he could eat ice cream, but he

wanted to be able to have the option of

going if his daughter wanted to go. So

we had to set Walter up so that he could

leave the house and he could go where

he wanted to go.

Hiow did you do that?

We set his wheelchair up with one of

the ventilators, one of the LP 10s

fmechanical ventilator] and we put it on

a special tray with a special battery.

And, we mounted it to the wheelchair

so that he could hit} a bump and the

wheelchair would stay on, or if he could

be tilted and it would stay on. And that

way, he could go wherever he wanted to

43

$50

() ie You k now if he did AD prdeve et: outside

has home?

A Yo:

() Hiow do you know that?

A | talked to Walter about at. Initially,

whenever he was going to leave the

home, he would let me know and ask

me afatas okay af | yo this far or that far

because he was concerned about the

battemes on the wheelchair and for the

vent, and he wanted to make sure that

it didn’t create a problem for his family

when he went out, so he wanted to be

safe. Once Walter pot the hang of it, he

knew where to go. He didn't ask me or

anyone else. He just went

(CA-140 at 43-44)

At the time he became wholly ventilator

dependent in 1997, Walter wa: hospitahzed to have

a tracheotomy to accommodate the ventilator and

resolved then never to return to any hospital for any

medical m-patient care. (CA-142 at 49; CA-199 at

994: CA-373 at 741) ixcept for the day in question,

when he was forcibly removed from his home = to

hospital, his decision was honored and he died at

home on December 9, 2001. (CA-212 at 276) Walter

and hy family received extensive medical and

6

mechanical train an airway 9 maimtenance,

including suctioning, the operation and maintenance

of the ventilators, and the operation of back up or

emergency ventilation systems. (CA-137 at 29, 31

89) Beeause all machines fail, the family was

thoroughly trained in using a manually operated

sellinflating bag Cambu bap’) to pump air into

Walter's lungs. (CA-189 at 388-39) ‘This apparatus

was used by the family on numerous occasions,

including a 8 hour stretch when the ventilator

battery gave out during a trans Atlantic flight. (CA

141 at 47; CA-200 at 227-228)

As his iliness progressed, Walter became

dependent on eye blinks to signal “yes” or “no,” or for

more detailed conversation, On his computer to

communicate. Walter had a voice augmentation

system, with a software program that sped up

communication so that Walter had simply to type

one or two letters with his one active finger and a

choice of likely words popped up for him to select

After completion of a sentence or thought, Walter

highlighted it and the computer voice was activated

and ‘spoke’ the words typed. (CA-160 at 124; CA-162

at 30) With this system Walter was able to carry on

detailed conversations, including four days of

deposition by petitioners’ counsel. (CA-240-6)

A. Walter’s Breathing Problem and_ the

91) Call

On Mareh 19, 2000 Walter was suffermy from

one of the several bouts of pneumonia that he had

experienced, and treated at home, since going on the

ventilator in 1997. He testified that this infection

“was relatively minor compared to the other

infections that home care has cured.” (CA-375 at

749) Susan Green and their 14 year old daughter,

Alixandra, left their apartment for some errands in

the early afternoon, leaving: Walter with a part-time

nurse’s aid, Marcella Lopez When Walter

expenenced difficulty breathing, Marcella called

Gusan and Alixandra. (CA-201 at 232) Alixandra

immediately returned to the apartment and found

the ventilator beeping and her father in distress

“My father looked like he was passed out . his

eyes were rolled back mto his head.”“(CA-202 at 233)

She perceived that there was a blockage, preventing

her father from receiving air via his respirator, but,

because she was unable to find the self inflating

(ambu) bag, she and the nurse’s aid began to blow

air directly into her father’s trachea through the

tracheotomy. She called 911) for help. Wathin

minutes, Susan Green arrived in the apartment

found the ambu bag (which had fallen behind a

cabinet) and started manually ventilating Walter.

(CA-203 at 237-8)

Alixandra testified that she and her mothe)

used the suction machine and were able to suction

mueus from Walter’s trachea, that Walter soon

reyained consciousness and communicated with

them. and that his color returned, all prior to the

arrival of the EMS workers. (CA 238 at 240) This

crucial testimony as to the sequence of events mn

controversy Was corroborated by the play back of the

tape of the actual 911 call made by Alixandra

During the play back, Alixandra interpreted some of

the background noises audible on the tape, including

the activation of the suction machine. (CA-Z06 at

249-250) As the jury listened to the tape recorded

emergency call, the City’s 911 operators were clearly

heard to acknowledge that the Green family had

been able to revive Walter before the arrival of IMs,

at 2:48 p.m. (CA-717-720) (Cihris Collins, one of the

paramedics, corroborated this by reporting to the

City’s on-line medical control staff: “when we pot

there, the patient’s family was bagging him’. (CA

732: CA 2038 at 240)

As was heard and transcribed on the 911 tape

(CA-712-20), when the officers arrived at the Green

apartment, Susan thanked them for answerimy the

call and advised them that their services were not

needed. (CA-366 at 710, 711) Her thanks went

unheeded, as the EMS officers imsisted they must,

and did, enter the home, and threatened to “put her

In protective custody or something”. (CA-723)

13 Walter’s Refusal of Medical Aid

Walter Green testified (at videotaped pre

trial depositions that were read and played to the

jury) that he repeatedly told the officers who wanted

to take him to the hospitak “Tam fine, No hospital.”

(CA-285-6 at 482-485) ‘This statement was both

printed Ol) the computer screen and audibly

projected into the room by the voice augmentation

device. Alixandra Green who was sitting: next to hes

father during the unfolding events of March 19,

2000, testified that Walter repeated the statement “I

fine no hosp” out loud via the computer voice over

and over again. (CA-205 at 245-246, 251)

At. the seene. both EMS teams recorded on

their ambulance call report forms at) 15:20) [3:20

p.m] that Walter was alert. The City MS worker:

noted that Walter was “alert and communicating: via

computer and winks.” (CA-687) On the tape recorded

call heard by the jury and received in evidence as a

transcribed document, paramedic Chris Collins told

the City’s on-line medical review GeETVICe

(‘telemetry’) that Walter could communicate via his

computer “All right he’s pot a trachea and he oa

being bagged [ambu-bagged]. He can communicate

via computer.” The telemetry paramedic responded

“Well, that’s not poinp bo help us. (CA 733, emphasis

added: CA-208 at 239-40. See CA-379-80 at 765-6 for

an explanation of the EMS recording system)

Walter testified that he Cold one of the officer:

that he refused to go to the hospital. (CA-285-G6 af

482-85) Alixandra Green confirmed this (CA-204 at

244 to CA-205 at 245-6) In addition, Walter's friend,

Joan Bertin, an attorney present at the apartment

that afternoon, testified that Walter communicated

via computer to the officers in the room that he

refused to go to the hospital. (GA TBO at 148)

According to the City’s TEMS — written

guidelines and echoed by all the City witnesses who

testified at tmal, every person has a nght to refuse

medical aid as lony as he is competent to do so. (CA

694 at § 5.2.8) Once a patient refuses medical aid,

the operational puidehnes protocols cntithed “Refusal

LO

of Medical Aid” must be followed. (CA-231 at Gol)

This protocol establishes “yuidelines and procedure:

for gneidents in which patients refuse pre-bospital

care and/or transport to a medical facihty.” (CA-G90)

After a patient refuses medical aid, the riundeline

require the IMS personnel to asse the person's

condition and his ability to make an informed

decision. (CA-700)

An‘on line medical control Galso reterred to a

telemetry’) division provides IEMs. officers with

direct telephone acecs to an oneall potiy bCbaad

According to the City’s guidelines, the telemetry

physician must be contacted for all relusal ol

medical md involving patients younger than o and

olden than Oo and for tho YS whom the Thi miber bysas al

“high index of suspicion best described as “concern

for a potential surgical, medical or so al condition

that could result in an untoward/untavorabl

outcome. (CA 692, 691)

After a screening by a paramedic, the protocol

requires the on-lne medical control physician to

have a conversation with the patient so that the

medical doctor can assess the patient's decisional

capacity and the reasons for the refusal. (CA-695

5 3.1B) Dr. Flavio Crisan, the telemetry physician

employed by the City to make refusal of medical aid

determinations on March 19, 2000, testified that all

people have the right to refuse treatment and

transport to a hospital, even people who are very

SICK

urrounding Whicit byctpoprerrinage

thom rive rye an idea that they are

With us an the present tame and not

ontu ed

Unfortunately — tor peech- disabled Walter

CGireen, on-line medical control service vere not

available to people who were unable to use thei

vocal chords (CA-2283 at 3819. Crisari: “Basically |

would have to speak to the person. ) This restriction

on the use of the telemetry system was contirmed by

the contemporaneou fatement of the telemetry

taff persons captured on tape which was produced

for trial. heard by the yury, transeribed and admitted

m evidence. In ri ponmse lo thre tatement that an

can communicat via compute mad by the

paramedic in the Green apartment, the telemetry

staff member tlatly stated: “well, that Hot grommger to

helpus.” (CA-733)

In situations where the patient was not abl

to speak, Dr. Crisari stated hypothetically, that “we

would call a higher medical authority tor the scene

which would be the leutenant who would vo to the

?

scene. (CA-2238 at 320) ‘The higher medical

authority an bMS Upervisas uch oa a

heutenant or captain (CA.224 at 21), not a

physician The SUpPCrVISOl hypoth tically would pO

(here, asse: thie cene apain, assess the patient

sme thee ime ocritert used by the telemetry

physician, (CA-225 at 520)

When on-line medical control is not available

(ity policy require Chic upervisor al the seene to

perform «a thorough assessment by “using the

Ke-fucal of Medieal Aid Questionnaire and conversing

with the patient.” (CA- 696, 701-2) Captain Brian

Milzhotf, 140 Gatlin upervisor, conceded that the

emergency medical technician on the seene must

fesse tba pubient: ‘decisional Capacity buy ode

proce of consideriny whether to aecept his refusal

of medical aid. (CA-251 at 449-51) IHlowever, in the

context of this ease and after beimp briefed by 1.1

CGablin about the events om the Green apartment

Claptaims Mailzholl admitted that Et. Goabblon did not

evaluate Walter Green's decisional capacity alter

telemetry determined they could not participate in

the evaluation of Walters refusal of medienl aid

Pecan Wiiiltes could not je i}

() And you discussed with him [Gablin| ha

obcervations and pudpyvincent at tba (arene

thisal head pin ty tran port thas patient

eapeiadgastl tdbve pacabaedil cabo tha badly

AV issdye truie

>. , ? ,

see (hOoUIR I " rat I «1 Kany’ YCstl i] (jti

had that conve atjon /

() And did you Jdearn from Lacutenant

(aiblin Who Wo unde) You!

Hipervinton Whether or not Mis (areen

lf he had the decisional capacity

() Then he could have refused

Phen the RMA. procedure: would be an

po dine {

() And do you have any information at all

that Mr. Walter Green lacked decisional

capacity on March 19. 20007

| don't have any of that information

(( sat 35% to 242 at b54)(emphasis added)

( Pha Coty hashure to Provide Walters

(areen, the pervice Provided to INon

1) ibled People

Thi (Viernes sdduced ato triad disclosed that

Valter was not alforded the ervyce provided to

bigot it abel (] po Ople | lJ 1 he Wii rat bilt qd ix it metry

7 ‘ spt)

4 because he was not able to speak. CC/- 1.565

Well. that’s not going to help us.”) Second, Gaiblin

admitted to Bertin that a Walter could peak Ciiblin

Vould nol take him Lo the hospital Mertin told the

J

Yort

cate

pil at , £4358 Vee wabiol with defendant Caiblin

(i4 bees basa) trated an tier Work deposition thicat

eredyted by the court in (areen Cily of Neu

(Green 1) 465 F.3d 65, 77-8 (2d Cir. ZOOG))

() 1 dual die i anything el ce!

y Well, finally. | was very frustrated

and | asked him if Walter could say, NO

I dont want to po to the ho pital would

Qu Lhe I} take him / And rhe aid Pi) rhe

y

({ a eiya

La Caiblin :0, 39} ION Mo rie ice recanted

denied, Or i) al i repudiated or ) wed awa

during the trial (Counsel for the Cat never asked

Chiller atboout this addins fol) OL CVO e|xXambatlion

Lt! pire to the stand aguring

md dyad not ree-Cadl rye uy

In dact. Gablin re-allirmead the accura Ol

added to the t bigoony

\A

pe ilisé Walter could not

pony thee yver of liability form defendants could

not accept his relu 1] dical uid. (CA-280 at 462

( |

) ie ! \ ral ron lil

bios

hee Cost Crip ( ere dh the Careecn tome

1 Imost 9O minut (CA-68%5-6) In total, there

A oe i al teas gihices pore @1L: (WO paramedar LW

Myre Department MMS meds one EMS heutenant

two police officers and ori police sergeant ({d.) ‘Vhe

jo! bic olfice) ail Lhe cA gan iJ itiaally retu cad thie

request of the IM: ollice? thacatl the a ist Jn

remMyoviniyv Walktes Prom) ta biconnie (CA-6%o, centr iil

I 1): 4 4 pwr ae lo:z2o.09 and 12) it WV aA not util

1on thi eene and ordercd

Walter Green’s removal under threat of arrest that

hae W aid tiake li Out rat his home (lA (52405)

Walter Green suffered physical injures as a

result of his forcible and violent removal from hi:

home. (CA185 at 165-66; CA-207 at 256, CA-208 at

25% -G- CA 286 at 446; CA-156 at 105-7) Arriving at

the scene a few minute after Walter had been

physically removed, Wilham Hall, the respiratory

therapist, found the apartment 1n disarray, with

things strewn on the floor, (CA-144 at 57) Mr hii]

had been summoned to the apartment by Susan

Green in order to repair the ventilators. He had hiad

a telephone conversation with Lt Cablin during

which he explained that he was on his way and

would be there shortly. (CA-144 at 57) Hall wa: able

to fix both machines within a matter of minute:

(CCA- 144-145 at 60 .6))

| At the Ho pital

Walter (arcen Wa taken to opt Laake:

Roosevelt’ Hospital despite a request that he be

taken to Columbia Presbytenan, where the ALS

Center and all of his physicians were located. (CA

184 at 163) Walter arrived at St. Luke's and wa:

eon by the re: ident phrysu rath, Dt Tiffany Keiser at

1:50 p.m approximately 40 minutes after Walter

W iA! forcibly removed from his home. (CA-75%- CA

Dr. Keiser performed an evaluation of Waltes

((‘A-437) She was able to do so, despite having neve)

bye fore examined re | per ())) who could Not § peak Cor Gras

who had ALS, because instead of assuming that she

knew what Walter needed, she actually looked at

him, spoke to him, and observed his responses. Dr.

Reiser found Walter to be alert and onented,

adequately oxygenated, and not hypoxic. (CA-4385 at

28.1) and see CA-436 at 495-4) She advised Green

fo remain in the hospital because he was suffering

from pneumonia. (CA 437 at 895) He eventually,

though reluctantly, agreed to do so because of the

overwhelming lopistical obstacles to petting home

(CA-186-7 at 172-3: CA-209 at 263; CA-371 at 733)

In addition to the physical injuries, Walter

also experienced severe emotional trauma that led to

months of depression. (CA-210 ut 266; CA-188 at

177) We testified at a video-taped deposition that

wis playe d tothe jury (CA 750 2)

I watched my wife vet knocked to the

floor and told to be handcuffed. | saw my

dauphter manhandled hy large men who

claimed to be helping. My home was violated,

my self-respect crushed, and until then P did

not understand the meaning of the word rape

lf can’t move, | saw myself being held, legs

spread and strapped to a chair and = beiny

violated apain and apain, being held helpless

apast my wall

I saw omy wiles bloodied face and

limping in pain, and red welts risingg on my

dauphters arms. Al thisin the name of good

Whose pood? Surely not my family nor mine. |

couldn't grasp what was happening. | became

ln the hosprtal lf couldnt look at omy

wife and children, | felt ashamed, and for the

first time an utterly helpless man, worthle:

And my twisted body would not be piven any

res pect

kor month lf couldn't close my eye

without seeing the horror of that day played

before my eye: I still wake Up dha cold sweat

with vivid niuipflitonares of that day that will

tay with me for the rest of my lite

mome da | heave iA bicarad Gagne

functioning. | become depressed very casily

and | have a hard time conceentrating [ov

doubled iy leepiny

} made plans for my demise with m

Rabbi after that event, detailing everything so

no one would have any say bul me li tl wa

not able to be in control dumng hfe, | would

certainly control ii my ce ath wishe

lalso remind my dauphter, Nancy, with

my personal wishes for my death untal thi

moldent lf really didn’t even think about

dying even though | had a fatal disease

2U

Reasons for Denying the Petition

| Petitioner Did Not Argue kor A

Blanket Exception ‘To The ADA lor

Mmergency Workers In The District Court

Or ‘The Second Cireuit

During the 9 years this litivation was pending

in the district court and Second Circuit, the City and

Cablin raised many factual and legal arguments

but not the request for a blanket exemption from

ADA liability for non-hospital emergency medical

services officers that they raise here Initially, in the

district court in their motion for summary judgment,

petitioners argued that they did not discriminate

against Walter Green because the emergency

medical services staff bore Walter no ill wall, but

merely wanted to help him. (Green vo. City of New

York, 2004 U.S.Dist. LEXIS 5 at 25-9 (6.D.N_Y

2004)(decision of magistrate judye on petitioners:

summary judgment motion) After reversal by the

Seeond Circuit. at trial the City claimed that Walter

(arecn Was not competent to reluse treatment,

relying on a paid expert who reviewed the facts long

after the event and opined that (areen must have

been mentally compromised. In adopting the district

court’s charge to the jury, petitioners effectively

stipulated that the ADA apphed. (CA 490-7)

Although the jury did not accept petitioners:

arpument that Green was not competent, the district

judge did. The Second Circuit reversed the district

court’s judgament notwithstanding the verdict and

affirmed the jury's verdict Green vo. City of Neu

York, (Green f1) Appendix A at da (2d Cir. 2009)

Mfter almost a decade of litipation, the City

finally admits important facts that counsel

repeatedly and vehemently denied below (lor

instance, that Walter Green was not piven the

evaluation of his refusal of medical services required

under the City’s own guidelines, Pet. Bricf at 0), but

now suddenly claims that the ADA should not have

apphed to it at all: “Nor should the ADA apply under

the far more exigent circumstances presented here

(Pet. Brief at 17) However, as this contention was

not raised either in the district court or the Second

Carcuit no record wa developed Neither the

district court nor the Second Circuit ruled on thi

Claim and. accordingly, under this Court's rulings, it

hhould not LOW be the bocasst for revjlew ol thas

decision ot second (Circuit Pennsylvanta

Department of ( cir ree lion: ( Yeshey yZ4 (J Np OG

212-8 (1998); Delta Atr Line Ine. vo. Aupust, 400

LIS. 846, 862 (1987)

I | No Court Has hecognized

Blanket Immunity From ADA Laability

lor lemergene y Med al Worker:

kven af) petitiones had raised this) claw

below. this Court should not expend scarce resources

to consider it because it is a sham argument. ‘The

cases rehed on do not support an exception to ADA

liability for emergency medical service workers and

they deal with public safety exigencies wholly

Inapposite to the facts here. (See Pet. Brief at 13-18)

The Second Cireuit’s decisions in Green and /7 that

carefully evaluated the facts surrounding — the

incident are not at odds with the other circuits,

which have invariably determined that a finding of

discrimination requires an mtensive factual review

of all of the circumstances Nor are the Second

Circuit decisions contrary to this Court's decision in

Chevron U.S.A. v. BRschazabal, which affirmed the

necessity of individualized factual inquiry under an

KEOC repulation. 546 US. 74, 85-6 (2002) No court

has even remotely proposed the blanket exemption

from ADA lability that the City seeks for its non

hospital emergency medical services workers

Petiioner’s argument that the ADA simply

should not apply in some situation: relies primarily

on Hainze v. Richards, 207 |} 3d 795 (5t" Cir.) cert

denied, 531 U.S. 959 (2000) (Pet. Brief at 14), 1n

which a mentally disabled plamtiff was found pualty

of appravated assault on a police officer after

approaching the officer with a knife and failing to

top when ordered to do so. Hainze, 207 be. bd at 79%

Plaintitfs ADA claims were dismissed on two

yrounds: that plaintiff was not demed a service but

by his threatening conduct, himself caused the

dental, and second, that a reasonable accommodation

of plaintiffs disability need not occur in an on-site

arrest until officers secure the area and safeguard

their own and the publhie’s safety. ffainze, 207 I. 3d

at 801 The Fifth Circuit) speafically limited the

application of the holding to the specific facts of that

case which dealt with an on-the-street response by a

police officer to a reported disturbance of a man

23

wielding) a knife. The court stated that the ADA’s

reasonable accommodation requirement does not

apply until after officers have first secured “the

safety of themselves, other officers, and any nearby

civihans’. Hainz, 207 F.3d at 801

Hainze is inappheable on its facts: Walter

Green did not commit a crime and dealing: with hin

did not put the public or the officers at risk. Further,

instead of carving out an exception to the ADA

Hainze arguably stands for the principle that) the

ADA does not “shield the disabled from being treated

like other citizens who violate the law.” See Cyrus 0

Town of Mukwonga, 2009 U.S. Dist. LIeXtS 34859 at

56 (dD. Wis. 2009); see also Bates v. Chesterfield,

216 I. 3d 867, 3873 (4 Cir, 2000)(piven a finding of

probable cause to belheve plaintiff assaulted a police

officer, the police stop, use of force and arrest “were

not by reason of Bates’ disability, but because oft

sates’ objectively verifiable misconduct”)

The Eleventh Circuit in Borcoll vo. Miami Dade

County, 4480 F. bd 1072, 1080-6 (1 Mm’ Cir. 2007), a

case also relied on by petitioners, specifically

rejected the theory of an ADA exception derived from

flainze:

As noted earher, the Fifth Circuit in Hainze

concluded that “Tithe TT does not apply to an

officer's on-the-street) responses to reported

disturbances or other similar incidents

prior to the oftieer's securing: the scene and

ensuring that there is no threat to human

hfe” Hanize, 207 Fo 8d at BOL (emphasis

added) In our view, the question is not so

much one of the applicability of the ADA

because Tithe TP prohibits discrimination by a

public entity by reason of Bircoll’s disability

Phe expert carcuimstance pre ented by

criminal activity and the already onerou:

tasks of police on the scene fo more to the

reasonablene: Ol the requested ADA

modification than whether the ADA applies thi

the first mstance

In other words, the question 1 whether

riven criminal activity and safety concern:

any modification of police procedur \

reasonable before the police pliy cally arrest

a criminal su pect Secure thre scene anid

ensure that there is no threat to the public on

officer's safety. The reasonable modification

mquiry in Tithe IADA cases is “a highly faet

specific inquiry." See folbrook City of

\lpharetta, 112 F.8d 1622, 1627 (llth Ci

1997) (stating, ino a ‘Tithe LADA reasonabl

accommodation case, that "What is reasonabl

for each individual employer is a higeshly tact

specific inquiry that will vary depending: on

the circumstances and necessities of cach

employment situation"). We emphasize that

Lerm like reasonable are relative to thie

particular circumstances ol the case and the

circumstances of a DUT arrest on the roadside

are different from those of an ottice or school

OTF B2VGh a police Station What Ls reasonable

|

on Impermissible otercotypingy

ast AanaGgitnacr « ('tiy,t fo (1) Crigpinatiny

Ol peopl | 1 «dl On bpp le hed and pre

reel y yo ae (heovron USA {

1 | » (2002) There is) no

poport kay, pehitiones claim that

Bele Vitti ci person wileriuy pooch

wuld be any more time consuming than

disabled parson refusal of medical

inder the Coat established puideline

ollice) to Obtann tntlormation 1110)

i { priecnil fac-Obieer att 4 ¢]j poded oy

b perso Phils proce Leake honver than

| pric i} ()] pocatbecnil Couile take Petit

rca plan bid ( bhijstabes mepnerated

(either typed rudibl poken ts

to the ollicer 4 Piiarye Lut. Gaibblin) o1

' f ’ bacac

i {ys ‘ I Ki j {

! | j ' j ty tri

! | | ii ; ; j ry i} j } {

} fi i] I bia ‘

! i i Vi

| c-¢} ? r 1 t

’ , j ‘ ‘ ‘ i

] iP | ' i

en ob tisgmy dais eye blank S/o ystem would

bhei Ve Laken an longer than a customary verbal

pyileewedsagiye With a poeukiny byt medically

nsophisticated person

Mecopniziny thicat trie art Proposing Al)

bhipermiascibly paternaliots Olution petlitiones

nonethnel argue fanceiwully here that the use of ‘do

pot resuseitate or medical ordet for dite su LaIhiny

LrCALMER!] Wfoexecuted. would ore duce the risk that

wi @exyvent circumstances exception to Uli ADA

ia (°K potas Pitata-sopoe sak dniy disabled CMe rvern

patient to unwanted and paternalistic medical

nileervention (Peto Breef at 19) Petitioners Go nol

plain how an order not to resuscitate or yo riorm

f traordinal bade Upport Lu deal with puatienil

hho are diol Comseiou Wotlld preve bit poaabey niadists

discrimoamation. Order providing: for cessation ol

mie yead toberverition Would have had mo aapopodae ablion

in dae Whey a these nor would they have a sted

1M Aorke) to evaluate the desires of the full

(ot) pO alert and communicating Walter Green

ho didn’t want to die. but just wanted to stay biGoryie

horther, there as no explanation offered ian the brie

}do) tyic discordant hact that petitione) Caiblin

tted at troal that he would mot have honored a

yé hotel ( @ecuLed micas | powe! ()] atborne

bi liar rhore bpoperagie mite document for Walter

(Green than a do not resuscitate order) piving ousan

(areen tthority to act on her husband behalf and

ter Green would still have been removed trom

home because 4@ meédical powe! of attorney would

‘ been recovnized oubsias % HNO pital anid

no tramed medical people in the home

Lrpe-re Avq-re

(CA-237 at 344-0)

fndeed, Walter Green was a striking example

of the innate power of people with disabilitie:

\Ithiougeha tae lost) the ability to speak audibly

assistive technolopy and eye blinks allowed him to

communicate copenthy wath the world (On Mareh 19,

ZO00, the a rit miyured by employee ol thie

(stv of New York as a result of their disceniminatory

conduct. he w mast as Cap ible ol Latiny bias Wash

and exercising his rights as any justice of thi Court

r | croara Lbs

bhie deeisions of the mid Corcuit ensure

that the AD i apphed as Conpre polended and

jo! ent vpovernmentl apencs from denying service

( pyecoyple bh cdasscaboadatae pecause they cannot

dibl pitinicate then Nishi Thi Case

Ive bearyiccnil bivatteys (J personal

i rig7yit ecepl or rei medical

rea

} Ii) ae tric }

bo darnpanicad 1 | Cul

( sy ae pee Ehiabl pat riadisin

midert most GIscriyy Q avast disabled

PHP SON Paternalism J po rh pos The mG 1 pervasive

yon Of at pitniiniationm lor people Nith Gdeseaboadatae

md fh been a major barner to such individual

HR. Rep. No 101-465, pt. 2 at 74, reprinted in 14990

( it 356. The legislative history of the

law made clear that “nothing am the ADA ts intended

to permit discriminatory treatment on the basis of

disability, even when such treatment as rendered

under the puise of providing accommodation, service,

sid or benefit to the individual with disability.” /d.,

pt. 3. at 71, reprinted in 1990 US C.CLALN. at 494,

The Conpressional record focused on replacng

paternalism with respect for personal autonomy and

choice, and cited the example of a public

accommodation that has a policy of sending people

who are blind to the front of a line. “|A] blind

individual may choose not to avail himself or herself

of that right. . "HR. Rep No. 101-485, pt. 3, at 72Z,

reprinted in 1990 US C.CLALN. at 496. Similarly, a

“Dhiod gidividual may choose to decline to participate

In a speaal museum tour that allows persons to

touch sculptures ino an exhibit amd dastead tour the

exhibits at his or her own pace with the museum's

recorded tour. Td. Even with the best mtentions, a

museum requiring a bhnd individual to participate

in the special tour would violate the ADA. Similarly,

the Seeond Cireuit in Green 7 recognized that the

ADA would be violated where a povernment body

acted with “an intent based on a stereotypical view

of the abilities of a sermously physically handicapped

midividual” 465 #. Sd at ‘74%

Stereotypes about people with disabilities

paternalism and pity are rooted in notions of

cuperionty and “the assumption that people with

dicabilities are intrinsically inferior and unable to

take responsibility for their own lives.” dames I.

Charleton, Nothing About Us Without Us, 62 55

(1998) Phe violation and depyradation caused by suc hi

stereotypes were made evident bo (he gury through

Walters testimony about how he felt after being

foraably removed from his home: “TP become depressed

very easily, and | have a hard time concentrating.

Pye doubled my sleeping. Pomadce plans for my

demise with my Rabbi after that event, detailing

everything so that mo one would have any say buat

me. Hol was not able to be in control during life, I

would certaily control ino my death wishe: (CCA

fe)-Z)

KT

Bo Peternahsm Do Noto Justify Demyiny

People with Disabilities the Right to

Accept or Refuse Medical ‘Treatment Iyased

on Them Mode of Communication

competent person iil liberty hagas a

constitutionally protected miterest an controlling

Whatoais done to them own body, and is therefore

entitled to refuse medical treatment. Cruzan 497

UES at 27% (1990): Green 1, 465 FL Sd at 8&4; fetvers v

Katz. 67 N.Y. 2d 485, 4930.986)CTn our system of a

byrece pray Ve rrigiciit where notion: of individual

autonomy and tree choo are cherished. atas the

individual who must have the final say in respect to

decisions reparding his medical treatment ny Order to

insure that the preatest possible protection 1

aecorded his automo and treedom from unwanted

Htlertercnce with thy furtherance of hi OW)

(i¢ jit )

Under the ADA, an individuals right to refuse

medical treatment offered by a yovernment agency ts

not dependent on the ability to express his or her

desires with vocal chords. As the Second Circuit

recognized in Green 1, fan apency has puidelines for

the refusal of treatment, they must be designed to

permit: people who are conscious and cogent, but

unable to vocalize, to exercise the right to refuse.

Moreover, the refusal of the agency (through its

cmiployees) to apply those purdelines an a non

discriminatory manner, even aw the agency's

employees beheve their actions are motivated by

kindness, protection, or presumptions about what 1s

“best” for the person with a disability, 1s

unquestionably acthonable discrimination. Green J,

AGH F.3d at 76-77

(. Among the Mallions of Americans with

Disabilities, Many Use ‘Pechnolopical

Assistance to Communicate

Walter Green was one of millions 9 of

Americans who must use assistive technology to

communicate and perform daily functions, meluding

interaction with medical personnel. Petitioners

proposed exception would effectively deny such

persons, because they do not) communicate with

spoken words, the fundamental right to refuse

compelled medical treatment

At the time of the enactment of the ADA in

1990, approximately 44 mulhon Americans had one

or more physical or mental disabilities. 42 USC §

12101(a)Q1) Recent survey and census data indicates

that number has risen to over 50 million and wall

continue rising due to increased life expectancy and

the recent spike an the number of children and

teenagers with disabilities.’ More than 4.7 milhon

Amenecans aged 65 years or older have a sensory

disability involving sight or hearmy, and more than

6.7 million people with disabilities have difficulty

vorny outside their home.’ According to a 2000

census survey, the New York City metropolitan area

has 268114 residents who live independently (not in

proup quarters, dorms, or institutional settings) and

have a sensory dis ability. '

Within Qur Reach: Kindings and Recommendations of the

National Task Force on ‘Technology & Disability, National Task

force on Technology and Disability, at 1) (2004 )(available at

http /22% nitd orp/ntitd pdt) Over 24 million people are

Classified as having a severe disability. Prevalence ot Disability

in Amenea, National Center on Physical Activity and Disability

(Dee 21, 2005)Civailable at

http //www oan pad orp/research/fact sheet phip?s heet=189U& sect

Qi 1iheo)

fosues ain Creatunp Livable Communities for People withi

Pisabalities Proceedings of the Panel National Courne il on

Disability, at 5 (Oct. 1, 2007)Cavailable at

http //www ned pov/newsroom/publications/Z007/pdi/livable co

mimunities LOO OV pdt)

See POOS Amencan Community vurves US. Census Bureau

(aiviathable at bitty

facttinder.census pove/servlet/DT Table? bm-y& state "dts

contextedt& ds name-ACS_ 2005 EST GOO &

mt namesACS 2005 EST _G2000_ B99 L8& tree 1d SO5k

re dolop- trucd calk F=—PCOst( lect &é

Assistive technology available to people with

disabilities for communication has improved access

to public life, and our laws reflect the importance of

respecting these different forms of comm nica tion

kor example, every state is now required to have a

“Speech to Speech” (dS! 'S”) toll-free telephone relay

service. 47 U.S.C. §225 (f)(2) Available 24 hours a

day, seven days a week, the service enables

mndaviduals wath speech disabilitaes who have

difficulty being understood on the telephone to call

OTS where a “Communications Assistant” tramed to

recopnize different speech patterns repeat: the

person’s words to the imtended recipient of the:

persons eal ;

Another mechanism for communication as the

one that Walter Green used: a specially designed

computer which, after he typed one or two letters

with his one active finger, would provide a choice of

likely works for him to select. When Mr. Green

would complete his sentence or thought, a voice on

the computer would state the typed words. (CA-160

at 124. CA 162 at 380) Stephen Hawking, a renowned

scientast and author who is) almost entirely

q*

paralyzed as a result of Abs Lise: sieabiag

peo wd 31P2O0UISS 56205865 LOOOKX -poeo 1d NBSPA&

search results=OLOOOQUS& -format<&- lang-en)

‘Specch to Speech Services Federal Communication

Comumission)Gavatlable at bttpd/www tee. pov/cpb/dro/sts titiad

technology : Widely considered One Ol the worlds

most brilliant theoretical physicists since Albert

lcinstein, llawking doc: hit talking —even

conducting seminars at Cambndpe University

through a computerized voice synthesizes He picks

out words on a Compute) sereen, and an electron.

VOICE § peaks What he write:

Assistive technology Cam range Trom thie

simplistic to the futurists Computers have led the

revolution. Hundreds of companies, from computer

miants to attic innovators, have produced thousand

of software and hardware aids that can mitigate the

problems posed by even the most: severe physical

ai ability ‘There eh i & Compute! PVOnIlOr: Nith

mapynihed large type letters key board with

oversized keypads; and printers that print in Braille

Gomeone unable to prip a pen and write can use a

Compubler lf fingers lack the muscles to type, a

Comipuber key can be struck with a mouthstich

clenched between the teeth 61 with a headstich

‘ trapped tir thre fore bie ad

(consistent With the broad consensu: Ol a

priito da poli t daca Pavol Th Os, 4, ig hot peopel with

© Joba Wallicmn Pech Ope tepohrens Phaw kine CJrvavers

/usines Week Online (dune QO 2OO))CGavathable at

hittp [WWW bturside week com/bwadatly/dnflash/jpunZoo nivow

disabilities, federal and state povernmental bode:

have enacted laws to promote the use of assistive

technologies. The Hearing Aid Compatibility Act of

1988 requires all telephones made or imported for

use am the United States to be hearmy aid

compatible. 47 U.S.C. § 610 The ‘Technology-Kelated

Assistance for Individuals with Disabilities Act. of

LOSS was enacted to establish a system for providing

“financial assistance to states to help them develop

and implement a consumer responsive state wide

propram ol technology related assistance for

individuals of all ages with disabilities.” Pub. L. No

100-407, 102 Stat 1044 (repealed 1998S) Conyvress

subsequently amended and replaced that legislation

with the Assistive Technology Act of 2004, which

extends tederal funding for state programs to

Improve the provision of assistive technology to

disabled persons See 29 U.S.C. § JOO] et seq

further, the ‘Relecommunmications Act of 1996

requires telecommunications manufacturers and

service providers to make their equipment and

services aceessible to people with disabilities, af

readily achievable. 47 U.S.C. §&255

Clearly, Conyvress recognized the need to

develop and adopt assistive lechnology, and as a

result there are many people with disabilities now

“speaking: in CO hhon traditional ways with — the

assistance of such technology Thais tact biagrbadag hits

the injustice of the petitioners’ treatment of Walter

Green. Green exemplifies those who have overcome

an abilities and re able to live mdependent lives

with the aid oft technology When oa persol with

disabilitie List thi technology to exercise vital

constitutional ragrtat it Weitlte chad aera Baa Ge

should be allowed to di reviard that exercise because

thie person Spoke (hirougeh } TIFALLADEET rather tha

through vocal cord or the written word Vetitioner

carpeurbne dil this rigehyt exercised through \ istive

technology should be freely anored by pvovernient

aprencie ubvert Congres Mitentiol anid hould

be repected by this Court

1) may yuan’y Voerdret Pay yo

Linder out tem, where th righit) ob yu

trial is constitutionally protected (he pury., not the

Court i the fact-tindin brody lt wereh thie

contradicton evidence and mberen ude tae

credibility ob wate receive expert dias tractios

and draw the ultimate conclusion a fo the fact

fennarnl ( Peorta ra | om. li) ( ) | { ’ Ary ,

“deferred to the yu credibility determimati

rnd concluded that the district int ttosstaturts

its own Judements tor that of the ju bnot

located within the range ob peria stole Isl

(Crees l/ Pot \ppenad \ it re ) )

We Vil beriat t tl {

pri bil parti hav mportant t)

discrimination Win peopl TT

hound the ADA repre 1 1. broad cons

followin bo don brisston of (tempt roy

Clit Live Lit Teleum | {| i | } ?

C'onclusion