# Opposition Brief — City of New York v. Green > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2019%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 2010 - **Citation:** 562 U.S. 947 ## Text r \( pV “sd 09-1426 | | JuL2dssg | 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] in. Zvi) 4 5 Lipp ‘| var Ci7iq } i | | (jy sve fi jf { ) } ) | | 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2019%3A3. Public record. Not legal advice.