Settlement Agreement Between The United States Of America And Clearwater Police Department, Clearwater, Florida

DEPARTMENT OF JUSTICE COMPLAINT NUMBER 204-17M-20 (FORMERLY 192-T2-00443)

This matter was initiated by a complaint filed under title II of the Americans with Disabilities Act (ADA), 42 U.S.C. 12131-12134, with the United States Department of Justice, Civil Rights Division, Coordination and Review Section, against the Clearwater Police Department, Clearwater, Florida. The complaint alleges that an individual who is deaf and uses sign language for communication was arrested by the Clearwater Police Department without being afforded the right to communicate through an interpreter when communication became difficult between the arresting officer and the individual. Pursuant to the provision of the ADA entitled "Alternative Means of Dispute Resolution, "42 U.S.C. 12212, the parties have entered into this Agreement.

The Department of Justice is authorized under 28 C.F.R. Part 35, Subpart F, to investigate fully the allegations of the complaint in this matter to determine the compliance of the Clearwater, Police Department with title II of the ADA and the Department's implementing regulation, issue findings, and, where appropriate, negotiate and secure voluntary compliance agreements. Furthermore, the Attorney General is authorized under 42 U.S.C. 12133, to bring civil action enforcing title II of the ADA should the Department fail to secure voluntary compliance pursuant to Subpart F. In consideration of the terms of this Agreement as set forth below, the Attorney General agrees to refrain from undertaking further investigation or from filing civil suit in this matter.

The parties to the Agreement are the United States of America and the Clearwater Police Department. The parties agree that this Agreement is not an admission of liability and should not be construed as an admission by the Clearwater Police Department of any liability. In the interests of securing compliance by voluntary means, the parties hereby agree as follows:

1. The ADA applies to the Clearwater Police Department because it is a public entity as defined in 42 U.S.C. 12131.
2. Title II of the ADA and its implementing regulation prohibit discrimination against qualified individuals with disabilities on the basis of disability in the services, programs, or activities of the Clearwater Police Department.
3. An individual who is deaf or hard of hearing may not be denied an equal opportunity to participate in or benefit from the Clearwater Police Department's services, programs, or activities or otherwise treated differently because of the disability or because of the need for qualified interpreting services.
4. The Clearwater Police Department will furnish appropriate auxiliary aids and services when necessary to afford an individual with a disability an equal opportunity to participate in, and enjoy the benefits of, the Clearwater Police Department's services, programs, or activities. Auxiliary aids and services include qualified interpreters, computer aided note taking, written materials, and note pad and pen.
5. In any situation involving an individual who is deaf or hard of hearing, the Clearwater Police Department will give the individual the opportunity to request the auxiliary aid or service of his or her choice. The Clearwater Police Department will give primary consideration to th expressed choice of the individual unless the Police Department can demonstrate that another effective means of communication exists or that use of the means chosen would result in undue financial and administrative burdens.
6. The Clearwater Police Department has developed a written policy, which is attached, to provide that in those situations where the provision of interpreting services is necessary to ensure effective communication, the Clearwater Police Department will, upon reasonable notice, provide qualified interpreting services.
7. Within thirty (30) days of the effective date of this Agreement, a notice regarding the Clearwater Police Department's policy will be published on two separate occasions in a newspaper of general circulation serving the City of Clearwater. The notice will state that "Pursuant to the requirements of title II of the Americans with Disabilities Act, the Clearwater Police Department will not discriminate against qualified individuals with disabilities on the basis of disability in the Clearwater Police Department's services, programs, or activities," in addition to the statement of the Police Department's policy.
8. Copies of the policy will be provided to members of the public upon request.
9. The Clearwater Police Department agrees to inform and instruct all its employees who are in any way responsible for the conduct of any proceedings to adhere to and comply with the policy.
10. This Agreement is a public document. A copy of this document or any information contained in it may be made available to any person by the Clearwater Police Department or the Department of Justice on request.
11. The Department of Justice may review compliance with this Agreement at any time. If it determines that this Agreement or any requirement thereof has been violated, it may institute civil action seeking specific performance of the provisions of this Agreement in an appropriate Federal court.
12. The Department of Justice's failure to enforce this entire Agreement or any provision thereof with respect to any deadline or any other provision herein will not be construed as a waiver of the Department of Justice's right to enforce other deadlines and provisions of this Agreement.
13. In the event that the Clearwater Police Department fails to comply in a timely manner with any requirement of this Agreement without obtaining sufficient advance written agreement with the Department of Justice as a temporary modification of the relevant terms of this Agreement, all terms of this Agreement will become enforceable in an appropriate Federal court.
14. The effective date of this Agreement is the date of the last signature below.
15. This Agreement constitutes the entire Agreement between the parties on the matters raised herein, and no other statement, promise, or agreement, either written or oral, made by either party or agents of either party, that is not contained in this written Agreement, will be enforceable. This Agreement does not purport to remedy any other potential violations of the Americans with Disabilities Act or any other Federal law. This Agreement does not affect the Clearwater Police Department's continuing responsibility to comply with all aspects of the Americans with Disabilities Act.

For the Clearwater Police Department:

_________________________________        Date:____June 24, 1993 _
Sid Klein, Chief of Police

For the United States:

_________________________________        Date:____June 29, 1993 _
Stewart B. Oneglia, Chief
Coordination & Review Section
Civil Rights Division
U.S. Department of Justice
P.O. Box 6618
Washington, D.C. 20035-6118

Revised July 16, 1993

THE CLEARWATER POLICE DEPARTMENT
POLICY ON
EFFECTIVE COMMUNICATION IN SITUATIONS
INVOLVING INDIVIDUALS WITH HEARING IMPAIRMENTS

It is the policy of the Clearwater Police Department that the Clearwater Police Department will furnish appropriate auxiliary aids and services whenever necessary to ensure effective communication with individuals with hearing impairments.

1. Auxiliary aids and services include qualified interpreters, written materials, note pads, and other effective methods of making aurally delivered materials available to individuals with hearing impairments.
2. When an auxiliary aid or service is required to ensure effective communication, the Clearwater Police Department must provide an opportunity for individuals with hearing impairments to request the auxiliary aids and services of their choice and must give primary consideration to the choice expressed by the individuals. "Primary consideration" means that the Clearwater Police Department must honor the choice, unless it can show that another equally effective means chosen would result in a fundamental alteration in the service, program, or activity or in undue financial and administrative burdens.
3. This policy addresses only those situations where a police officer, after consulting with the individual with a hearing impairment, determines that the services of a qualified interpreter are necessary to ensure effective communication.

A. COMMUNICATING WITH A SUSPECT
WITH A HEARING IMPAIRMENT
PRIOR TO AN ARREST
WHEN A POLICE OFFICER HAS PROBABLE CAUSE
WITHOUT HAVING TO INTERVIEW THE SUSPECT

If an individual without a hearing impairment would have been arrested on probable cause, then a suspect with a hearing impairment in the same situation does not need to be provided with a qualified interpreter. For example, if an officer responds to an aggravated battery call and upon arriving at the scene observes the victim bleeding and the individual with a hearing impairment holding a weapon in his hand and is told by witnesses and the victim that the individual with a hearing impairment struck the victim with the weapon, the officer obviously has sufficient probable cause to make a felony arrest without taking any statement from the suspect.

However, a qualified interpreter may still be required if an officer is unable to convey to the arrestee the nature of the criminal charges by communicating on a note pad or by using other means of communication. If the arrestee does not decline the opportunity to communicate through an interpreter, the arrestee should be transported to a holding cell at the Clearwater Police Department. Either the arresting officer or the transporting officer can convey the information through the interpreter when the interpreter arrives.

B. INTERVIEWING A SUSPECT WITH A HEARING
IMPAIRMENT WHEN THE POLICE
OFFICER NEEDS TO INTERVIEW THE SUSPECT TO
ESTABLISH PROBABLE CAUSE

If a police officer needs to interview a suspect with a hearing impairment to determine if there is probably cause to make an arrest, a qualified interpreter must be provided if the written communication is ineffective. When the services of a qualified interpreter are required to provide effective communication, but the officer cannot wait until a qualified interpreter arrives because the officer has to respond to another more urgent call, the following procedures apply:

1) If the investigation does not involve a serious offense, the officer must postpone the interview and possible arrest until the officer can return to the scene when a qualified interpreter is present. If the qualified interpreter is unable to respond or if the officer cannot return to the scene, then, after leaving the suspect at the scene, the officer must document his or her investigation as completely as possible and file the appropriate report.

2) If the investigation involves a serious offense, the officer, before leaving the scene, must contact the appropriate Investigations Division supervisor and advise the supervisor of the case. The supervisor will determine if a detective will be called in to wait for a qualified interpreter. If the supervisor determines that a detective will not be responding and if the officer cannot return to the scene, then, after leaving the suspect at the scene, the officer must document his or her investigation as completely as possible and file the appropriate report.

C. INTERROGATING AN ARRESTEE WITH A
HEARING IMPAIRMENT

If an officer cannot effectively inform the arrestee of the Miranda warnings without the use of an interpreter, then the officer must secure the services of a qualified interpreter in order to communicate accurately the warnings to the arrestee prior to any interrogation.

An officer seeking to interrogate an arrestee with a hearing impairment must obtain the services of a qualified interpreter prior to any interrogation whenever an interpreter is needed for effective communication. If exigent circumstances do not permit a delay in the interrogation of the arrestee, if an interpreter cannot be located within a reasonable period of time (which should occur very infrequently), if written communication between the officer and the arrestee was effective in conveying an understanding of the Miranda warnings, and if the arrestee specifically declines the opportunity to communicate through an interpreter, the officer may proceed with the interrogation by using a note pad. However, if written communication becomes ineffective, for example, because the factual pattern is complex, because the arrestee is having difficulty communicating without an interpreter, or because the arrestee chooses to discontinue the interrogation, the officer must discontinue the interrogation and wait until a qualified interpreter is present before continuing the interrogation. In most instances a qualified interpreter will be available and the interrogation will not be delayed.

D. COMMUNICATING WITH A SUSPECT
WITH A HEARING IMPAIRMENT
PRIOR TO THE ISSUANCE OF A NON-CRIMINAL CITATION
WHEN A POLICE OFFICER HAS PROBABLE CAUSE
WITHOUT HAVING TO INTERVIEW THE SUSPECT

If an individual without a hearing impairment would have been issued a non-criminal citation without being questioned by the investigating officer, then a suspect with a hearing impairment in the same situation does not need to be provided with a qualified interpreter. For example, if the suspect with a hearing impairment is caught on radar speeding, the investigation officer does not have to provide an interpreter to the violator.

If an officer has stopped a suspect for committing a non-criminal infraction and if the officer is unable to convey to the violator the nature of the non-criminal infraction by communicating on a note pad or by using another means of communication, then the officer should use his or her discretion as to whether to call a qualified interpreter to the scene or whether to issue a warning rather than a citation.

E. INTERVIEWING A VICTIM OR CRITICAL WITNESS
WITH A HEARING IMPAIRMENT
DURING AN INVESTIGATION OF AN OFFENSE

If an officer is able to communicate effectively by writing questions on a note pad and having the victim or witness with a hearing impairment write his or her responses, then the officer may proceed with the interview using a note pad. However, if an investigating officer is unable to communicate effectively with a victim or critical witness by using a note pad or some other means of communication other than a qualified interpreter, then the investigating officer must provide the victim or critical witness with a qualified interpreter. If the investigating officer cannot wait until a qualified interpreter arrives because the officer has to respond to another more urgent call, the following procedures apply:

(1) If the investigation does not involve a serious offense, then (a) the officer can have a qualified interpreter dispatched to the victim's or critical witness's location and request the communications division to recontact the officer when the interpreter arrives. If a qualified interpreter is unable to respond or if the officer cannot return to the scene, the officer must document his or her investigation as completely as possible and file the appropriate report; or (b) the officer can ask the victim or critical witness to come voluntarily to the station when a qualified interpreter is available. At that time the investigating officer can return to the station to complete the investigation. If a qualified interpreter is unable to respond or if the officer cannot return to the station, the officer must document his or her investigation as completely as possible and file the appropriate report.

(2) If the investigation does involve a serious offense and if the victim or witness with a hearing impairment is critical to establishing probable cause for an arrest or for completing the investigation, then the investigating officer, before leaving the scene, must contact the appropriate Investigations Division supervisor and advise the supervisor of the case. The supervisor will determine if a detective will be called in to wait for a qualified interpreter. If the supervisor determines that a detective will not be responding, and if neither option (1)(a) nor (1)(b) above is available, then the officer may leave the victim(s) or witness(es) at the scene. The investigation officer must then document his or her investigation as completely as possible and file the report.

All identifying information on the interpreter must be included in the report. All written questions and responses between and among police officers and persons with hearing impairments must be treated as evidence and handled accordingly. A copy of the written questions and responses must be forwarded with the police report, and the originals must be placed into evidence.

If you have any questions, please call Robert Surette, Legal Advisor, at (813) 462-6067.

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