There are two federal disability discrimination statutes that apply to state and local enforcement agencies. The first federal statute is section 504 of the Rehabilitation Act (Section 504), which prohibits recipients of federal financial assistance from discriminating against individuals on the basis of disability. 29 U.S.C. § 794. Many police departments in the United States receive financial assistance from one or more federal agencies and are subject to the requirements of Section 504. The second federal statute is Title II of the Americans with Disabilities Act (ADA). 42 U.S.C. §§ 12131-12134. All state and local police departments, regardless of receipt of federal funds, are prohibited from discrimination based on disability. The U.S. Department of Justice has issued regulations explaining the requirements of the ADA. 28 C.F.R. Part 35, 56 Fed. Reg. 35694 (July 26,1991) (U.S. Department of Justice Final Rule: Nondiscrimination on the Basis of Disability in State and Local Government Services). Both Section 504 and the ADA make clear that law enforcement agencies are obligated to take action to ensure effective communication with individuals who are deaf or hard of hearing.
Under the ADA and its regulations, state and local law enforcement agencies are required to provide accommodations, such as qualified interpreters, real-time captioning (also called CART), assistive listening devices, or other auxiliary aids and services, to ensure effective communication with deaf and hard of hearing individuals. 28 C.F.R. § 35.160. Law enforcement agencies must consult with the deaf or hard of hearing individual about the choice of auxiliary aid or service would result in effective communication. 28 C.F.R. § 35.160(b)(2).
The analysis to the ADA Title II regulations specify when a qualified interpreter may be needed to communicate effectively with a deaf or hard of hearing individual:
Although in some circumstances a notepad and written materials may be sufficient to permit effective communication, in other circumstances they may not be sufficient. For example, a qualified interpreter may be necessary when the information being communicated is complex, or is exchanged for a lengthy period of time. Generally, factors to be considered in determining whether an interpreter is required include the context in which the communication is taking place, the number of people involved, and the importance of the communication.
56 Fed. Reg. 35694 (July 26, 1992), at 35712.
The Department of Justice’s analysis of Section 504 further states:
Law enforcement agencies should provide for the availability of qualified interpreters (certified where possible, by a recognized certification agency) to assist the agencies when dealing with hearing-impaired persons. Where the hearing-impaired person uses American Sign Language for communication, the term “qualified interpreter” would mean an interpreter skilled in communicating in American Sign Language. It is the responsibility of the law enforcement agency to determine whether the hearing-impaired person uses American Sign Language or Signed English to communicate.
If a hearing-impaired person is arrested, the arresting officer’s Miranda warning should be communicated to the arrestee on a printed form approved for such use by the law enforcement agency where there is no qualified interpreter immediately available and communication is otherwise inadequate. The form should also advise the arrestee that the law enforcement agency has an obligation under Federal law to offer an interpreter to the arrestee without cost and that the agency will defer interrogation pending the appearance of an interpreter.
45 Fed. Reg. 37630 (June 3, 1980), Analysis of Department of Justice Regulations.
This Analysis makes many important points about the provision of qualified interpreters. First, neither the regulation nor the Analysis limits the provision of interpreter services or other auxiliary aids and services to communicate effectively with deaf or hard of hearing arrestees. Victims and complainants should certainly also be provided with those services. In addition, deaf and hard of hearing persons attending programs and functions sponsored by a law enforcement agency, such as informational workshops and educational programs, must be provided with a qualified interpreter or other auxiliary aids or services when necessary for effective communication.
The critical importance of the interpreter’s qualifications is stressed in the Analysis. The law enforcement agency should ensure securing qualified interpreters. When effective communication does not result from the use of an interpreter, as judged by the deaf or hard of hearing person, the interpreter, or a law enforcement official, another interpreter must be secured who is qualified to interpret in that situation. The Analysis specifically places the responsibility on the law enforcement agency to ascertain the type of sign language or other mode of communication with which the deaf individual feels most comfortable.
The obligations of the law enforcement agency to deaf or hard of hearing persons who have been arrested or held for questioning are founded in constitutional as well as statutory law. Courts have suppressed evidence obtained from a deaf defendant where it was found that the constitutional rights warning was not adequately communicated to the defendant. State of Maryland v. Barker, Crim. No’s. 17,995 and 19,518 (Md. Cir. Ct. Dec. 8, 1977); and State of Oregon v. Mason, Crim. No. C 80-03-30821 (Or. Cir. Ct. May 27, 1980). In both of these cases, the warnings were conveyed in sign language, but were not broken down to the defendant’s language level. Securing a qualified interpreter for a timely interpretation of the rights, accompanied with careful explanation and breakdown of every legal term and sign, is one way a law enforcement agency may prevent objections to the adequacy of this communication, as well as comply with the legal requirements of Section 504 and the ADA. Presentation of a printed advice of rights form without a qualified interpreter may not be sufficient.
Questioning of deaf or hard of hearing persons should also take place with a qualified interpreter present, or other auxiliary aids or services, to comply with Section 504 and the ADA and to achieve effective communication. Many law enforcement agencies videotape all communication with deaf or hard of hearing defendants to substantiate the effectiveness of the communication and the quality of the interpretation.
All deaf and hard of hearing persons must be informed of the law enforcement agency’s obligation to have a qualified interpreter, CART, assistive listening device, or other auxiliary aids or services, at no cost, during all communication with the law enforcement agency. This can usually be achieved, as the Analysis suggests, by use of a printed card. However, the agency must be aware that some deaf and hard of hearing persons have very limited English language skills and may require an interpreter to ensure comprehension of even this message.