I’ve observed before that titles II and III of the ADA create what can be called a crime looking for a victim.* The decision in Hamer v. City of Trinidad, 2019 WL 2120132 (10th Cir. May 15, 2019) shows how defining the crime can change the burden cities may face today based on decisions that go back decades or even centuries. The decision in Hamer will allow almost any person with a disability to demand that every inaccessible facility of a town like Trinidad be fixed regardless of its historical origin and regardless of how long the plaintiff has known of the problem. This decision contradicts decisions from other Circuits and follows a dubious analytical path. (For those who want a different view on this case, William Goren’s blog Repeated Violations Doctrine makes the case for this decision being correct).
The Court begins with the basic anti-discrimination provision in Title II of the ADA:
“no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.”
42 USC §12132. Hamer’s complaint was that he could not use many city sidewalks because they were impassable for the motorized scooter required by his disability. The nature of his complaint raises the first issue concerning Title II; that is, whether a sidewalk or similar physical facility is required to be accessible as a service, program or activity of a public entity. The Court never addresses that question although the notion that a physical facility must itself be accessible without regard to access to city programs was explicitly rejected by the Sixth Circuit in Babcock v. Michigan, 812 F.3d 531 (6th Cir. 2016). The absence of any mention of the issue or of Babcock suggests that someone – either the defendant or the various law clerks – didn’t really look very deeply at the relevant law.
Having blown past the critical question of whether an inaccessible sidewalk violates Title II the Court then takes a series of leaps that convert the obligation not to “exclude” a disabled person from using a city sidewalk into an obligation to affirmatively fix the sidewalk. First it finds an affirmative duty to accommodate disabled users based on the Supreme Court’s decision in Tennessee v. Lane, 541 U.S. 509, 124 S.Ct. 1978, 158 L.Ed.2d 820 (2004).** Having found an affirmative duty to accommodate the Tenth Circuit then turns to traditional common law principles to find that failing to act in the face of a duty gives rise to liability. This turns the prohibition against exclusion into an affirmative obligation to fix any facility a disabled person cannot use. Because the obligation is to fix things, every day the city fails to fix something it has committed a new Title II violation. This “repeated violations” doctrine means, in effect, that limitations will never run for a plaintiff who even once confronts an inaccessible facility. In Hamer’s case, he was aware of the sidewalk problems more than two years before he filed suit, but the two year statute of limitations did not begin to run at that time because every day the sidewalk remained unfixed there was a new violation of Title II. Though his ability to recover damages for past problems was limited by the two year limitations period, his right to seek injunctive relief would last as long as he lived in Trinidad.
The adoption of the repeated violations doctrine implicitly rejects the Fifth Circuit’s analysis of the limitations issue in Frame v. City of Arlington, 657 F.3d 215 (5th Cir. 2011). In Frame the Fifth Circuit found the city’s obligation to build accessible sidewalks was triggered by the passage of the ADA. Thus there was no Title II violation for sidewalks built before 1992 that were merely left in their original condition. After 1992 a violation occurred when a sidewalk was built or modified without making it accessible. Merely continuing not to fix an old problem did not violate Title II. For the Hamer court the original construction might be a violation, but that hardly matters since there is a new violation every day the sidewalk or other facility is not fixed. The rejection of Frame is implicit because, as in the case of Babcock, the Hamer never addresses the existence of contrary authority from other circuits.
This difference in analysis of what constitutes a violation leads to radically different results. In Frame limitations runs not from the date of the violation but rather from the date the plaintiff suffered an injury; that is, the date on which the plaintiff first became aware of the accessibility problem and was precluded or deterred from using the sidewalk. A plaintiff who knows the sidewalk outside his apartment is not accessible must sue within two years of obtaining that knowledge or have the claims be barred by limitations. Thus, under Frame Hamer’s claims would have been barred for all the accessibility problems he knew about more than two years before filing suit. In Hamer the limitations period begins anew every time the sun rises, so the plaintiff’s knowledge of a problem is irrelevant to the date by which he or she must file suit. The plaintiff can wait for as long as he or she pleases.
Even more important for towns like Trinidad that date back to the nineteenth century every inaccessible street or sidewalk, no matter how old, must be fixed in order to comply with the Tenth Circuit’s notion of what Title II requires. This means in practical terms that historic districts cannot maintain their original look, for there is very little about 19th century streets and sidewalks that is accessible to motorized scooters. The “failure to fix” definition of a Title II violation imposes immediate liability on a city for not correcting construction from a different era even when that construction is completely unrelated to any city program or activity.
The May 15, 2019 opinion may not be the last word on this matter. On May 29 the City filed a petition for rehearing en banc and there is some hope the Tenth Circuit will at least address its conflicts with other Circuits if not reject the panel’s decision entirely. In the meantime towns like Trinidad are faced with the prospect of endless liability for failing to fix a past for which they are not responsible.
* See, “What is an ADA injury anyway”
** Tennessee v. Lane is itself interesting because in it the Supreme Court accepts DOJ’s interpretation of Title II that imposes on Title II entities the same obligation to make reasonable modifications in policies and programs that is found in Title III even though Congress explicitly included that obligation in Title III but did not include it in Title II. That, however, is for another blog at another time.