The Civ. Assoc. Deaf, et al v. Giuliani, et al, No. 1:1995cv08591 - Document 142 (S.D.N.Y. 2011)
Court Description: AMENDED OPINION: Defendants' motion to vacate or modify the permanent injunction is denied. (Signed by Judge Robert W. Sweet on 11/29/2011) (ft)
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK THE CIVIC ASSOCIATION OF THE DEAF OF NEW YORK CITY/ INC. and STEVEN G. YOUNGER/ on behalf of themselves and all others similarly situated/ Plaintiffs, 95 Civ. 8591 AMENDED OPINION -against CITY OF NEW YORK ET AL./ Defendants. --- -x Sweet, D.J. Defendants Michael Bloomberg, as Mayor of the City of New York/ Salvatore Cassano, as Commissioner of the re Department of the City of New York ("FDNY") / and the City of New York (collectively, the "Defendants") have moved to vacate or modify the permanent injunction imposed by the Court on February 9, 1996. 1 The Defendants seek to vacate the injunction in order These individual defendants are successors to the original defendants, Mayor Rudolph Giuliani and Commissioner Howard Safir, who were sued in their official capacities. These updated Defendants are automatically substituted by operation of Fed. R. Civ. P. 25(d). The successors to the other original defendants (the Majority and Minority Leaders of the New York City Council, the Speaker of the New York City Council, and City Clerk and Clerk of the New 1 1 to deactivate the remaining street arm boxes in New York CitYI replacing them with the use of E-911 through public payphones and a tapping protocol to allow deaf and hearing impaired persons to communicate to dispatchers. reasons I Defendants I For the following motion is denied. I. Prior Proceedings The Civic Association of the Deaf Inc. and Stephen G. Younger, II filed a putat New York CitYI (collectively, the "Plaintiffs ll ) class action on October 10, 1995, seeking to enjoin Defendants from removing street alarm boxes 2 under the Americans with lities Act of 1990 (ADA), the Rehabilitation Act of 1973 (RA), and the equal protection clauses of the Fifth and Fourteenth Amendments to the Uni States Constitution. On February 13, 1996, the Court certified York City Council, all sued in their official capacities) take no position on this motion because the New York City Council is currently cons a proposed local law lifting local law restrictions on the deactivation of the street alarm box system. 2 As discussed in more detail below, there are two forms of street alarm box which will be referenced in this opinion. The ERS boxes are more modern and feature two buttons, allowing users to call and speak with either police or fire/EMS dispatchers. The BARS boxes are older, and users pull a lever which sends an alarm to FDNY only via morse code. Over two-thirds of the c 's street alarm boxes are ERS boxes. 2 the class and found that Defendants' plan to remove the street alarm boxes violated the ADA and RA, but not the equal protection clauses, and enjoined Defendants from executing their removal plan (the "injunction"). Specifi ly, the Court barred Defendants from "carrying out any shutdown, deactivation, removal, elimination, obstruction, or int erence with the existing street alarm box system, and from acting to replace the existing accessible street alarm box system with notification alternatives which are not accessible to the deaf." Civic Association of Deaf v. Giuliani, 915 F. Supp. 622, 639 ----------------------------------------(S.D.N.Y. 1996) ("Civic I"). The Court held that the 911 system existing at time was an inadequate alternat to the street alarm box system "because public telephones [did] not enable the deaf and hearing impaired to request fire assistance directly from the street." Id. Underlying findings: (1) "the Civic I decision were two factual to date has not established 911 is in place and effective," or that telephone location information was reliable establishing the location of public pay telephones; and (2) there was "no evidence" that Defendants had effected a proposed tapping protocol by which 3 E deaf and hearing impaired users of 911 and the street alarm boxes could indicate their need Id. at 638. police or fire/EMS services. The Court left open the opportunity for Defendants to have the injunction modified or vacated "by demonstrating that an accessible notification alternat exists. Among the means by which Defendants can meet this burden will be by demonstrating that E 911 is in operation and effective throughout ty and that a protocol has providing the deaf and hearing impaired wi report a fire." the ability to Id. at 639. The Court also discussed features required to demonstrate that a system meets the ADA, using De developed would be requirements of s' E-911 system as an example: Defendants are correct in asserting that E 911, if operative and effective as proposed, could meet the requirements of ADA. To do so, it would have to provide the hearing impaired with a means of identifying not only their location, but also the type of emergency being reported. The default response currently proposed sending a police car to all silent calls would cause needless delay in the case of a fire. A protocol similar to that currently used when calls are from ERS boxes would provide a means of calling for fire assistance. It would serve to make public telephones serve a similar function to that currently served by ERS and BARS boxes. Several factors, however suggest that the E-911 system does not at present provide an adequate notification 4 alternat First, the evidence to has not established that E 911 is in place and fective. Moreover, assuming that the system has gone on-line as scheduled, there is no evidence that the system functions as projected to identify ef t ly the location of the ephone from which calls are reported. Second, although Defendants luded to a proposed protocol, no evidence has been offered that one has been af ted. To comply with the ADA, Defendants would have to develop such a protocol and disseminate the t of its existence to deaf and hearing impaired. Id. at 638. On June II, 1996, Defendants sought to vacate the injunction, but withdrew that attempt on April I, 1997. Meanwhile, on February 24, 1997, Plaintiffs moved Court to restore two-button alarm boxes in areas where they had been removed or replaced as part of a pilot program before the injunction had been ordered. On July 28, 1997, the Court issued an opinion holding that "one button" emergency alarm boxes 3 violated the ADA and RA and must be converted to "two button" boxes. Association of 352, 363 (S.D.N.Y. 1997) Deaf v. Giuliani, 970 F. Supp. ("Civic 11"). The Court also found the reduced number of boxes in pilot areas did not violate the ADA and RA. Id. In rendering its decision t the Court noted "One-button" emergency alarm boxes did not allow the user to specify whether the emergency required police or fire/EMS assistance. 3 5 that n [t]he question is whether modifying the injunction in this manner is consistent with purpose behind the original relief: ensuring that the City's emergency response system comports with the Plaintiffs' right to equal access under the ADA and the Rehabilitation Act.,,4 rd. at 358. On October 27, 1998, Defendants again sought to vacate or modify the injunction. This motion was withdrawn on May 25, Judgment was entered on January 21, 2000. 1999. Defendants' current motion to vacate or modify the unction was filed on June 23, 2010. Oral argument took place on June 3, 2011. II. Statement of Facts a. Street Alarm Boxes are currently 4,918 BARS and 10,159 ERS boxes in New York ty. ~ Dingman Decl. at 4; Rosenzweig Decl. at ~ 9. For reasons discussed below, the standard to be applied in compliance with the ADA and RA, as clarified in subsequent cases before the Second Circuit, is whether a protected group has "meaningful access," not "equal access," 4 6 ERS boxes have a red button for fire service and a blue button for police service, lowing users to visually recognize and specify the service they need. Decl. at ~~ 9, 14. Dingman Decl. at ~ 5; Rosenzweig ERS boxes put the user in two-way contact with the specified emergency personnel, allowing the user to Dingman Decl. at ~ 5. speak to a dispatcher. When an ERS button is pressed, a tone is emitted and continues until the call is answered. Rosenzweig Decl. at ~ 21. The FDNY requires that calls be answered within ten seconds and that appropriate units are dispatched immediately, and the New York Police Department ("NYPD") also responds to alarm box calls promptly. Rosenzweig Decl. at ~~ 23 24; Dingman Decl. at ~ 13. If a call from an ERS box is not answered within ten seconds, a unit is automatically dispatched to the call site. 13. Dingman Decl. at ~ Up to 32 ERS boxes may be on a single ci t at a time, but only one two-way communication may take place on a given circuit at a time. Dingman Decl. at ~ 14. If a circuit is already being used for a two-way communication, a call from another box on the same circuit will register the second box's location and a unit will dispatched ter ten seconds, but two-way communications cannot occur until the preceding calIon the circuit has ended. Dingman Decl. at ~~ 13-14. 7 BARS boxes have a handle which sends an alarm to the FDNY via Morse code/ but it does not have the capacity for two Rosenzweig Decl. at ~ 9i Dingman Decl. at ~ way communications. 6. When a BARS box is activated/ the FDNY at minimum a ladder company and an engine company to the boxls location. Dingman Decl. at ~ 7. This means that BARS boxes require no communication beyond a lever pull to get emergency fire services to the boxls location. Rosenzweig Decl. at ~ 13. However/ BARS box users cannot specify a need for police services. Street alarm boxes are located at approximately other block on the streets of New York CitYI as well as on highways, terminals, and bridges and in public buildings, schools, hospitals, Nations. Rosenzweig sons, daycare centers, and the United . at ~ 10. When a request for is made using a street alarm box, the location of that box is instantly communica to the dispat , allowing him or her to send emergency units to the box's locat information. Rosenzweig Decl. at 8 ~ 11. without any more The City tests ERS boxes daily to be sure they are in working order. Rosenzweig Decl. at ~ 22. If any box fails the test, a Communications Electrician is immediately requested to inspect the box. Rosenzweig Decl. at ~ 22. defective, it is replaced while it is repai Decl. at ~ 22. If no replacement is If the box is Rosenzweig lable, the box is draped in a sign indicating that it is temporarily out of service. Rosenzweig Decl. at ~ 22. If box is in good condition but has a circuitry problem, it is draped in a sign indicating that it is out of service until it is fixed. Rosenzweig Decl. at ~ 22. To maximize the effectiveness of the system, adjacent boxes are powered by different circuitry. Rosenzweig Decl. at ~ 22. b. The Tapping Protocol The tapping protocol was originally developed in 1996 for use by deaf and hearing impaired persons when interacting with ERS boxes. Dingman . at ~ 9; Guerriera Decl. at ~ 7. The tapping protocol allows users to specify through repeated two-taps or single taps on the receiver whether they need fire or police assistance, ively, though the two-buttons 9 available on an ERS box already allow users to make such a selection by selecting the police or fire services button. Dingman Decl. at ~ 10; Guerriera Decl. at ~ 7; Schroedel Decl. at , 12. Use of the tapping protocol also prevents an ERS call from being deemed "silent," and tapping for fire services is considered a report of a structural fire. 12. Dispatchers have been trained and drilled in the tapping protocol since 1997. ~ Dingman Decl. at , Dingman Decl. at , l1i Guerriera Decl. at 10. Calls in which the tapping protocol is heard by dispatchers are rare. In 2007, only 25 calls to the FDNY were described as "tapping" calls. 21 were malicious false Vecchi Decl. at , 24. Of those arms/ 3 did not require fire services, and one was an actual fire, though the ERS call was the seventeenth call reporting the fire. Vecchi Decl. at ~ 24. In 2008/ 12 calls to the FDNY were designated as "tapping calls." Vecchi Decl. at ~ 25. Of those/ 10 were malicious false one was "unwarranted" and the last was "unnecessary." Decl. at , 25. arms, Vecchi In other words, no tapping call reported an actual emergency in 2008. In 2009, only 6 calls to the FDNY were designated as tapping calls, all of which were malicious 10 se alarms. Vecchi Decl. at , 26. Of course, it is unclear the low amount of tapping calls is due to underuse of street alarm boxes or the population's lack of familiarity with the tapping protocol. The City has made efforts to disseminate protocol through fire safety presentations the deaf, religious organizations, and associated with the hearing impaired. However, the breadth and effectiveness efforts are unclear. tapping to schools for organizations Decl. at " 3-4. these distribution The tapping protocol was not part of the FDNY's fire training efforts until early summer of 2010. Galvin Dep. 18:9-19:6, 31:14 31:25, 46:25-47:23. Although the Mayor's Office for People with Disabilities (MOPD) has a website relating to the use of the tapping protocol on street alarm boxes and public payphones, the Defendants not produced evidence of an effective outreach program Schroedel Decl. at " deaf and hearing impaired. 7, 18. 11 It does not appear that the tapping protocol has ever been tested on public payphones, and the tapping protocol largely failed testing on ERS boxes. Rosenzweig Decl. at ~ 33i Stulberg Decl. at ~~ 69-70. c. Public Payphones When a telephone call comes into the E-911 center, the ANI/ALI database, maintained by Verizon, identifies the number and the address associated with that number. ~ 12. publ Guerriera Decl. at This enables police and fire units to be directed to a payphone's location without the caller needing to report his or her location. In 2009, the ALI/ANI database had an accuracy rate of 99.9998%. Guerriera Decl. at ~ 13. The ALI/ANI database is run by Verizon, meaning that the City must rely on a private provider for up-to date locations of publ payphones. Rosenzweig Decl. at ~ 34. Public payphones are, for the most part, monitored by the New York City Department of Information Technology and Telecommunications ("DoITT"), which manages the phone franchises. Shor Dep. 20:23-21:10. 12 However, the DoITT is not responsible for payphones located in parks, subways, on property, or in public buildings. Shor Dep. 21:12 22:25. All told, the DoITT is responsible for approximately 14,500 phones within its network. Shor 38:17. Inspections of public payphones are made pursuant to outside complaints and DoITT policy considerations. Shor Dep. 53:16-54:23. In general, City does not control the exact number of payphones in the Ci and where they are located, and franchise holders install and remove payphones based on their profitability, though the City can insist that a phone be placed in a certain location for public need. Shor Dep. 65:8 66:25, 157:3-157:15, 162:6 162:20. New York City's public payphones are, the most part, not equipped with devices or services that enable deaf and hearing impai persons to effectively Rosenzweig Decl. at to receive ~ 26. While the NYPD and FDNY are equipped Is placed through Telecommunications Devices for the Deaf (TDDs), no evidence has been payphones emergencies. ed that public the equipment required to make such calls. Furthermore, public payphones are not evenly distributed 13 throughout the City, and their numbers are in decline. Rosenzweig Decl. at ~ 29; Shor Dep. at 69:9 69:13. payphones in the city are damaged and unusable. at ~ Many public Stulberg Decl. 41, Exs. 21 23. When a person uses a public payphone to report an emergency, they must wait for a dial tone on the receiver, place the call, wait for the call to be answered by either a recording or dispatcher, and communicate the form of emergency services required. Rosenzweig Decl. at ~ 31. This is unli ERS boxes, where a user can broadly specify the emergency without speaking by ecting the button Decl. at ~~ 9, 14. the service they need. Rosenzweig Users must rely upon the tapping protocol to communicate their emergency if they cannot speak. For the deaf and hearing impaired, it is not possible to tell if a payphone is working unless it has a TTY light, which indicates sually that the phone is in working order. Sonnenstrahl Dep. 57:1-57:14; Schroedel Dep. 46:16-46:19; Schroedel Decl. at ~ 11. The same problem exists with ERS boxes, as there is no reliable way for deaf and hearing impaired persons to confirm that their call has been answered. 14 Sonnenstrahl Dep. 57:15-58:3; Schroedel Dep. 46:23-46:25. As initially contemplated, deaf and hearing impaired persons would be able to feel vibrations from the ERS box when calling the dispatcher and when the dispat ~ answered (Rosenzweig Decl. at 21), but the City (in open court) and two of Plaintiffs' witnesses have represented that work. vibration system does not Sonnenstrahl Dep. 57:18 57:22; Schroedel Dep. 65:4-65:7. Even so, it has been represented to Court that deaf persons have more faith in the street alarm box system than public payphones, as they can visually speci the services they need and trust the City to maintain the boxes. Schroedel Decl. at ~~ 11, 17. d. The Cost and Use of the Street Alar.m Box System The driving force behind the Cityts attempts to deact the street alarm boxes is cost. in matters of fiscal concern, the New York As is often the case ty Office of Management and Budget (OMB) instigated a review by the FDNY of the use and cost of the street alarm box system in 2009 and 2010. Testimony was presented in 2010 at City Council hearings 15 in support of legislation permitting the removal of the boxes. Stulberg Decl. at ~~ arm 21-26. City has estimated that deactivation of the boxes in 2011 or 2012 would save it $6.3 million. 3. ~ The City expects the annual cost of maintaining the street alarm system to rise to $7 million by 2014. Am. Rush Decl. at ~ Capital costs for the street alarm boxes have been proj 6. to be $24.8 million over the next ten years. ~ Am. Rush Decl. at 7. To put Am. Rush Decl. at se costs into perspective, the annual cost of running a fire station is $1.7 million. Am. Rush Decl. at ~ 8. All told, the estimated annual cost of the street alarm box system for the next 10 years is $8.8 million. ~ 9. The FDNY is facing difficult budgetary Am. Rush Decl. at s, and it would like to redirect the funds currently supporting the street arm box system. s Supp. Rush Decl. at ~ 5. The use emergencies has decl street alarm boxes to report FDNY substantially over the past 15 years.6 It appears that, in proposing to remove the street alarm boxes, the City initially thought mobile phones would be an adequate replacement for emergencies from the street. Stulberg Decl. at ~~ 20-25. 5 6 The statistics provided to the Court through the Vecchi Declaration and attached exhibits only address FDNY incidents (fire and EMS services). While 16 1. at ~ 9, Ex. K. Vecchi Decl. at Ex. Ci Supp. Vecchi In 1999, alarm boxes were used to report FDNY incidents 42,497 Vecchi Decl. at Ex. C. t By 2009, that number had Vecchi Decl. at ~ 8, declined to 12,931 times, a fall of 69.6%. Ex. C. Meanwhile, reporting verbally, through private alarm systems and through telephone calls, increased. Ex. C. In 2009, FDNY emergenc times, dwarfing ~ 8, Ex. C. Vecchi Decl. at were reported by phone 401,056 use of street arm boxes. Vecchi Decl. at Focusing on structural fires, while these serious fires has declined over all number of (Rosenzweig Decl. at 40, Ex. H), the amount of structural fires reported through street alarm boxes has declined from 1,188 2009, a fall 88.2%. Vecchi Decl. at ~ 1999 to 140 in 9, Ex. B. The decl in phone calls reporting structural fires was only 30.7%. Vecchi Decl. at ~ 9, Ex. C. increase in mobile phone usage is a significant factor in trends. Rosenzweig Decl. at ~ 46. Emergencies are most often reported by phone, and the City has promoted calling 911 to report emergencies. Vecchi Decl. at ~ 7, Ex. Ci the statistics suffer from a lack of NYPD data, the FDNY statistics show significant trends in the use of street alarm boxes. 17 ~ Rosenzweig Decl. at ~ 41. of all structural fires, Street alarm boxes report only 0.5% 1.4% of non-structural fires, 0.6% of all non-medical emergencies, and 0.2% of medical emergencies. Vecchi Decl. at the ~ 22. However, the rise mobile phones and significance in reporting emergencies from the street does not suggest that the deaf and hearing impaired, who cannot yet use mobile phones to report emergencies, no longer need street alarm boxes. Rosenzweig Decl. at ~ 46. The decline in the use of street alarm boxes has been steady and significant and cannot be explained by a decline in legitimate emergencies. In 1997, there were 388,947 legitimate fire and medical emergency incidents reported to the FDNY, 8,996 (2.3%) of which were reported through a street alarm box. Vecchi Decl. at medi ~ 9. By 2003, the total number of fire and emergency incidents rose to 403,194, but only 3,918 (1%) of these were reported through street alarm boxes. Decl. at SUpp. ~ 9. In 2010, the trend continued. Supp. Vecchi The number fire and medical emergency incidents rose again to 481,294, while the number reported through street alarm boxes fell further to 1,770 (0.4%). Supp. Vecchi Decl. at ~ 9. Thus, while the number legitimate incidents reported to the FDNY rose by 24% between 18 1997 and 2010, the number of legitimate incidents reported by Supp. Vecchi Decl. at ~ 10. street alarm box declined by 80%. Among the causes for the decline have been the promotion of ternatives to street alarm boxes and a lack of promotion of street alarm boxes themselves. 42. Rosenzwe Decl. at so been in The maintenance of street alarm boxes has decline, with the rate of out of service boxes ing from 1.9% in 2003 to 10.1% in 2008 and 9.4% in 2010. ~ Decl. at 43. ~~ 41 Rosenzweig The result of this trend is not only more boxes being in disrepair, but also the public sense that the boxes do not work. Rosenzweig Decl. at ~ 43. e. Malicious False Alar.ms While the amount ies reported through street alarm boxes has declined s ficantly, street alarm malicious false alarms. 7 boxes are a substantial source In 2009, 2,805 of the 3,102 FDNY incidents received from BARS boxes were malicious false is a 90.4% malicious Ex. D. 7 arms. Vecchi Decl. at se alarm rate. ~ 15, Ex. D. Vecchi Decl. at ERS boxes were not as prone to abuse. ~ 15, In 2009, 1,578 of Malicious false alarms are intentional false reports of emergencies. 19 That the 2,847 FDNY incidents received from ERS boxes were malicious false alarms, a rate of 55.4%. Vecchi Decl. at Ex. D. In 2009, the FDNY responded to 447,639 calls for actual fire/EMS emergenc (that is, all calls that were not malicious se arms) from all reporting sources, among which 911 was the largest. See Vecchi Decl. Ex. D. Of these calls, only 0.4% (1,935 of 447,639) originated from street alarm boxes, and many of those calls were redundant reports. & n.4, Ex. D. ~ See Vecchi Decl. at 10 In all, the street alarm box system is responsible for 2.7% of the incoming calls but 43.3% of malicious false alarms burdening the FDNY. 18, Ex. D. In tot ~ Vecchi Decl. at , nearly 11,000 malicious false alarms came in from street alarm boxes that year. See Vecchi Decl. Ex. D. The malicious false alarm rate for street alarm boxes is 85%, while it is 3.1% Ex. D. As not all other sources. Vecchi Decl. at ~ 19, above, 37 of the 43 "tapping" calls received from ERS boxes from 2007-2009 were malicious false alarms, a rate of 86%, while only one "tapping" call reported an actual emergency in that time, and it was redundant. 27. 20 Vecchi Decl. at ~ Malicious false alarms waste police and fire resources, delay emergency services for actual emergencies, and emergency personnel racing through the streets of New York. Vecchi Decl. at , 21. In other words, malic se alarms carry a risk of serious harm to emergency personnel and the residents of the City. Vecchi Decl. at , 21. In response to high rates malicious false alarms transmitted through street alarm boxes, a silent call from an ERS box between the hours of 8 a.m. and 11 p.m. will only elicit a response from the FDNY under certain circumstances. Decl. at , 8. Dingman If an unintelligible voice is heard on the other end of an ERS box call between 8 a.m. and 11 p.m., emergency services will be sent to the box. Rosenzweig Decl. at , 17. Also, if the tapping protocol is used on the ERS box between 8 a.m. and 11 p.m., the reques to the box's location. emergency services will be sent Rosenzweig Decl. at "18-19. Between the hours of 11 p.m. and 8 a.m., even silent calls will receive immediate emergency Rosenzweig Decl. at , 16. f. Potential Alternatives to the Street Alarm Box System 21 The issues surrounding the use of payphones, E-911, and the tapping protocol are not unique to New York. Research and implementation are going forward on Next Generation 911 ("NG911") and text based emergency reporting. NG911 is an effort to update emergency services in light of increasing use of, and dependence on, wireless and mobile Framework for Next Generation 911 Deployment, 76 2297 (Jan. 13, 2011); U.S. Innovative Tech. Admin., Re Generation 911 (May 6, 2011). See Reg. 2297, 't of Transp., Research and Success Stories: Next As part of the planning efforts surrounding NG911, authorities have recognized that persons with disabilities now use "the Internet and wireless text as their primary modes of telecommunications" and governments are attempt to develop capabilities in voice and data via the Internet. See Nondiscrimination on the Basis of Disability in State and Local Government Services; Accessibility of Next Generation 9 1 1, 7S Fed. Reg. 43,446, 43,446 (Jul. 26, 2010). Some municipalities already accept text based emergency reporting. For example, Sacramento via email from persons with disabilit 43,449. 22 s emergency reporting See 7S Fed. Reg at III. Legal Standard An injunction is an equitable and "ambulatory remedy that marches along according to the nature of a proceeding. II Sierra Club v. U.S. Army Corps of Engineers, 732 F.2d 253, 256 (2d Cir. 1984). As such, it is "subject always to adaptation as events may shape the need. U.S. 106, 114 (1932) 215 (1997) i II United States v. Swift & Co., 286 see also ini v. Felton, 521 U.S. 203, (injunctions subject to change in light of "a significant change in either factual conditions or the law") . Accordingly, a court may modify an injunction to accommodate changed c i rcums t anc e s , D=-.; ;. a:. .,;v:. . ;i:. . ;s=----v.:. . . ;. .~N'-. ¢:. ~-'--_=_::.'_=_.dL_.:=_=_=__==:....;:....;._::..:::.=..::.:::...:.._ ' 2 78 F. 3 d . 64, 88 (2d Cir. 2002), or upon a showing that a continuation of the injunction would be inequitable, N.Y. State Ass'n for ~R~e~t~a~r~d~e=d_C~h i_ld~re~n~v . __~~, __ __ 706 F.2d 956, 967 (2d see also Fed. R. Civ. P. 60(b) (listing the grounds r. 1983) i relief from a final judgment or order, which include when applying the judgment "prospectively is no longer equitable" or "any other reason that justifies relief"). The district court's power to modify or vacate an injunction "is long established, broad, and flexible. II ----"" , 706 F.2d at 967. 23 IV. The ADA and RA Title II of the ADA, 42 U.S.C. § 12101 et seq., provides in relevant part that "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." 504 of the RA, 29 U.S.C. § 42 U.S.C. § 12132. Section 794, similarly provides that" [n]o otherwise qualified individual with a disability in the United States ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance ... " 29 U.S.C. § 794 (a) . Regulations promulgated by the United States Department of Justice to implement the ADA provide that a public entity may not: 24 (1) Deny a qualified individual with a disability the opportunity to participate in or benefit from aid, benefit or service; (2) Afford a qualified individual with a disability an opportunity to participate in or benefit from the aid, benefit or service that is not equal to that afforded others; (3) Provide a qualified in individual with a disability with an aid, benefit, or service that is not as effective in affording equal opportunity to obtain same result, to gain the same benefit, or to reach the same level of achievement as that provided to others; (4) Provide different or separate ds, benefits, or services to individuals with disabilit class of individuals with disabilit or to any than is provided to others unless such action is necessary to provide qualified individuals with disabilities with 25 aids, benefits, or services that are as effective as those provided to others; [or] *** (7) Otherwise limit a qualified individual with a disability in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others receiving the aid, benefit or service. 28 C.F.R. 35.130(b) (1). In addition, 28 C.F.R. § 35.130 provides that "a public entity shall operate each service, program, or activity so that the service, program, or activity, when viewed in its entirety, is readi accessible to and usable by individuals with disabilities .... " 28 C.F.R. Civic I, 915 F. Supp. at 635-36. communications, 28 C.F.R. § § 35.130(a) i In the realm of 35.160(a) provides that "a public entity shall take appropriate steps to ensure that communications with applicants, participants and members of the public with disabilit others." 28 C.F.R. § are as effective as communications with 35.160(a) (quoted in Civic I, 915 F. Supp. at 636). 26 The parties disagree over what standard of access Defendants must meet to comply with the ADA and RA. Defendants cite a "meaningful access" standard, while Plaintiffs cite an "equal access" standard. PI ntiffs have derived the equal access standard from regulations promulgated under the ADA. Specifically, Plaintiffs cite 28 C.F.R. § 35.130(b) (ii), which states that a public entity may not, on the basis of disability, "[a]fford a qualified individual th a disability an opportunity to participate in or benefit from the aid, benef or service that is not equal to that C.F.R. § forded others," and 28 35.160(a), which states that "[a] public entity shall take appropriate steps to ensure that communications with applicants, participants, and members of the public with disabilities are as ef ive as communications with others." The "meaningful access" standard urged by Defendants is found in case law and this Court's prior rulings,S In 8 In the Court referred to an "equal access" standard for compliance with the RA and ADA. 970 F. Supp. at 358. However, the Court's holding required only meaningful access. Defendants were not compelled to provide deaf and hearing impaired individuals with equal means to report a fire from the street, but readily accessible, effective means to do so. . at 361; , 915 F. Supp. at 635 36. In other words, Defendants were =-=-=-=---= ordered to continue to provide meaningful access to the same emergency services. 27 , 331 F.3d 261, 275 Henrietta D. v. BI ----------------------------= (2d Cir. 2003), the Second Circuit held that the relevant measure is "whether the pI with disabilities could achieve meaningful access." if , Lonberg v. City of Riverside, 571 F.3d 846, 851 See also, r. 2009) (9th (stating that Title II's "prohibition against ion is universally understood as a requirement to provide 'meaningful access'll and citing cases); Iverson v. Ci of Boston, 452 F.3d 94, 99 (1st Cir. 2006) of t ("The clear purport II is to guarantee that qualified disabled persons access to public services, programs, and enjoy activit ¢ II ) 304 (1985) i see ---------"'-----------"- Alexander v. Choate, 469 U.S. 287, In formulating the meaningful access standard, the Supreme Court that had a i tly rejected the position that all conduct impact on disabled persons violated the Rehabilitation Act, noting "two powerful but countervailing considerations objectives and the bounds." ire to keep § 504 within manageable Alexander, 469 U.S. at 299. standard thus struck a goals. to give effect to the statutory The "meaningful access" ance between these two legitimate See Id. at 299-301. 28 To the extent that the regulations cited by Plaintiffs require equal access, rather than meaningful access, public programs, they would not be enforceable. Sandoval, 532 U.S. 275, 285 (2001) 9 See Alexander v. Abrahams v. MTA i Island Bus, 2011 U.S. App. LEXIS 9450, at *20 (2d Cir. May 5, 2011) (explaining that under Sandoval, a plaintiff must show that a "regulation applies - but does not expand - the statute"); Iverson, 452 F.3d at 100 (noting that "regulations that interdict a broader swath of conduct than the statute itself prohibits" cannot be enforced under Sandoval Supreme Court addressed Department of Just promulgated to effectuate § In Sandoval, the regulations tIe VI of 601 of Civil Rights Act of 1964, which forbids only intentional discrimination. See 532 U.S. at 278, 280. Because the regulations at issue proscribed activities that had a disparate impact on racial groups, "forbid [ding] conduct that § 601 permits," the Supreme Court held that the regulations were unenforceable. Id. at 285. Case law stresses that the ADA and RA do not require equal results. The ADA and RA prohibit discrimination against 9 The Court does not hold, and need not hold, that the regulations relied upon by Plaintiffs require equal access as opposed to meaningful access. 29 the disabled in the provision of public services t but the statutes neither guarantee "any particular level of ces] for disabled persons, nor assure maintenance of service previously provided." ¢ --=-- t Lincoln CERCPAC v. Health and Hosps . 147 F.3d 165 t 168 (2d Cir. 1998). In addition t the statutes do not guarantee disabled persons "equal results" from the provision of a publ U.S. at 304 service or bene t. Alexander t 469 ("The [Rehabilitation] Act does not, however t guarantee the handicapped equal results from the provision of state Medicaid t even assuming some measure of equality of health could be constructed."); see also Henrietta D. t 331 F.3d at 274 (stating that Second Circuit cases applying the RA "speak simply helping individuals with disabilities access public in terms benefits to which both they and those without disabilities are legally entitled ... ; the cases do not invite comparisons to the results obt by indivi s without disabilities") . Plaintiffst arguments for a stricter "equal access" standard thus fail t and Defendants t proposed removal and replacement the street alarm system will be analyzed under a "meaningful access" standard. 30 Standards under and requirements imposed by the RA and the ADA are effectively same, and claims under the two statutes are generally treated identically and in tandem. ~, See, Henrietta D., 331 F.3d at 272. V. Discussion Defendants claim that systems meet the requirements court's prior holdings. tapping protocol and E 911 the ADA and RA and satisfy s They do not, and the injunction should not be lifted based on equitable considerations. a. efendants Have Failed to Satisfy the Court's Prior D Holdings Defendants contend that the tapping protocol and E 911 provide deaf and hearing impaired persons with an "accessible notification alternative" for reporting emergencies from the street, Civic I, 915 F. Supp. at 639, as E-911 and the tapping protocol "provide the hearing impaired with a means of identifying not only their location, but also the type of emergency being reported." Id. at 638. According to Defendants, E 911 automatically provides the location 31 information of callers who contact 911 via public payphones, and the tapping protocol permits deaf and hearing impaired callers to indicate whether they are requesting fire/EMS or police assistance. (Guerriera Decl. at Dingman Decl. at ~ ~~ 7, 12 & Exs. E-1-E-3; 10 & Ex. A). Defendants have demonstrated the ANI-ALI database, through which caller identification and location information is obtained, to be accurate over 99% of the time and have pointed to procedures in place to maintain that accuracy. Guerriera Dep. 23:6-24:11, 32:7-33:24, 34:9-17; Guerriera Decl. Public payphones are included in the database. ~ 13. Guerriera Dep. 16:9-16:21. Defendants have also shown that a tapping protocol has existed for emergency reporting on street alarm boxes since 1996, with NYPD and FDNY call takers trained in the protocol. Defendants have also established that a similar tapping protocol exists for public payphones. According to Defendants, street alarm box calls are indistinguishable from, and treated as, E 911 calls (Guerriera Dep. 13:17-21), and call takers are trained to handle tapping protocol calls in exactly the same way, 32 whether originating from street alarm boxes or from public payphones (Guerriera Dep. 130:4-10, 134:8 15; see also era Decl. ~ 8 & Exs. E-2 & E-3 annexed thereto (NYPD Communications Section Memorandum requiring PCTs to recognize and properly handle tapping protocol calls, whether received from ERS boxes or from telephone calls to E-911)). c I, In - - - - the Court held as follows: s may unction notificat which De apply at any time to dissolve or modify by demonstrating that an accessible ternative exists. Among the means by s can meet this burden will be by that E-911 is in operation and effective throughout City and that a protocol has been developed providing the deaf and hearing impaired with the abili to a fire. 915 F. Supp. at 639; see also Civic II, 970 F. Supp. at 355 (" [A]n E 911 telephone system that actually identified the location of the caller, protocol to permit the ong with the implementation of a impaired to indicate the type of emergency being reported, would be sufficiently accessible under the ADA. ") When the City's current alarm boxes was proposed 2010, 33 to eliminate the street changed circumstance was considered to be the use of I phones. When this motion was led! the Defendants relied on public payphones. However! in practice, public payphones and the tapping protocol do not combine to establish an adequate accessible ternative to street alarm boxes! and they do not constitute a changed circumstance. Defendants claim that a call with tapping allows a deaf or hearing impaired user to specify the needed form of service, police or fire/EMS! and Defendants indicate that FDNY dispatchers and NYPD call-takers are famil trained in the tapping protocol. with and regularly However! Defendants have not adequately demonstrated that the proposed alternative works. The record reveals that public payphones are more akin to the one-button street alarm boxes deemed inadequate in Civic II. Deaf and hearing impaired persons may use the payphones to call! but they cannot specify the type of emergency without either speech or the tapping protocol. This is in stark contrast to the two-button ERS boxes, where the user can see his or her emergency service options and select one by pressing the appropriate button. The tapping protocol is supposed to allow users to specify police or fire emergencies, but publ payphones have not been tested with the tapping protocol. 34 Guerriera Dep. 98, Doc. 106-4, May 27, 2011; Dingman Dep. 56, Doc. 106-2, May 27, 2011i Rosenzweig Decl. at 33. Furthermore, public payphones are privately owned and operated, and the number of public payphones has declined substantially over the last 15 years. Public payphones are not located on every other corner (like street alarm boxes) or otherwise distributed evenly throughout the City. payphones are distributed and In fact, the pursuant to the commercial interests of their owners, with the City having little say over the phones' locat not established that public pay Thus, Defendants have ephones will make E-911 operational and effective throughout hearing impaired persons. This is City for deaf and icularly so going forward, as Defendants offer no basis from which the Court may conclude that the number of payphones will not continue to decline in the face of competition from mobi phones. This renders the payphones an unstable solution. Plaintiffs have also demonstrat many payphones not been maintained in good condition by private owners. The City is unable to sufficiently police 35 maintenance and repair public payphones, as it concedes that it has only a handful of inspectors who tend to focus on phones with histories of failure. 1o public payphones cont with di Neither City nor the owners of s whether those devices are provided tones by third-party providers on any given day, thus aggravating the dispersion private actors. responsibility among the City and Also, as noted above, because public pay telephones are privately owned, their installation, removal, upkeep and location are subject to financial, not public safety, considerations. Stulberg Decl. ~~ 37 39. All of these issues stemming from payphone ownership and maintenance are aggravated for a deaf or hearing impaired person. If a deaf or hearing impaired ler can find a public pay telephone that is not visibly damaged or missing parts, that caller has no way of knowing if the telephone has a dial tone, if s or her 1 has been answered by a recording, by an operator or at all, and has no way operator communicating with the the absence of a tapping protocol that has been This practice helps contribute to the DoITT's finding that 17-25% of payphones are inoperable, which remains disconcerting even if one accounts for the repeated inspection of troublesome phones. Whether or not inoperability rates of public payphones for emergency use are inflated, the problem is significant. 10 36 developed, disseminated and tested on such devices. Decl. at ~ IIi Rosenzweig Decl. at ~~ 31, 33. Schroedel Significantly, a broken payphone appears and acts no differently from a working payphone from persons. ive of deaf or hearing impaired Schroedel Decl. at Defendants ~ 11. aim street alarm boxes are no better at indicating to a deaf or impaired person that they are working and have made contact with a dispatcher. to be true. 58:3. This appears Schroedel Dep. 64:5 65:7; Sonnenstrahl Dep. 57:15 However, this argument s key fact that public payphones are less reliable than street alarm boxes, making the issues arising from failures to connect more troubling. Furthermore, ERS boxes allow the user to select a police or fire connection, making them less dependent on the tapping protocol which must occur once a call taker has answered the call. Defendants must not only develop a meaningful alternative, but they must udisseminate the fact of its existence to the deaf and hearing impaired." Supp. at 638. Civic I, 915 F. Information about the payphone tapping protocol system is being distributed to the deaf and hearing impaired 37 population in New York City through resources available on FDNY and NYPD websites, as well as the website maintained by MOPD. Defendants further claim that instructional materials are e on Youtube and Wikipedia. I Defendants also cite eight ous, educational, and community organizations which serve the deaf and hearing impaired and for which demonstrations of the tapping protocol were made. However, See Galvin Decl. at ~~ 3-4. s have not demonstrated that this information, which is most part passively available on the Internet, is actually deaf and hearing impaired persons so as to make its dist ion effective. To cont , Defendants have not conducted sufficient outreach to places where the deaf and hearing impaired community would be more likely to obtain information. See, e.g., Galvin Dep. 18:9 19:6, 31:14 31:25, 46:25-47:23 (indicating that the FDNY did not include the tapping protocol in fire emergency training 2-3, 4, 10-11. to 2010) To take an i Plummer Decl. at endants have not posted any notices about the tapping protocol on the payphones themselves. ~~ Without sufficient ion on the tapping protocol, the deaf and hearing impai 38 community is left to assume that standard payphones are not accessible to Without such outreach, tapping protocol cannot be deemed effective, and the factual circumstances in this case have not changed sufficiently to merit withdrawal the injunction. b. The E-911 and Tapping Protocol System Does Not Provide Meaningful Access to Emergency Service from the Street Under the ADA and RA As noted above, tIe II of the ADA, 42 U.S.C. § 12132, provides that "no qualified individual with a disability I, by reason such disabil participation in or be denied the benefits the services, programs or activities of a public entity." Civic I, 915 F. Supp. at 634. similar protection of qualifi The RA provi persons. , be excluded from 42 U.S.C. § 12132; for substant 29 U.S.C. § ly 794. There is no dispute that deaf and hearing impaired persons are qualified individuals under the ADA and RA. The "meaningful access" inquiry under which ADA and RA claims are evaluated asks "not whether the benefits available to persons with di lities and to others are actually equal, but whether those with disabilities are as a practical matter able to access benefits to which they are legally entitl 39 TI Henrietta D., 331 F.3d at 273. measured or defined in "Meaningful access" is not ion to the access that persons without disabilities have to a particular service, nor relate to the adequacy See rd. at 275 ces provided. iffs (noting that the relevant measure is "whether the pI with disabilities could achieve meaningful access, and not whether the access the plaintiffs had (absent a remedy) was less meaningful than what was oyed by others"} Giuliani, 230 F.3d 543, 548 (2d Cir. 2000) i v. (explaining that the disabilities statutes require that government entities enable "'meaningful access' to such services as may whether such services are adequate or not"). provided, Rather, persons with disabilities must be able to "benefit meaningfully" from the specific provides. ce or benefit that a government entity See exander, 469 U.S. at 302. Defendants fail to meet this standard. Defendants claim that the E 911 system with tapping protocol provides deaf and hearing impai persons with the required meaningful access to emergency reporting services on the street. Defendants argue that this case is like Alexander, in which Tennessee's proposed reduct 40 , from twenty to fourteen t of the number of days its state Medicaid program would cover inpatient hospital care was challenged. In that case t 469 U.S. at 289. it was undisputed that Medicaid recipients with disabilities who used hospital services were more than three times as likely to require more than fourteen days of care than were their non-disabled counterparts. See Id. at 289-90. A recipients with disabilities class of Tennessee Medi challenged the proposed reduction on the grounds that reduction would have a disproportionate effect on them and was thus discriminatory. See Id. at 290. The Supreme Court rejected the challenge t finding that Tennessee Medicaid recipients with disabilities would still be able lito benefit meaningfully from the coverage they will receive under the 14 day rule t ll notwithstanding for prolonged inpatient care. II Id. at 302. 11 ir greater The Court explained that Section 504 of the Rehabilitation Act did not require the State to alter the fourteen day coverage benefit being offered IIsimply to meet the reality that the handicapped have greater medical needs ll t Id. at 303, but that the statute instead IIseeks to assure evenhanded treatment and the opportunity for handicapped individuals to participate in and 41 benefit from programs receiving federal assistance," Id. at 304. Thus, although the proposed reduction fell more heavily on individuals with disabilities than it did on others, because the reduction "is neutral on its face, is not alleged to rest on a discriminatory motive, and does not deny the handicapped access to or exclude them from the particular package of Medicaid services Tennessee has chosen to provide," it did not violate the Rehabilitation Act. Id. at 309. Following Alexander, Defendants argue that, to the extent that Defendants' proposed removal of the street alarm boxes would be a reduction in the emergency reporting service being offered to deaf and hearing impaired persons, the remaining E-911 system and ANI-ALI database when used with the tapping protocol will continue to provide those persons "meaningful access" to emergency services. Defendants contend that deaf and hearing impaired individuals will still have an effective and accessible means of directly reporting emergencies to 911 from the street via public payphones and will be able to "benefit meaningfully" from the E-911 system that will remain available. Therefore, the argument goes, removal of the street alarm boxes will not violate the RA or the ADA. 42 See rd. at 302, 309i see also, e . . , Wright, 230 F.3d at 548 (stating that the disabilities statutes require government entities "to enable 'meaningful access' to such services as may be provided") . Defendants also point to the Court's holding in Civic II, which found that a street reporting system with less alarms did not violate the ADA. 970 F. Supp. at 362-63. In that decision, this Court held that the relevant legal question was whether the thinning of the system resulted in an emergency reporting system that was "readily accessible" to the deaf and hearing impaired, and not, as Plaintiffs had argued, whether the system was "less accessible to the deaf than the non-deaf." See Id. at 361. Therefore, the inquiry focused on access and usability, as opposed to "equal results." See Id.; see generally Alexander, 469 U.S. at 304. Defendants point out that there are roughly an equal number of public payphones and street alarm boxes in the city (15,077 alarm boxes and over 14,500 payphones). However, as found above, the distribution of payphones is not even and is determined by commercial need, not the requirements of an emergency reporting network. In addition, the number of 43 payphones is in decline, and payphone removals will be determined primarily by their owners' commercial interests. Defendants also contend that payphones are a superior option to BARS boxes, which only connect services. lers to FDNY This argument suggests that BARS boxes should be replaced by ERS boxes, which are, for the reasons discussed above, superior to public payphones and already ef tively implemented across the city. As ained above with regard to Defendants' failure to satisfy this Court's prior rulings, and unl in Alexander, public payphones, E 911 and the tapping protocol do not provide an accessible ternative for deaf and hearing impai attempting to report an emergency from the street. a scaling down persons Rather than s benefit to a still meaningful level, the removal of street alarm boxes and their replacement with payphones, E-911, and tapping protocol constitutes a deprivation of a benefit provided to non-hearing impai persons. 44 It has already been found that Defendants have not demonstrated that the tapping protocol works on public payphones, the City does not have sufficient control over ion and maintenance of public payphones (and there are demonstrated problems with the distribution and funct ity of public payphones), and information on the payphone and tapping protocol system has not been sufficiently disseminated deaf and hearing impaired community to be the Based on these findings, the Court concludes that deaf and hearing impaired persons do not have "meaningful access" to emergency services from the street without the street arm box system. Therefore, Defendants' proposed removal of system would violate the ADA and RA. g. efendants Have Not Satisfied the Requirements to Modify D or Vacate a Permanent Injunction on Equitable Grounds As noted above, among reasons a court may modify an injunction is when its applicat "is no longer equitable" or to accommodate changed circumstances. 60(b) (5). Fed. R. Civ. P. In other words, a party must show "a significant change either in conditions or in law." Felton, 521 U.S. 203, 215 (1997) i 45 Agostini v. see also, e.g., Davis v. N.Y. Ci Rous. Auth. 278 F.3d 64, 88 (2d Cir. 2002); Sierra Club v . U.S. Army Corps of Eng'rs, 732 F.2d 253, 256 (2d (noting that "in the case the inquiry . . 1984) a final or permanent unction, . is whether there has been such a change in the circumstances as to make modification of the equitable ll ) ¢ While Defendants have shown that some of the factual circumstances surrounding the injunction have changed, they have not established that the injunction is now Defendants cite the implementation table. E 911 and the tapping protocol; however, as discussed above, those changes have not rendered payphones and the tapping protocol sufficiently accessible to deaf persons to prior rUlings. ter the Court's Therefore, the "implementation" of this system constitutes no change at all. As found above, FDNY statistics indicate that the street alarm box system generates only a small percentage of legitimate calls for assistance, while burdening the City's emergency response system with a disproportionate number of false alarms. 46 The declining use of the street alarm box system compared with 911 and other sources has escalated over the past decade, and malicious false alarms now comprise the vast majority of calls made via street alarm boxes. By comparison, only about 3% of the total calls from non-alarm box sources in 2009 were malicious false alarms. See Vecchi Decl. Ex. D. However, while the malicious false alarm problem is significant, the FDNY has already acted to address it. The FDNY does not respond to silent calls made between 8 a.m. and 11 p.m. on ERS boxes. In Civic I, the Court noted that, number of rescues "a significant [were] effected as a result of street reporting [from alarm boxes] .11 915 F. Supp. at 635. The statistics presented by Defendants indicate that street alarm boxes playa much less significant role in overall emergency reporting today. At the same time, the permanent injunction is not in place to signify the importance of street alarm boxes In the overall emergency reporting system, in which mobile phones now appear to be most useful to the general population. Instead, the injunction recognizes that the deaf and hearing 47 impaired rely upon street alarm boxes to report emergencies from the street, a reality which Defendants' statistics do not refute. The deaf and hearing impaired represent a small segment of the population, and the overall decline in the use street alarm boxes does not establish that the system has become less vital to them. Defendants argue that deaf and hearing impaired persons do not use the street alarm system, claiming that in the past three years, the FDNY has received 43 Is in which some form of tapping was perceived, of which 37 (86% of such calls) were determined to be malicious false alarms. Only one tapping call reported an actual fire, and that call was the seventeenth report received. Vecchi Decl. at ~ 27. While these statistics suggest that legitimate calls using a tapping protocol are rare, they do not establish that deaf and hearing impaired persons are not using street alarm boxes to report emergenc they are not using the tapping protocol. , just that These statistics do not establish that deaf and hearing impaired persons no longer need street alarm boxes to report emergencies from the street. 48 In connection with the utility boxes I the Defendants point out its cost the street alarm l as found above. Defendants contend that these costs impact the FDNY budget and imply that fewer firefighters are being hired. Defendants raise these points l Though they do not claim that they are eligible for the "undue burden" exception to ADA and RA. The cost of the alarm box system is undisputed but does not constitute changed circumstances meriting a change the permanent injunction. The Court is sympathetic to the burdens imposed by the expensive I false report-prone street alarm box system. s case is living proof of the idiom that "no good deed goes unpunished." The City/s efforts to bring emergency services to more people now require it to maintain those services in to provide deaf and hearing impaired persons meaningful access to report emergencies and to comply with the ADA and RA. injunction remains an equit In the future l solution. given the use of text-based communications in the deaf and hearing impa community allowing emergency reporting with mobile devices via text 49 I message or email may obviate that community's need for street alarm boxes to report emergencies from the street. that alternat Regrettably, is not yet at hand. Concl.usion Based upon the facts and conclusions set forth above, Defendants' motion to vacate or modi is denied. It is so ordered. 1-", New York, NY November 2011 50 the permanent injunction
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