FOR THE DISTRICT OF COLORADO Civil Action No. 16-cv …...Jan 24, 2019 · Civil Action No. 16-cv-02691-WYD-SKC JODIE ADAMS-CHEVALIER, TIMOTHY CHEVALIER, ZACHARY ENGSTLER, and CARTER

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 16-cv-02691-WYD-SKC JODIE ADAMS-CHEVALIER, TIMOTHY CHEVALIER, ZACHARY ENGSTLER, and CARTER ENGSTLER, by and through his parent and next fried JODIE ADAMS-CHEVALIER,

Plaintiffs, v. TONY SPURLOCK, in his official capacity as Sheriff of Douglas County, Colorado,

Defendant.

DEFENDANT’S RESPONSE TO PLAINTIFFS’ REVISED MOTION FOR PARTIAL SUMMARY JUDGMENT ON LIABILITY

Defendant, Tony Spurlock, in his official capacity as Sheriff of Douglas County,

Colorado (“Sheriff”), by and through the Douglas County Attorney, hereby submits his response

in opposition to Plaintiffs’ Revised Motion for Partial Summary Judgment on Liability (Doc. No.

123, the “Motion”).

INTRODUCTION

Plaintiffs’ Motion focuses largely on the issue of whether or not the circumstances

alleged in the Third Amended Complaint constitute an “emergency” under 28 C.F.R. § 35.160.1

In doing so, Plaintiffs claim there are no material issues of fact notwithstanding their knowledge

that the factual question of whether an emergency existed is hotly contested in this case.

Case 1:16-cv-02691-WYD-SKC Document 165 Filed 01/24/19 USDC Colorado Page 1 of 32

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Plaintiffs also insist that Defendant failed to provide effective communication but, in doing so,

ignore the factual circumstances surrounding the parties’ communications. Critically, Plaintiffs

ignore their obligation to establish that Defendant acted with deliberate indifference in order to

establish liability for damages. Instead, “Plaintiffs concede that Defendant provided training . . .

and had policies in place . . . designed to comply with the laws at issue[,]” (Doc. No. 123 at 2),

but claim that the occurrence of a single alleged violation alone somehow establishes that

Defendant acted with deliberate indifference. That is not the law. Contrary to Plaintiffs’

assertions, the undisputed facts at this stage do not entitle Plaintiffs to partial summary judgment

on liability as a matter of law, and Plaintiffs’ Motion must be denied.

RESPONSE TO MOVANTS’ MATERIAL FACTS

1. Undisputed for purposes of the Motion only.

2. Disputed. First, this assertion calls for a legal conclusion. Second, the record

does not support the assertion. Deputy Nicolas Arnone and Deputy Charles Curry responded to

the 9-1-1 call at Plaintiffs’ residence on November 2, 2014, and upon arrival and after initially

speaking with Plaintiff Chevalier, Deputy Arnone was informed by Mr. Chevalier that Ms.

Adams-Chevalier and Mr. Engstler are deaf. (Ex. 1, Arnone Aff., ¶¶ 4, 12.) Deputy Arnone was

not aware that Ms. Adams-Chevalier and Mr. Engstler had been identified as deaf until after he

arrived at the Chevalier Residence. (Id. at ¶ 12.)

3. Undisputed that these are partial quotations. However, the quotation in 3.j. omits

“or auxillary service” from the quotation so as to improperly suggest that only a qualified

interpreter may be provided when that is not the case, and the quotation in 3.k. omits the express

1 Plaintiffs’ Motion was filed in March 2018, before the Court ruled on Defendant’s Motion to Dismiss Plaintiffs’ Third Amended Complaint. Defendant has not addressed issues regarding Plaintiffs’ claims for injunctive relief in


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clarification that the Policy is not intended to be exhaustive by opening with “Although not every

situation can be addressed within this policy….”

4. Undisputed.

5. Disputed. The pages of the training slides referenced (pp. DCSO 138, 151, 168,

180, 182, 183, 186, 191, 196 and 200) do not set out “requirements” regarding contacting a sign

language agency or legally certified sign language interpreter or “requirements” regarding how

to do so and Timothy Chevalier’s presentations only include DCSO 151, DCSO 196 (a cover

page), and DCSO 200 from that list; of those three pages, only DCSO 151 addresses the

identified topics and that slide merely provides a link and pathway to “find Colorado’s list of

Legally Certified Interpreters[.]”

6. Disputed. Deputies Curry and Charles J. Nunley engaged in only brief

conversation with Plaintiff Carter Engstler, lasting only a matter of minutes, and which was

limited to the Deputies gathering information as to his observations and generally gathering

information regarding what had occurred and who may have been hurt. (Ex. 2, Nunley Aff., ¶¶

9-11.) When Plaintiff Adams-Chevalier wrote a note to the Deputies requesting they stop talking

to Plaintiff Carter Engstler, the Deputies stopped speaking with him. (Id. at ¶¶ 14-15.) The

Deputies did not use or attempt to use Plaintiff Carter Engstler as a translator to conduct any

witness interviews. (Id. at ¶¶ 12-13; see also Ex. 1, Arnone Aff., ¶¶ 16-17.)

7. Defendant does not dispute that Jodie Adams-Chevalier requested an American

Sign Language interpreter, but she was the one who directed a request to the Deputies at the

Chevalier Residence, not Mr. Chevalier or Zachary Engstler. (See Ex. 1, Arnone Aff., ¶ 15; Ex.

2, Nunley Aff., ¶ 14.) Additionally, without waiving any objections to the admissibility of

light of the Court’s dismissal of those claims.


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Exhibit C, Defendant disputes the characterization that “Deputy Arnone’s Case Narrative admits

‘Jodie and Zachary both deaf and requested an American Sign Language Interpreter.’” (emphasis

added.) Deputy Arnone’s Case Narrative does not indicate one way or the other whether the

quoted language reflects his own beliefs or something he was told, and Plaintiffs’ counsel has no

personal knowledge about the quoted statement.

8. Disputed. The Chevalier Family Members were not interviewed until November

26, 2014, and the Deputies promptly made efforts on November 2, 2014 to contact an American

Sign Language Interpreter after the scene was secure and there were no further safety or welfare

needs to attend to. (Ex. 2, Nunley Aff., ¶ 18; Ex. 4, Duffy Aff., ¶¶ 6-7, 9-11; Ex. 5, 11/26/14

Interview Recordings.) The Deputies did not use any victims or witnesses to translate for

purposes of interviewing another victim or witness. (Ex. 1, Arnone Aff., ¶ 16-17; Ex. 2, Nunley

Aff., ¶ 12-13.)

9. Disputed. Deputy Nunley contacted dispatch at 3:37 p.m. to obtain a qualified

sign language interpreter as he was in the field and did not have ready access to the means to

obtain an interpreter. (Ex. 2, Nunley Aff., ¶ 19, 21, 23; see also Ex. 6; Ex. 1, Arnone Aff., ¶ 19.)

Deputy Arnone, who was en route to the hospital, then assumed the task of continuing to work

on obtaining an interpreter, and Deputy Nunley returned to patrol. (Ex. 2, Nunley Aff., ¶ 22.)

Consistent with DCSO policy, Deputy Arnone spoke with the shift supervisor at dispatch while

driving to the hospital. (Ex. 1, Arnone Aff., ¶ 20.) Deputy Arnone was informed that dispatch

checked internally for interpreters, as well as contacting the Colorado Bureau of Investigations

but that neither avenue had yet been successful. (Id.) Dispatch also contacted Sky Ridge

Hospital, the location where Plaintiffs would be arriving, to inquire as to whether the hospital

had any qualified sign language interpreters. (Id. at 21-22; see also Ex. 8.) Deputy Arnone


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believed that if the hospital had a qualified interpreter that would be the fastest option to secure

interpreter services. (Ex. 1, Arnone Aff., ¶ 21.) The hospital did not have any interpreters

qualified for law enforcement work. (Id. at ¶ 23.)

Defendant disputes the assertion set forth by Plaintiffs that “[i]n stead of contacting a sign

language interpreting agency or a legally certified sign language interpreter, as is required by the

ADA and Defendant’s own Policy….” This statement calls for a legal conclusion. In addition, it

mischaracterizes the requirements of the ADA and internal policy, neither of which specify how

an entity must go about securing a qualified sign language interpreter. Furthermore, dispatch and

the Deputies worked consistently to obtain a qualified interpreter while Plaintiffs were en route

to the hospital via ambulance.

Upon not having success securing an interpreter internally, through the Colorado Bureau

of Investigation or through the hospital, dispatch provided Deputy Arnone with a list of agencies

to contact to continue to work to obtain an interpreter. (Ex. 1, Arnone Aff., ¶ 24.) The first call

Deputy Arnone made to an agency from the list was to 24 Hour Sign Language Service and was

informed they would check on availability of an interpreter qualified to work with law

enforcement and contact him back. (Id.)

10. Undisputed for purposes of this Motion only.

11. Defendant does not dispute the mileage between Fort Collins, Colorado to Sky

Ridge Medical Center as depicted on Plaintiffs’ Exhibit JJ. Defendant does however dispute the

implied conclusion Plaintiffs ask the Court to make with Exhibit JJ. (See Doc. No. 119 at ¶¶ 11-

12.) The record does not contain information regarding the exact location the 24 Hour

interpreter was to depart from, “Fort Collins” is a general location description. The record also

does not contain information regarding traffic conditions, particularly on Interstate-25, on the


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evening of November 2, 2014, nor is travel time between locations, especially unspecified

locations, a fact whose accuracy cannot reasonably be questioned. Any correlation between the

distance and times depicted on Exhibit JJ are not evidentiary support for the distance and times

for 24 Hour’s interpreter to travel from their location in the Fort Collins area to Sky Ridge

Medical Center on the evening of November 2, 2014, and any conclusion to that effect is

speculation. Defendant therefore objects to the Plaintiffs’ request for the Court to take judicial

notice of Exhibit JJ.

12. Disputed. Deputy Arnone was informed shortly before 4:45 p.m. by a

representative from 24 Hour that their Denver Metro area ASL interpreter had been needed in

Fort Collins, Colorado and would need approximately two hours to get to Sky Ridge Hospital.

Furthermore, Deputy Arnone was the one providing updates to the Chevalier family on

November 2, 2014 about the anticipated arrival time of the interpreter and he conveyed the 2

hour expectation that he had been given. (Ex. 1, Arnone Aff., ¶ 25.)

13. Disputed. Defendant disputes that the statement made in Plaintiffs’ Exhibit W is

an “admission.” Deputy Arnone provided updates to the Plaintiffs, including updates regarding

the timing of a qualified sign language interpreter to arrive. (Ex. 1, Arnone Aff., ¶ 27.)

14. Undisputed.

15. For purposes of this Motion only, Defendant does not dispute the time of the 911

call or the time at which Mr. Chevalier arrived at the hospital. Defendant disputes the arrival

time of the deputies at the Chevalier Residence; they did not all arrive together. (Ex. 1, Arnone

Aff., ¶ 4; Ex. 2, Nunley Aff., ¶ 4.).

16. Disputed. While Plaintiffs’ Paragraph 16 irrelevant, it is also inaccurate in that

Defendant’s last filed motion to dismiss prior to the filing of the Motion does not have any


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documents attached. as a mischaracterization of the record. Deputies Nunley and Arnone were

in contact with dispatch to obtain a qualified sign language interpreter and inquiries were made

internally, to the Colorado Bureau of Investigation and to Sky Ridge Hospital as to the

availability of an interpreter. (Ex. 2, Nunley Aff., ¶¶ 18-19, 21-23; Ex. 1, Arnone Aff., ¶¶ 19-

24.) Deputy Arnone was in contact with 24 Hour for interpreter services and was informed that

an interpreter would be available later that evening. (Ex. 1, Arnone Aff., ¶¶ 24-25.) Deputy

Arnone was further informed by 24 Hour that it was difficult to find ASL interpreters that were

qualified to work with law enforcement. (Ex. 1, Arnone Aff., ¶¶ 25, 27, 32.)

17. Undisputed for purposes of this Motion only.

18. Disputed. The assertion made by Plaintiffs regarding the timing and availability

of 24 Hour’s interpreter in Paragraph 18 is not supported by the record and call for speculation.

The record does not contain information regarding the exact location the 24 Hour interpreter was

to depart from, “Fort Collins” is a general location description. The record also does not contain

information regarding traffic conditions, particularly on Interstate-25, on the evening of

November 2, 2014, nor is travel time between locations, especially unspecified locations, a fact

whose accuracy cannot reasonably be questioned. Any correlation between the distance and

times depicted on Exhibit JJ are not evidentiary support for the distance and times for 24 Hour’s

interpreter to travel from their location in the Fort Collins area to Sky Ridge Medical Center on

the evening of November 2, 2014, and any conclusion to that effect is speculation. Defendant

therefore objects to the Plaintiffs’ request for the Court to take judicial notice of Exhibit JJ.

19. Disputed. Deputy Arnone was informed shortly before 4:45 p.m. by a

representative from 24 Hour that their Denver Metro area ASL interpreter qualified for law


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enforcement work had been needed in Fort Collins, Colorado and would need approximately two

hours to get to Sky Ridge Hospital. (Ex. 1, Arnone Aff., ¶ 25.)

20. Disputed. Deputy Arnone was told by the 24 Hour representative that ASL

interpreters that were qualified to work with law enforcement were not widely available. (Ex. 1,

Arnone Aff., ¶¶ 25-27, 32.) In addition, the Deputies were not aware Plaintiffs Adams-Chevalier

and Zachary Engstler were deaf when they first arrived at the apartment complex. (Ex. 1,

Arnone Aff., ¶ 12; Ex. 2, Nunley Aff., ¶ 6.) Further, the Deputies and dispatch pursued

numerous avenues on November 2, 2014 to obtain a qualified sign language interpreter before

being informed by 24 Hour that they had an interpreter qualified to work with law enforcement

available. (Ex. 1, Arnone Aff. ¶¶ 19-25; Ex. 2, Nunley Aff., ¶¶ 18-19, 21-23.)

21. Defendant does not dispute that Timothy Chevalier reported during his 911 call

that Joshua Engstler had left the Chevalier Residence or that, when Deputies Curry and Arnone

arrived at the apartment and performed a protective sweep, they did not find Joshua Engstler in

the apartment, but Defendant disputes the statement to the extent disputed Defendant and his

employees should not and could not ignore their training, endanger their own safety and that of

others in the apartment and assume that Joshua Engstler was gone and posed no threat. (Ex. 1,

Arnone Aff., ¶¶ 6-8; Ex. 2, Nunley Aff., ¶¶ 7-8.)

22. Undisputed for purposes of this Motion only. However, for clarity of the record

Plaintiff Chevalier was transported to the hospital via emergency medical service and Deputy

Arnone followed the ambulance to the hospital separately. (Ex. 1, Arnone Aff., ¶¶ 18-19.)

23. Disputed. The Deputies did not attempt to use Mr. Chevalier or Carter Engstler to

translate for purposes of conducting witness interviews of Ms. Adams-Chevalier or Zachary

Engstler. (Ex. 1, Arnone Aff., ¶¶ 15-17; Ex. 2, Nunley Aff., 11-12.) In addition, the Deputies


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and dispatch did work to secure a qualified sign language interpreter, and one was in fact secured

on November 2, 2014. (Ex. 1, Arnone Aff., ¶¶ 19-25, 31; Ex. 2, Nunley Aff., ¶¶ 18-19, 21-23.)

24. Undisputed for purposes of this Motion only.2

25. Defendant does not dispute that the Douglas County Sheriff’s Office receives

federal assistance. (See Doc. No. 163, ¶ 4.) Defendant disputes the remaining assertion by

Plaintiffs in Paragraph 25 regarding liability as it calls for a legal conclusion.

26. Disputed. The Deputies did not use Plaintiffs Chevalier or Carter Engstler as

interpreters for purposes of interviewing other family members. (Ex. 1, Arnone Aff., ¶¶ 15-18,

26-27, 31; Ex. 2, Nunley Aff., ¶¶ 9-15.) Additionally, Deputies Curry and Charles J. Nunley

engaged in only brief conversation with Plaintiff Carter Engstler, lasting only a matter of

minutes, and which was limited to the Deputies gathering information as to his observations and

generally gathering information regarding what had occurred and who may have been hurt. (Ex.

2, Nunley Aff., ¶¶ 9-11.) When Plaintiff Adams-Chevalier wrote a note to the Deputies

requesting they stop talking to Plaintiff Carter Engstler, the Deputies stopped speaking with him.

(Id. at ¶¶ 14-15.) The Deputies did not use or attempt to use Plaintiff Carter Engstler as a

translator to conduct any witness interviews. (Id. at ¶¶ 12-13; see also Ex. 1, Arnone Aff., ¶¶ 16-

17.) The Deputies were also part of brief communications with Ms. Adams-Chevalier and, to a

lesser extent, Mr. Zachary Engstler, but those took place largely through the use of written notes

and gestures and periodic utterances. (Ex. 1, Arnone Aff., ¶ 15; Ex. 2, Nunley Aff., ¶ 14.)

2 Plaintiffs’ references to Plaintiffs’ Class Action Amended Complaint (Doc. No. 23) and Defendant’s Answer to Class Action Amended Complaint (Doc. No. 44) are to moot documents pursuant to subsequent filings by both Plaintiffs and Defendant. (See e.g. Doc. No. 117 & Doc. No. 163.)


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27. Disputed. The Deputies did not use Plaintiffs Chevalier or Carter Engstler as

interpreters for purposes of interviewing other family members. (Ex. 1, Arnone Aff., ¶¶ 15-18,

26-27, 31; Ex. 2, Nunley Aff., ¶¶ 9-15.)

28. Disputed. A qualified sign language interpreter was secured through 24 Hour at

4:43 p.m. on November 2, 2014 by Deputy Arnone, which information was communicated to

Plaintiffs by Deputy Arnone. (Ex. 1, Arnone Aff., ¶¶ 25-27.) The interpreter’s services were

cancelled upon request by Plaintiffs at 6:20 p.m. on November 2, 2014. (Id. at ¶¶ 28, 30-31.)

29. Undisputed that Mr. Chevalier made those statements but disputed to the extent

Defendant and his employees should not and could not ignore their training, disregard signs and

symptoms of serious medical concerns and refuse to seek medical care. (Ex. 1, Arnone Aff., ¶

9.)

STATEMENT OF ADDITIONAL MATERIAL FACTS

30. At approximately 3:03 p.m. on Sunday, November 2, 2014, the Douglas County

Sheriff’s Office (“DCSO”) dispatch aired a 911 emergency call for service at 9651 Timber Hawk

Circle, Apt. 22, Highlands Ranch, Colorado in Douglas County (the “Chevalier Residence” or

“Residence”) to respond to an alleged assault. (Ex. 1, Arnone Aff., ¶¶ 2-3, 10; Ex. 2, Nunley

Aff., ¶ 2-3, 20; Ex. 3, CAD Notes, at 1.)

31. Dispatch aired that an assailant had kicked the door open; that the assailant was

having anger control problems sufficient to cause the reporting party (Mr. Chevalier) to try to

call 911; and that Mr. Chevalier possibly had broken ribs and was having a hard time breathing.

(Ex. 3, CAD Notes, at 1.)

32. Dispatch’s call focused on basic details of the assault on Mr. Chevalier rather than

on the remaining family members. As a result, the Deputies responding to the Chevalier


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Residence did not become aware that Ms. Adams-Chevalier and Zachary Engstler were

apparently deaf until their initial communications with the Chevalier family members. (Ex. 1,

Arnone Aff., ¶ 12; Ex. 2, Nunley Aff., ¶ 6; cf. Ex. 3, CAD Notes, at 1.)

33. Deputies Nicholas Arnone and Charles Curry, in DCSO’s Patrol Division, arrived

at the apartment complex where the Chevalier Residence was located at approximately 3:09

p.m., parked and proceeded to the Chevalier’s second floor apartment. (Ex. 3, CAD Notes, at 1;

Ex. 1, Arnone Aff., ¶¶ 4-5.)

34. When responding to a 911 emergency call such as that at the Chevalier Residence,

where an assault has occurred and the assailant has been reported to have left the premises, the

responding patrol officers’ primary tasks are to verify that the assailant is no longer at the scene

to ensure that the scene is secure and anyone on scene is not at risk; to determine whether and to

what extent anyone at the scene has been injured and requires medical attention; and to attempt

to determine the location of the assailant and potentially minimize risk to other members of the

public. (Ex. 2, Nunley Aff., ¶ 7, 20; Ex. 1, Arnone Aff., ¶¶ 2-3, 10.)

35. Deputies Arnone and Curry initially conducted a protective sweep of the

residence for safety purposes and in conformity with their practice. The reason for doing so is

twofold: first, it is possible that the caller could intentionally try to mislead responders as to an

assailant’s whereabouts; and second, a caller could believe the assailant had left when, in fact,

they have not left the premises, or they have returned unbeknownst to the caller. (Ex. 1, Arnone

Aff., ¶ 7.)

36. After ensuring that the suspect, Joshua Engstler, was no longer in the apartment,

Deputy Arnone took the lead in making preliminary inquires of Timothy Chevalier to get a basic

understanding of what had happened, how and to what extent he had been injured, whether


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anyone else in the home had been injured and where the suspect may have gone. He made those

inquiries for the purpose of ensuring the immediate safety and welfare of the family members.

(Ex. 1, Arnone Aff., ¶ 8.)

37. Once Deputy Arnone began speaking to Mr. Chevalier, Mr. Chevalier

complained that he was having difficulty breathing. That type of complaint is something that, as

a matter of practice, should prompt an immediate call for an ambulance, and Deputy Arnone did

so in this case. (Ex. 1, Arnone Aff., ¶ 9.)

38. Deputy Arnone called for the ambulance at approximately 3:13 p.m. (Ex. 1,

Arnone Aff., ¶ 11; Ex. 3, CAD Notes, at 1.)

39. Deputy Arnone had some limited additional communications with Mr. Chevalier

to determine the extent of his injuries, whether other family members had been injured and were

in need of medical care or treatment, and where Joshua Engstler might be located. (Ex. 1,

Arnone Aff., ¶ 13.)

40. From Mr. Chevalier, Deputy Arnone learned:

His step-son, Joshua Engstler, was arguing with Ms. Adams-Chevalier by the kitchen;

Joshua started yelling at his mother, so he (Mr. Chevalier) asked Joshua to calm down or he would call the police;

He started calling 911 and Joshua started walking into the kitchen towards the knives;

Ms. Adams-Chevalier asked Joshua to stop, and Joshua turned around and came back toward him;

He stood up from a recliner and Joshua shoved him with both hands; He fell backwards into the coffee table, landing on the coffee table with his right

side and then landing on the floor between the coffee table and recliner; He could not breath, was trying to catch his breath and was not sure of what

happened after that; It was his understanding that Joshua had assaulted Zachary as well, but he was not

sure about what had happened.

(Ex. 1, Arnone Aff., ¶ 14.)


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41. Deputy Nunley arrived at the apartment complex at approximately 3:20 p.m. and

proceeded to the Chevalier’s second floor apartment. When he got to the apartment, Emergency

Medical Services had already arrived. (Ex. 2, Nunley Aff., ¶ 5.)

42. While at the Chevalier Residence, Deputy Nunley and Deputy Curry took part in

a brief conversation with Carter Engstler. Carter was asked about what he had observed, and that

discussion was brief and was for the purpose of generally understanding what had happened and

who may have been hurt during the assault. (Ex. 2, Nunley Aff., ¶¶ 9, 10.)

43. While the Deputies may have briefly made an inquiry about whether his mother

had been hurt and where Joshua Engstler might be, the inquiry was brief and made for the

purpose of ensuring the immediate safety and welfare of the Chevalier family members. (Ex. 2,

Nunley Aff., ¶ 10-12.) In total, these basic inquiries to Carter Engstler lasted only a matter of

minutes. (Ex. 2, Nunley Aff., ¶ 15.)

44. It was only after Carter Engstler made the requested inquiry to his mother that the

Deputies were asked not to do so by Ms. Adams-Chevalier writing a note on paper and providing

it to the Deputies. (Ex. 2, Nunley Aff., ¶¶ 14.) After she did so, the Deputies stopped speaking

to Carter Engstler. (Ex. 2, Nunley Aff., ¶¶ 15.)

45. The Deputies were also part of brief communications with Ms. Adams-Chevalier

and, to a lesser extent, Mr. Zachary Engstler, that took place largely through the use of written

notes and gestures and periodic utterances. (Ex. 1, Arnone Aff., ¶ 15; Ex. 2, Nunley Aff., ¶ 14.)

In fact, it was through a written note that Ms. Adams-Chevalier also expressed her desire for a

sign language interpreter. (Ex. 1, Arnone Aff., ¶ 15; Ex. 2, Nunley, Aff. ¶ 14.)

46. After Ms. Adams-Chevalier made the written request to have an American Sign

Language interpreter, communications with Ms. Adams-Chevalier and Mr. Engstler were limited


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to verifying that Ms. Adams-Chevalier had not been injured and the extent of the injuries Mr.

Engstler had suffered. (Ex. 1, Arnone Aff., ¶ 15.)

47. The inquiries made of Ms. Adams-Chevalier and Mr. Engstler were brief and

made for the purpose of ensuring the immediate safety and welfare of the Chevalier family

members. (Ex. 1, Arnone Aff., ¶ 15; Ex. 2, Nunley Aff., ¶ 14.)

48. None of the Deputies at the Chevalier Residence used, or attempted to use, Carter

Engstler or Timothy Chevalier as a translator to conduct a witness interview of Ms. Adams-

Chevalier or Zachary Engstler or to get their statement about what had occurred. (Ex. 1, Arnone

Aff., ¶ __; Ex. 2, Nunley Aff., ¶ 12.)

49. As a general matter of training and practice, the Deputies would not have

attempted to conduct the interview of one witness by using another witness to translate because

there is a risk that the translating witness could influence the translation based on their own

observations. (Ex. 1, Arnone Aff., ¶ 17; Ex. 2, Nunley Aff., ¶ 13.)

50. Once Emergency Medical Services was in the process of getting Mr. Chevalier

ready to be transported to the hospital, and there were no further pressing safety or welfare needs

to attend to, Deputy Nunley promptly reached out to dispatch about trying to secure an American

Sign Language interpreter. (Ex. 2, Nunley Aff., ¶ 18-19, 21; Ex. 6, Nunley Audio Recording.)

51. Deputy Arnone went to the hospital, following behind the ambulance. (Ex. 1,

Arnone Aff., Ex. 2, Nunley Aff., ¶ 22.)

52. While Deputy Arnone was en route to the hospital, he and dispatch made

numerous efforts to secure a qualified sign language interpreter authorized to work with law

enforcement, including searching internally for a DCSO employee, contacting the Colorado

Bureau of Investigation to coordinate an ASL interpreter, contacting Sky Ridge Hospital to


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coordinate an ASL interpreter, and compiling contact information for sign language

interpretation services. (Ex. 1, Arnone Aff., ¶¶ 19-23.)

53. After learning that there were no interpreters available through the hospital

qualified to work with law enforcement, Deputy Arnone reached out to 24 Hour Sign Language

Services and was able to secure an interpreter qualified to work with law enforcement. (Ex. 1,

Arnone Aff., ¶ 30.) At approximately 4:45 p.m., he was told by a representative from 24 Hour

that they could have a qualified interpreter there in approximately two hours. (Ex. 1, Arnone

Aff., ¶ 27.)

54. On 3 or 4 occasions, Deputy Arnone went to Mr. Chevalier’s room and updated

the family on his efforts to get a sign language interpreter. During those updates, he did not talk

to any of the family members about the incident; rather, the discussions were about the steps that

were being taken to get an ASL interpreter. (Ex. 1, Arnone Aff., ¶ 26.)

55. After Deputy Arnone notified Plaintiffs that the interpreter was two hours out, Mr.

Chevalier interpreted for Ms. Chevalier to inquire about why it was taking that long. Deputy

Arnone explained that he had been told there were not many sign language interpreters who were

qualified to work with law enforcement. (Ex. 1, Arnone Aff., ¶ 27.)

56. The Chevalier family subsequently elected to fill out written statements rather

than waiting for the interpreter to arrive, and, as a result, Deputy Arnone then, at approximately

6:20 p.m., canceled the ASL interpreter he had already secured. (Ex. 1, Arnone Aff., ¶ 30.)

57. None of the Deputies that responded to the 911 emergency call at the Chevalier

Residence had any desire to prevent Ms. Adams-Chevalier or Zachary Engstler from utilizing a

sign language interpreter. Rather, the Deputies made repeated efforts to secure those services for

Ms. Adams-Chevalier or Zachary Engstler. (Ex. 1, Arnone Aff., ¶ 31; Ex. 2, Nunley Aff., ¶ 23.)


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58. The case was then transferred to Investigations. (Ex. 4, Duffy Aff., ¶ 2.)

59. In felony cases, such as that in which Mr. Chevalier was a victim, the

Investigations Division of the Douglas County Sheriff’s Office would typically handle victim

and witness interviews to prepare a felony filing for the District Attorney’s Office, which, in

turn, could file felony charges. Those interviews are not ordinarily handled by Patrol. (Ex. 4,

Duffy Aff., ¶ 3.)

60. Detective Michael Duffy, from Investigations, was assigned to investigate the

November 2, 2014 assault of Timothy Chevalier. (Ex. 4, Duffy Aff., ¶ 2.)

61. As part of his investigation, he interviewed Timothy Chevalier, Jodie Adams-

Chevalier and Zachary Engstler (collectively, the “Chevalier Family Members”). (Ex. 4, Duffy

Aff., ¶ 4.)

62. Detective Duffy was aware from reviewing the initial patrol report that Ms.

Adams-Chevalier and Zachary Engstler represented themselves to be deaf and had expressed

their desire to have an American Sign Language interpreter present for their witness interviews.

(Ex. 4, Duffy Aff., ¶ 5.)

63. Detective Duffy made arrangements for an American Sign Language interpreter

to be available for the interviews, which took place on November 26, 2014 at the Douglas

County Sheriff’s Office. (Ex. 4, Duffy Aff., ¶¶ 6-7.)

64. Detective Duffy initially met with all three Chevalier Family Members to explain

the interview process, which was interpreted by the ASL interpreter, and then interviewed each

of the Chevalier Family members individually. (Ex. 4, Duffy Aff., ¶¶ 9-10.)

65. During the interviews of Ms. Adams-Chevalier and Mr. Engstler, the ASL

interpreter and a Victim’s Advocate from Deaf Overcoming Violence through Empowerment


17

were present in the interview room and the interviews were interpreted by the sign language

interpreter. (Ex. 4, Duffy Aff., ¶¶ 12-13.)

66. The witness interviews of the Chevalier Family Members were detailed and lasted

roughly one half hour per witness. (See Ex. 4, Duffy Aff., ¶ 11; Ex. 5, 11/26/14 Interview

Recordings.)

67. Plaintiffs did not express any complaints about the manner in which the witness

interviews were conducted. (Ex. 4, Duffy Aff., ¶¶ 14.)

ARGUMENT

I. Standard of Review

Pursuant to Federal Rule of Civil Procedure 56, a moving party is entitled to summary

judgment “if the movant shows that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “An issue is ‘genuine’

if there is sufficient evidence on each side so that a rational trier of fact could resolve the issue

either way.” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998). “An issue of

fact is ‘material’ if under the substantive law it is essential to the proper disposition of the

claim.” Id. When ruling on a motion for summary judgment, a court must “examine the record

and all reasonable inferences that might be drawn from it in the light most favorable to the non-

moving party.” Havens v. Colo. Dep’t of Corrections, 897 F.3d 1250, 1259 (10th Cir. 2018)

(quoting Barber ex rel. Barber v. Colo. Dep’t of Revenue, 562 F.3d 1222, 1228 (10th Cir. 2009)).

Plaintiffs seek partial judgment on the issue of liability on each of three claims alleged

against Defendant, for violations of Title II of the Americans with Disabilities Act (“Title II”),

section 504 of the Rehabilitation Act (“Section 504”), and the Colorado Anti-Discrimination Act

(“CADA”). The language of Title II generally tracks that of Section 504, and the two provisions


18

are generally interpreted in the same manner. Hainze v. Richards, 207 F.3d 795, 799 (5th Cir.

2000). Courts hearing claims asserted under C.R.S. § 24-34-802 (“CADA”) apply the same

standard and defenses applicable to the ADA. C.R.S. § 24-34-802(4). Accordingly, Plaintiffs’

Title II, Section 504 and CADA (collectively, the “Statutes”) claims are addressed collectively.

II. Disputed Issues Of Fact Remain As To Whether An Emergency Existed.

Under 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 U.S.C. § 12132. Section 504 of the Rehabilitation Act similarly prohibits an otherwise

qualified individual with a disability from being excluded from participation in, denied the

benefits of, or be discriminated against by any program or activity receiving Federal financial

assistance solely by reason of their disability. 29 U.S.C. § 701.

Plaintiffs argue that Defendant purportedly failed to provide Plaintiffs with their

preferred choice of auxiliary aid or service to communicate with DCSO Deputies and, in doing

so, denied Plaintiffs access to effective communication in violation of § 35.160 of Title II’s

implementing regulations, 28 C.F.R. § 35.160 (“Regulation”). Plaintiffs assert that the Deputies

relied on Mr. Chevalier and his minor step-son, Carter Engstler, to serve as translators for Ms.

Adams-Chevalier and Zachary Engstler and that doing so violated the Regulation because no

emergency existed at the time. Plaintiffs seem to suggest that the record is devoid of facts

evidencing an emergency because there was no one was “wielding a knife” and there was no

“violent hostage situation.” (Doc. No. 123 at 13.) Plaintiffs’ argument is contrary to language of

§ 35.160 and the DOJ guidance upon which they rely and devoid of supporting case law.


19

Section 35.160 directs public entities to “take appropriate steps to ensure that

communications with applicants, participants, members of the public, and companions with

disabilities are as effective as communications with others.” 28 C.F.R. § 35.160(a)(1). In doing

so, § 35.160 generally prohibits a public entity from relying on an adult or child accompanying

an individual with a disability to interpret or facilitate communication with an individual with a

disability. See 28 C.F.R. § 35.160(c)(2) & (3). However, § 35.160 contains an express exclusion

in “an emergency involving an imminent threat to the safety or welfare of an individual or the

public where there is no interpreter available.” 28 C.F.R. § 35.160(c)(2)(i) & (3).

Plaintiffs acknowledge, as they must, that 28 C.F.R. § 35.160(c)(2)(i) & (3) create an

exception to the prohibition against relying on other persons to communicate with a deaf person

in cases of emergency. As Plaintiffs themselves point out, “[e]xigent circumstances [are]

defined as situations where the police, whether in the course of an arrest or investigation,

reasonably believe that any officer or third party’s life is in danger.” (Doc. No. 123 at 14 (citing

Doc. No. 43 at 14 n.4).) However, Plaintiffs’ argument wholly ignores the possibility that a

person may be in need of emergency medical care.

The circumstances presented to the Deputies prior to and upon responding to Mr.

Chevalier’s 911 call reasonably led them to believe that Mr. Chevalier’s life was in danger. 3 It

is undisputed that Defendants were called upon to respond to a 911 emergency call for an assault

and that, en route, dispatch aired that the assailant had kicked the door open; that the assailant

was having anger control problems sufficient to cause the reporting party (Mr. Chevalier) to try

3 While Plaintiffs claim there was no medical emergency because Mr. Chevalier’s wife could have driven him to the hospital, no one knew at the time how severe Dr. Chevalier’s injuries were—only that his chest injury caused him to have difficulty breathing. Obtaining immediate basic information to assist with medical care was not only reasonable, it was the only appropriate course of action under the circumstances.


20

to call 911; and that Mr. Chevalier possibly had broken ribs and was having a hard time

breathing.4 (Add’l Facts, supra, ¶ 31.) With this information, Deputy Arnone reasonably

believed once he arrived that the medical situation was emergent and possibly life-threatening.

Based on his training and experience, the violent behavior of the suspect, Joshua Engstler, also

raised concerns that he may return to the scene. His primary instinct, again based on his training

and experience, was to obtain medical care for the injured party and to secure the scene for the

protection of the persons remaining. (Id. ¶¶ 34-36.)

Although his job would ultimately include obtaining witness statements, investigation

was secondary to securing safety and medical attention. Doing so required some basic inquiry

about what happened, Mr. Chevalier’s condition and his step-son’s (the assailant’s) possible

location. From the outset, Mr. Chevalier repeated that he was having trouble breathing. Based

on his training, Deputy Arnone considered such an injury to be serious and possibly life-

threatening, and he promptly called for an ambulance. (Add’l Facts, supra, ¶ 37.) Mr. Chevalier

provided very basic information about what had happened to him, including that Joshua Engstler

moved in the kitchen toward knives when he initially attempted to call 911 until his wife asked

him to stop; that his step-son shoved him with both hands, causing him to fall and strike his side

on the coffee table; that he could not remember what happened after that; and that he could

barely breath. (Id. ¶ 40.) All of these details reaffirmed that the injury could be life-threatening.

As Mr. Chevalier struggled to breathe, emergency medical services arrived and began

examining him and Deputies Curry and Nunley attempted to obtain basic information from

Carter Engstler. (Id. ¶¶ 42-43.) Ms. Adams-Chevalier noted her desire that the communications

4 The Deputies were not aware until they arrived at the Chevalier Residence and began communicating with the family members that Ms. Adams-Chevalier and Zachary Engstler identified as being deaf. (Add’l Facts, supra, ¶


21

stop, so they stopped. (Id. ¶ 44.) The limited information obtained was to provide immediate

medical care for a person the Deputies perceived to have sustained possible life-threatening

injury and to assure the safety and welfare of the remaining persons in the house. (Id. ¶¶ 43, 47.)

Failure to provide medical care to an individual repeatedly complaining of difficulty

breathing and expressing concern that he could have fractured ribs “could have life-altering or

life-ending consequences.” (Doc. No. 123 at 23.) A broken rib can puncture lungs, breathing

pathways can collapse, there can be significant internal bleeding, or any number of other life-

threatening complications. Plaintiffs’ view that officers should ignore signs and symptoms of a

medical emergency based on a victim’s untrained say-so, and forestall all police activity until a

sign language interpreter arrives, could have serious, if not fatal, consequences for both hearing

and deaf individuals—to the detriment of the goals underlying the ADA in the first place.

Plaintiffs also dismiss any suggestion that a safety threat existed at the time the Deputies

arrived at the Chevalier Residence because Mr. Chevalier reported during his 911 call that

Joshua Engstler had left the Residence and was probably driving back to Iowa. Regardless of

Mr. Chevalier’s comments on the call, the Deputies should not have, and in this case

appropriately did not, dismiss the possible safety threat from a violent assailant merely because

Mr. Chevalier believed he had left the premises. (Add’l Facts, supra, ¶¶ 34-35.) The Deputies

must consider the risk that a reporting party, particularly someone that had been seriously injured

and reported that he did not remember what had happened after hitting the coffee table, could

have missed the assailant returning to the premises or even that the reporting party had

knowingly misled law enforcement about the assailant’s whereabouts. (Id.) Failing to take

32.)


22

adequate precautions to ensure the scene was secure itself poses a significant safety risk to

responding officers and, potentially, the remaining residents.

Courts have repeatedly declined to impose liability pursuant to Title II to in-the-field

investigations by police officers involving exigent circumstances. The facts identified herein

surrounding the Deputies’ in-the-field response to a violent felony that caused potentially life-

threatening injury to Timothy Chevalier identified herein create a triable issue of fact as to

whether an emergency existed. See, e.g., Waller v. City of Danville, 515 F. Supp. 2d 659, 663

(W.D.Va. 2007) (“courts have found situations of exigent circumstances beyond the scope of the

ADA’s requirement of reasonable accommodation); Thompson v. Williamson County, 219 F.3d

555, 558 (6th Cir. 2000) (plaintiff’s Title II and Section 504 claims arising out of emergency

response to 911 call failed as a matter of law); Patrice v. Murphy, 43 F. Supp. 2d 1156, 1160

(W.D. Wa. 1999) (“Where underlying criminal activity has occurred, such as a bank robbery,

drunken driving, or domestic violence, and the officers are engaged in an on-the-street response,

investigation, and arrest, forestalling all police activity until an interpreter can be located to aid

communication with the deaf protagonist would be impractical and could jeopardize the police’s

ability to act in time to stop a fleeing suspect, physically control the situation, or interview

witnesses on the scene. The decisions we ask our officers to make under already stressful, and

sometimes dangerous, circumstances should not be subjected to second guessing by comparing

their in-the-field actions to the requirements of the ADA.”); see also Hainze v. Richards, 207

F.3d 795, 801 (5th Cir. 2000) (“Law enforcement personnel conducting in-the-field

investigations already face the onerous task of frequently having to instantaneously identify,

assess, and react to potentially life-threatening situations. To require the officers to factor in

whether their actions are going to comply with the ADA, in the presence of exigent


23

circumstances and prior to securing the safety of themselves, other officers, and any nearby

civilians, would pose an unnecessary risk to innocents.”).

III. Disputed Facts Exist As To Whether Plaintiffs Were Deprived Of Appropriate Auxiliary Aids.

Even ignoring the factual disputes that exist regarding the exigency of the circumstances

to which the Deputies were responding, Plaintiffs cannot demonstrate the absence of a factual

dispute as to whether Defendant complied with its obligations under the Statutes. Plaintiffs’

Motion takes the position that the provisions of 28 C.F.R. § 35.160 are mandatory and that, in the

absence of exigent circumstances, the only means of providing effective communication between

the Deputies, on the one hand, and Ms. Adams-Chevalier and Mr. Zachary Engstler, on the other

hand, was for the Deputies to cease all communication until an ASL interpreter arrived and, only

then, to conduct all communications through the interpreter. Plaintiffs’ assertions are contrary to

law and to the facts in the summary judgment record.

Plaintiffs assert that the Deputies’ communications with Plaintiffs violated 28 C.F.R. §

35.160, which provides, in relevant part:

(b)(1) A public entity shall furnish appropriate auxiliary aids and services where necessary to afford individuals with disabilities, including applicants, participants, companions, and members of the public, an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity of a public entity. (2) The type of auxiliary aid or service necessary to ensure effective communication will vary in accordance with the method of communication used by the individual; the nature, length, and complexity of the communication involved; and the context in which the communication is taking place. In determining what types of auxiliary aids and services are necessary, a public entity shall give primary consideration to the requests of individuals with disabilities. In order to be effective, auxiliary aids and services must be provided in accessible formats, in a timely manner, and in such a way as to protect the privacy and independence of the individual with a disability.

The DOJ’s implementing regulations define “auxiliary aids and services” to include qualified

interpreters on-site as well as written materials, the exchange of written notes and “other


24

effective methods of making aurally delivered information available to individuals who are deaf

or hard of hearing.” 28 C.F.R. § 35.104. Thus, while on-site qualified interpreters are one

possible auxiliary aid, they are not the only permissible auxiliary aid, and the Regulation clarifies

that auxiliary aids and services deemed necessary to ensure effective communication will vary

based upon the particular circumstances.

“No bright line rule defines essential steps required to establish effective communication

with a hearing-impaired person; instead the inquiry is a fact-specific one.” Hans v. Bd. of

Shawnee Cty. Comm’rs, No. 16-4117-DDC, 2018 WL 1638503, at *19 (D. Kan. Apr. 5, 2018),

appeal docketed, No. 18-3096 (10th Cir. May 4, 2018). “In many circumstances, oral

communication plus gestures and visual aids or note writing will achieve effective

communication.” Id. (quoting Bircoll v. Miami-Dade Cty., 480 F.3d 1072, 1087 (11th Cir.

2007). Further, “the quality of communication between a hearing-impaired person and a police

officer does not have to be ‘perfect’ to place the hearing-impaired person ‘on equal footing’ with

non-disabled people.” Id.

The evidence before the Court on the efficacy of Defendant’s communications with the

Chevalier family minimally presents a question of fact. On November 2, 2014, while the

Deputies were at the Chevalier Residence, they communicated with Ms. Adams-Chevalier and

Mr. Zachary Engstler primarily through the exchange of written notes and gestures and some

limited verbalizations. (Add’l Facts ¶¶ 45-46.) The Deputies deny that they relied on Carter

Engstler and Timothy Chevalier to conduct interviews of Zachary Engstler and Jodie Adams-

Chevalier and have testified that only brief interactions involving translation occurred at the

Chevalier Residence and was to allow the Deputies to determine if anyone other than Timothy

Chevalier had been injured and could be in need of medical attention. (Id. ¶¶ 46-48.) The facts


25

also demonstrate that time was of the essence, particularly given the apparent seriousness of Mr.

Chevalier’s injuries and the need to transport him to the hospital for medical examination and

treatment. (Id. ¶¶ 37-38, 50.) Plaintiffs’ assertion that the Deputies should have forestalled all

police activities until an ASL interpreter qualified to work with law enforcement could arrive at

the apartment is impractical and would have jeopardized the Deputies’ ability to ensure the

security of the scene and attend to Mr. Chevalier’s medical emergency.

Plaintiffs also argue that Deputy Arnone was improperly interviewing Ms. Adams-

Chevalier and Zachary Engstler at the hospital by relying on Mr. Chevalier to interpret. Contrary

to Plaintiffs’ assertions, Deputy Arnone was not interviewing any of the Chevalier family

members about the assault; he was merely providing updates on his progress in securing an ASL

interpreter and, after having done so, the interpreter’s anticipated arrival time. (Id. ¶¶ 54-55.)

The brief nature of the contacts, the limited scope of discussion, the very nature of the discussion

itself, and the Chevalier family’s reactions and inquiries—demonstrating their understanding and

later conveying their desire not to proceed that evening with interviews with an ASL translator,

all evidence effective communication. (See id. ¶¶ 54-55.) Plaintiffs’ apparent belief that Deputy

Arnone should not have informed the family about the status of obtaining an interpreter until

after the interpreter arrived would have defeated the entire purpose for the communications in the

first place, and would also have left the family with no idea of what was going on.

Moreover, the Sheriff’s Office did utilize Plaintiffs’ preferred auxiliary aid, an on-site

interpreter, when Plaintiffs were interviewed as witnesses in the criminal investigation later that

month. Unlike the 911 emergency response, the circumstances of those interviews counseled in

favor of the use of an on-site interpreter rather than the more basic written notes and gestures

primarily utilized during the 911 emergency response. The witness interviews took place at a


26

scheduled location and time, making Plaintiffs’ request for an interpreter an accommodation that

was reasonably feasible to provide. (See Add’l Facts, supra, ¶¶ 62-63.) Additionally, the nature

and scope of the communications, which were extended witness interviews for the purpose of

investigating and potentially initiating criminal charges against the alleged assailant, favored the

use of an on-site interpreter to ensure effective communication. (See id. ¶¶ 59-61.)

On this record, a trier of fact could readily conclude that Plaintiffs received the auxiliary

aids and services necessary under these sets of particular circumstances consistent with the

provisions of 28 C.F.R. § 35.106(b). See Hans, 2018 WL 1638503, at *20 (granting summary

judgment in favor of defendant where law enforcement used written notes, gestures and verbal

utterances to communicate with deaf individual during 911 response, finding such measures

achieve effective communication in many circumstances); Waller ex rel. Estate of Hunt v.

Danville, 556 F.3d 171, 175 (4th Cir. 2009) (“Accommodations that might be expected when

time is of no matter become unreasonable to expect when time is of the essence.”); Bircoll, 480

F.3d at 1086 (affirming summary judgment in favor of defendant law enforcement agency and

rejecting plaintiff’s claim that he had been deprived of effective communication where he was

not provided with an interpreter, explaining that “DUI stops involve a situation where time is of

the essence. Forestalling all police activity at a roadside DUI stop until an oral interpreter arrives

is not only impractical but also would jeopardize the police’s ability to act in time to obtain an

accurate measure of the driver’s inebriation.”). Accordingly, Plaintiffs have not established that

they are entitled to judgment on liability as a matter of law.

IV. Plaintiffs’ Evidence Does Not Establish Intentional Discrimination.

Plaintiffs’ claims for injunctive relief under Title II, Section 504 and CADA have already

been dismissed, leaving Plaintiffs with only their claims for compensatory damages under the


27

foregoing statutes. In addition to the litany of factual disputes that remain in this case, Plaintiffs’

Motion fails to establish any facts proving that Defendant intentionally discriminated against

them as is required to support summary judgment in their favor on such claims. Indeed,

Plaintiffs’ Motion now concedes the absence of the very factual allegations that kept their claims

alive at the motion to dismiss stage. (See Doc. No. 123 at 24-25; cf. Doc. No. 154 at 15-16.)

Courts have consistently required private plaintiffs seeking compensatory damages

against a public entity under Section 504 and Title II to establish intentional discrimination. See

Powers v. MJB Acquisition Corp., 184 F.3d 1147, 1153 (10th Cir. 1999) (“We agree with the

course charted by our sister circuits and hold that entitlement to compensatory damages under

section 504 of the Rehabilitation Act requires proof that the defendant has intentionally

discriminated against the plaintiff.”); Tyler v. City of Manhattan, 118 F.3d 1400, 1403 (10th Cir.

1997) (affirming district court order striking plaintiff’s claim for compensatory damages where

plaintiff’s claims did not establish intentional wrongdoing); see also, e.g., Tafoya v. Bobroff, 865

F. Supp. 742, 749-50 (D.N.M. 1994) (pointing to the district court’s decision in Tyler and

explaining “[t]he Tyler decision highlights the importance of a condition every court has

imposed as a prerequisite to a damages remedy under § 794a(a)(2) of the Rehabilitation Act or §

12133 of the ADA: the plaintiff must allege intentional discrimination.”), aff’d, 74 F.3d 1250

(10th Cir. 1996) (unpublished); cf. 42 U.S.C. § 12133 (adopting the remedies of Section 504 for

alleged violations of section 12132 of the ADA).

This Court has previously held that the Tenth Circuit does not require proof of personal

ill-will or animosity toward the disabled individual but has concluded that “intentional

discrimination can be inferred from a defendant’s deliberate indifference to the strong likelihood

that pursuit of its questioned policies will likely result in a violation of federally protected


28

rights.” (Doc. No. 154 at 14 (quoting Barber, 562 F.3d at 1228-29).) Deliberate indifference in

the ADA context has been construed to be consistent with deliberate indifference in the context

of section 1983 claims. J.V. v. Albuquerque Pub. Schs., 813 F.3d 1289, 1298 (10th Cir. 2016).

Plaintiffs’ Motion is entirely devoid of facts supporting a finding of deliberate

indifference on the part of the Defendant. The Motion argues, without citation to any factual

evidence or supporting legal authority, that Defendant’s policy and training program:

[S]hould have informed Defendant of its obligation under the law to have contacted an interpreting agency or qualified interpreter and provided an interpreter in a timely manner as required by the Regulation and DOJ guidance. Defendant acted with deliberate indifference.

(Doc. No. 123 at 25.) In doing so, Plaintiffs appear to conflate the Sheriff with the specific

employees that responded to the single incident on November 2, 2014. However, Plaintiffs offer

no evidence of “any knowledge of the [Sheriff] that its policies and training were not being

followed or were deficient and that it failed to act.” (Doc. No. 154 at 15.) Plaintiffs also provide

no evidence that the Sheriff’s policies and training themselves were deficient or non-complaint

with the Statutes’ requirements, let alone that the Sheriff was aware of those deficiencies but

failed to do anything about it. Instead, Plaintiffs concede that the Sheriff had a policy in place

and provided thorough training to his employees, “both addressing providing effective

communication to [deaf] witnesses and victims under the circumstances of this case[.]” (Doc.

No. 123 at 24-25.)

Even the conduct of the responding Deputies themselves does not reflect deliberate

indifference. The facts demonstrate that Deputies Arnone and Nunley both made efforts to

secure an interpreter once they believed the exigencies of the emergency response to have

dissipated. Deputy Arnone reached out repeatedly to different sources, including DCSO’s

dispatch department, Sky Ridge Hospital, and 24 Hour Sign Language Services in an effort to


29

accommodate Ms. Adams-Chevalier’s request that she and Zachary Engstler have an ASL

interpreter. (Add’l Facts, supra, ¶¶ 52-53.) Similarly, the dispatch calls that Plaintiffs criticize

reflect their ongoing efforts to provide a sign language interpreter as well, searching internally at

DCSO, contacting CBI, contacting Sky Ridge Hospital, and providing Deputy Arnone with

agency contacts as well. (Id.) The result of those efforts was that Deputy Arnone did secure an

ASL interpreter to come and assist, but Plaintiffs decided they did not want wait for the

interpreter to arrive, even though she was on the way and Deputy Arnone expected her to arrive

shortly after (i.e., 15 or 20 minutes) Mr. Chevalier was finished with his medical treatment.5

(See id. ¶ 56.) When Plaintiffs later came to the Sheriff’s Office for interviews, the interviewing

detective also secured an ASL interpreter for those communications. (Id. ¶ 63.)

These facts unquestionably preclude summary judgment in Plaintiffs’ favor. See, e.g.,

Saltzman v. Bd. of Comm’rs, 239 Fed. App’x 484, 487-88 (11th Cir. 2007) (holding no

reasonable juror could find intentional discrimination under the deliberate indifference standard

where, over a span of five days, hospital did not provide sign language interpreter for hard-of

hearing-patient and hard-of-hearing spouse, but it had policy in place to accommodate hearing-

impaired patients, had a list of two agencies to contact for sign language interpreters and

employees attempted to obtain a sign language interpreter from one of the listed agencies but

were unable to coordinate with the doctor’s schedule, finding “[t]he facts are that pursuant to

5 Plaintiffs also criticize Deputy Arnone for booking an interpreter who needed two hours to get there, but Deputy Arnone was under the impression after speaking with a representative at 24 Hour Sign Language Service that ASL interpreters certified to work with law enforcement were not readily available in the area. (Add’l Facts, supra, ¶ 55.) Furthermore, even Plaintiffs acknowledge that it is more difficult to secure a sign language interpreter on a Sunday. (Doc. No. 123 at 22.) Their assertion that DOJ requires an interpreter to be provided at the earliest reasonable time within one hour is, in fact, a provision requiring the interpreter be provided at the earliest reasonable time, with the proviso that “[i]n most cases during normal business hours” (which was not the case here) “an interpreter will be provided within one hour of the first identification of a need.” See, e.g., Settlement Agreement Between U.S. and City of Henderson, ADA.gov (Aug. 5, 2013), https://www.ada.gov/henderson-nv-sa/henderson-nv-sa.htm.


30

policy, [hospital] employees attempted to locate an interpreter for the [plaintiffs]. Although that

attempt may have been negligently made, negligence is not intentional discrimination. There is

no indication that [the hospital’s] hearing-impaired accommodation policy was inadequate, or

that [the hospital] had a practice of not following the written policy it had enacted.”); see also

Havens, 897 F.3d at 1267 (granting summary judgment in favor of defendant on Section 504

claim based on lack of evidence of deliberate indifference where plaintiff offered no evidence

that policy implementation had previously resulted in violations or that entity was aware when

fashioning its policies that those policies were substantially likely to result in infringement of

inmates’ rights, finding any such knowledge on the part of the entity to be “purely speculative

and conjectural” and further finding that even if defendant “was negligent in not discerning such

a substantial likelihood under these circumstances, that would not be good enough.”); Fortin on

behalf of TF v. Hollis Sch. Dist., No. 15-cv-179-JL, 2017 WL 4157065, at *4 (D.N.H. Sept. 18,

2017) (where entity did not become aware of single wrongful act by employee until after conduct

occurred, entity could not have been deliberately indifferent to the actions taken by employee).

CONCLUSION

WHEREFORE, for the reasons stated herein, Defendant respectfully requests that the

Court deny Plaintiffs’ Motion and award him such further relief as the Court deems appropriate.


31

Respectfully submitted this 24th day of January, 2019, OFFICE OF THE COUNTY ATTORNEY, COUNTY OF DOUGLAS, COLORADO s/ Dawn L. Johnson Kelly Dunnaway Deputy County Attorney Dawn L. Johnson Senior Assistant County Attorney 100 Third Street Castle Rock, CO 80104 Telephone: 303-660-7414 FAX: 303-484-0399 E-mail: [email protected] [email protected]

Attorneys for Defendant


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CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 24th day of January, 2019, I electronically filed the foregoing DEFENDANT’S RESPONSE TO PLAINTIFFS’ REVISED MOTION FOR PARTIAL SUMMARY JUDGMENT ON LIABILITY with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following counsel of record: Andrew C. Montoya ([email protected]) Kevin W. Williams ([email protected]) Colorado Cross-Disability Coalition Legal Program 1385 South Colorado Blvd., Suite 610-A Denver, Colorado 80222

s/ Patrick D. Fiedler Pursuant to USDC ECF Procedure Version 6, a printed copy of this document with original signatures will be maintained by the Office of the Douglas County Attorney and made available for inspection upon request.


FOR THE DISTRICT OF COLORADO Civil Action No. 16-cv …...Jan 24, 2019 · Civil Action No. 16-cv-02691-WYD-SKC JODIE ADAMS-CHEVALIER, TIMOTHY CHEVALIER, ZACHARY ENGSTLER, and CARTER

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