Concluding that NYC had not adequately modified its system for contacting police and fire departments to provide access for deaf and hearing impaired individuals, the district court refused to vacate or modify a permanent injunction that bars the city from removing street alarm boxes that allow deaf and hearing impaired persons to call for emergency help. The court rejected the city’s argument that the high cost of the street alarm boxes warranted modification of the decree. Civic Ass’n of the Deaf v. City of New York, No. 95 Civ. 8591, 2011 WL 3586133 (S.D.N.Y. Aug. 15, 2011). Judge Robert W. Sweet, a Carter nominee, wrote the opinion.
The current lawsuit stems from an injunction issued against the City of New York and the New York City Fire Department (collectively “Defendants”) in 1996. In that lawsuit, the Civic Association of the Deaf of New York City and Stephen G. Younger, II (collectively “Plaintiffs”) were successful in enjoining the Defendants from removing street alarm boxes pursuant to the Americans with Disabilities Act of 1990 (“ADA”) and the Rehabilitation Act of 1973 (“RA”). Civic Ass’n of the Deaf v. Giuliani, 915 F. Supp. 622 (S.D.N.Y. 1996) (“Civic I”). The court issued the injunction after holding that the 911 system existing at the time was an inadequate alternative to the street alarm boxes because deaf and hearing impaired persons could not use the 911 system to reach emergency dispatchers while on the street. Id. at 639. The court, however, stated that it would modify or vacate the injunction once the Defendants were able to demonstrate that the 911 system is available and effective throughout the city and that there is a protocol that allows deaf and hearing impaired persons to report a fire. Id. Additionally, in a later lawsuit, the court also held that “one-button” emergency alarm boxes, which do not allow the user to specify whether police or fire assistance is needed, violate the ADA and RA, and ordered the Defendants to convert them to “two-button” boxes. Civic Ass’n of the Deaf v. Giuliani, 970 F. Supp. 352 (S.D.N.Y. 1997) (“Civic II”).
In 2010, in response to the high costs of maintaining the “street alarm box system,” its decline in use, and the frequent false reports received from the boxes, the Defendants filed a motion to vacate or modify the injunction. As an alternative to the street alarm box system, the Defendants propose that deaf and hearing impaired persons call 911 via public payphones and use the “tapping protocol” to indicate whether they are requesting police or fire/EMS assistance. The defendants argue that this system meets the requirements of the ADA and the RA, and satisfies the requirements set forth in the court’s prior holdings for vacating or modifying the injunction.
In the opinion, the court held that the proposed system does not satisfy the requirements set forth in the court’s prior holdings necessary to vacate or modify the injunction. The court first questioned whether payphones were a meaningful alternative, given the fact that they are similar to the “one-button” street alarm boxes held to be inadequate in Civic II. The court was also troubled by the fact that deaf or hearing impaired persons might not know whether a payphone is out of order, which might lead them to question whether the police or fire department received their call. Additionally, the court found that the city had not met its burden of educating the deaf and hearing impaired community on how to use the tapping protocol. While instructional materials on how to use the protocol are available on the internet, the Defendants did not post the instructions on the payphones themselves nor did they conduct outreach to areas where the deaf and hearing impaired community would be likely to find the information. As a result, the court concluded that “the deaf and hearing impaired community is left to assume that standard payphones are not accessible to it.”
Next, the court held that the tapping protocol system does not provide “meaningful access” to emergency services as required by the ADA and the RA. The court rejected the Defendants’ argument that the replacement of the street alarm box system with the tapping protocol system would continue to provide deaf or hearing impaired persons with “meaningful access” to emergency services. The court based its holding on its earlier findings that the Defendants had not demonstrated that the tapping protocol works, that the city does not have sufficient control over public payphones, and that the city had not sufficiently educated the deaf and hearing impaired community on how to use the tapping protocol.
Finally, the court held that the Defendants failed to demonstrate that the application of the injunction is inequitable. The court first rejected the Defendants’ argument that the introduction of the tapping protocol constitutes a changed circumstance that renders the injunction inequitable. The court also dismissed the Defendants’ arguments that the infrequent use of the alarm boxes and the increasing use of mobile phones constitute changes that render the injunction inequitable. The court reasoned that “the overall decline in the use of street alarm boxes does not establish that the system has become less vital to [deaf and hearing impaired persons].” Finally, the court stated that while that the alarm box system is costly, its cost does not constitute changed circumstances that merit a change in the injunction. The court added that the Defendants did not argue that the high costs of the system makes them eligible for the “undue burden” exception to the ADA and the RA.