The Civ. Assoc. Deaf, et al v. Giuliani, et al
Filing
126
OPINION re: 76 MOTION to Vacate, filed by The City of New York, Carlos Cuevas, Peter Vallone, Howard New York City Police Commissioner, Thomas Ognibene and Rudolph Giuliani. Based on the facts and conclusions set forth within, Defendants' motion to vacate or modify the permanent injunction is denied. (Signed by Judge Robert W. Sweet on 8/12/2011) (ab)
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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,
. 8591
95
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 Commiss
Department of the
York (collectively,
New York ("FDNY"), and the City of New
"Defendants") have moved to vacate or
modify the permanent injunction imposed by
9, 1996. 1
of the Fire
The Defendants
Court on February
to vacate the injunction in order
1 These individual defendants are successors to the
defendants, Mayor
Rudolph Giuliani and Commissioner Howard Safir, who were sued in their
official capacities. These
Defendants are automatically substituted
by operation of Fed. R. Civ. P. 2S(d). The successors to the other original
defendants (the Majority and Minority Leaders of the New York City Council,
the
of the New York City Council, and City Clerk and Clerk of the New
1
to deactivate the remaining street alarm boxes in New York City,
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.
For the following
reasons, Defendants' motion is denied.
I. Prior Proceedings
The Civic Association of the Deaf of New York City,
Inc. and Stephen G. Younger, II
(collectively, the "Plaintiffs")
filed a putative class action on October 10[ 1995, seeking to
enjoin Defendants from removing street alarm boxes 2 under the
Americans with Disabilities Act of 1990 (ADA) [ the
Rehabilitation Act of 1973 (RA), and the equal protection
clauses of the Fifth and Fourteenth Amendments to the United
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 considering a
proposed local law lifting prior local law restrictions on the deactivation
of the street alarm box system.
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 city's
street alarm boxes are ERS boxes.
2
2
the class and found that Defendants' plan to remove
street
alarm boxes violated the ADA and RA, but not the equal
protection clauses, and enjoined Defendants from executing their
removal plan (the "injunction").
Specifically, the Court barred
Defendants from "carrying out any shutdown, deact
removal,
ion,
imination, obstruction, or interference 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 the Deaf v. Giuliani, 915 F. Supp. 622, 639
(S.D.N.Y. 1996)
("Civic I").
The Court held that the 911 system
existing at the time was an inadequate alternat
alarm box system "because public
ephones [did] not enable
deaf and hearing impaired to request fire as
from the street."
to the street
stance directly
Id.
Underlying the Civic I decision were two factual
findings:
(1)
"the evidence to date has not
ished
911 is in place and effective," or that telephone location
information was reliable in establishing the location of the
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 for police or fire/EMS services.
rd. at 638.
The Court left open the opportunity for Defendants
to have the injunction modified or vacated "by demonstrating
that an accessible notification alternative exists.
Among the
means by which Defendants can meet this burden will be by
demonstrating that E 911 is in operation and effective
throughout the City and that a protocol has been developed
providing the deaf and hearing impaired with the ability to
report a fire."
rd. at 639.
The Court also discussed features that would be
required to demonstrate that a system meets the requirements of
the ADA
I
using Defendants' 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 the ADA.
To do SOl 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 received 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 the ERS and BARS boxes.
Several factors however suggest that the E-911 system
does not at present provide an adequate notification
1
l
l
4
alternative.
First, the evidence to date has not
established that E 911 is
place and effective.
Moreover, assuming that the system has gone on-line as
scheduled, there is no evidence that
system
functions as projected to identify effectively the
location of the telephone from which calls are
reported.
Second, although Defendants alluded to a
proposed protocol, no evidence has been offered that
one has been affected. To comply with the ADA,
Defendants would have to develop such a protocol and
disseminate the fact of its existence to the deaf and
hearing impaired.
Id. at 638.
On June 11, 1996, Defendants sought to vacate the
injunction, but withdrew that attempt on April 1, 1997.
Meanwhile, on February 24, 1997, Plaintiffs moved the 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.
352, 363
Civic Association of the Deaf v. Giuliani, 970 F. Supp.
(S.D.N.Y. 1997)
("Civic II").
Court also found
that the reduced number of boxes in pilot areas did not violate
the ADA and RA.
Id.
In rendering its decision, 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
II
[t]he question is whether modifying the injunction in this
manner is consistent with the 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.
Id. at 358.
114
On October 27, 1998, Defendants again sought to vacate
the injunction.
or modi
1999.
This motion was withdrawn on May 25,
Judgment was entered on January 21, 2000.
Defendants' current motion to vacate or modify the
injunction was filed on June 23, 2010.
on June 3
II.
1
Oral argument took place
2011.
Statement of Facts
a. Street Alarm. Boxes
There are currently 4,918 BARS and 10,159 ERS boxes in
New York City.
~
Dingman Decl. at
4; Rosenzweig Decl. at
~
9.
For reasons discussed below, the standard to be applied in analyzing
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, allowing users to visually recognize and
specify the service they need.
Decl. at
~~
9, 14.
Dingman Decl. at ~ 5i Rosenzweig
ERS boxes put the user in two way contact
with the specified emergency personnel, allowing the user to
speak to a dispatcher.
Dingman Decl. at ~ 5.
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 24i 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 circuit 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 be dispatched after 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 ~ 9; Dingman Decl. at ~
way communications.
6.
When a BARS box is activated, the FDNY sends at minimum a
ladder company and an engine company to the box's location.
Dingman Decl. at
~
7.
This means that BARS boxes require no
communication beyond a lever pull to
to the box's
ion.
emergency fire services
at ~ 13.
Rosenzweig
However, BARS
box users cannot specify a need for police services.
Street alarm boxes are located at approximately every
other block on the streets of New York City, as well as on
highways, terminals, and bridges and in public buildings,
schools, hospitals, prisons, daycare centers, and the United
Nations.
Rosenzweig Decl. at ~ 10.
made using a street alarm box,
When a request for help is
location of that box is
instantly communicated to the dispatcher, allowing him or her to
send emergency units to the box's location without any more
information.
Rosenzweig Decl. at
8
~
11.
The City tests ERS boxes daily to be sure they are in
working order.
Rosenzweig Decl. at , 22.
If any box
ils the
test! a Communications Electrician is immediately requested to
inspect the box.
Rosenzweig Decl. at , 22.
If the box is
defective! it is replaced while it is repaired.
Decl. at , 22.
Rosenzweig
If no replacement is available! the box is
draped in a sign indicating that it is temporarily out of
service.
Rosenzweig Decl. at , 22. If the 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 Decl. at , 9; Guerriera Decl. at , 7.
tapping protocol allows users to specify through repeated
two taps or single taps on the receiver whether they need fire
or police assistance! respectively! 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 ~ lOi Guerriera Decl. at ~ 7i 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.
Dingman Decl. at
~
Dispatchers have been trained and drilled in the tapping
protocol since 1997.
~
Dingman Decl. at
IIi
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.
Vecchi Decl. at
~
24.
Of those
21 were malicious false alarms, 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
2008, 12 calls to the FDNY were designat
Vecchi Decl. at , 25.
~
25.
24.
In
as "tapping calls. 1I
Of those, 10 were malicious false alarms,
one was "unwarranted" and the last was "unnecessary."
Decl. at
~
In other words, no tapp
actual emergency in 2008.
Vecchi
call reported an
In 2009, only 6 calls to the FDNY
were designated as tapping calls, all of which were malicious
10
false alarms.
Vecchi Decl. at ~ 26.
Of course, it is unclear
whether the low amount of tapping calls is due to underuse of
the street alarm boxes or the population's lack of familiarity
with the tapping protocol.
The City has made efforts to disseminate
tapping
protocol through fire safety presentations made to schools for
the deaf, religious organizations, and other organizations
associated with the hearing impaired.
Galvin Decl. at
~~
3-4.
However, the breadth and effectiveness of these distribution
efforts are unclear.
The tapping protocol was not part of the
FDNY's fire training efforts until the 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 maintained a website relating to the use
of the tapping protocol on street alarm boxes and public
payphones, the Defendants have not produced evidence of an
effective outreach program for the deaf and hearing impaired.
Schroedel Decl. at
~~
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.
Guerriera Decl. at
This enables police and fire units to be directed to a
public 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.
ALI/ANI database is run by Verizon, meaning that the
The
ty must
rely on a private provider for up-to date locations of public
Rosenzweig Decl. at ~ 34.
payphones.
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 t subwayst on private
propertyt or in public buildings.
Shor Dep. 21:12 22:25.
All
told t the DoITT is responsible for approximately 14 t 500 phones
within its network.
Shor Dep. 38:17.
Inspections of public
payphones are made pursuant to outside complaints and DoITT
policy considerations.
Shor Dep. 53:16-54:23.
In general t the City does control the exact number of
payphones in the City and where they are located t and franchise
holders install and remove payphones based on their
profitabilitYt though the City can insist that a phone
in a certa
location for public need.
placed
Shor Dep. 65:8-66:25 t
157:3-157:15, 162:6 162:20.
New York Cityts public payphones are, for the most
partt not equipped with devices or services that enable deaf and
hearing impaired persons to effectively report emergencies.
Rosenzweig Decl. at
~
26.
While the NYPD and FDNY are equipped
to receive calls placed through Telecommunications Devices for
the Deaf (TDDs)
t
no evidence has been presented that public
payphones have the equipment required to make such calls.
Furthermore t 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 unlike ERS boxes,
where a user can broadly specify the emergency without speaking
by selecting the button for the service they need.
Decl. at ~~ 9, 14.
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 visually that the phone is in working order.
Sonnenstrahl Dep. 57:1-57:14i Schroedel Dep. 46:16 46:19i
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 dispatcher answered (Rosenzweig Decl. at
~
Plaintiffs'
21)1 but the City (in open court) and two
witnesses have represented that the vibration system does not
work.
Even
Sonnenstrahl Dep. 57:18 57:22i Schroedel Dep. 65:4 65:7.
SOl
have more
it has been represented to the Court that deaf persons
ith in the street alarm box system than public
payphones, as they can visually specify the services they need
and trust the City to maintain the boxes.
Schroedel Decl. at
~~
111 17.
d. The Cost and Use of the street
~arm
Box System
The driving force behind the Cityls attempts to
deactivate the street alarm boxes is cost.
in matters of fiscal concern
l
As is often the case
the New York City 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 alarm
boxes.
Stulberg Decl. at ~~ 21-26.
The 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
maintaining the street
alarm system to rise to $7 million by 2014.
6.
Am. Rush Decl. at ~
Capital costs for the street alarm boxes have been projected
to be $24.8 million over the next ten years.
~
Am. Rush Decl. at ~
7.
Am. Rush Decl. at
To put these 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.
Am. Rush Decl. at
The FDNY is facing difficult budgetary choices, and it
would like to redirect the funds currently supporting the street
alarm box system. s
Supp. Rush Decl. at ~ 5.
The use of street alarm boxes to report FDNY
emergencies has
ined substantially over the past 15 years. 6
SIt appears that, in proposing to remove the street alarm boxes, the City
initially thought mobile phones would be an adequate replacement for
reporting emergencies from the street. Stulberg Decl. at ~~ 20 25.
The statistics provided to the Court through the Vecchi Declaration and
attached exhibits only address FDNY incidents (fire and EMS services). While
6
16
Vecchi Decl. at Ex. Ci Supp. Vecchi Decl. at ~ 9
Ex. K.
t
In
1999, alarm boxes were used to report FDNY incidents 42,497
times.
Vecchi Decl. at Ex. C.
By 2009, that number had
declined to 12,931 times, a fall of 69.6%.
Ex. C.
Vecchi Decl. at ~ 8,
Meanwhile, reporting verbally, through private alarm
systems and through telephone calls, increased.
Ex. C.
In 2009, FDNY emergencies were reported by phone 401,056
times, dwarfing the use of street alarm boxes.
~
8
t
Vecchi Decl. at
Ex. C.
Vecchi Decl. at
Focusing on structural fires, while the number of
these serious fires has declined over all (Rosenzweig Decl. at ,
40, Ex. H), the amount of structural fires reported through
street alarm boxes has declined from 1,188 in 1999 to 140 in
2009 t
a fall of 88.2%.
Vecchi Decl. at , 9, Ex. B.
The decline
in phone calls reporting structural fires was only 30.7%.
Vecchi Decl. at , 9, Ex. C.
The increase in mobile phone usage is a significant
factor in these 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 datal the FDNY statistics show
significant trends in the use of street alarm boxes.
17
Rosenzweig Decl. at
~
41.
Street alarm boxes report only 0.5%
of all structural fires, 1.4% of non-structural fires,
0.6% of
all non-medical emergencies, and 0.2% of medical emergencies.
Vecchi Decl. at
~
22.
However, the rise of mobile phones and
their 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 ~ 9.
By 2003, the total number of fire and
medical emergency incidents rose to 403,194, but only 3,918
of these were reported through street alarm boxes.
Decl. at
~
9.
SUpp.
In 2010, the trend continued.
(1%)
SUpp. Vecchi
The number of 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 of
legitimate incidents reported to the FDNY rose by 24% between
18
1997 and 2010, the number of legitimate incidents reported by
street alarm box declined by 80%.
Supp. Vecchi Decl. at , 10.
Among the causes for the decline have been the promotion of
alternatives to street alarm boxes and a lack of promotion of
the street alarm boxes themselves.
42.
Rosenzweig Decl. at "
41
The maintenance of street alarm boxes has also been in
decline, with the rate of out of service boxes increasing from
1.9% in 2003 to 10.1% in 2008 and 9.4% in 2010.
Decl. at , 43.
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
~arms
While the amount of emergencies reported through
street alarm boxes has declined significantly, street alarm
boxes are a substantial source of malicious false alarms. 7
In
2009, 2,805 of the 3,102 FDNY incidents received from BARS boxes
were malicious false alarms.
Vecchi Decl. at , 15, Ex. D.
is a 90.4% malicious false alarm rate.
Ex. D.
7
Vecchi Decl. at , 15,
ERS boxes were not as prone to abuse.
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
emergencies (that is,
alarms) from all
largest.
1 calls that were not malicious false
ing sources, among which 911 was the
See Vecchi Decl. Ex. D.
Is, only 0.4%
Of these
(1,935 of 447,639) originated from street alarm boxes, and many
of those calls were redundant reports.
& n.4, Ex. D.
In
I, the street alarm box system is
responsible for 2.7% of the incoming
malicious false
18, Ex. D.
See Vecchi Decl. at ~ 10
Is but 43.3% of
arms burdening the FDNY.
~
Vecchi Decl. at
In total, nearly 11,000 malicious false alarms came
in from street
arm boxes that year.
The malicious
se alarm rate for street alarm boxes is 85%,
while it is 3.1% for all other sources.
Ex. D.
See Vecchi Decl. Ex. D.
Vecchi Decl. at
~
19,
As noted above, 37 of the 43 "tapping" calls received
from ERS
from 2007-2009 were malicious false alarms, a
rate of 86%, while only one "tapping" call reported an actual
emergency
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
send emergency personnel racing through the streets of New York.
Vecchi Decl. at ~ 21.
In other words, malicious false 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 of 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 requested emergency services will be sent
to the box's location.
Rosenzweig Decl. at
~~
18-19.
Between
the hours of 11 p.m. and 8 a.m., even silent calls will receive
immediate emergency services.
Rosenzweig Decl. at
~
16.
f. Potential Alternatives to the Street AlaDn 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 the increasing
and mobile devices.
use of, and dependence on, wi
Framework
See
Next Generation 911 Deployment, 76 Fed. Reg. 2297,
2297 (Jan. 13, 2011)
i
U.S. Dep't of Transp., Research and
Innovative Tech. Admin., Research Success Stories: Next
Generation 911 (May 6, 2011).
As
of the planning efforts
surrounding NG911, authorit
have recognized that persons with
disabilities now use "the Internet and wireless text devices as
their primary modes of t
ecommunications" and governments are
attempting to develop capabil
Internet.
ies in voice and data
the
See Nondiscrimination on the Basis of Disability in
State and Local Government Services; Accessibility of Next
Generation 9-1-1, 75 Fed. Reg. 43,446, 43,446 (Jul. 26 1 2010).
Some municipalities
reporting.
ready accept text-based emergency
For example
1
Sacramento accepts emergency reporting
via email from persons with di
lities.
43,449.
22
See 75 Fed.
at
III. Legal Standard
An injunction is an equitable and "ambulatory remedy
that marches along according to the nature of a proceeding."
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
see
United States v. Swift & Co., 286
so Agostini 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 circumstances, Davis v. N.Y. Ci
64, 88 (2d
Hous. Auth., 278 F.3d
r. 2002)/ or upon a showing that a continuation of
the injunction would be inequitable, N.Y. State Assln for
_R~e_t~a_r~d_e_d_C~h~i_l~d_r_e_n__
v_.__~~~,
706 F.2d 956, 967
see also Fed. R. Civ. P. 60(b)
(2d Cir. 1983)
i
(listing the grounds for relief
from a final judgment or order, which include when applying the
judgment "prospectively is no longer equitable ll or "any other
reason that justifies
iefll).
The district court's power to
modify or vacate an injunction "is long established, broad, and
flexible."
Carey, 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.
794/ similarly provides that
Section
11
[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 the 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
othersi
(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 the 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 disabilities or to any
class of individuals with disabilities than is
provided to others unless such action is necessary to
provide qualified individuals with disabil
25
ies with
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 readily 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 publ
entity shall take appropriate steps to ensure that
communications with applicants, participants and members of the
public with disabilities are as effective as communications with
others."
28 C.F.R.
§
35.160(a)
(quoted in Civic I, 915 F. Supp.
at 636).
26
The parties di
over what standard of access
Defendants must meet to comply with the ADA and RA.
Defendants
cite a "meaningful access H standard, while Plaintiffs cite an
"equal access" standard.
aintiffs have derived the equal
access standard from regulat
Specifically, Plaintiffs c
promulgated under the ADA.
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 with a disability an
opportunity to participate in or
ce that is not equal to that
or
C.F.R.
§
fit from the aid, benefit,
forded others," and 28
35.160(a), which states that "[a] public entity shall
appropriate steps to ensure that communications with
applicants, participants, and members of
di
1
public with
ies are as effective as communications with others."
The "meaningful access" standard urged by Defendants
is found in the case law and this Court's
rul ings . 8
In
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
deaf and
impaired individuals with equal means to report a fire from
the street, but readily accessible, effective means to do so. Id. 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.
8
27
Henrietta D. v. Bloomberg, 331 F.3d 261, 275
(2d Cir. 2003), the
Second Circuit held that the relevant measure is "whether the
disabil
plaintiffs wi
ies could achieve meaningful access."
See also,
Riverside, 571 F.3d 846, 851
(9th Cir. 2009)
(stating that Title II's "prohibition against
discrimination is universally understood as a requirement to
provide 'meaningful access'" and citing cases)
of Boston, 452 F.3d 94, 99 (1st Cir. 2006)
of
i
Iverson v.
("The clear purport
tIe II is to guarantee that qualified disabled persons
enjoy meaningful access to public services, programs, and
activities.") i see generally
304 (1985).
exander v. Choate, 469 U.S. 287,
In formulating the meaningful access standard, the
Supreme Court explicitly rejected the position that all conduct
that had a disparate impact on disabled persons violated the
Rehabilitation Act, noting "two powerful but countervailing
considerations - the need to give effect to the statutory
object
bounds.
and the desire to keep
II
§
504 within manageable
Alexander, 469 U.S. at 299.
The "meaningful access"
standard thus struck a balance between these two legitimate
goals.
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. 9
See Alexander v.
Island
Sandoval, 532 U.S. 275, 285 (2001) i Abrahams v. MTA
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")
i
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.
In Sandoval, the
Supreme Court addressed Department of Justice regulations
promulgated to effectuate
§
601 of Title VI of the 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.
9
The ADA and RA prohibit discrimination against
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, but the
statutes neither guarantee "any particular level of [services]
for disabled persons, nor assure maintenance of service
previously provided.
II
Lincoln CERCPAC v. Health and Hosps.
Corp., 147 F.3d 165, 168 (2d Cir. 1998).
In addition, the
statutes do not guarantee disabled persons "equal results"
the provision
a public service or benefit.
from
Alexander, 469
U.s. at 304 (liThe [Rehabilitation] Act does not, however,
guarantee the handicapped equal results from the provision of
state Medicaid, even assuming some measure of equality of health
could be constructed.")
i
see also Henrietta D., 331 F.3d at 274
(stating that Second Circuit cases applying the RA "speak simply
terms of helping individuals with disabilities access public
benefits to which both they and those without disabilities are
legally entitled ...
; the cases do not invite comparisons to the
results obtained by individuals without disabilities") .
Plaintiffs' arguments for a stricter "equal access"
standard thus fail, and Defendants' proposed removal and
replacement of 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 the same, and claims under the two
statutes are generally treated identically and in tandem.
, Henrietta D., 331 F.3d at 272.
V. Discussion
Defendants claim that the tapping protocol and E 911
systems meet the requirements of the ADA and RA and satisfy this
courtls prior holdings.
They do not l and the
unction 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 U 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."
Defendants
I
E 911 automat
Id. at 638.
According to
ly 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 ~~ 7, 12 & Exs. E-1-E-3;
Dingman Decl. at
~
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 Guerriera
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)).
In Civic I, the Court held as follows:
Defendants may apply at any time to dissolve or modify
the injunction by demonstrating that an accessible
notification alternative exists. Among the means by
which Defendants can meet this burden will be by
demonstrating that E 911 is in operation and effective
throughout the City and that a protocol has been
developed providing the deaf and hearing impaired with
the ability to report a fire.
915 F. Supp. at 639; see also Civic II, 970 F. Supp. at 355
(II
[A]n E-911 telephone system that actually identified the
location of the caller, along with the implementation of a
protocol to permit the hearing impaired to indicate the type of
emergency being reported, would be sufficiently accessible under
the ADA. ")
When the City's current effort to eliminate the street
alarm boxes was proposed in 2010, the changed circumstance was
33
considered to be the use of cell phones.
When this motion was
filed, the Defendants relied on public payphones.
However, in
practice, public payphones and the tapping protocol do not
combine to establish an adequate accessible alternative 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 familiar with and regularly
trained in the tapping protocol.
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.
users to specify pol
The tapping protocol is supposed to allow
or fire emergencies, but public
payphones have not been tested with the tapping protocol.
34
Guerriera Dep. 98, Doc. 106 4, May 27, 2011i Dingman Dep. 56,
Doc. 106-2, May 27, 2011; 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.
In fact, the
payphones are distributed and preserved pursuant to the
commerci
interests of their owners, with the City having
little say over the phones' locations.
Thus, Defendants have
not established that public pay telephones will make E 911
operational and
fective throughout the City for deaf and
hearing impaired persons.
This is particularly 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 mobile phones.
This
renders the payphones an unstable solution.
Plaintiffs have also demonstrated that many payphones
have not been maintained in good condition by the
owners.
private
The City is unable to sufficiently police the
35
maintenance and repair of public payphones, as it concedes that
it has only a handful of inspectors who tend to focus on phones
with histories of failure. 1o
Neither the City nor the owners
public payphones controls whether those devices are provided
with dial tones by third-party providers on any given day, thus
aggravating the dispersion of responsibility among the City and
private actors.
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.
All
Stulberg Decl. ~~ 37 39.
these issues stemming from payphone ownership
and maintenance are aggravated for a deaf or hearing impaired
person.
If a deaf or hearing impaired caller 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 his or her call has been answered by a recording, by an
operator or at all, and has no way of communicating with the
operator in 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 disconcert
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 ~ 11; Rosenzweig Decl. at ~~ 31, 33.
Schroedel
Significantly, a
broken payphone appears and acts no differently from a working
payphone from the perspective of deaf or hearing impaired
persons.
Schroedel Decl. at ~ 11.
Defendants claim street alarm boxes are no better at
indicating to a deaf or hearing 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 ignores the 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 "disseminate 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 the
FDNY and NYPD websites t as well as the website maintained by the
MOPD.
Defendants further claim that instructional materials are
available on Youtube and Wikipedia.
Defendants also cite eight
religious, educational, and community organizations which serve
the deaf and hearing impaired and for which demonstrations of
See Galvin Decl. at ~~ 3-4.
the tapping protocol were made.
However, Defendants have not demonstrated that this information
which is for the most part passively available on the Internet,
is actually reaching deaf and hearing impaired persons so as to
make its distribution effective.
To the contrary, Defendants have not conducted
sufficient outreach to places where the deaf and hearing
impaired community would be more likely to obtain information .
. , Galvin Dep. 18:9-19:6 t
31:14-31:25, 46:25 47:23
(indicating that the FDNY did not include the tapping protocol
in fire emergency training prior to 2010) i Plummer Decl. at
2-3, 4, 10 11.
To take an example t Defendants have not posted
any notices about the tapping protocol on the payphones
themselves.
~~
Without sufficient education on the tapping
protocol, the deaf and hearing impaired community is left to
38
t
assume
standard payphones are not accessible to
Without such outreach, the tapping protocol cannot be deemed
effective, and the factual circumstances in this case have not
changed sufficiently to merit withdrawal of 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, Title II
the ADA, 42 U.S.C.
§
12132, - - - " " " ' - provides that "no qualified individual with a
et
.
disability shall, by reason of such disability, be excluded from
participation in or be denied the benefits
programs or activities
the
a public entity."
Civic I, 915 F. Supp. at 634.
ces,
42 U.S.C.
§
12132;
The RA provides for substantially
similar protection of qualified persons.
29 U.S.C.
§
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 disabilities and to others are actually equal, but
whether those with disabilities are as a practical matter able
to access benefits to which they are legal
39
entitled."
Henrietta D'I 331 F.3d at 273.
"Meaningful access H is not
measured or defined in relation to the access that persons
without disabilities have to a particular service
relate to the adequacy of services provided.
l
nor does it
See Id. at 275
(noting that the relevant measure is "whether the plaintiffs
wi
disabilities could achieve meaningful access
l
and not
whether the access the plaintiffs had (absent a remedy) was less
meaningful than what was enjoyed by others"); Wright v.
Giul
-----
I
230 F. 3d 543
disabilit
I
548 (2d Cir. 2000)
(explaining that the
statutes require that government entit
enable
"'meaningful access' to such services as may be provided
whether such services are adequate or not").
with di
Rather
l
l
persons
lities must be able to "benefit meaningful
I!
from
the specific service or benefit that a government entity
provides.
See Alexander
l
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 impaired persons with the
required meaningful access to emergency reporting services on
the street.
Defendants argue that this case is 1
which Tennessee's proposed reduction
40
l
Alexander
from twenty to
I
fourteen, of the number of days its state Medicaid program would
cover inpatient hospital care was challenged.
469 U.S. at 289.
In that case, it was undisputed that Medicaid recipients with
ces were more than three
disabilities who used hospital
times as likely to require more than fourteen days of care than
were their non-disabled counterparts.
See Id. at 289 90.
A
class of Tennessee Medicaid recipients with disabilities
challenged
proposed reduction on the grounds that the
reduction would have a disproportionate
thus discriminatory.
fect on them and was
See Id. at 290.
The Supreme Court rejected the
lenge, 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," notwithstanding "their greater
need for prolonged inpatient care.!!
explained that Section 504
Id. at 302.
The Court
the Rehabilitation Act did not
require the State to alter the fourteen-day coverage benefit
being offered flsimply to meet the
ity that the handicapped
have greater medical needs," Id. at 303, but that
statute
instead flseeks 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 Ifis 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,lf 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
Ifmeaningful access lf 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
Ifbenefit 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 Id. at 302,
309; _s_e_e_____o, e.g., Wright, 230 F.3d at 548 (stating that the
s
disabilities statutes require government entities "to enable
'meaningful access' to such services as may be provided").
so point to the Court's holding in Civic II, which
Defendants
found that a street reporting system with less alarms did not
violate the ADA.
s Court
970 F. Supp. at 362 63.
In that decision,
d 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
aintiffs had argued, whether
accessible to the deaf than the non deaf."
system was "less
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
arm boxes
(15,077 alarm boxes and over 14,500 payphones).
the city
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
commerci
t
interests.
Defendants also contend that payphones are a superior
option to BARS boxes
services.
This argument suggests that BARS boxes should be
replaced by ERS boxes
above
t
which only connect callers to FDNY
t
t
which are, for the reasons discussed
superior to public payphones and already effectively
implemented across the city.
As explained above with regard to Defendants
to satisfy this Court's prior rulings
t
t
failure
and unlike in Alexander,
public payphones, E-911 and the tapping protocol do not provide
an accessible alternative for deaf and hearing impaired persons
attempting to report an emergency from the street.
Rather than
a scaling down of this benefit to a still meaningful level, the
removal of street alarm boxes and their replacement with
payphones
t
E 911, and the tapping protocol constitutes a
deprivation of a benefit provided to non-hearing impaired
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 the
location and maintenance of public payphones (and there are
demonstrated problems with the distribution and functionality of
public payphones), and information on the payphone and tapping
protocol system has not been sufficiently disseminated in the
deaf and hearing impaired community to be effective.
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 alarm box system.
Therefore, Defendants' proposed removal of the 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 t among the reasons a court may modify
an injunction is when its application "is no longer equitable"
or to accommodate changed
60(b) (5).
rcumstances.
Fed. R. Civ. P.
In other words, a party must show "a significant
change either in factual conditions or in law."
Felton, 521 U.S. 203, 215 (1997) i see also,
45
~,
Agostini v.
pavis v. N.Y.
City Hous. 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 Cir. 1984)
(noting that "in the case of a final or permanent injunction,
the inquiry .
. is whether there has been such a change in the
circumstances as to make modification of the decree equitable")
While Defendants have shown that some of the factual
circumstances surrounding the injunction have changed, they have
not established that the injunction is now inequitable.
Defendants cite the implementation of 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 alter the Court's
prior rulings.
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,
Ita significant
number of rescues [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.
of
The deaf and hearing impaired represent a small segment
population, and the overall decline in the use of 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
street
arm system, claiming that in the
past three years, the FDNY has received 43 calls in which some
form of tapping was perceived, of which 37 (86% of such calls)
were determined to be malicious false
arms.
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 emergencies, just that
they are not using the tapping protocol.
These statistics do
not establish that deaf and hearing impaired persons no longer
street
arm boxes to report emergencies from the street.
48
In connection with the utility of the street alarm
boxes, the Defendants point out its cost, as found above.
Defendants contend that these costs impact the FDNY budget and
imply that fewer firefighters are being hired.
Though
Defendants raise these points, they do not claim that they are
eligible for the "undue burden" exception to the ADA and RA.
The cost of the alarm box system is undisputed but does not
constitute changed circumstances meriting a change in the
permanent injunction.
The Court is sympathetic to the burdens imposed by the
expensive,
lse-report-prone street alarm box system.
This
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 order
to provide deaf and hearing impaired persons meaningful access
to report emergencies and to comply with the ADA and RA.
injunction remains an equitable solution.
In the future, given the use of text-based
communications in the deaf and hearing impaired community,
allowing emergency reporting with mobile devices via text
49
The
message or email may obviate that community's need for street
alarm boxes to report emergencies from the street.
that
Regrettably,
ternative is not yet at hand.
Conclusion
Based upon the
s and conclusions set forth above,
Defendants' motion to vacate or modi
the permanent injunction
is denied.
It is so ordered.
New York, NY
August I y, 2011
U.S.D.J.
50
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