DJ# 204-67-153

I. PURPOSE

1. This Agreement is entered into between the United States Department of Justice (Department) and the City of Columbia, South Carolina Police Department (CPD) (collectively, Parties).  It is the Parties’ intent that this Settlement Agreement resolve all issues associated with the provision of effective communication with persons who are deaf and hard of hearing so that they may participate in or benefit from the law-enforcement related services, programs, or activities of CPD on an equal basis with other individuals, including but not limited to arrestees, detainees, suspects, victims, witnesses, companions, complainants, and visitors. 

II. BACKGROUND

2. The Department investigated a complaint filed pursuant to Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12131-12134, alleging, inter alia, that CPD failed to provide effective communication to the Complainant. Specifically, the Complainant, who is deaf, alleges that CPD failed to provide a sign language interpreter for him, despite several requests for one, when its officers questioned the Complainant over a period of three months, including at the time of his arrest. 
3. CPD is a “public entity” pursuant to Title II of the ADA, 42 U.S.C. § 12131.  Title II of the ADA prohibits discrimination against qualified individuals with disabilities on the basis of disability in the “services, programs, or activities of a public entity.”  42 U.S.C. § 12132.
4. The Attorney General is authorized, under 28 C.F.R. Part 35, Subpart F, to investigate the allegations of the complaint in this matter to determine CPD's compliance with Title II of the ADA and the Title II implementing regulation at 28 C.F.R. Part 35. The Department is also authorized to issue findings, and, where appropriate, to negotiate and secure voluntary compliance agreements. Furthermore, the Attorney General is authorized, under 42 U.S.C. § 12133, to bring civil actions enforcing Title II of the ADA should the United States fail to secure voluntary compliance pursuant to Subpart F.
5. In consideration of the terms of this Agreement as set forth below, the Attorney General agrees to refrain from filing a civil suit in this matter except as provided in the paragraph entitled “Notification of Noncompliance and Enforcement,” below.
6. CPD conducted an independent investigation of the allegations contained in the complaint and has cooperated fully in the United States’ investigation and made clear that it will work cooperatively with the United States to ensure that the CPD provides effective communication in full compliance with the requirements of Title II of the ADA.  CPD does not agree with the allegations in the United States’ inquiry, but both parties agree and acknowledge it is in the best interests of the City of Columbia and the United States to collaborate implementing policies and procedures for the City of Columbia designed to protect affected citizens. This Agreement is a negotiated compromise resolution and none of the terms of this Agreement shall be deemed to constitute an admission by CPD of any violation or liability under Title II of the ADA or any other law.
7. The parties agree that it is in the parties’ interest, and the United States believes that it is in the public interest, to resolve this matter expeditiously and without protracted litigation.  Accordingly, the parties have agreed to resolve this matter as set forth below.

III. DEFINITIONS

8. “Auxiliary aids and services” includes qualified interpreters on-site or through video remote interpreting (VRI) services; notetakers; computer-aided real-time transcription services (CART); written materials; exchange of written notes; telephone handset amplifiers; assistive listening devices; assistive listening systems; telephones compatible with hearing aids; closed caption decoders; open and closed captioning, including real-time captioning; voice, text, and video-based telecommunications products and systems, including text telephones (TTYs), videophones, and captioned telephones, or equally effective telecommunications devices; videotext displays; accessible electronic and information technology; or other effective methods of making aurally delivered information available to individuals who are deaf or hard of hearing acquisition or modification of equipment or devices; and other similar services and actions.
9. “Qualified Interpreter” means an interpreter who, via a video remote interpreting (VRI) service or an on-site appearance, is able to interpret effectively, accurately, and impartially, both receptively and expressively, using any necessary specialized vocabulary, given the deaf or hard of hearing individual’s language skills and education. Qualified interpreters include, for example, sign language interpreters, oral transliterators, and cued-language transliterators.  28 C.F.R. § 35.104.  Not all interpreters are qualified for all situations. For example, an interpreter who is qualified to interpret using American Sign Language (ASL) is not necessarily qualified to interpret orally. Also, someone who has only a rudimentary familiarity with sign language or finger spelling is not a “qualified sign language interpreter.” Likewise, someone who is fluent in sign language but who does not possess the ability to process spoken communication into the proper signs or to observe someone signing and translate their signed or finger-spelled communication into spoken words is not a qualified sign language interpreter. 28 C.F.R. pt. 35, App. A.
10. “Personnel” means all CPD and related law enforcement employees and volunteers.
11. “TTY” means a device that is used with a telephone to communicate with persons who are deaf or hard of hearing by typing and reading communications.
12. “Videophone” means a device with a video camera that can perform bi-directional video and audio transmissions between people in real-time.
13. “Video Remote Interpreting service” or “VRI” means an interpreting service that uses video conference technology over dedicated lines or wireless technology offering high-speed, wide-bandwidth video connection that delivers high-quality video images as provided in § 35.160(d).

IV.TERMS AND CONDITIONS

14. Nondiscrimination. CPD agrees not to engage in any act or practice, directly or through contracting, licensing, or other arrangements, that has the purpose or effect of unlawfully discriminating against any person with a disability in violation of Title II of the ADA. Unless otherwise indicated, within sixty (60) days of the effective date of this Agreement, CPD agrees to implement fully the practices and policies set forth below with respect to all law enforcement and related programs, services, and activities.
15. Coverage of Involuntary Participation.  Throughout this Agreement, terms such as “enjoyment,” “benefit,” or “seek” that in other contexts might imply the voluntary and willing participation of a member of the public in a public entity’s programs, services, or activities, shall also refer to a member of the public’s involuntary participation in CPD’s law enforcement and related programs, services, and activities, such as arrest or detention.
16. ADA Coordinator for Law Enforcement.  Within ten (10) days of the effective date of this Agreement, CPD will designate at least one employee to coordinate its efforts to comply with and carry out its responsibilities under Title II and this Agreement (ADA Coordinator for Law Enforcement).  The duties of the ADA Coordinator for Law Enforcement will include investigation of any complaint communicated to CPD alleging its noncompliance with, or alleging any actions that would be prohibited by, Title II or this Agreement.  CPD will post the name, office address, and telephone number of the employee or employees designated pursuant to this paragraph on its website as well as in places open to the public. See 28 C.F.R. § 35.107(a).  CPD will maintain the ADA Coordinator for Law Enforcement for the term of this Agreement.  If CPD changes who it appoints as ADA Coordinator for Law Enforcement, it will notify the United States in writing, and update the name and contact information anywhere it appears, within five (5) day of making such a change.
17. Provision of Auxiliary Aids and Services.  CPD will ensure that appropriate auxiliary aids and services, including qualified interpreters, are made available to all members of the public who are deaf, hard of hearing, or deaf-blind, where such aids and services are necessary to ensure effective communication, so that they may participate in or benefit from CPD’s law enforcement and related services, programs, or activities on an equal basis with others.  The type of aid or service provided will depend on the individual’s usual method of communication, and the nature, importance, and duration of the communication at issue.  In some circumstances, oral communication supplemented by gestures and visual aids, an exchange of written notes, use of a computer, or use of an assistive listening device may be effective.  In other circumstances, qualified sign language or oral interpreters are needed to communicate effectively with persons who are deaf or hard of hearing. The more lengthy, complex, and important the communication, the more likely it is that a qualified interpreter will be required for effective communication with a person whose primary means of communication is sign language.  To determine whether someone who is or may be deaf or hard of hearing wants a qualified sign language interpreter, in all non-exigent circumstances CPD personnel will use the American Sign Language pictogram for “sign language interpreter” found at Attachment A to inquire as to the person’s preference.
18. Routine Interactions in the Field.  Within ninety (90) days of the effective date of this agreement, CPD will submit to the Department for its approval a proposed Communication Card for use by CPD personnel to communicate with persons who are deaf or hard of hearing during routine interactions.   The Communication Card shall, at a minimum, include the same types of information and methods of conveying information as the sample Communication Card provided in Attachment B.  Within 30 days after the Department’s approval of the Communication Card, CPD will provide at least one card to every officer who interacts with members of the community.  For purposes of this paragraph, “routine interactions” means all interactions for which no imminent threat exists.
19. Imminent Threat and Exigent Circumstances.  When there is an emergency involving an imminent threat to the safety or welfare of an individual (including CPD personnel or members of the public), and there is insufficient time to make available appropriate auxiliary aids and services, CPD personnel will use whatever auxiliary aids and services are most effective under the circumstances to communicate with persons who are deaf or hard of hearing, consistent with an appropriate law enforcement response to the imminent threat.  This may include, for example, exchanging written notes or using the services of a person who knows sign language but who is not a qualified interpreter, for an interim period during the period of ongoing imminent threat, even if the person who is deaf or hard of hearing would prefer a qualified sign language interpreter or another appropriate auxiliary aid or service.  See 28 C.F.R. § 35.160(c).  When there is no longer an imminent threat, CPD will follow its procedures to provide appropriate auxiliary aids and services. 
20. Communication Assessment Form.  Upon taking an individual with a disability into custody for processing, CPD, in consultation with the arrestee, will assess what auxiliary aids or services are necessary, and the timing, duration, and frequency with which they will be provided, using a Communication Assessment Form.  The assessment will take into account all relevant facts and circumstances, including, for example, the individual’s communication skills and knowledge, and the nature and complexity of the communication at issue.  A Model Communication Assessment Form is attached to this Agreement as Attachment C.  Within thirty (30) days of the Effective Date of this Agreement, CPD will submit to the Department for its approval a form similar to Attachment C. 
21. Ongoing Need for Communication Assessments and Consultation.  CPD personnel will continue to reassess communication effectiveness regularly throughout the communication and will consult with the individual who is deaf or hard of hearing on a continuing basis to assess what measures are required to ensure effective communication.  See 28 C.F.R. pt. 35, App. A.  For example, while using paper and pen may be effective to communicate while checking a drivers’ license, further questioning at the precinct may require an interpreter, and CPD must reassess as the situation changes whether the individual requires a different auxiliary aid or service to ensure that effective communication is provided.
22. Primary Consideration.  In determining what type of auxiliary aid or service is necessary to comply with the ADA, CPD agrees to give primary consideration to the expressed preference for a particular auxiliary aid or service by an individual who is deaf or hard of hearing. 28 C.F.R. § 35.160.  “Primary consideration” means that CPD will inquire as to the choice of auxiliary aid or service of the individual with a disability and will honor the expressed choice unless it can demonstrate that another equally effective means of communication is available.   
23. Use of Interpreting Service Agency(ies). Within sixty (60) days of the effective date of the Agreement, CPD agrees:
    1. To form and maintain working relationships with one or more qualified oral/sign language interpreter agencies to ensure that interpreting services will be available on a priority basis, twenty-four hours per day, seven days a week;
    2. In the alternative, to make other appropriate arrangements such as contracting directly with or hiring qualified interpreters on a fee for service basis;
    3. To provide the Department with documentation that such interpreter services are being made available;
    4. To record all oral/written requests it receives for oral/sign language interpreters and any action taken or denial of services. That record shall be provided to the Department for review of compliance with this Agreement upon request by the Department and in annual compliance reports as required in Paragraph 34, below.
24. Time for Interpreter Response. Whenever a qualified interpreter is to be provided pursuant to policies and procedures adopted under this Agreement, the qualified interpreter will be provided at the earliest reasonable time.  In most cases during normal business hours, an interpreter should be provided within one hour of the first identification of a need.  Nighttime, weekend, or holiday requests may take longer, but still must be honored within a reasonable time.
25. Use of Other Members of the Public to Facilitate Communication. 
    1. CPD shall not require an individual who is deaf or hard of hearing to bring another member of the public to interpret for him or her. See 28 C.F.R. § 35.160(c)(1).
    2. CPD will not rely on an adult accompanying an individual who is deaf or hard of hearing to interpret or facilitate communication except:
       1. In an emergency involving an imminent threat to the safety or welfare of an individual or the public where there is no interpreter available, or
       2. Where the individual who is deaf or hard of hearing specifically requests that the accompanying adult interpret or facilitate communication, the accompanying adult agrees to provide such assistance, and reliance on that adult for such assistance is appropriate under the circumstances. See 28 C.F.R. § 35.160(c)(2).
    3. CPD shall not rely on a minor child to interpret or facilitate communication, except in an emergency involving an imminent threat to the safety or welfare of an individual or the public where there is no interpreter available. See 28 C.F.R. § 35.160(c)(3).
26. Reasonable Modification of Handcuffing Policies.  When CPD personnel deem it necessary to handcuff a person who is deaf or hard of hearing, personnel will, safety permitting, reasonably modify standard operating procedure and handcuff deaf members of the public in front to enable the person to communicate using sign language or writing.
27. Phones. Within three (3) months of the effective date of this Agreement, CPD will equip eachCPD station and substation with a sufficient number of working TTYs and videophones, but no fewer than one (1) of each, to enable people who are deaf, hard of hearing, or who have speech impairments to make telephone calls of the same frequency and with the same availability as those people who do not use such phones.  If any person who is deaf, hard of hearing, or who has a speech impairment prefers a different method of communication, such as a captioned telephone or computer, CPD will make reasonable efforts to provide the communication device requested.
    1. Where telephone calls are time-limited, CPD will adopt policies permitting a longer period of time for individuals using a TTY, videophone, or relay service due to the slower nature of these communications as compared to voice communications.  If a TTY or videophone is not available in the same location as telephones used by arrestees or detainees who are not deaf or hard of hearing, arrestees or detainees who need to use a TTY or videophone will be allocated reasonable additional time to get to and from the location of the equipment.
    2. Signage will be displayed at all public telephones areas indicating the availability of the TTY and videophone and the procedure for obtaining them.
    3. CPD will ensure that the privacy of telephone calls by arrestees or detainees using a TTY or videophone is equal to that of other arrestees' or detainees' telephone calls.
28. Signs.  Within sixty (60) days of the effective date of this Agreement, at all police stations and other CPD facilities at which law enforcement personnel are reasonably anticipated to engage with members of the public, CPD will post conspicuous signs in public areas (including booking and holding areas).  See 28 C.F.R. § 35.163.  Such signs will advise persons who are deaf or hard of hearing of the availability of appropriate auxiliary aids and services, including qualified interpreters, as follows:

    “To ensure effective communication with individuals who are deaf or hard of hearing, CPD will provide auxiliary aids and services, such as qualified sign language, oral, or tactile interpreters; videophones; and TTYs, free of charge.

    Please ask for assistance by contacting CPD’s ADA Coordinator for Law Enforcement, [name and full contact information].”

    The posted signs will include the International Symbol for Hearing Loss, the International Symbol for TTYs, and a symbol to indicate the availability of sign language interpreters:

          

29. Telephone Emergency Services.  CPD will ensure that its telephone emergency services, including 9-1-1 services, shall provide direct access to individuals who use TTYs and computer modems.  See 28 C.F.R. § 35.162.
30. Effective Communication Policies and Procedures.  Within sixty (60) days of the effective date of this Agreement, CPD will submit to the Department policies and procedures to implement fully the Settlement Agreement.  The policies and procedures must provide at least as great a degree of protection of the right to effective communication for persons who are deaf or hard of hearing as are provided in Attachment D, Columbia, South Carolina Police Department’s Policy Statement on Effective Communication with People Who are Deaf or Hard of Hearing; and Attachment E Guide for Law Enforcement Officers, When in Contact with People Who are Deaf or Hard of Hearing.
31. Training.
    1. Within four (4) months after receiving approval of CPD’s training program in accordance with paragraph 28.b, below, and at least once annually throughout the term of this Agreement, CPD will train all law enforcement and related personnel who have contact with members of the public on this Agreement and on the requirements of the ADA regarding effective communication with persons who are deaf, hard of hearing or deaf-blind.  The training will be sufficiently detailed to enable personnel to effectively implement all provisions of this Agreement, including the relevant attachments, and all policies and procedures developed pursuant to this Agreement.
    2. Within sixty (60) days of the effective date of this Agreement, CPD will submit for pre-approval by the United States a proposed training program, lasting at least half a day, on the requirements of the ADA and appropriate ways of serving people with disabilities.  The submission will include a description of the training, the agenda, any handouts, and the name, title, address, and curriculum vitae of the trainer.
    3. CPD will ensure that all new law enforcement and related personnel who will have contact with members of the public will receive the training as a component of pre-service training and orientation.
32. Grievance Procedures.  Within sixty (60) days of the effective date of this Agreement, CPD will adopt and publish grievance procedures providing for prompt and equitable resolution of complaints against CPD alleging any action that would be prohibited by Title II or this Agreement.  See 28 C.F.R. § 35.107(b).
33. Prohibition of Retaliation or Coercion.  CPD will not discriminate against an individual because that individual has opposed any act or practice made unlawful by Title II or this Agreement, or because the individual made a charge, testified, assisted or participated in any manner in an investigation, proceeding, or hearing under Title II or this Agreement.  CPD will not coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of, or on account of his or her having exercised or enjoyed, or on account of his or her having aided or encouraged any individual in the exercise or enjoyment of, any right granted or protected by Title II or this Agreement.  See 28 C.F.R. § 35.134.

V. IMPLEMENTATION AND ENFORCEMENT

34. Annual Reports; Compliance Review.  CPD will report annually, by January 30th of each year, to the Department as to its compliance with this Agreement.  All reports should be provided to the United States via overnight courier service to: Rebecca B. Bond, Chief, Disability Rights Section, DJ No. 204-67-153, Civil Rights Division, U.S. Department of Justice, 1425 New York Avenue, N.W., Fourth Floor, Washington, D.C. 20005.  The Department may review compliance with this Agreement at any time.
35. Notification of Noncompliance and Enforcement.  If the Department believes that this Agreement or any portion of it has been violated, it will notify CPD in writing and the parties will attempt to resolve the concerns in good faith.  If the Department is unable to reach a satisfactory resolution of the issue(s) raised within 30 days of the date that it provides notice to CPD, the Department may proceed with enforcement of this Agreement or of the ADA pursuant to 28 C.F.R. Part 35, Subpart F.
36. Lack of Waiver.  Failure by the Department to enforce any provision or deadline of this Agreement will not be construed as a waiver of its right to enforce any provisions or deadlines of this Agreement.
37. Term of Agreement.  The effective date of this Agreement is the date of the last signature below.  This Agreement will remain in effect for three (3) years from the effective date of this Agreement.
38. Headings.  The paragraph headings in this Agreement are for convenience only and will not be deemed to affect in any way the language of the provisions to which they refer.
39. Signatories Bind Parties.  The persons signing for the Parties represent that they are authorized to bind their respective Parties to this Agreement.
40. Entire Agreement.  This Settlement Agreement constitutes the entire agreement between the parties relating to Department of Justice Complaint No. 204-67-153.  No other statement, promise, or agreement, either written or oral, made by any party or agents of any party, that is not contained in this written Settlement Agreement, including its attachments, will be enforceable.
41. Parameters of Agreement.  This Agreement does not purport to remedy any other potential violations of the ADA or any other Federal law not specifically referenced herein.  This Agreement does not affect CPD’s continuing responsibility to comply with all aspects of the ADA.
42. Severability.  If any term of this Agreement is determined by any court to be unenforceable, the other terms of this Agreement shall nonetheless remain in full force and effect, provided, however, that if the severance of any such provision materially alters the rights or obligations of the Parties, the Department and CPD shall engage in good faith negotiations in order to adopt mutually agreeable amendments to this Agreement as may be necessary to restore the parties as closely as possible to the initially agreed upon relative rights and obligations.