SETTLEMENT AGREEMENT BETWEEN
THE UNITED STATES OF AMERICA AND
THE ROCHESTER POLICE DEPARTMENT, ROCHESTER, MICHIGAN

PURPOSE

This Agreement is entered into between the United States Attorney’s Office for the Eastern District of Michigan, a component of the United States Department of Justice (“the United States”) and the Rochester Police Department (“RPD”) in Rochester, Michigan (collectively, “the Parties”).
The Parties share a mutual interest in promoting and maintaining equal access to law enforcement services and programs by persons who are deaf or hard of hearing. Accordingly, it is the Parties' intent that this Settlement Agreement shall put policies and procedures in place to ensure effective communication with persons who are deaf and hard of hearing so that they may participate in or benefit from the services, programs, or activities of the Rochester Police Department on an equal basis with other individuals, including but not limited to arrestees, detainees, suspects, victims, witnesses, companions, complainants, and visitors. This Agreement reaffirms and restates the Rochester Police Department's obligations to provide appropriate auxiliary aids and services whenever necessary to ensure effective communications with qualified individuals who are deaf or hard of hearing.

BACKGROUND

The United States initiated an investigation upon receipt of a complaint filed pursuant to title II of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12131-12134, alleging, inter alia, that the Rochester Police Department (RPD) detained a deaf individual without providing access to a form of telecommunication device that he could use to communicate (such as a TTY device or video phone), failed to provide him with an interpreter for a video arraignment, and cuffed his hands behind his back when he was arrested, thereby preventing him from communicating via sign language, his primary form of communication.
The ADA applies to the RPD because it 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.
The United States is authorized under 28 C.F.R. Part 35, Subpart F to investigate the allegations of the complaint in this matter and to determine the RPD's compliance with Title II of the ADA and its implementing regulations at 28 C.F.R. pt. 35. The United States is also authorized to issue findings and, where appropriate, to negotiate and secure voluntary compliance agreements. Furthermore, the United States is authorized under 42 U.S.C. § 12133 to bring civil actions enforcing Title II of the ADA should it fail to secure voluntary compliance pursuant to Subpart F.
The RPD has fully cooperated with the United States' investigation.
The United States and RPD agree that it is in the Parties' best interests, and the United States believes that it is in the public interest, to resolve this complaint on mutually agreeable terms without litigation and have therefore agreed to the terms of this Agreement.
This Agreement is neither an admission of liability by the RPD, nor a concession by the United States that its claims are not well founded. By entering into this Agreement, the RPD is not admitting that any action taken with respect to Complainant was wrongful, unlawful, or in violation of any local, state, or federal act or statute.
In consideration of the terms of this Agreement, the United States agrees to refrain from filing a civil suit in this matter, except as provided in paragraph 35 entitled “Compliance Review and Enforcement” below.

DEFINITIONS

“Auxiliary aids and services” shall have the same meaning as set forth in 28 C.F.R. § 35.104 and, accordingly, include 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.
“Disability” will be defined as it is in the ADA, 42 U.S.C. § 12102(2). See also, 28 C.F.R. sec. 35.104. Specifically, people are “deaf” or “hard of hearing” for the purposes of this Agreement if they have a physical impairment that substantially limits their hearing, with or without mitigating measures such as hearing aids or cochlear implants.
“Effective communication” means communication with persons who are deaf or hard of hearing that is as effective as communication with others. Effective communication is achieved by furnishing appropriate auxiliary aids and services where necessary to afford qualified individuals with disabilities an equal opportunity to participate in or benefit from the services, programs, or activities of a public entity. See 28 C.F.R. sec. 35.160.
“Members of the public” shall mean persons who are not RPD personnel and include, but are not limited to, crime victims, witnesses, suspects, arrestees, detainees, and those who seek access to law enforcement and related programs, services, and activities from the RPD, as well as deaf or hard of hearing companions of non-disabled crime victims, witnesses, suspects, arrestees, detainees, and others, so long as the deaf or hard of hearing companion is the type of person (such as spouse, child, etc.) with whom the RPD would normally communicate under the circumstances.
“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. See also, 28 C.F.R. § 35.104 and 28 C.F.R. Pt. 35, App. A. “Qualified Interpreter.”
“Personnel” means all RPD employees.

TERMS AND CONDITIONS

Nondiscrimination. The RPD 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 thirty (30) days after the effective date of this Agreement the RPD agrees to implement fully the practices and policies set forth below.
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 the RPD’s programs, services, and activities, such as arrest or detention.
Effective Communication Policy. Within thirty (30) days of the effective date of this agreement, the RPD will submit a draft policy for communicating with people who are deaf or hard of hearing to the United States for its review and approval. The policy will include procedures to implement the terms contained in paragraphs 19-31 of this Agreement. The policy will also outline a complaint procedure that an individual may follow if he or she believes that auxiliary aids or services were improperly denied. The complaint procedure shall include the name and contact information for the person to whom complaints should be addressed.
Provision of Auxiliary Aids and Services. The RPD shall furnish appropriate auxiliary aids and services, including qualified interpreters, to persons who are deaf or hard of hearing when such aids and services are necessary to ensure effective communication, so that they may participate in or benefit from the RPD's services, programs, or activities on an equal basis with others.
Primary Consideration. In determining what type of auxiliary aid or service is necessary to comply with the ADA, the RPD 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. “Primary consideration” means that Personnel will inquire as to the choice of auxiliary aid or service of the individual and will honor the expressed choice unless the RPD can demonstrate that another equally effective means of communication is available.
Use of Interpreting Service Agencies. The RPD will establish and maintain a list of qualified interpreters or interpreter agencies to ensure that qualified interpreting services will be available on a priority basis, twenty-four hours per day, and seven days a week. The RPD will promptly provide documentation to the United States upon reasonable notice demonstrating that such qualified interpreter services are being made available.
Time for Interpreter Response. Whenever a qualified interpreter is to be provided by an interpreting service, it will be done so at the earliest reasonable time taking into consideration, without limitation, the time of day, day of the week, distance to be traveled, and the circumstances and location at which the service is to be provided. “Earliest reasonable time” shall be subject to “force majeure,” e.g., events outside the reasonable control of the RPD and the interpreting service, or the interpreter called to respond, such as weather and other acts of God, unanticipated illness or injury of the interpreter while en route, and unanticipated transportation problems (including, without limitation, mechanical failures and automobile accidents and roadway obstructions, other than routine traffic or congestion).
Use of Other Members of the Public to Facilitate Communication.

The RPD 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.
The RPD 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.
The RPD 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.
Notwithstanding the provisions contained in subparagraphs b and c above, once an imminent threat to the safety or welfare to the individual or public has passed, Personnel should revisit the decision of what auxiliary aids and services are appropriate, inquire as to the person's preferences under non-emergency circumstances, and give primary consideration to those preferences.

Use of Employees as Sign Language Interpreters or Oral Transliterators. The RPD will not use its Personnel as sign language interpreters or oral transliterators if the employee or volunteer's presence poses a conflict of interest or raises confidentiality and privacy concerns.
Ongoing Need for Communication Assessments and Consultation. In addition to the initial communication assessment done at the time the need for auxiliary aids and services is first identified, Personnel will 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.
Reasonable Modification of Handcuffing Policies. When necessary to handcuff a person who is deaf or hard of hearing, Personnel will, safety permitting, handcuff such persons in front to enable the person to communicate using sign language or writing.
Signs. Within sixty (60) days of the effective date of this Agreement, all facilities operated or occupied by the RPD and in which Personnel are reasonably anticipated to engage with members of the public shall have conspicuously posted in public areas (including booking and intake areas) signs advising persons who are deaf or hard of hearing of the availability of appropriate auxiliary aids and services, including qualified interpreters. The signs shall provide as follows:

To ensure effective communication with individuals who are deaf or hard of hearing, the Rochester Police Department will provide free of charge auxiliary aids such as qualified sign language oral interpreters. Please ask for assistance by contacting [name and full contact information of point of contact for interpreter services].

The posted signs will include a symbol to indicate the availability of sign language interpreters:

sign language available sign

Text and/or Video Compatible Telephones. Within ninety (90) days of the effective date of this Agreement, the RPD agrees to provide, if it has not already done so, at least one telephone that is capable of sending and receiving text messages and/or connecting to a video relay service for use by arrestees or detainees who are deaf or hard of hearing. Arrestees or detainees who are deaf or hard of hearing shall be provided with equal access to a telephone as arrestees or detainees who are hearing.

Privacy of Communications. The RPD will take reasonable measures to ensure that the privacy of telephone calls by arrestees or detainees using text messaging or a video relay service is equal to that of other arrestees' or detainees' telephone calls.

Identification. The RPD will take appropriate steps to ensure that all Personnel having contact with an inmate or detainee who is deaf or hard of hearing are made aware of the person's disability and his or her preferred auxiliary aids and services so that effective communication with the person will be achieved. A person's identity as someone needing appropriate auxiliary aids and services for effective communication will not be treated as confidential medical information.

Training. Within thirty (30) days of the United States' approval of the effective communication policy developed pursuant to paragraph 18 of this Agreement, and at least once annually throughout the term of this Agreement, the RPD will train all Personnel who have contact with members of the public as to effective communication with persons who are deaf or hard of hearing. The training will be sufficiently detailed to enable Personnel to effectively implement all provisions of this Agreement, and all additional policies and procedures developed pursuant to this Agreement. The RPD will ensure that all new Personnel who will have contact with members of the public will receive the training as a component of pre-service training and orientation.

Within one hundred twenty (120) days of the effective date of this Agreement, RPD shall submit a written report to counsel for the United States confirming its compliance with paragraphs 27-31, above.

Notification Requirement. During the term of the Agreement, the RPD will immediately notify the United States if any individual submits a complaint, charge, grievance, or file a lawsuit, alleging that the RPD failed to provide any auxiliary aids or services to any individual with a disability. Such notification must be provided in writing within fifteen (15) days of receipt and will include, at a minimum, the nature of the allegation, the name of the individual making the allegation, and any documentation possessed by the RPD or any of its agents or representatives relevant to the allegation.

All information provided pursuant to the reporting requirements under this Agreement should be provided to the United States via First Class mail or overnight courier service to: U.S. Attorney's Office for the Eastern District of Michigan, Attn: Civil Rights Unit, 211 W. Fort Street, Ste. 2001, Detroit, Michigan 48226.

IMPLEMENTATION AND ENFORCEMENT

Compliance Review and Enforcement. The United States may review compliance with this Agreement or title II of the ADA at any time. If the United States believes that this Agreement or any portion of it has been violated, it will notify the RPD in writing and attempt to resolve the issue or issues in good faith. If the United States is unable to reach a satisfactory resolution of the issue or issues raised within thirty (30) days of the date it provides notice to the RPD, it may institute a civil action in federal district court to enforce the terms of this Agreement or title II of the ADA and may, in such action, seek any relief available under law.

Lack of Waiver. Failure by the United States to initiate any provision of this Agreement is not a waiver of its right to enforce other provisions or deadlines of the Agreement.

Authorization to Bind. A signatory to this document in a representative capacity for the Parties represents that he or she is authorized to bind the Parties to this Agreement.

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.

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.

Entire Agreement. This Settlement Agreement constitutes the entire agreement between the RPD and the United States on the matter raised herein, and no other statement, promise, or agreement, either written or oral, made by either party or agents of either party, that is not contained in this written Agreement, including its attachments, will be enforceable. This Agreement does not purport to remedy any other potential violations of the ADA or federal law, and does not affect the continuing responsibility of the RPD to comply with all aspects of the ADA.