[00:00:01] Speaker 01:
Good morning, Your Honors, and may it please the Court.

[00:00:03] Speaker 01:
My name is David John Hummel, and I represent Allison Mayfield.

[00:00:06] Speaker 01:
I will watch the clock and do my best to request four minutes for rebuttal.

[00:00:10] Speaker 01:
In this case, Allison Mayfield pled guilty to reckless driving under the advice of criminal counsel, and in court she had an ASL interpreter present to accommodate her deafness.

[00:00:19] Speaker 01:
She is not challenging that guilty plea.

[00:00:22] Speaker 01:
She has not pled fact that the plea was illegal, involuntary, or without factual basis.

[00:00:27] Speaker 01:
What she is challenging is the lack of meaningful access she received because the city of Mesa's police officers failed to accommodate her deafness with an ASL interpreter, beginning with a roadside stop.

[00:00:38] Speaker 01:
With that backdrop, this court should reverse and remand, beginning with the procedural bar under HECC.

[00:00:44] Speaker 01:
The primary reason why HECC does not apply is, one, this conviction derived from a guilty plea without evidence, not a verdict with evidence, and second, there are no facts pled that are inconsistent with guilt.

[00:00:56] Speaker 01:
With the heck bar cleared, turning to the merits, this is a 12b6 motion to dismiss.

[00:01:02] Speaker 01:
There are plausible allegations and reasonable inferences in the record that Allison Mayfield required an ASL interpreter, and without one, she suffered a real hindrance in her ability to communicate.

[00:01:13] Speaker 01:
One of the best cases on point is this court's decision in Updike versus Multnomah County, in which this court said that whether an accommodation is reasonable is a fact-intensive enterprise.

[00:01:23] Speaker 01:
And specifically, the court was considering the provision of an ASL interpreter and said that an ASL interpreter for someone whose primary and preferred means of communication is ASL is akin to someone whose primary and preferred language is Spanish.

[00:01:38] Speaker 01:
In that sense, when someone is enmeshed in the criminal justice system or interacting with police officers, they would require an ASL interpreter.

[00:01:45] Speaker 01:
And that's why this matter should be sent to discovery.

[00:01:48] Speaker 01:
More so in Bax v. Doctors Medical Center of Modesto, this court stated that covered entities have affirmative obligations to accommodate those with disabilities.

[00:01:57] Speaker 04:
Now, you agree that we can, even in the context of a 12b6, we can consider the video evidence which is incorporated by reference into the complaint, correct?

[00:02:09] Speaker 01:
Yes, I agree.

[00:02:10] Speaker 04:
Okay.

[00:02:11] Speaker 04:
Are you familiar with the Ball BAHL case from the 8th Circuit, the Burkall case from the 11th Circuit that specifically deal with the application of the ADA in the context of traffic stops?

[00:02:30] Speaker 01:
Not specifically, no, Your Honor.

[00:02:32] Speaker 04:
Okay.

[00:02:32] Speaker 04:
I mean, because, you know, we look for a circuit authority that is as close as we can get, and both of them deal with

[00:02:42] Speaker 04:
you know, very analogous situations, and both of them reject the claims.

[00:02:49] Speaker 04:
So, for example, in the Burkall case, the 11th Circuit said, in any event, the actual communication between Trask and Burkall was not so ineffective that an oral interpreter was necessary to guarantee that Burkall was on an equal footing with hearing individuals.

[00:03:06] Speaker 04:
Burkall admits that he reads lips and usually understands 50% of what is said.

[00:03:11] Speaker 04:
In addition to verbal instructions, Trask gave physical demonstrations.

[00:03:14] Speaker 04:
During the traffic stop, Burkle was able to respond to his directions about getting out of the car, providing his driver's license and insurance.

[00:03:21] Speaker 04:
While the communication may not have been perfect, Burkle, by his own admission, understood that he was being asked to perform field sobriety tests.

[00:03:30] Speaker 04:
And then they conclude that Burkle has failed to state an ADA claim regarding the field sobriety test during his DUI arrest.

[00:03:38] Speaker 04:
Why shouldn't we conclude the same here?

[00:03:39] Speaker 04:
This officer was very patient as shown by the videos.

[00:03:43] Speaker 04:
She did everything that she could.

[00:03:45] Speaker 04:
She tried with the phone.

[00:03:46] Speaker 04:
She went and got paper.

[00:03:48] Speaker 04:
She really was, she was very respectful.

[00:03:50] Speaker 04:
She tried to make sure she was being understood, make sure, are you understanding?

[00:03:54] Speaker 04:
She'd get occasionally a thumbs up.

[00:03:57] Speaker 04:
I don't see from this video looking at that kind of authority from other circuits as persuasive.

[00:04:05] Speaker 04:
I don't see that this was not a reasonable accommodation.

[00:04:10] Speaker 04:
So tell me why you think that's wrong.

[00:04:14] Speaker 01:
Yes, Your Honor.

[00:04:14] Speaker 01:
And to start, let me retract.

[00:04:17] Speaker 01:
I am familiar with Burkall.

[00:04:18] Speaker 01:
I've seen the name so many times.

[00:04:19] Speaker 01:
I've never had the pronunciation in my head.

[00:04:21] Speaker 01:
So I am familiar with that case.

[00:04:22] Speaker 01:
I think what Your Honor read is important is that the Burkall plaintiff preferred to communicate by lip reading.

[00:04:28] Speaker 01:
And he had no allegations, and I believe the summary judge in the stage, that even though it was at a certain percentage, that he was deprived of anything in particular.

[00:04:35] Speaker 01:
By contrast here in the excerpts of record, pages 76 to 78, we have allegations in the amended complaint.

[00:04:42] Speaker 01:
that Miss Mayfield did receive a real hindrance in her ability to communicate.

[00:04:46] Speaker 01:
For example, under the stressful circumstances of a roadside stop, she was shown a cell phone in low illumination, which she had difficulty reading.

[00:04:54] Speaker 01:
There's allegations where Officer Hall said, I'll explain as much as I can.

[00:04:58] Speaker 01:
And in 78 of the excerpts of record, there's allegations that Ms.

[00:05:02] Speaker 01:
Mayfield could not communicate with Officer Volz or his mother.

[00:05:06] Speaker 01:
And going to the body cam, Your Honor.

[00:05:07] Speaker 04:
This is a situation where Scott versus Harris comes into play.

[00:05:13] Speaker 04:
You cannot plead facts and ask us to take them as true when they are contrary to what is on the videotape.

[00:05:20] Speaker 04:
And I've watched this videotape and

[00:05:24] Speaker 04:
It is apparent, viewing the transaction as a whole, the interaction as a whole, that there was substantial communication and understanding between them at all relevant and material points throughout the process.

[00:05:39] Speaker 04:
And the officer did everything she reasonably could on the scene in order to accomplish this as quickly as she could with the paper,

[00:05:49] Speaker 04:
shining the light on the paper when the second officer arrived, he was able to assist in that.

[00:05:55] Speaker 04:
And I just, I don't see where in the video is there a breakdown in the communication that materially affected this interaction.

[00:06:09] Speaker 01:
Your Honor, I have two main responses.

[00:06:11] Speaker 01:
One, going in line with the 11th Circuit, there's an 11th Circuit case called Silva in which a plaintiff is not required to identify specific information that he or she could not exchange or he or she could not hear, in the sense that because Ms.

[00:06:23] Speaker 01:
Mayfield is deaf, she could not hear certain things, so she didn't have to allege specifically what she did not hear.

[00:06:29] Speaker 01:
But second, going to your broader discussion, that would go more toward the deliberate indifference requirement.

[00:06:35] Speaker 01:
I don't think that goes to the reasonableness of the accommodation.

[00:06:38] Speaker 01:
If you look at the body cam,

[00:06:39] Speaker 01:
As soon as Officer Hall walks up to the car, Ms.

[00:06:42] Speaker 01:
Mayfield starts signing.

[00:06:43] Speaker 01:
She starts using American Sign Language to be specific.

[00:06:47] Speaker 01:
Then Officer Hall takes out a cell phone, tries to type back and forth.

[00:06:51] Speaker 01:
Even after a few minutes of doing so, Officer Hall still recognizes

[00:06:56] Speaker 01:
real hindrance in communication because she attempts to call an officer who is familiar with American Sign Language.

[00:07:01] Speaker 01:
But what she never does, and what no officer ever does, is try to get a third-party in-person interpreter or use video remote interpreting to accommodate Ms.

[00:07:11] Speaker 01:
Mayfield when we plausibly allege that it's available 24-7-365.

[00:07:16] Speaker 01:
I think going to the body cam itself, we see repeated instances, and we have on page nine of our brief, where Officer Hall has a conversation with Officer Volz, where they have a miscommunication.

[00:07:26] Speaker 01:
Officer Volz says Ms.

[00:07:27] Speaker 01:
Mayfield said one thing, Officer Hall said she said something altogether different.

[00:07:32] Speaker 01:
And I think in viewing the fact that Officer Bolt, who was used as the communication aide, who freely said he's super rusty on American Sign Language, he would need three years of schooling to gain his proficiency back, or the allegations in the complaint that he used his mother via cell phone and it was ineffective.

[00:07:47] Speaker 01:
That's enough at the 12b6 stage to send this matter to discovery and understand whether or not the failure to provide an ASL interpreter was reasonable under the circumstances.

[00:07:56] Speaker 01:
Certainly, we're not arguing that there were zero attempts.

[00:08:00] Speaker 01:
at communication, but in looking at what was offered, typing on a cell phone, lip reading, making gestures, rudimentary finger spelling.

[00:08:08] Speaker 01:
As we put in our brief, those methods specifically for Ms.

[00:08:11] Speaker 01:
Mayfield would be ineffective.

[00:08:13] Speaker 01:
And many times the Department of Justice or case law has said that they would be facially invalid under certain circumstances.

[00:08:20] Speaker 01:
And the standard review on that score is important, Your Honor, because we have plausible allegations both in the complaint and we have the body cam footage showing

[00:08:29] Speaker 01:
that Miss Mayfield was not on equal footing in terms of communication.

[00:08:32] Speaker 01:
She did not have the full panoply of information that other arrestees would have in which she could express herself, ask questions, and do things of that nature.

[00:08:41] Speaker 01:
And I think that goes back to the fact that there are these statutes with the affirmative obligation, as this court said in backs, that there are federal regulations that lawfully implement that statute that create a duty for covered entities like the city of Mesa to provide accommodations

[00:08:58] Speaker 01:
There's been no rebuttal to the idea that even VRI for a roadside stop, let alone for a DUI processing facility, would be a reasonable accommodation for someone on the scene when police officers are interacting with one person or another.

[00:09:11] Speaker 01:
The statute and the regulations empower covered entities like the city of Mesa.

[00:09:16] Speaker 01:
to investigate and have accommodations ready for individuals with disabilities like Ms.

[00:09:21] Speaker 01:
Mayfield when she's at a roadside stop.

[00:09:23] Speaker 01:
And the body cam footage itself spans well over an hour.

[00:09:26] Speaker 01:
Once again, there was no effort, no attempt whatsoever, as far as we know right now, that there was a request for a third party interpreter.

[00:09:33] Speaker 01:
And that's one of the errors of the district court decision in which the district court said to Esponte that this would impose an undue burden.

[00:09:40] Speaker 01:
There's no allegations in the amended complaint or any document incorporated by reference that would support such a standard.

[00:09:46] Speaker 01:
We put that in our brief.

[00:09:48] Speaker 01:
That's in the complaint.

[00:09:49] Speaker 01:
And overall, Your Honor, I think one thing to underscore is the fact that

[00:09:55] Speaker 01:
Ms.

[00:09:56] Speaker 01:
Mayfield, her disability is known or obvious.

[00:09:59] Speaker 01:
So I know there's some jousting back and forth with the parties in terms of requests was made.

[00:10:04] Speaker 01:
I would assert based on the complaints in which we've alleged a request.

[00:10:07] Speaker 01:
And given the fact that the body cam is not a complete depiction of events, there's certain footage that we don't have, for example, conversations with Officer Bolz's mother.

[00:10:15] Speaker 01:
There's obviously only certain perspectives.

[00:10:17] Speaker 01:
We don't know exactly what was typed out on text messages.

[00:10:20] Speaker 01:
We don't know what Ms.

[00:10:21] Speaker 01:
Mayfield was attempting to communicate without the benefit of an interpreter.

[00:10:25] Speaker 01:
So whether we take those allegations plausibly in Miss Mayfield's favor, certainly there's enough in there to show that Officer Hall, for instance, knew an ASL interpreter would be required.

[00:10:35] Speaker 01:
Because even after texting back and forth, that's when a few minutes later she called dispatch to try to find another officer.

[00:10:41] Speaker 03:
What would be your position if your client spoke a dialect or a language that was rare in the world?

[00:10:51] Speaker 03:
How would you apply that to this scenario here?

[00:10:55] Speaker 01:
Your honor, that would go to the reasonableness of the accommodation.

[00:10:59] Speaker 01:
If she speaks a rare dialect and that's something that the city of Mesa could not procure, whether again it's in person or through video remote technology means, but I will say, given the advent of VRI or video remote interpreting,

[00:11:14] Speaker 01:
there is a wide range of possibilities of what could be accommodated.

[00:11:17] Speaker 01:
So I think that would be a fact-specific inquiry that would be best suited for discovery as well.

[00:11:22] Speaker 01:
But certainly here, given the prevalence of American Sign Language, and as we even put, this isn't just an allegation standing in the vacuum.

[00:11:28] Speaker 01:
Police departments throughout the country are using VRI to interact with deaf and hard of hearing individuals, that this is a reasonable accommodation, especially at the 12-6 stage.

[00:11:38] Speaker 01:
And if there are no further questions at this time, I will reserve my final minutes for rebuttal.

[00:11:42] Speaker 02:
All right.

[00:11:42] Speaker 02:
Thank you, counsel.

[00:11:44] Speaker 01:
Thank you.

[00:11:54] Speaker 00:
Good morning, Your Honors.

[00:11:55] Speaker 00:
Christina Retz for the City of Mesa.

[00:11:58] Speaker 00:
May it please the Court?

[00:12:00] Speaker 03:
Council, would you respond to the idea that this is really a reasonable accommodation concept and that it's not really a 12b6 decision and that we should allow some discovery and

[00:12:13] Speaker 03:
see what happens either on summary judgment or a trial.

[00:12:17] Speaker 00:
Well, Your Honor, I think we would have to first set aside the heck portion of this case, which I believe bars these claims, but in addition... What if I don't agree with that?

[00:12:25] Speaker 00:
Let's jump... If you don't agree with that, then returning to Scott B. Harris, we have to take the body camera as it stands.

[00:12:32] Speaker 00:
And those facts which are established in the body camera show that there was effective communication and that there was no real hindrance and that in fact Miss Mayfield was treated more favorably than other arrestees.

[00:12:47] Speaker 00:
Some facts that the plaintiff doesn't address in the context of looking at this case is that the ADA is very context specific.

[00:12:57] Speaker 00:
Our Supreme Court in Sheehan took petition for certification to address whether the ADA, Title II, even applied to the circumstances of an arrest and whether there could be vicarious liability against the agency and declined to address that because the parties didn't brief it.

[00:13:14] Speaker 04:
So it shows... We're kind of stuck with Sheehan on that, aren't we?

[00:13:19] Speaker 04:
Because the Supreme Court took that issue and then the city, for whatever reason, sort of gave it away and they

[00:13:27] Speaker 04:
then dismiss the issues, so that panel decision stands.

[00:13:31] Speaker 00:
It stands, but I still believe that it stands for the proposition that this context is very important.

[00:13:38] Speaker 00:
In the context here is that we are New Year's Day at 9 p.m.

[00:13:43] Speaker 00:
in the context of an arrest, and the accommodations need to be seen through the body camera lens through that context.

[00:13:51] Speaker 00:
So if we look at Bax, Bax is a case that's very helpful, I believe.

[00:13:55] Speaker 00:
to this analysis where the court found that ASL interpreters on site were not required.

[00:14:02] Speaker 00:
And in fact, there were issues with the VLR.

[00:14:05] Speaker 00:
So the VLR allegation does not end the inquiry.

[00:14:09] Speaker 00:
In fact, the plaintiff did not address that in the district court briefing below.

[00:14:13] Speaker 00:
Their complaint contains a single allegation about the VLR, and the CFRs have specific requirements about VLR.

[00:14:21] Speaker 00:
So that the VLR is a technology that exists does not mean that it was available in this instance.

[00:14:26] Speaker 00:
You need to have a contract with the VLR company.

[00:14:29] Speaker 00:
You need to have a dedicated, high-speed internet connection.

[00:14:33] Speaker 00:
So we're coming back to the context.

[00:14:36] Speaker 04:
This goes back to Judge Fitzwater's question.

[00:14:39] Speaker 04:
Now you're getting into sort of a lot of contextual detail.

[00:14:43] Speaker 04:
And it's, it's striking to me that in the cases that seem to be most relevant, even though no one mentioned them in the briefs, which are the Ball case and Burkall, and then there's a Fourth Circuit case called Rosen, all of them arise on summary judgment and the defendant wins on summary judgment.

[00:15:04] Speaker 04:
But that's because there's a record where all this sort of detail gets set out and then you can make the assessment.

[00:15:11] Speaker 04:
Here we just have the videos and the allegations of the complaint, and that's it.

[00:15:17] Speaker 04:
And that, is that really enough to give you judgment as a matter of law just on the pleadings on that video?

[00:15:26] Speaker 00:
Yes, Your Honor, because there's not facts that are going to change and make this more favorable for the plaintiff.

[00:15:32] Speaker 04:
Instead, the facts- You just, in your own argument, have identified considerations that are not

[00:15:37] Speaker 04:
covered that might be relevant to the balance.

[00:15:40] Speaker 00:
But I see, Your Honor, that those are within the record on the body camera.

[00:15:43] Speaker 00:
We know the date that the stop occurred.

[00:15:46] Speaker 00:
We know what time the stop occurred.

[00:15:48] Speaker 00:
We know all of the efforts that the officer made to communicate.

[00:15:51] Speaker 00:
We know that the plaintiff herself is the one who first suggested writing by note taking.

[00:15:57] Speaker 00:
So the additional facts that would come out during discovery are, does Miss Mayfield regularly communicate through note taking communications that way?

[00:16:08] Speaker 00:
That would make the city's argument even better.

[00:16:13] Speaker 00:
So you have an exact transaction of what occurred on the body camera.

[00:16:19] Speaker 00:
In a lot of these cases, like Bax,

[00:16:21] Speaker 00:
You have credibility determinations to be made.

[00:16:23] Speaker 00:
You have testimony about what did or did not occur.

[00:16:26] Speaker 00:
Here we have a video.

[00:16:28] Speaker 00:
We can read the questions that were written to Ms.

[00:16:32] Speaker 00:
Mayfield on the paper.

[00:16:34] Speaker 00:
So on exhibit one.

[00:16:36] Speaker 03:
Well, to follow up, counsel, my understanding from the brief of the opposing party is that there are examples given of three or four municipalities that have this.

[00:16:45] Speaker 03:
So wouldn't that also be something that comes into play?

[00:16:48] Speaker 03:
And wouldn't that be in addition to what's in the pleadings?

[00:16:52] Speaker 00:
It could be, but that's not the inquiry under, that's not the test.

[00:16:56] Speaker 00:
The test is effective communication.

[00:16:58] Speaker 00:
The CFRs do not require VLR.

[00:17:01] Speaker 00:
The DOJ guidance and toolkit that the plaintiff cites to from 2007, which is very old and doesn't really take into perspective current technology, including here, the attempt to use FaceTime that didn't work.

[00:17:13] Speaker 00:
There's no real hindrance in the communication here.

[00:17:16] Speaker 00:
You know, first of all, we could go to the Miranda piece of it.

[00:17:19] Speaker 00:
There's no right of a suspect to have Miranda read to them out loud.

[00:17:23] Speaker 00:
And in fact, finding that there was an issue with giving a Miranda warning would run contrary to the Supreme Court's decision in Vega versus TECO, which found that there could not be a Miranda violation claimed by a 1983 suspect because it's a procedural prophylactic rule.

[00:17:42] Speaker 00:
So we take that piece out.

[00:17:45] Speaker 00:
And then if we are looking next to the consent forms, because the plaintiff brings up

[00:17:49] Speaker 00:
the supposed miscommunications about the consent forms.

[00:17:53] Speaker 00:
That inured to Ms.

[00:17:54] Speaker 00:
Mayfield's benefit.

[00:17:56] Speaker 00:
In Arizona, we have a statute that talks about informed consent for DUI.

[00:18:00] Speaker 00:
It is written on the consent form.

[00:18:02] Speaker 00:
If you do not agree to a blood draw after being arrested, you can lose your license for 12 months.

[00:18:09] Speaker 00:
So by Officer Hall going through and giving the printed form, she adequately and fully

[00:18:17] Speaker 00:
allowed Ms.

[00:18:17] Speaker 00:
Mayfield to read that form and understand that so she could consent.

[00:18:23] Speaker 00:
On the plea portion for the HAC, I would just like to mention that the terms of the plea agreement for the reckless driving specifically incorporate the DUI.

[00:18:33] Speaker 00:
The terms of the plea require drug and alcohol testing.

[00:18:37] Speaker 00:
They require certification that she had not had drugs and alcohol.

[00:18:42] Speaker 04:
That's just one of the

[00:18:44] Speaker 04:
conditions that was going to be part of the sentence, but the factual basis for the charge in the plea agreement seems to be all conduct that occurred before the stop.

[00:18:57] Speaker 04:
Well, I would submit by the conditions of the reckless driving.

[00:19:00] Speaker 04:
She wasn't driving once she was stopped.

[00:19:02] Speaker 04:
So everything that occurs during the stop is not reckless driving.

[00:19:06] Speaker 00:
But the reckless driving occurs because of the marijuana consumption.

[00:19:10] Speaker 00:
So you never get to any of the further portions of this field sobriety testing.

[00:19:14] Speaker 04:
But it has to be necessary in order to trigger the heck bar.

[00:19:19] Speaker 04:
And it seems that there's an ample factual basis, even if everything had been suppressed, there was an ample factual basis based on the erratic driving that had been observed before, and none of that can be

[00:19:34] Speaker 04:
touched by a motion of suppress or anything that's at issue here.

[00:19:37] Speaker 04:
And so it doesn't necessarily call into effect.

[00:19:41] Speaker 04:
And so, Heck, tell me why you think that's wrong.

[00:19:44] Speaker 04:
But that's where I'm struggling with, Heck.

[00:19:47] Speaker 00:
So the reckless driving, think of someone who was texting or think of someone who had a medical emergency or something that would

[00:19:55] Speaker 00:
negate the mens rea.

[00:19:57] Speaker 00:
So the citation doesn't happen merely for the reckless driving, the additional investigation happens and then the arrest happens because of the information that occurs through those transactions.

[00:20:10] Speaker 00:
And you see Officer Hall's statement on the question, the specific question asked is

[00:20:17] Speaker 00:
I would like to do some tests to make sure you are safe to drive.

[00:20:20] Speaker 00:
Is that okay?

[00:20:21] Speaker 00:
So there's clearly an indication here that the reckless driving is related to, and that's at Exhibit 1 at 1524.

[00:20:29] Speaker 00:
You can see the written questions that were on the notepad.

[00:20:33] Speaker 00:
But it shows the state of mind in stopping her, why she stopped, the context of it being New Year's Day, and that this all forms one unbroken chain of events here.

[00:20:46] Speaker 00:
And there's some public policy considerations here as well, is that she's pled down to a lesser charge, which is a lesser included charge.

[00:20:53] Speaker 00:
It was not originally charged as reckless driving.

[00:20:57] Speaker 00:
It was originally charged as DUI and then pled down.

[00:21:00] Speaker 00:
So you have the potential of discouraging these conciliatory agreements to try to resolve cases without trial to a benefit that benefits the criminal suspect and or the plaintiff in this case.

[00:21:19] Speaker 00:
And Your Honor, I do believe that Burke Hall is directly on point to this case.

[00:21:25] Speaker 00:
But in fact, the circumstances in this case are even more compelling given what occurred.

[00:21:32] Speaker 00:
We have multiple attempts at all different kinds of accommodations.

[00:21:37] Speaker 00:
The primary consideration argument made by the plaintiff, it is just a burden shift.

[00:21:43] Speaker 00:
And if there is effective communication, then

[00:21:47] Speaker 00:
that is met.

[00:21:48] Speaker 00:
We have effective communication here.

[00:21:50] Speaker 00:
We have effective communication in the form of gesturing, note taking, texting back and forth.

[00:21:56] Speaker 00:
You can hear on the video that Officer Hall switches to the notepad because she was making typos and she wanted it to move more seamlessly, more quickly with the note taking, which the plaintiff herself.

[00:22:07] Speaker 03:
What if we had someone who spoke a rare language?

[00:22:12] Speaker 03:
What would happen?

[00:22:13] Speaker 03:
Because your argument seems to be based on the facts of this case that there was effective

[00:22:17] Speaker 03:
communication.

[00:22:17] Speaker 03:
What if we have one where there's not?

[00:22:20] Speaker 03:
What's the burden on the municipality in terms of providing that kind of interpreter?

[00:22:25] Speaker 00:
Well, you would go into whether it was an undue burden or not.

[00:22:30] Speaker 00:
You would focus more on that portion of the inquiry.

[00:22:33] Speaker 04:
Speaking your foreign language isn't a disability for purposes of the ADA, is it?

[00:22:38] Speaker 00:
No.

[00:22:39] Speaker 04:
So it wouldn't be relevant to an ADA claim?

[00:22:40] Speaker 00:
It would not be relevant to an ADA claim.

[00:22:44] Speaker 00:
You know, there's a portion of the ADA statute that I think is important here too is the ADA excludes direct threat.

[00:22:52] Speaker 00:
So where in this stop does the accommodation need to happen assuming that the Sheehan analysis applies and that the Supreme Court wouldn't find differently?

[00:23:04] Speaker 00:
Because the ADA doesn't apply where there's a direct threat and we know that Officer Hall was concerned that there was a direct threat to the public in pulling Ms.

[00:23:12] Speaker 00:
Mayfield over.

[00:23:13] Speaker 00:
and in doing field sobriety tests to make sure that she was safe to drive.

[00:23:17] Speaker 04:
It's obvious from this video that the officer did not feel threatened in the slightest by Ms.

[00:23:24] Speaker 04:
Mayfield.

[00:23:25] Speaker 04:
She left her alone for significant periods of time in the car.

[00:23:30] Speaker 04:
There was actually the video shows a fair amount of trust between the two of them.

[00:23:36] Speaker 04:
So the threat issue is not a physical threat, Your Honor.

[00:23:40] Speaker 00:
Okay.

[00:23:41] Speaker 00:
The direct threat to the public

[00:23:43] Speaker 00:
by allowing Ms.

[00:23:44] Speaker 00:
Mayfield potentially to get back in the vehicle because the statute, the CFRs that talk about direct threat are not specific to physical threat.

[00:23:54] Speaker 00:
I completely agree with you that Ms.

[00:23:56] Speaker 00:
Mayfield was not a physical threat.

[00:23:59] Speaker 00:
The issues surrounding getting an ASL interpreter, moving quickly, determining what communication was going to happen are focused on the direct threat to the community itself by Ms.

[00:24:12] Speaker 00:
Mayfield potentially

[00:24:13] Speaker 00:
being under the influence, and then driving while under the influence.

[00:24:18] Speaker 00:
Because the issue is, if it's a reckless driving, is it a site and release?

[00:24:23] Speaker 00:
If it's a site and release, is she permitted to get into that vehicle again and drive and potentially harm the public?

[00:24:30] Speaker 00:
So you have all of these issues which are set forth on the body camera.

[00:24:35] Speaker 00:
We have these facts for which the court can determine if there was effective communication,

[00:24:40] Speaker 00:
if there was a real hindrance in the exchange of communication and if it would have been an undue burden on the city in order to procure in person an ASL interpreter or the VLR, which the city didn't have in place at that point.

[00:24:59] Speaker 00:
The fact of the existence of it doesn't mean that it was available to the city at that moment.

[00:25:04] Speaker 00:
There is nothing in the case law that requires an ASL interpreter.

[00:25:08] Speaker 00:
In fact, an uptake cited by the plaintiff

[00:25:10] Speaker 00:
Updike specifically talks about the fact that an interpreter may not be needed in every situation.

[00:25:17] Speaker 00:
And Updike is very factually dissimilar because you have an individual in jail in the conditions of confinement without eviscerating evidence.

[00:25:25] Speaker 00:
So you have an ability to plan, contact people, obtain ASL interpreters, push off court hearings, which is what in fact happened in Ms.

[00:25:38] Speaker 00:
Mayfield's criminal case.

[00:25:39] Speaker 00:
that they were able to push those court hearings later.

[00:25:42] Speaker 00:
You don't have that here.

[00:25:44] Speaker 00:
So you're trying to look at what was the effective communication?

[00:25:48] Speaker 00:
Was it different than what the hearing would have received?

[00:25:52] Speaker 00:
And I would submit that Ms.

[00:25:53] Speaker 00:
Mayfield received more favorable treatment.

[00:25:56] Speaker 00:
She was handcuffed in the front.

[00:25:58] Speaker 00:
She was able to read the instructions for the field sobriety testing, which is not done for everyone.

[00:26:04] Speaker 00:
The field sobriety testing was underlined for her.

[00:26:07] Speaker 00:
The officer then

[00:26:08] Speaker 00:
acted out the field sobriety testing so that Miss Mayfield could know how to do the field sobriety testing.

[00:26:16] Speaker 00:
She was handcuffed in front, which is not something that would be done for officer safety.

[00:26:21] Speaker 00:
She was not taken to jail and she was driven home, driven to a friend's house, apologize, by Miss, by Officer Hall.

[00:26:30] Speaker 00:
So these are all circumstances indicating that she wasn't discriminated against intentionally and said she was accommodated

[00:26:37] Speaker 00:
She was given written forms and she did sign those forms.

[00:26:44] Speaker 00:
And very critically is nowhere in the complaint do we have any facts about what she didn't understand and the idea that she cannot tell us is belied by the body camera.

[00:26:56] Speaker 00:
She could cite to specific portions of the body camera to say I didn't understand this information, understand that I'm out of time.

[00:27:02] Speaker 00:
Thank you.

[00:27:03] Speaker 02:
Thank you, counsel.

[00:27:11] Speaker 01:
Yes, your honor.

[00:27:12] Speaker 01:
I'll focus on two main points.

[00:27:13] Speaker 01:
First, the facts, and second, just a brief final word on the heck bar.

[00:27:17] Speaker 01:
Beginning with the facts, I think it's important to emphasize that this is a 12b6 case.

[00:27:22] Speaker 01:
Just Collins, you referenced cases like Burke Hall.

[00:27:24] Speaker 01:
There's cases like Updike that come at the summary judgment standard.

[00:27:27] Speaker 01:
This may be a reasonable minds may differ after discovery in terms of whether or not she had a real hindrance, but based on the allegations in the complaint and the body camera footage, we have enough to send it to discovery.

[00:27:37] Speaker 01:
Again, in looking at the body camera as summarized on pages 28 to 29 of the opening brief, for example, there's statements from Officer Volz who was used as an accommodation saying that he's super rusty.

[00:27:48] Speaker 01:
There's also that colloquy between Officer Hall and Officer Volz.

[00:27:52] Speaker 01:
There's also a statement from Officer Hall saying,

[00:27:55] Speaker 01:
I used to be able to sign a little bit, but it's not fair to her to not get a full understanding.

[00:28:00] Speaker 04:
What's the legal standard?

[00:28:03] Speaker 04:
Is the existence of various hiccups and problems at particular points, is that enough to establish an ADA violation, or do we look at the overall course of the interaction and see whether or not

[00:28:19] Speaker 04:
you know, there was an adequate level of comprehension that really ultimately was not treated differently from a hearing person.

[00:28:30] Speaker 01:
Yes, I have two main points, Judge Collins.

[00:28:32] Speaker 01:
First, under effective communication or real hindrance, a gist is not enough.

[00:28:36] Speaker 01:
It has to be equal.

[00:28:37] Speaker 01:
It doesn't have to be merely successful.

[00:28:39] Speaker 01:
I mean, for example, there's nothing in the case law.

[00:28:41] Speaker 04:
So does equal mean every word has to be understood?

[00:28:44] Speaker 04:
And anything short of it?

[00:28:45] Speaker 04:
I'm just trying to understand what you're claiming is the legal standard.

[00:28:49] Speaker 01:
Short no, it doesn't have to be a blow by blow word for word account, but certainly Miss Mayfield should have the opportunity to ask questions to participate as someone would have if they didn't have a disability of deafness and needed an ASL interpreter to have that back and forth communication.

[00:29:04] Speaker 01:
We see that born out in the body cam.

[00:29:06] Speaker 01:
I think the focus from my friend on the other side is maybe the city of Mesa got the information they needed, but Miss Mayfield as alleged the complaint didn't convey or was able to participate in the way she needed.

[00:29:17] Speaker 01:
Effective communication is a two-way street allowing both sides to fully communicate back and forth.

[00:29:22] Speaker 04:
And in addition to what's seen on the body cam... So in what respect was she not able to, you know, to communicate back?

[00:29:31] Speaker 04:
What are the specific allegations as to what supports that contention?

[00:29:38] Speaker 01:
Sure.

[00:29:39] Speaker 01:
So with the amending complaint, I would specifically focus on Exhibits of Record pages 76 to 78.

[00:29:45] Speaker 01:
For example, on page 78, there is that allegation that she had ineffective communication when interacting with Officer Volz and also with Officer Volz's mother who was on the phone.

[00:29:57] Speaker 01:
Those are things where Officer Volz's mother is not depicted on the body cam.

[00:30:01] Speaker 01:
We also do not see Allison Mayfield many times her facial interactions or what she's even signing when she's back and forth with Officer Volz.

[00:30:08] Speaker 01:
It's mostly from Officer Hull's perspective of looking at officer vaults directly.

[00:30:13] Speaker 01:
But in addition, Judge Collins, when you focus on the different methods, that would go more toward deliberate indifference in whether or not the city of Mesa is liable for compensatory damages.

[00:30:23] Speaker 01:
or not they had an idea that there was a likelihood of harm to a federal right and a failure to act upon it.

[00:30:29] Speaker 01:
But I would say nearly the existence of multiple attempts when those attempts in and of themselves were ineffective doesn't matter.

[00:30:35] Speaker 01:
I mean, the effective communication analysis we have is we look at rudimentary fingerspelling here in the case.

[00:30:42] Speaker 01:
We have texting back and forth.

[00:30:44] Speaker 01:
We have an officer who's

[00:30:45] Speaker 01:
super rusty on ASL merely because they attempted things without taking a single moment to try to request an ASL interpreter, be it in person or if they had VRI available, that's enough.

[00:30:58] Speaker 01:
And I will say I can't see the clock on my screen, so I hope I'm not abusing the time.

[00:31:02] Speaker 02:
You're over time, but I have a question for you.

[00:31:04] Speaker 02:
So the focus of the ADA is to allow those who are disabled to be able to access the services.

[00:31:12] Speaker 02:
That's the focus.

[00:31:14] Speaker 02:
the services that are provided to the public.

[00:31:17] Speaker 02:
And so what was she unable to access through this encounter?

[00:31:24] Speaker 02:
So she was able to get through the process.

[00:31:28] Speaker 02:
So how was she deprived of access?

[00:31:32] Speaker 01:
Your honor, she was deprived of access merely because she was physically present and aware and participating.

[00:31:40] Speaker 01:
And because she hasn't alleged a bad outcome, such as the guilty plea wouldn't have been entered or she was wrongfully arrested in these circumstances, the fact that she's not able to participate as another person would is the access.

[00:31:51] Speaker 01:
For example, we see her on the body cam sitting by herself.

[00:31:54] Speaker 01:
There's people chattering in the background.

[00:31:56] Speaker 01:
If she had an interpreter, she could communicate more.

[00:31:59] Speaker 01:
And that's something that she could testify to.

[00:32:00] Speaker 02:
Oftentimes, people who are not hearing impaired are sitting in a car alone.

[00:32:03] Speaker 02:
When officers, when I got stopped by an officer, I'm sitting in the car alone, the officer goes back to the car to check to see if I'm a criminal, and I'm sitting there waiting to see what happened.

[00:32:14] Speaker 02:
So how is that different than happens to people that are not hearing impaired?

[00:32:21] Speaker 01:
Your Honor, it's different because Alice in Mayfield never had a choice.

[00:32:24] Speaker 01:
Without an ASL interpreter, we'd have elected a choice.

[00:32:26] Speaker 01:
I didn't have a choice either.

[00:32:27] Speaker 02:
I didn't have a choice either whether or not to sit there in the car and wait for the officer to check whatever he needed to check.

[00:32:33] Speaker 02:
I didn't have a choice either, and I'm not hearing impaired, but I still had the same experience.

[00:32:39] Speaker 01:
What I would say for Allison Mayfield in particular, looking at the body camera without an ASL interpreter, which is her primary means of communication, which, as this court said in Updike, creates genuine issues of material fact.

[00:32:51] Speaker 01:
That's the summary judgment stage.

[00:32:53] Speaker 02:
Of what?

[00:32:54] Speaker 02:
Material issues of genuine fact regarding what?

[00:32:58] Speaker 01:
regarding if there was a real hindrance in her ability to communicate back and forth again.

[00:33:02] Speaker 02:
The difficulty is, in my opinion, you're divorcing the purpose of the statute from her discomfort with the process.

[00:33:15] Speaker 02:
So if there is a reasonable accommodation, there is no violation of the ADA.

[00:33:21] Speaker 02:
And that's the point.

[00:33:22] Speaker 02:
The fact that she wasn't able to communicate

[00:33:25] Speaker 02:
in the preferred method is not necessarily a violation of the ADA.

[00:33:32] Speaker 01:
You know, I just have two quick points because I know I've been over time.

[00:33:35] Speaker 01:
What I would say is going to, for example, the Fifth Circuit's decision in Luke, which is on page 15 of our reply brief, the Fifth Circuit made clear, for example, that there's no need to allege a bad outcome, that the lack of meaningful access in and of itself is a harm.

[00:33:50] Speaker 02:
But that's the issue I have with your argument.

[00:33:54] Speaker 02:
Um, there was not a lack of meaningful access because she was accommodated to the point that she could get through the process.

[00:34:02] Speaker 02:
Um, even though it wasn't ideal.

[00:34:04] Speaker 02:
That it doesn't have to be ideal.

[00:34:07] Speaker 02:
It just has to be that there's a, um, an opportunity through accommodation for her to reach the same outcome that a hearing, a person who is not hearing impaired would have.

[00:34:21] Speaker 01:
And Judge Rawlinson, what I would say is this goes to the second point I was going to make.

[00:34:25] Speaker 01:
For example, the Bax case.

[00:34:26] Speaker 01:
That was a deaf couple that went to a hospital.

[00:34:29] Speaker 01:
There was no requirement from this court or any court I'm aware of that if you have a deaf person going to a hospital that they need to allege medical malpractice.

[00:34:37] Speaker 01:
Simply the fact, even if they have the same bill of health, the same medical treatment they would have had, but for their deafness, that doesn't matter.

[00:34:44] Speaker 01:
What matters is that in Bax, for example, because they didn't receive interpreters, they allege that they suffered a real hindrance in their ability to communicate.

[00:34:51] Speaker 04:
But the difference, and it's what all these circuit cases, which nobody cited, all emphasize, is that a roadside stop presents exigent circumstances, particularly if there's a suspected DUI where time is of the essence,

[00:35:06] Speaker 04:
And I would add that there's a constitutional obligation under Rodriguez to complete a traffic stop without undue expenditure of time.

[00:35:16] Speaker 04:
And those are factors that distinguish it from a hospital situation where there might be more time.

[00:35:23] Speaker 04:
And so the reasonableness needs to be assessed in that different context.

[00:35:29] Speaker 01:
And it does, your honor, but that's when looking at the amended complaint and having no allegations that if the officers would have attempted to get an interpreter, much in the same way Officer Hall radioed for backup, saying, could I have an officer with sign language?

[00:35:41] Speaker 01:
And if I don't, I'll just take a regular one.

[00:35:43] Speaker 01:
She could have made the same

[00:35:44] Speaker 01:
call to her dispatch to say request an interpreter, or if she had the means to request an interpreting agency herself.

[00:35:51] Speaker 01:
So with VRI as well, with that allegation that's available 24-7-365, that wouldn't infringe on the stop.

[00:35:58] Speaker 01:
And what I would say is a broader matter.

[00:35:59] Speaker 01:
We not only have the roadside stop, we have Ms.

[00:36:01] Speaker 01:
Mayfield's transport to a DUI processing facility.

[00:36:04] Speaker 01:
Throughout this entire encounter that spanned well over an hour, there's no allegation that they were unable to get an interpreter or they tried to do so.

[00:36:13] Speaker 01:
That's a matter for discovery.

[00:36:14] Speaker 01:
Certainly, if they could proper facts saying that they tried or if they would have tried, they wouldn't have gotten one, then that would be very favorable for their case.

[00:36:20] Speaker 01:
But we don't have that right now.

[00:36:22] Speaker 01:
So without evidence of undue burden, I ask this court to reverse and remand.

[00:36:25] Speaker 01:
Thank you very much.

[00:36:26] Speaker 02:
Thank you, counsel.

[00:36:27] Speaker 02:
Thank you to both counsel for your helpful arguments.

[00:36:29] Speaker 02:
The case just argued is submitted for decision by the court.

[00:36:32] Speaker 02:
That completes our calendar for the morning.

[00:36:34] Speaker 02:
We are in recess until 930 a.m.

[00:36:36] Speaker 02:
tomorrow morning.