In 2012, there were 64 counties in Colorado. CCDC sent Colorado Open Records Act (“CORA”)/Colorado Criminal Justice Records Act requests to 61 counties seeking their policies, practices and procedures related to providing appropriate auxiliary aids and services and effective communication to individuals who are deaf and hard of hearing. The CCDC Civil Rights Legal Program had already resolved issues with one County Sheriff’s Department and was currently in litigation with 2 others at the time the CORA requests were sent.
With respect to the investigation, CCDC’s Civil Rights Legal Program had been collaborating with the Department of Justice Disability (“DOJ”) Rights Section. On October 16, 2012, CCDC’s Legal Program sent a memo to DOJ counsel detailing the investigation so far. See the letter below. Please note that this memo only describes the policies of those Sheriff’s Departments that provided policies in response to our CORAs. CCDC will continue to work with the DOJ and United States attorneys whenever possible to enforce these types of cases.
Consistent with CCDC’s mission to ensure social justice for people with all types of disabilities. CCDC’s goal in conducting these investigations, litigating the effective communication cases against Sheriff’s Departments, and collaborating with the DOJ, is to ensure that every Sheriff’s Office in the state of Colorado complies with its duties to provide effective communication to witnesses, suspects, victims, arrestees and detainees who are deaf and to take appropriate steps to ensure that auxiliary aids and services will be offered and provided to deaf witnesses, suspects, victims, arrestees and detainees. To the extent that CCDC receives complaints from individuals who are deaf who have not been provided appropriate auxiliary aids and services, most often including sign language interpreters, CCDC sends a letter requesting compliance. If that does not resolve the issue, litigation is usually the only viable solution. Not every case has been exactly the same. What CCDC has noticed as time has gone on, is that Sheriff’s Departments often put policies, practices and procedures in place including training, but they don’t follow them. This also results in deaf and hard of hearing individuals not receiving appropriate auxiliary aids and effective communication. It is also commonplace for Sheriff’s Departments to claim that any interaction with individuals who are deaf or hard of hearing that involves witnesses to a crime, suspects, arrestees or detainees involves an “emergency.” One thing that is prohibited by the DOJ regulations is relying on an adult companion or family member or a minor child to interpret or facilitate communication except in an emergency. Because Sheriff’s Departments claim every interaction is an emergency, they rely on other individuals, including children to try to facilitate communication with deaf individuals involved and the deputies or law enforcement agents. The DOJ has been very clear to distinguish what a typical and foreseeable emergency is from an emergency that could have devastating consequences:
The [DOJ] recognizes that the need for effective communication is critical in emergency situations. After due consideration of all of these concerns raised by commenters, the [DOJ] has revised § 35.160(c) to narrow the exception permitting reliance on individuals accompanying the individual with a disability during an emergency to make it clear that it only applies to emergencies involving an “imminent threat to the safety or welfare of an individual or the public.” See § 35.160(c)(2)-(3). Arguably, all visits to an emergency room or situations to which emergency workers respond are by definition emergencies. Likewise, an argument can be made that most situations that law enforcement personnel respond to involve, in one way or another, a threat to the safety or welfare of an individual or the public. The imminent threat exception in § 35.160(c)(2)-(3) is not intended to apply to the typical and foreseeable emergency situations that are part of the normal operations of these institutions. As such, a public entity may rely on an accompanying individual to interpret or facilitate communication under the § 35.160(c)(2)-(3) imminent threat exception only where in truly exigent circumstances, i.e., where any delay in providing immediate services to the individual could have life-altering or life-ending consequences.
28 C.F.R. pt. 35, app. A (analysis of Section 35.1 60 Communications).
As of the date of this revision (4/5/19), the following cases involving Sheriff’s Departments have been brought or settled:
Adams County Sheriff
Arapahoe County Sheriff
Boulder County Sheriff
Conejos County Sheriff (enforcement of CORA/CCJRA request)
Denver County Sheriff (on 2 occasions)
Douglas County Sheriff
Larimer County Sheriff
Jefferson County Sheriff (on 2 occasions)
Pueblo County Sheriff
Of the 61 CORA requests, 47 counties timely complied with the request and provided responsive information.
Of the 47 responses, 35 counties had no written policies in place:
Of the 47 responses, 12 counties had written policies that address the issue:**
**Some of these counties’ policies are sufficient, some do not do enough to ensure that a deaf or hard of hearing arrestee/detainee will have effective communication.
Of those 61 CORA/CCJRA requests, 14 counties did not respond at all, so we sent Notices Regarding Application for Order to Show Cause Why [the Sheriff] Should Not Permit Inspection of Records Requested: