On appeal from a Final Determination of the Director of the New Jersey Division on Civil Rights, Docket No. PD20HM-02915.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 4, 2011
Before Judges Parrillo and Skillman.
This is an appeal by Anthony P. Ashton, II, from an October 6, 2009 order of the Director of the Division on Civil Rights (Division or DCR), finding no probable cause to credit appellant's allegations of discrimination in violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49. For the following reasons, we affirm.
Ashton, who is deaf, claimed that respondent Gloucester Township Police Department, a place of public accommodation, denied him reasonable disability accommodations. Specifically, Ashton alleged that on October 8, 2005, when a Gloucester Township police officer brought him to the police station for booking on a charge of having an outstanding bench warrant, his requests for an American Sign Language (ASL) interpreter and for the use of a teletypewriter (TTY) machine to place an outside call were denied. Ashton also alleged that a Gloucester Township police officer harassed him by mockingly yelling in his ear.
Respondent denied all charges of unlawful discrimination, maintaining that Ashton's request for a TTY machine was denied because he was acting in a violent manner, had to be restrained, and could not be safely uncuffed at the time of the request to use the TTY machine. Respondent further asserted that Ashton effectively communicated during the investigation and arrest by reading lips and written notes as well as with the assistance of an officer experienced in sign language.
The Division's investigation revealed the following facts. Officer Frank Pace first encountered Ashton at around 3:00 or 4:00 a.m. on October 8, 2005, in a known high crime area. Officer Pace learned that Ashton had an outstanding bench warrant for failure to appear on a traffic-related violation. The officer also ascertained that Ashton was either deaf or hard of hearing, but was advised by one of Ashton's companions that if he spoke clearly, Ashton could read his lips.
Officer Pace and Ashton, a college sophomore who could read and write English, communicated with each other in writing and, according to Pace, Ashton was able to understand him. In addition, Officer Jennifer Vogelsong, who had some training in sign language, was called to the scene to assist and continued to assist with communications when Ashton was brought back to the station.
Upon his arrest, Ashton became agitated and belligerent. After a brief struggle, Pace, for safety reasons, was able to handcuff Ashton behind his back and place him in the rear of the patrol car for transport to the police station. Ashton protested being secured in that manner because he was unable to sign with his hands in the back. Also, by his account, Ashton repeatedly requested an ASL interpreter during this time although once arrested on the pre-existing warrant, there was no further need for either Miranda*fn1 warnings or ongoing communication, since Ashton was never interrogated. Moreover, according to respondent, it was not feasible to obtain an ASL interpreter at the early hour when Officer Pace first encountered Ashton.
Ashton remained combative during transport and at the police station, yelling, cursing and kicking the door of the patrol room. Despite repeated instructions, both verbally and in sign language to calm down and remain seated, Ashton continued his unruly behavior, resulting in his placement in a restraining chair. While being secured in this manner, Ashton kicked Officer Pace.*fn2 Officers Pace and Vogelsong both denied that Pace mockingly yelled in Ashton's ear or otherwise mocked or harassed him because of his disability.
As a result of the Division's investigation, the Director concluded that the evidence failed to substantiate the claim that Ashton was discriminated against in violation of the LAD. Specifically, with regard to Ashton's claim that respondent denied him the immediate use of a TTY telephone with which to make an outside call, the Director found no reasonable suspicion of discrimination inasmuch as respondent would have denied a person without a hearing impairment access to a telephone under similar circumstances of an arrestee whose unruly behavior would not allow his release from restraints to safely use the device.*fn3
In any event, Ashton was eventually allowed to use the TTY machine. The Director also found insufficient evidence to support Ashton's allegation that Officer Pace or any other member of respondent's staff subjected Ashton to bias-based comments or gestures or otherwise harassed or discriminated against him based on his disability.
Lastly, as to Ashton's claim of being deprived of an ASL interpreter, the Director determined that under the circumstances, the use of sign language, lip reading, speech and written notes were sufficient to ensure effective communication during the arrest and booking process, when no interrogation ...