[, Music ] welcome to audit the audit where we sort out the who and what and the right and wrong of police interactions.
This episode covers mobility devices, the americans with disabilities act and scooter laws and comes to us from the oregonians channel, be sure to check out the description below and give them the credit that they deserve before we dive into the interaction. 00:15:01
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Shortly after midnight on november 19, 2018, two city of brookings police officers stopped 49 year old, jennifer gaiman as she traveled home from a night of karaoke, with her friends in brookings organ ms gaiman, who has been diagnosed with best disease with macular degeneration of both eyes. 00:01:35
Chronic obstructive pulmonary disease, asthma, lumbar degeneration causing lower back pain and symptoms and peripheral neuropathy was riding her three-wheeled mobility scooter on the sidewalk.
When the officer stopped her, i just want to go home.
Why are you stopping i'm gon na? Explain it to you in a second we're stopping you because you're on the sidewalk with it yeah, you rode through a crosswalk.
It's a legal thing on a sidewalk.
Look it up! It's a mobile scooter! It's a label! Okay! Okay! It's an electronic scooter! Yeah! It's a mobile scooter.
Okay, do you understand what that means? It's my mobile scooter! It's how i get around.
I don't have a car, okay, okay! It's like i yeah! It's like iris yeah, because i'm getting pissed off because i want to go home.
You guys are pulling me off for no reason. 00:02:26
It's like irons.
It's like iris.
You know ira, the blue guy with the guys right, it's exactly like his except it's got two seats.
That's all! It is white.
Exactly you deny that it's electronics, it's not an electronic shooter and i can ride it on the sidewalk.
Is it gas powered? No, it's not gas.
I'm cold you're not free to leave yeah.
I am no you're not here.
I am because you legally cannot stop me.
You're lawfully detained right now you are literally on a lawful trial.
You see those red and blue lights for what, though, are you going to? Let me explain it yeah, because you don't have a reason to you: guys are legally you're, taking you're taking my disability act and you're, throwing under in the garbage.
This is my disability scooter.
This is how i get around, and you know that you've seen me many times around this town riding it.
Are you gon na? Let him explain to you why you're actually on a lawful traffic stop? Okay, so we stopped you because it was actually looked up before okay, you can't ride this in a crosswalk on the sidewalk.
Are you kidding me, while ms gaiman and the officers debate whether her scooter is an electronic scooter or a mobile scooter under organ law? Both types of scooters are considered a quote: motor-assisted scooter, section 801.
348 of the oregon revised statutes, defines a motor-assisted scooter as a vehicle that is designed to be operated on the ground, with not more than four wheels as a foot, support or seat for the operator's use Can be propelled by motor or human propulsion is equipped with a power source that is incapable of propelling the vehicle at a speed of greater than 24 miles per hour on level ground, and if the power source is electric, has a power output of not more than 1000 watts, under this definition, both a two-wheeled standing electric scooter and a three-wheeled scooter with a seat like ms gaiman's, would qualify as motor assisted scooters. 00:04:14
524 of the oregon revised statutes, prohibits individuals from operating a motor-assisted scooter on a sidewalk except to enter or leave adjacent property.
But ms gaiman argues that, because she uses the scooter as a mobility device, she is allowed to ride it.
On the sidewalk under section 35.
137 of title ii of the americans with disabilities act, a state or local government is required to quote, make reasonable modifications in its policies, practices or procedures to permit the use of other power-driven mobility devices by individuals with mobility disabilities.
While this sounds straightforward enough case law is unsettled about whether this title of the ada applies to public sidewalks.
10 of title 2 states that it applies to quote all services, programs and activities provided or made available by public entities.
In the 2002 case of barton versus city of sacramento, the federal ninth circuit court of appeals determined that, because quote, the focus of the inquiry is not so much on whether a particular public function can technically be characterized as a service program or activity.
But whether it is a normal function of a governmental entity, maintaining the accessibility of public sidewalks for individuals with disabilities falls within the scope of title ii. 00:05:23
However, the fifth circuit court of appeals came to the opposite conclusion. 00:05:26
In the 2010 case of frame versus city of arlington, holding that sidewalks curbs and parking lots are not title ii, services, programs or activities, because the us supreme court has yet to resolve this circuit.
Split and oregon is in the ninth circuit. 00:05:41
A court evaluating ms gaiman situation would likely agree that the sidewalk was covered by title ii of the ada and could therefore conclude that allowing ms gaiman to use her scooter on the sidewalk was a reasonable modification to oregon law. 00:05:53
So, with a mobile scooter sit right around here.
All these old people can't write them on the sidewalk nope, not according to the oregon department of transportation.
I'll look it up for you just so.
You can show know that i'm not messing with you and he's not.
Okay, so i'll, let everybody know that you guys have bad laws in this town and that people that have disabilities? No, you know what that's disabilities.
Okay, these people ride these scooters for disability.
You wan na hiding in the streets they get hit by a car you're kidding me.
I don't make the rules yeah well, grab some information.
Do you? Do you have an id on you? I don't need to give you my id you do.
You were lawfully detained you've been explaining that you will provide your name or identification. 00:06:35
The officers demand that ms gaiman provide her name or identification because she is being lawfully detained, while the organ does not have a stop and identified law that requires individuals to identify themselves.
If police officers have a reasonable suspicion that they are involved in criminal activity, oregon law does require that individuals provide identification during a traffic stop under section 807.
570 of the oregon revised statutes.
It is a class c misdemeanor for an individual to fail to present and deliver a driver's license, driver permit or out-of-state license to a police officer when requested by the police officer upon being lawfully stopped or detained when driving a vehicle.
Although section 801.
5 of the oregon revised statutes defines a vehicle, as quote any device in upon or by which any person or property is or may be, transported or drawn upon a public highway and includes vehicles that are propelled or powered by any means which would include.
Ms gaiman's scooter, section 807.
570 clarifies that quote. 00:07:30
It is a defense to any charge under this section that the person so charged produce a license, driver permit or out of state license that had been issued to the person and was valid at the time of violation of this section.
The inclusion of this defense shows that this code is intended to prevent individuals from driving without a valid license and not to criminalize a citizen's refusal to identify themselves.
While title ii of the ada requires the city to make reasonable modifications to accommodate ms gaiman's mobility, scooter section 35.
137 does allow a public entity to ask an individual using a power driven mobility device to quote provide a credible assurance that the mobility device is required because Of the person's disability, a public entity must accept a valid state-issued disability, parking placard or card, or other state issued proof of disability as a credible assurance that the use of the other power driven mobility device is for the individual's mobility issues. 00:08:24
137 also states.
That quote in lieu of a valid state-issued, disability, parking, placard or card or state-issued proof of disability. 00:08:32
A public entity shall accept as a credible assurance a verbal representation not contradicted by observable fact that the other power driven mobility device is being used for a mobility disability. 00:08:42
While the officers were permitted to stop ms gaiman to inquire about her use of the scooter, if a court found that allowing her to drive the scooter on the sidewalk was a required reasonable modification, it would likely conclude that she had provided sufficient assurance of her disability Because i want to get home, it's cold and you guys are done with me and you might see me writing this many times and you know it. 00:09:04
There's my id i've never seen you write in the series you have. 00:09:08
Can i please get my id back? No, you will get it back once we're once we finish, you asked me to show you what the rules were.
No, i just want to go.
I can look them up myself, i'm cold and i want to go shower. 00:09:18
No, you are not free to go right.
Now, you're not free to go until we were finished, and i can't look at that because i can't see your phone okay so in oregon, since this is a electronic scooter, you're not allowed to have passengers on it.
That's one rule: you are required to wear a helmet, you are, you are not allowed right on sidewalks. 00:09:53
You are not allowed to ride it in crosswalks, all right.
The officer states that, when operating her scooter, ms gaiman is not allowed to ride it in crosswalks or carry passengers and that she must wear a helmet. 00:10:05
While section 814.
528 of the organ revised statutes prohibits operating a motor assisted scooter in a crosswalk requiring that the operator walk the motor assisted scooter in a crosswalk, it provides a clear exception for individuals with disabilities.
Stating quote, this section does not apply to a person with a disability operating a motor-assisted scooter in a crosswalk. 00:10:23
Although ms gaiman's disability did permit her to ride her mobility scooter in a crosswalk, the officer's other assertions appear to have more merit.
530 of the organ revised statutes prohibits operating a motor-assisted scooter while carrying another person, and section 814.
534 requires motor assisted scooter operators to wear protective headgear on a highway or on premises open to the public.
While there is an exception to the helmet requirement, if quote wearing the headgear would violate a religious belief or practice of the person, there is no exemption for people with disabilities.
The relationship between title ii of the ada and these laws is complicated and while the city is required to make reasonable modifications to its rules, to allow ms gaiman to use her scooter, the ada doesn't permit her to operate the scooter in whatever way she wishes. 00:11:08
Generally, there must be a nexus between an individual's disability and the requested modification, and it is difficult to imagine how an exemption from wearing a helmet or carrying a passenger would be necessary based on ms gaiman's disability. 00:11:22
Unfortunately, there is no case law on this matter.
In particular, but i believe it would be a stretch for a judge to conclude that ms gaiman was exempt from these laws because of her disability. 00:11:31
When ms gaiman asks for her id back, the officers inform her that the stop is not over yet and over the course of the next 15 minutes.
The officers write ms gaiman, multiple citations. 00:11:40
I don't need your job you're, not doing your job, though you're not serving protecting because [ Applause ].
So if you try to reach and grab something out of my hand again, you're gon na go to jail tonight after issuing the citations.
The officers informed ms gaiman, that she was not permitted to ride her scooter home, which was one or two miles away because she was not wearing a helmet, but ms gaiman rode the scooter home anyway. 00:12:23
The officers followed ms gaiman home in their patrol cars, with their lights and sirens on and arrested her in her garage for attempting to elude police and interfering with an officer.
Criminal charges were brought against ms gaiman in curry, county and on may 8 2019 a jury convicted ms gaiman of attempting to elude a police officer which is a class c felony.
A judge sentenced her to five days in jail and 18 months of probation. 00:12:45
But ms gaiman appealed the conviction.
As of this episode, her appeal is currently pending with oral arguments scheduled for february 25th.
On march 17, 2020 ms gaiman filed a lawsuit in the federal district court for the district of oregon. 00:13:00
Ms gaiman's complaint alleges that she was unlawfully detained and arrested without probable cause in violation of the 4th and 14th amendments, and that she was discriminated against based on her disability, in violation of title 2 of the americans with disabilities act and also asserts causes of action.
For assault battery intentional infliction of emotional distress and false arrest, the complaint requests five hundred thousand dollars in compensatory damages and punitive damages in a quote: fair and reasonable amount to be proven at trial. 00:13:26
As of the date of this episode, ms gaiman's lawsuit is still pending and a telephonic pre-trial conference is scheduled for march 8, 2021.
Overall, the brookings police department officers get a c-minus because, although a majority of their conduct was within the bounds of their authority, the officers exercised poor discretion, ignored relevant facts of the encounter and neglected to consider the practical implications of their demands based on the conflicting circuit Court opinions mentioned earlier, it is likely that a judge would consider the brookings officers to have been acting in good faith when they initially stopped ms gaiman, and therefore entitle them to qualified immunity.
However, ms gaiman's claim of discrimination may prove challenging to defend against considering the manner in which the officers conducted this stop. 00:14:07
The officer's orders placed ms gaiman in a compromised situation where she may very well have been stranded and unable to get home instead of forcing ms gaiman to leave her scooter behind.
The officers could have offered her a ride home or followed her home to make sure that she didn't get injured while riding without a helmet. 00:14:22
Not only are there serious ethical questions to be raised about this type of conduct, but it also betrays the spirit of the law.
It is highly unlikely that any law was ever written with the intention to deprive a disabled individual of an assistive device, and this interaction highlights the importance of exercising professional discretion and considering the real world results of enforcing the law.
Ms gaiman also gets a c-minus because, although she may have been a victim of police misconduct, she likely broke the law by riding her scooter without a helmet, and she did break the law by refusing to stop for the officers and leading them on a low speed.
Pursuit, it is difficult to fault, ms gaiman, for her attitude, considering the context of the interaction but her decision to lead the officers on a chase was childish and highly illegal.
Ms gaiman may have been in a situation where she had no other choice but to ride her scooter home, but she could have made an effort to reason with the officers and call their decision making into question. 00:15:13
Ms gaiman appeared to be operating under the misconception that once a citizen has been cited for a violation, they cannot be cited again for the same violation and even though she may have been confused about the law that does not excuse her decision to continue driving her Scooter for over a mile with the police in pursuit behind her as discussed on many episodes of ata, it is not legal to resist or evade an arrest, even if you believe the arrest to be unlawful and this interaction is a testament to that fact.
Considering that ms gaiman was tried and convicted for doing so, while i do commend ms gaiman for having the courage to challenge the officers and for following up this interaction with the proper legal action, i also wholly disagree with her decision to engage in a chase with The officers and i cannot rightfully issue her a higher grade after blatantly breaking the law. 00:15:57
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