Brooklyn Ctr. for Independence of the Disabled v. Bloomberg

[980 F.Supp.2d 594]

Daniel L. Brown, Sheppard, Mullin, Richter & Hampton, LLP, Julia Miriam Pinover, Disabilities Right Advocates, New York, NY, Mary–Lee Kimber Smith, Rebecca Susanne Williford, Shawna Leigh Parks, Sid Wolinsky, Disability Rights Advocates, Berkley, CA, for Plaintiffs.

Mark Galen Toews, Martha Anne Calhoun, Carolyn Elizabeth Kruk, NYC Law Department, New York, NY, for Defendants.

[980 F.Supp.2d 595]

The task of planning for, and responding to, emergencies and disasters is one of the most important, and challenging, tasks any government faces. Emergencies can take many forms—from power outages, to hurricanes, to terrorist attacks—and a government, particularly a local government, must be prepared for them to strike at almost any moment. Such preparedness requires considerable planning, resources to execute those plans, and a willingness to learn from experience and revise plans that do not sufficiently accomplish their goals. Even then, each emergency is different and, to some extent, unpredictable, and no amount of planning or resources can fully prepare a local government to respond to what may come. Moreover, ultimately, there are limits to what the government can do on its own: Not only must a local government be prepared, but its residents must also prepare themselves.

In recent years, New York City (the “City”) has faced more than its fair share of emergencies and disasters, from the September 11th terrorist attacks in 2001; to Hurricane Irene in August 2011; to Hurricane Sandy, just over one year ago. Separate and apart from that tragic record, the task of planning for, and responding to, emergencies and disasters is especially challenging in New York City, given, among other things, the size and density of the City's population, its island geography, and its large daily commuter and tourist populations. Given those challenges, and what New York City has had to face in recent years, the City's planning and response have been remarkable in many ways. In particular, the array and detail of its plans for every imaginable kind of emergency is impressive; and the valor and sacrifice of those who have come to the aid of New Yorkers in times of emergency, from first responders to volunteers,

[980 F.Supp.2d 596]

have been nothing short of extraordinary. This lawsuit does not challenge those facts. Far from it: In many respects, this lawsuit has confirmed them.

Instead, the question in this lawsuit, certified as a class action pursuant to Federal Rule of Civil Procedure 23(b)(2), is whether in planning for, and responding to, emergencies and disasters, the City has adequately addressed the needs of people with disabilities—a segment of the population for which emergency planning is even more challenging and, some argue, more important. The Plaintiff class comprises all people with disabilities, as defined by the Americans with Disabilities Act (the “ADA”), 42 U.S.C. § 12102, who are within the City and the jurisdiction served by the City's emergency preparedness programs and services. See Brooklyn Ctr. for Independence of the Disabled v. Bloomberg, 290 F.R.D. 409, 420–21 (S.D.N.Y.2012) (Docket No. 66). ( See also Docket No. 69 (noting the lack of objections to the Court's proposed definition of the class and ordering the certification of that class)). These Plaintiffs contend that the City's emergency preparedness program fails to accommodate their needs by, among other things, inadequately planning for the evacuation of people with disabilities, from multi-story buildings and generally; failing to provide a shelter system that is accessible within the meaning of the ADA; ignoring the unique needs of people with disabilities in the event of a power outage; failing to communicate adequately with people with special needs during an emergency; and failing to account for the needs of people with disabilities in recovery operations following a disaster. They seek declaratory and injunctive relief under the ADA, Title 42, United States Code, Section 12131 et seq.; Section 504 of the Rehabilitation Act of 1974, Title 29, United States Code, Section 794 et seq.; and the New York City Human Rights Law (“NYCHRL”), New York City Administrative Code, Section 8–101 et seq.

In March 2013, only months after Hurricane Sandy devastated the City, the Court held a six-day bench trial limited to the question of liability—that is, whether the City's emergency preparedness program does, in fact, fail to sufficiently accommodate people with disabilities. At trial, the Court heard from at least thirty-five witnesses, including City officials involved in emergency planning at the City's Office of Emergency Management (“OEM”), the New York City Fire Department (“FDNY”), and the New York City Police Department (“NYPD”); City officials involved in addressing the needs of people with disabilities, at the Mayor's Office for People with Disabilities (“MOPD”) and elsewhere; experts on emergency planning with respect to people with disabilities; and several people with disabilities who testified about their needs with respect to emergency planning as well as their experiences in recent emergencies, including Hurricane Sandy.¹ In addition, the parties introduced approximately 25,000 pages of documentary exhibits, including over twenty plans developed by the City to address everything from providing shelter during an emergency to responding to a flash flood. Following trial, the parties and the United States Department of Justice, as an interested party, see28 U.S.C. § 517, filed several hundreds of pages of briefing and proposed findings of fact and conclusions of law, a process that was completed in late May 2013.

[980 F.Supp.2d 597]

This mountain of evidence and argument confirms that planning for, and responding to, emergencies and disasters is a Herculean task, and that, in many—perhaps most—respects, the City has done an outstanding job. But it also reveals that while the City's emergency preparedness program adequately accommodates the needs of people with disabilities in some respects, it fails to do so in others. Most significantly, the City's plans are inadequate to ensure that people with disabilities are able to evacuate before or during an emergency; they fail to provide sufficiently accessible shelters; and they do not sufficiently inform people with disabilities of the availability and location of accessible emergency services.

Notably, there is no evidence that these failures are a result of intentional discrimination by the City against people with disabilities. But the ADA, the Rehabilitation Act, and the NYCHRL seek to prevent not only intentional discrimination against people with disabilities, but also—indeed, primarily—discrimination that results from “benign neglect.” Alexander v. Choate, 469 U.S. 287, 301, 105 S.Ct. 712, 83 L.Ed.2d 661 (1985). Moreover, these laws require that a government entity do more than provide a program on equal terms to those with and without disabilities; they require “affirmative accommodations to ensure that facially neutral rules do not in practice discriminate against individuals with disabilities.” Henrietta D. v. Bloomberg, 331 F.3d 261, 275 (2d Cir.2003). The evidence shows that the City has not done so in various ways.

Based on the evidence and testimony presented at trial, the Court makes the following findings of fact and conclusions of law. The trial did not, and this Opinion does not, address the actions the City must take to remedy the deficiencies in its emergency preparedness program. Those actions will be addressed in the next phase of the case.

1. According to New York City, of the more than eight million people living in the City, “it is estimated that there are 889,219 individuals with disabilities, making up 11% of the population.... [Of these,] 183,651 individuals have a serious hearing difficulty, 210,903 have serious...