Thursday, December 08, 2011

SDNY Refuses to Vacate Injunction Requiring FDNY to Maintain Street Alarm Boxes

Last week, Judge Robert Sweet of the United States District Court for the Southern District of New York issued a ruling refusing to vacate its injunction in the long-running Civic Association for the Deaf case. See Civic Association for the Deaf of New York City, Inc. v. City of New York, 2011 WL 5995182 (S.D.N.Y., Nov. 29, 2011). The plaintiffs brought the case in 1995 to prevent the City's fire department from removing its street alarm boxes. Those boxes, among other things, make it possible for people who are deaf to summon the fire department. Back in 1996, the court issued an injunction that barred the City from "carrying out any shutdown, deactivation, removal, elimination, obstruction, or interference with the existing street alarm box system, and from acting to replace the existing accessible street alarm box system with notification alternatives which are not accessible to the deaf."

Citing the high cost of maintaining the street alarm boxes ($6-7 million per year, plus about $2 million in annual capital costs), the massive decline in legitimate use of the boxes (street alarm boxes now "report only 0.5% of all structural fires, 1.4% of non-structural fires, 0.6% of all non-medical emergencies, and 0.2% of medical emergencies"), and the high rate of false alarms originating from those boxes ("The malicious false alarm rate for street alarm boxes is 85%, while it is 3.1% for all other sources."), the City moved to vacate the injunction. The court denied the motion. The City argued that public payphones, with a "tapping protocol" that allowed deaf individuals to indicate the type of emergency they were reporting, would provide sufficient access. But the court concluded that "in practice, public payphones and the tapping protocol do not combine to establish an adequate accessible alternative to street alarm boxes, and they do not constitute a changed circumstance."  The court explained that the tapping protocol had not been tested on payphones; that, unlike street alarm boxes, payphones don't exist on every other corner, and the number of payphones is itself declining; and that it is impossible for a deaf person to know whether a payphone (many of which are poorly maintained) even has a dial tone.  The court also determined that the City had not performed sufficient education and outreach to the deaf community on the tapping protocol.

The court concluded with two paragraphs that are, no doubt, cold comfort to the City:
The Court is sympathetic to the burdens imposed by the expensive, false-report-prone street alarm box system. This case is living proof of the idiom that “no good deed goes unpunished.” The City's efforts to bring emergency services to more people now require it to maintain those services in order to provide deaf and hearing impaired persons meaningful access to report emergencies and to comply with the ADA and RA. The injunction remains an equitable solution. 
In the future, given the use of text-based communications in the deaf and hearing impaired community, allowing emergency reporting with mobile devices via text message or email may obviate that community's need for street alarm boxes to report emergencies from the street. Regrettably, that alternative is not yet at hand.
I think the Bloomberg Administration is doing absolutely the wrong thing in the taxicab matter, but this case is much closer to me.  It seems a necessary implication of the court's legal analysis that every city has to have something like the call box system, but of course very few cities do.  And the technology becomes more and more outdated and expensive all the time.  In light of the court's opinion last week, it would make sense for the City and the plaintiffs to work together to develop a plan for implementing Next Generation 911 as soon as practicable.  New York City could be a real leader on this front, and the plaintiffs could stop using long-running litigation to maintain a dinosaur technology.

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