Full opinion text
MEMORANDUM OPINION AND ORDER DE MENT, District Judge. I. INTRODUCTION AND PROCEDURAL HISTORY Plaintiff, Douglas McCray (“McCray”), initiated a lawsuit against the City of Do-than, Alabama (“the City”) and various police officers, including Adrianne Wood-ruff (‘Woodruff’), Jeffrey Howell (“Howell”), Tim Ward (“Ward”), Greg Carpenter (“Carpenter”), David Carmichael (“Carmichael”), and Stacy Robinson (“Robinson”) arising out of events which occurred during and after an altercation with police in a Dothan restaurant. As amended, the complaint contains thirteen counts. Counts One through Seven set forth constitutional claims pursuant to 42 U.S.C. § 1983. Counts One and Two allege Defendants violated McCray’s Fourteenth Amendment equal protection rights by discriminating against him on the basis of race (African-American) and disability. Count Three states a claim for a violation of the Fifth Amendment privilege against selfinerimin-ation. Count Four is a claim which states Defendants violated the Fourth Amendment protection against unlawful seizure. Count Five alleges Defendants used excessive force in violation of the Fourth Amendment. Count Six states a Fifth Amendment claim for deliberate indifference to serious medical needs. Count Seven is a Fourth Amendment malicious prosecution claim. Counts Eight and Nine state claims against the City under the Americans with Disabilities Act (“ADA”) and. The Rehabilitation Act, respectively. In Count Ten, the remaining federal cause of action, McCray alleges that Defendants conspired to deprive him of equal protection rights under 42 U.S.C. § 1985(3). In Counts Eleven through Thirteen McCray asserts state law claims against police defendants for assault and battery, false imprisonment, malicious prosecution and intentional infliction of emotional distress. This matter is before the court on the City’s Motion For Partial Summary Judgment and the police defendants’ Motion For Summary Judgment (“Motions”), both filed May 17, 2001. McCray has filed an appropriate response. After careful consideration of the arguments of counsel, the relevant law, and the record as a whole, the court concludes that Defendants’ Motions are due to be granted in part and denied in part. II. JURISDICTION AND VENUE The court exercises subject matter over this action pursuant to 28 U.S.C. § 1331 (federal question jurisdiction), 28 U.S.C. § 1343 (civil rights jurisdiction), and 28 U.S.C. § 1367 (supplemental jurisdiction). The Parties do not contest personal jurisdiction or venue. III. FACTUAL BACKGROUND On July 24, 1997, McCray, an African-American male, went with his children, Ariel and Douglas, ages four and three, to a Quincy’s restaurant in Dothan. At the restaurant, he parked his green Hyundai in the space adjacent to a white Corvette. Ariel exited the car from the passenger side and, in so doing, damaged the white car in the next space. Because McCray is deaf, he did not hear any impact when she opened the door. Wayne Hart, the White owner of the Corvette, claims he observed the damage which Ariel caused to his car from inside the restaurant. After McCray and the children entered the restaurant, Hart approached them. When Hart attempted to initiate a conversation with McCray about the damage to his ear, McCray gestured that he was deaf. McCray also instructed Ariel to communicate to Hart that he was deaf, and she complied. After further attempts to verbally communicate with McCray failed, Hart went to speak with a server and ultimately, a manager who called the police. Police defendant Woodruff was dispatched to what she described as “a private property traffic incident” at a Quincy’s restaurant in Dothan, Alabama. When she arrived, Hart told Woodruff that while he was inside Quincy’s he -saw a small green car driven by McCray pull into the parking space next to his car. As a child exited the passenger side of the green car, Hart claimed she had flung the door open and damaged his car. Hart told Woodruff that when he approached McCray to speak with him about the damage, McCray appeared uncooperative. Although Hart also told her McCray was deaf, he indicated that if she faced McCray when talking to him, he could understand what she said. Woodruff entered the restaurant in search of McCray to obtain his name and address so that Hart could contact him about the damage. She admits that she then had no reason to think that McCray had committed any crime. She further concedes that there was no indication that McCray himself had caused any property damage. By that time, McCray and his children were seated in a booth and eating dinner. When Woodruff approached McCray and introduced herself, he pointed to his ears to indicate that he was deaf. He further indicated he could not read lips. Wood-ruff then attempted to communicate with McCray by writing questions on a piece of paper. McCray is pre-lingually deaf which means he lost his hearing before he learned to speak. Thus, he communicates through American Sign Language. Because English is a second language for him, some concepts in it are unfamiliar to him and it is difficult for him to communicate using written notes. In her first written question, Woodruff asked McCray if he owned the green Hyundai parked outside the restaurant. McCray nodded to indicate an affirmative response. McCray indicated that he did not understand a second question which asked who was driving the car. Wood-ruff then wrote another message to advise McCray of Hart’s claim about damage to his car. Because he did not fully understand what Woodruff was asking him, McCray then made a written request for an interpreter (misspelling it as “inderprter”). Woodruff became angry and left the restaurant. McCray asked a server to call an interpreter and she called Kim Stanford, McCray’s wife, who was able to interpret for him. When Woodruff returned, she gave McCray a written note which asked him to produce his identification. After McCray indicated he did not understand the word “identification,” Woodruff clarified that she wanted his driver’s license. McCray shook his head to indicate yes, and put his hands up to indicate that Woodruff should wait. At that point, Woodruff contends that one of McCray’s children told her that McCray could talk. When Woodruff asked the child why McCray would not talk to her, the child replied: “I don’t know but he can talk.” McCray denies that Ariel attempted to communicate with Woodruff. Following that exchange, McCray wrote on a piece of paper: “my interpreter will be here soon. This is not right. Because I am deaf, you know, there’s a lawsuit, must be with an interpreter.” When Woodruff inquired how soon the interpreter would arrive, she said McCray looked at her as if he did not know. Woodruff spoke to McCray in an angry tone and again left the restaurant. Woodruff testified that she attempted to question McCray so that she could complete a “property damage report.” However, for reports on noncriminal private property damage, there is no requirement that anyone participate in the completion of the report, other than the person who contacted the police. Woodruff did not ask McCray to fill in information on a report. Although Woodruff states that she also wanted to assist Hart by getting McCray’s name and address, she concedes she never asked McCray for that information. Woodruff claims that she when realized there would be a problem in gaining McCray’s cooperation in those endeavors, she went outside to call her supervisor. Woodruff told her supervisor, Tim Ward, that she encountered resistance from McCray in gathering information for a report on property damage to Hart’s car. She testified that she also told Ward that McCray had an interpreter on the way and asked if she should get an interpreter. Ward denies she asked him if an interpreter should be obtained for McCray. Ward testified that he was dispatched because he was told Woodruff needed a supervisor on the scene. Woodruff also advised the police dispatch operator to send a backup police officer “[b]ecause the situation was unusual and [she] wanted to make sure that nobody got hurt.” She admits, however, that when she asked for backup, McCray had not done anything to indicate he was violent. Woodruff further testified that she had reason to suspect McCray might possibly be involved in criminal activity because he refused to answer her questions. Defendant Howell was dispatched to assist Woodruff with a “disorderly person.” However, Howell admitted that when he arrived, McCray was not behaving in a disorderly fashion. Howell also conceded that Woodruff told him McCray was deaf and that she felt that he was being uncooperative, in part, because he had discontinued written communication with her. Woodruff also told him that McCray had refused to provide his license or any other basic information. After Ward and Howell arrived on the scene, according to Ward, Woodruff explained Hart’s allegations and she further described the situation as an incident of property damage, without clarifying that it was an incident of private property damage. Acting upon Ward’s instructions, Woodruff re-entered the restaurant with Howell to get McCray to come outside and to provide information that would be used to complete a property damage report. Immediately after that, two other officers, Carmichael and Carpenter, arrived at the scene. When Woodruff and Howell reached the booth where McCray was sitting, they again attempted to communicate with him verbally. McCray indicated with gestures that he wanted to communicate by exchanging written notes. One of the male officers refused that request. Woodruff motioned for him to stand up and come outside. McCray looked up and shook his head to indicate “no.” Wood-ruff verbally asked McCray again and motioned for him to stand up and to come outside the restaurant. McCray shook his head “no,” pointed to his children and continued eating. Woodruff touched his elbow twice and McCray pulled away from her each time. Then, as Woodruff and Howell both grabbed McCray to make him stand and to pull him from the booth, McCray began swinging his arms because he thought the officers were going to handcuff him. Woodruff admitted at the time she and Howell pulled on his arms, McCray was not under arrest. McCray claims that Howell pulled him up from the booth and slammed his face into a table, which broke. According to witness accounts, Carmichael and Carpenter were also standing near the booth and they threw McCray onto the floor. During the ensuing struggle, the officers and McCray all ended up on the floor, and, in the process, broke some condiment bottles. Woodruff and Carpenter held McCray’s legs while Carmichael pinned him down with his forearms pressed to McCray’s throat. McCray testified that this choke hold was painful and made it difficult for him to breathe. Although McCray admits that he attempted to force his head free so that he could breathe, he denies that he resisted Defendants’ efforts to restrain him or did anything to defend himself. McCray was eventually forcibly removed from the restaurant with his hands handcuffed behind his back. Stanford arrived shortly after McCray was brought out of the restaurant and indicated she could perform sign language interpretation. The officers put McCray in a police car without permitting him to communicate with Stanford and took him to the police station. Although an ambulance was called to attend the injuries of Woodruff, Ward admits he did not ask McCray if he was injured or have him examined by paramedics. McCray’s children, who witnessed the incident, were left by police in the restaurant with strangers. When their mother arrived, she found them upset and crying. Woodruff claims that in the fracas, McCray shoved her backwards into a broken table which caused her to fall and to hit the back of her head on the salad bar. McCray denies that he made any contact with Woodruff. Woodruff was transported by ambulance to the hospital where she was treated for bruises and lacerations. As a result of injuries which she sustained in the struggle, Woodruff missed the last two hours of her shift. She was also placed on light duty for ten days. The officers on the scene completed PD-12 reports, which are submitted to the police chief whenever force is used. In those reports, each officer represented that McCray resisted them by fighting, kicking, or struggling violently. None of them stated that McCray incited the struggle by pushing Woodruff. When McCray’s wife arrived at the jail, she was not permitted to interpret for him. McCray was, however, able to communicate to his wife and a jail employee that he was injured and wanted to be taken to the hospital. The request for immediate medical attention was denied. McCray was put in a jail cell. He had blood on his clothing and was experiencing pain in his chest and in his throat. When McCray’s family was permitted to visit him, they also requested that jail personnel take him to the hospital. However, they were told by jail personnel that he was not injured. Although McCray was eventually taken to the hospital for treatment, he could not communicate first because he was handcuffed and then because he was not permitted to have an interpreter. McCray states that he eventually received only cursory medical attention from a physician. Following his release from jail, McCray was found to have tenderness over his larynx, knee and wrist pain, and severe pain in both sides of his rib cage. X-rays showed a questionable rib fracture. A hand splint and pain medication were prescribed. McCray remained in jail overnight and throughout the next day until he was taken to court. He was not released until his grandfather posted $10,000 in bail. McCray was charged with two counts of second degree assault, resisting arrest, and obstructing government operations. Although Carpenter completed all of the charges, including one for resisting arrest, he did not know what arrest McCray resisted. All of the officers involved in the altercation testified either that they did not hear anyone tell McCray he was under arrest, or that they did not know when the arrest occurred. None of the officers involved in restraining McCray and effecting his arrest were certain about the basis for the obstruction charge. Robinson, a police department investigator, swore out the warrant for second degree assault based on Woodruffs report that she and Howell were injured by McCray while engaged in a lawful duty. Robinson admitted that he did not independently examine the facts which Woodruff presented. All of the charges were dismissed by a state court judge at a preliminary hearing for lack of probable cause. IV. SUMMARY JUDGMENT STANDARD Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment is appropriate when “there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). In a case where the ultimate burden of persuasion at trial rests on the nonmovant, the movant can satisfy her initial burden either by submitting affirmative evidence negating an essential element of the nonmovant’s claim or by demonstrating that the nonmovant’s evidence itself is insufficient to establish an essential element of that claim. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If this requirement is satisfied, the burden then shifts to the nonmovant to make a showing sufficient to establish the existence of an essential element to her claims, and on which she bears the burden of proof at trial. To satisfy this burden, the nonmovant cannot rest on her pleadings, but must, by affidavit or by other means, set forth specific facts showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(e). The court’s function in deciding a motion for summary judgment is to determine whether there exist genuine, material issues of fact to be tried; and if not, whether the movant is entitled to judgment as a matter of law. See Dominick v. Dixie Nat’l Life Ins. Co., 809 F.2d 1559 (11th Cir.1987). It is substantive law that identifies those facts which are material on motions for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 258, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); De Long Equip. Co. v. Washington Mills Abrasive Co., 887 F.2d 1499 (11th Cir.1989). When a court considers a motion for summary judgment, it is to refrain from deciding any material factual issues. All evidence and inferences drawn from the underlying facts must be viewed in the light most favorable to the nonmovant. Earley v. Champion Int'l Corp., 907 F.2d 1077, 1080 (11th Cir.1990). The movant bears “the exacting burden of demonstrating that there is no dispute as to any material fact in the case.” Warrior Tombigbee Transp. Co. v. M/V/ Nan Fung, 695 F.2d 1294, 1296 (11th Cir.1983); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). y. DISCUSSION A. Americans With Disabilities Act and Rehabilitation Act McCray contends that Defendants’ failure to provide a sign language interpreter during McCray’s police interrogation and subsequent to his arrest constitutes a violation of Title II of the Americans With Disabilities Act (“ADA”) and Section 504 of the Rehabilitation Act. In the alternative, McCray argues that he was arrested because he was deaf which constitutes discrimination under the Acts. The City argues that it is entitled to summary judgment on these claims because police interrogations during, or preceding, arrests are not programs or activities within the meaning of the ADA. The City further denies that it discriminated against McCray or otherwise failed to accommodate McCray’s disability. Title II of the ADA, on which McCray bases his claim, prohibits disability discrimination by public entities, and states in pertinent part that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such'entity.” 42 U.S.C. § 12132. The Rehabilitation Act contains similar language regarding the rights of disabled persons to participate in federally-funded programs or activities. See 29 U.S.C. § 794(a). These statutes require “public entities to take appropriate steps to ensure that communications with applicants, participants, and members of the public with disabilities are as effective as communications with others.” 28 C.F.R. § 85.160. For hearing impaired individuals, those steps include “appropriate auxiliary aids and services,” including interpreters. 28 C.F.R. § 35.160(b). To establish an ADA claim under Title II, McCray, a qualified disabled person, must demonstrate either that he was “excluded from participation in or denied the benefits of services, programs, or activities of a public entity,” or that he was otherwise “subjected to discrimination by any such entity.” Hainze v. Richards, 207 F.3d 795, 799 (5th Cir.2000); see also Komblau v. Dade County, 86 F.3d 193, 194 (11th Cir.1996) (plaintiff must allege 1) that he is a qualified disabled person, 2) that he was prevented from participating in a state program or activity, and 3) that the exclusion was based on his disability). The standard is the same whether a claim is sought under the ADA or the Rehabilitation Act. See Harris v. Thigpen, 941 F.2d 1495 (11th Cir.1991). McCray contends that, by failing to contact an interpreter before or after arresting him, Defendants discriminated against him in the provision of Dothan’s services, programs or activities. “A program or activity” is defined as “all operations of a department, agency, ... or other instrumentality of a State.” 29 U.S.C. § 794(b)(1)(A). The question thus becomes whether police investigatory questioning and arrest are programs or activities cognizable under the ADA or Rehabilitation Act. The issue is a matter of first impression in the Eleventh Circuit. The Supreme Court has held that the ADA applies to prisons. Pennsylvania Dept. of Corrections v. Yeskey, 524 U.S. 206, 118 S.Ct. 1952, 141 L.Ed.2d 215 (1998). However, courts which have considered its applicability to investigative and arrest procedures have reached varying conclusions. For instance, in Rosen v. Montgomery County, Maryland, 121 F.3d 154 (4th Cir.1997), a hearing-impaired plaintiff was stopped for reckless driving and was arrested after failing field sobriety tests. Id. at 155-156. He alleged that police violated his rights under the ADA and Rehabilitation Act because they did not communicate with him in writing or obtain an interpreter for him as he requested. Id. at 156. The Court held that neither the field sobriety test nor the subsequent arrest was a program or activity within the meaning of the ADA. Id. at 157. More specifically, the Court’s reasoning was as follows: Rosen was in no way “denied the benefits of’ his arrest. As far as the police officers were concerned, Rosen adequately participated in the various tests for intoxication, and the officers obtained the information they needed to complete the booking process. Rosen was simply not “discriminated against” just because he could not follow everything the officers were telling him. If we assume, however, that the police were required to provide auxiliary aids at some point in the process, that point certainly cannot be placed before the arrival at the stationhouse. The police do not have to get an interpreter before they can stop and shackle a fleeing bank robber, and they do not have to do so to stop a suspected drunk driver, conduct a field sobriety test, and make an arrest. Id. at 158. Plaintiffs assert that the Fourth Circuit’s holding was based, in part, on the fact that Rosen was stopped and ultimately arrested for drunken driving, apparent unlawful activity which the police had an interest in stopping immediately. In other words, they argue that the exigent circumstances presented by Rosen’s drunken driving should go toward the reasonableness of the accommodation rather than whether or not some accommodation need be made. In support of this conclusion, Plaintiffs point the court to the language of the Fifth Circuit’s decision in Hainze v. Richards, 207 F.3d 795 (5th Cir.2000). In Hainze, a mentally ill plaintiff walking toward police officers with a knife was shot because he failed to comply with orders to stop. Id. at 797. The court held that “Title II does not apply to an officer’s on-the street responses to reported disturbances or other similar incidents ... prior to the officer’s securing the scene and ensuring that there is no threat to human life.” Id. at 801. “Once the area was secure and there was no threat to human safety, the ... deputies would have been under a duty to reasonably accommodate Hainze’s disability in handling and transporting him to a mental health facility.” Id. at 802. The implicit conclusion to be drawn from this language coincides with Plaintiffs’ assertion. Similarly, the Eighth Circuit has held that police activity occurring post-arrest is a program, activity or service under the ADA. See Gorman v. Bartch, 152 F.3d 907, 912-13 (8th Cir.1998) (finding ADA claim viable where arrestee with disability was injured in a police vehicle during transport to police station because vehicle not equipped with wheelchair safety devices). The Tenth Circuit has also read the ADA definition of program or activity broadly to include police activity occurring prior to arrests and “investigations potentially involving arrests.” Gohier v. Enright, 186 F.3d 1216, 1219 n. 2 (10th Cir.1999); see also Calloway v. Boro of Glassboro Dept. of Police, 89 F.Supp.2d 543, 555 (D.N.J. 2000) (relying on Yeskey to place station-house investigative questioning within the ambit of ADA activity). The court is wary of further complicating matters for police officers in an already dangerous profession. See e.g. Patrice v. Murphy, 43 F.Supp.2d 1156, 1160 (W.D.Wash.1999) (observing that “forestalling all police activity until an interpreter can be located to aid communication with the deaf protagonist would be impractical and could jeopardize the police’s ability to act in time to stop a fleeing suspect, physically control the situation, or interview witnesses on the scene”). On the other hand, the underlying policies of the ADA will be obviated if citizens who interact with police officers are mistreated solely on the basis of their disability. While it is by no means binding upon the court, the language of the Department of Justice website is instructive in seeking a balance between these competing concerns. See U.S. Dep’t of Justice, Commonly Asked Questions About the Americans With Disabilities Act and Law Enforcement, at <http://www.usdoj.gov/crt/ada/q & a — law. htm>. Therein the question of whether or not police departments need to provide an interpreter for every deaf individual with which they interact is answered in the negative. Id. at 10. However, this answer is followed by the caveat that police officers “are required by the ADA to ensure effective communication with individuals who are deaf or hard of hearing.” Id. Examples are then given when the requirement may be appropriate and when it is not, suggesting that the ADA’s requirements turn merely upon the facts of a given situation. The inherent presumption, though, is that investigative activities are “activities” within the umbrella of ADA protections. This reasoning persuades the court to adopt the rule announced by the Fifth Circuit in Hainze. In short, police activity is a government program under the ADA, but only when the circumstances surrounding the activity is “secure” and there is “no threat to human safety.” Hainze, 207 F.3d at 802. The requirement that the area be secure provides police officers a bright line so that they need not endanger their lives or the lives of innocent citizens worrying whether the steps taken in hot pursuit of a suspect comply with the ADA. In other words, police investigative activities are government programs, but it is per se reasonable to disregard a suspect’s disability until overriding concerns of public safety are ensured. At that time, the reasonableness of the accommodation required of the police officers is an issue of fact which will vary with regard to the nature of the activity in relation to the qualified individual’s disability. In the present matter, the facts taken in the light most favorable to McCray demonstrate that he responded to written questions posed to him about a private property damage dispute to the extent he was capable of understanding them. Thereafter, he persistently requested that an interpreter be obtained to assist him in answering police investigatory questions. Defendants have presented no evidence suggesting McCray posed any “threat to human safety” which created a necessity for questioning him or arresting him prior to complying with his request for an interpreter. Indeed, Ward admitted that there was no exigent situation which required officers to hurry in gathering information for the property damage report. Carpenter testified that there is no time limit on completing reports. Thus, the court concludes that under these circumstances, the police defendants were under an obligation under the ADA to .accommodate in effecting arrest activities. The City argues that it is not liable because it reasonably accommodated McCray’s disability by attempting to communicate with him through written notes. Whether an accommodation is reasonable “involves a fact-specific, case-by-case inquiry that considers, among other factors, the effectiveness of the modification in light of the nature of the disability in question.” Staron v. McDonald’s Carp., 51 F.3d 353, 356 (2nd Cir.1995). McCray has presented evidence that he is pre-lingually deaf and that he uses American Sign Language as his primary form of communication. McCray’s expert testified that the meaning of words in ASL and English are not parallel. Therefore, his ability to understand English is limited in some respects. As a result, McCray argues that written communication in English was ineffective. The ADA requires a public entity to “take appropriate steps” to ensure effective communications to include the use of “appropriate auxiliary aids or services.” 28 C.F.R. § 35.160(b). The list of “auxiliary aids” includes “qualified interpreters.” 28 C.F.R. § 35.104.2. In determining what type of auxiliary aid and service is necessary, a public entity “shall give primary consideration” to the requests of the individual with disabilities. 28 C.F.R. § 35.160(b)(2). Further, the Appendix to 28 C.F.R. § 35.160 states that “[t]he public entity shall honor the [disabled individual’s] choice [of auxiliary aid] unless it can demonstrate another effective means of communications exists or that the use of the means chosen would not be required under § 35.164.” McCray claims that the police refused -his requests for an interpreter during their questioning and subsequent to his arrest. In light of McCray’s inability to fully understand English, the appropriateness of the use of written notes as an auxiliary aid is a disputed issue of material fact which precludes summary judgment. Alternatively, McCray asserts summary judgment is inappropriate on the wrongful arrest theory of the ADA, wherein the “police wrongly arrested someone with a disability because they misperceived the effects of that disability as criminal activity.” See Gohier 186 F.3d at 1221. Taking the evidence in the light most favorable to McCray, Defendant Woodruff was investigating a civil property damage dispute. She was told that McCray was deaf and could not read lips. He answered written questions posed to him to the extent he understood them. McCray told Woodruff that he wanted an interpreter to assist him in answering questions. However, she perceived that McCray was refusing to cooperate with her efforts to obtain his name and address so that she could assist Hart and complete a property damage report. As a result, McCray was physically assaulted by the police defendants, forcibly removed from the restaurant, and arrested. Assuming the truthfulness of those facts, McCray would not have been arrested if he had been able to hear. Where a plaintiff shows he was arrested because of his disability “and not because of the perpetration of some crime unrelated to his disability ... an ADA claim should lie.” Patrice, 43 F.Supp.2d at 1159. For instance, in Lewis v. Truitt, 960 F.Supp. 175, 178 (S.D.Ind.1997), the plaintiff was deaf. Although at least one of the police officers was advised the plaintiff was deaf when they arrived at his home to remove his granddaughter in a child custody matter, they did not attempt to communicate with him through the use of written questions. Id. When the plaintiff did not understand their verbal instructions, the police perceived the plaintiff was not being fully cooperative or otherwise being difficult. Id. at 176-77. As a result, they physically assaulted and arrested him. Id. The court held the defendants were not entitled to summary judgment because there was a genuine issue of material fact about whether defendants “knew [the plaintiff] was deaf but refused to take steps to communicate with him and then arrested with him because he did not respond to them appropriately.” Id. at 178-79. The instant case presents an analogous fact situation to Lewis and summary judgment is inappropriate for the same reason. B. Fourth Amendment-Unlawful Seizure 1. Police Defendants The Fourth Amendment guarantees that all individuals will “be secure in their person ... against unreasonable seizures.” U.S. Const, amend. IV. McCray alleges that the police defendants seized him in violation of the Fourth Amendment to the extent they performed an investigative stop without the requisite reasonable suspicion, and to the extent that he was arrested without probable cause. See United States v. Espinosa-Guerra, 805 F.2d 1502, 1506 (11th Cir.1986) (identifying investigative stops and full scale arrests among tiers of police-citizen encounters which implicate the Fourth Amendment); Brower v. County of Inyo, 489 U.S. 593, 595, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989) (Fourth Amendment seizure is effected “when there is a governmental termination of freedom of movement through means intentionally applied”). In response to these claims, the police defendants have raised the defense of qualified immunity. However, as an initial matter, the court must determine whether the defendants’ actions violated McCray’s Fourth Amendment rights. See Wilson v. Layne, 526 U.S. 603, 609, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999) (“A court evaluating a claim of qualified immunity must first determine whether the plaintiff has alleged the deprivation of an actual constitutional right at all, and if so, proceed to determine whether that right was clearly established at the time of the alleged violation.”) Defendants concede that McCray was seized at some point during his pre-arrest encounter with police because he did not satisfactorily answer Woodruffs questions or accompany police officers outside to complete a property damage report. McCray admits that he did not provide the officers with his driver’s license and that he did not accompany them outside while he was awaiting the arrival of his interpreter. However, he contends that because Woodruff and other officers approached him about a civil property damage dispute, they had no legal authority to require him to answer any question or to forcibly remove him from the restaurant. In opposition, the police defendants argue they had a reasonable suspicion that McCray had committed the criminal offense of failing to give information or render aid after a traffic accident under ALA.CODE § 32-10-2 or failing to notify the owner upon striking an unattended vehicle under ALA.CODE § 32-10-3. Therefore, they argue that they had authority to approach McCray to obtain his name and address and to use some amount of non-excessive force in removing him from the building pursuant to ALA. CODE § 15-5-30 and Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Both § 15-5-30 and Terry permit a police officer to constitutionally detain an individual for brief periods of questioning based on an objectively reasonable suspicion that an individual is involved in criminal activity. For the reasons which follow, the court concludes that the police defendants’ arguments are unavailing. It does not appear there was any traffic accident or collision which would have implicated McCray’s duty as a driver, as contemplated by either § 32-10-2 or § 32-10-3. Those sections describe offenses which concern leaving the scene of a traffic accident before rendering aid or providing certain information. See Ex parte Mayfield, 545 So.2d 92, 93 (Ala.1988) (holding that “the purpose of the ‘leaving-the-scene’ statute is to impose ‘multiple duties upon the driver of a motor vehicle involved in an accident resulting in personal injury or in property damage to another vehicle that is driven or attended by any person’ ”). . Taking the facts in the light most favorable to McCray as true, Woodruff was dispatched to intervene in what she initially described as “a private property traffic incident.” When she arrived at Quincy’s, Hart described to her damage which a child passenger exiting McCray’s parked automobile had caused to Hart’s parked automobile. Although McCray had been driving the automobile from which the child exited, he was in no way implicated in the damage caused to Hart’s car. There is no evidence he even knew about the damage before Hart and Woodruff attempted to bring it to his attention. Indeed, Woodruff has admitted that the sequence of events which Hart alleged did not constitute a traffic accident. Additionally, Woodruff testified that when she first approached McCray she had no indication that McCray had been involved in any criminal activity. Rather, she testified that she was merely attempting to obtain McCray’s name and address for Hart in furtherance of his civil claim for property damage. If Woodruff and other police officers did not approach McCray and question him due to any reasonable suspicion that he was involved in criminal activity, neither Terry nor Alabama Code § 15-3-30 made it constitutionally permissible for them to subject him to any unwanted questioning or to otherwise restrain his liberty. “Of course, police officers are free to approach a citizen on the street and ask if he is willing to answer a few questions. But absent reasonable suspicion justifying a Terry investigative stop, the citizen is free to refuse to answer questions and walk away.” U.S. v. Gray, 213 F.3d 998, 1000 (8th Cir.2000); Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (“law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen”). Reasonable suspicion requires, considering the totality of the circumstances, “some minimum level of objective justification.” Gainor v. Douglas County, Georgia, 59 F.Supp.2d 1259, 1274 (N.D.Ga.1998) (quoting United States v. Sokolow, 490 U.S. 1, 4, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989)). Defendants have not presented any evidence that such objective justification existed at the time Woodruff approached McCray or at any time thereafter. Although she admits she had none initially, Woodruff contends that she later developed a reasonable suspicion when McCray refused to answer her questions which, she argues, justified the attempts of police defendants to forcibly remove him from the restaurant. That contention must also fail. First, it is not evident that McCray refused to answer any question Woodruff put to him. He responded to her written questions about whether he owned the green car which Hart claimed was involved in the property damage dispute and, in response to further verbal and written questions, McCray persistently requested that an interpreter be obtained to assist him. Second, even if McCray had refused to answer Woodruffs questions, absent other specific and articulable facts, McCray’s refusal to cooperate with the questioning could not itself supply the reasonable suspicion that he was engaged in criminal activity. As the Supreme Court has explained: “an individual may decline an officer’s request without fearing prosecution. We have consistently held that refusal to cooperate, without more, does not furnish the minimum level of objective justification needed for a detention or seizure.” Florida v. Bostick, 501 U.S. 429, 436, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991); see also Florida v. Royer, 460 U.S. at 498, 103 S.Ct. 1319 (holding that a person “may not be detained even momentarily without reasonable, objective grounds for doing so; and his refusal to listen or answer does not, without more, furnish those grounds”). The refusal to cooperate with a police officer may not serve as a basis for reasonable suspicion unless it is accompanied by “nervous, evasive behavior.” Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000). Beyond the communication gap between a deaf man and herself, Woodruff has not articulated any specific facts upon which suspicion reasonably could be founded. Any “evasive” behavior on the part of McCray was justified by his belief that he was entitled to wait for his interpreter. Inasmuch as this belief was communicated to Woodruff, there is no basis upon which she reasonably could have suspected McCray of any wrongdoing. Therefore, a Terry justification for Woodruffs investigatory stop is foreclosed. As such, summary judgment should be denied with respect to McCray’s claim against Woodruff and Howell. The remaining officer defendants allege that they lawfully arrested McCray for pushing Woodruff and assaulting Howell when the officers grabbed his arms to pull him from his seat. That argument is not well-taken because McCray disputes that he pushed Woodruff. McCray has also presented evidence in the form of witness affidavits which, if accepted as true, demonstrate that he did not in any way assault the police defendants or otherwise act to defend himself. Likewise, there is no evidence that McCray committed the crime of obstructing government operations insofar as the officers were not performing any legitimate operations. The record indicates that the remaining officers were outside when the fracas between McCray, Woodruff and Howell arose, so there is some question as to whether they truly could have had probable cause as to an incident they did not clearly observe. Thus, the evidence before the court raises a genuine issue of material fact as to whether any of the officer defendants had sufficient justification under the Fourth Amendment to stop and then to arrest McCray. Because the stop and arrest were unlawful, McCray argues that any force used by the police defendants was excessive. “Under this Circuit’s law, however, a claim that any force in an illegal stop or arrest is excessive is subsumed in the illegal stop or arrest claim and is not a discrete excessive force claim.” Jackson v. Sauls, 206 F.3d 1156, 1171 (11th Cir.2000) (citing Williamson v. Mills, 65 F.3d 155, 158-59 (11th Cir.1995)). Therefore, the court need not evaluate excessive force as a separate claim. Jackson, 206 F.3d at 1171; see also Motes v. Myers, 810 F.2d 1055, 1059 (11th Cir.1987) (“It is obvious that if the jury finds the arrest unconstitutional, the use of force and the search were unconstitutional and they become elements of the damages for the § 1983 violation.”). The court will, instead, proceed to the question of whether the police defendants are entitled to qualified immunity for the constitutional violations posed by the unlawful stop and arrest. In the Eleventh Circuit, a two-pronged analysis applies in resolving the qualified immunity issue. As a threshold matter, the defendant government official must prove that he was acting within his discretionary authority when the alleged constitutional violation occurred. Rich v. Dollar, 841 F.2d 1558, 1563 (11th Cir.1988). A government official acts within his discretionary authority if challenged actions “were undertaken pursuant to the performance of his duties and within the scope of his authority.” Sims v. Forehand, 112 F.Supp.2d 1260, 1267 (M.D.Ala.2000). Here, there is no dispute that the police defendants were acting within their discretionary authority at the time the alleged constitutional violations occurred. See, e.g., Ferguson v. City of Montgomery, 969 F.Supp. 674, 678-79 (M.D.Ala.1997) (finding that the determination that an officer was acting within his or her discretionary authority is a “low hurdle” to clear). The second step in determining whether police defendants’ actions are protected by qualified immunity is to ascertain whether their conduct violates “clearly established statutory or constitutional rights of which a reasonable person would have known.” Nolin v. Isbell, 207 F.3d 1253, 1255 (11th Cir.2000). To be clearly established, the “contours” of an asserted constitutional right “must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). In addition, “pre-existing law must dictate, that is truly compel (not just suggest or allow or raise a question about) the conclusion for every like situated reasonable government agent that what [the] defendant is doing violates federal law in the circumstances.” Lassiter v. Alabama A & M University, 28 F.3d 1146, 1150 (11th Cir.1994) (en banc). As the Eleventh Circuit has noted: When considering whether the law applicable to certain facts is clearly established, the facts of the cases relied on as precedent are important. The facts need not be the same as the facts of the immediate case. But they need to be materially similar. Public officials are not obligated to be creative or imaginative in drawing analogies from previously decided cases. Adams v. St. Lucie County Sheriff’s Dept., 962 F.2d 1563, 1575 (11th Cir.1992). The police defendants purportedly based their actions upon reasonable suspicion. In the context of “qualified immunity, the issue is not whether reasonable suspicion existed in fact, but whether the officer had ‘arguable’ reasonable suspicion to support an investigatory stop.” Jackson, 206 F.3d at 1166; Lindsey v. Storey, 936 F.2d 554, 559 (11th Cir.1991) (“it is inevitable that law enforcement officers will sometimes reasonably but mistakenly conclude that reasonable suspicion is present, and these officers are protected by qualified immunity”). If McCray’s version of events is credited, as it must be at this stage of the litigation, on the whole, the facts known by the police defendants at the time they stopped McCray were insufficient to meet even this burden. As stated above, at the time Woodruff approached McCray, she attempted to question him about an incident concerning damage to private property. By her own admission, no criminal activity was suspected. Therefore, McCray was not obligated to answer any question. Even if at some point McCray refused to answer questions regarding the civil property damage dispute pending the arrival of his interpreter, there is no evidence that he did anything sufficient to create an arguable reasonable suspicion of criminal activity. The Supreme Court has repeatedly held that the mere refusal to answer the questions of a police officer may not serve as the basis for a seizure under the Fourth Amendment. Bostick, 501 U.S. at 436, 111 S.Ct. 2382 (holding that a citizen need not answer questions put forth by an officer, and such refusal does not furnish grounds for seizure). Therefore, the police defendants are not protected by qualified immunity from civil liability arising from the investigatory stop. The police defendants also argue they are entitled to qualified immunity for the subsequent arrest of McCray. “It is clearly established that an arrest made without probable cause violates the Fourth Amendment.” Thornton v. City of Macon, 132 F.3d 1395, 1399 (11th Cir.1998). The defense of qualified immunity protects the police defendants from liability if there was “arguable probable cause” to arrest McCray. Montoute v. Carr, 114 F.3d 181, 184 (11th Cir.1997). In other words, “the facts and circumstances must be such that the officer reasonably could have believed that probable cause existed.” Id. This is established upon a determination that reasonable officers in the same circumstances and possessing the same knowledge as the police defendants could have believed that probable cause existed to arrest Plaintiff. Von Stein v. Brescher, 904 F.2d 572, 579 (11th Cir.1990). McCray was arrested for obstruction of government operations, resisting arrest, and assault. Under Alabama law, the crime of obstructing government operations requires interference by “intimidation, physical force, or by any other independently unlawful act.” ALA.CODE § 13A-10-2. Accepting McCray’s version of events as true, he was eating in a restaurant without incident or disturbance until Woodruff approached him with questions about the damage to Hart’s car. After that, he answered her questions to the extent he was able without the benefit of an interpreter. Woodruff and Howell attempted to persuade McCray to leave the restaurant to answer questions about the damage to Hart’s car by twice touching McCray’s elbow. According to Woodruff, McCray was not then under arrest. As a result of their pulling on his arms, McCray came out of his seat. Insofar as the officers had no legal authority upon which to compel McCray to leave the restaurant, the court finds that a reasonable officer could not have believed that probable cause existed to arrest McCray for obstructing government operations. See, e.g., Thornton v. City of Macon, 132 F.3d 1395, 1399 (11th Cir.1998) (holding that “no reasonable police officer would have believed that the officers had probable cause to arrest [the plaintiff] for obstruction of such unauthorized actions”); Houston v. Tucker, 137 F.Supp.2d 1326, 1337 (N.D.Ga.2000) (“[W]hen officers forcibly try to resolve disputes, while not engaged in the lawful discharge of their official duties, they lack probable cause to arrest for obstruction of their unauthorized actions.”). As such, the court finds that Woodruff and Howell are not protected by qualified immunity, so summary judgment should be denied. The same cannot be said for Ward, Carmichael, and Carpenter. These officer defendants were outside when Woodruff and Howell initiated the unlawful contact with McCray. Even viewing the facts in the light most favorable to McCray, there is no doubt that, after McCray’s arm was pulled and he left the booth, a violent struggle ensued. Carmichael and Carpenter then proceeded to enter the restaurant to provide assistance for Woodruff and Howell. They perceived a struggle which they mistakenly, but reasonably interpreted as resistance to an arrest. It is immaterial that they could not specifically point to a crime which McCray might have committed. See Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991) (“Even law enforcement officers who reasonably but mistakenly conclude that probable cause is present are entitled to qualified immunity.”). The court refuses to sanction police officers who unwittingly aid their fellow officers in effectuating an unlawful arrest so long as the unlawfulness of the arrest was not patently obvious. See Malley v. Briggs, 475 U.S. 335, 343, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986) (holding that qualified immunity shields “all but the plainly incompetent or those who knowingly violate the law”). There being grounds to believe that a reasonable officer could believe that assistance was needed, the court grants summary judgment to police defendants Ward, Carmichael and Carpenter on the grounds of qualified immunity. 2. Municipal Liability Employing the “practice or custom” approach, McCray argues that the City is also liable under the Fourth Amendment for his unlawful seizure at the hands of the police defendants. McCray has presented undisputed evidence that the Dothan City Commission is the policymaker for the City’s police department. “[R]ecovery from a municipality is limited to acts that are, properly speaking, acts ‘of the municipality’ — that is, acts which the municipality has officially sanctioned or ordered.” Pembaur v. Cincinnati, 475 U.S. 469, 480, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986); Monell v. New York City Dept. of Social Services, 436 U.S. 658, 690-91, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) (holding municipalities are “persons” for purposes of § 1983 and can be liable where “the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officers”). In some instances, a municipality may be subject to § 1983 liability for “constitutional deprivations visited pursuant to governmental ‘custom’ even though such a custom has not received formal approval through the body’s official decisionmaking channels.” Monell, 436 U.S. at 690-91, 98 S.Ct. 2018. Such liability requires that Plaintiff provide evidence that establishes “a widespread practice that, ‘although not authorized by written law or express municipal policy, is so permanent and well settled as to constitute a ‘custom or usage’ with the force of law.’ ” St. Louis v. Praprotnik, 485 U.S. 112, 127, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988) (quoting Adickes, 398 U.S. at 167-68, 90 S.Ct. 1598). Stated differently, “a longstanding and widespread practice is deemed authorized by the policymaking officials because they must have known about it but failed to stop it.” Brown v. City of Fort Lauderdale, 923 F.2d 1474, 1481 (11th Cir.1991); see also Brooks v. Scheib, 813 F.2d 1191, 1193 (11th Cir.1987) (“A municipality’s failure to correct the constitutionally offensive actions of its police department may rise to the level of a ‘custom or policy’ if the municipality tacitly authorizes these actions or displays deliberate indifference towards the police misconduct.”) (citations omitted). McCray has presented evidence that the City was aware of numerous unlawful seizure and excessive force claims filed by citizens against Dothan police officers. McCray also shows that the system through which the City investigates alleged deviations from the department policies depends almost completely upon self-reporting by the officers involved in the suspect conduct. However, there is no provision in the reporting policy which requires officers to report misconduct of other officers. In addition, McCray has adduced evidence that there is also no provision for protecting the anonymity of officers who report abuses of authority. According to McCray, this explains why, out of twenty-nine excessive force complaints since 1988, only one was found to have merit. The remaining complaints were either dismissed, exonerated or designated “no status.” The Eleventh Circuit has established that “a persistent failure to take disciplinary action against officers can give rise to the inference that a municipality has ratified conduct, thereby establishing a ‘custom’ within the meaning of Monell.” Fundiller v. City of Cooper City, 777 F.2d 1436, 1443 (11th Cir.1985). To be sure, “the number of complaints bears no relation to their validity.” Brooks, 813 F.2d at 1193. However, McCray also shows that the complaints which he made against Do-than police were not fully investigated, if they were investigated at all. No disinterested witnesses were interviewed and the police chief did not question the police officers’ unanimous version of events. The City has not disputed that evidence. Additionally, while John White, the police chief, testified the use of force in this case was consistent with department policy, White conceded that the City has never adopted a formal policy on the use of force. “The continued failure of the city to prevent known constitutional violations by its police force is precisely the type of informal policy or custom that is actionable under section 1983.” Depew v. City of St. Marys, Georgia, 787 F.2d 1496, 1499 (11th Cir.1986). At the very least, such evidence is enough to withstand a motion for summary judgment in the Eleventh Circuit. Under a second theory of liability, McCray further asserts that the City’s failure to adequately train its police officers caused the Fourth Amendment violations at issue. “To establish municipal liability under Canton, Ohio v. Harris, 489 U.S. 378, 385, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989), Plaintiff must establish two things: first, that the city in fact inadequately trained its employees in the lawful execution of their duties, and second, that this failure to train was actually a city policy.” Kerr v. City of West Palm Beach, 875 F.2d 1546, 1555 (11th Cir.1989) (citations omitted). “[0]nly where a municipality’s failure to train its employees in a relevant respect evidences a ‘deliberate indifference’ to the rights of its inhabitants can such a shortcoming be properly thought of as a city ‘policy or custom’ that is actionable under § 1983.” Id. “Before it may be said that a municipality has made a deliberate choice among alternative courses of action, its policymakers must have had ‘actual or constructive notice that the particular omission is substantially certain to result in the violation of the constitutional rights of their citizens.’ ” Young v. City of Augusta, 59 F.3d 1160, 1172 (11th Cir.1995). McCray argues that the City had either actual or constructive knowledge of the need to train its police officers concerning the appropriate standards for the seizure of an individual the use of force in making the arrest. In support of the failure to train argument, McCray shows that both Ward and Howell testified that they had not received any training on constitutional rights since they left the police academy. White testified that the City has adopted no policy governing the use of force. McCray also asserts that the numerous complaints against the police department which alleged unlawful seizure or excessive force should have put the City on notice that the need to train on Fourth Amendment issues was “patently obvious.” See Young v. City of Augusta, 59 F.3d at 1172 (“[T]he need for more or better training may be obvious where a pattern of constitutional violations exists such that the municipality knows or should know that corrective measures are needed.”). As the Eleventh Circuit has observed, “the frequency of constitutional violations may, in itself, provide sufficient circumstantial evidence that a municipality has chosen to allow its officers to act without adequate training.” Kerr, 875 F.2d at 1556. Furthermore, this is not the first case filed against the City alleging such claims, so it can hardly pretend that McCray’s assertion comes as a surprise. See Sumlar v. City of Dothan, No. 00-D-717-S (M.D.Ala. filed June 2, 2000); Bivins v. City of Do-than, No. 99-D-397-S (M.D.Ala. filed April 21, 1999). The court thus agrees that the City had notice of the need to train. The relevant question thus becomes whether proof of causation is present. The test for causation turns on a finding that “but for the deficient training program the constitutional violation would not have occurred.” Gainor v. Douglas County, Georgia, 59 F.Supp.2d 1259, 1295 (N.D.Ga.1998) (citing Canton, 489 U.S. at 391, 109 S.Ct. 1197). To establish causation, “a plaintiff must ... demonstrate a direct causal link between the municipal action and the deprivation of federal rights,” Board of County Comm’rs of Bryan County, Okla. v. Brown, 520 U.S. 397, 404, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997), “such as to make the specific violation almost bound to happen, sooner or later, rather than merely likely to happen in the long run.” Spell v. McDaniel, 824 F.2d 1380, 1389-91 (4th Cir.1987); cf. Canton, 489 U.S. at 391, 109 S.Ct. 1197 (“[T]he identified deficiency ... must be closely related to the ultimate injury.”). The evidence which McCray has adduced supports a reasonable inference his injuries would not have occurred had there been a City policy on the use of force, or at least a provision for mandating that police officers report misconduct. Taking the evidence in the light most favorable to McCray, the police used force to arrest McCray in a situation where no arrest and, indeed, no force whatsoever was authorized. The self-reports prepared by the police officers involved in the arrest stated that McCray resisted arrest so that the use of force was justified. To the extent those reports allege McCray resisted arrest, they conflict with McCray’s statement and the statements of disinterested witnesses. The City’s self-reporting policy created no incentive for police officers to make truthful reports in circumstances such as this one where use of force was unwarranted. The evidence also suggested that White simply “rubber stamped” the cursory investigation of this and other incidents of alleged police misconduct. Therefore, the court concludes that the City is not entitled to summary judgment on McCray’s Fourth Amendment claims. C. Equal Protection — Disability McCray alleges that Defendants’ conduct toward him, including the alleged arrest, battery, prosecution, and general harassment, was motivated by his dea