Ferguson

dissenting:

I respectfully dissent from the majority’s holding that compensatory damages are not available under Title II of the Americans With Disabilities Act (ADA) without a showing of discriminatory intent. Maj. op. at 674-675.

It has been established that compensatory damages are available for intentional violations of Title VI. See Franklin v. Gwinnett County Pub. Schs., 503 U.S. 60, 70 , 112 S.Ct. 1028 , 117 L.Ed.2d 208 (1992) (citing Guardians Ass’n v. Civil Serv. Comm’n, 463 U.S. 582 , 103 S.Ct. 3221 , 77 L.Ed.2d 866 (1983)). Damages, therefore, are also available for violations of section 504 of the Rehabilitation Act (§ 504) and Title II of the ADA See 29 U.S.C. § 794a(a)(2); 42 U.S.C. § 12332 . The majority accepts the argument of defendant City of Phoenix (City) that if a Title VI plaintiff must prove intentional discrimination in order to recover damages, a Title II plaintiff also must do so. Congress, however, has never indicated an intent to limit *677 compensatory damages relief under Title II to only those plaintiffs who can prove that a discriminatory intent motivated the violator.

In Franklin , the Supreme Court noted the “longstanding rule” that “absent…

Opinion by Judge WOOD; Dissent by Judge TASHIMA.

Plaintiffs, who are deaf or hearing impaired, in lieu of the common telephone must rely on telecommunications devices (TDDs). TDDs are considered standard communication equipment for those with a hearing disability in order to enable them to communicate by telephone, including making 9-1-1 emergency system calls. Three separate lawsuits, later consolidated, seeking declaratory, injunctive and damages relief, were filed in February 1996 by plaintiffs against the City of Phoenix (City). The City was alleged to have operated its 9-1-1 emergency service in a way which discriminated against individuals with plaintiffs’ hearing disabilities in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 , et seq. (“Title II”); Section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 794 and 794(a)(“ § 504”); and 42 U.S.C. § 1983 . Additionally named as defendant in his individual capacity was Lyle Rodabough, Commander of the Phoenix Police Department’s Communication Bureau.

The district court granted summary judgment to defendants after concluding that compensatory damages were not available in cases of…