depressed ![[info]](http://l-stat.livejournal.com/img/userinfo.gif?v=92.1){kind=small}
nolly, and brought Pat and kids back over to the hotel after the zoo closed. But... the officer who showed up said that since there was no lasting injury, it didn't reach a criminal level of behavior on the waitress's part, and hence he only recorded an "incident report" rather than one for suspected battery. The officer said that the waitress would have had to leave lasting injury *or* have knocked David out of his chair, before it would legally be battery.
And the officer said that since the manager hadn't told us specifically "no autistics" verbatim, and instead had merely said that they wouldn't serve people who needed extra patience or attention, then that wasn't in his opinion grounds for an ADA complaint. And that restaurants could ask people to leave for any reason that they wanted.
So... I don't know where to go, now. I guess I'll update the ASA attorney, and ask her if there's still anything we can do with respect to a remedy. And head home tomorrow... I will be *so* glad to get back, after two weeks on the road.
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February 24 2007, 04:50:19 UTC 5 years ago
And I suspect you may want to talk to the TV people now.
February 24 2007, 05:05:26 UTC 5 years ago
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February 24 2007, 05:23:29 UTC 5 years ago
You do still have some options, though. It might still be worthwhile to send a copy of the incident report to the restaurant owner, with a lawyer's letter, asking for an apology letter to David and sensitivity training for the staff... with perhaps just a hint that you might escalate the legal aspect further if this request were not met. Whether or not there are "grounds" for a lawsuit, the restaurant might be willing to meet your demands in order to avoid the headache of a potential lawsuit... they have no way of knowing if you are calling their bluff, after all, and it would cost them a lot of money to do legal battle even if you didn't have a good case. So they may be willing to make a lesser capitulation in order to avoid that.
And then there is the Better Business Bureau route.
*hugs* But listen... whether or not there is a favorable outcome along those lines, you have already done the most important thing in showing David that you will go to bat for him when he is treated wrongly. So you have fought a good fight, whatever happens next.
Many hugs to you and everyone... and safe travels home.
February 24 2007, 05:31:29 UTC 5 years ago
Police officers have bosses, too.
Civil action is still netirely possible.
And while it would totally suck for nolly, getting the krew together and not leaving the police station until you get results might work. (thisis a common tactic I have when the VA starts messing with my care.)
(koyote is therealocelot's husband, nolly's friend, mactavish's weaving supply officer, etc. etc. Also silkensteel's housemate, so I live with these situations.)
February 24 2007, 05:31:47 UTC 5 years ago
I would strongly recommend that you consider continuing to pursue this with the lawyers from the ASA.
February 24 2007, 09:59:41 UTC 5 years ago
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February 24 2007, 05:38:49 UTC 5 years ago
My suggestion from the ongoing is to check two things. The CRIMINAL definition of assault and the CIVIL definition of assault. In most places, the two are very different.
I know under laws for many states, what she did would (in a civil classification) be deemed both assault and battery. Assault started the moment she invaded your son's personal space. The second she touched him, it became battery.
As for an ADA charge, the fact that you explained your son's condition to the manager and he did NOT offer even a small bit of help means that he was FULLY aware of the situation, and I do not believe he has the right to refuse service on the basis of your child taking an extra moment or two to look at the menu. It became discrimination when he wouldn't even bother to make an effort at understanding.
I really hope this works out for you and I hope your son is okay. Living with something like autism makes it difficult, and I could see how you would be really worried that this could cause a setback in development. When you get home, I hope you plan on calling someone who your son works with on a continual basis so that hopefully whatever damage that waitress might have done is corrected.
Best of luck.
February 24 2007, 10:00:44 UTC 5 years ago
Thanks.
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Anonymous
February 24 2007, 05:40:27 UTC 5 years ago
This sucks and should not be allowed to go unpunished
Brian:Someone@arc directed me to the post on your blog about the awful experience in San Diego. FWIW this is the internet domain registration info for POKEZSD.COM - this may be an owner- or it may just be the web guy. Either way they should know how to contact the owners.
FWIW back in the 70's I used to be a sign language interpreter for the deaf and I used to see this sort of blatant discrimination with my own eyes when we'd all go out to eat and the servers treated us like lepers. Often times, since I was signing (and not speaking), I'd get the leper treatment too.
This sucks and should not be allowed to go unpunished.
Keith Cowing
Registrant:
thomas hayes
4580 twain ave #5
san diego, California 92120
United States
Registered through: GoDaddy.com, Inc. (http://www.godaddy.com)
Domain Name: POKEZSD.COM
Created on: 14-Mar-03
Expires on: 05-Jun-07
Last Updated on: 24-Mar-04
Administrative Contact:
hayes, thomas tomhayes@gmail.com
4580 twain ave #5
san diego, California 92120
United States
6192947446 Fax -- 6194638634
Technical Contact:
hayes, thomas tomhayes@gmail.com
4580 twain ave #5
san diego, California 92120
United States
6192947446 Fax -- 6194638634
Domain servers in listed order:
NS15A.AWESOMEDNS.COM
NS15B.AWESOMEDNS.COM
February 24 2007, 10:01:13 UTC 5 years ago
Re: This sucks and should not be allowed to go unpunished
It does truly scrape, and thanks for the information. :)February 24 2007, 06:02:37 UTC 5 years ago
A police officer is unlikely to have any special expertise regarding disability law, and this one was no exception. I'm glad that you're talking to a lawyer who knows disability law.
February 24 2007, 06:14:50 UTC 5 years ago
February 24 2007, 08:20:13 UTC 5 years ago
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February 24 2007, 06:30:22 UTC 5 years ago
It certainly sounded like an assault to me.
February 24 2007, 08:26:17 UTC 5 years ago
However, every battery necessarily includes an assault. A battery in California is “any willful and unlawful use of force or violence upon the person of another.” Cal. Pen. Code 242 (2005). California case law has long established that merely touching a person may constitute a battery, even if it does not result in any bodily harm or pain. People v. Bradbury, 91 P. 497 (Cal. 1907) (emphasis mine)
If the cop won't do it, file a complain with the sergeant and complain to the DA that the police refused to prosecute a crime. I am sure this will be annoying and exhausting, and for that I am sorry, but YES, battery did occur and YES the police must press criminal charges.
February 24 2007, 14:32:46 UTC 5 years ago
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February 24 2007, 20:57:38 UTC 5 years ago
February 24 2007, 10:08:53 UTC 5 years ago
>> But... the officer who showed up said that since there was no lasting injury, it didn't reach a criminal level of behavior on the waitress's part, and hence he only recorded an "incident report" rather than one for suspected battery. The officer said that the waitress would have had to leave lasting injury *or* have knocked David out of his chair, before it would legally be battery.
Follow up with a police supervisor (typically a sergeant). The officer in question needs to brush up on the applicable Penal Code sections. This isn't misdemeanor battery; this is battery on a child, which is a whole different kettle of fish. They don't get much training in case law, either.
That said, there is no reason why you can't take this directly to the District Attorney's office yourself. Multiple lawyers have offered to help you in the comments fields on this and prior posts. I'm going to bow out at this point, and again wish youw ell.
I guarantee that if I laid hands on a San Diego PD officer, my failure to cause lasting injury would not save my face from being busted in.
February 24 2007, 12:04:29 UTC 5 years ago
Civil court might be your best bet. Sue the waitress, sue the manager, sue the restaurant...and definitly pursue the ADA angle. I think the cop was dead wrong, there.
Keep us updated on how it's going!
February 24 2007, 14:29:19 UTC 5 years ago
Most cops will try to talk you out of pressing charges for these reasons;
Most folks "get over it" after a couple weeks, and decide to let bygones be bygones. It wastes a lot of time just to have nobody turn up in court.
They make a point of exagerrating how hard pressing charges is, to make you think about how bad you want to do this (pretty bad, I would think)
Cops basically are just armed beurocrats. They would rather not press charges, or testify in court, or fill out paper work. They would rather make you feel justice is futile, and send you home depressed, so they can go home a half hour early. Imagine trying to get a guy from the post office go above and beyond for you. It aint gonna happen.
Keep plugging. This actually sounds like a pretty civil rights issue more than an issue of assault. Call the ACLU--they would point you in the right direction I would imagine. They might even help oout. But don't get discouraged.
February 26 2007, 20:21:59 UTC 5 years ago
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February 24 2007, 15:04:37 UTC 5 years ago
Police officers have a rough, and largely underappreciated job in our society, however that doesn't mean they're right. The simple fact is, he is not a lawyer, and doesn't have the requisite knowledge to make that judgement or assumption.
I finished law school in January, and sit for the bar exam this coming Tuesday and Wednesday. I'm no expert on ADA complaints (or CA law), but Torts law is one of the first things we learn, and the waitress comitted a battery under civil law. Additionally, because she comitted the battery while at work, the restaurant is responsible for her actions. You are well within your rights to haul them into court for civil battery.
What that waitress did, and the manager's response to it, is completely unacceptable, as well as morally reprehensible.
February 24 2007, 15:46:48 UTC 5 years ago
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February 24 2007, 16:37:07 UTC 5 years ago
I had to do a lot of legwork and a lot of standing up for my own rights and my own defense.
What was the crime? Identity theft. I had evidence that they didn't want to pursue. I had information that they didn't believe was real, so I looked it up on yahoo maps (basically she changed the address on my bank account...I gave them the address, they thought it was a fake street - ie., they didn't believe the street existed in the city that THEY ARE POLICE OFFICERS IN...I gave them the directions) I wrote to their supervisors on up. I faxed in statutes that defined what the definition of identity theft was and *who* was the actual victim (which in Minnesota had just changed about 1 month before my wallet was stolen)...
So yeah...it's going to be tiring, but you've got lawyers and resources and people and support behind you. You can do this. *hugs*
February 24 2007, 17:18:25 UTC 5 years ago
Anonymous
February 24 2007, 17:55:34 UTC 5 years ago
Mother of Autistic Child
OKay, first of all the police officer is wrong. If I grabbed another person and shook them, I can be arrested for assault. David is child, there are laws in this country that protect children from assault by adults. If your teacher can't grab you, than a waitress cannot grab or shake a child. Personally, I'd love to hop a flight and smack her upside the head - I won't but I'd like to. It looks as if the police officer made his own judgement call, no one can deprive you of your right to safety.Hire an attorney,if anything to protect the rights of other Autistic/special needs people out there because if they get away with this we have erroded your right to liberty. I am absolutely shaking over this and unfortunately this occurs more often than you would realize. I wish you the best of luck and please talk to his brother and make sure he understands that this isn't a behavior issue. That David's brain works differently than his and that David isn't flawed or broken. He simply feels everything all at once making it difficult to communicate with others who really don't have the skills to listen. Don't give up your search for justice, someone will help you to heal and get closure.
February 24 2007, 19:23:33 UTC 5 years ago
Don't believe anything anyone tells you about the law, if they are not a lawyer. And don't necessarily believe any given lawyer, either. The law is largely a matter of interpretation, so different lawyers will have different opinions (and also different personal focuses). Just like with major medical issues, second opinions can be useful if you're feeling disbelieved.
February 27 2007, 12:43:07 UTC 5 years ago
he's got two members of the California bar in his family, I think he'll do okay :-)
February 24 2007, 20:53:24 UTC 5 years ago
Love and hugs.
Love and hugs.You and your family have been through quite the fiasco on this trip. eventually it will be a memory. The one thing the cops aren't taking into account is the emotional trauma David has endured with this incident on some level. If she left bruises where she grabbed him then you would have evidence. Bruises don't always show up immediately. It is my sincerest wish that things go smoothly on the drive home and that you find serenity in being home amongst those who love you. More hugs TFebruary 25 2007, 02:45:35 UTC 5 years ago
February 25 2007, 05:58:04 UTC 5 years ago
This is a crock of crap on the part of the officer. Go try to put a finger tip on someone and give a little push, and it's assault. Verbal abuse is abuse, and he jolly well knew it.
Keep plugging at it, and don't let them brow beat you into backing off.
Best of luck to you and yours.
February 25 2007, 07:04:15 UTC 5 years ago
...and basically got the same response you got. They even wanted me to supply the kid's address. WTF? If I were mugged, would I have to tell them the mugger's address? (But I would have supplied it if I had it, but I didn't.)
All these folks saying "slap 'em with a lawsuit"? Set up a Paypal account and ask them to chip in on a lawyer's consultation fee.
February 26 2007, 04:06:44 UTC 5 years ago
But yeah, I'd happily chip in some (not a lot, we're moving and are thus strapped, but some) to help.
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