                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                              Nos. 00-1029/00-1030
                                  ___________

Jeffrey Gorman,                            *
                                           *
      Appellant/Cross-Appellee,            *
                                           *
      v.                                   *
                                           *
Richard Easley, in his official capacity   *
as Chief of Police of the Kansas City,     *
Missouri Police Department; Dr. Stacey     *
Daniels-Young, in her official             *
capacity as member of the Board of         *
Police Commissioners of Kansas City,       *   Appeal from the United States
Missouri; Jeffrey J. Simon, in his         *   District Court for the Western
official capacity as member of the         *   District of Missouri.
Board of Police Commissioners of           *
Kansas City, Missouri; Joseph J.           *
Mulvihill, in his official capacity as     *
member of the Board of Police              *
Commissioners of Kansas City,              *
Missouri; Dennis C. Eckhold, in his        *
official capacity as member of the         *
Board of Police Commissioners of           *
Kansas City, Missouri; Kay Barnes, in      *
her official capacity as member of the     *
Board of Police Commissioners of           *
Kansas City, Missouri; Neil Becker, in     *
his official capacity as a member of the   *
Kansas City Police Department,             *
                                           *
      Appellees/Cross-Appellants.          *
                                   ___________

                             Submitted: January 8, 2001

                                Filed: June 13, 2001
               Amended as per the judgment of September 6, 2002

                                   ___________

Before BEAM, MORRIS SHEPPARD ARNOLD, Circuit Judges and ALSOP,1
      District Judge.
                         ___________

BEAM, Circuit Judge.

        We have twice before heard appeals in this case. It has now been tried before
a jury, which rendered a verdict against the defendant appellees (collectively "the
Police Board" or "the Board"). Jeffrey Gorman now appeals the district court's post-
trial ruling that punitive damages are not available under the Rehabilitation Act and
the Americans with Disability Act. The Board, for its part, asserts Eleventh
Amendment immunity, and appeals various trial court rulings. We reverse and
remand for further proceedings.

                                         I.

       A January 1988 auto accident left Jeffrey Gorman a paraplegic. He lacks
voluntary control over his lower torso and legs, including his bladder. His inability
to steady himself with his abdominal muscles and legs confines him to a wheelchair
specially designed to keep him upright. He must also wear a catheter attached to a
urine bag around his waist, which must be emptied in order to prevent urine from
backing up into his body and causing an infection or a kidney disorder.

      1
      The Honorable Donald D. Alsop, United States District Judge for the District
of Minnesota, sitting by designation.

                                        -2-
      One Saturday night in May 1992, Gorman and a friend were in the Westport
area of Kansas City, Missouri, where they entered a dance club called "Guitars and
Cadillacs." While in the club, the two became involved in an altercation with a
bouncer, which ultimately resulted in Gorman's forceful ejection from the premises.
Outside, Gorman approached several police officers, hoping they would intercede on
his behalf. In fact, the officers were off-duty and working as private security for
Westport. The officers told Gorman that he had to leave. When he refused, they
placed him under arrest for trespass.

        While waiting for the police van, Gorman told the officers that he had to go to
the restroom to empty his full urine bag, but was told to wait until he got to the
station. When the van arrived it lacked wheelchair locks, which would have
permitted Gorman's transportation in his chair. Rather, it contained only a narrow
bench. Gorman told the officers that he could not possibly ride in it. Given his
inability to stay upright without his wheelchair, Gorman thought he would fall from
the bench. Gorman testified that he told the officers this, that he told them how to lift
him from his chair, and that he needed his molded cushion. Regardless, the officers
placed Gorman on the bench and used a seatbelt to strap him in. The seatbelt did not
properly hold Gorman upright, and it lay across his already full urine bag. Gorman
testified that after he complained about the seatbelt, the officers loosened it, and used
Gorman's own belt to strap him to the mesh behind the bench in order to hold him
upright. The officers were unable to fold the wheelchair, and placed it, unfolded, in
the back of the van.2

      Officer Becker, the van driver and only on-duty officer involved, then drove
the van away from the scene. Gorman testified that his body swayed with every turn


      2
       Almost every element of what happened that night was contested by the
defendants, whose testimony was that Gorman did not instruct the officers how to
transport him, offered no input whatsoever, and was thoroughly drunk and
belligerent. As Gorman prevailed below, we present his version of events.

                                          -3-
and acceleration. Gorman admitted that he released his seatbelt out of concern over
the pressure it was placing on his urine bag. Eventually, the other belt also came
undone and Gorman fell to the van floor. The impact from the fall exploded
Gorman's urine bag, soaking him with his own urine. Noticing that Gorman had
fallen, Officer Becker stopped the van. Unable to lift Gorman by himself, Officer
Becker tied him to a support in the back of the van for the duration of the trip. The
trip also damaged the wheelchair. After arriving at the station, Gorman was booked,
processed and released. He was subsequently convicted of misdemeanor trespass.

       After these events, Gorman began having medical difficulties. He suffered a
bladder infection from urine backing up into his system and began suffering serious
lower back pain. Whereas prior to that night he had been active and pain-free, his
injuries left him unable to work a full day, suffering frequent pain, uncontrollable
spasms in his paralyzed areas, and shoulder problems. Expert testimony suggested
that these injuries and the resulting pain are permanent.

       Gorman sued the Police Board under Title V, section 504 of the Rehabilitation
Act, 29 U.S.C. § 794 ("section 504"), and Title II, section 202 of the Americans with
Disabilities Act ("ADA"), 42 U.S.C. § 12132 ("section 202"). Section 504 prohibits
disability-based discrimination in any public program receiving federal funds.
Section 202 more generally prohibits disability-based discrimination in any public
program or services regardless of the receipt of federal funds. In Gorman v. Bartch,
152 F.3d 907, 912-13 (8th Cir. 1998), we held that despite Gorman's involuntary
participation in the public services provided to detainees, he could pursue his claim
under sections 504 and 202. After a trial, a jury found the defendants liable and
awarded Gorman actual damages of $1,034,817.33 and punitive damages of
$1,200,000.3 This appeal followed.

      3
        The district court submitted Gorman's ADA and Rehabilitation Act claims in
a unified instruction. Gorman can therefore prevail if the evidence supports the jury's
finding under either Act.

                                         -4-
                                          II.

        We begin with the Police Board's claim of sovereign immunity. The Board
interposes as dispositive our holding in Alsbrook v. City of Maumelle, 184 F.3d 999
(8th Cir. 1999), cert. denied sub nom., Alsbrook v. Arkansas, 529 U.S. 1001 (2000),
that the Eleventh Amendment bars suits against the states in federal court under
section 202. Gorman argues the Police Board's failure to similarly address his section
504 claim renders that argument moot. However, the Eleventh Amendment
implicates our jurisdiction, which we are obliged to explore even where the parties
fail to do so. Long v. Bureau of Reclamation, 236 F.3d 910, 916 (8th Cir. 2001). We
are therefore bound to consider whether sovereign immunity prevents Gorman from
bringing a claim against the Police Board under either statute. Alsbrook alone does
not dispose of that issue, for it leaves us with two questions: whether sovereign
immunity similarly bars suits against a state in federal court under section 504; and
whether the Police Board constitutes an arm of the state entitled to sovereign
immunity. Because we resolve the latter question in the negative, we do not reach the
former.

       Sovereign immunity extends to states and "arms" of the state, but not to local
governments. Alden v. Maine, 527 U.S. 706, 756 (1999); Merrill Lynch, Pierce,
Fenner and Smith, Inc. v. Nixon, 210 F.3d 814, 819 (8th Cir.), cert. denied, 121 S. Ct.
383 (2000). Whether an entity constitutes such an "arm" turns on its relationship to
the state under state law.4 Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 430-31




      4
        Gorman argues that the denial of Eleventh Amendment immunity to bi-state
agencies organized under federal law in Hess v. Port Authority Trans-Hudson Corp.,
513 U.S. 30, 38 & n.8 (1994), undercuts the Police Board's claim to immunity as a
creature of state law. This argument could not be more wrong. Organization under
state law, rather than federal law, makes it more likely that an agency is an arm of the
state.

                                          -5-
& n.5 (1997); Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280
(1977).

       In our own "arm of the state" jurisprudence, we have looked generally to three
factors: (1) an agency's powers and characteristics under state law; (2) an agency's
relationship to the state–its autonomy from the state and degree of control over its
own affairs, and (3) whether any award would flow from the state treasury. Treleven
v. University of Minn., 73 F.3d 816, 818 (8th Cir. 1996); accord Hadley v. North Ark.
Cmty. Tech. Coll., 76 F.3d 1437 (8th Cir. 1996) (finding community college to be an
arm of the state based upon the state's ultimate financial liability and the institution's
status under state law); Greenwood v. Ross, 778 F.2d 448 (8th Cir. 1985) (directing
inquiry to degree of local autonomy and control and whether suit will draw payment
from the state treasury). Because a state may only waive its immunity upon an
"unequivocally expressed . . . clear declaration" of an intent to do so, we give
particular heed to a state's treatment of its subdivisions under its own laws. College
Savs. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 676
(1999) (citations omitted). Likewise, we give substantial weight to whether litigation
against a particular entity would draw on the public fisc. Hess v. Port Auth. Trans-
Hudson Corp., 513 U.S. 30, 38 (1994); Regents, 519 U.S. at 430.

       Our resolution of this issue in this case is guided by two holdings. The first is
the Supreme Court's ruling in Auer v. Robbins, 519 U.S. 452, 456 n.1 (1997), that the
St. Louis Board of Police is not "an arm of the state." There, the Court noted that
"[w]hile the Governor appoints four of the board's five members, the city of St. Louis
is responsible for the board's financial liabilities, and the board is not subject to the
State's direction or control in any other respect. It is therefore not an 'arm of the State'
for Eleventh Amendment purposes." Id. (citations omitted).

       The elements relied upon by the Supreme Court in Auer were recently
reaffirmed in Smith v. Missouri, No. W.D. 58882, 2001 WL 471937, at *1 (Mo. Ct.


                                            -6-
App. May 7, 2001), where the Missouri Court of Appeals addressed the question
whether members of the St. Louis Police Board and police officers with the City of
St. Louis were entitled to coverage under the Missouri State Legal Expense Fund.
That fund makes money available for payment of damages levied against any state
agency or officer or employee thereof. Id. at *2. The court undertook a rigorous
analysis of the St. Louis Board of Police in order to determine whether it was the sort
of state agency the creators of the Legal Expense Fund had intended to include under
its coverage. The court noted that the Board is a creature of state, and not local law.
Id. at *4. Moreover, it noted that the Board was intentionally set up to be above local
political influence, and to that end, as the Supreme Court noted, four of the Board's
five members are appointed by the Missouri Governor. Id. at *3-4. However, the
court went on to note that the State's funding mechanism ensures that the St. Louis
Board is funded by the people of St. Louis. Id. at *5-6. Finally, the court examined
the St. Louis Board's functions and purpose, which relate primarily to the city.5 In
particular, the court noted that the state has no day-to-day control over the St. Louis
Board. Id. at *7-*8. In sum, the Missouri Court of Appeals concluded that at best,
the St. Louis Board is a "hybrid agency." Id. at *6-8. As regards the Legal Expense
Fund, the court concluded that "the legislature's intent in creating and maintaining the
Fund is to provide coverage to those agencies and employees whose duties and
actions directly impact the whole state and over which the state retains more direct
control." Id. at 8. The St. Louis Board not being such an entity, the court concluded
the state has no obligation to pay judgments against its members or officers. Id. at
*11.

        The Kansas City Board, at issue in this case, is similarly a creature of Missouri
state law, and is managed in a substantially similar manner. Mo. Ann. Stat. §§ 84.350
- 84.870. Its functions are primarily local. Its structure mirrors that which the

      5
        A geographically-limited scope of responsibility does not necessarily deprive
an entity of Eleventh Amendment immunity. See, e.g., Power v. Summers, 226 F.3d
815, 818 (7th Cir. 2000).

                                          -7-
Supreme Court found in Auer to not be an arm of the state. Moreover, as the
Missouri Court of Appeals confirmed in Smith, and as the Supreme Court stated in
Auer, Board members are not subject to reimbursement from the state treasury for any
money judgments rendered against them. Because for the purposes at issue in this
case relevant state law treats entities such as the Board as not being a state agency,
and because the state is not responsible for judgments against it, we conclude that the
Kansas City Board does not constitute an arm of the state for purposes of Eleventh
Amendment immunity.

                                          III.

      Gorman appeals the district court's post-trial ruling that neither section 504 nor
section 202 permits punitive damages. We have twice permitted monetary remedies
under section 504, Rodgers v. Magnet Cove Pub. Schs., 34 F.3d 642 (8th Cir. 1994);
Miener v. Missouri, 673 F.2d 969 (8th Cir. 1982), but the availability of punitive
damages remains an open question, Gorman v. Bartch, 152 F.3d 907, 910 n.2 (8th
Cir. 1998). This raises a question that only one other circuit has addressed. See
Moreno v. Consolidated Rail Corp., 99 F.3d 782 (6th Cir. 1996) (holding that
punitive damages are not available under section 504). While we are sympathetic to
the Sixth Circuit's conclusion, we find it foreclosed by controlling precedent.

       Sections 504 and 202 both borrow their remedies from Title VI of the 1964
Civil Rights Act. 29 U.S.C. § 794a(a)(2); 42 U.S.C. § 12133. The pertinent question,
therefore, is what remedies Title VI permits. Unfortunately, Title VI expressly
provides neither a private cause of action nor remedies for such an action. See 42
U.S.C. §§ 2000d et seq. In Cannon v. University of Chicago, 441 U.S. 677, 694-703
(1979), however, the Supreme Court held that Title IX of the Education Amendments
of 1972 created an implied cause of action in its protected class. In doing so, the
Supreme Court relied heavily on the fact that Title IX had been modeled on Title VI.
The Court assumed Congress knew that Title VI had been interpreted by some lower


                                          -8-
courts to contain an implied cause of action. Id. at 696-97. Therefore, the Court
concluded, Congress must have intended Title IX to similarly include an implied
cause of action. This reading has since been turned around to conclude that Title VI
must also contain an implied cause of action. Lane v. Pena, 518 U.S. 187, 191
(1996); Guardians Ass'n v. Civil Serv. Comm'n, 463 U.S. 582, 597, 612, 615-16, 635-
36 (1983) (seven members of the court recognizing implied action in Title VI in
fragmented opinions). For our part, we have twice permitted damages under section
504, thereby corroborating, albeit without discussion, the notion that Title VI contains
an implied cause of action. Rodgers, 34 F.3d 642; Miener, 673 F.2d 969.

       We turn next to Franklin v. Gwinnett County Public Schools, 503 U.S. 60
(1992), which considered the remedies available under the cause of action implied in
Title IX. There, the Court affirmed the rule, articulated earlier in Bell v. Hood, 327
U.S. 678, 684 (1946), that "absent clear direction to the contrary by Congress, the
federal courts have the power to award any appropriate relief in a cognizable cause
of action brought pursuant to a federal statute." Franklin, 503 U.S. at 70-71. The
Supreme Court has long made clear that punitive damages are an integral part of the
common law tradition and the judicial arsenal. See Pacific Mut. Life Ins. Co. v.
Haslip, 499 U.S. 1, 15-18 (1991) (reviewing history of punitive damages from
Blackstone through the English and American courts); Day v. Woodworth, 54 U.S.
362, 370 (1852) (noting well established common law principle that juries may exact
"exemplary, punitive or vindictive" damages). Punitive damages, therefore, fall
within the panoply of remedies usually available to American courts. Given an
implied cause of action in Title VI, Franklin compels the conclusion that absent
express congressional statement to the contrary, Title VI also affords all appropriate
remedies, including punitive damages.6


      6
        The availability of additional remedies is not precluded by Congress' express
provision in Title VI of administrative remedies. It is an elemental canon of statutory
construction that where a statute expressly provides a particular remedy or remedies,
a court must be chary of reading others into it. Transamerica Mortgage Advisors, Inc.

                                          -9-
       The Court in Franklin next took up "whether Congress intended to limit
application of this general principle in the enforcement of Title IX." 503 U.S. at 71.
Because the cause of action in question was implied rather than expressed, the Court
put aside what it considered a pointless discussion of legislative history.7 Id. Rather,
it looked to the judicial backdrop against which Congress had legislated. The Court
observed that "[i]n the years before and after Congress enacted this statute, the Court
followed a common-law tradition and regarded the denial of a remedy as the
exception rather than the rule." Id. (quotation and brackets omitted). Once again
indulging the assumption that Congress legislates in light of prevailing precedent, the
Court found Congress to have intended the availability of all remedies. The Court
then reviewed Congress' subsequent treatment of Title IX. In both 1986 and 1987,
Congress amended Title IX without disturbing either the Court's holding in Cannon,
that Title IX afforded a private remedy, or limiting the availability of remedies
thereunder. In fact, the language of the 1986 amendment impliedly recognized the
existence of a private cause of action. Id. at 72-73. The Court concluded, "[o]ur
reading of the two amendments to Title IX enacted after Cannon leads us to conclude
that Congress did not intend to limit the remedies available in a suit brought under
Title IX." Id. at 72.

      Application of Franklin's methodology to this case must begin with the
enactment of Title VI in 1964. Cannon and our own holdings in Rodgers and Miener
compel the conclusion that in 1964 Congress created an implied cause of action in


(TAMA) v. Lewis, 444 U.S. 11, 19 (1979). However, Title IX uses the same textual
structure and remedies, yet in Franklin the Court found the implied private cause of
action to sustain an award of monetary damages. This follows only if the
administrative and private causes of action are separate and distinct such that a
limitation on one does not operate against the other.
      7
       That the cause of action was implied did not preclude the availability of
remedies as the latter is analytically distinct from the question of whether a cause of
action exists at all. Franklin, 503 U.S. at 65-66.

                                         -10-
Title VI.8 At that time, the rule in Bell, relied on in Franklin, that a cause of action
affords all appropriate remedies unless expressly limited, was alive and well. As in
Franklin, we must therefore conclude that Congress assumed the availability of all
remedies, including punitive damages, under Title VI. Congress has not since
amended Title VI to limit any cause of action implied thereunder, nor the remedies
that might accompany such a cause of action. Congress extended the remedies
available under Title VI to section 504 in 1978, 29 U.S.C. § 794a, and then to section
202 in 1990, 42 U.S.C. § 12133. Congress has never expressly limited the remedies
available under those sections either. Therefore, logic dictates, the full panoply of
remedies available under Title VI, including punitive damages, must be available
under sections 504 and 202.

       The Sixth Circuit reached the contrary conclusion in Moreno, 99 F.3d 782. It
relied largely on two concerns. First, it noted that since the enactment of these
various sections, lower federal courts have been in near unanimity that they do not
support punitive awards. Id. at 789-91. Second, given this fact, it pointed to the Civil
Rights Act of 1991 as proof that Congress itself did not intend the availability of
punitive damages. Id. at 790. It additionally pointed to this same evidence to support
the proposition that punitive damages would not be "appropriate" in that case. Id. at
791-92.

       We are sympathetic to the Sixth Circuit's concerns, but find its methodology
and conclusions foreclosed by Cannon and Franklin. The Sixth Circuit first pointed
to the 1986, 1987 and 1991 amendments to the Rehabilitation Act and the ADA,

      8
        When a court "implies" a cause of action it does not "create" it, but rather
"discovers" it in an act of statutory construction. See, e.g., Franklin, 503 U.S. 71-72;
J. I. Case Co. v. Borak, 377 U.S. 426, 430-31 (1964). The upshot of this
understanding is that the cause of action has always existed, despite having lain
dormant. This logic holds for any judicial statutory interpretation–even those which
change pre-existing interpretations. Regardless of the merits of this understanding,
it flows from our judicial interpretive, as opposed to legislative, function.

                                         -11-
wherein Congress amended these acts but did not disturb decisions ruling punitive
damages unavailable under sections 504 and 202. Noting the assumption, made in
Franklin and Cannon, that Congress legislates in light of then-prevailing judicial
interpretations, the Sixth Circuit concluded "[t]he only inference of congressional
intent that can be drawn from [the amendments] is that Congress intended § 504
remedies to remain in statu quo–i.e., no punitive damages." Id. at 791.

       This reasoning, however, misapplies the Supreme Court's methodology in
Franklin and also undermines basic principles of statutory construction. Franklin first
requires the determination of what remedies a statutory cause of action afforded at its
enactment. It then permits reference to subsequent amendments only to see whether
Congress later altered that initial understanding. This comports with the general rule
that a statute adopts its meaning at the time of its enactment, and not at some later
point by negative inference. In this case, because sections 504 and 202 draw their
remedies from Title VI, the inquiry must start with the enactment of Title VI in 1964.
As discussed above, Cannon and Franklin compel the conclusion that punitive
damages were available as a remedy to a private cause of action under Title VI in
1964, and it is that assumption which provides the baseline against which subsequent
amendments must be gauged. Therefore, the 1986, 1987 and 1991 amendments must
be read as having not affected the status quo–that punitive damages are available
under sections 504 and 202. To draw a contrary conclusion from those amendments
would be to hold that Congress' understanding of section 504 in 1986 and 1987, and
its understanding of sections 504 and 202 in 1991 trumped Congress' intent regarding
those statutes when they were originally enacted, and in this way retroactively
amended them. See Brown & Williamson Tobacco Corp. v. FDA., 153 F.3d 155, 167
(4th Cir. 1998) (noting that a statute's intent at the time of its enactment governs over
subsequent congressional understandings) (citing MCI Telecomm. Corp. v. AT&T,
512 U.S. 218, 222 (1994)), aff'd, 529 U.S. 120 (2000).




                                          -12-
       Despite our conclusion, the Sixth Circuit's concerns are hardly misplaced.
When Congress enacted the Rehabilitation Act and at the time of the subsequent
amendments, courts generally agreed Title VI and section 504 did not afford
monetary damages, and were in near unanimity that they did not permit punitive
damages.9 However, the governing statutes and precedents in this case operate as a
one-way ratchet: once a cause of action is discovered, it automatically entitles a
plaintiff to all appropriate remedies; and that finding then extends those remedies to
all other interrelated statutes. This now precludes consideration of what Congress
intended through consideration of these earlier court decisions.

     This tension becomes particularly clear in the context of the 1991 Civil Rights
Act. The product of extensive compromise between President George Herbert

      9
        See, e.g., Americans Disabled for Accessible Pub. Transp. v. Skywest Airlines,
Inc., 762 F. Supp. 320 (D. Utah 1991) (finding no punitive or compensatory damage
remedy under section 504); Doe v. Southeastern Univ., 732 F. Supp. 7 (D.D.C. 1990)
(limiting section 504 to equitable remedies); Robinson v. University of Pa., No. 87-
2476, 1988 WL 120738 (E.D. Pa. Nov. 8, 1988) (holding neither punitive nor
compensatory damages available under Title VI); Singh v. Superintending Sch.
Comm., 601 F. Supp. 865 (D. Maine 1985) (permitting compensatory remedy but not
punitive remedy under Title VI); Moreno v. Texas S. Univ., 573 F. Supp. 73 (S.D.
Tex. 1983) (finding no private cause of action for compensatory or punitive damages
under Title VI); Rendon v. Utah State Dep't of Employment Sec. Job Serv., 454 F.
Supp. 534 (D. Utah 1978) (same). But see Neighborhood Action Coalition v. City
of Canton, 882 F.2d 1012 (6th Cir. 1989) (permitting Title VI action for
compensatory and punitive damages to continue without addressing their
availability); Hutchings v. Erie City & County Library Bd. of Directors, 516 F. Supp.
1265 (W.D. Pa. 1981) (permitting damages remedies under section 504 in suit where
plaintiff sought punitive damages); Patton v. Dumpson, 498 F. Supp. 933 (S.D.N.Y.
1980) (finding section 504 to afford compensatory damages); Gilliam v. City of
Omaha, 388 F. Supp. 842 (D. Neb. 1975) (recognizing action for monetary damages
under Title VI), aff'd on other grounds, 524 F.3d 1013 (8th Cir. 1975). Since
Franklin, courts have begun to re-evaluate these holdings. See, e.g., Burns-Vidlak
v. Chandler, 980 F. Supp. 1144 (D. Haw. 1997) (finding punitive and compensatory
damages available under sections 504 and 202).

                                        -13-
Walker Bush and Congress, that Act amended the ADA and the Rehabilitation Act
to permit limited punitive damages. Specifically, it permitted employees suing under
section 107(a) of the ADA and section 501 of the Rehabilitation Act to recover
compensatory and punitive damages subject to statutory caps ranging from $50,000
to $300,000. 42 U.S.C. § 1981a. It did not, however, affect sections 504 or 202. The
text and history of the 1991 Act suggest Congress intended to expand, and not to
contract, the available remedies. Congress provided that a "complaining party may
recover compensatory and punitive damages," using broadening, and not limiting
language. 42 U.S.C. § 1981a(a)(2). Legislative history corroborates this
interpretation. See, e.g., H.R. Rep. No. 102-40(I & II) (1991), reprinted in 1991
U.S.C.C.A.N. 549, 673 (discussing punitive damage provisions as an expansion of
remedies). The following year, those who had pushed for the inclusion of punitive
damages in the 1991 Act introduced a bill to remove its damages caps. The proposed
bill would have deleted 42 U.S.C. § 1981a(b)(3), which contains the caps, but would
not have removed the language authorizing punitive and compensatory damages,
suggesting that even then, they considered the new language necessary to create a
punitive damage remedy under the acts. See Equal Remedies Act, S. Rep. No. 102-
286 (1992), 1992 WL 113471 (Leg. Hist.); see also Kolstad v. American Dental
Ass'n, 527 U.S. 526, 534 (1999) ("With the passage of the 1991 Act, Congress
provided for additional remedies, including punitive damages, for certain classes of
. . . violations.").

       Applying the Supreme Court's reasoning in Franklin turns this understanding
on its head. Cannon, Rodgers and Miener postulate the creation of a private cause of
action in Title VI in 1964. Under Franklin we are to assume that action to have
provided all remedies. Absent any subsequent contrary instruction, we are to assume
those remedies to remain available under sections 504 and 202 today. We therefore
rule, albeit not with great satisfaction, that these sections permit an award of punitive
damages. Perhaps our parting ways with our sister circuit will prompt the Supreme
Court or Congress to inject additional clarity into this area.


                                          -14-
       Our analysis thus far does not entirely conclude this matter, as an award of
damages must be "appropriate" in a specific case.10 District courts must undertake an
independent review of the evidence to determine whether it supports punitive
damages. Grabinski v. Blue Springs Ford Sales, Inc., 203 F.3d 1024, 1025 (8th Cir.),
cert. denied, 121 S. Ct. 70 (2000); accord Browning-Ferris Indus. of Vt., Inc. v. Kelco
Disposal Inc., 492 U.S. 257 (1989). The defendant's conduct must be shown to have
been "motivated by evil motive or intent, or . . . reckless or callous indifference to
the federally protected rights of others." Smith v. Wade, 461 U.S. 30, 56 (1983); see
also Kolstad, 527 U.S. 526 (discussing punitive damages scheme under 42 U.S.C. §
1981a). Punitive damages may also not be excessive. Watkins v. Lundell, 169 F.3d
540, 545 (8th Cir.), cert. denied, 528 U.S. 928 (1999). We have a subsequent
obligation to review the district court's finding. At oral argument, Gorman's counsel
admitted this to be the case and conceded that the district court did not do so, as it
found punitive damages precluded as a matter of law. The facts in this case were
hotly contested. We therefore remand for consideration of this point.

                                         IV.

       The Police Board next appeals whether Gorman is a qualified individual with
a disability under the ADA. The Police Board argues that while at the time of trial,
our law clearly established that disability should be gauged without reference to
corrective devices, subsequent Supreme Court decisions have required an
individualized assessment of disability including consideration of available corrective

      10
         The Moreno court also argued that given the legislative and judicial
backdrop, punitive damages were not "appropriate" as required by Franklin. Moreno,
99 F.3d at 791-92. We do not think the word "appropriate" to have been writ so
large, and do not think the Court intended to create an escape hatch for all foregoing
judicial interpretations. In his concurring opinion, Justice Scalia opined that given
an action's implied nature, implied limitations on remedies ought also be considered.
Franklin, 503 U.S. at 77-78 (Scalia, J. concurring in the judgment). Justice Scalia's
comments underscore the breadth of the Court's holding.

                                         -15-
devices. See, e.g., Murphy v. UPS, Inc., 527 U.S. 516 (1999); Sutton v. United
Airlines, Inc., 527 U.S. 471 (1999). It seeks a remand to litigate this issue.

        This argument is well off the mark. In Sutton, the Court concluded that a
person with severe myopia, whose vision could be corrected with eyeglasses to the
point that the disability did not severely impede a major life activity was not a
qualified individual. 527 U.S. at 481-83. Gorman's wheelchair permits him some
mobility, but hardly replaces his legs. Moreover, the events challenged in this lawsuit
center largely on his removal from the wheelchair and placement in the back of a
police van, where he had no corrective device. No corrective device–no issue. We
see little need to further pursue this question.

                                          V.

      The Police Board next raises two challenges to the jury instructions. The
Board asserts that the jury was not instructed as to each element of an action under
sections 504 and 202, and also objects to an instruction that the Board had an
obligation to provide "safe" transportation. A jury instruction must, when taken as
a whole and viewed in light of the evidence and applicable law, fairly and adequately
submit the issues in the case to the jury. Horstmyer v. Black & Decker, (U.S.), Inc.,
151 F.3d 765, 771 (8th Cir. 1998). Where a party fails to object to an instruction
before the district court, we will review only for plain error. Id.

      In instruction 16, the district court instructed the jury that liability would lie
under the Rehabilitation Act and the ADA upon proof of all the following elements:

             First, that the defendants failed to provide plaintiff appropriate
      transportation that reasonably accommodated his disability after he was
      arrested, and




                                         -16-
              Second, that as a direct result of the defendants' failure, plaintiff
       sustained damages.

       The district court then instructed the jury in its instruction number 17 that "for
purposes of Instruction No. 16, making a 'reasonable accommodation' for the plaintiff
means making modifications to the defendants' practices for transporting the plaintiff
after he was arrested so that he would be transported in a manner that was safe and
appropriate consistent with his disability."

       The Board failed to object at trial to the form of instruction 16, as given at trial.
In fact, the Board agreed to its text and stated an intention to not object. We will
therefore reverse only for plain error. We have previously held that in order to
prevail under section 202, a plaintiff must prove that "1) he is a qualified individual
with a disability; 2) he was . . . denied the benefits of a public entity's services . . . ;
and 3) that such . . . denial. . . was by reason of his disability." Layton v. Elder, 143
F.3d 469, 472 (8th Cir. 1998). Such language, however, is not sacrosanct. Rather,
an instruction must fairly and accurately submit the issue in light of the evidence and
the law. Horstmyer, 151 F.3d at 771. In this case, the court's instructions resulted
from lengthy negotiations between the court and the parties during which the parties
agreed to drop certain elements from the instructions. Moreover, the language used
fairly captures the elements of the actions. Section 202 requires reasonable
transportation modifications if necessary. The court's instruction that damages flow
from a failure to reasonably accommodate a disability implicitly requires a finding of
denial and disability. The instruction similarly covers the essential elements of
section 504. In light of the facts of this case and the language used, we sustain the
instruction given.11



       11
        In the future, the district court should separate out instructions under different
acts and more carefully parse elements, for clarity on appeal.


                                           -17-
       The Board also takes issue with the district court's use of the word "safe" in
instruction 17 as an incorrect statement of the law, and expresses the fear that it
required the Board to insure the safety of future detainees. The district court quoted
the word "safe" from our prior opinion in this case. See Gorman, 152 F.3d at 913.
We agree with the Police Board that in Gorman we did not impose an obligation of
providing "safe" transportation. We also, however, do not think that the district
court's instruction warrants the interpretation given it by the Police Board. The
instruction required transportation safe and appropriate consistent with Gorman's
disability. This seems the essence of a reasonable accommodation–the police cannot
reasonably accommodate a disabled detainee by placing him in a position where, by
virtue of his disability, he is left helpless. The district court did not require the Police
Board to insure Gorman against other harms, such as a crash on the way to the station
or a self-imposed injury. On this reading, we approve the instruction.

                                            VI.

        The Board also challenges the district court's denial of its motion for a new
trial, on the basis that the verdict was against the weight of the evidence, along with
various evidentiary rulings. After reviewing the record we affirm the district court
on these points.

      We remand to the district court for further proceedings consistent with this
opinion.

       A true copy.

              Attest:

                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.



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