I do not disagree with anything Judge Sung says in this opinion. Yes, the plaintiff here -- a disabled person -- deliberately visited the 7-11 store at issue with the express hope of finding obstacles that he could then file a lawsuit about. He'd be hard pressed to argue otherwise, since he's previously filed 70 other ADA lawsuits, and that's fairly clearly why he chose to visit this particular store. (Plus, he's currently deceased, so he'd be hard pressed to personally argue anything, but that's an entirely different mater.)
But that doesn't negate his lawsuit. The relevant statute doesn't say anything about the plaintiff's intent. Here, the plaintiff was, in fact, injured as a result of the barriers he faced. It made them more difficult to get around. That's all that's required. So he gets his statutory minimum $4,000 in damages.
(His lawyer, of course, gets a ton more, which is really what the economics of the lawsuit is all about. But that's a sub rosa issue doctrinally irrelevant to the current appeal.)
Again, everything that Judge Sung says is correct. Zero problem with it on my end.
Let me just nonetheless say two things.
First, to me, there's a serious tension between this doctrinal reality and the typical standing requirements. As a practical matter, the reason that intent doesn't matter under the relevant statutes is because we want disabled plaintiffs to root out the underlying evil (the lack of accommodations) even if discovering such obstacles and filing a lawsuit is what motivated the plaintiff to go out there in the first place. That's fine, of course. We do indeed want businesses to be accessible, which is why (1) we have the law, and (2) allow individuals to enforce by filing suit. The fact that this individual plaintiff encountered an obstacle solely because he went out looking for it doesn't matter. We want the law to be enforced, and if fee-motivated plaintiffs is one way in which that law gets enforced, so be it. We're fine with that.
But if that's the case -- and it undoubtedly is -- then why require an underlying injury at all? Why shouldn't a non-disabled person be able to sue as well? After all, they're a person, and they're equally able to spot, and file lawsuits, about non-accessible spaces. Why do we encourage only disabled people -- the ones with the least ability (oftentimes) to travel -- to motor around a city looking for these problems? Why not hold that everyone has standing to sue? (As we indeed do with, say, "testers" in housing discrimination suits.)
Second, I wonder if the better argument for the defendant in cases like this is a fair piece different from the one made by appellants here. Defendants' argument centers on claims that the plaintiff wasn't a "bona fide" customer and things like that. Arguments that the Ninth Circuit correctly rejects.
Perhaps a better argument would be to assert that plaintiffs like this one aren't actually "injured" by the underlying barrier. After all, they went looking for those barriers, and were hoping to find them. It's hard to argue that one suffers harm from something that one is actively seeking out and hoping to encounter. Indeed, the real injury would be if the plaintiff didn't discover a barrier. In such cases, their time and effort would be for naught. If you asked them: "How'd it go on your trip outside today?", if they didn't encounter an ADA violation, they'd honestly say "It sucked; a waste of time and money." Whereas if, as here, they did, they'd say "Fantastic: I found exactly what I hoped to fine, and that makes me happy." It's at least facially difficult to argue that one in fact suffers harm when one obtains precisely the thing that one desires. A kiss on the cheek is a harmful assault if that's not what you're looking for, whereas it's not an injury at all if that's how you hoped the evening would end.
So an interesting case, and one that turns out right. But that nonetheless raises interesting questions, I think.
