Municipal Law

The ADA and Ad Hoc Police Encounters in the First Circuit

July 2020

By Weston R. Sager, Esq., Weare, NH, and Charles P. Bauer, Esq., Gallagher, Callahan & Gartrell, P.C.

Municipalities could be liable under Title II of the American Disability Act ("ADA") for failure to provide reasonable accommodations during ad hoc police encounters such as arrests, use of force, stop and frisks, motor vehicle stops, and similar ad hoc situations. In light of this recent legal development in the federal courts, municipalities and their police departments are encouraged to take affirmative steps to more fully understand and comply with the ADA and limit liability exposure to ADA claims.

Title II of the ADA addresses discrimination by government entities, and provides 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. To establish liability under the ADA, a plaintiff must plead and prove: "(1) that he is a qualified individual with a disability; (2) that he was either excluded from participation in or denied the benefits of some public entity's services, programs, or activities or was otherwise discriminated against; and (3) such exclusion, denial of benefits, or discrimination was by reason of the plaintiff's disability." Buchanan v. Maine, 469 F.3d 158, 170-71 (1st Cir. 2006).

Although the U.S. Supreme Court has not yet ruled that the ADA applies to ad hoc police encounters, lower federal courts, working under the assumption that the ADA applies to police arrests, use of force, stop and frisks, motor vehicle stops, and similar ad hoc situations, have developed two theories regarding disability discrimination claims:

  • The first theory-known as the "effects" theory-is where police misperceive the effects of an individual's disability as criminal activity and make an arrest based on their misperception. Gray v. Cummings, 917 F.3d 1, 15 (1st Cir. 2019); see also, e.g., Gohier v. Enright, 186 F.3d 1216, 1220 (10th Cir. 1999) (deaf individual mistaken for someone resisting arrest); Jackson v. Town of Sanford, No. 94-12-P-H, 1994 U.S. Dist. LEXIS 15367, at *23-*24 (D. Me. Sep. 23, 1994) (stroke victim mistaken for someone who was driving under the influence).
  • The second scenario-known as the "accommodation" theory-is where police officers "properly investigated and arrested a person with a disability for a crime unrelated to that disability, but they failed to reasonably accommodate the person's disability in the course of investigation or arrest, causing the person to suffer greater injury or indignity in that process than other arrestees." Gray, 917 F.3d at 15 (brackets omitted); Gohier, 186 F.3d at 1220-21 (citing Gorman v. Bartch, 152 F.3d 907, 912-13 (8th Cir. 1998)).
    The applicability of the ADA to ad hoc police encounters has been applied differently

among the federal circuit courts of appeal-particularly when exigent circumstances arise. The Fifth Circuit Court of Appeals, for example, generally exempts officers from needing to make reasonable accommodations under the ADA in the presence of exigent circumstances. See Hainze v. Richards, 207 F.3d 795 (5th Cir. 2000) ("While the purpose of the ADA is to prevent the discrimination of disabled individuals, we do not think Congress intended that the fulfillment of that objective be attained at the expense of the safety of the general public."). Other federal circuit courts, such as the Ninth Circuit Court of Appeals, view exigent circumstances as one factor in analyzing the reasonableness of the police officers' actions. See Sheehan v. City & Cty. of San Francisco, 743 F.3d 1211 (9th Cir. 2014), rev'd in part and cert. dismissed in part by 135 S. Ct. 1765 (2015).

Although the First Circuit Court of Appeals has yet to render a formal decision regarding if and how the ADA applies to ad hoc police encounters, the closest this court has come to ruling on this issue is the recent case Gray v. Cummings, 917 F.3d 1 (1st Cir. 2019). In that case, a patient suffering from bipolar disorder was admitted to a hospital after experiencing a manic episode. After about six hours, the patient managed to escape the hospital on foot. Hospital staff called the police department asking that the patient be "picked up and brought back." A municipal police officer responded to the call in his cruiser. He found the patient walking barefoot near the hospital. The officer exited the cruiser and followed the patient on foot from about 100 feet away. Within about 30 seconds, the police officer got to within about 5 feet of the patient, who was unarmed. The patient then turned around in a threatening manner towards the police officer. The patient started to walk towards the officer, at which point the officer took her to the ground by physical force. The police officer ordered the patient to put her hands behind her back, but she did not comply. When the patient continued to resist, the police officer used his Taser on the patient. The officer then handcuffed the patient and called an ambulance to take her back to the hospital.

The patient later sued the police officer and the town that employed the officer alleging liability under 42 U.S.C. $ 1983, Title II of the ADA, and various state laws. A magistrate judge granted, and a district court judge affirmed, summary judgment on all counts.

On appeal, the First Circuit Court of Appeals affirmed the district court in a unanimous decision. The First Circuit analyzed the patient's ADA claim against the town by assuming, but without deciding, the following law in favor of the patient:

  • Title II of the ADA applies to ad hoc police encounters.
  • Municipalities could be held vicariously liable under Title II for the actions of its police officers.
  • Deliberate indifference, rather than intentional discrimination, is the appropriate standard for liability under the ADA.
  • Exigent circumstances do not bar an ADA claim but "may shed light on the reasonableness of an officer's actions."

Id. at 16-17.

Even when taking the law in the most favorable light to the patient, the First Circuit affirmed the lower court's grant of summary judgment for the town on the ADA claim. The First Circuit held that the patient did not provide sufficient factual support that the police officer and the town displayed "deliberate indifference to the risk of an ADA violation." Id. at 18. This was because the patient did not demonstrate that the police officer or the town "knew that there was a reasonable accommodation [under the ADA], which [they were] required to provide" at the time of the incident. Id.; see also Haberle v. Troxell, 885 F.3d 171, 181 (3d Cir. 2018) ("To prove intentional discrimination, an ADA claimant must prove at least deliberate indifference, and to plead deliberate indifference, a claimant must allege (1) knowledge that a federally protected right is substantially likely to be violated and (2) failure to act despite that knowledge." (citations, ellipsis, and internal quotation marks omitted)).

Subsequent to Gray, the U.S. District Court for the District of New Hampshire in Lambert v. Town of Merrimack considered whether liability under the ADA arose during an attempted arrest and use of force incident. 2019 DNH 171. In that case, three police officers responded to a domestic disturbance incident in which a son was threatening to seriously injure or kill his father with a knife. Each of the officers knew of the son, who had been arrested several times before.

When the first of the three officers arrived at the home, the son was standing outside his father's home. The officer saw that the son was holding a knife and shouted "drop the knife" several times. The son did not obey. Shortly thereafter, the other two police officers arrived at the scene. Because they were responding from a police training session, these two officers carried only their firearms and did not have "less-lethal" Taser weaponry on their persons.

The three officers positioned themselves in a semi-circle around the son. Seconds later, the son ran at the officers in a zig-zag fashion, holding the knife at his side and pointed forward. The three officers commanded the son to drop the knife. With the son rapidly closing in on one of the officers, the other two officers from the training session fired their pistols at the son, killing him. Fewer than thirty seconds elapsed between the time the officers exited their vehicles and the time shots were fired.

The administrator of the son's estate sued the town claiming that the town did not comply with Title II of the ADA by not providing a reasonable accommodation to the son-a mentally ill individual-during the ad hoc police encounter. (The plaintiff did not sue the officers under the ADA because the ADA does not impose liability on individuals.) The plaintiff argued that the town violated the ADA because the town's police officers were aware of the son's mental disability, because the responding officers did not sufficiently attempt to deescalate the situation before using lethal force, and because two of the officers arrived at the scene equipped only with lethal force options.

The town moved for summary judgment, arguing that the plaintiff did not establish that the town was deliberately indifferent to the son's disability because (i) the town did not have "particularized knowledge" about the son's mental disability, (ii) the responding officers were not required to make reasonable accommodations in light of the exigent circumstances created by the son, and (iii) it would have been unreasonable for two of the town police officers to retrieve their Tasers before responding to the scene while the son's father was facing an imminent threat of deadly harm from his son.

Assuming the reasoning of Gray applied to plaintiff's ADA claim, the U.S. District Court for the District of New Hampshire granted summary judgment in favor of the town. First, the court found that the town possessed, at most, a "general awareness" of the son's mental disability, which was insufficient for the responding police officers to know what specific accommodation might be reasonable for the son under the circumstances. The court also found that there was no dispute of material fact that exigent circumstances arose when the son threatened his father with a knife and subsequently charged at the responding police officers with knife drawn. Finally, the court did not find it unreasonable that two of the officers responded only with deadly force options because (i) the third responding police officer was equipped with a Taser (which he did not have an opportunity to use), and (ii) the two officers did not have time to retrieve less-lethal force options while the son was threatening to seriously injure or kill his father with a knife.

In light of Lambert, municipalities should assume that First Circuit courts will abide by the forgiving standard outlined in Gray if and until the First Circuit Court of Appeals or the U.S. Supreme Court rules otherwise. Even though the First Circuit has not provided definitive guidance on the applicability of the ADA to ad hoc police encounters, municipalities and their police departments are encouraged to review and update their practices, policies, and trainings to more fully comply with the ADA. Otherwise, municipalities could face legal exposure arising from this area of developing federal law.

Weston R. Sager is graduate of Northwestern University School of Law and Dartmouth College. He has practiced law in New York, NY and currently practices in Concord, NH.

Charles P. Bauer is a shareholder at Gallagher, Callahan & Gartrell, P.C. in Concord, NH where he specializes in municipal defense, insurance defense, civil rights litigation, and alternative dispute resolution.

The views expressed in this article are those of the authors in their individual capacities only and do not reflect the views of their employers.

* Charles Bauer is licensed to practice in New Hampshire.

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