Gray v. Cummings , 917 F.3d 1 ( 2019 )

United States Court of Appeals
For the First Circuit
No. 18-1303
JUDITH GRAY,
Plaintiff, Appellant,
v.
THOMAS A. CUMMINGS;
TOWN OF ATHOL, MASSACHUSETTS,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Timothy S. Hillman, U.S. District Judge]
[Hon. David H. Hennessy, U.S. Magistrate Judge]
Before
Kayatta, Circuit Judge,
Souter, Associate Justice,
and Selya, Circuit Judge.
Matthew R. Segal, with whom Ruth A. Bourquin, American Civil
Liberties Union Foundation of Massachusetts, Inc., Claudia Center,
American Civil Liberties Union Foundation, Richard L. Neumeier,
and Morrison Mahoney LLP, were on brief, for appellant.
David W. Ogden, Daniel S. Volchok, Alexandra Stewart, Wilmer
Cutler Pickering Hale and Dorr LLP, Aaron M. Panner, Kellogg,
Hansen, Todd, Figel & Frederick, P.L.L.C., Nathalie F. P. Gilfoyle,
Deanne M. Ottaviano, and Jennifer Mathis on brief for American
Psychiatric Association, American Psychological Association, and

Hon. David H. Souter, Associate Justice (Ret.) of the Supreme
Court of the United States, sitting by designation.
Judge David L. Bazelon Center for Mental Health Law, amici curiae
(in support of neither party).
Thomas R. Donohue, with whom Deidre Brennan Regan, Leonard H.
Kesten, and Brody, Hardoon, Perkins & Kesten, LLP, were on brief,
for appellees.
Eric R. Atstupenas, Christopher J. Petrini, Peter L. Mello,
and Petrini & Associates, P.C. on brief for International Municipal
Lawyers Association and Massachusetts Chiefs of Police
Association, Inc., amici curiae (in support of affirmance).
Pamela B. Petersen on brief for Axon Enterprise, Inc., amicus
curiae (in support of affirmance).
February 22, 2019
SELYA, Circuit Judge. This appeal arises at the
intersection of constitutional law and disability-rights law. It
touches upon a plethora of important issues. Some of these issues
relate to the appropriateness of a police officer's use of a Taser
in attempting to regain custody of a mentally ill person who, after
being involuntarily committed, absconded from a hospital. Others
relate to the applicability vel non of Title II of the Americans
with Disabilities Act (ADA), 42 U.S.C. §§ 12131-65, to ad hoc
police encounters. In the end, we decide the case on the narrowest
available grounds and affirm the entry of summary judgment for the
defendants.
I. BACKGROUND
This case has its genesis in an on-the-street encounter
between plaintiff-appellant Judith Gray (who suffers from bipolar
disorder) and Thomas Cummings, a police officer in Athol,
Massachusetts (the Town). Because the case was decided below at
the summary judgment stage, we must take the facts in the light
most hospitable to the non-moving party (here, Gray), consistent
with record support. See Houlton Citizens' Coal. v. Town of
Houlton, 175 F.3d 178, 184 (1st Cir. 1999). We caution, though,
that we are not obliged to credit "conclusory allegations,
improbable inferences, acrimonious invective, or rank
speculation." Ahern v. Shinseki, 629 F.3d 49, 54 (1st Cir. 2010).
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Here, the raw facts are largely undisputed. In her
deposition, Gray testified that she "really [didn't] know what
happened" during the incident because she "was in a full-blown
manic phase." She added that she "wouldn't know Officer Cummings
if [she] fell over him" and that she had reviewed the police report
prepared by Cummings and did not know whether or not it accurately
described the events that had transpired. Nor did she present any
other evidence contradicting Cummings's version of the relevant
events. Although we recognize that juries have some leeway to
"reject uncontradicted, unimpeached testimony when it is
improbable, inherently contradictory, riddled with omissions, or
delivered in a manner giving rise to doubts," Quintana-Ruiz v.
Hyundai Motor Corp., 303 F.3d 62, 76 (1st Cir. 2002), that
principle has no application here. Accordingly, we elicit many of
the facts from Cummings's account. See Harriman v. Hancock County,
627 F.3d 22, 34 (1st Cir. 2010) (finding no material factual
dispute when plaintiff "had no memory of being beaten by anyone at
anytime relevant to this case"); see also Wertish v. Krueger, 433
F.3d 1062, 1065 (8th Cir. 2006) (deeming police officer's version
of events "unrefuted" when plaintiff testified that he had very
little memory of relevant events). Even so, we draw all reasonable
inferences from those facts in Gray's favor.
On May 2, 2013, Gray — who was then fifty-seven years
old — experienced a manic episode and called 911. Athol police
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officers arrived at Gray's home and transported her to Athol
Memorial Hospital. She was admitted to the hospital at around
4:00 a.m., pursuant to Mass. Gen. Laws ch. 123, § 12 (authorizing
involuntary "[e]mergency restraint and hospitalization of persons
posing risk of serious harm by reason of mental illness").
Approximately six hours later, Gray absconded from the hospital on
foot. Hospital staff called the Athol Police Department, asking
that Gray — "a section 12 patient" — be "picked up and brought
back."
Cummings responded to the call and quickly located Gray,
walking barefoot along the sidewalk less than a quarter-mile from
the hospital. Cummings got out of his police cruiser. Gray swore
at him, and Cummings told her that she "ha[d] to go back to the
hospital." Gray again used profanity, declared that she was not
going back, and continued to walk away. In response, Cummings
radioed for backup and followed Gray on foot. He repeatedly
implored Gray to return to the hospital, but his importunings were
greeted only by more profanity.
Initially, Cummings followed Gray at a distance of
roughly one hundred feet. Within twenty-five to thirty seconds,
he closed to within five feet. At that point, Gray stopped, turned
around, "clenched her fists, clenched her teeth, flexed her body
and stared at [Cummings] as if she was looking right through
[him]." She again swore at Cummings and started walking toward
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him. Cummings grabbed Gray's shirt but he could feel Gray moving
her body forward, so he "took her to the ground." It is undisputed
that Cummings had a distinct height and weight advantage: he was
six feet, three inches tall and weighed 215 pounds, whereas Gray
was five feet, ten inches tall and weighed 140 pounds.
Cummings testified that once on the ground, he
repeatedly instructed Gray to place her hands behind her back.
She did not comply. Instead, she "tucked her arms underneath her
chest and flex[ed] tightly," swearing all the while. Cummings
warned Gray that she was "going to get ta[s]ed" if she did not
place her hands behind her back.1 Gray did not heed this warning
but, rather, swore at Cummings again and told him to "do it."
Cummings made "one last final demand [for Gray] to stop resisting"
and when "Gray refused to listen," he removed the cartridge from
his Taser, placed it in drive-stun mode,2 and tased Gray's back
for four to six seconds. Gray then allowed him to handcuff her.
1
Gray testified she was told that she would be tased if she
stood up. She also testified that at some point she was ordered
to get to her knees, but that, due to prior injuries, she was
unable to obey this order. Given Gray's repeated statements that
she could not recall the details of the encounter and that she
could not identify any factual inaccuracies in Cummings's police
report, we find these assertions insufficient to refute Cummings's
account. See Wertish, 433 F.3d at 1065.
2 Drive-stun mode is the least intrusive setting for a Taser:
it delivers only a localized impact to the target. This contrasts
with probe-deployment mode, which disrupts the target's entire
nervous system.
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Cummings helped Gray to her feet and called an ambulance,
which transported Gray to the hospital. According to Gray, she
felt "pain all over" at the moment she was tased, but she "must
have passed out because [she] woke up in Emergency." Charges were
subsequently filed against Gray for assault on a police officer,
resisting arrest, disturbing the peace, and disorderly conduct,
but were eventually dropped.
In due season, Gray sued Cummings and the Town in the
federal district court. She invoked federal question
jurisdiction, see 28 U.S.C. § 1331, and asserted causes of action
under 42 U.S.C. § 1983 and Title II of the ADA, along with
supplemental state-law claims for assault and battery, malicious
prosecution, and violations of the Massachusetts Civil Rights Act
(MCRA), Mass. Gen. Laws ch. 12, §§ 11H-11I. After the completion
of pretrial discovery, the defendants moved for summary judgment.
See Fed. R. Civ. P. 56(a). The district court referred the opposed
motion to a magistrate judge. See 28 U.S.C. § 636(b)(1)(B); Fed.
R. Civ. P. 72(b). Following a hearing, the magistrate judge issued
a report and recommendation, suggesting that the motion be granted.
Specifically, the magistrate judge found no violation of the Fourth
Amendment under section 1983 on the part of either Cummings or the
Town and no viable state-law claims. As to Cummings, the
magistrate judge added that, in any event, he was entitled to
qualified immunity. The magistrate judge further concluded that
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there had been no abridgement of the ADA because, regardless of
Gray's disability, Cummings was entitled to employ an "appropriate
level of force in response to an ongoing threat."
Gray objected to the magistrate judge's report and
recommendation. See 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P.
72(b). On de novo review, see Mercy Hosp., Inc. v. Mass. Nurses
Ass'n, 429 F.3d 338, 343 (1st Cir. 2005), the district court
entered a two-sentence text order adopting the magistrate judge's
report and recommendation in substantial part. Because the court
agreed that Cummings was entitled to qualified immunity, it
declined to express any opinion on the magistrate judge's
determination that "Cummings employed reasonable force under all
of the circumstances."
This timely appeal followed. In addition to the parties'
briefs and oral argument, we have had the benefit of able briefing
by several amici.
II. ANALYSIS
We review an order granting summary judgment de novo.
See Houlten Citizens' Coal., 175 F.3d at 184. "We will affirm
only if the record reveals 'that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a
matter of law.'" Avery v. Hughes, 661 F.3d 690, 693 (1st Cir.
2011) (quoting Fed. R. Civ. P. 56(a)). Against this backdrop, we
proceed to Gray's claims.
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A. The Section 1983 Claims.
Section 1983 supplies a private right of action against
a person who, under color of state law, deprives another of "any
rights, privileges, or immunities secured by the Constitution and
[federal] laws." 42 U.S.C. § 1983. To maintain a cause of action
under section 1983, "the plaintiff must show a deprivation of a
federally secured right." Harrington v. City of Nashua, 610 F.3d
24, 28 (1st Cir. 2010). Gray has advanced separate section 1983
claims against Cummings and the Town. We address these claims
sequentially.
1. Cummings. Gray's section 1983 claim against Cummings
is premised on the notion that Cummings used excessive force in
effecting her arrest and, thus, violated her Fourth Amendment
rights. To prevail on such a claim, "a plaintiff must show that
the defendant employed force that was unreasonable under all the
circumstances." Morelli v. Webster, 552 F.3d 12, 23 (1st Cir.
2009) (citing Graham v. Connor, 490 U.S. 386, 396 (1989)). The
degree of force to be used in any given situation is most often a
judgment call, which sometimes must be made in a split second by
a police officer confronted with rapidly evolving circumstances.
Determining whether a particular use of force is reasonable
requires consideration of the totality of the circumstances. See
Graham, 490 U.S. at 396. This consideration entails the weighing
of a myriad of factors such as "the severity of the crime at issue,
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whether the suspect pose[d] an immediate threat to the safety of
the officers or others, and whether [the suspect was] actively
resisting arrest or attempting to evade arrest by flight." Id.
Our starting point is the question of whether a
reasonable jury could find that Cummings violated Gray's Fourth
Amendment rights through the use of excessive force. The
magistrate judge answered this question in the negative,
concluding that, as a matter of law, "the single deployment of a
taser in drive stun mode" in these particular circumstances was
reasonable. Viewing the record most hospitably to Gray and drawing
all reasonable inferences to her behoof, we think that a reasonable
jury could find that the force employed by Cummings violated the
Fourth Amendment. We explain briefly.
The Town's policies describe a Taser in drive-stun mode
as a "pain compliance tool."3 Thus, the question reduces to whether
the circumstances surrounding the confrontation between Gray and
Cummings, interpreted in the light most favorable to Gray,
justified Cummings's use of such a tool.
The magistrate judge analyzed this question in
accordance with the Graham factors. In his view, the first factor
— "the severity of the crime at issue," id. — favored Cummings
3 This description is consistent with the descriptions found
in the case law. See, e.g., Crowell v. Kirkpatrick, 400 F. App'x
592, 595 (2d Cir. 2010) (explaining that drive-stun mode "typically
causes temporary, if significant, pain and no permanent injury").
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because "Ms. Gray assaulted [him]." At summary judgment, though,
this assessment is insupportable: it fails to view the facts in
the light most favorable to Gray.
In this regard, we think it important that Cummings was
not called to the scene to investigate a crime; he was there to
return a person suffering from mental illness to the hospital.
When the subject of a seizure has not committed any crime, the
first Graham factor ordinarily cuts in the subject's favor. See
Estate of Armstrong ex rel. Armstrong v. Village of Pinehurst, 810
F.3d 892, 899 (4th Cir. 2016). To be sure, Gray did not submit to
Cummings's orders. Withal, this failure to obey was at most a
minor crime, not one that would tip the first Graham factor in
Cummings's favor. See id. at 899-900.
Nor does the alleged assault tilt the scales. In
Cummings's view, the assault occurred when, after Gray walked
toward him, he grabbed her shirt and she "continued pushing against
[his] arm." In the circumstances of this case, we think that a
reasonable jury could find that the facts did not support the
characterization of Gray's actions as an "assault."
The same kind of defect mars the magistrate judge's
determination that the second Graham factor — "whether the suspect
poses an immediate threat to the safety of the officers or others,"
490 U.S. at 396 — favored Cummings. It is true that Gray was a
section 12 patient, that is, an individual who has been
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involuntarily committed to a hospital pursuant to Mass. Gen. Laws
ch. 123, § 12, based on a determination by a qualified medical
professional (or, in emergency situations, a police officer) that
"failure to hospitalize [her] would create a likelihood of serious
harm by reason of mental illness." Id. § 12(a). It is also true
that Cummings knew as much. Although a jury could supportably
find on these facts that Cummings reasonably believed that Gray
posed a danger to him, it could supportably find instead that Gray
— who was shuffling down the sidewalk barefoot and unarmed — only
posed a danger to herself (especially given Cummings's distinct
height and weight advantage). So, too, a jury could supportably
find that, at the time of the tasing, Gray had been subdued to a
point at which she no longer posed a threat.
The magistrate judge concluded that the final Graham
factor — whether Gray was "actively resisting arrest," 490 U.S. at
396 — favored Cummings. This conclusion seems unimpugnable given
Cummings's testimony that he asked Gray several times to put her
hands behind her back, but that she would not do so.
The short of it is that the Graham factors point in
conflicting directions. Seen through the prism of the totality of
the circumstances, the evidence is subject to interpretation and
can support plausible though inconsistent inferences. Drawing
those inferences beneficially to Gray and aware that Cummings not
only had her down on the ground but also outweighed her by some
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seventy-five pounds, a reasonable jury could find that Gray had
committed no crime and that she posed no threat to Cummings when
he tased her. When all is said and done, we think that Gray has
presented sufficient evidence to make out a jury question as to
whether Cummings used excessive force. See, e.g., Morelli, 552
F.3d at 23 (finding triable excessive force claim when officer
slammed plaintiff, who "at worst, was suspected of being a petty
thief," against wall); Alexis v. McDonald's Rests. of Mass., Inc.,
67 F.3d 341, 353 (1st Cir. 1995) (concluding that jury could find
excessive force when officer seized and dragged plaintiff to
effectuate arrest for crime of trespassing in public restaurant);
see also Estate of Armstrong, 810 F.3d at 906 (finding excessive
force when officer tased "mentally ill man being seized for his
own protection, [who] was seated on the ground, was hugging a post
to ensure his immobility, . . . and had failed to submit to a
lawful seizure for only 30 seconds").
This conclusion does not end our inquiry. Cummings has
invoked the defense of qualified immunity. Qualified immunity is
a doctrine aimed at providing government officials (including
police officers) a modicum of protection from civil damages
liability for actions taken under color of state law. See Harlow
v. Fitzgerald, 457 U.S. 800, 818 (1982); McKenney v. Mangino, 873
F.3d 75, 80 (1st Cir. 2017), cert. denied, 138 S. Ct. 1311 (2018).
This protection attaches "to all but the plainly incompetent or
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those who knowingly violate the law." Malley v. Briggs, 475 U.S.
335, 341 (1986). Thus, a government official may invoke the
defense of qualified immunity when his actions, though causing
injury, did "not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known." Conlogue v. Hamilton, 906 F.3d 150, 154 (1st Cir. 2018)
(quoting Harlow, 457 U.S. at 818).
The qualified immunity analysis has two facets: "[t]he
court must determine whether the defendant violated the
plaintiff's constitutional rights" and then must determine
"whether the allegedly abridged right was 'clearly established' at
the time of the defendant's claimed misconduct." Id. at 155
(quoting McKenney, 873 F.3d at 81). In this instance, we already
have decided that a jury could find that Cummings violated Gray's
Fourth Amendment rights. We must now determine whether the alleged
right was clearly established at the time of Cummings's violation.
See id. Specifically, we must ask whether, given the circumstances
at hand, Gray's right to be free from the degree of force that
Cummings used — particularly, the Taser — was clearly established.
This question, too, has two facets. First, the plaintiff
must "identify either 'controlling authority' or a 'consensus of
cases of persuasive authority' sufficient to send a clear signal
to a reasonable official that certain conduct falls short of the
constitutional norm." Alfano v. Lynch, 847 F.3d 71, 75 (1st Cir.
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2017) (quoting Wilson v. Layne, 526 U.S. 603, 617 (1999)). Second,
the plaintiff must demonstrate that "an objectively reasonable
official in the defendant's position would have known that his
conduct violated that rule of law." Id. This latter step is
designed to achieve a prophylactic purpose: it affords "some
breathing room for a police officer even if he has made a mistake
(albeit a reasonable one) about the lawfulness of his conduct."
Conlogue, 906 F.3d at 155. Taken together, these steps normally
require that, to defeat a police officer's qualified immunity
defense, a plaintiff must "identify a case where an officer acting
under similar circumstances was held to have violated the Fourth
Amendment." City of Escondido v. Emmons, 139 S. Ct. 500, 504
(2019) (per curiam) (quoting District of Columbia v. Wesby, 138 S.
Ct. 577, 590 (2018)); see Anderson v. Creighton, 483 U.S. 635,
639-40 (1987). Although such a case need not arise on identical
facts, it must be sufficiently analogous to make pellucid to an
objectively reasonable officer the unlawfulness of his actions.4
See City of Escondido, 139 S. Ct. at 504; Ashcroft v. al-Kidd, 563
U.S. 731, 741 (2011).
4 Sometimes, however, this requirement is relaxed. In
circumstances in which a violation of rights is apparent, a
plaintiff may thwart a qualified immunity defense simply by
demonstrating that "the unlawfulness of the officer's conduct is
sufficiently clear even though existing precedent does not address
similar circumstances." City of Escondido, 139 S. Ct. at 504
(quoting Wesby, 138 S. Ct. at 590). This is not such a case.
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The district court determined that "the right not to be
tased while offering non-violent stationary, resistance to a
lawful seizure was not clearly established at the time of the
confrontation between Ms. Gray and Officer Cummings" and,
therefore, ruled that Cummings was entitled to qualified immunity.
We examine the foundation on which this ruling rests.
We begin with Estate of Armstrong, in which the Fourth
Circuit conducted a similar qualified immunity analysis.
Specifically, the court considered whether the "right not to be
subjected to tasing while offering stationary and non-violent
resistance to a lawful seizure" was clearly established. 810 F.3d
at 907. Armstrong, who suffered from bipolar disorder and paranoid
schizophrenia, had absconded from the hospital to which he had
been committed. See id. at 896. The police were called and
located Armstrong near the hospital's main entrance. See id.
Three police officers approached Armstrong, who responded by
"wrapping himself around a four-by-four post that was supporting
a nearby stop sign." Id. The officers attempted to pry
Armstrong's arms and legs loose but were unsuccessful. See id.
One of the officers then warned Armstrong that he would be tased
if he did not let go of the post. See id. at 897. Armstrong did
not comply, and the officer proceeded to tase him five times in
drive-stun mode, over a span of approximately two minutes. See
id. Even though Armstrong continued resisting, he was pried loose
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from the post. See id. A struggle ensued, resulting in
Armstrong's demise. See id. at 897-98.
Although the court found that a jury could find the
officers had used excessive force, see id. at 906, it nonetheless
affirmed summary judgment in favor of the defendants. The court
reasoned that even though its finding that the officers had
violated Armstrong's Fourth Amendment rights was supported by
precedent, the law "was not so settled [as of April 2011] such
that 'every reasonable official would have understood that' tasing
Armstrong was unconstitutional" under the circumstances. Id. at
908 (quoting Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per
curiam)).5
The Fourth Circuit's conclusion in Estate of Armstrong
— that the use of a Taser in drive-stun mode against a noncompliant
and resisting individual was not clearly unconstitutional as of
2011 — is not an outlier. Prior to Cummings's encounter with Gray,
several other courts of appeals had found the use of a Taser
reasonable in situations involving subjects who acted with a level
of resistance analogous to that displayed by Gray. See, e.g.,
Hagans v. Franklin Cty. Sheriff's Office, 695 F.3d 505, 507 (6th
Cir. 2012) (granting qualified immunity for use of Taser in drive-
5
We note that Estate of Armstrong was decided in 2016 and,
thus, Cummings did not have the benefit of the Fourth Circuit's
decision at the time of the incident sub judice.
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stun mode in 2007 when plaintiff "refused to be handcuffed," "lay
down on the pavement and locked his arms tightly under his body,
kicking his feet and continuing to scream"); Draper v. Reynolds,
369 F.3d 1270, 1278 (11th Cir. 2004) (finding single use of Taser
in 2001 reasonable when plaintiff "used profanity, moved around
and paced in agitation," and "repeatedly refused to comply with
[the officer]'s verbal commands" during traffic stop). Thus, an
objectively reasonable officer in Cummings's place and stead could
reasonably have believed, in 2013, that the use of a Taser was
generally permissible when a subject refuses to be handcuffed.
Even so, the level of force that is constitutionally
permissible in dealing with a mentally ill person "differs both in
degree and in kind from the use of force that would be justified
against a person who has committed a crime or who poses a threat
to the community." Bryan v. MacPherson, 630 F.3d 805, 829 (9th
Cir. 2010). Consequently, a subject's mental illness is a factor
that a police officer must take into account in determining what
degree of force, if any, is appropriate. See Estate of Armstrong,
810 F.3d at 900; Champion v. Outlook Nashville, Inc., 380 F.3d
893, 904 (6th Cir. 2004). Here, however, the only thing that
Cummings knew about Gray's mental health was that she had been
involuntarily committed under section 12; he did not know whether
Gray had been deemed a danger to others or only to herself. Given
the skimpiness of this information, we think that an objectively
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reasonable police officer, standing in Cummings's shoes, would
have had to be prepared for the worst.
Based on the body of available case law, we hold that an
objectively reasonable police officer in May of 2013 could have
concluded that a single use of the Taser in drive-stun mode to
quell a nonviolent, mentally ill individual who was resisting
arrest, did not violate the Fourth Amendment. Even if such a
conclusion was constitutionally mistaken — as a jury could find on
the facts of this case — Cummings is shielded by qualified
immunity.
Gray demurs. She identifies two of our precedents and
posits that — whether viewed singly or in combination — they evince
the clearly established nature of her right to be free from tasing.
Both precedents are inapposite.
The case on which Gray relies most heavily is Parker v.
Gerrish, 547 F.3d 1 (1st Cir. 2008). There, the plaintiff had
been stopped on suspicion of driving while intoxicated. After the
plaintiff failed several sobriety tests, the officer tried to
arrest him. See id. at 3-4. When the plaintiff resisted, the
officer drew his Taser and ordered the plaintiff to turn around
and place his hands behind his back. See id. at 4. The plaintiff
complied but clasped his right wrist with his left hand. See id.
Another officer approached and cuffed the plaintiff's left wrist.
See id. There was substantial dispute about what happened next,
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but according to the plaintiff's account (to which the court was
required to defer in the posture of the case), he released his
right wrist, yet was tased anyway. See id. at 4-5. On these
facts, we held that the police officer could be found to have
violated the Fourth Amendment by tasing an unarmed suspect who, in
the course of an arrest, "present[ed] no significant 'active
resistance' or threat"6 at the time of the tasing. Id. at 10-11.
The case at hand is a horse of a quite different hue.
There is no indication here that Gray, despite ample opportunity
to do so, ever complied with Cummings's command to put her hands
behind her back. Even when Cummings warned her that she would be
tased, she did not comply but, rather, continued cursing and told
him to "do it."
The second case upon which Gray relies is Ciolino v.
Gikas, 861 F.3d 296 (1st Cir. 2017), which involved events
occurring in 2013. There, a police officer grabbed the plaintiff
in a crowded street and forced him to the ground without giving
him any warning. See id. at 299-300. We held that the jury could
find that although the plaintiff had "disobeyed a police order,"
he "was not given a chance to submit peacefully to arrest before
significant force was used to subdue him" and, therefore, "an
6 We had no occasion in Parker to mull the implications of a
qualified immunity defense. There, the officer waived any such
defense. See 547 F.3d at 13.
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'objectively reasonable police officer' would have taken a more
measured approach." Id. at 304 (quoting Raiche v. Pietroski, 623
F.3d 30, 39 (1st Cir. 2010)).
Once again, the case at hand is readily distinguishable.
Cummings repeatedly told Gray that she needed to return to the
hospital, and she adamantly refused to obey. What is more, he
warned her that he would use his Taser if she remained
intransigent, yet she defied the warning. Thus — unlike the
plaintiff in Ciolino — Gray was afforded an adequate opportunity
to submit to Cummings's authority before she was tased.
Gray cites a number of other cases in support of her
argument that her resistance was "passive" rather than "active"
and, thus, did not justify the use of the Taser. This argument is
deeply flawed. Labels such as "passive" and "active" are
generalizations and cannot serve as substitutes for a careful
analysis of the facts of a particular case. In point of fact, the
Supreme Court — in an excessive force case — recently cautioned
against "defin[ing] the clearly established right at a high level
of generality." City of Escondido, 139 S. Ct. at 503. There, the
Court reversed a denial of qualified immunity sought by an officer
who had tackled a man after he had closed the door to a dwelling
despite being instructed not to do so and "tried to brush past"
the officer. Id. at 502. The Court criticized the Ninth Circuit
for relying on "case law [that] involved police force against
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individuals engaged in passive resistance" without making any
"effort to explain how that case law prohibited [the officer]'s
actions in this case." Id. at 503-04 (emphasis in original). And
in all events, respectable authority suggests that refusing to be
handcuffed constitutes active resistance and may justify the use
of a Taser. See Hagans, 695 F.3d at 509 (collecting cases).
We add, moreover, that several of the cases cited by
Gray involve deployment of a Taser subsequent to an initial Taser
shock. See, e.g., Meyers v. Baltimore County, 713 F.3d 723, 733-
34 (4th Cir. 2013); Cyrus v. Town of Mukwonago, 624 F.3d 856, 859-
63 (7th Cir. 2010). Nothing of that sort happened here.7
In the last analysis, Gray does not cite any case,
decided before her encounter with Cummings, that arose out of the
use of a Taser on facts fairly comparable to the facts at hand.
In the absence of either controlling authority or a consensus of
7 In furtherance of her argument that an objectively
reasonable officer standing in Cummings's shoes would have known
that the degree of force used was unreasonable, Gray argues in her
reply brief that the Town has a policy against tasing someone
"known to be suffering from severe mental illness." This argument
is doubly waived: first, it was not advanced in the district
court, see McCoy v. Mass. Inst. of Tech., 950 F.2d 13, 22 (1st
Cir. 1991) ("It is hornbook law that theories not raised squarely
in the district court cannot be surfaced for the first time on
appeal."); and second, it was not advanced in Gray's opening brief
in this court, see Sandstrom v. ChemLawn Corp., 904 F.2d 83, 86
(1st Cir. 1990) ("[B]ecause the argument . . . surfac[ed] only in
[appellant's] reply brief, it has been waived.").
- 22 -
persuasive authority to the contrary, we conclude that Cummings
was entitled to qualified immunity.
As a fallback, Gray argues that the doctrine of qualified
immunity, as expounded by the Supreme Court, should be modified or
overruled. Gray did not raise this argument in the district court
and, thus, cannot advance it here. See Teamsters Union, Local No.
59 v. Superline Transp. Co., 953 F.2d 17, 21 (1st Cir. 1992) ("If
any principle is settled in this circuit, it is that, absent the
most extraordinary circumstances, legal theories not raised
squarely in the lower court cannot be broached for the first time
on appeal.").
2. Town of Athol. In addition to her section 1983 claim
against Cummings, Gray makes a section 1983 failure-to-train claim
against the Town. She alleges that her Fourth Amendment rights
were violated by the Town's deficient training of its police
officers (including Cummings) with respect to proper protocols for
interacting with persons suffering from mental illness. Gray's
evidence, though, falls well short of making out a failure-to-
train claim against the Town.
We cut directly to the chase. "Triggering municipal
liability on a claim of failure to train requires a showing that
municipal decisionmakers either knew or should have known that
training was inadequate but nonetheless exhibited deliberate
indifference to the unconstitutional effects of those
- 23 -
inadequacies." Haley v. City of Boston, 657 F.3d 39, 52 (1st Cir.
2011). A plaintiff typically must show a "pattern of similar
constitutional violations by untrained employees . . . to
demonstrate deliberate indifference for purposes of failure to
train." Connick v. Thompson, 563 U.S. 51, 62 (2011) (citing Bd.
of Cty. Comm'rs of Bryan Cty. v. Brown, 520 U.S. 397, 409 (1997)).
Here, however, Gray has made no such showing.
In an effort to close this gap, Gray offers expert
testimony about appropriate police practices for interacting with
persons with disabilities. Building on this foundation, she
insists that "coupled with the facts of the encounter," such
evidence "create[s] questions of material fact as to whether the
Town failed to properly train Cummings." In our view, these
assertions are insufficient to support a failure-to-train claim.
It is not enough to show that the Town's training regimen was
faulty; Gray must also show that the Town knew or had reason to
believe that such a regimen had unconstitutional effects. Gray
has tendered no evidence of past violations sufficient to put the
Town on notice of such effects. Given this yawning gap in her
proof, Gray has not made out a genuine issue of material fact as
to whether the Town was deliberately indifferent to the risk of
the alleged constitutional violation. Consequently, her failure-
to-train claim founders. See id. at 72; Hill v. Walsh, 884 F.3d
16, 24 (1st Cir. 2018).
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B. The State-Law Claims.
Gray's supplemental state-law claims need not detain us.
Gray concedes that the assault and battery and MCRA claims "rise
and fall with . . . [her] § 1983 claim." This concession, coupled
with Gray's failure to offer any developed argumentation with
respect to these claims, ends our inquiry. See Torres-Arroyo v.
Rullán, 436 F.3d 1, 7 (1st Cir. 2006) ("Gauzy generalizations are
manifestly insufficient to preserve an issue for appellate
review."). We deem waived any claim of error related to the
disposition of Gray's assault and battery and MCRA claims.
The magistrate judge also granted summary judgment on
Gray's malicious prosecution claim. On appeal, Gray does not
challenge this ruling. Consequently, we deem the malicious
prosecution claim abandoned. See United States v. Zannino, 895
F.2d 1, 17 (1st Cir. 1990) (explaining that "issues adverted to in
a perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived").
C. The ADA Claim.
There is one last hill to climb: Gray's claim against
the Town under the ADA. Some background is helpful.
Congress enacted the ADA "to provide a clear and
comprehensive national mandate for the elimination of
discrimination against individuals with disabilities." 42 U.S.C.
§ 12101(b)(1). Title I proscribes disability-related
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discrimination in employment, see id. § 12112, and Title III
proscribes disability-related discrimination in the provision of
public accommodations (such as hotels, restaurants, and theaters),
see id. §§ 12182, 12184. Neither of these titles is implicated
here.
Title II broadly 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." Id. § 12132. Gray's ADA claim
against the Town is rooted in this Title.
To establish a violation of Title II, a plaintiff must
show:
(1) that [s]he is a qualified individual with
a disability; (2) that [s]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) that 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) (quoting
Parker v. Universidad de Puerto Rico, 225 F.3d 1, 5 (1st Cir.
2000)). A "qualified individual with a disability" is
an individual with a disability who, with or
without reasonable modifications to rules,
policies, or practices, the removal of
architectural, communication, or
transportation barriers, or the provision of
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auxiliary aids and services, meets the
essential eligibility requirements for the
receipt of services or the participation in
programs or activities provided by a public
entity.
42 U.S.C. § 12131(2). In turn, the term "public entity" includes
"any State or local government" as well as "any department, agency,
special purpose district, or other instrumentality of a State or
States or local government." Id. § 12131(1).
The Town does not gainsay either that Gray is a qualified
person with a disability or that the Town is a public entity.
Thus, the focal point of our inquiry is whether, during Gray's
encounter with Cummings, she was "denied the benefits of [the
Town's] services, programs, or activities or was otherwise
discriminated against . . . by reason of [her] disability."
Buchanan, 469 F.3d at 170-71.
Courts have identified two general theories describing
ways in which a police officer may violate the ADA in executing an
arrest. The first such theory (which we shall call the "effects"
theory) holds that a violation may be found when "police wrongly
arrested someone with a disability because they misperceived the
effects of that disability as criminal activity." Gohier v.
Enright, 186 F.3d 1216, 1220 (10th Cir. 1999). The second such
theory (which we shall call the "accommodation" theory) holds that
a violation may be found when police officers "properly
investigated and arrested a person with a disability for a crime
- 27 -
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." Id. at 1220-21. Before
us, Gray advances arguments under both theories.8 With respect to
the "effects" theory, Gray argues that the criminal charges filed
against her are an indication that Cummings misperceived her
failure to follow his commands as a crime rather than a symptom of
her disability. With respect to the "accommodation" theory, Gray
argues that Cummings should have accommodated her disability by
"employ[ing] . . . time, patience, nonthreatening communication,
monitoring from a distance, and contacting and waiting for
assistance such as an ambulance or a mental health care
professional."
In mounting our inquiry, we start with the
uncontroversial premise that the services, programs, and
activities of a municipal police department are generally subject
to the provisions of Title II of the ADA. See, e.g., Haberle v.
8 The magistrate judge concluded that "Gray's complaint very
clearly proceeds solely on the basis of the second theory of
liability — that is, an alleged failure to reasonably accommodate."
This conclusion seems to overlook the allegation in Gray's amended
complaint that the Town "brought criminal charges against [Gray]
without taking her mental illness into account." Even so, any
error was harmless: the magistrate judge prudently considered the
merits of Gray's arguments under both the "effects" theory and the
"accommodation" theory.
- 28 -
Troxel, 885 F.3d 170, 179-80 (3d Cir. 2018); Gorman v. Bartch, 152
F.3d 907, 912 (8th Cir. 1998). Yet, three questions loom that are
matters of first impression in this circuit:
 Does Title II apply to ad hoc police encounters
with members of the public during investigations
and arrests, and if so, to what extent?
 Assuming that Title II applies to the encounter
that occurred here, may a public entity be held
liable under Title II for a line employee's actions9
on a theory of respondeat superior?
 Is proof of a defendant's deliberate indifference
(as opposed to discriminatory animus) sufficient to
support a plaintiff's claim for damages under Title
II?
We are reluctant to plunge headlong into these murky waters. As
we explain below, the answers to these questions are less than
certain, and adjudicating Gray's ADA claim against the Town does
not require us to run this gauntlet.
The first question asks whether and to what extent Title
II of the ADA applies to ad hoc police encounters. The Fifth
Circuit has held that "Title II does not apply to an officer's on-
the-street responses to reported disturbances or other similar
9 We use the term "line employee" to describe an employee who
is not involved in policymaking.
- 29 -
incidents, whether or not those calls involve subjects with mental
disabilities, prior to the officer's securing the scene and
ensuring that there is no threat to human life." Hainze v.
Richards, 207 F.3d 795, 801 (5th Cir. 2000). Other circuits,
though, have charted a different course, holding that Title II
applies without exception to ad hoc police encounters. See, e.g.,
Haberle, 885 F.3d at 180 (concluding that "police officers may
violate the ADA when making an arrest by failing to provide
reasonable accommodations for a qualified arrestee's disability");
Bircoll v. Miami-Dade County, 480 F.3d 1072, 1085 (11th Cir. 2007)
(explaining that "Title II prohibits discrimination by a public
entity by reason of [plaintiff]'s disability" during
investigations and arrests); see also Gohier, 186 F.3d at 1221
(stating that "a broad rule categorically excluding arrests from
the scope of Title II . . . is not the law"). Under this approach,
exigent circumstances attendant to a police officer's decisions
during an ad hoc encounter simply weigh in the balance when
evaluating the reasonableness of a prospective ADA accommodation.
See Haberle, 885 F.3d at 181 n.11; Bircoll, 480 F.3d at 1085-86.10
10 The Ninth Circuit reached the same conclusion in Sheehan
v. City & County of San Francisco, 743 F.3d 1211, 1232 (9th Cir.
2014). The Supreme Court granted certiorari in Sheehan in order
to resolve whether Title II of the ADA "requires law enforcement
officers to provide accommodations to an armed, violent, and
mentally ill suspect in the course of bringing the suspect into
custody." City & County of San Francisco v. Sheehan, 135 S. Ct.
1765, 1772 (2015). The Court later concluded that certiorari on
- 30 -
While no circuit has found Title II of the ADA wholly inapplicable
to ad hoc police encounters, the differences in approach indicate
to us that we should tread cautiously. For present purposes, it
is sufficient for us to assume, favorably to Gray, that Title II
of the ADA applies to ad hoc police encounters (such as the
encounter here) and that exigent circumstances may shed light on
the reasonableness of an officer's actions.
The second question asks whether a public entity can be
vicariously liable for money damages under Title II of the ADA
based on the conduct of a line employee. This question arises
because, in Gebser v. Lago Vista Independent School District, 524
U.S. 274 (1998), the Supreme Court held that a school district
could not be held liable under Title IX of the Education Amendments
of 1972 "unless an official who at a minimum has authority to
address the alleged discrimination and to institute corrective
measures on the [district]'s behalf has actual knowledge of
discrimination." Id. at 290. Whether the rationale of Gebser
should be extended to insulate public entities from liability under
Title II of the ADA on a theory of respondeat superior is an open
question. Compare, e.g., Duvall v. County of Kitsap, 260 F.3d
1124, 1141 (9th Cir. 2001) (stating that "public entity is liable
this question had been improvidently granted. See id. at 1774.
The Court took pains to note, though, that whether Title II
"applies to arrests is an important question." Id. at 1773.
- 31 -
for the vicarious acts of its employees" under Title II), with,
e.g., Liese v. Indian River Cty. Hosp. Dist., 701 F.3d 334, 348-
49 (11th Cir. 2012) (finding no respondeat superior liability under
section 504 of Rehabilitation Act in light of Gebser).11 For
present purposes, it is sufficient for us to assume, favorably to
Gray, that the Town could be held vicariously liable under Title
II for Cummings's actions.
The third question asks whether a showing of deliberate
indifference is enough to support recovery of money damages under
Title II. Since a plaintiff must show "intentional discrimination"
on the part of the public entity to be eligible for damages on a
Title II claim, Nieves-Márquez v. Puerto Rico, 353 F.3d 108, 126
(1st Cir. 2003), some uncertainty exists as to whether "deliberate
indifference" is the functional equivalent of "intentional
discrimination." Several of our sister circuits have held that a
showing of deliberate indifference may suffice to prove this
element. See, e.g., Haberle, 885 F.3d at 181; Duvall, 260 F.3d at
1138. But the question is open in this circuit, and we have stated
that, "under Title II, non-economic damages are only available
when there is evidence 'of economic harm or animus toward the
11 As a general matter, Title II of the ADA "is to be
interpreted consistently with" section 504 of the Rehabilitation
Act, which prohibits disability discrimination by entities
receiving federal financial assistance. Theriault v. Flynn, 162
F.3d 46, 48 n.3 (1st Cir. 1998).
- 32 -
disabled.'" Carmona-Rivera v. Puerto Rico, 464 F.3d 14, 17 (1st
Cir. 2006) (quoting Nieves-Márquez, 353 F.3d at 126-27). This
case does not require us to parse whether our use of the word
"animus" demands more than a showing of deliberate indifference,
cf. S.H. ex. rel. Durrell v. Lower Merion Sch. Dist., 729 F.3d
248, 263 (3d Cir. 2013) (interpreting Nieves-Márquez as requiring
"a higher showing of intentional discrimination than deliberate
indifference"), particularly since the Town has not advanced such
an argument. For present purposes, it is sufficient for us to
assume, favorably to Gray, that deliberate indifference is the
appropriate standard.
Adjudicating Grays's ADA claim against the Town does not
require us to run the gauntlet of these questions. After all, we
have admonished before — and today reaffirm — that "courts should
not rush to decide unsettled legal issues that can easily be
avoided." United States v. Gonzalez, 736 F.3d 40, 40 (1st Cir.
2013). Consistent with this prudential principle, we decline to
answer any of the three questions identified above. No matter how
the loaf is sliced, Gray was obliged at a bare minimum to make out
a genuine issue of material fact as to Cummings's deliberate
indifference to the risk of an ADA violation.
In this context, such a showing requires proof that the
defendant knew that an ADA-protected right was likely to be
abridged, yet neglected to take available preventative action
- 33 -
notwithstanding such knowledge. See Haberle, 885 F.3d at 181;
Duvall, 260 F.3d at 1139-40. In other words, to hold the Town
vicariously liable under Title II based on Cummings's deliberate
indifference, Gray would have to show that Cummings knew that Gray
had a disability that required him to act differently than he would
otherwise have acted, yet failed to adjust his behavior
accordingly. See, e.g., Crane v. Lifemark Hosps., Inc., 898 F.3d
1130, 1136 (11th Cir. 2018); Duvall, 260 F.3d at 1140. Thus, to
prevail on her version of the "effects" theory, Gray would at least
have to show that Cummings knew that her failure to follow his
orders was a symptom of her mental illness rather than deliberate
disobedience (warranting criminal charges). Similarly, to prevail
on her version of the "accommodation" theory, Gray would at least
have to show that Cummings knew that there was a reasonable
accommodation, which he was required to provide. Gray has not
made either such showing.
To be sure, it is undisputed that Cummings knew that
Gray was a section 12 patient and, thus, had a disability
(specifically, that she suffered from an unspecified mental
illness). See Mass. Gen. Laws ch. 123, § 12. But Gray has not
shown that Cummings had any particularized knowledge about the
nature or degree of Gray's disability. As we have explained, see
supra Part II.A, the fact that Gray was a section 12 patient served
only to put Cummings on notice that she had been deemed a danger
- 34 -
to herself or to others. There is insufficient evidence to suggest
that Cummings knew either that Gray suffered from bipolar disorder
or that she was experiencing a manic episode. Without such
particularized knowledge, Cummings had no way of gauging whether
the conduct that appeared unlawful to him was likely to be a
manifestation of the symptoms of Gray's mental illness. So, too,
without such particularized knowledge, Cummings had no way of
gauging what specific accommodation, if any, might have been
reasonable under the circumstances.
Of course, Gray has adduced evidence that national
police standards provide protocols for dealing with individuals
suffering from any type of mental illness. Critically, though,
Gray has not adduced any evidence showing that Cummings knew of
the existence of such standards.12 Consequently, Cummings had no
way of knowing that an ADA-protected right was likely to be
jeopardized by his actions.
12For the sake of completeness, we again note that the Town
has a policy, which states that Tasers should not be used against
"[t]hose known to be suffering from severe mental illness." Based
on this policy, it might be argued that refraining from using a
Taser against Gray would have been a reasonable accommodation for
her disability. It might also be argued that, in tasing Gray in
contravention of the policy, Cummings exhibited deliberate
indifference. The rub, though, is that Gray has not advanced any
such argument either below or in her appellate briefing. "In the
absence of extraordinary circumstances, none of which are apparent
here, we have regularly declined to consider points which were not
seasonably advanced below." Clauson v. Smith, 823 F.2d 660, 666
(1st Cir. 1987).
- 35 -
Nor were Cummings's actions so plainly antithetic to the
ADA as to obviate the knowledge requirement. See Haberle, 885
F.3d at 182. The record makes manifest that Cummings tried to
talk to Gray before physically engaging with her, telling her
repeatedly that she needed to return to the hospital. He followed
her from a distance and did not make physical contact with her
until she reversed direction and moved toward him. And in the
ensuing encounter, he warned her that she would be tased if she
did not put her hands behind her back and gave her several chances
to comply before using the Taser (in the least intrusive mode
available).
Gray has also offered evidence that in failing to wait
for backup or to call an ambulance prior to approaching her,
Cummings fell short of nationally recognized police standards.
But as we have said, she has not shown that Cummings knew of such
standards; and in all events, "falling below national standards
does not, in and of itself, make the risk of an ADA violation" so
obvious as to eliminate the knowledge requirement. Id.
By the same token, Gray has not offered evidence
sufficient to sustain a claim of direct liability against the Town.
To make out such a claim, Gray could show that the Town's "existing
policies caused a failure to 'adequately respond to a pattern of
past occurrences of injuries like [hers].'" Id. at 181 (quoting
Beers-Capitol v. Whetzel, 256 F.3d 120, 136 (3d Cir. 2001)). Or
- 36 -
she could show "that the risk of . . . cognizable harm was 'so
great and so obvious'" as to override the requirement of
demonstrating a pattern. Id. (quoting Beers-Capitol, 256 F.3d at
136-37). Gray has not made either showing: she has proffered no
evidence of a pattern, nor has she shown an obvious risk of harm.
At most, she has put forth evidence that the Town's policies failed
to comply with national standards. But such a failure — without
more — does not render the risk of harm so great and obvious as to
excuse a failure to satisfy the pattern requirement. See id. at
182.
To this point, we have explained why Gray's claim for
money damages is impuissant. But Gray's amended complaint also
prays for injunctive relief. This form of redress, too, is beyond
Gray's reach. Past injury, in and of itself, "is an insufficient
predicate for equitable relief." Am. Postal Workers Union v.
Frank, 968 F.2d 1373, 1376 (1st Cir. 1992). To have standing to
pursue injunctive relief, a plaintiff must "establish a real and
immediate threat" resulting in "a sufficient likelihood that [s]he
will again be wronged in a similar way." Id. (quoting Los Angeles
v. Lyons, 461 U.S. 95, 109, 111 (1983)); see Updike v. Multnomah
County, 870 F.3d 939, 948 (9th Cir. 2017), cert. denied sub nom.
Multnomah County v. Updike, 139 S. Ct. 55 (2018) (finding that ADA
plaintiff "lack[ed] standing to pursue his claims for injunctive
relief"); Dudley v. Hannaford Bros. Co., 333 F.3d 299, 306 (1st
- 37 -
Cir. 2003) (requiring "real and immediate threat of ongoing harm"
for injunctive relief in ADA case). Gray cannot clear this hurdle.
When all is said and done, it is not enough for Gray to show that
because she has bipolar disorder, she is likely to encounter the
police again. She must show that she is likely to be tased once
more, see Lyons, 461 U.S. at 105-06, and she has not managed any
such showing.
Because there is no remedy available to Gray under Title
II of the ADA, it follows that the district court did not err in
entering summary judgment for the Town on Gray's ADA claim. See
Carmona-Rivera, 464 F.3d at 18 (affirming summary judgment for
defendants where no remedy was available to plaintiff on ADA
claim).
III. CONCLUSION
We need go no further. We add only that this is a hard
case — a case that is made all the more difficult because of two
competing concerns: our concern for the rights of the disabled
and our concern that the police not be unduly hampered in the
performance of their important duties. In the end, though, we
think that the protections provided by Title II of the ADA can be
harmonized with the doctrines of excessive force and qualified
immunity, as explicated by the Supreme Court, to achieve a result
that gives each of these competing concerns their due. We think
that our ruling today — which establishes in this circuit that a
- 38 -
jury could supportably find the use of a Taser to quell a
nonviolent, mentally ill person who is resisting arrest to be
excessive force — satisfies this exacting standard.
Affirmed.
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