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Civil rights - Police - Title II.

Byline: Mass. Lawyers Weekly Staff

Where a police officer used a Taser in attempting to regain custody of a mentally ill person who, after being involuntarily committed, absconded from a hospital, an award of summary judgment in favor of the officer and the town that employed him should be affirmed based on insufficient evidence that the officer acted with deliberate indifference to the risk of a violation of Title II of the Americans with Disabilities Act.

"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.

" Although a jury could supportably find on these facts that [defendant Thomas A.] Cummings reasonably believed that [plaintiff Judith] 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.

"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.

" 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.'

"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 persuasive authority to the contrary, we conclude that Cummings was entitled to qualified immunity.

"There is one last hill to climb: Gray's claim against the Town under the ADA.

"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.'

" 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.'

"The first question asks whether and to what extent Title II of the ADA applies to ad hoc police encounters. 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. 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. 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.' ... 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 notwithstanding such knowledge. ... 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.

"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. 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.

"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 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."

Gray v. Cummings, et al. (Lawyers Weekly No. 01-045-19) (39 pages) (Selya, J.) Appealed from the U.S. District Court for the District of Massachusetts. 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, were on brief, for the plaintiff-appellant; David W. Ogden, Daniel S. Volchok, Alexandra Stewart, Wilmer Cutler Pickering Hale & Dorr, Aaron M. Panner, Kellogg, Hansen, Todd, Figel & Frederick, Nathalie F.P. Gilfoyle, Deanne M. Ottaviano and Jennifer Mathis on brief for American Psychiatric Association, American Psychological Association, and 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 were on brief, for the defendants-appellees; Eric R. Atstupenas, Christopher J. Petrini, Peter L. Mello and Petrini & Associates 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) (Docket No. 18-1303) (Feb. 22, 2019).

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Title Annotation:Gray v. Cummings, U.S. Court of Appeals for the 1st Circuit
Publication:Massachusetts Lawyers Weekly
Date:Feb 27, 2019
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