COMMENTS
REMEDYING A PARTICULARIZED FORM OF DISCRIMINATION:
WHY DISABLED PLAINTIFFS CAN AND SHOULD BRING
CLAIMS FOR POLICE MISCONDUCT UNDER THE
AMERICANS WITH DISABILITIES ACT

RACHEL E. BRODIN

†

INTRODUCTION
On November 18, 2000, Ryan K. Schorr, a twenty-five-year-old who
suffered from bipolar disorder, was involuntarily committed to the
Holy Spirit Hospital in Camp Hill, Pennsylvania, after his family and
1
roommate noticed that his condition was deteriorating. Though
Schorr was placed in a high security room at the hospital, when a crisis
intervention worker opened his door to enter, he pushed past her and
2
escaped confinement. After Schorr answered his family’s phone call
3
to his apartment, his family informed the police of his whereabouts.
West Shore Regional Police Officers Harry Hart Jr. and Gary Berresford arrived at Schorr’s apartment and, after knocking on the door
and receiving no response, entered the residence through a partially
4
open back door. The officers found Schorr in his bedroom, where a

†

B.A. 2003, Harvard College; J.D. Candidate 2006, University of Pennsylvania Law
School. I would like to thank Professors Seth Kreimer, David Rudovsky, Michael Stein,
and Catherine Struve for their invaluable assistance; disability rights attorney Stephen
Gold for his insight; and the editors of the University of Pennsylvania Law Review for
their thoughtful feedback and skillful editing. I am also grateful to my father, Mark,
for his editing assistance, as well as my mother, Andrea, and sister, Laura, for their
help and support. All errors are mine alone.
1
Schorr v. Borough of Lemoyne (Schorr I ), 243 F. Supp. 2d 232, 233 (M.D. Pa.
2003); Kara McConnell, Judge Gives Green Light to Lawsuit, SENTINEL, Feb. 27, 2003,
http://www.cumberlink.com/articles/2003/02/27/news/news03.prt.
2
Schorr I, 243 F. Supp. 2d at 233.
3
Id.
4
Schorr v. Borough of Lemoyne (Schorr II ), 265 F. Supp. 2d 488, 490 (M.D. Pa.
2003); McConnell, supra note 1.

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5

violent confrontation ensued. Schorr shot at Berresford’s hand and
6
Hart struck Schorr with a baton; eventually Schorr fled the room.
The officers called for backup, but before assistance arrived, Schorr,
7
brandishing pots and pans, returned to the bedroom. Hart shot and
8
killed him. Schorr’s parents brought an action in their own right and
as representatives of their son’s estate against the police officers, the
9
police commission, and the chief of police.
The circumstances of Schorr’s death are, unfortunately, not
unique. There are a number of cases in which police officers, in attempts to apprehend people with mental disabilities, have injured or
killed them, even when the victim’s family or friend originally sum10
moned the officers to provide assistance.
However, what distinguishes the Schorrs’ case from the majority of excessive force cases is
that the Schorrs not only brought the usual claims for police miscon11
duct under Section 1983, but also sued the police commission under
12
the Americans with Disabilities Act (ADA) and the Rehabilitation
13
Act. The Schorrs alleged that the police commission violated their
5

Schorr II, 265 F. Supp. 2d at 490.
Id.
7
Id.
8
Id.
9
Id.
10
See, e.g., Neuburger v. Thompson, 124 F. App’x 703, 704 (3d Cir. 2005) (discussing a woman’s shooting death by police who were called in an attempt to prevent her
suicide); Clem v. Corbeau, 98 F. App’x 197, 199-200 (4th Cir. 2004) (per curiam) (discussing an excessive force claim by a plaintiff whose wife called police when he would
not eat or take his medication and who was subsequently shot three times by an officer); Thompson v. Williamson County, 219 F.3d 555, 556 (6th Cir. 2000) (providing
the factual background of a case in which a mentally disabled man was shot and killed
by police); see also Michael Avery, Unreasonable Seizures of Unreasonable People: Defining the
Totality of Circumstances Relevant to Assessing the Police Use of Force Against Emotionally Disturbed People, 34 COLUM. HUM. RTS. L. REV. 261, 331 (2003) (“Sometimes . . . incidents
[with mentally ill individuals] become confrontational and escalate to a violent conclusion, ending with the serious injury or death of the disturbed person.”). See generally
Jennifer Fischer, Student Article, The Americans with Disabilities Act: Correcting Discrimination of Persons with Mental Disabilities in the Arrest, Post-Arrest, and Pretrial Processes, 23
LAW & INEQ. 157, 195 (2005) (“A lack of community-based treatment alternatives and
law enforcement’s inability to appropriately respond to persons with a mental illness
through appropriate policies and programs result in the unjustified institutionalization
of persons with a mental illness in jails and prisons, and too often result in their
deaths.”).
11
42 U.S.C. § 1983 (2000).
12
42 U.S.C. §§ 12101-12213 (2000).
13
29 U.S.C. § 794(a) (2000). Claims under the ADA and the Rehabilitation Act
pertaining to police officers’ actions in effecting an arrest are similar in substance and
are often treated by courts as interchangeable. Therefore, references to the ADA
6

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son’s right to be free from discrimination on the basis of disability by
“failing to make reasonable modifications to [its] policies, practices
and procedure to ensure that his needs as an individual with a disabil14
15
ity would be met,” in violation of Title II of the ADA. The court
16
agreed that the Schorrs could state a claim under Title II, as well as
17
under Section 1983.
While the court’s decision in Schorr I was a significant step toward
18
acceptance of the ADA’s application to law enforcement activities, it
was not the first judicial opinion to espouse such a notion. As early as
1998, courts began laying the foundation for claims of police miscon19
duct under Title II. The United States Supreme Court has not yet
ruled on the applicability of Title II to police actions in effecting an
20
arrest, and historically the circuit courts have been split on the ques21
tion. However, in many jurisdictions plaintiffs can now bring ADA

throughout this Comment should be read to include Section 504 of the Rehabilitation
Act. See infra Part III.C for a discussion of the similarities and differences between the
two actions.
14
Schorr I, 243 F. Supp. 2d 232, 234 (M.D. Pa. 2003) (internal quotation marks
omitted).
15
Title II provides: “Subject to the provisions of this [title], 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 (2000).
16
See Schorr I, 243 F. Supp. 2d at 239 (“[I]t is clear to this Court that Plaintiffs have
stated a claim under the ADA.”).
17
See id. at 234 (characterizing plaintiffs’ Section 1983 claim as a Fourteenth
Amendment substantive due process claim and denying defendants’ motion to dismiss
on that count).
18
See McConnell, supra note 1 (noting that Judge Kane, who presided over the
Schorrs’ case, was “one of the first judges to recognize that how police respond to people with disabilities depends on their training”).
19
See Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 210-11 (1998) (broadly construing
Title II’s phrase “programs, services, or activities” and holding that prisoners could fall
within the category of “qualified individual[s] with a disability”); Gorman v. Bartch,
152 F.3d 907, 913 (8th Cir. 1998) (holding that a disabled arrestee’s claim against police officers fell within the ADA).
20
For the purposes of this Comment, I will use the term “arrest” broadly to refer
to any action by a police officer detaining or incarcerating an individual. Accord Gohier v. Enright, 186 F.3d 1216, 1220 n.2 (10th Cir. 1999) (“This opinion broadly uses
the term ‘arrest’ to include several different scenarios: arrests[,] investigations potentially involving an arrest, . . . and violent confrontations not technically involving an
arrest . . . .”).
21
See Hainze v. Richards, 207 F.3d 795, 801 (5th Cir. 2000) (holding that while
Title II does not apply to police officers’ “on-the-street” responses to disturbances,
once an area is secure and there is no threat to human safety, the officers must reasonably accommodate a suspect’s disability); Gohier, 186 F.3d at 1221 (“[A] broad rule
categorically excluding arrests from the scope of Title II . . . is not the law.”); Gorman,

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claims pertaining to police misconduct and realistically believe that
22
they have a chance for recovery.
23
The growing possibility that disabled plaintiffs can bring claims
for police misconduct under Title II has significant benefits for the
practice of civil rights law in this country. The traditional route for
police misconduct lawsuits, Section 1983, presents many obstacles to
24
25
success for both disabled plaintiffs and the general population.
Any alternative means of bringing a subset of civil rights cases—even
one that is limited to a specific group of plaintiffs (disabled persons)
and a specific type of claim (police misconduct)—should not be ignored.
This Comment will explore courts’ treatment of actions for police
misconduct under Title II and the contours of the decisional law in
that area. Part I will discuss the theoretical bases for application of
the ADA to arrests, namely the wrongful arrest theory and the reasonable accommodation theory. Part II will analyze the case law that has
arisen out of plaintiffs’ attempts to bring claims for police misconduct
under Title II. Part II will also demonstrate how initial assumptions
that lower courts made about the applicability of the ADA to such lawsuits—which prevented them from allowing the claims to go for152 F.3d at 912 (holding that plaintiff’s claims pertaining to police officers’ actions in
transporting him to the police station after an arrest fit within the meaning of the
ADA); Rosen v. Montgomery County, 121 F.3d 154, 157 (4th Cir. 1997) (“The most
obvious problem is fitting an arrest into the ADA at all.”); see also McConnell, supra
note 1 (noting that historically the circuit courts have been split on whether the ADA
applies to police activities). See generally Thompson v. Davis, 295 F.3d 890, 897-98 (9th
Cir. 2002) (surveying cases pertaining to ADA application to police activities).
22
See infra Part II.C (discussing recent cases ruling on claims of police misconduct
under the ADA).
23
This Comment will focus mainly on actions by individuals with mental or emotional disabilities because they are frequently subject to interaction with the police. See
Avery, supra note 10, at 262-63 (“[I]n medium and large cities nationwide, police departments estimate that an average of approximately seven percent of police calls involve mentally ill people.”). However, in analyzing the decisional law surrounding the
ADA, I will also discuss cases involving plaintiffs who suffer from a variety of other disabilities, including deafness, paraplegia, and physical difficulties resulting from a
stroke. The type of disability in an individual case is often relevant to the question of
whether the police officers were aware of the plaintiff’s disability because individuals
with mental and emotional disabilities may be less likely to inform the officers of their
disability, and the disability itself may not be immediately apparent to the officer. See
infra note 173 for a discussion of the knowledge requirement under Title II.
24
See Avery, supra note 10, at 265-66 (discussing mentally disabled plaintiffs’ difficulties in proving claims against police officers under Section 1983).
25
See Erwin Chemerinsky, Closing the Courthouse Doors to Civil Rights Litigants, 5 U.
PA. J. CONST. L. 537, 538 (2003) (noting that the Rehnquist Court ruled against plaintiffs in the “overwhelming majority” of civil rights cases).

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ward—were discredited by the Supreme Court in Pennsylvania Depart26
ment of Corrections v. Yeskey, leaving the path clear for acceptance of
Title II in the law enforcement context. Part III addresses the question of why a disabled plaintiff should bring ADA claims for civil rights
violations when the traditional remedy is an action under Section
1983. Part III will also compare the obstacles to recovery under each
claim and will attempt to determine under what circumstances an
ADA claim might succeed even when a parallel Section 1983 action
would likely fail. In addition, Part III will describe the distinction between the ADA and the Rehabilitation Act and the advantages and
disadvantages of pleading a parallel claim under the Rehabilitation
Act in addition to an ADA claim. Finally, Part III will provide reasons,
beyond strategic benefits, for disabled plaintiffs to plead claims in addition to the usual Section 1983 claims. In conclusion, this Comment
will bring together two strands of argument—the feasibility of ADA
claims for police misconduct and the desirability of those actions over
the traditional civil rights claims—to demonstrate that there are important practical and symbolic reasons for plaintiffs to plead their disability claims under the ADA.
I. THEORETICAL BASES FOR APPLYING THE ADA TO ARRESTS:
WRONGFUL ARREST THEORY AND REASONABLE
ACCOMMODATION THEORY
Courts have developed two different theories under which a plaintiff may state an ADA claim based on police officers’ actions in effect27
ing an arrest. The “wrongful arrest theory” applies when police officers have “wrongly arrested someone with a disability because they
28
misperceived the effects of that disability as criminal activity.”
A
claim under the “reasonable accommodation theory,” on the other

26

524 U.S. 206 (1998).
Although courts have analyzed ADA claims according to these theories for over
ten years, it appears that no court had articulated the terms “wrongful arrest theory”
and “reasonable accommodation theory” in reference to the analysis of an ADA claim
pertaining to police officer action until Gohier v. Enright, 186 F.3d 1216, 1220 (10th Cir.
1999). See Jackson v. Inhabitants of Sanford, Civ. No. 94-12-P-H, 1994 WL 589617, at *6
(D. Me. Sept. 23, 1994) (allowing the plaintiff’s claim to proceed because the ADA
precludes discriminatory and “unjustified arrests” of disabled persons, but not specifically applying the wrongful arrest theory); see also Anthony v. City of New York, No. 00
Civ. 4688(DLC), 2001 WL 741743, at *11 (S.D.N.Y. July 2, 2001) (citing Jackson and
other ADA cases from the 1990s as illustrations of the wrongful arrest theory and the
reasonable accommodation theory), aff’d, 339 F.3d 129 (2d Cir. 2003).
28
Gohier, 186 F.3d at 1220.
27

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hand, posits that even though police officers properly investigated and
arrested a person with a disability, 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
29
than other arrestees.” In addition, there are cases that fall in between the two theories, to which courts have generally declined to ap30
ply Title II.
A. Wrongful Arrest Theory
A plaintiff has a valid claim under the wrongful arrest theory if police officers have arrested her because of lawful actions that she has
taken as result of her disability. The paradigm case illustrating this
31
theory is Lewis v. Truitt. In Lewis, three police officers went to plaintiff Charles Lewis’s home in order to take his granddaughter to police
32
headquarters to resolve a custody dispute. The officers attempted to
speak with Lewis, even though other people present at the house had
told the officers that Lewis was deaf and that the best way to commu33
nicate with him was by writing questions down on a piece of paper.
The officers proceeded to enter the plaintiff’s home and “physically
assault[]” him, causing “bruises, contusions, and severe internal inju34
ries.” They eventually arrested him and charged him with resisting
35
law enforcement. Lewis filed an action against the officers and the
city under the ADA, and the court partially denied defendants’ motion for summary judgment on the claim, stating that “a genuine issue
of material fact exists on the question of whether Defendants arrested
36
Plaintiff because of his disability.”
Courts have similarly allowed ADA claims to go forward based on
allegations of wrongful arrest as the result of other disabilities. In
Jackson v. Inhabitants of Sanford, plaintiff Roland Jackson argued that

29

Id. at 1220-21.
See, e.g., id. at 1221 (affirming summary judgment on the ADA claim because
the case was “logically intermediate between” the wrongful arrest theory and the reasonable accommodation theory).
31
960 F. Supp. 175 (S.D. Ind. 1997).
32
Id. at 176.
33
Id.
34
Id.
35
Id. at 177.
36
Id. at 179 (emphasis added). The case was settled a month after the court’s ruling on summary judgment. Docket at entry 51, Lewis v. Truitt, No. IP96-C-0411-H/G
(S.D. Ind. Apr. 22, 1997) (PACER).
30

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he was arrested because of symptoms that he suffered after a stroke
and that the Town of Sanford had failed to train its police officers to
recognize such symptoms and to modify its policies, practices, and
37
procedures to prevent discriminatory treatment of the disabled.
Jackson had been arrested for driving under the influence of intoxicating liquor and/or drugs after a police officer noticed that he was
“unsteady on his feet, swayed noticeably, slurred his speech, and ap38
peared confused.” Even though Jackson informed the officer that
he was not drunk and that he had suffered a brain aneurysm that left
him with physical difficulties, the officer insisted that Jackson perform
39
sobriety tests.
After Jackson could not satisfactorily complete the
40
tests due to his physical disabilities, the officer arrested him. The
court denied the town’s motion for summary judgment on the ADA
41
claims.
Although few judges have specifically recognized the existence of
the wrongful arrest theory in their rulings on plaintiffs’ ADA claims
for police misconduct, the idea behind the wrongful arrest theory—
that police officers violate the ADA when they arrest a disabled individual because of actions that the individual was engaged in due to
42
her disability—has been espoused by courts in a number of circuits.

37

Jackson v. Inhabitants of Sanford, Civ. No. 94-12-P-H, 1994 WL 589617, at *1, 6
(D. Me. Sept. 23, 1994).
38
Id. at *1.
39
Id.
40
Id.
41
Id. at *6. Within a few days of the summary judgment ruling, the case settled for
between $25,000 and $50,000. Telephone Interview with Ronald D. Bourque, Bourque
& Clegg, LLC, Attorney for Roland Jackson, in Sanford, Me. (May 18, 2005). Under
the terms of the settlement, the town had to review its policies and procedures to make
sure that it did not discriminate against people with disabilities. Brent Macey, Sanford
Settles Suit Over Arrest of Disabled Man, PORTLAND PRESS HERALD, Sept. 30, 1994, at 1A.
In addition, the town’s police officers had to receive “adequate training to enable
them to distinguish between symptoms of disabilities and criminal activity.” Id.
42
See, e.g., Gohier v. Enright, 186 F.3d 1216, 1220 (10th Cir. 1999) (discussing the
wrongful arrest theory); Schorr I, 243 F. Supp. 2d 232, 237-38 (M.D. Pa. 2003) (noting
the magistrate judge’s analysis of the application of the wrongful arrest theory to plaintiffs’ claim); McCray v. City of Dothan, 169 F. Supp. 2d 1260, 1276 (M.D. Ala. 2001)
(noting the plaintiff’s attempted recovery under the wrongful arrest theory), aff’d in
part, rev’d in part, No. 01-15756-DD, 2003 WL 23518420 (11th Cir. Apr. 24, 2003); Anthony v. City of New York, No. 00 Civ. 4688(DLC), 2001 WL 741743, at *11 (S.D.N.Y.
July 2, 2001) (discussing several cases involving the wrongful arrest theory).

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B. Reasonable Accommodation Theory
While the wrongful arrest theory applies when an arrest results
from an individual’s disability, the reasonable accommodation theory
applies when there is a legitimate basis for the arrest, but in making
that arrest the police officers do not take steps to reasonably accommodate the plaintiff’s disability. Even though a number of courts have
noted their preference for the wrongful arrest theory over the reasonable accommodation theory, with some even stating that only claims
43
under the former are viable, recent developments in Title II juris44
prudence have opened the door to plaintiffs’ arguments under the
reasonable accommodation theory.
In Rosen v. Montgomery County, plaintiff Jeffrey Rosen presented a
Title II claim under the reasonable accommodation theory, contending that police officers made no attempt to accommodate his deafness
45
when they took him into custody after his arrest for drunk driving.
According to Rosen, the officers did not attempt to communicate with
him in writing and they “ignored his requests for an interpreter and
46
for a TTY telephone so he could call a lawyer.” The court rejected
Rosen’s ADA claims and affirmed the district court’s grant of summary judgment to the defendants based on a “lack of any discernible
47
injury” that Rosen may have suffered.
Even though its decision
rested on the lack of injury, the court made clear its reservations
about applying the ADA in such a situation. Declaring that the “most
obvious problem” with the plaintiff’s claim was “fitting an arrest into
48
the ADA at all,” the court went on to limit the duties that police officers owe to suspects before arriving at the stationhouse: “The police
43

See, e.g., Patrice v. Murphy, 43 F. Supp. 2d 1156, 1159 (W.D. Wash. 1999)
(“Where plaintiffs have argued that an arrest was a type of service, program or activity
from which he has [sic] been excluded or denied the benefits, . . . there is no ADA
claim . . . . Where a plaintiff alleges that he was arrested because of his disability[,] . . .
an ADA claim should lie.”); Gorman v. Bartch, 925 F. Supp. 653, 655 (W.D. Mo. 1996)
(“[H]ad Plaintiff been arrested because he was handicapped, his arguments would
more clearly satisfy the statutory requirements.”), aff’d in part, rev’d in part, 152 F.3d 907
(8th Cir. 1998).
44
See infra Part II.B (presenting recent court decisions supporting the proposition
that the ADA applies to law enforcement activity).
45
121 F.3d 154, 156 (4th Cir. 1997).
46
Id.
47
Id. at 158. The plaintiff had claimed that the injury that he suffered was humiliation and embarrassment. Id. at 157. However, the court rejected this argument
because “these are emotions experienced by almost every person stopped and arrested
for drunk driving.” Id. at 158.
48
Id. at 157.

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do not have to get an interpreter before they can stop and shackle a
fleeing bank robber, and they do not have to do so to stop a suspected
49
drunk driver, conduct a field sobriety test, and make an arrest.”
Four years later, however, in McCray v. City of Dothan, a district
court in Alabama allowed a deaf plaintiff’s ADA claim to go forward
under the reasonable accommodation theory, based on the officers’
failure to provide an interpreter during the interrogation and after
50
the arrest.
The officers had been attempting to interrogate the
plaintiff about a private property traffic accident. When one of the
officers refused to communicate by handwritten notes with the plaintiff, the incident escalated into a confrontation and the officers alleg51
edly assaulted the plaintiff and arrested him. The court held that
under the circumstances, the police were “under an obligation under
52
the ADA to accommodate in effecting arrest activities,” and that the
appropriateness of the officers’ attempts at reasonable accommoda53
tion were disputed issues of material fact.
Like the wrongful arrest theory, the reasonable accommodation
theory has often guided the determinations of courts in principle even
54
when the courts did not cite the theory by name. Even though it appears that these claims are less successful than claims under the
wrongful arrest theory because of some courts’ reluctance to find such
55
actions cognizable under the ADA, a number of courts throughout
the country have sustained plaintiffs’ Title II claims on reasonable ac56
commodation grounds.

49

Id. at 158.
169 F. Supp. 2d 1260, 1272-76 (M.D. Ala. 2001), aff’d in part, rev’d in part on other
grounds, No. 01-15756-DD, 2003 WL 23518420 (11th Cir. Apr. 24, 2003). The district
court also denied the defendants’ motion for summary judgment on wrongful arrest
theory grounds. Id. at 1276.
51
Id. at 1269-70.
52
Id. at 1275.
53
Id. at 1276. The parties in McCray ultimately agreed on a settlement in the
amount of $575,000, the majority of which was for attorneys’ fees. Telephone Interview with the Office of Bobbie Crook, Esq., Attorney for Douglas McCray, in Dothan,
Ala. (May 18, 2005).
54
See cases cited supra note 27 (providing instances in which courts have described
the wrongful arrest theory without articulating it by name).
55
See cases cited supra note 43 (noting decisions that refused to recognize ADA
claims based on the reasonable accommodation theory).
56
See, e.g., Gorman v. Bartch, 152 F.3d 907, 913 (8th Cir. 1998) (allowing the
plaintiff’s claim that the officers failed to reasonably accommodate his disability when
transporting him to the police station), rev’g 925 F. Supp. 653 (W.D. Mo. 1996); Schorr
I, 243 F. Supp. 2d 232, 238-39 (M.D. Pa. 2003) (rejecting the magistrate judge’s con50

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C. In Between the Two Theories
Because the wrongful arrest theory and the reasonable accommodation theory each apply only to a subset of possible Title II claims
pertaining to police officers’ actions in effecting the arrest of a disabled individual, it is not surprising that there are cases that do not fit
neatly into either of the theories. In Gohier v. Enright, a police officer
was responding to reported disturbances when he saw the plaintiff’s
57
decedent, Michael Lucero, walking down the street. Lucero did not
58
match the description of the man for whom the officer was looking.
The police officer nevertheless got out of his car and approached
Lucero, who suffered from schizophrenia, and a confrontation en59
sued, prompting the officer to draw his pistol. Lucero did not respond to the officer’s order to show his hands and instead, while holding a “long, slender object that [the officer] thought was a knife,”
60
advanced on the officer. When Lucero reached the officer’s car he
“either stepped or lunged toward [the officer], making a stabbing mo61
62
tion with the object.” The officer shot him twice, killing him. The
Tenth Circuit affirmed the district court’s grant of summary judgment
and held that the circumstances leading to Lucero’s death created an
ADA claim that was “logically intermediate between the two archetypes envisioned” by the wrongful arrest theory and the reasonable ac63
commodation theory. The officer was not using force on Lucero because the officer “misconceived the lawful effects of [Lucero’s]
disability as criminal activity”; also, the officer did not “fail to accommodate Lucero’s disability while arresting him for ‘some crime unre64
lated to his disability.’” Rather, the court reasoned, the officer used
force because Lucero’s conduct was not lawful.
clusion that the reasonable accommodation theory did not apply to the plaintiffs’ action).
57
186 F.3d 1216, 1217 (10th Cir. 1999).
58
Id..
59
Id. at 1217-18.
60
Id. at 1218.
61
Id.
62
Id.
63
Id. at 1221.
64
Id. (quoting Patrice v. Murphy, 43 F. Supp. 2d 1156, 1159 (W.D. Wash. 1999)).
Not all courts have read into the reasonable accommodation theory the requirement
that the reason for the apprehension of the plaintiff (or the plaintiff’s decedent) must
be unrelated to her disability. See, e.g., Schorr I, 243 F. Supp. 2d 232, 233, 238-39 (M.D.
Pa. 2003) (allowing an ADA claim to go forward based on the shooting death of plaintiffs’ decedent that occurred as police officers were trying to apprehend him after he
escaped from a high security room at a hospital). It is also important to note that the

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Courts’ receptiveness to plaintiffs’ actions for police misconduct
under Title II generally appears to be limited to claims under either
the wrongful arrest theory or the reasonable accommodation theory.
While judges have allowed a fair number of such claims to go for65
ward, Gohier suggests that plaintiffs who are arrested for engaging in
illegal activity (such as assaulting a police officer) related to their disability may fall into a gap between the two theories. As a result, these
plaintiffs may be unable to state an ADA claim even if the officers did
not reasonably accommodate the disability in effecting the arrest.
II. DISCARDING OLD ASSUMPTIONS:
MAKING WAY FOR APPLICATION OF THE ADA TO ARRESTS
66

Prior to 1998, cases interpreting the ADA usually rejected claims
67
by plaintiffs who sought to apply Title II to police activities. Strictly
construing the provisions of the statute, courts made several assumptions as to the intent of the ADA’s framers and the limited situations
in which the provisions of Title II would apply: (1) an arrestee or
prisoner is not a “qualified individual” under the ADA because “[t]he
terms ‘eligible’ and ‘participate’ imply voluntariness on the part of
68
[the plaintiff];” (2) the phrase “benefits of the services, programs, or
69
activities” does not apply to services, programs, or activities that are
70
not traditionally thought of as “benefiting” an individual; and (3)

Gohier court acknowledged that the plaintiff might have stated a valid Title II claim under the reasonable accommodation theory if he had argued that Title II required the
city to “better train its police officers to recognize reported disturbances that are likely
to involve persons with mental disabilities, and to investigate and arrest such persons in
a manner reasonably accommodating their disability.” Gohier, 186 F.3d at 1222.
65
See supra notes 42, 56 (citing cases in which courts have referred to the wrongful
arrest theory or the reasonable accommodation theory).
66
The year 1998 marked a turning point in courts’ acceptance of ADA claims relating to law enforcement activities because of the Court’s decision in Pennsylvania Department of Corrections v. Yeskey, 524 U.S. 206 (1998). See infra Part II.B (discussing the
impact of the Yeskey decision).
67
See infra Part II.A (discussing Gorman v. Bartch, 925 F. Supp. 653 (W.D. Mo.
1996), and Rosen v. Montgomery County, 121 F.3d 154 (4th Cir. 1997), two pre-1998 cases
in which courts refused to apply Title II to police activities).
68
Gorman, 925 F. Supp. at 656, aff’d in part, rev’d in part on other grounds, 152 F.3d
907 (8th Cir. 1998).
69
See 42 U.S.C. § 12132 (2000) (“[N]o 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 . . . .” (emphasis added)).
70
See Gorman, 925 F. Supp. at 656 (holding that criminal suspects who are being
held against their will do not count as applicants who are seeking a benefit from the

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the framers of the ADA did not intend for Title II to apply to arrestees
71
and prisoners. Courts generally did not question these assumptions
72
for the first eight years that the ADA was in effect. However, in the
late 1990s, encouraged by the Supreme Court’s opinion in Pennsyl73
vania Department of Corrections v. Yeskey, courts began to challenge,
and eventually discard, all three of these assumptions.
A. Who Is a “Qualified Individual with a Disability”?:
Old Assumptions About Title II
The decision of the district court in Gorman v. Bartch illustrates the
early limitations imposed on Title II application to police activities.
Plaintiff Jeffrey Gorman was arrested outside a bar in Kansas City
while he attempted to obtain assistance from two police officers after
74
he had been asked to leave the bar. Gorman suffered from paraplegia resulting from a severe spinal cord injury and was confined to a
75
wheelchair. However, the police van that the officers used to transport Gorman to the station lacked the equipment necessary for carry76
ing a person in a wheelchair. As a result, the officers took Gorman
out of his wheelchair, lifted him onto a bench within the van, and
77
used his belt to tie him to the wall behind the bench. During the
state); see also Rosen, 121 F.3d at 157 (“[C]alling a drunk driving arrest a ‘program or
activity’ . . . strikes us as a stretch of the statutory language . . . .”).
71
See Gorman, 925 F. Supp. at 655 (“The term ‘qualified individual’ was specifically
defined by Congress to describe a person who meets eligibility requirements for
the . . . participation in programs. It strains the statute to talk about Plaintiff’s ‘eligibility’ to be arrested . . . or to ‘participate’ in being arrested . . . .”).
72
See, e.g., Torcasio v. Murray, 57 F.3d 1340, 1347 (4th Cir. 1995) (holding that it
was not clearly established that the ADA applied to prisoners); Gorman, 925 F. Supp. at
658 (granting the defendants’ motion for summary judgment on arrestee’s ADA
claims). But see Jackson v. Inhabitants of Sanford, Civ. No. 94-12-P-H, 1994 WL 589617,
at *6 (D. Me. Sept. 23, 1994) (concluding that the ADA “clearly appli[ed]” to the
plaintiff’s claim for police misconduct).
73
524 U.S. 206 (1998). For a detailed discussion of Yeskey and its impact on Title
II cases, see infra text accompanying notes 91-98.
74
925 F. Supp. at 654. The circuit court opinion provides additional detail as to
the facts surrounding the incident. Gorman became involved in a disagreement at a
Kansas City bar called “Guitars and Cadillacs.” Gorman v. Bartch, 152 F.3d 907, 909
(8th Cir. 1998). Gorman started to descend the steps to the dance floor, and a bar
employee told him that he could not go onto the dance floor. Id. When Gorman protested, the employee threw him out of the bar, and the employees at the door denied
him readmission. Id. Gorman approached two police officers to solicit their help and
ended up arguing with them. Id. They arrested him for trespassing. Id.
75
Gorman, 925 F. Supp. at 654.
76
Id.
77
Id.

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trip to the station, the belt broke and Gorman fell from the bench,
78
suffering injuries to his back and shoulders.
In addition, the fall
79
broke Gorman’s urine bag, leaving him soaked in his own urine.
Gorman filed an ADA claim against the police officer who drove
80
the van, the police chief, and the police commissioners. He alleged
that the police commissioners had failed 1) to provide a proper transportation vehicle for individuals suffering from his disability, 2) to
modify department policies and procedures dealing with arrest and
transportation of such individuals, and 3) to establish proper training
81
for police officers on how to handle disabled arrestees. Examining
the language of Title II, the district court acknowledged that the Kansas City Police Department constituted a public entity and that Gorman was disabled, but rejected the claim that the plaintiff was consid82
ered a “qualified individual with a disability,” as required by Title
83
II. The court explained that the statute’s use of the term “eligibility”
84
in the definition of a “qualified individual” prevented Title II from
applying to arrestees: “It strains the statute to talk about Plaintiff’s
‘eligibility’ to be arrested and taken to jail or to ‘participate’ in being
85
arrested . . . .” The court further noted that the words “‘eligible’ and
‘participate’ imply voluntariness on the part of an applicant who seeks
a benefit from the state,” and do not apply to criminal suspects “who
86
are being held against their will.”
The court therefore granted
summary judgment to the defendants, holding that the ADA was not
87
applicable to Gorman’s case.
Other courts based their refusal to apply Title II to arrestees or
prisoners on the language of the statute and the intent of its framers.
The court in Rosen v. Montgomery County held that calling an arrest a
78

Id.
152 F.3d at 910. The police officers had denied Gorman’s request to use the
bathroom before the trip to the station. Id. at 909.
80
Id. at 910.
81
Id.; 925 F. Supp. at 654-55.
82
925 F. Supp. at 655.
83
42 U.S.C. § 12132 (2000) (“[N]o 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 . . . .”).
84
See 42 U.S.C. § 12131(2) (2000) (“The term ‘qualified individual with a disability’ means an individual with a disability who . . . meets the essential eligibility requirements for the receipt of services or the participation in programs or activities
provided by a public entity.”).
85
925 F. Supp. at 655.
86
Id. at 656 (quoting Torcasio v. Murray, 57 F.3d 1340, 1347 (4th Cir. 1995)).
87
Id.
79

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“program or activity” was “a stretch of the statutory language and of
88
the underlying legislative intent.” The court noted that the plaintiff
had not pointed to any language in the ADA that specifically brought
89
arrests within its ambit. Even courts that acknowledged early on that
prison activities could fall under Title II were hesitant about the idea
90
of viewing an arrest itself as a “program or activity.”
B. Pennsylvania Department of Corrections v. Yeskey:
A Broader Reading of Title II
The Supreme Court’s decision in Pennsylvania Department of Correc91
tions v. Yeskey firmly disposed of the assumptions that had prevented
the lower courts from applying the ADA to police actions. Though
92
Yeskey dealt with ADA claims in the context of state prison programs,
the decision also served to question the foundations of the arguments
against the application of Title II to arrests. First addressing the argument that Yeskey was not a “qualified individual with a disability,”
the Court pointed out that the definition in the statute included anyone with a disability, without exceptions for prisoners or suspected
93
criminals.
Further, the Court rejected the Department of Corrections’ argument that the words “eligibility” and “participation” implied voluntariness on the part of the individual seeking the benefit
from the government and therefore did not apply to prisoners who
94
were being held against their will.
Justice Scalia, writing for a
unanimous Court, argued that this assumption was wrong for two rea88

121 F.3d 154, 157 (4th Cir. 1997).
Id.
90
See, e.g., Armstrong v. Wilson, 124 F.3d 1019, 1023 (9th Cir. 1997) (stating that
an educational program in a prison is considered a “program or activity” even though
incarceration itself is not); Crawford v. Ind. Dep’t of Corr., 115 F.3d 481, 483 (7th Cir.
1997) (“Incarceration itself is hardly a ‘program’ or ‘activity’ to which a disabled person might wish access, but there is no doubt that an educational program is a program,
and when it is provided by and in a state prison it is a program of a public entity.” (internal citation omitted)).
91
524 U.S. 206 (1998). Ronald Yeskey was a prisoner who was denied admission
to a prison boot camp. Id. at 208. Yeskey was recommended for placement in a Motivational Boot Camp for first-time offenders, which, if successfully completed, would
have allowed him to receive early parole. Id. However, he was refused admission because of a medical history of hypertension. Id.
92
See id. at 213 (“[T]he ADA unambiguously extends to prison inmates.”).
93
Id. at 210; see 42 U.S.C. § 12131(2) (2000) (defining a “qualified individual with
a disability” as a person who, “with or without reasonable modifications to rules, policies, or practices . . . meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity”).
94
524 U.S. at 211.
89

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sons: first, the words did not necessarily connote voluntariness, and
second, even if the words did connote voluntariness, participation in
95
prison activities such as the boot camp was voluntary. Although the
second justification for the Court’s argument does not apply in the arrest context, where participation is almost always involuntary, the
Court’s unanimous declaration that the language of Title II did not
require voluntariness destroyed a significant obstacle to plaintiffs’
ADA claims pertaining to arrests.
The Yeskey Court also responded to the argument, which had frequently appeared in response to both prison and arrest-related ADA
claims, that the language of the ADA did not specifically mention
96
prisoners or arrestees in its statement of findings and purpose. Stating that the contention that no reference to penal institutions appeared in the ADA was “questionable” to begin with, the Court found
that even if Congress did not envision that the ADA would apply to
prisoners, “in the context of an unambiguous statutory text that is ir97
relevant.” The Court explained that “the fact that a statute can be
‘applied in situations not expressly anticipated by Congress’” demon98
strates breadth rather than ambiguity.
Lower courts soon followed the lead of the Yeskey Court in construing the ADA to apply to police officers’ actions. In Patrice v. Murphy, the court found support in the legislative history of the ADA “for
the proposition that, at least in some circumstances, an arrest may
99
trigger the protections of the ADA.” The court cited a House Judiciary Committee report on the ADA:
In order to comply with the non-discrimination mandate, it is often necessary to provide training to public employees about disability. For example, persons who have epilepsy, and a variety of other disabilities, are
frequently inappropriately arrested and jailed because police officers
have not received proper training in the recognition of and aid [for] sei-

95

Id.
Lower courts had, on occasion, already acknowledged the ADA’s applicability to
claims against arresting police officers. See, e.g., Jackson v. Inhabitants of Sanford, Civ.
No. 94-12-P-H, 1994 WL 589617, at *6 (D. Me. Sept. 23, 1994) (“The legislative history
of the ADA demonstrates that Congress was concerned with unjustified arrests of disabled persons such as [plaintiff] alleges here.”).
97
Yeskey, 524 U.S. at 211-12.
98
Id. at 212 (quoting Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 499 (1985)).
99
43 F. Supp. 2d 1156, 1159 (W.D. Wash. 1999).
96

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zures. Such discriminatory treatment based on disability can be avoided
100
by proper training.

In addition, another court noted that the “broad language” of the
ADA and the “absence of any stated exceptions” to its reach suggested
101
that Title II could apply to areas involving law enforcement.
Lower courts were also able to rely on the statutory analysis of the
ADA that the Third Circuit elucidated in Yeskey, and which the Su102
preme Court affirmed. The court in Yeskey noted that Congress had
instructed that Title II be interpreted in a manner consistent with the
103
Rehabilitation Act, and the statutory definition of “program or activity” under the Rehabilitation Act “indicate[d] that the terms were in104
tended to be all-encompassing.” Additionally, the court emphasized
the provision of the Rehabilitation Act that stated that “program or
activity” was to include “‘all of the operations of . . . a department,
agency, special purpose district, or other instrumentality of a State or
105
of a local government.’”
The Third Circuit opinion in Yeskey also looked to the relevant
106
Department of Justice regulations.
The regulations defined
“[b]enefit” as including the “provision of services, financial aid or disposition (i.e., treatment, handling, decision, sentencing, confinement,
107
or other prescription of conduct).”
In addition, the regulations as-

100

Id. (quoting H.R. Rep. No. 101-485, pt. III, at 50 (1990), as reprinted in 1990
U.S.C.C.A.N. 267, 473); see also 136 CONG. REC. E1913, 1916 (1990) (statement of Rep.
Hoyer) (“[Title II] includes providing training to public employees in order to ensure
that discriminatory actions do not occur. For example, persons who have epilepsy are
sometimes inappropriately arrested because police officers have not received proper
training to recognize seizures and to respond to them.”); SUSAN STEFAN, UNEQUAL
RIGHTS: DISCRIMINATION AGAINST PEOPLE WITH MENTAL DISABILITIES AND THE
AMERICANS WITH DISABILITIES ACT 99 (2001) (“Police practices, specifically mentioned
by Congress in its legislative history of ADA, are of particular concern to people with
psychiatric disabilities, who are killed and injured by the police at an astonishing
rate.”).
101
Hainze v. Richards, 207 F.3d 795, 799 (5th Cir. 2000).
102
Yeskey v. Pa. Dep’t of Corr., 118 F.3d 168, 170-72 (3d Cir. 1997) (construing
Section 504 and Title II broadly enough to apply to correctional facilities), aff’d, 524
U.S. 206 (1998).
103
For a discussion of the Rehabilitation Act, see infra Part III.C.
104
Yeskey, 118 F.3d at 170.
105
Id. (quoting 29 U.S.C. § 794(b) (1994)).
106
28 C.F.R. § 35.190(b)(6) (2004); 28 C.F.R. § 42.540(j) (2004). The regulations
were promulgated in response to the express authorization by Congress in both the
ADA, 42 U.S.C. § 12134(a) (2000), and the Rehabilitation Act, 29 U.S.C. § 794(a)
(2000).
107
28 C.F.R. § 42.540(j) (2004).

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signed to the Department of Justice the responsibility of coordinating
compliance with the ADA for “[a]ll programs, services, and regulatory
activities relating to law enforcement, public safety, and the administration of justice, including courts and correctional institutions . . .
[and] all other government functions not assigned to other desig108
nated agencies.”
Such regulations provided strong support for the
court’s position that the ADA applied to law enforcement activity.
C. An Open Road for Title II Plaintiffs?
With the Supreme Court rejecting the traditional arguments
against application of the ADA to law enforcement activities, and the
lower courts beginning to accept a broad reading of Title II, the
courthouse door appears to be open for disabled plaintiffs to bring
ADA claims arising from police misconduct. Of the courts that have
recently ruled on such claims, district or appellate courts in five cir109
cuits have made favorable rulings. However, the path is not entirely
clear for ADA plaintiffs. Courts in several other circuits have rejected
110
plaintiffs’ ADA claims for police misconduct —but unlike courts in
111
112
the pre-Yeskey Title II cases, these courts (with one exception) did

108

28 C.F.R. § 35.190(b)(6) (2004).
See Delano-Pyle v. Victoria County, 302 F.3d 567, 576 (5th Cir. 2002) (upholding a jury verdict finding a violation of the ADA); Gorman v. Easley, 257 F.3d 738, 751
(8th Cir. 2001) (affirming a jury verdict on plaintiff’s Title II claim), rev’d on other
grounds sub nom., Barnes v. Gorman, 536 U.S. 181 (2002); Lee v. City of Los Angeles,
250 F.3d 668, 691-92 (9th Cir. 2001) (broadly construing Title II and remanding the
matter to the district court to allow plaintiffs an opportunity to amend their ADA
claim); Arnold v. City of York, 340 F. Supp. 2d 550, 554 (M.D. Pa. 2004) (denying defendants’ motion to dismiss plaintiffs’ ADA claims); McCray v. City of Dothan, 169 F.
Supp. 2d 1260, 1276 (M.D. Ala. 2001) (denying summary judgment to defendants on
plaintiff’s ADA claim), aff’d in part, rev’d in part on other grounds, No. 01-15756-DD, 2003
WL 23518420 (11th Cir. Apr. 24, 2003).
110
See Anthony v. City of New York, 339 F.3d 129, 141 (2d Cir. 2003) (affirming a
district court’s grant of summary judgment to defendants on plaintiffs’ ADA claim on
the basis that there was no finding of intentional discrimination); Thompson v. Williamson County, 219 F.3d 555, 558 (6th Cir. 2000) (holding that plaintiffs’ ADA claim
that their son was denied medical services because of his disability failed as a matter of
law because plaintiffs did not prove that decedent was denied access to a public service
or that, if he was, the denial was because of his disability); Bates ex rel. Johns v. Chesterfield County, 216 F.3d 367, 373 (4th Cir. 2000) (finding no ADA violation because the
use of force and arrest of plaintiff were not by reason of his disability); Sudac v. Hoang,
378 F. Supp. 2d 1298, 1306 (D. Kan. 2005) (rejecting plaintiff’s ADA claim and finding
that the alleged denial of benefits occurred because of decedent’s actions).
111
See supra text accompanying notes 66-90 (discussing pre-Yeskey cases in which
courts refused to apply Title II to police activities).
109

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not reject plaintiffs’ claims on the grounds that Title II can never be
applied in an arrest context. This Part will provide a brief summary of
how courts have treated disabled plaintiffs’ Title II actions for police
misconduct post-Yeskey.
In McCray v. City of Dothan, the court denied the defendants’ motion for summary judgment in a case brought by a deaf plaintiff who
claimed that police officers had failed to accommodate his disability
113
in arresting him.
The court adopted the Fifth Circuit’s rule that
“police activity is a government program under the ADA, but only
when the circumstances surrounding the activity is [sic] ‘secure’ and
114
there is ‘no threat to human safety.’” Not finding any evidence of a
threat to human safety in the case at hand, the court concluded that
115
summary judgment was inappropriate.
Two years after the district
court ruling, and six months after review by the Eleventh Circuit of
116
plaintiffs’ non-ADA state and federal claims, the parties settled for
117
$575,000.
On review of a district court ruling on a claim under the ADA for
injuries sustained while being transported in a police van that was not
118
equipped with wheelchair restraints, the Eighth Circuit in Gorman v.
119
Easley upheld a jury verdict of over two million dollars.
The court
quickly dismissed the defendants’ argument that Gorman was not a
“qualified individual with a disability” and also denied two challenges
120
by the police board to the jury instructions.

112

Crocker v. Lewiston Police Dep’t, No. 00-13-PC, 2001 WL 114977, at *8-9 (D.
Me. Feb. 9, 2001) (holding that an arrest is not the type of activity that a person could
be “excluded from” under the ADA and granting defendants’ motion for summary
judgment on plaintiff’s ADA claim).
113
169 F. Supp. 2d at 1272. For a summary of the facts of McCray, see supra text
accompanying notes 50-53.
114
169 F. Supp. 2d at 1275 (quoting Hainze v. Richards, 207 F.3d 795, 802 (5th
Cir. 2000)).
115
Id. at 1275-76.
116
See McCray, 2003 WL 23518420, at *8 (affirming in part and reversing in part
the district court’s ruling pertaining to plaintiff’s non-ADA state and federal claims).
117
See supra note 53 (describing the settlement terms).
118
For the facts of Gorman, see supra text accompanying notes 74-87.
119
257 F.3d 738, 743 (8th Cir. 2001). However, the court remanded to the district
court for examination of the appropriateness of the damages. Id. at 749. The Supreme Court later reversed the Eighth Circuit and held that the punitive damages,
which the jury had awarded Gorman in the amount of $1,200,000, were properly vacated by the district court. Barnes v. Gorman, 536 U.S. 181, 189 (2002).
120
Gorman, 257 F.3d at 750-51. The jury instructions that the police board believed erroneous included the elements that plaintiff had to prove in order for liability
to lie under the ADA and the Rehabilitation Act: “First, that the defendants failed to

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Two recent Pennsylvania district court opinions also sided with
plaintiffs who brought ADA claims for police misconduct, denying defendants’ motions to dismiss. In Schorr I, the court held that the scope
of “services, programs, or activities” under the ADA was not limited to
“commonly available and publicly shared accommodations such as
parks, playgrounds, and transportation,” as a lay reader might believe,
but in fact includes “the most basic of these functions . . . [namely]
the lawful exercise of police powers, including the appropriate use of
121
force by government officials acting under color of law.”
The court
further held that the Fifth Circuit’s rationale for rejecting ADA claims
122
when the conduct occurred in the face of “exigent circumstances”
did not apply to the Schorrs’ claim because the Schorrs brought their
claim not against the individual police officers, but against the police
commission for failing to properly train the officers:
The alleged non-compliance with the training requirements of the ADA
did not occur the day that the officers shot Ryan Schorr; it occurred well
before that day, when the Defendant policy makers failed to institute
policies to accommodate disabled individuals such as Schorr by giving
123
the officers the tools and resources to handle the situation peacefully.

The court therefore concluded that the Schorrs’ ADA claim could
124
proceed against the police commission.
After the district court’s
ruling, the parties agreed on a settlement that included a confidential
monetary payment as well as an agreement by the county and the police department to adopt procedures for dealing with mentally ill
people, including the use of a mental health professional as a liai-

provide plaintiff appropriate transportation that reasonably accommodated his disability after he was arrested, and [s]econd, that as a direct result of the defendants’ failure,
plaintiff sustained damages.” Id. at 750. The district court had defined “reasonable
accommodation” as “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.” Id.
121
243 F. Supp. 2d 232, 235 (2003). For a summary of the facts of Schorr I and
Schorr II, see supra text accompanying notes 1-15.
122
See Hainze v. Richards, 207 F.3d 795, 801-02 (5th Cir. 2000) (holding that officers have no duty to reasonably accommodate disabled suspects until the area is secure
and there is no threat to human safety).
123
Schorr I, 243 F. Supp. 2d at 238. For a discussion of failure to train claims in
general, see infra Part III.E.
124
Id. at 239; accord Arnold v. City of York, No. Civ.A. 4:03-1352, 2004 WL 2331781,
at *8-9 (M.D. Pa. June 28, 2004) (applying the holding in Schorr I to the plaintiff’s
claim of police misconduct under the ADA and denying the defendant city’s motion to
dismiss), adopted by 340 F. Supp. 2d 550 (M.D. Pa. 2004).

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125

son.
The settlement also provided for police officer training in
126
dealing with mentally ill individuals.
Even more recently, in Hogan v. City of Easton, a court denied defendants’ motion to dismiss an ADA claim brought by a man with a
127
mental health disorder.
Michael Hogan had been shot by police
who were responding to Hogan’s wife’s 911 call to obtain help in
calming him down after he experienced deterioration in his mental
128
condition.
Citing Schorr I, Yeskey, and the Eighth Circuit opinion in
Gorman v. Bartch, the court held that Hogan stated a valid claim under
the ADA “based on the failure of the City and County to properly train
129
its police officers for encounters with disabled persons.” The Hogan
case is now in the discovery phase, with a trial expected in January
130
2006.
Courts in other jurisdictions, however, have not been as willing to
allow disabled plaintiffs’ ADA claims for police misconduct to go to a
jury. In Pannell v. City of Bellvue, police officers arrested John Pannell
after a brief struggle that occurred when they attempted to enter his
131
residence in response to a 911 call of domestic violence.
Pannell,
who was unable to communicate or move quickly due to a prior
stroke, had not immediately responded to the officers’ demand that
he drop the baseball bat he was holding and open the door for
132
them.
The district court granted the defendants’ motion to dismiss
the ADA claim, holding that there was “no showing that the officers
intended to act as they did toward the plaintiff on the basis that he was
133
disabled.”

125

Telephone Interview with Gerald J. Williams, Williams, Cuker & Berezofsky,
Attorney for Susan and Keith Schorr, in Phila., Pa. (May 26, 2005).
126
Id.
127
No. Civ.A. 04-759, 2004 WL 1836992, at *7 (E.D. Pa. Aug. 17, 2004).
128
Id. at *1, 7. When the police officers arrived at the Hogans’ residence, Mr. Hogan had calmed down and was inside by himself. Id. at *2. The nine police officers
who ultimately arrived at the scene did not ask Mrs. Hogan, who was outside the house,
what her husband’s current condition was or whether she still needed help in calming
him down. Id. They proceeded to initiate a standoff with Mr. Hogan that resulted in
gunshot wounds to Mr. Hogan’s stomach, right hand, and left wrist. Id. at *3-4.
129
Id. at *7.
130
Telephone Interview with Jordan B. Yeager, Boockvar & Yeager, Attorney for
Michael Hogan, in Doylestown, Pa. (May 23, 2005).
131
184 F. Supp. 2d 686, 687 (N.D. Ohio 2002).
132
Id. at 687-88. Pannell alleged that his family members shouted to the police
officers who were at the door that Pannell was a stroke victim. Id.
133
Id. at 689. It is interesting to note that there is no support for an intent requirement for ADA actions in the Supreme Court’s opinion in Yeskey.

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The following year, in Anthony v. City of New York, the Second Circuit reviewed the claim of a woman with Down Syndrome who alleged
that ADA violations occurred in the course of police officers’ entry
into her apartment, in response to a 911 call reporting a man with a
134
knife, and the subsequent transportation of her to a mental hospital
The Second Circuit, like the district court in Pannell, read a discriminatory intent requirement into Title II that did not appear in the legislative history of, or case law interpreting, the ADA: “There is no evidence . . . that the seizure and hospitalization were motivated by
discrimination against individuals with disabilities. Anthony has alleged no facts showing that Sergeant Mendez, who ordered Officers
Collegio and Migliaro to seize Anthony, acted with discriminatory in135
tent.”
The court affirmed the district court’s grant of summary
136
judgment to defendants on the ADA claim.
Overall, disabled plaintiffs who today bring claims under Title II
for police officers’ actions in effecting an arrest will find a friendlier
response by district and appellate courts than did plaintiffs pre-Yeskey.
Although McCray and Pannell demonstrate that not all jurisdictions
abide by the traditional Title II rule for proving a claim, most courts
no longer reject the very notion of bringing an action under the ADA
for police misconduct. In a number of jurisdictions, such claims are
allowed to go forward, and in some, large jury verdicts in the ensuing
trials are upheld.
III. TITLE II VERSUS SECTION 1983: ANOTHER BITE AT THE APPLE?
Even if courts are willing to apply Title II to police actions, questions arise about the necessity and desirability of pursuing an ADA
claim in such cases. Actions under Section 1983 provide the usual
civil remedy for police misconduct, and most cases that include an
ADA claim resulting from an arrest also contain parallel Section 1983
137
claims.
As this Part will argue, the differences between ADA claims
134

339 F.3d 129, 131-32 (2d Cir. 2003).
Id. at 141.
136
Id.
137
See, e.g., Hogan v. City of Easton, No. Civ.A 04-759, 2004 WL 1836992, at *5-11
(E.D. Pa. Aug. 17, 2004) (ruling on plaintiffs’ cause of action under the ADA and six
causes of action under Section 1983 that resulted from a confrontation between plaintiff and police officers); Schorr I, 243 F. Supp. 2d 232, 234-35 (M.D. Pa. 2003) (reviewing plaintiffs’ claims under Section 1983 and the ADA pertaining to the killing of
plaintiffs’ decedent by police officers); Lewis v. Truitt, 960 F. Supp. 175, 177 (S.D. Ind.
1997) (“Plaintiffs filed this action against Defendants alleging violations of 42 U.S.C. §
1983 [and] the Americans with Disabilities Act . . . .”).
135

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and claims under Section 1983—in terms of elements, remedies, and
various immunities—suggest that, even if disabled plaintiffs should
not replace their Section 1983 claims with claims under Title II, they
138
should still plead both claims.
This Part will also explore the possibility of pleading claims under Section 504 of the Rehabilitation
139
140
Act, which is very similar to Title II in substance, but allows for
141
greater flexibility in overcoming potential defenses.
A. Bars to Claims for Misconduct Under Section 1983:
Jumping Through Hoops
Claims under Section 1983 for police misconduct in effecting an
arrest, particularly in cases where the plaintiff is disabled, are difficult
to win. In order to prove liability under the statute, “the plaintiff must
prove that she has been deprived of a federal statutory or constitu142
tional right by someone acting ‘under color of’ state law.” Although

138

See James C. Harrington, The ADA and Section 1983: Walking Hand in Hand, 19
REV. LITIG. 435, 445-63 (2000) (arguing that disabled plaintiffs should, for strategic
litigation reasons, plead civil rights claims under the ADA in addition to Section 1983).
139
29 U.S.C. § 794(a) (2000).
140
See Katie Eyer, Note, Rehabilitation Act Redux, 23 YALE L. & POL’Y REV. 271, 298
(2005) (stating that the Rehabilitation Act and Title II “have been in most circumstances treated as identical by reviewing courts” because of statutory provisions requiring their uniform interpretation).
141
See, e.g., infra text accompanying notes 224-26 (noting that courts have held
that states are not protected from suit under Section 504 by the Eleventh Amendment).
142
MICHAEL AVERY ET AL., POLICE MISCONDUCT: LAW AND LITIGATION § 1:2, at 2
(3d ed. 2004). Although this Comment focuses on claims under Section 1983 pertaining to constitutional violations, it is possible that a plaintiff could plead a Section 1983
claim for violation of the ADA itself. In order to state a valid claim for a statutory violation, a plaintiff must show that “Section 1983 creates an individually enforceable right
in the class of beneficiaries to which he belongs.” City of Rancho Palos Verdes v.
Abrams, 125 S. Ct. 1453, 1458 (2005). In addition, even though there is a rebuttable
presumption that the right is enforceable, the defendant may defeat this presumption
by showing that Congress did not intend the remedy for a newly created right. Id. Although most courts have held that rights under Title II may be enforced in Section
1983 actions, other courts have held that Title II cannot be enforced through such a
suit because the ADA remedies are exclusive. See 1 AMERICANS WITH DISABILITIES:
PRACTICE AND COMPLIANCE MANUAL § 2:51 (2005) [hereinafter PRACTICE AND
COMPLIANCE] (discussing the case law on the question of whether a plaintiff can plead
a Section 1983 action for violation of Title II of the ADA). Although the substantive
law that a plaintiff would need to prove in order to succeed in a Section 1983 action
based on a violation of the ADA would be different than the elements necessary to
prove a Section 1983 action based on a constitutional violation, the immunities and
damages would be regulated by the same rules as for any other 1983 action. See infra
text accompanying notes 150-69 (discussing immunity doctrines).

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the elements that a plaintiff must prove vary depending on the type of
143
claim and the type of governmental activity, the Supreme Court has
held that Fourth Amendment standards apply to Section 1983 plaintiffs’ claims of excessive force when the use of force constitutes a “sei144
zure.”
The plaintiff must therefore first show that the force exer145
cised against her represented a seizure.
In addition, as Professor
Michael Avery has argued, the “totality of the circumstances” doctrine
that has been adopted by courts in such Fourth Amendment cases has
proven “inadequate in deterring police misconduct and in providing
146
remedies for mentally and emotionally disturbed [plaintiffs].”
This
test, as articulated in Graham v. Connor, provides that courts must balance the “nature and quality” of the Fourth Amendment intrusion
147
against the “countervailing governmental interests at stake.”
In
judging the reasonableness of the police officers’ use of force—which
must be examined from the perspective of a “reasonable officer on
the scene”—courts look to the following three factors: “the severity of
the crime at issue, whether the suspect poses an immediate threat to
the safety of the officers or others, and whether he is actively resisting
148
arrest or attempting to evade arrest by flight.”
In applying the “totality of the circumstances test,” lower courts have given much weight
143

AVERY, supra note 143, § 2:18, at 78. Examples of common claims under Section 1983 relating to police activities include excessive use of force, unlawful entry,
failure to provide immediate medical attention, and unlawful search and seizure. Id.
The Supreme Court has held that there is no single standard for claims under Section
1983 because the statute itself is not a source of substantive rights. Id. (citing Graham
v. Connor, 490 U.S. 386, 393-94 (1989)).
144
Id. (citing Graham, 490 U.S. at 394). Because excessive use of force is the claim
that most commonly appears in cases brought by disabled plaintiffs pertaining to police misconduct, this Comment will focus on that claim. Claims of excessive force that
do not constitute seizures (e.g., a claim against police officers resulting from a highspeed chase of a suspect) are analyzed under substantive due process principles. See
County of Sacramento v. Lewis, 523 U.S. 833, 843-45 (1998) (stating that police action,
such as engaging in a car chase, is properly examined under the Due Process Clause
rather than the Fourth Amendment).
145
AVERY ET AL., supra note 142, § 2:18, at 78 n.3 (citing Vathekan v. Prince
George’s County, 154 F.3d 173, 178 (4th Cir. 1998)). To prove that a “seizure” occurred, the plaintiff must prove that government actors have, in some way, restrained
her liberty by means of physical force or show of authority. Graham, 490 U.S. at 395
n.10 (citing Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968)).
146
Avery, supra note 10, at 267-68. Avery’s article focuses on the claims of mentally
and emotionally disturbed plaintiffs. For a general discussion of the challenges of
bringing a Section 1983 claim for police misconduct, see Thorne Clark, Comment, Protection from Protection: Section 1983 and the ADA’s Implications for Devising a Race-Conscious
Police Misconduct Statute, 150 U. PA. L. REV. 1585, 1597-602 (2002).
147
490 U.S. 386, 396 (1989) (internal quotation marks omitted).
148
Id.

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to the “emergency confronting the officer and the pressures that he
may have experienced” and have not required that officers use the
149
least intrusive means possible to handle such situations.
Even if a plaintiff is able to prove excessive force under Section
1983, she still might not succeed in her claim because the police officer could be entitled to qualified immunity. The qualified immunity
150
defense, which is applicable to claims of excessive force, provides
police officers immunity from damages “unless a reasonable officer
would have known that his actions would violate clearly established
151
constitutional rights of the plaintiff.”
As Professor James Harrington has explained, the existence of the qualified immunity defense for
police officers in Section 1983 claims “serves to make the civil rights
152
plaintiff’s burden almost insurmountable.”
The doctrine of municipal immunity also acts as an obstacle to a
successful Section 1983 claim against local governments since the Supreme Court has held that there is no respondeat superior liability
153
under the statute.
Under Monell v. Department of Social Services, a
plaintiff can state a claim against a local governing body for monetary,
declaratory, or injunctive relief only if she can show that the injury she
154
suffered was the result of the government’s policy or custom.
In
addition, in a Monell claim alleging that a municipality failed to adequately train its police officers, the plaintiff must prove that “the failure to train amounts to deliberate indifference to the rights of per155
sons with whom the police come into contact.”

149

Avery, supra note 10, at 273-74.
See id. at 270 (“[I]n Saucier v. Katz, [533 U.S. 194, 197 (2001),] the [Supreme]
Court held that a qualified immunity defense is available to claims of excessive force.”).
151
AVERY ET AL., supra note 142, § 2:1, at 41. As the authors of the treatise note,
the scope of the protection of police officers’ actions under the qualified immunity
defense has expanded over the past decade. Id.
152
Harrington, supra note 138, at 437-38. “As a practical matter, officials almost
always secure qualified immunity, either from the trial court or the appellate tribunal.
Only the most flagrant and shocking conduct will defeat qualified immunity; merely
‘stupid’ actions are insufficient.” Id. at 438. The low threshold required for a police
officer to establish qualified immunity is exemplified in Brosseau v. Haugen, 125 S. Ct.
596, 600 (2004) (per curiam), in which the Court held that it was not clearly established that an officer violated the Fourth Amendment’s deadly force standards by
shooting a suspect who was fleeing in a vehicle.
153
See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978) (“[A] municipality
cannot be held liable under § 1983 on a respondeat superior theory.”).
154
Id. at 690, 694.
155
City of Canton v. Harris, 489 U.S. 378, 388 (1989). For a discussion of courts’
treatment of failure to train claims against local governments and the importance of
150

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181

While municipal immunity and qualified immunity protect the local government and police officers who are sued in their individual
capacity and, another immunity doctrine protects state government
entities. The Eleventh Amendment and the court-developed doctrine
156
of sovereign immunity bar suits against state governments, preventing a plaintiff from obtaining under Section 1983 either legal or equi157
table relief directly against a state entity.
However, under Ex parte
158
Young, a Section 1983 plaintiff can secure an equitable remedy, such
as an injunction, by suing the state officials in their official capacity in159
stead of suing the state entity.
An additional consideration that plaintiffs might have to contend
with in bringing Section 1983 claims is the bar under Heck v. Humphrey
against claims that challenge the validity of outstanding criminal
160
judgments.
In Heck, the Court held that a plaintiff who seeks to recover damages for
an unconstitutional conviction, imprisonment, or for other harm caused
by actions whose unlawfulness would render a conviction or sentence invalid . . . must prove that the conviction or sentence has been reversed
on direct appeal, expunged by executive order, declared invalid by a

police training with respect to encounters with mentally and emotionally disturbed
people, see Avery, supra note 10, at 323-31.
156
“Generally speaking, the state’s sovereign immunity extends to suits against
state departments, arms, institutions, instrumentalities, agencies, counties, townships,
as well as commissions or boards.” 57 AM. JUR. 2D Municipal, County, School, and State
Tort Liability § 12 (2001) (internal citations omitted).
157
The Eleventh Amendment provides that “[t]he Judicial power of the United
States shall not be construed to extend to any suit in law or equity, commenced or
prosecuted against one of the United States by Citizens of another State, or by Citizens
or Subjects of any Foreign State.” U.S. CONST. amend. XI. Although the language of
the Eleventh Amendment refers only to suits against a state by citizens of another state,
the Supreme Court has “extended the Amendment’s applicability to suits by citizens
against their own state.” Bd. of Trs. v. Garrett, 531 U.S. 356, 363 (2001).
158
209 U.S. 123 (1908).
159
See Mountain Cable Co. v. Pub. Serv. Bd., 242 F. Supp. 2d 400 (D. Vt. 2003)
(“In its long-standing exception to Eleventh Amendment sovereign immunity, Ex parte
Young ‘permits federal courts to enjoin state officials to conform their conduct to requirements of federal law . . . .’” (citing Milliken v. Bradley, 433 U.S. 267, 289 (1977))).
An equitable remedy against state officials will often be unsuccessful in cases of police
misconduct, however, because of justiciability problems. See, e.g., City of Los Angeles v.
Lyons, 461 U.S. 95, 111 (1983) (holding that the plaintiff, who was subjected to a
chokehold following a stop for a traffic violation, did not have standing to seek an injunction against the police department because it was impossible for the plaintiff to
meet his burden of showing “irreparable injury”).
160
512 U.S. 477, 489-90 (1994).

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state tribunal authorized to make such determination, or called into
161
question by a federal court’s issuance of a writ of habeas corpus.

In Hainze v. Richards, in which plaintiff Kim Michael Hainze
brought claims under both Section 1983 and the ADA, the Fifth Circuit held that Hainze’s Section 1983 claims had properly been dismissed because he had been convicted of aggravated assault with a
deadly weapon for the same set of events that were the subject of his
162
police misconduct claim.
Finally, the damages available in cases brought under Section
1983 are often limited by law. Successful plaintiffs are entitled to rea163
sonable compensatory damages, which are determined by the fact164
finder.
Proof of intentional discrimination is not necessary to obtain damages in a Section 1983 suit based on a Fourth Amendment
165
violation.
In addition, a plaintiff may be entitled to attorneys’ fees
166
under Section 1988 at the discretion of the district court.
Punitive
damages are available only when “the defendant’s conduct is shown to
be motivated by evil motive or intent, or when [the conduct] involves
reckless or callous indifference to the federally protected rights of

161

Id. at 486-87 (internal citation omitted).
207 F.3d 795, 797, 798-99 (5th Cir. 2000); cf. Hogan v. City of Easton, No.
Civ.A. 04-759, 2004 WL 1836992, at *9 (E.D. Pa. Aug. 17, 2004) (noting, but rejecting,
the defendants’ contention that the plaintiff’s excessive force claim was legally barred
under Heck because the plaintiff had already pled guilty in state court to “one count of
terroristic threats and nine counts of recklessly endangering another person”).
163
See AVERY ET AL., supra note 142, § 13:2, at 598 (“The plaintiff is entitled to fair
and reasonable compensation for the loss, harm, or injury suffered.”).
164
Id. § 13:2, at 599 (“Setting the amount of compensatory damages is generally
held to be within the discretion of the trier of fact . . . .”). Though the damage award
“is seldom reversed on appeal,” the authors of the treatise note that some courts have
recently begun “to subject compensatory damage awards to greater scrutiny.” Id.
165
See HAROLD S. LEWIS, JR., CIVIL RIGHTS LITIGATION: PRACTICE AND PROCEDURE,
in STEPHEN YAGMAN, POLICE MISCONDUCT AND CIVIL RIGHTS: FEDERAL JURY PRACTICE
AND INSTRUCTIONS § 10-21, at 682 (2d ed. 2002) (“It should be noted that § 1983 contains no general requirement that the plaintiff prove the defendant acted with any particular state of mind.”). Some predicate constitutional claims under Section 1983,
such as First Amendment claims and Eighth Amendment claims, do require proof of a
particular state of mind. Id. For a discussion of the intentional discrimination requirement in Title II actions, see infra note 206 and accompanying text.
166
42 U.S.C. § 1988 (2000); see AVERY ET AL., supra note 142, § 14:1, at 635 (“The
Civil Rights Attorney’s Fees Awards Act of 1976 provides that the prevailing party in
actions brought under several civil rights statutes is entitled to attorneys’ fees . . . .” (internal citation omitted)). Section 1988 was passed in response to a Supreme Court
decision restricting punitive damages in Section 1983 claims to cases in which the defendants acted in bad faith. Id. § 14:1, at 636 (referencing Alyeska Pipeline Serv. Co. v.
Wilderness Soc’y, 421 U.S. 240 (1975)).
162

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167

others,” and are never available in a Monell claim against a local gov168
ernment.
The substantive law that governs the elements necessary to prove a
Section 1983 claim, immunities that protect the defendants, and limits
on damages have made it exceedingly difficult for plaintiffs to bring
169
successful and worthwhile claims under this statute.
In fact, as several commentators have noted, the Supreme Court’s recent rulings
have greatly restricted civil rights plaintiffs’ access to the courts and
have frustrated the purpose of much of the civil rights legislation en170
acted over the past forty years.
The next Part will explore the contours of decisional law for Title II claims of police misconduct and the
question of whether plaintiffs might fare better under the ADA than
under Section 1983.
B. ADA Claims for Police Misconduct: Avoiding the Hoops?
The initial substantive elements that a plaintiff must prove under
Title II of the ADA are entirely different from the elements necessary
to prove a claim under Section 1983. In a Title II claim, a plaintiff
must prove
171

(1) that [she] is a qualified individual with a disability; (2) that [she]
was either excluded from participation in or denied the benefits of some

167

Smith v. Wade, 461 U.S. 30, 56 (1983).
See Harrington, supra note 138, at 438-39 (noting that, for Monell claims, “only
actual damages, and not punitive damages, are available”). In addition, a plaintiff who
could not prove actual damages, but could prove liability, could argue for nominal
damages. See Carey v. Piphus, 435 U.S. 247, 266 (1978) (“[T]he law recognizes the importance to organized society that [certain] rights be scrupulously observed; but at the
same time, it remains true to the principle that substantial damages should be awarded
only to compensate actual injury . . . .”).
169
Harrington has also articulated two other major obstacles for Section 1983
plaintiffs. See Harrington, supra note 138, at 439 (noting the interlocutory appeals system that allows an official to save the expense of mounting a defense and the appellate
courts’ “propensity to substitute [their] own interpretation of the facts for that of a
judge or jury”).
170
See, e.g., Chemerinsky, supra note 25, at 540 (“[T]here is a consistent and disturbing theme to the Rehnquist Court’s decisions in recent years: civil rights plaintiffs
lose.”); David Rudovsky, Civil Rights Litigation: The Current Paradox, 5 U. PA. J. CONST.
L. 487, 489 (2003) (“[D]espite the [current] explosion of litigation, with thousands of
cases filed each year, an enormous increase in the number of lawyers, organizations,
and services that are available to people who want to litigate these issues in court, we
see a marked retrenchment in legal doctrine and access to the courts.”).
171
Proving a disability under the ADA has become increasingly difficult in recent
years. See, e.g., Toyota Motor Mfg. v. Williams, 534 U.S. 184, 195 (2002) (“Merely having an impairment does not make one disabled for purposes of the ADA.”).
168

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public entity’s services, programs, or activities, or was otherwise discriminated against by the public entity; and (3) that such exclusion, denial of
172
benefits, or discrimination was by reason of the plaintiff’s disability.

In addition, a plaintiff must show that the police officers knew that the
173
plaintiff was disabled.
Some courts have also required that the dis174
crimination be intentional.
A “totality of the circumstances” analysis does not necessarily apply
to ADA claims—and countervailing governmental interests do not always come into play—because ADA claims do not implicate constitutional principles. However, while courts examining claims under the
175
wrongful arrest theory are not likely to take into account countervailing governmental interests, such interests often will come into play
in the context of claims under the reasonable accommodation the176
ory.
In Hainze v. Richards, for example, the court balanced the
plaintiff’s rights under the ADA to be free from discrimination based
on his disability against the interest in public safety and prevention of
risks to the officers and bystanders: “To require the officers to factor
in whether their actions are going to comply with the ADA, in the
presence of exigent circumstances and prior to securing the safety of
themselves, other officers, and any nearby civilians, would pose an
177
unnecessary risk to innocents.”
With regard to claims that a government entity failed to train its
police officers to recognize and appropriately handle individuals with
disabilities, plaintiffs have faced fewer obstacles under Title II than
they have under Section 1983. Whereas City of Canton v. Harris re-

172

Gohier v. Enright, 186 F.3d 1216, 1219 (10th Cir. 1999).
See Lewis v. Truitt, 960 F. Supp. 175, 178 (S.D. Ind. 1997) (holding that a plaintiff must show that the defendants knew or should have known that the plaintiff was
disabled in order to recover under the ADA for police misconduct); accord Jackson v.
Inhabitants of Sanford, Civ. No. 94-12-P-H, 1994 WL 589617, at *1, 6 (D. Me. Sept. 23,
1994) (denying summary judgment to defendants on plaintiff’s ADA claim in part because plaintiff had told the police officer that he suffered a brain aneurysm that caused
physical difficulties).
174
See, e.g., Dillery v. City of Sandusky, 398 F.3d 562, 568 (6th Cir. 2005) (holding
that the plaintiff had not established a claim under the ADA resulting from police harassment when she was on the street in her wheelchair because she had not proven intentional discrimination); see also supra text accompanying notes 131-37 (discussing
cases in which courts required evidence of intentional discrimination to establish an
ADA claim for police misconduct).
175
See supra Part I.A (discussing the wrongful arrest theory).
176
See supra Part I.B (discussing the reasonable accommodation theory).
177
207 F.3d 795, 801 (5th Cir. 2000).
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185
178

quired a showing of deliberate indifference for Section 1983 claims,
courts have not set a similar standard for succeeding on failure to
179
train actions under Title II.
In fact, in the few cases in which plaintiffs have pleaded both ADA and Section 1983 claims for failure to
train, courts have been more receptive to the ADA action even though
the substance of the failure to train argument was the same. In Jackson
v. Inhabitants of Sanford, for example, the court granted summary
judgment to the town on the plaintiff’s failure to train claim under
Section 1983 because “Jackson offer[ed] no evidence that Town of
Sanford policymakers were, prior to Jackson’s arrest, deliberately indifferent to inadequate training policies likely to result in constitu180
tional violations.”
However, on the plaintiff’s ADA claim that the
town “failed to train its police officers to recognize symptoms of disabilities and . . . to modify police policies, practices and procedures to
prevent discriminatory treatment of the disabled,” the court denied
181
summary judgment.
The immunities available to defendants also differ under Title II.
182
Since Title II claims must be brought against government entities,
not individual defendants, the qualified immunity defense usually
183
does not apply. As the ADA Practice and Compliance Manual notes:

178

489 U.S. 378, 388 (1989); see supra note 155 and accompanying text (noting a
deliberate indifference requirement).
179
However, it must be noted that even if a failure to train claim might be easier
to prove under Title II than under Section 1983, a plaintiff may still have to prove intentional discrimination in order to receive compensatory damages. See infra note 206
and accompanying text (discussing the standard for obtaining compensatory damages
under Title II).
180
Civ. No. 94-12-P-H, 1994 WL 589617, at *6 (D. Me. Sept. 23, 1994).
181
Id. But see Schorr I, 243 F. Supp. 2d 232, 234, 239 (M.D. Pa. 2003) (denying defendants’ motion to dismiss on the failure to train claims under both the ADA and Section 1983).
182
Title II provides that no qualified individual with a disability shall 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
(2000) (emphasis added).
183
See Harrington, supra note 138, at 442 (noting that “issues of qualified (good
faith) immunity and municipal immunity do not arise” in ADA actions against government entities). “The defense of qualified immunity is available to defendants only
when they are sued in their individual capacities . . . .” PRACTICE AND COMPLIANCE,
supra note 142, § 7:75. Despite the seemingly clear language of Title II, there is some
confusion among the courts as to whether ADA claims may be brought against defendants in their individual capacity, and whether qualified immunity may apply. Most
courts recognize that the provisions of the ADA allow only for claims against government entities. See, e.g., EEOC v. AIC Sec. Investigations, Ltd., 55 F.3d 1276, 1279 (7th
Cir. 1995) (“[I]ndividuals who do not independently meet the ADA’s definition of

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Whether qualified immunity is available at all in suits brought pursuant
to ADA Title II is an open question since the defense is available only in
individual capacity suits, but the recent trend is for courts to hold that
individual capacity suits are not cognizable under Title II, which is di184
rected at public entities.

Similarly, municipal immunity is not an issue because the ADA claim
itself is brought against a government entity, and therefore a Monell
185
theory of respondeat superior is unnecessary.
The question of sovereign immunity in Title II actions, however, is
186
more complex.
The Supreme Court has held that “Congress may
abrogate the States’ Eleventh Amendment immunity when it both unequivocally intends to do so and ‘act[s] pursuant to a valid grant of
187
constitutional authority.’” Because it is settled law that the language
of the ADA evidences Congress’s intent to abrogate the states’ immu188
nity, the relevant question is whether Congress passed the ADA pursuant to a “valid grant of constitutional authority.” The Supreme
Court has held that Congress cannot abrogate state sovereign immu-

‘employer’ cannot be held liable under the ADA.”); Montez v. Romer, 32 F. Supp. 2d
1235, 1241 (D. Colo. 1999) (“I conclude that the individual defendants in their individual capacities are not properly subject to suit under the Rehabilitation Act or the
Disability Act.”). But see Niece v. Fitzner, 922 F. Supp. 1208, 1218-19 (E.D. Mich. 1996)
(construing Title II to authorize suits against public actors in their individual capacities). Some courts have ruled on defendants’ qualified immunity arguments without
even discussing the issue of individual liability under the ADA. See, e.g., Torcasio v.
Murray, 57 F.3d 1340, 1342 (4th Cir. 1995) (holding, without reference to the individual liability dispute, that defendant officials of the Virginia Department of Corrections
were protected by qualified immunity in a suit under the Rehabilitation Act and the
ADA); Gorman v. Bishop, 919 F. Supp. 326, 331 (W.D. Mo. 1996) (granting defendant
summary judgment on qualified immunity grounds as to plaintiff’s claims against him
in his individual capacity without discussing whether individuals are subject to ADA
suits).
184
PRACTICE AND COMPLIANCE, supra note 142, § 2:153 (internal citations omitted).
185
See Harrington, supra note 138, at 442 (noting that issues of municipal immunity do not arise in ADA claims because those actions are brought against state and local government entities themselves, not individuals).
186
See id. (“The current question is the extent to which the ADA overcomes state
sovereign immunity for 14th Amendment purposes.”).
187
Bd. of Trs. v. Garrett, 531 U.S. 356, 363 (2001) (quoting Kimel v. Fla. Bd. of
Regents, 528 U.S. 62, 73 (2000)).
188
See 42 U.S.C. § 12202 (2000) (“A State shall not be immune under the eleventh
amendment to the Constitution of the United States from an action in [a] Federal or
State court of competent jurisdiction for a violation of this chapter.”); Garrett, 531 U.S.
at 363-64 (noting § 12202 and stating that the question of whether Congress had intended to abrogate the states’ immunity was not in dispute).

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189

nity through the exercise of its Article I commerce power, but it can
abrogate that immunity through its powers under Section Five of the
190
Fourteenth Amendment.
In the past four years, the Supreme Court has begun to examine
the nature of Congress’s source of authority in enacting the ADA in
order to determine whether Congress has validly abrogated the states’
sovereign immunity under the statute. In Board of Trustees v. Garrett,
the Court held that the Eleventh Amendment bars the recovery of
191
monetary damages under Title I of the ADA in private law suits by
192
state employees against the state.
However, the Court explicitly declined to rule on the question of whether Title II actions against the
193
state for monetary damages were similarly restricted.
In Tennessee v. Lane, the Supreme Court examined the question of
whether Title II of the ADA fell within Congress’s enforcement power
under the Fourteenth Amendment such that the statute validly abro194
gated the states’ sovereign immunity.
George Lane and Beverly
Jones, the respondents in the case, were paraplegics who used wheel195
chairs and claimed that they were denied access to the state courts.
The Court’s holding was limited by the nature of the respondents’
claim: “[W]e conclude that Title II, as it applies to the class of cases impli-

189

See Seminole Tribe v. Florida, 517 U.S. 44, 72-73 (1996) (“The Eleventh
Amendment restricts the judicial power under Article III, and Article I cannot be used
to circumvent the constitutional limitations placed upon federal jurisdiction.”). Article
I of the Constitution states that “[t]he Congress shall have Power . . . To regulate
Commerce with foreign Nations, and among the several States, and with the Indian
Tribes.” U.S. CONST. art. I, § 8.
190
See Garrett, 531 U.S. at 364 (“Congress may subject nonconsenting States to suit
in federal court when it does so pursuant to a valid exercise of its § 5 power.”). Section
Five of the Fourteenth Amendment provides that “Congress shall have power to enforce, by appropriate legislation, the provisions of” the Fourteenth Amendment. U.S.
CONST. amend. XIV, § 5.
191
Title I of the ADA provides that “[n]o covered entity shall discriminate against
a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges
of employment.” 42 U.S.C. § 12112 (2000).
192
531 U.S. at 360. The Court noted that its ruling did not prevent private plaintiffs from obtaining injunctive relief against state officials under Title I, nor prevent
enforcement of Title I standards by the United States in actions for monetary damages.
Id. at 374 n.9.
193
See id. at 360 n.1 (“We are not disposed to decide the constitutional issue
whether Title II . . . is appropriate legislation under § 5 of the Fourteenth Amendment . . . .”).
194
541 U.S. 509, 513 (2004).
195
Id. at 513-14.

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cating the fundamental right of access to the courts, constitutes a valid exercise of Congress’ § 5 authority to enforce the guarantees of the Four196
teenth Amendment.”
Although a strong argument certainly could
be made for extending Lane to a Title II claim pertaining to police
197
198
misconduct, the Supreme Court has yet to rule on the question.
Even if states were immune from monetary judgments under Title II,
however, cases stemming from police officers’ actions brought against
local police departments or the board of police commissioners would
199
not be subject to state sovereign immunity, and actions for injunc200
201
tive relief under Ex parte Young would be available.
The Heck v. Humphrey bar against Section 1983 claims that chal202
lenge the validity of outstanding court judgments may or may not be
196

Id. at 533-34 (emphasis added).
The Lane Court’s analysis of whether Congress had the power under Section
Five to enact Title II of the ADA relied heavily on the basic constitutional guarantees
that Congress sought to remedy under the Act. Id. at 522-23. These guarantees were
“subject to more searching judicial review” than discrimination based on a disability,
which is subject only to rational basis review. Id. The Court referred to the right of
access to courts, which was specifically at issue in Lane, as a right that is “protected by
the Due Process Clause of the Fourteenth Amendment.” Id. at 523. The rights
claimed by disabled plaintiffs seeking to sue state governments for harm caused during
an arrest similarly implicate the Due Process Clause. In addition, the Lane Court’s discussion of the harm that Title II was designed to address cited a “pattern of unequal
treatment in the administration of a wide range of public services, programs, and activities, including the penal system, public education, and voting.” Id. at 525 (emphasis
added) (internal citations omitted).
198
The Court has, however, granted certiorari in a case pertaining to a closelyrelated question: whether states are protected by the doctrine of sovereign immunity
from suits by disabled prisoners under the ADA. Goodman v. Georgia, 125 S. Ct. 2266
(2005); see Linda Greenhouse, Justices To Decide if Disabled Inmates May Sue States for Damages, N.Y. TIMES, May 17, 2005, at A14 (reporting on the Supreme Court’s grant of certiorari in the case to determine whether state prison inmates may sue the state for discrimination under the ADA). The Court’s decision in this case will likely shed light on
the question of whether states are protected by sovereign immunity from suits by arrestees under Title II.
199
See Gorman v. Easley, 257 F.3d 738, 743-44 (8th Cir. 2001) (holding that the
board of police commissioners was not an “arm of the state” for the purposes of qualifying for Eleventh Amendment immunity), rev’d on other grounds sub nom., Barnes v.
Gorman, 536 U.S. 181 (2002). For a list of the entities that are generally considered
protected from suits for damages under principles of sovereign immunity, see supra
note 156.
200
209 U.S. 123 (1908).
201
However, similar to Section 1983 actions under Ex parte Young, it is likely that
the justiciability doctrine would bar most attempts to bring an action under Ex parte
Young for police misconduct. For additional discussion of the Ex parte Young doctrine,
see supra note 159.
202
512 U.S. 477, 488-90 (1994). For a discussion of Heck, see supra text accompanying notes 160-63.
197

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a bar to parallel ADA claims. The Supreme Court has not yet ruled on
the question of whether Heck pertains to ADA actions, and lower
203
courts are not in consensus on whether to apply Heck in ADA cases.
However, a strong argument can be made that Heck does not bar Title
204
II claims. Heck itself applied only to actions under Section 1983.
Further, the reasons for the Heck bar—to prevent plaintiffs from
bringing Section 1983 claims as a backdoor way of challenging their
convictions—would not serve the intended purpose in many Title II
claims pertaining to police misconduct, particularly those brought
under the reasonable accommodation theory. In such a case, a plaintiff would be arguing that the defendants had failed to properly train
the arresting officers to reasonably accommodate the plaintiff’s disability. Logically, therefore, the plaintiff’s argument would not necessarily call into question the appropriateness of his arrest or sen205
tence.
Compensatory damages may be available under Title II of the
206
ADA, but intentional discrimination must be shown.
Punitive dam207
ages may not be awarded.
In Barnes v. Gorman, the Supreme Court
determined that just as punitive damages could not be obtained in
suits under Title VI of the Civil Rights Act of 1964, they also could not
be obtained in claims under Title II of the ADA and Section 504 of
the Rehabilitation Act because the ADA incorporates the “remedies,
procedures, and rights” of the Rehabilitation Act, and the Rehabilitation Act in turn incorporates the “remedies, procedures, and rights”

203

See Browdy v. Karpe, No. 3:00 CV 1866(CFD), 2004 WL 2203464, at *8 (D.
Conn. Sept. 20, 2004) (“Although the Court of Appeals for the Second Circuit has not
yet considered whether the holding in Heck applies to ADA claims, [the court is persuaded] that the reasoning set forth in Heck to preclude section 1983 actions[] applies
equally to ADA claims.” (internal quotation marks omitted)). But see Miller v. Ghee, 22
F. App’x 388, 390 (6th Cir. 2001) (upholding the district court’s dismissal of the ADA
claim, not for Heck reasons as the district court did, but because of sovereign immunity).
204
512 U.S. at 486-87.
205
It must be noted, though, that a failure to train claim that does not call into
question the appropriateness of a plaintiff’s arrest or sentence would not be barred by
Heck under Section 1983.
206
See Nieves-Marquez v. Puerto Rico, 353 F.3d 108, 126 (1st Cir. 2003) (“[P]rivate
individuals may recover compensatory damages under § 504 and Title II only for intentional discrimination.” (citing Alexander v. Sandoval, 532 U.S. 275, 280-81 (2001)));
PRACTICE AND COMPLIANCE, supra note 142, § 2:168 (stating that compensatory damages are available under Title II upon a showing of an intentional violation).
207
See Barnes v. Gorman, 536 U.S. 181, 189 (2002) (holding that plaintiffs cannot
receive punitive damages in suits under Title II or Section 504).

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208

of the Civil Rights Act.
Injunctive relief, declaratory relief, and at209
torneys’ fees may be awarded under Title II.
C. The Rehabilitation Act: Filling in the Gap?
Section 504 of the Rehabilitation Act, which provides substantially
210
the same protections as Title II but applies only to public entities
211
that receive “[f]ederal financial assistance,” is a basis for disability
212
discrimination claims that the legal community often overlooks.
As
Katie Eyer has noted, despite widespread concerns about courts’ treatment of the ADA in regard to immunity defenses, “most of the legal
scholarship that has addressed . . . legal protections for individuals

208

Id. at 184-85. The Court analyzed the question of whether punitive damages
are available under Title VI of the Civil Rights Act as follows: prior decisions had held
that there was an implied private right of action under Title VI, and that the traditional
presumption in favor of any appropriate relief for violation of a federal right applied;
however, Title VI invokes Congress’s power under the Spending Clause, which means
that principles of contract law are relevant in an analysis of the appropriate relief; because a specific remedy is appropriate relief under this theory only if the recipient of
federal funding is “on notice” that it is subjecting itself to liability of that nature, and
because the remedy of punitive damages is neither expressly or impliedly included in
Title VI, such damages are not appropriate under Title VI. Id. at 185-89.
209
PRACTICE AND COMPLIANCE, supra note 142, §§ 2:164, 2:167, 2:169. According
to Harrington, it is important to note that the ADA allows a “potentially broad recovery
of a successful attorney’s out-of-pocket expenses as well as attorney’s fees and costs.”
Harrington, supra note 138, at 461.
210
Katie Eyer writes of Title II and Section 504:
There are . . . a number of provisions that require some form of consistent interpretation of the two Acts, even in the government programs and services
area. Most notably, Title II provides (and has provided since its enactment)
that except for certain exceptions mandated by statute, all regulations promulgated pursuant to Title II, “shall be consistent with the coordination regulations” of the Rehabilitation Act. Given that Title II as enacted included, like §
504, only a very minimal core anti-discrimination provision (which itself is virtually identical to § 504), this requirement of consistent regulations has had
the effect of compelling consistent treatment of the Acts in most circumstances. Furthermore, all interpretations of Title II are, like Title I, also subject to Title V’s requirement that “[e]xcept as otherwise provided [by statute],
nothing in this chapter shall be construed to apply a lesser standard than the
standards applied under . . . the Rehabilitation Act of 1973 . . . .”
Eyer, supra note 140, at 298 (internal citations omitted) (brackets in original).
211
29 U.S.C. § 794(a) (2000).
212
See Eyer, supra note 140, at 271-72 (noting the “relatively skimpy treatment of
the Rehabilitation Act’s protections” in legal scholarship). Disability rights attorney
Stephen Gold similarly notes that the Rehabilitation Act is often neglected by plaintiffs
despite its advantages over the ADA in terms of immunity defenses. Telephone Interview with Stephen Gold, Esq., in Phila., Pa. (Feb. 14, 2005).

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with disabilities has discussed the ADA’s predecessor, § 504 of the Re213
habilitation Act, in only a cursory fashion, if at all.”
Section 504 provides that “[n]o otherwise qualified individual with
a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be sub214
jected to discrimination under any program or activity.”
In regard
to claims of police misconduct, Title II is “similar in substance to the
Rehabilitation Act, and cases interpreting either are applicable and
215
interchangeable.”
In addition, the ADA provides that the “remedies, procedures, and rights” of the Rehabilitation Act “shall be the
remedies procedures, and rights” provided to plaintiffs under the
216
ADA.
The substantial similarity and interrelatedness between Section
504 and Title II suggests that the elements, potential defenses, and
damages available for a claim under Section 504 would parallel the
217
elements, potential defenses, and damages available under Title II,
and that courts willing to apply Title II to claims of police miscon218
duct would similarly be willing to apply Section 504 to those claims.
Indeed, some courts examining actions in which plaintiffs have
pleaded claims under both Section 504 and Title II have not distin219
guished between the two claims in their opinions.
The one major difference between Title II and Section 504—the
federal funding requirement attached to Section 504—has two important implications for claims of police misconduct, one that constricts
213

Eyer, supra note 140, at 271. For an interesting analysis of how the passage of
the ADA affected the protection of rights under the Rehabilitation Act, see Ruth
Colker, The Death of Section 504, 35 U. MICH. J.L. REFORM 219 (2002).
214
29 U.S.C. § 794(a) (2000).
215
Gorman v. Bartch, 152 F.3d 907, 912 (8th Cir. 1998) (internal quotation marks
omitted). There are minor differences between the provisions and interpretation of
Title II and Section 504; however, an analysis of these differences is beyond the scope
of this Comment. For a comprehensive comparison of Title II and Section 504, see
Eyer, supra note 140, at 298-309.
216
42 U.S.C. § 12133 (2000).
217
See supra Part III.B (discussing possible damages for police misconduct under
the ADA).
218
See supra Part II.C (recognizing Title II’s application to claims of police misconduct).
219
See, e.g., Hainze v. Richards, 207 F.3d 795, 799-803 (5th Cir. 2000) (noting that
the language of Title II “generally tracks” the language of Section 504, labeling a section of the opinion “ADA/Section 504 claims,” and analyzing both claims under Title II
standards); Schorr I, 243 F. Supp. 2d 232, 235 n.1, 235-39 (M.D. Pa. 2003) (stating that
Title II is intended to be interpreted “in a manner consistent with” Section 504 and
analyzing the plaintiffs’ ADA and Rehabilitation Act claims under the same standard).

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the potential scope of Rehabilitation Act actions and one that expands
it. Only public entities that receive federal funding may be sued under Section 504. However, as Eyer has pointed out, while this limitation is a substantial one for plaintiffs who sue private actors, it has only
a minor effect in the area of “state-perpetrated discrimination,” because (1) if a state entity receives any of its funding from the federal
government, it is subject to liability under Section 504 for all of its
220
programs or activities; and (2) “a very substantial proportion of state
budget dollars are allocated to state entities that are also recipients of
221
federal funding.”
In fact, in recent years very few actions against
state actors under the Rehabilitation Act have been dismissed because
222
the defendant did not receive federal funds.
Therefore, while the limitation created by the federal funding requirement of the Rehabilitation Act does not appear to create a major
obstacle for plaintiffs claiming police misconduct, the advantages that
the funding requirement provides have the potential to set it apart
significantly from Title II. States are not immune under the Eleventh
Amendment from federal suits under Section 504 because when Con223
gress amended the Rehabilitation Act in 1986 it “unambiguously
condition[ed] the receipt of federal funds on a waiver of Eleventh
Amendment immunity to claims under section 504 of the Rehabilita224
tion Act,” and state agencies waive their immunity by “continuing to
225
accept federal funds.”
Therefore, if plaintiffs are unable to successfully sue state government entities under Title II because of the state’s
sovereign immunity, a parallel claim under Section 504 would succeed
where the ADA claim failed.
D. Pleading Complementary Claims
As the analysis of the case law surrounding Section 1983, ADA,
and Rehabilitation Act claims suggests, plaintiffs bringing any of these
220

Eyer, supra note 140, at 282-83.
Id. at 286.
222
Id. at 286-87 (“Between the years 1988 and 2004, there have been only nine
cases in which Rehabilitation Act claims against state entities were dismissed for lack of
federal funding.” (internal citation omitted)).
223
See 42 U.S.C. § 2000d-7 (2000) (“A State shall not be immune under the Eleventh Amendment . . . for a violation of section 504 of the Rehabilitation Act . . . or the
provisions of any other Federal statute prohibiting discrimination by recipients of Federal financial assistance.”).
224
Garrett v. Univ. of Ala. at Birmingham Bd. of Trs., 344 F.3d 1288, 1293 (11th
Cir. 2003).
225
Id.
221

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actions face a number of obstacles and limitations. A Section 1983
plaintiff may have difficulty proving a Fourth Amendment violation
given the “totality of the circumstances” test, may not be able to make
a Monell showing necessary to establish the police department’s municipal liability, or may lose on the basis of a Heck bar against recovery.
A Title II plaintiff may fail to prove her claim because she is unable to
prove that she has a disability under the ADA, as defined by the
courts; or she may succeed in proving her claim, but then find that
she is entitled only to nominal damages because she has not proven
intent to discriminate. A Section 504 plaintiff may find her claim
dismissed because the state governmental entity that she is suing does
not receive federal funds.
Although, as Part III.B suggests, there are benefits to pleading a
226
police misconduct claim under the ADA, there are also areas in
which a plaintiff would fare better under Section 1983 than under Title II. Under the ADA, plaintiffs cannot receive punitive damages and
must show intentional discrimination to receive even compensatory
227
damages.
A Section 1983 claim predicated on the Fourth Amendment, on the other hand, allows for reasonable compensatory dam228
ages without a showing of intentional discrimination, and for punitive damages where a plaintiff can show either defendants’ malicious
229
intent or callous indifference to federally protected rights —a showing that might not be much more difficult than the showing of intentional discrimination necessary to recover compensatory damages un230
der the ADA.
226

See supra Part III.B (describing how an ADA claim differs from a Section 1983
claim—in terms of elements, immunities, and the Heck bar—in ways that may make it
easier for a plaintiff to succeed with an ADA claim).
227
See supra text accompanying notes 206-08 (discussing damages available under
Title II).
228
See supra note 165 (stating that claims under Section 1983 generally do not require a showing of intent).
229
See supra text accompanying notes 167-69 (discussing the standard for obtaining punitive damages under Section 1983).
230
See supra text accompanying note 206 (noting the standard for obtaining compensatory damages under the ADA). In the case of a failure to train claim against a
municipality, there is an additional requirement under Section 1983 that complicates
the issue of damages: the plaintiff must prove that the failure to train constitutes a policy or custom that amounts to “deliberate indifference to the rights of persons with
whom the police come into contact.” City of Canton v. Harris, 489 U.S. 378, 388
(1989). For compensatory damages, therefore, the damages analysis for a failure to
train claim depends on whether it is more difficult for a plaintiff to prove deliberate
indifference under Section 1983 or intentional discrimination under Title II. In fact,
some courts have conflated the two standards, reading the deliberate indifference re-

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Because of the complementary nature of Section 1983, Title II,
and Section 504, it would be beneficial for a disabled plaintiff to plead
231
all three claims in an action for police misconduct.
Therefore,
James Harrington’s recommendation that plaintiffs use creative
232
lawyering in bringing civil rights claims, and Stephen Gold’s suggestion that plaintiffs use Rehabilitation Act claims to “piggy-back” on Ti233
tle II claims, appear to be wise advice. Harrington writes that plaintiffs should “first plead the ADA Title II action against the government
entity involved,” and then “plead a § 1983 action, carefully and in
great factual detail, against an individual and municipality to attempt
234
to overcome potential immunity issues.”
Because the case law on ADA and Rehabilitation Act immunities is
far less developed than the Section 1983 case law, pleading a Title II
claim also provides a plaintiff with greater potential to convince the
court that the substantive law in the area—as well as the law on immunities and damages—falls in her favor. For example, under Tennes235
see v. Lane, a plaintiff could make a strong argument that a state entity is liable for damages in a Title II action for police misconduct,

quirement into the Title II compensatory damages analysis. See, e.g., Lovell v. Chandler, 303 F.3d 1039, 1056 (9th Cir. 2002) (noting that the Section 1983 “deliberate indifference” standard set forth in City of Canton was the appropriate standard for determining whether a plaintiff had proven the requisite level of intent that entitled her to
compensatory damages under Title II). However, it is likely that the failure to train
standard under Section 1983 will still be more difficult for a plaintiff to meet than the
intentional discrimination standard under Title II because courts have found that the
City of Canton requirement of a policy or custom of deliberate indifference is unnecessary
to prove Title II intentional discrimination. See Delano-Pyle v. Victoria County, 302
F.3d 567, 575 (5th Cir. 2002) (agreeing with the Fourth Circuit’s reasoning in Rosen v.
Montgomery County, 121 F.3d 154, 157 n.3 (4th Cir. 1997), that a “policy of discrimination” does not need to be identified by a Title II plaintiff in order to bring a successful
claim for compensatory damages).
231
There is no procedural bar to pleading all three of these claims together. Although some courts have rejected claims under Section 1983 based on a violation of
the ADA under the theory that the ADA is the exclusive remedy for such violations, see
PRACTICE AND COMPLIANCE, supra note 142, § 2:51 (discussing courts’ rejection of Section 1983 actions for violations of Title II), this theory does not defeat Section 1983
claims for constitutional violations that are based on the same facts as parallel ADA or
Rehabilitation Act claims. See id. (“The inability to enforce the ADA under § 1983 does
not preclude a § 1983 suit for due process violations arising out of the same nucleus of
operative facts.”).
232
See Harrington, supra note 138, at 463-64 (advocating “creativity of counsel” in
using the ADA to “fill the void left by § 1983 decisional law”).
233
Telephone Interview with Stephen Gold, Esq., supra note 212 (advocating the
use of Rehabilitation Act claims in conjunction with ADA claims).
234
Harrington, supra note 138, at 464.
235
541 U.S. 509 (2004).

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because Congress had abrogated the states’ Eleventh Amendment
sovereign immunity in such cases. However, a plaintiff would be unable to argue that states can be sued for monetary damages under Sec236
tion 1983, since case law in that area is settled.
E. Going Beyond Section 1983:
Responding to Particularized Discrimination
In addition to the benefits that a claim under the ADA or the Rehabilitation Act creates in terms of the decisional law on immunities
and damages, such a claim also provides disabled plaintiffs with a
unique advantage: in terms of the substance of the pleadings, the
governing law, and the possible remedy, the claim will be framed to
respond to the particularized discrimination in question— discrimination based on disability.
Claims that police departments and local governments have failed
to appropriately train officers are prime examples of the importance
of particularized ADA claims. Plaintiffs suing under the ADA can argue not only that the policymaking defendants failed to train officers
in the appropriate use of force and in avoiding discriminatory behavior, but specifically that the defendants failed to train their officers in
how to treat people with disabilities and how to respond to situations
involving disabled citizens so as to prevent situations from escalating
and resulting in injury or death.
In Hogan v. City of Easton, for example, plaintiff Michael Hogan’s
ADA claim alleged that the city and the county failed to properly train
their police officers for “peaceful encounters with disabled persons,”
237
and that such failure resulted in discrimination against him.
In his
complaint, Hogan asserted that (1) upon the police officers’ arrival at
his residence in response to a 911 call from his wife, his family members advised the police that Hogan suffered from anxiety, panic disorders, and depression, and that he should be approached in a calm
and quiet manner; (2) the officers refused to use peaceful mechanisms to resolve the standoff that developed and “instead isolated Mr.
Hogan from his private sources of aid;” (3) the officers further escalated the situation by activating the city’s SWAT team; and (4) as a result of the police officers’ action, Hogan felt “trapped and severely

236

See Quern v. Jordan, 440 U.S. 332, 343-45 (1979) (holding that Section 1983
does not abrogate states’ sovereign immunity).
237
No. Civ.A. 04-759, 2004 WL 1836992, at *6 (E.D. Pa. Aug. 17, 2004). For a discussion of Hogan, see supra text accompanying notes 127-31.

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fearful of the Police Officers” and “increasingly despondent about the
238
situation.” In the ensuing confrontation, the officers shot Hogan in
239
the hand, wrist, and stomach.
Even if Hogan were unable to succeed in a traditional action for excessive use of force or failure to train
240
under Section 1983 —because of the officers’ potential defense that
at the time of the confrontation they reasonably believed that Hogan
241
had a gun on him and would shoot them —Hogan’s ADA claim for
failure to train could focus on the officers’ actions prior to the confrontation.
For plaintiffs who have already proven their claims in court—or
who have proven enough to convince the defendants to settle—the
difference between the potential remedy resulting from an ADA claim
and one resulting from a Section 1983 claim may also be an important
242
consideration. Jackson v. Inhabitants of Sanford illustrates the benefits
of ADA claims in this context. After a federal district judge in Maine
granted summary judgment to Roland Jackson on his ADA claim that
the town of Sanford failed to properly train its police officers to recognize symptoms of disabilities, and failed to modify its police policies, practices, and procedures to prevent discriminatory treatment of
243
244
the disabled, the town of Sanford agreed to settle the case.
Not
only did Jackson receive monetary damages in the “five-figure” range,
he also obtained an important concession from the town: under the
settlement, the town agreed to comply with the ADA as interpreted by
238

Id. at *2-3.
Id. at *4.
240
However, the egregious nature of the officers’ actions might allow Hogan to
succeed on his Section 1983 excessive use of force and failure to train claims. See, e.g.,
id. at *4 (“Officer Mazzeo came over to Mr. Hogan, who was laying on the floor bleeding, and stepped on his wrist, making an audible crunch, which caused Mr. Hogan to
pass out momentarily.”). In fact, the court denied the defendants’ motion to dismiss
these claims, id. at *12, which, as of the writing of this Comment, are still pending.
However, in cases in which the officers acted appropriately at the time of the confrontation, but inappropriately during the time leading up to the confrontation, a failure
to train claim under the ADA would be necessary.
241
According to the complaint, Hogan “disarmed his weapon and pulled the bolt
back and the lever down in an attempt to demonstrate that it was unloaded and could
not be fired.” Id. at *4. The court found that the officers “opened fire on him” as he
bent down to surrender the shotgun. Id. Hogan did have a shotgun prior to the confrontation with the officers, but he placed it on the ground before ascending the
basement steps to the landing where the officers were standing. Id.
242
Civ. No. 94-12-P-H, 1994 WL 589617 (D. Me. Sept. 23, 1994). For the details of
Jackson, see supra notes 37-41.
243
Id. at *6.
244
See Macey, supra note 41, at 1A (discussing the settlement terms in the Jackson
case).
239

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245

the district judge in the summary judgment ruling.
The town had
to ensure that police officers received adequate training in distinguishing between symptoms of disabilities and criminal activity, and
had to ensure that its policies and procedures did not discriminate
246
against people with disabilities.
Although the law pertaining to failure to train claims under the
ADA is fairly undeveloped, courts in cases such as Jackson have been
247
receptive to such claims. As these cases demonstrate, failure to train
claims epitomize the advantages of pleading actions under the ADA:
first by helping a disabled plaintiff to prove the claim, and then by
enabling her to procure an appropriate remedy. By molding a claim
to fit the particularized rights violation, a plaintiff may increase the
likelihood that she will succeed in her claim and receive a remedy that
248
responds most appropriately to the violation. Pleading a claim to fit
the rights violation in question more closely also brings important additional benefits. By pushing courts to develop more detailed standards for determining questions of law pertaining to the interaction
between disabled persons and law enforcement officials, plaintiffs will
encourage the creation of a body of disability-rights law that courts
may apply even in non-ADA contexts. In addition, more frequent
ADA claims for police misconduct may bring about modifications to
policies and practices, which will help focus and strengthen the standards for such policies and practices in the context of Section 1983
claims.
CONCLUSION
This Comment has argued that for police misconduct cases, there
is a strategic incentive for a disabled plaintiff to bring claims under
the ADA in addition to the traditional claims under Section 1983.
Part II described how courts since Yeskey have generally been willing to
allow plaintiffs to plead Title II claims related to law enforcement activities. The assumptions that had previously resulted in frequent

245

Id.
Id.
247
See supra text accompanying notes 178-82 (discussing courts’ treatment of failure to train claims under the ADA).
248
See supra text accompanying notes 237-47 (citing Hogan and Jackson as examples
of how pleading an ADA claim, rather than a Section 1983 claim, can benefit a plaintiff
both by increasing her likelihood of success and by paving the way for a remedy that
responds to the specific violation because ADA actions focus on the defendants’ specific conduct that discriminated based on disability).
246

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dismissal of such claims—that ADA’s language and intent precluded
prisoners or arrestees from falling under Title II’s prohibition on denial of the “benefits of the services, programs, or activities of a public
249
entity” —were discarded by the Supreme Court in Yeskey and no
longer serve as justification for a blanket rule excluding such plaintiffs
250
from the reach of Title II.
The difficulties inherent in Section 1983 actions for police misconduct, explored in Part III, heighten the necessity for disabled
plaintiffs to plead parallel Title II and Section 504 claims. Although
the road is certainly not free of comparable obstacles for such claims,
and the monetary damages that are available under Title II may be
limited, such actions complement Section 1983 actions by requiring
different elements and generally falling subject to fewer claims of immunity by defendants.
However, beyond the practical and strategic justifications for
pleading parallel ADA claims in police misconduct cases, as Part III.E
suggested, lies a more compelling reason for disabled plaintiffs to include such claims. The ADA was intended to provide a mandate to
251
eliminate discrimination against individuals with disabilities, but it is
not entirely self-implementing legislation. Even though Title II directs the Attorney General to promulgate regulations to ensure that
252
public entities do not discriminate against people with disabilities,
many forms of discrimination against the disabled go unnoticed and
unchanged. As Susan Stefan has written of discrimination based on
disability, “[t]he more deeply structural, embedded, and nondiscrete
the discrimination is, the less it is recognizable or remediable as dis253
crimination.”
Discrimination against disabled individuals during arrests is a particularly structural and embedded form of discrimination, and it often
249

42 U.S.C. § 12132 (2000).
As Part II acknowledged, however, not all courts are receptive to ADA actions
arising from police misconduct, and the absence of a Supreme Court opinion approving and defining such actions has resulted in the occasional articulation of unjustifiably high standards for plaintiffs to prove a Title II claim based on police officers’ actions in effecting an arrest. See, e.g., Pannell v. City of Bellvue, 184 F. Supp. 2d 686, 689
(N.D. Ohio 2002) (requiring a showing “that the officers intended to act as they did
toward the plaintiff on the basis that he was disabled”).
251
See 42 U.S.C. § 12101(b) (2000) (including among the state purposes of the
ADA the provision of “a clear and comprehensive national mandate for elimination of
discrimination against individuals with disabilities”).
252
See 42 U.S.C. § 12134 (2000) (“[T]he Attorney General shall promulgate regulations . . . that implement [Title II].”).
253
STEFAN, supra note 100, at 24.
250

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goes unrecognized. An officer who is taught to use force when confronted with what she perceives as a threat may apply that knowledge
when responding to a mentally or physically disabled person, not realizing that by treating this person the same way that she treats others,
she may in fact be failing to reasonably accommodate his disability,
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and thereby discriminate against him.
Section 1983 actions,
whether or not they result in a successful judgment for a plaintiff, will
not by themselves send a sufficient message to police departments and
state and local governments that they must change their practices to
accommodate people with disabilities and provide training for their
officers in how to respond to the needs of the disabled. Actions under
the ADA will send precisely such a message.

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Cf. Michael Ashley Stein, Same Struggle, Different Difference: ADA Accommodations
as Antidiscrimination, 153 U. PA. L. REV. 579, 579-80 (2004) (refuting the view that ADAmandated accommodations result in “something more than equality for the disabled”
because “disability-related accommodations must operate as antidiscrimination provisions . . . in order to alter social attitudes towards the disabled”).