OPINION OF THE COURT
JORDAN, Circuit Judge.
Timothy Nixon was a troubled man. After stealing a firearm, he told his partner, Nicole Haberle, that he was going to commit suicide. When a police officer employed
Ms. Haberle has sued, on her own behalf and also as the administrator of Nixon's estate, claiming that that police officer — Daniel Troxell — and other law enforcement officers, and the Borough, violated the Constitution as well as a variety of federal and state statutes. All of her claims were dismissed by the District Court, and she now appeals. Her primary argument is that Troxell unconstitutionally seized Nixon and that Nixon's suicide was the foreseeable result of a danger that Troxell created. She also argues that the Borough violated the Americans with Disabilities Act, 42 U.S.C. §§ 12101-213 (the "ADA"), by, among other things, failing to modify Borough policies, practices, and procedures to ensure that disabled individuals would have their needs met during interactions with the police. Although we recognize the grief borne by those who cared deeply for Mr. Nixon, we are nonetheless persuaded that the District Court was largely correct in its disposition of this case. But, because we conclude that Ms. Haberle should be given an opportunity to amend her complaint with respect to her ADA claim, we will affirm in part and vacate in part the District Court's rulings, and remand for further proceedings.
Timothy Nixon suffered from a variety of mental health problems, including depression. For years, he had lived off and on with his long-time partner, Ms. Haberle, and their two children. On May 20, 2013, he had "a serious mental health episode involving severe depression." (Opening Br. at 6.) He called Haberle and told her that he was suicidal, and then broke into a friend's home and took a handgun. He next went to his cousin's apartment.
Fearing for Nixon's life, Haberle contacted the Borough of Nazareth Police Department. Officer Daniel Troxell obtained a warrant for Nixon's arrest, and, having learned that Nixon was still at his cousin's apartment, Troxell went there, accompanied by other officers from the Borough and surrounding municipalities.
Following the suicide, Haberle sued Troxell, the other officers who were at the scene, the chief of police of Nazareth, the Mayor of Nazareth, and various members of the Borough Council, including the President and Vice-President, and the Borough of Nazareth itself. Her complaint, as
Haberle focuses on three arguments — two under provisions of the Constitution and one under the Americans with Disabilities Act. Specifically, she alleges that dismissal of her claims against Troxell was improper because Troxell's actions amounted to an unconstitutional seizure in violation of the Fourth Amendment. She also claims that Troxell's actions constituted a "state-created danger" in violation of the Due Process Clause of the Fourteenth Amendment.
A. Troxell's Actions Did Not Constitute an Improper Seizure
Police are entitled to "knock and talk" with people in a residence, and doing so is not a seizure under the Fourth Amendment. Estate of Smith v. Marasco, 318 F.3d 497, 519 (3d Cir. 2003) (citing Rogers v. Pendleton, 249 F.3d 279, 289-90 (4th Cir. 2001)). In order to effectuate a seizure, there must be something more than "inoffensive contact between a member of the public and the police...." United States v. Mendenhall, 446 U.S. 544, 555, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). There must be, for instance, "the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, ... the use of language or tone of voice indicating that compliance with the officer's request might be compelled," or some other communication that would convey to a reasonable person that compliance was not optional. Id. at 554, 100 S.Ct. 1870. "[T]he subjective intention of the [officers] ... is irrelevant except insofar as that may have been conveyed to the respondent." Id. at 554 n.6, 100 S.Ct. 1870.
In this case, the District Court correctly concluded that there was no seizure. Whether or not well-advised, and despite his crudely expressed intentions, Troxell merely knocked on the door and announced his presence. That alone is not enough to violate the Fourth Amendment. There is no allegation that Troxell made intimidating remarks to Nixon or announced his presence in a threatening fashion. Nor is there any allegation that Nixon was aware of the warrant or of the other officers that were outside of the apartment complex. The complaint gives no reason to believe that Nixon felt he was "not free to leave," id. at 554, 100 S.Ct. 1870, or that he was unable to "decline the [officer's] requests or otherwise terminate the encounter." Florida v. Bostick, 501 U.S. 429, 436, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). Because Nixon's liberty was not restricted, there was no seizure. See Estate of Bennett v. Wainwright, 548 F.3d 155, 171 (1st Cir. 2008) ("Given the Estate's failure to establish [the decedent's] knowledge of the [police] perimeter, no reasonable factfinder could find that a person in [the decedent's] circumstances would have thought that the perimeter restricted his liberty to leave the ... residence.").
In any event, Troxell acted under color of a warrant, and Haberle does not argue that the warrant was invalid or was obtained under false pretenses or would have resulted in a false arrest. Even if a seizure had occurred, then, it would not have been unlawful. See Berg v. Cty. of Allegheny, 219 F.3d 261, 273 (3d Cir. 2000) (explaining that an officer is immune from suit after an arrest based on a warrant, if there is a reasonable belief that the warrant is valid).
B. Troxell's Actions Did Not Cause a State-Created Danger
As a general principle, the government has no obligation under the Due Process Clause of the Fourteenth Amendment to protect citizens against injuries caused by private actors. DeShaney v. Winnebago Cty. Dep't of Soc. Servs., 489 U.S. 189, 197, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989). That includes a self-inflicted injury. Sanford v. Stiles, 456 F.3d 298, 303-04 (3d Cir. 2006). There is, however, an obligation to protect individuals against dangers that the government itself creates. Bright v. Westmoreland Cty., 443 F.3d 276, 281 (3d Cir. 2006). We have identified four elements for a claim under the "state-created danger" doctrine:
Id. (citations, footnotes, and internal quotation marks omitted). The District Court here considered the second element in particular and determined that Officer Troxell's conduct lacked "a degree of culpability that shocks the conscience." Id. We agree with that assessment.
For behavior by a government officer to shock the conscience, it must be more egregious than "negligently inflicted harm," as mere negligence "is categorically beneath the threshold of constitutional due process." Cty. of Sacramento v. Lewis, 523 U.S. 833, 849, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998). Instead, "only the most egregious official conduct can be said to" meet that standard. Id. at 846, 118 S.Ct. 1708.
The required degree of culpability varies based on the "the circumstances of each case," and, in particular, on the time pressure under "which the government actor[ ] had to respond...." Phillips v. Cty. of Allegheny, 515 F.3d 224, 240 (3d Cir. 2008). Split-second decisions taking place in a "hyperpressurized environment," usually do not shock the conscience unless they are done with "an intent to cause harm." Sanford, 456 F.3d at 309. At the other end of the continuum, actions taken after time for "unhurried judgments" and careful deliberation may shock the conscience if done with deliberate indifference. Id. (quoting Lewis, 523 U.S. at 853, 118 S.Ct. 1708). In the middle are actions taken under "hurried deliberation." Id. at 310. Such situations involve decisions that need to be made "in a matter of hours or minutes." Ziccardi v. City of Philadelphia, 288 F.3d 57, 65 (3d Cir. 2002). If that standard applies, then an officer's actions may shock the conscience if they reveal a conscious disregard of "a great risk of serious harm rather than a substantial risk." Sanford, 456 F.3d at 310.
Not surprisingly, Troxell urges us to adopt the split-second standard, while Haberle presses for the unhurried judgment standard. The District Court applied the intermediate standard — the one for situations involving "hurried deliberation," id. at 309, and that was correct. Nixon had expressed suicidal tendencies and had stolen a deadly weapon. There was not time for casual deliberation. On the other hand, a few hours had passed since Nixon stole the gun and there was no indication that the situation was escalating or otherwise required instantaneous action by Troxell. Therefore, the District Court properly applied the intermediate standard and asked whether Troxell's actions showed conscious disregard of a great risk of harm to Nixon.
The decision Troxell made to ignore the advice of other officers and knock on the apartment door falls beneath the threshold of conscious disregard. Haberle describes Troxell's actions as "Ramboesque vigilantism,"
C. Haberle Has Not Pled a Compensable Claim Under the ADA
The final issue on appeal involves Haberle's claim that the Borough violated the ADA. She argues that she is entitled to money damages because the Borough "fail[ed] to make reasonable modifications to [its] policies, practices and procedures to ensure that [Nixon's] needs as an individual with a disability would be met." (App. at 87.) While we agree that, in general, the ADA applies to arrest situations, Haberle fails to state a claim for damages under that statute because she does not allege facts showing that any inaction of the Borough reflects deliberate indifference.
1. The ADA Generally Applies When Police Officers Make an Arrest
As a threshold matter, we consider whether the ADA applies when police officers make an arrest. Although the question is debatable, we think the answer is generally yes.
The second question is whether arrestees may have disabilities covered by the ADA, and the answer to that is clearly "yes." See 42 U.S.C. § 12102(1) (defining "disability" for purposes of the ADA). Like the overall population, the subset of people who violate the law, or are suspected of such, will naturally include those with recognized disabilities. The dragnet, so to speak, gathers of every kind.
Saving the third qualifying question for last, we next note that the fourth requirement, that the claimant has been excluded from a service, program, or activity or discriminated against by reason of his disability, is also one that can be satisfied in the context of an arrest. If the arrestee's "disability `played a role in the... decisionmaking process and ... had a determinative effect on the outcome of that process[,]'" i.e., if the arrestee's disability was a "but for" cause of the deprivation or harm he suffered, then the fourth element of an ADA claim has been met. See CG v. Pa. Dep't of Educ., 734 F.3d 229, 236 n.11 (3d Cir. 2013) (quoting New Directions Treatment Servs. v. City of Reading, 490 F.3d 293, 300 n.4 (3d Cir. 2007)).
The most controversial question pertinent to whether the ADA applies when police officers are making arrests comes in the context of the statute's third requirement. We must consider whether arrests made by police officers are "services, programs, or activities of a public entity," or alternatively, whether police officers may be liable under the ADA for "subject[ing a qualified individual] to discrimination" while effectuating an arrest. 42 U.S.C. § 12132.
The text of the ADA is deliberately broad and police departments "fall[ ] `squarely within the statutory definition of
Fortunately, we do not need to resolve that issue in this case, because § 12132 is framed in the alternative and we can look instead to the second phrase, namely, to whether the arrestee was "subjected to discrimination" by the police. Id.; see also Bircoll v. Miami-Dade Cty., 480 F.3d 1072, 1084 (11th Cir. 2007) (concluding that the court did not need to decide "whether police conduct during an arrest is a program, service, or activity covered by the ADA" because a plaintiff "could still attempt to show an ADA claim under the final clause in the Title II statute"). The "subjected to discrimination" phrase in Title II is "a catch-all phrase that prohibits all discrimination by a public entity, regardless of the context." Bircoll, 480 F.3d at 1085 (quoting Bledsoe v. Palm Beach Cty. Soil & Water Conservation Dist., 133 F.3d 816, 821-22 (11th Cir. 1998)); accord Seremeth v. Bd. of Cty. Comm'rs Frederick Cty., 673 F.3d 333, 338 (4th Cir. 2012); Innovative Health Sys., Inc. v. City of White Plains, 117 F.3d 37, 44-45 (2d Cir. 1997), overruled on other grounds by Zervos v. Verizon N.Y., Inc., 252 F.3d 163 (2d Cir. 2001). Moreover, we have said that "[d]iscrimination under the ADA encompasses not only adverse actions motivated by prejudice and fear of disabilities, but also includes failing to make reasonable accommodations for a plaintiff's disabilities." Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 306 (3d Cir. 1999). It follows, then, that police officers may violate the ADA when making an arrest by failing to provide reasonable accommodations for a qualified arrestee's disability, thus subjecting him to discrimination. Given that catchall, we believe that the ADA can indeed apply to police conduct during an arrest.
That conclusion, which is suggested by the wide scope of the ADA's text, has
2. Haberle Does Not Allege Deliberate Indifference
Even though the ADA generally applies in the arrest context, Haberle's claim for money damages against the Borough fails as a matter of law because she has not adequately pled that the Borough acted with deliberate indifference to the risk of an ADA violation. She seeks compensatory damages from the Borough under the ADA, but that remedy is not available absent proof of "intentional discrimination." S.H. ex rel. Durrell v. Lower Merion Sch. Dist., 729 F.3d 248, 261 (3d Cir. 2013) ("[C]laims for compensatory damages under ... § 202 of the ADA also require a finding of intentional discrimination."). To prove intentional discrimination, an ADA claimant must prove at least deliberate indifference, id. at 263, and to plead deliberate indifference, a claimant must allege "(1) knowledge that a federally protected right is substantially likely to be violated ... and (2) failure to act despite that knowledge." Id. at 265 (emphasis omitted).
Haberle, however, fails to allege that the Borough was aware that its existing policies made it substantially likely that disabled individuals would be denied their federally protected rights under the ADA. She could have met that obligation in two different ways: first, by alleging facts suggesting that the existing policies caused a failure to "adequately respond to a pattern of past occurrences of injuries like the plaintiffs,'" or, second, by alleging facts indicating that she could prove "that the risk of ... cognizable harm was `so great and so obvious that the risk and the failure... to respond will alone' support finding" deliberate indifference. Beers-Capitol v. Whetzel, 256 F.3d 120, 136-37 (3d Cir. 2001) (quoting Sample v. Diecks, 885 F.2d 1099, 1118 (3d Cir. 1989) (in the context of § 1983 suits by prison inmates)); see S.H.
Haberle's complaint does neither. She relies on general allegations that the Borough has "a history of violating the civil rights of residents[,]" (App. at 76), offering only hazy support for that statement. Even if she could ultimately prove a generalized history of civil rights violations, that would not necessarily demonstrate "a pattern of past occurrences of injuries like the plaintiff['s.]" Beers-Capitol, 256 F.3d at 136 (emphasis added). Because those other vaguely referenced violations have not been adequately alleged to be "similar to the violation at issue here, they could not have put [the Defendant] on notice" that policies, practices, and procedures had to be changed. Connick v. Thompson, 563 U.S. 51, 63, 131 S.Ct. 1350, 179 L.Ed.2d 417 (2011). Nevertheless, with respect to that defect, Haberle should be given an opportunity to amend her complaint, if possible, to salvage her ADA claim against the Borough, since this failure in her complaint is not one as to which we can say definitively that amendment would be futile.
Haberle also complains that "a set of policies and procedures had been drafted by the Department" which should have guided "interact[ion] with mentally disturbed individuals, and those in crisis situations[,]" but that "the said policies and procedures were not adopted by the Borough Council, nor were they implemented by the Mayor or Police Department." (App. at 78-79.) Yet Haberle does not allege any facts indicating that the policies were drafted because of an awareness that the pre-existing policies were substantially likely to lead to a violation of citizens' rights. Absent such awareness, a municipality cannot be found to be deliberately indifferent merely for considering but not yet adopting new policies or amendments to old ones. To impose liability on that basis would create a perverse deterrent to voluntary reform.
Haberle likewise fails to allege that the risk of harm was "so great and so obvious," as to obviate the need for her to allege facts pertaining to the Borough's knowledge. Beers-Capitol, 256 F.3d at 136 (quoting Sample, 885 F.2d at 1118). At most, she claims that the Borough's conduct falls "beneath the nationally recognized standards for police department operations" with regard to those with mental illness. (App. at 75.) But, assuming that is true, falling below national standards does not, in and of itself, make the risk of an ADA violation in such circumstances "so patently obvious that a [municipality] could be held liable" without "a pre-existing pattern of violations." Connick, 563 U.S. at 64,
For the foregoing reasons, we will affirm in part and vacate in part the District Court's dismissal of Haberle's claims, and remand for further proceedings consistent with this opinion.
Greenaway, Jr., Circuit Judge, concurring.
I join the majority opinion and agree that Title II of the Americans with Disabilities Act (ADA) applies to arrests when the arrestee is "subjected to discrimination" by the police. Maj. Op. at 180 (quoting 42 U.S.C. § 12132). However, I would also hold that — based on the text of Title II, the Department of Justice's interpretations of Title II, and the Supreme Court's holding in Pa. Dep't of Corr. v. Yeskey, 524 U.S. 206, 118 S.Ct. 1952, 141 L.Ed.2d 215 (1998) — that arrests constitute "services, programs, or activities of a public entity" under the ADA. 42 U.S.C. § 12132.
As the majority has stated, to successfully state a claim under Title II of the ADA, a plaintiff must, inter alia, demonstrate that "[he or she] was excluded from participation in or denied the benefits of the services, programs, or activities of a public entity, or was subjected to discrimination by any such entity." Maj. Op. at 178 (quoting Bowers v. Nat'l Collegiate Athletic Ass'n, 475 F.3d 524, 553 n.32 (3d Cir. 2007)) (emphasis added). However, the majority's holding only allows an arrestee to succeed on an ADA claim if he or she can prove discrimination by a public entity, leaving open the question of whether an arrestee can recover under the ADA for being "denied the benefits of the services, programs, or activities of a public entity." 42 U.S.C. § 12132. This is significant because "[c]ases charging discrimination are uniquely difficult to prove and often depend upon circumstantial evidence." Sheridan v. E.I. DuPont de Nemours & Co., 100 F.3d 1061, 1071 (3d Cir. 1996).
In my estimation, the statutory text of the ADA makes clear that arrests can qualify as a "service[ ], program[ ], or activit[y]" of the police, and I therefore see no reason to hang a cloud of doubt over an arrestee's right to recovery under this alternate theory. Congress declared that the purpose of the ADA was "to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." 42 U.S.C. § 12101(b)(1). "[S]ervices, programs, or activities," is a phrase that Congress intended to be construed consistently with its definition in the precursor to
In Barden v. City of Sacramento, for example, the Ninth Circuit explained:
292 F.3d 1073, 1076-77 (9th Cir. 2002) (first alteration added); see also Fortyune v. City of Lomita, 766 F.3d 1098, 1102 (9th Cir. 2014) ("[T]he term `services, programs, or activities' as used in the ADA is... broad, bringing within its scope anything a public entity does." (internal quotation marks omitted)); Babcock v. Michigan, 812 F.3d 531, 540 (6th Cir. 2016) ("[T]he phrase `services, programs, and activities,'... `encompass[es] virtually everything that a public entity does.'" (quoting Johnson v. City of Saline, 151 F.3d 564, 569 (6th Cir. 1998))); Johnson, 151 F.3d at 570 ("[A] broad reading of `programs, services, and activities' is consistent with the broad definition used in § 504 of the Rehabilitation Act. This is significant, because we look to the Rehabilitation Act for guidance in construing similar provisions in the Americans with Disabilities Act." (emphasis added)). Accordingly, under the clear language of Title II, the terms "services, programs, or activities" regulate arrests independent of the catch-all phrase that prohibits all discrimination by public entities.
In addition to the plain text, the Department of Justice's interpretations of Title II also provide that arrests are "services,
Lastly, the majority is reluctant to determine whether an arrest qualifies as a service, program, or activity under Title II because — according to it — this is an issue that "courts across the country are divided on ...." Maj. Op. at 180. Two of our sister circuits have addressed this precise issue to date. In Sheehan v. City and Cty. of S.F., the Ninth Circuit held that arrests are covered by Title II because "[t]he ADA applies broadly to police `services, programs, or activities.'" 743 F.3d 1211, 1232 (9th Cir. 2014) (quoting 42 U.S.C. § 12132), rev'd in part on other grounds and cert. dismissed in part as improvidently granted, ___ U.S. ___, 135 S.Ct. 1765, 191 L.Ed.2d 856 (2015). Conversely, the Fourth Circuit in Rosen v. Montgomery Cty. Md. concluded that arrests are not services, programs, or activities because "[t]he terms `eligible' and `participate' imply voluntariness on the part of an applicant who seeks a benefit from the State." 121 F.3d 154, 157 (4th Cir. 1997) (quoting Torcasio v. Murray, 57 F.3d 1340, 1347 (4th Cir. 1995)).
The Supreme Court, however, squarely rejected Rosen's reasoning in Yeskey. See 524 U.S. at 211, 118 S.Ct. 1952 (rejecting argument "that the words `eligibility' and `participation' imply voluntariness on the part of an applicant who seeks a benefit from the State"). Accordingly, "[c]ourts across the country have called Rosen's holding into question in light of the Supreme Court's decision in [Yeskey]." Seremeth v. Bd. of Cty. Comm'rs Frederick Cty., 673 F.3d 333, 337 (4th Cir. 2012) (collecting cases); see, e.g., Thompson v. Davis, 295 F.3d 890, 897 (9th Cir. 2002) ("[Rosen's] reasoning has now been discredited by the Supreme Court."). Indeed, in Seremeth, the Fourth Circuit declined to rely on Rosen and held that Title II applies to police interrogations based on the phrase "services, programs, or activities" in addition to the catch-all antidiscrimination phrase. 673 F.3d at 338-39; id. at 338 n.2 ("[W]e do not rely on the portion of the district court's decision that depends
We therefore need not be troubled by declining to follow Rosen and its logic. Rather, we should be cognizant that no court of appeals has held that arrests are not "services, programs, or activities of a public entity," 42 U.S.C. § 12132, since the Supreme Court decided Yeskey twenty years ago.
The statutory text, the Department of Justice's interpretations of the text, and the Supreme Court's broad interpretation of the ADA in Yeskey establish that arrests are "services, programs, or activities of a public entity" under Title II. 42 U.S.C. § 12132. I therefore see no reason to be less than plain that an arrestee with a disability has two paths to vindicate his or her disability rights.
Haberle has standing to bring her § 1983 claims on behalf of Nixon as the administrator of his estate. Giles v. Campbell, 698 F.3d 153, 156 (3d Cir. 2012) (explaining that the survival of claims is determined by reference to "the common law, as modified and changed by the constitution and statutes of the [forum] State," unless inconsistent with federal law, and that "`the survival of civil rights of actions under § 1983 upon the death of either the plaintiff or defendant' was an area not covered by federal law" (alteration in original) (quoting Robertson v. Wegmann, 436 U.S. 584, 588, 98 S.Ct. 1991, 56 L.Ed.2d 554 (1978))); see also 42 Pa. Cons. Stat. Ann. § 8302 ("All causes of action or proceedings, real or personal, shall survive the death of the plaintiff or of the defendant, or the death of one or more joint plaintiffs or defendants."). Haberle likewise has standing to bring the ADA claim even after Nixon's death — either under federal common law or based on Pennsylvania law. Compare Guenther v. Griffin Constr. Co., Inc., 846 F.3d 979, 982 (8th Cir. 2017) (concluding that an ADA claim survives the death of an injured party under federal common law), with Slade for Estate of Slade v. U.S. Postal Serv., 952 F.2d 357, 360 (10th Cir. 1991) (applying state law to determine that a survivorship claim was permissible under the ADA).
Schorr is a thoughtful effort to address difficult issues but, ultimately, its reasoning misses the mark because it is incompatible with the text of the ADA. As the District Court here correctly observed, an ADA violation occurs if and when a disabled individual is "excluded from participation in" or "denied the benefits of the services, programs, or activities of a public entity" or is "subjected to discrimination by any such entity." (App. at 28 n.20 (quoting 42 U.S.C. § 12132).) A municipality's failure to train its police is not actionable unless and until that failure leads directly to a denial of a needed accommodation or improper discrimination. It is the denial that gives rise to the claim. Thus, contrary to the assertion in Schorr that ADA deprivations could occur before the day of the problematic incident between the citizen and the police, it is the incident itself that must be the focus of attention.