¹ The case studies demonstrate the disproportionate racial impact of police violence on individuals of color with disabilities. See Dominic Bradley & Sarah Katz, Sandra Bland, Eric Garner, Freddie Gray: The Toll of Police Violence on Disabled Americans, Guardian (June 9, 2020), https://www.theguardian.com/commentisfree/2020/jun/09/sandra-bland-eric-garner-freddie-gray-the-toll-of-police-violence-on-disabled-americans [https://perma.cc/QP8D-EBJ8] (“People of color in the US are more likely to be disabled, have a mental illness or have a chronic medical condition, due to a number of factors, including environmental racism and poor access to healthcare. Given the significant overlap between police brutality toward black people and people with disabilities, any meaningful attempt at change must address both factors.”); Camille Nelson, Racializing Disability, Disabling Race: Policing Race and Mental Status, 15 Berkeley J. Crim. L. 1, 21-54 (2010) (case studies addressing the intersection of race and mental status, and the disproportionate impact of police violence on people of color with disabilities). All too often the intersection of ableism and racism is erased. See, e.g., Harriet Tubman: Disability Rights in Black 2020, Nat’l Disability Rts. Network (Feb 1, 2020), https://www.ndrn.org/resource/drib2020-harriet-tubman/ [https://perma.cc/T3MJ-LD9Y] (revealing Harriet Tubman suffered from epileptic seizures after being struck with a weight as a slave). Thus, this Note attempts to highlight BIPOC narratives when arguing for a disabilities-first analysis of law enforcement misconduct.

² Because law enforcement encounters frequently involve arrestees with mental disabilities, the majority of the cases analyzed in this Note will address mental disability. See, e.g., Doris A. Fuller et al., Overlooked in the Undercounted: The Role of Mental Illness in Fatal Law Enforcement Encounters 1 (2015), https://www.treatmentadvocacycenter.org/storage/documents/overlooked-in-the-undercounted.pdf [https://perma.cc/C38W-SNGT] (official and unofficial reports indicated roughly 25% of fatal police encounters involve a person with severe mental illness). However, as later discussed, this Note’s proposed test applies not only to individuals with mental disabilities, but is also applicable to individuals with physical and emotional disabilities, as well as those with undiagnosed disabilities.

³ Complaint at 15-18, Bannon v. Godin No.1:20-cv-11501-RGS (D. Mass. Aug. 10, 2020) [hereinafter Root Complaint].

⁴ This Note uses traditional Mr./Ms. honorifics for the victims discussed, not only as a sign of respect, but because these are the honorifics the cases, lawsuits, and articles use. Recognizing that such honorifics may misgender or erase trans individuals, I attempted to thoroughly researched each individual’s public gender identity.

⁵ Root Complaint, supra note 3, at 20-21 (At the scene, Officer Godin told other officers, “Yeah, I killed that mother**ker.” Mr. Root was pronounced dead at Beth Israel Deaconess Medical Center.).

⁶ Id. at 4-5.

⁷ Complaint at 11-15, Prude v. City of Rochester, No. 6:20-cv-06675 (W.D.N.Y. Sept. 8, 2020) [hereinafter Prude Complaint]; Sarah Maslin Nir et al., 7 Police Officers Suspended as a Black Man’s Suffocation Roils Rochester, N.Y. Times (Sept. 8, 2020), https://www.nytimes.com/2020/09/03/nyregion/daniel-prude-police-rochester.html?campaign_id=57&emc=edit_ne_20200904&instance_id=21939&nl=evening-briefing&regi_id=73030725&segment_id=37497&te=1&user_id=05680f01cce6490abc46aef07de8682a [https://perma.cc/7TGH-DFHW].

⁸ Prude Complaint, supra note 7, at 12, 13.

⁹ Id. at 3.

¹⁰ Alex Zielinski, Police Files Reveal New Information About Andre Gladen’s Death, Portland Mercury (Mar. 7, 2019), https://www.portlandmercury.com/blogtown/2019/03/07/26127301/ppb-files-reveal-new-information-about-andre-gladens-death [https://perma.cc/P5JP-5C4G].

¹¹ Id.

¹² Rather than compile an outdated list of names, I recommending visiting the website Say Every Name which keeps an updated homage to all BIPOC murdered by the police. #SayTheirNames, Say Every Name, https://sayevery.name/ [https://perma.cc/3LDT-VJCD] (last visited Dec. 24, 2021). Since Mr. Root, Mr. Prude, and Mr. Gladen were chosen as case studies for this Note in the Fall of 2020, other recent tragic deaths include Brian Christopher Howard, who was shot by police on December 2, 2021, after calling 911 himself to report he was in the midst of a mental health crisis, and Jessiram Hweih Rivera, a woman with a long history of bipolar, who was killed on November 11, 2021, by police responding to reports she was carrying a shovel. See Richard Meyer, Medical Examiner: Buffalo Grove Man Died From Gunshot To Chest, J. & Topics (Dec. 3, 2021), https://www.journal-topics.com/articles/medical-examiner-buffalo-grove-man-died-from-gunshot-to-chest/ [https://perma.cc/5ZS2-SKT9]; Florida Sergeant Shoots Woman Who Lunged at Him with Shovel, Tampa Bay Times (Nov. 12, 2021), https://www.tampabay.com/news/crime/2021/11/12/ florida-deputy-shoots-woman-who-lunged-at-him-with-shove/ [https://perma.cc/LU7Y-3GKX].

¹³ David M. Perry & Lawrence Carter-Long, The Ruderman White Paper on Media Coverage of Law Enforcement Use of Force and Disability: A Media Study (2013-2015) and Overview 4-5 (2016), https://rudermanfoundation.org/wp-content/uploads/2017/08/MediaStudy-PoliceDisability_final-final.pdf [https://perma.cc/356U-6DX8] (defining disability as “inclusive of physical, developmental, intellectual, psychiatric, emotional, and any other form of disability that might fall under the Americans with Disabilities Act (ADA)”); see also E. Fuller Torrey et al., Justifiable Homicides by Law Enforcement Officers: What is the Role of Mental Illness? 6 (2013), https://www.treatmentadvocacycenter.org/storage/documents/2013-justifiable-homicides.pdf [https://perma.cc/8R3F-JJXB] (citing Kelley Bouchard, Across Nation, Unsettling Acceptance When Mentally Ill in Crisis are Killed, Portland Press Herald (Dec. 9, 2012), https://www.pressherald.com/2012/12/09/shoot-across-nation-a-grim-acceptance-when-mentally-ill-shot-down/ [https://perma.cc/D87V-V9S5] (“at least half of the estimated 375 to 500 people shot and killed by police each year in this country have mental health problems.”)).

¹⁴ Fuller et al., supra note 2 at 1 (finding that 7.9 million people in the United States live with severe mental illness that disorders their thinking).

¹⁵ Id. at 12.

¹⁶ Fatal Force, Wash. Post, https://www.washingtonpost.com/graphics/investigations/police-shootings-database/ [https://perma.cc/X9BN-XWFW] (last visited Dec. 23, 2021) (scroll to “Search the database” and hover over “mental illness”). In compiling its database of fatal police shootings, Washington Post categorized individuals with “signs of mental illness” based on “news reports have indicated the victim had a history of mental health issues, expressed suicidal intentions or was experiencing mental distress at the time of the shooting.” Data-police-shootings, Wash. Post, https://github.com/washingtonpost/data-police-shootings [https://perma.cc/V3ZF-T2VT] (last visited Dec. 23, 2021).

¹⁷ See Wash. Post, supra note 16 (limiting its data set to known cases of mental illness, as well as law enforcement encounters that ended in fatalities).

¹⁸ Bradley & Katz, supra note 1; Fatal Force, supra note 16.

¹⁹ Elise Kaplan, IA Finds Misconduct in June Police Shooting, Albuquerque J. (Mar. 22, 2021), https://www.abqjournal.com/2372382/internal-affairs-finds-misconduct-in-june-police-shooting.html [https://perma.cc/DK24-HPJD].

²⁰ James D. Livingston, Contact Between Police and People With Mental Disorders: A Review of Rates, 67 Psych. Servs. 850, 852 (2016) (finding one in four individuals with mental illness had experienced police encounters in international study); see also Gus Alexiou, No Justice, No Speech: Autism a Deadly Hazard When Dealing With Police, Forbes (June 14, 2020), https://www.forbes.com/sites/gusalexiou/2020/06/14/police-killing-and-criminal-exploitation-dual-threats-to-the-disabled/?sh=322b6c44f0fa [https://perma.cc/572W-LCA8] (arguing that a Palestinian citizen’s death is “part of a wider global pandemic of individuals with intellectual disabilities and psychiatric disorders losing their life because police forces misinterpret behaviors relating to their condition as suspicious and non-compliant.”).

²¹ See Osagie K. Obasogie, Police Killing Black People is a Pandemic, Too, Wash. Post (June 5, 2020), https://www.washingtonpost.com/outlook/police-violence-pandemic/2020/06/05/e1a2a1b0-a669-11ea-b619-3f9133bbb482_story.html [https://perma.cc/6ZLW-L2TY] (discussing long term public health implications of the coronavirus pandemic as intersecting with existing issue of police violence in United States); Ross C. Brownson et al., Reimagining Public Health in the Aftermath of a Pandemic, 110 Am. J. Pub. Health 1605, 1605 (2020) (“A reinvented public health system will depend highly on leadership and political will, rethinking how we categorize and address population-level risk, employing 21st-century data sciences, and applying new communication skills.”). It is also important to note also how the coronavirus pandemic has exacerbated mental health issues not only among those with pre-existing diagnoses, but also among those who may be feeling the social, physical, and financial losses resulting from the pandemic, thus increasing the number of individuals susceptible to police encounters. Ronald W. Pies, Commentary, Is the Country Experiencing a Mental Health Pandemic?, 37 Psychiatric Times, Oct. 2020, at 1, 21; see also Catherine K. Ettman et al., Prevalence of Depression Symptoms in US Adults Before and During the COVID-19 Pandemic, 3 JAMA Network Open, Sept. 2, 2020 at 7 (finding depression rates among sample of United States adults tripled in 2020).

²² Amelia Thomson-DeVeaux et al., Why It’s So Rare For Police Officers To Face Legal Consequences, FiveThirtyEight (June 4, 2020, 6:00 AM), https://fivethirtyeight.com/features/why-its-still-so-rare-for-police-officers-to-face-legal-consequences-for-misconduct/ [https://perma.cc/ATW3-F6ZG] (“Most years, the number of officers charged with murder or manslaughter in connection with an on-duty shooting is in the single digits.”); see, e.g., Dylan Lovan, Q&A: What Were the Results of Breonna Taylor Investigation?, Associated Press (Sept. 23, 2020), https://apnews.com/article/shootings-police-kentucky-racial-injustice-louisville-530bf2a8cad0eded6c7643ef77e9a384 [https://perma.cc/8LU7-LV3S] (a grand jury declined to charge officers who shot and killed Breonna Taylor after entering her apartment); Ryan Bell, Washington: Holding Police Accountable for Their Use of Deadly Force, Colum. Journalism Rev. (Oct. 17, 2018), https://www.cjr.org/special_report/2018-midterms-washington-malice-police.php [https://perma.cc/6XAW-RXP2] (discussing how “Washington has one of the United States’ most ironclad deadly force laws, shielding officers from criminal liability so long as their actions are ’without malice.’“). In February 2020, the New York attorney general, Letitia James, announced that none of the officers who arrested Mr. Prude would face charges for his death. Sarah Maslin Nir, Rochester Officers Will Not Be Charged in Killing of Daniel Prude, N.Y. Times (Mar. 6, 2021), https://www.nytimes.com/2021/02/23/nyregion/daniel-prude-rochester-police.html?campaign_id=60&emc=edit_na_20210223&instance_id=0&nl=breaking-news&ref=cta&regi_id=96528924&segment_id=52199&user_id=3aa7e4363e55ebe75959a2125a4f4308 [https://perma.cc/3QES-MDAN].

²³ According to one study, only 42 state and local officers have been convicted since 2005 for fatal shootings and most were for offenses less than murder. See Thomson-DeVeaux et al., supra note 22. For example, a grand jury found that Mr. Gladen’s murder was a “lawful act of self-defense,” and that the officer should not be criminally charged. Alex Zielinski, No Criminal Charges for Portland Cop Who Fatally Shot Blind, Mentally Ill Black Man, Portland Mercury (Feb. 22, 2019, 10:03 AM), https://www.portlandmercury.com/blogtown/2019/02/22/25983390/no-criminal-charges-for-portland-cop-who-fatally-shot-blind-mentally-ill-black-man [https://perma.cc/2H8B-8KG8]. As Mr. Gladen’s brother states, “This is the norm. The world knows that.” Id. See also infra Part II(C)(3) for a brief discussion of the qualified immunity barrier.

²⁴ Police Officers Rarely Charged for Excessive Use of Force in Federal Court, TRACREPORTS (June 17, 2020), https://trac.syr.edu/tracreports/crim/615/ [https://perma.cc/B4ZM-9LXH] (finding federal prosecutors turn down nine out of ten referrals for law enforcement excessive force cases); David Shortell, Barr Sides Against Civil Rights Officials in Declining to Bring Charges Against NYPD Officer in Garner Case, CNN (July 16, 2019, 12:12 PM), https://www.cnn.com/2019/07/16/politics/eric-garner-william-barr-nypd-officer-daniel-pantaleo/index.html [https://perma.cc/AXU2-BXWF] (explaining in wake of failure to indict officer who choked Eric Garner that standard to press federal charges against officers accused of unlawful use of force is “the highest standard of intent imposed by law”).

²⁵ 42 U.S.C. § 1983 (2018); Graham v. Connor, 490 U.S. 386, 390-94 (1989).

²⁶ Americans with Disabilities Act of 1990, Pub. L. No. 101-336, 104 Stat. 327 (codified as amended at 42 U.S.C. §§ 12101-12213).

²⁷ See, e.g., Fletcher v. Tomlinson, 895 F.3d 1010, 1023-24 (8th Cir. 2018) (affirming the lower court’s findings of excessive force under § 1983).

²⁸ Root Complaint, supra note 3, at 26; Prude Complaint, supra note 7, at 21. No lawsuit has been initiated in Mr. Gladen’s death. Maxine Bernstein, Multnomah County Grand Jury Finds no Criminal Wrongdoing in Portland Police Fatal Shooting of Andre Gladen, Oregonian (Feb. 22, 2019), https://www.oregonlive.com/crime/2019/02/multnomah-county-grand-jury-finds-no-criminal-wrongdoing-in-portland-police-fatal-shooting-of-andre-gladen.html [https://perma.cc/B37E-MYPB].

²⁹ As mentioned, this Note attempts to highlight BIPOC narratives when arguing for an disabilities-first analysis of law enforcement misconduct.

³⁰ ADA Amendments Act of 2008, Pub. L. No. 110-325, § 2(a), 122 Stat. 3553, 3553 (codified as amended at 42 U.S.C. § 12101).

³¹ See infra Part III(B).

³² Graham v. Connor, 490 U.S. 386, 396 (1989).

³³ 28 C.F.R. § 36.208 (2010) (specifically, whether “reasonable modifications of policies, practices, or procedures or the provision of auxiliary aids or services will mitigate the risk [of the arrestee].”).

³⁴ See Estate of Hill v. Miracle, 853 F.3d 306, 314 (6th Cir. 2017), discussed infra Part IV(A); Estate of Redd v. Love, 848 F.3d 899, 908 (10th Cir. 2017) (“The Fourth Amendment reasonableness analysis is not limited to the three Graham factors.”); Gravelet-Blondin v. Shelton, 728 F.3d 1086, 1091 (9th Cir. 2013) (finding that “Graham provides a non-exhaustive list of factors to consider in determining the governmental interests at stake” when holding that officer’s use of taser against bystander following officer’s orders to be unreasonable).

³⁵ Scott v. Harris, 550 U.S. 372, 396 (2007) (Stevens, J., dissenting); see also infra Part II(B), discussing flexibility of the Graham test.

³⁶ As discussed infra, the Department of Justice has interpreted “regarded as” under the ADA to mean where an officer “knows or reasonably should know that the person has a disability and needs a modification, even where the individual has not requested a modification, such as during a crisis.” Examples and Resources to Support Criminal Justice Entities in Compliance with Title II of the Americans with Disabilities Act, U.S. Dep’t of Just. Civ. Rts. Div. (Jan. 2017), https://www.ada.gov/cjta.html [https://perma.cc/TJ5G-JAF6] [hereinafter DOJ Examples and Resources].

³⁷ See City & Cnty. of San Francisco v. Sheehan, 575 U.S. 600, 610 (stating that the Court had never decided and declined to decide whether public entities can be liable for its employees’ actions under Title II).

³⁸ See Hill, 853 F.3d at 314.

³⁹ This is what the plaintiff did in Sheehan, 575 U.S. at 606, discussed infra. See also Waller ex rel. Estate of Hunt v. City of Danville, 556 F.3d 171, 173 (4th Cir. 2009) (noting plaintiff brought both § 1983 and ADA causes of action).

⁴⁰ Transcript of Oral Argument at 1, Graham v. Connor, 490 U.S. 386 (1989) (No. 87-6571).

⁴¹ 42 U.S.C. § 1983. Civil rights lawsuits against federal law enforcement officers fall under the Bivens doctrine. See generally Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). In Bivens, the Court allowed an excessive force claim for damages against federal narcotics agents to proceed with a right of action directly from the Fourth Amendment rather than an authorizing statute. Id. at 395. However, “[t]he Court has made clear that expanding the Bivens remedy is now a ’disfavored’ judicial activity.” Ziglar v. Abbasi, 137 S. Ct. 1843, 1857 (2017) (citing Ashcroft v. Iqbal, 556 U.S. 662, 675 (2008)). The Court has declined to apply Bivens in a new context for the last thirty years. Id. Thus, the focus of the article will be on § 1983 claims, but much of this analysis applies to Bivens as well.

⁴² See Monroe v. Pape, 365 U.S. 167, 175-76 (1961) (“While one main scourge of the evil—perhaps the leading one—was the Ku Klux Klan, the remedy created was not a remedy against it or its members but against those who representing a State in some capacity were unable or unwilling to enforce a state law.”) (footnote omitted), overruled on other grounds in Monell v. Dep’t of Soc. Servs. 436 U.S. 658, 663, 700 (1978); see also Eric A. Harrington, Judicial Misuse of History and § 1983: Towards a Purpose-Based Approach, 85 Tex. L. Rev. 999, 1006 (2007) (“[T]he Ku Klux Klan Act of 1871 was nothing short of a declaration of war against the domestic terrorists of the South and all those who sympathized or supported them.”); id. at 1004 (arguing that the Klan “creat[ed] its own ‘legal regime’ through the use of force.”).

⁴³ See Harrington, supra note 2, at 1006, 1006 n.37 (citing the Ku Klux Klan Act of 1871, Pub. L. No. 42-22, 17 Stat. 13 (currently 42 U.S.C. §1983)).

⁴⁴ Owen v. Independence, 445 US 622, 651 (1980).

⁴⁵ Id. (“Moreover, § 1983 was intended not only to provide compensation to the victims of past abuses, but to serve as a deterrent against future constitutional deprivations, as well.”)

⁴⁶ Harrington, supra note 42, at 1006.

⁴⁷ Martin A. Schwartz, Constitutional Litigation Under Section 1983 and the Bivens Doctrine in the October 2008 Term, 26 Touro L. Rev. 531, 532 (2010).

⁴⁸ Graham v. Connor, 490 U.S. 386, 394 (1989) (citing Baker v. McCollan, 443 U.S. 137, 140 (1979)).

⁴⁹ A seizure occurs when a government official where there is: (1) a show of police authority and (2) either physical force or submission to the assertion of authority. California v. Hodari D., 499 U.S. 621, 625 (1991) (citing Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968)).

⁵⁰ U.S. Const. amend. IV (“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”)

⁵¹ Alice Ristroph, The Constitution of Police Violence, 64 UCLA L. Rev. 1182, 1184 (2017).

⁵² Graham, 490 U.S. at 395.

⁵³ Id.

⁵⁴ Id. at 396.

⁵⁵ Id. at 395-96. (citing Tennessee v. Garner, 471 U.S. 1, 8–9 (1985)) (“Today we make explicit what was implicit in Garner ’s analysis, and hold that all claims that law enforcement officers have used excessive force—deadly or not—in the course of an arrest, investigatory stop, or other “seizure” of a free citizen should be analyzed under the Fourth Amendment and its “reasonableness” standard.”)

⁵⁶ Id. at 396.

⁵⁷ Id. (“An officer’s evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force; nor will an officer’s good intentions make an objectively unreasonable use of force constitutional.”)

⁵⁸ Graham expanded Fourth Amendment protection from only deadly force against a fleeing suspect as recognized in Tennessee v. Garner. Id. at 395.

⁵⁹ See e.g., David H. Kaye, Why So Contrived? Fourth Amendment Balancing, Per Se Rules, and DNA Databases After Maryland v. King, 104 J. Crim. L. & Criminology 535 (2014) (critiquing per se rules in Fourth Amendment context); Joshua Lewis, To Stop and Presume: Balancing a Per Se Right to Frisk Suspected Narcotics Traffickers on the Fourth Amendment Scales, 65 La. L. Rev. 865, 873 (2005) (“The United States Supreme Court has … treated per se rules under the Fourth Amendment with hostility.”).

⁶⁰ Graham, 490 U.S. at 397 (“An officer’s evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force; nor will an officer’s good intentions make an objectively unreasonable use of force constitutional.”).

⁶¹ Note that diabetes is a per se impairment under the ADA. See 28 C.F.R. § 35.108(b)(2) (2017) (definition of disability includes physical or mental impairments such as “diabetes”). Thus, Mr. Graham could have also brought an ADA claim under its current construction.

⁶² Graham, 490 U.S. at 389.

⁶³ Id.

⁶⁴ Id.

⁶⁵ Id.

⁶⁶ Id.

⁶⁷ Id. (“A friend of Graham’s brought some orange juice to the car, but the officers refused to let him have it.”).

⁶⁸ Id.

⁶⁹ Id.

⁷⁰ See id.

⁷¹ See id.

⁷² Brief for Petitioner at 5, Graham, 490 U.S. 386 (No. 87-6571).

⁷³ See Graham, 490 U.S. at 389.

⁷⁴ Id. at 390.

⁷⁵ Eileen Sullivan, Supreme Court Case to Shape Ferguson Investigation, Salon (Aug. 22, 2014 8:30 AM), https://www.salon.com/2014/08/22/supreme_court_case_to_shape_ferguson_investigation_2/ [https://perma.cc/B9QK-GW5J] (“After the Supreme Court decision vacating an appeals court ruling against Graham, he had a new trial, in which the police actions were judged on new standards. Graham lost again.”); see also Ristroph, supra note 51, at 1207 (“Graham’s lawsuit was remanded for consideration under the Fourth Amendment standard, and though there is no opinion entered after the remand, Graham apparently lost at retrial, too.”).

⁷⁶ See infra Section II(C).

⁷⁷ See, e.g., Wilson v. Prince George’s Cnty., 893 F.3d 213, 220 (4th Cir. 2018) (focusing on immediacy of threat where officers shot a suicidal individual who had slit his own throat, after resolving the crime severity and resisting arrest factors); Habiger v. Fargo, 80 F.3d 289, 298 (8th Cir. 1996) (holding officer’s use of force reasonable where focusing on severity of the crime).

⁷⁸ See, e.g., Luchtel v. Hagemann, 623 F.3d 975 (9th Cir. 2010) (applying immediacy but not resistance nor severity); Wilkerson v. Warner, 545 F. Appx. 413, 429-30 (6th Cir. 2013) (applying resistance and immediacy but not severity); Barlow v. Ground, 943 F.2d 1132, 1135-36 (9th Cir. 1991) (leaving out resistance prong).

⁷⁹ Estate of Larsen ex rel. Sturdivan v. Murr, 511 F.3d 1255, 1260 (10th Cir. 2008) (“In assessing the degree of threat facing officers, then, we consider a number of non-exclusive factors. These include (1) whether the officers ordered the suspect to drop his weapon, and the suspect’s compliance with police commands; (2) whether any hostile motions were made with the weapon towards the officers; (3) the distance separating the officers and the suspect; and (4) the manifest intentions of the suspect.”).

⁸⁰ See, e.g., Reich v. City of Elizabethtown, 945 F.3d 968, 979 (6th Cir. 2019) (“Here, applying the Graham factors [to individual whom officers knew suffered from severe schizophrenia], the totality of the circumstances gave the officers probable cause to believe that Blough posed a threat of serious physical harm to them and others.” (citing Garner, 471 U.S. at 11)); Durruthy v. Pastor, 351 F.3d 1080, 1094 (11th Cir. 2003) (finding no excessive force as “de minimus” use of force).

⁸¹ Jack Zouhary, A Jedi Approach to Excessive Force Claims: May the Reasonable Force Be With You, 50 U. Tol. L. Rev. 1, 4 (2018); Aaron Kimber, Note, Righteous Shooting, Unreasonable Seizure? The Relevance of an Officer’s Pre-Seizure Conduct in an Excessive Force Claim, 13 Wm. & Mary Bill Rts. J. 651, 658, 664 (2004); 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, 272 (2003).

⁸² Graham v. Connor, 490 U.S. 386, 396-97 (1989).

⁸³ Id. at 396.

⁸⁴ Zouhary, supra note 81, at 4.

⁸⁵ Id. at 2.

⁸⁶ St. Hilaire v. City of Laconia, 71 F.3d 20, 26 (1st Cir. 1995).

⁸⁷ Zouhary, supra note 81, at 2.

⁸⁸ Id. at 4-5.

⁸⁹ Some scholars argue the Sixth Circuit has adopted the Seventh Circuit’s segmented approach. See Zouhary, supra note 81, at 8-11; Avery, supra note 81, at 283. However, others scholars and cases suggest that the Sixth Circuit reviews only reasonableness in the moment. See Kimber, supra note 81, at 665 (“The Fourth, Sixth, and Eighth Circuits have held that pre-seizure conduct is irrelevant to the Fourth Amendment analysis.”) (citations omitted); see also Sheffey v. Covington, 564 F. App’x. 783, 795 (6th Cir. 2014) (“As the reasonableness considerations mandated by Graham which require this court to determine reasonableness from the perspective of the officers at the time of the arrest, it appears that the actual mental illness of Mr. Hughes cannot be considered except to the extent that it seemed that he could have been mentally disturbed.”).

⁹⁰ Zouhary, supra note 81, at 8-11 (arguing Sixth Circuit has shifted to segmented approach).

⁹¹ See McKenney v. Mangino, 873 F.3d 75, 82 (1st. Cir. 2017); Champion v. Outlook Nashville, Inc., 380 F.3d 893, 904 (6th Cir. 2004); Deorle v. Rutherford, 272 F.3d 1272, 1279 (9th Cir. 2001); see also Williams v. Indiana State Police Dept., 797 F.3d 468, 485 (7th Cir. 2015) (finding officers who shot suicidal individual who “approached the officers with a knife in a threatening manner” not entitled to qualified immunity in summary judgment stage”).

⁹² McKenney, 873 F.3d at 82 (citing Weinmann v. McClone, 787 F.3d 444, 450 (7th Cir. 2015)) (collecting appellate precedents holding that, as of 2007, clearly established law prevented police officers from employing “deadly force against suicidal people unless they threaten harm to others”).

⁹³ Champion, 380 F.3d at 904 (“It cannot be forgotten that the police were confronting an individual whom they knew to be mentally ill or retarded, even though the Officers may not have known the full extent of Champion’s autism and his unresponsiveness.”).

⁹⁴ Drummond v. City of Anaheim, 343 F.3d 1052, 1058 (9th Cir. 2003) (“Where it is or should be apparent to the officers that the individual involved is emotionally disturbed, that is a factor that must be considered in determining, under Graham, the reasonableness of the force employed”); Deorle, 272 F.3d at 1283; Alexander v. City & Cnty. of San Francisco, 29 F.3d 1355, 1366 (9th Cir. 1994) (“[F]or the officers to storm the house of a man whom they knew to be a mentally ill, elderly, half-blind recluse who had threatened to shoot anybody who entered … states a classic Fourth Amendment violation under Graham.”); see also Sheehan v. City & Cnty. of San Francisco, 743 F.3d 1211 (9th Cir. 2014) (finding officers entitled to qualified immunity without more clearly established law without deciding constitutional question as not adequately briefed but recognizing Alexander, Drummond and Deorle) rev’d, 135 S. Ct. at 1774 (2015).

⁹⁵ Deorle, 272 F.3d at 1283.

⁹⁶ Id.

⁹⁷ Id. at 1281 (citing Headwaters Forest Def. v. County of Humboldt, 240 F.3d 1185, 1199-1200 (9th Cir. 2000), vacated on other grounds, 54 U.S. 801).

⁹⁸ Phillips v. Community Ins. Corp., 678 F.3d 513, 526 (7th Cir. 2017) (applying Deorle to find officer’s shooting of beanbag at drunk and noncompliant driver to be unreasonable); Landis v. Baker, 297 F. App’x. 453, at *12 (6th Cir. 2008) (“A determination of the reasonableness of the defendant officers’ conduct must take into account the fact that at the time of the fatal struggle, the defendant officers had reason to believe that Keiser was either on drugs or mentally unstable and they knew that he was unarmed.”) (citing Deorle, 272 F.3d at 1282-83); Mercado v. City of Orlando, 407 F.3d 1152, 1157 (11th Cir. 2005) (recognizing Deorle created genuine issue of fact in summary judgment case as to whether officer used excessive force where shot suicidal individual with less lethal munition).

⁹⁹ See, e.g., John P. Gross, Qualified Immunity and the Use of Force: Making the Reckless into the Reasonable, 8 Ala. Civ. Rts. & Civ. Liberties L. Rev. 67, 79 (2017) (“The Court’s insistence on the continued use of a two-step inquiry when considering if an officer is entitled to qualified immunity in a case alleging excessive force makes it clear that the Court’s holding in Graham is of little value.”); Philip Sheng, An “Objectively Reasonable” Criticism of the Doctrine of Qualified Immunity in Excessive Force Case Brought Under 42 U.S.C. § 1983, 26 BYU J. Pub. L. 99, 100 (2011) (“The only solution appears to be eliminating qualified immunity from excessive force cases altogether.”); Kathryn R. Urbanya, Problematic Standards of Reasonableness: Qualified Immunity in Section 1983 Actions for a Police Officer’s Use of Excessive Force, 62 TEMP. L. REV. 61, 67 (1989) (“The article proposes that even though qualified immunity is appropriately available as a defense for other fourth amendment claims, it is an unnecessary defense to a fourth amendment claim challenging the use of excessive force because the standard for liability is identical to the standard for qualified immunity; both question whether a reasonable officer would have believed that the use of force was necessary.”).

¹⁰⁰ Sheng, supra note 99, at 100 (quoting Brosseau v. Haugen, 543 U.S. 194, 199 (2004) (per curium)).

¹⁰¹ Under the oft-cited Katz test, to overcome an officer’s assertion of qualified immunity, an individual must establish: (1) that the facts alleged by the plaintiff make out a violation of a constitutional right; and (2) that right was “clearly established” at the time of the defendant’s alleged misconduct. Saucier v. Katz, 533 U.S. 194, 201 (2001).

¹⁰² Ashcroft v. Al-Kidd, 563 U.S. 731, 741 (2011); see also id. at 742 (“The general proposition, for example, that an unreasonable search or seizure violates the Fourth Amendment is of little help in determining whether the violative nature of particular conduct is clearly established.”).

¹⁰³ See, e.g., Gray v. Cummings, 917 F.3d 1, 12 (1st Cir. 2019) (granting qualified immunity as “objectively reasonable police officer in May of 2013 could have concluded that a single use of the Taser in drive-stun mode to quell a nonviolent, mentally ill individual who was resisting arrest, did not violate the Fourth Amendment”); Armstrong ex rel. Armstrong v. Pinehurst, 810 F.3d 892, 897 (4th Cir. 2016) (granting qualified immunity for use of a Taser five times against bipolar individual who had wrapped himself around a store post and refused to let go was not clearly unconstitutional as of 2011); see also Stewart v. Euclid, 970 F.3d 667, 675 (6th Cir. 2016) (“[Petitioner’s] reference to two out of circuit cases does not provide the “robust consensus” required for the right to be clearly established. Neither controlling nor persuasive precedent has clearly established Stewart’s rights in the “particular circumstances” [the officer] faced.” (internal citations omitted)). A recent study found that circuit courts granted qualified immunity to more than half of the law enforcement officers charged with using excessive force. Andrew Chung et al., Shielded, REUTERS (2020) https://www.reuters.com/investigates/special-report/usa-police-immunity-scotus/ [https://perma.cc/2C92-SX8B]. And this astounding statistic does not even count the cases where individuals decide to settle instead of taking their chances in court. Joanna Schwartz, How Qualified Immunity Fails, 127 Yale L. J. 2, 22 (2017). For instance, Eric Garner’s family settled the high profile excessive force with New York in 2015 for the officer’s use of a chokehold that killed the asthmatic Mr. Garner. Daniel Bier, New York Agrees to Pay $5.9 million to Settle Case of Eric Garner, FEE (July 14, 2015), https://fee.org/articles/new-york-agrees-to-pay-59-million-to-settle-case-of-eric-garner/ [https://perma.cc/ATV9-A2AY]. Due to the qualified immunity doctrine, the officer who murdered Mr. Garner was never indicted. Id. Perhaps these horror stories are the reason Mr. Gladen’s family appears to have decided not to bring a lawsuit after the officer was not indicted. See Bernstein, supra note 28 (“[T]he Gladen family [] said they would decide whether to file a lawsuit against the police based on the outcome of their own investigation.”).

¹⁰⁴ Meadours v. Ermel, 483 F.3d 417, 419 (5th Cir. 2007). The Court noted that “Although we have not had the occasion to consider qualified immunity in the context of the police killing a mentally ill individual, we note that the Ninth Circuit has held ’the governmental interest in using [deadly] force is diminished by the fact that the officers are confronted, not with a person who has committed a serious crime against others, but with a mentally ill individual.” Id. at 423 note 5 (citing Deorle v. Rutherford, 272 F.3d 1272, 1283 (9th Cir.2001)).

¹⁰⁵ Sheehan v. City & Cnty. of San Francisco, 743 F.3d 1211, 1211 (9th Cir. 2001). See also infra Part III, discussing Sheehan’s application to arrests.

¹⁰⁶ City and Cnty. Of S.E. Cal. v. Sheehan, 575 U.S. 600 (2015).

¹⁰⁷ Id. at 617.

¹⁰⁸ Id. (“San Francisco argues almost exclusively that even if it is assumed that there was a Fourth Amendment violation, the right was not clearly established. This Court, of course, could decide the constitutional question anyway. See Pearson v. Callahan, 555 U.S. 223, 242 (2009) (recognizing discretion). But because this question has not been adequately briefed, we decline to do so. Rather, we simply decide whether the officers’ failure to accommodate Sheehan’s illness violated clearly established law.”).

¹⁰⁹ Chamberlain v. White Plains, 960 F.3d 100, 101-02 (2d Cir. 2020).

¹¹⁰ Id. at 103.

¹¹¹ The recent Fourth Circuit case, Armstrong ex rel. Armstrong v. the Village of Pinehurst, 810 F.3d 892 (4th Cir. 2016), demonstrates the implications of the “one good case” requirement. Armstrong involved the use of taser against an individual, suffering from a schizophrenic incident, who resisted involuntary commitment. Relying on Graham v. Connor, 490 U.S. 386 (1989), and Police Executive Research Forum guidelines, discussed infra Part IV(C)(ii), the Fourth Circuit found that use of the taser was not a proportional response to the threat faced. Although the officers in this situation were found not liable under the qualified immunity doctrine in the absence of clearly established precedent, the Fourth Circuit found that law enforcement officers “should now be on notice that such taser use violates the Fourth Amendment.” Id. at 910.

¹¹² Baxter v. Bracey, 140 S. Ct. 1862, 1862 (2020) (Thomas, J., dissenting in denial of certiorari) (“I have previously expressed my doubts about our qualified immunity jurisprudence.”); Ziglar v. Abbasi, 137 U.S. 1843, 1872 (2017) (Thomas, J., concurring in part and concurring in the judgment) (“In an appropriate case, we should reconsider our qualified immunity jurisprudence”); Kisela v. Hughes, 138 S.Ct. 1148, 1162 (2018) per curiam (Sotomayor, J. dissenting) (“[Officers] can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished.”); Mullenix v. Luna, 577 U.S. 7, 26 (2015) (Sotomayor, J. dissenting) (“By sanctioning a ‘shoot first, think later’ approach to policing, the Court renders the protections of the Fourth Amendment hollow.”); Messerschmidt v. Millender, 565 U.S. 535, 557 (2012) (Kagan, J. concurring in part and dissenting in part) (joining majority on all issues of search case except grant of qualified immunity); Richardson v. McKnight, 521 U.S. 399, 408-09 (1997) (“[The Court] never has held that the mere performance of a governmental function could make the difference between unlimited § 1983 liability and qualified immunity, … especially for a private person who performs a job without government supervision or direction.”).

¹¹³ 42 U.S.C. § 12101 (2012); see infra Part III(A).

¹¹⁴ Rachel E. Brodin, Comment, Remedying a Particularized Form of Discrimination: Why Disabled Plaintiffs Can and Should Bring Claims for Police Misconduct Under the Americans with Disabilities Act, 154 U. Pa. L. Rev. 157, 160-61 (2005) (discussing “growing possibility that disabled plaintiffs can bring claims for police misconduct under Title II…”). Recall that Mr. Root’s and Mr. Prude’s families did not bring ADA causes of action when initiating their excessive force lawsuits § 1983 causes of action. See Root Complaint, supra note 3; Prude Complaint, supra note 7.

¹¹⁵ See discussion supra Part IV.

¹¹⁶ This Note does not ponder the remote possibilities of bringing disparate impact or failure-to-train claim under the ADA. The ADA contemplates disparate impact claims only in employment circumstances. See 42 U.S.C. § 12112(b)(6) (2009). The emerging theory of liability under the ADA based upon a failure to train has generated much confusion and, like failure-to-train claims under § 1983, is beyond the scope of this Note. See 28 C.F.R. § 35.105(a) (1993) (“[A] public entity shall evaluate its current services, policies, and practices…that do not or may not meet the requirements of [the ADA], and, to the extent modification of any such services, policies, and practices is required, shall proceed to make necessary modifications”). Furthermore, it may be possible to incorporate failure-to-train claims into the reasonable accommodation framework. See Robyn Levin, Responsiveness to Difference: ADA Accommodations in the Course of an Arrest, 69 Stan. L. Rev. 269, 282 (2017) (“The reasonable accommodation theory … also accounts for failure-to-train claims.”) Following the split circuit analyzed in San Francisco v. Sheehan, 135 S. Ct. 1765 (2015), discussed infra Part III(C)(iii), reasonable accommodation is the most accepted means of excessive force ADA claims during arrests and thus the one analyzed in this Note.

¹¹⁷ Tucker v. Tennessee, 539 F.3d 526, 531 (6th Cir. 2008) (quoting 42 U.S.C. § 12101(b) (2000)).

¹¹⁸ See ADA Amendments Act of 2008, 42 U.S.C. § 12101 (2012) (discussing purpose of ADA as per Congress’ expectations in 1990).

¹¹⁹ Id. § 12102 (4)(A).

¹²⁰ Id. at § 12101 (a)(4) (“[U]nlike individuals who have experienced discrimination on the basis of race, color, sex, national origin, religion, or age, individuals who have experienced discrimination on the basis of disability have often had no legal recourse to redress such discrimination.”) Not until the Rehabilitation Act of 1973 was passed did the Civil Right Act’s protections extend to those with disabilities. Id. Section 504 of the Rehabilitation Act required federal agencies to provide “reasonable accommodations” on the basis of one’s disability unless doing so would result in “undue hardship.” Id. at § 12112. Note that Rehabilitation Act claims can still be bought alongside ADA claims. See, e.g., Bircoll v. Miami-Dade County, 480 F.3d 1072, 1084 (11th Cir. 2007).

¹²¹ ADA Amendments Act of 2008, 42 U.S.C.§ 12132 (2012) (“[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, or be subjected to discrimination by any such entity”).

¹²² Id. at § 12206(c)(3); Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843-44 (1984) (“If Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation.”).

¹²³ Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 598 (1999) (“Because the Department is the agency directed by Congress to issue regulations implementing Title II, …. its views warrant respect. We need not inquire whether the degree of deference described in [Chevron] is in order; [i]t is enough to observe that the well-reasoned views of the agencies implementing a statute ‘constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance.’“ (internal quotations and citations omitted)).

¹²⁴ 28 C.F.R. Pt. 35, App. B 707 (2020) (emphasis added).

¹²⁵ Id. at 699 (“[Title II] extends the anti-discrimination prohibition embodied in section 504 to all actions of state and local governments.” (emphasis added))

¹²⁶ Pa. Dep’t Corr.s v. Yeskey, 524 U.S. 206, 210 (1998).

¹²⁷ Id. at 210 (“State prisons fall squarely within the statutory definition of ‘public entity,’ which includes ’any department, agency, special purpose district, or other instrumentality of a State or States or local government.’“ (citing § 12131(1)(B)); see also Levin, supra note 116, at 280 (collecting post-Yeskey cases where ADA has been found to apply to law enforcement activities); see, e.g., Gorman v. Bartch, 152 F.3d 907, 908 (8th Cir. 1998) (“local police department falls ’squarely within the statutory definition of public entity’”). See also DOJ Examples and Resources, supra note 36 (“Pursuant to the ADA, state and local government criminal justice entities—including police … must ensure that people with mental health disabilities or I/DD are treated equally in the criminal justice system.”). Thus, even the Trump administration recognized that the intentions behind the ADA “affects virtually everything that officers and deputies do, including arresting, booking, and holding suspects.” Commonly Asked Questions About the Americans with Disabilities Act and Law Enforcement, U.S. DEP’T JUST., [hereinafter “DOJ Commonly Asked Questions”) https://www.ada.gov/q&a_law.htm [https://perma.cc/9ZJD-RQ43] (last updated Feb. 25, 2020).

¹²⁸ 28 C.F.R. § 36.501 (2016) (“Any person who is being subjected to discrimination on the basis of disability in violation of the Act … may institute a civil action for preventive relief”); see also id. at § 36.503 (“[T]he Attorney General may commence a civil action in any appropriate United States district court if the Attorney General has reasonable cause to believe that … [a]ny person or group of persons is engaged in a pattern or practice of discrimination in violation of the Act …”).

¹²⁹ See infra Part III(A)(iii) (discussing definition of disability).

¹³⁰ 42 U.S.C. § 12132 (2019); accord Robertson v. Las Animas Cnty. Sheriffs Dep’t, 500 F.3d 1185, 1193 (10th Cir. 2007).

¹³¹ Gohier v. Enright, 186 F.3d 1216 (10th Cir. 1999) (discussing the applicability of Title II to arrest claims).

¹³² Brodin, supra note 114, at 161. Graham itself provides an example that could be analyzed under this approach.

¹³³ Levin, supra note 116, at 282; Brodin, supra note 114, at 161; see, e.g., Lewis v. Truitt, 960 F. Supp. 175, 179 (S.D. Ind. 1997) (finding wrongful arrest where officers charged deaf man with resisting arrest when he did not hear officers’ requests to obey their orders).

¹³⁴ Levin, supra note 116, at 282; Brodin, supra note 114, at 161; see, e.g., Ed Flosi, Keys to handling suspects with physical disabilities, Police 1 ( Nov. 22, 2010), https://www.police1.com/use-of-force/articles/keys-to-handling-suspects-with-physical-disabilities8pb7uswJagdBjbic/ [https://perma.cc/GV6 A-WFM9] (“[Y]our agency should be training your officers in methods to search and handcuff persons with physical disabilities.”).

¹³⁵ See Bircoll v. Miami-Dade County, 480 F.3d at 1082-83 (quoting Lane, 541 U.S. at 531–32) (“Title II does not require States to employ any and all means to make judicial services accessible to persons with disabilities …. It requires only ‘reasonable modifications’ that would not fundamentally alter the nature of the service provided … [or] impose an undue financial or administrative burden.”).

¹³⁶ See, e.g., Everson v. Leis, 412 Fed.Appx. 771 (6th Cir. 2011) (Moore. J., dissenting) (analyzing excessive force claim of arrestee with epilepsy under reasonable accommodation theory); Note that the discussion and eventual proposed formulation may also be applied to analyze wrongful arrest cases as many times, during the course of a wrongful arrest or investigation, officers fail to employ reasonable accommodations.

¹³⁷ See Larry E. Craig, The Americans with Disabilities Act: Prologue, Promise, Product and Performance, 35 Idaho L. Rev. 205, 206 (1999). Senator Craig was Idaho’s Congressional Representative during the framing of the ADA, and thus provides a first-hand account of the ADA’s intentions.

¹³⁸ See supra Part II(A).

¹³⁹ 28 C.F.R. § 35.139 (2019); see also DOJ Examples and Resources, supra note 127.

¹⁴⁰ 28 C.F.R. § 35.139(a).

¹⁴¹ Id. at § 35.139(b).

¹⁴² Id.

¹⁴³ Id. (“In determining whether an individual poses a direct threat to the health or safety of others, a public entity must make an individualized assessment, based on reasonable judgment that relies on current medical knowledge or on the best available objective evidence ….”); see also R.W. v. Bd. of Regents of the Univ. System of Ga., 114 F. Supp. 3d 1260, 1284 (D. Ga. 2015) (“The existence, or nonexistence, of a significant risk must be determined from the standpoint of the person who [makes the decision], and the risk assessment must be based on medical or other objective evidence.” (quoting Bragdon v. Abbott, 524 U.S. 624, 649 (1998))); see also Doe v. Deer Mountain Day Camp, Inc., 682 F. Supp. 2d 324, 347 (S.D.N.Y. 2010) (“To survive summary judgment, Defendants have the responsibility to present the court with objective, medical evidence—such as reliable medical guidelines, literature, or expert testimony—to establish that their direct threat assessment was reasonable.”).

¹⁴⁴ Additional benefits of bringing a claim under Title II of the ADA claims include the lack of a sovereign immunity bar. See Tennessee v. Lane, 541 U.S. 509, 533-34 (2004) (finding Title II constitutes a valid exercise of Congress enforcement power under Fourteenth Amendment and thus sovereign immunity does not bar suit against public entities). In addition, it is an open question as to whether qualified immunity can bar Title II claims as they are brought against public entities, rather than officers in individual capacity. See Americans with Disabilities: Practice and Compliance Manual § 1.2.39 (2020); see also id. § 2:187 (“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 directed at public entities.”). However, these benefits are beyond the scope of this Note as this Note is not advocating for a move away from ADA claims, but rather promoting bringing ADA claims in tandem with § 1983 excessive force claims See Brodin, supra note 112, for an excellent analysis of bringing these claims together.

¹⁴⁵ 42 U.S.C. § 12102(1)(A)-(C) (2012).

¹⁴⁶ § 12102(3)(A).

¹⁴⁷ § 12201(h) (“A covered entity under subchapter I, a public entity under subchapter II, and any person who owns, leases (or leases to), or operates a place of public accommodation under subchapter III, need not provide a reasonable accommodation or a reasonable modification to policies, practices, or procedures to an individual who meets the definition of disability in section 12102(1) of this title solely under subparagraph (C) of such section.”).

¹⁴⁸ Commonly Asked Questions About the Americans with Disabilities Act and Law Enforcement, U.S. DEP’T JUST., https://www.ada.gov/q&a_law.htm [https://perma.cc/Y6RE-K4DH] (last updated Feb. 25, 2020) (“An individual is considered to have a “disability” if he or she has a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment”).

¹⁴⁹ DOJ Examples and Resources, supra note 127 (“The reasonable modification obligation applies when an agency employee knows or reasonably should know that the person has a disability and needs a modification, even where the individual has not requested a modification, such as during a crisis.”).

¹⁵⁰ See ADA supra note 30.

¹⁵¹ See 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.”), superseded by statute, ADA Amendments Act (ADAAA), U.S. Pub. L. No. 110-325 (2009); Maldonado-Ortiz v. Lexus de San Juan, 775 F.Supp.2d 389, 406 (D. P.R. 2011) (“Plaintiff cannot merely rely on her diagnosis alone to prove disability under the ADA.”).

¹⁵² See, e.g., Toyota, 534 U.S. at 197-98 (interpreting “substantially” and “major” to mean that “an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people’s daily lives … [such that the impact] must [] be permanent or long term”); Sutton v. United Air Lines Inc., 527 U.S. 471, 476 (1999) (finding vision-impaired plaintiffs not disabled within meaning of ADA as could use corrective lens to obtain 20/20 vision), superseded by statute, ADAAA, Pub. L. No. 110-325 (2009); see also Kevin Barry, Brian East, and Marcy Karin, Pleading Disability After the ADAAA, 31 Hofstra Lab. & Emp. L.J. 1 (2013) (collecting pre-ADAAA cases).

¹⁵³ 42 U.S.C. § 12102(2).

¹⁵⁴ § 12102(4)(a).

¹⁵⁵ See ADA Amendments Act (ADAAA), Pub. L. No. 110-325, § 2(b)(2)-(4), pmbl., 122 Stat. at 3553.

¹⁵⁶ § 2(a)(7) (“[I]n particular, the Supreme Court, in the case of Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), interpreted the term ’substantially limits’ to require a greater degree of limitation than was intended by Congress.”).

¹⁵⁷ See Mark Pulliam, The ADA Litigation Monster, City J. (Spring 2017), https://www.city-journal.org/html/ada-litigation-monster-15128.html#:~:text=Despite%20this%20winnowing%20of%20approximately,I%20cases%20filed%20in%20court [https://perma.cc/R2AX-Z9HB] (“The ADA’s laudable objectives … in the ensuing quarter-century, … [have] spawned countless unintended consequences—mutating definitions of what constitutes a physical or mental ’disability,” ’senseless mandates, abusive litigation, and astronomical compliance costs.”).

¹⁵⁸ Sellers v. Deere & Co., 23 F. Supp. 3d 968, 985 (N.D. Iowa 2014) (“[N]ot all persons who suffer from depression, anxiety, or post-traumatic stress disorder are ‘disabled’ within the meaning of the ADA.”), aff ‘d, 791 F.3d 938 (8th Cir. 2015); see also Belton v. Snyder, 249 F. Supp. 3d 14 (D.D.C. 2017) (finding that a plaintiff with depression and anxiety did not count as disabled as they were not ‘long term” impairments).

¹⁵⁹ Nicole Buonocore Porter, Explaining “Not Disabled” Cases Ten Years After the ADAAA: A Story of Ignorance, Incompetence and Possibly Animous, 26 Geo. J. on Poverty L. & Pol’y, 383, 384 (2019). Dean Porter found that 210 out of 976 lower court cases from 2014 through 2018 “erroneously held that the plaintiff was not disabled” within the meaning of the ADA. Id. at 385. Although this error margin is much lower than that of pre-ADAAA cases, the percentage was higher than that of 2010 to 2014, the years immediately following the amendment, a concerning trend for the future direction of how expansively the courts interpret the definition of disability. Id.

¹⁶⁰ See ADA Amendments Act of 2008 Frequently Asked Questions, Dep’t of Labor, https://www.dol.gov/agencies/ofccp/faqs/americans-with-disabilities-act-amendments [https://perma.cc/64 MH-MHC9] (last updated January 1, 2009) (“The statute contains a nonexhaustive list of ’major life activities’ that adds additional activities to those currently listed in the ADA and Section 503 regulations, and a nonexhaustive list of ’major bodily functions.’’).

¹⁶¹ Samuel R. Bagenstos, The ADA Amendments Act and the Projects of the American Disability Rights Movement, 23 UDC L. Rev. 139, 150 (2020) (“It is still early, but we may be seeing a renewed backlash to the ADA. Once again, as the statute is invoked to protect people with conditions that lie outside of the core of societal understandings of disability, judges may be pushing back.”).

¹⁶² See, e.g., Everson v. Leis, 412 Fed. App’x. 771, 778 (6th Cir. 2011) (granting summary judgment where found officer did not intentionally discriminate when arresting individual suffering from epileptic seizure as “insufficient evidence to support a conclusion that [officer] knew that Everson’s conduct was caused by his disability or that [officer] acted because of—rather than in spite of—Everson’s disability”); Anthony v. City of N.Y., 339 F.3d 129, 131-32 (2nd Cir. 2003) (finding no discriminatory intent towards woman with downs); Lynn v. City of Indianapolis, 2014 WL 3535554, at *3-5, *25-26 (S.D. Ind. July 16, 2014) (finding no discriminatory intent where officers tasered an individual with epilepsy because they believed that seizure was instead effects of high despite information from dispatcher that man was having a seizure); Pannell v. City of Bellvue, 184 F. Supp. 2d 686, 689 (N.D. Ohio 2002) (“Absent a showing that an entity has intentionally discriminated on the basis of a disability, the entity cannot be held liable.”).

¹⁶³ Robertson v. Las Animas Cnty. Sheriff’s Dep’t, 500 F.3d 1185, 1196 (10th Cir. 2007); see also Tucker v. Tennessee, 539 F.3d 526, 532 (6th Cir. 2008), cert. denied, 130 S.Ct. 60 (“[T]he plaintiff must show that the discrimination was intentionally directed toward him or her in particular.”); accord Anderson v. City of Blue Ash, 798 F.3d 338, 357 n. 1 (6th Cir. 2015).

¹⁶⁴ See, e.g., J.H. ex rel. J.P. v. Bernalillo County, 806 F.3d 1255, 1261 (10th Cir. 2015) (“If a police officer incurs a duty to reasonably accommodate a person’s disability during an arrest, this duty would have arisen only if Deputy Sharkey had known that J.P. needed an accommodation.” (citing Robertson, 500 F.3d. at 1196)); see also E.W. ex. rel. T.W. v. Dolgos, 884 F.3d 172, 183 (10th Cir. 2018) (affirming and distinguishing J.H. ex. rel. J.P. on its facts).

¹⁶⁵ Hamer v. City of Trinidad, 924 F.3d 1093, 1109 (10th Cir. 2019) (“Title II and section 504 plaintiffs are hard-pressed to receive any monetary damages unless they can prove that a service, program, or activity is intentionally discriminatory toward individuals with disabilities, which is surely the exception rather than the rule.”).

¹⁶⁶ Ammiel Fields-Meyer, When Police Officers Don’t Know About the ADA, ATLANTIC (Sept. 26, 2017), https://www.theatlantic.com/politics/archive/2017/09/the-steadily-problematic-interactions-between-deaf-americans-and-police/541083/ [https://perma.cc/HA6E-WKUE].

¹⁶⁷ Americans with Disabilities: Practice and Compliance Manual § 2:217, Westlaw (updated Aug. 2021); see, e.g., 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)). Note that this Note does not contemplate State disability discrimination laws that provide for similar causes of action as Title II but have monetary damages available as only a minority of states appear to offer such relief. See, e.g., Cal. Gov’t Code § 905 (“There shall be presented … all claims for money or damages against local public entities); § 915(c) (providing “a cause of action against a public employee”).

¹⁶⁸ 42 U.S.C. § 12188(b)(5) (“ In a civil action, … the court, when considering what amount of civil penalty, if any, is appropriate, shall give consideration to any good faith effort or attempt to comply with this chapter by the entity. In evaluating good faith, the court shall consider, among other factors it deems relevant, whether the entity could have reasonably anticipated the need for an appropriate type of auxiliary aid needed to accommodate the unique needs of a particular individual with a disability.”).

¹⁶⁹ See, e.g., Hildreth v. Butler, 2020 WL 2536620 (7th Cir. 2020) (substantial likelihood standard); Silberman v. Miami Dade Transit, 927 F.3d 1123 (11th Cir. 2019) (deliberate indifference standard); Updike v. Multnomah County, 870 F.3d 939 (9th Cir. 2017) (Deliberate indifference standard); see also Carmona-Rivera v. Puerto Rico, 464 F.3d 14, 18 (1st Cir. 2006) (“Merely labeling the delay [or denial in providing an accommodation] as intentional discrimination, without some modicum of evidence demonstrating an actual discriminatory animus, is itself not enough.”).

¹⁷⁰ Barnes v. Gorman, 536 U.S. 181, 122 (2002); see also Hamer v. City of Trinidad, 924 F.3d 1093, 1109 (10th Cir. 2019) (“[P]unitive damages are categorically unavailable for suits under Title II.”).

¹⁷¹ Hamer, 924 F.3d at 1108.

¹⁷² See City of Los Angeles v. Lyons, 41 U.S. 95, 105 (1983) (denying injunctive relief to a plaintiff unlawfully choked by police due to standing issues, because “[plaintiff] does nothing to establish a real and immediate threat that he would again be [attacked].”).

¹⁷³ 42 U.S.C. § 12133 (2021); see supra Part II.

¹⁷⁴ Taylor Pugliese, Dangerous Intersection: Protecting People with Mental Disabilities from Police Brutality during Arrests Using the Americans with Disabilities Act, 46 Hofstra L. Rev. 765, 769 (2017).

¹⁷⁵ Palakovic v. Wetzel, No. 3:14-145, 2015 WL 3937499, at *10 (W.D. Pa. June 26, 2015), vacated and remanded on other grounds, 854 F.3d 209 (3d Cir. 2017), citing Emerson v. Thiel College, 296 F.3d 184, 189 (3d Cir. 2002) (individuals are not subject to liability under Titles I or II of the ADA).

¹⁷⁶ Id.

¹⁷⁷ See Rarkimm Fields, policy brief: police officers need liability insurance, contexts (June 12, 2020), https://contexts.org/articles/police-officers-need-liability-insurance/ [https://perma.cc/6GMN-TEXJ] (arguing that holding officers individually liable would “address police misconduct, increased civil litigation action, and improve trust between minority communities and law enforcement”).

¹⁷⁸ City of S.F. v. Sheehan, 575 U.S. 600, 608, 135 S. Ct. 1765, 1772 (2015).

¹⁷⁹ Id. (Specifically, the issue was “whether this [Title II] provision ‘requires law enforcement officers to provide accommodations to an armed, violent, and mentally ill suspect in the course of bringing the suspect into custody.’”); see also supra Part II(C)(iii), discussing Sheehan in context of Graham.

¹⁸⁰ Id.

¹⁸¹ See, e.g., Gray v. Cummings, 917 F.3d 16, 18-19 (1st Cir. 2019) (applying ADA narrowly in officer’s use of force to involuntarily hospitalize plaintiff as failed to demonstrate a genuine issue of material fact as to officer’s deliberate indifference to sustain ADA claim); Clark v. Colbert, 895 F.3d 1258, 1265 (10th Cir. 2018) (“[W]e have never squarely held the ADA applies to arrests … [b]ut we need not confront … those open questions to resolve this appeal.”).

¹⁸² See James Naughton, Police Encountering People with Disabilities: A Deadly Encounter, 32 DCBA Brief 8, 11 (West 2019), https://www.dcba.org/mpage/v32-James-Naughton [https://perma.cc/Q7Z3-SVMN] (“Recent verdicts seem to confirm that a plaintiff’s claims of a violation of the ADA, during the course of arrest, are difficult to prove.”); see also Alexis Campbell, Failure on the Front Line, 51 Colum. Hum. Rts. L. Rev. 313, 313 (2019) (“[T]his Note analyzes the effectiveness of Title II and the CIT model at protecting persons in mental health crisis from fatal police shootings”); Michelle Kain, A Gray Area: The Scope of Title II of the ADA’s Applicability to Ad Hoc Police Encounters, 61 B.C. L. Rev. E. Supp. II-93, II-93 (2020) (“The majority approach properly finds that Title II applies to arrests without exception and that exigent circumstances, rather than bar Title II claims, weigh in the balance of assessing the reasonableness of a proposed accommodation.”); Ryan Lefkowitz, What Are You En(title)d Two? Protecting Individuals with Disabilities During Interactions with Law Enforcement Under Title II of the ADA, 49 U. Mem. L. Rev. 707, 712-13 (2019) (critiquing split circuit as to ADA’s application to arrests and instead advocating for an unreasonable per se approach to arrest scenarios).

¹⁸³ See supra note 182.

¹⁸⁴ City of S.F. v. Sheehan, 575 U.S. 600, 608, 135 S. Ct. 1765, 1773 (2015).

¹⁸⁵ Id. at. 608-09, 1773; see also supra Part III(A)(ii), discussing direct threat analysis.

¹⁸⁶ Graham v. Connor, 490 U.S. 386, 396 (1989) (evaluating “severity” and “whether the suspect poses an immediate threat”); see also supra Part II discussing Graham test.

¹⁸⁷ See supra Part II, discussing Chamberlain v. White Plains.

¹⁸⁸ 28 C.F.R. § 35.139 (2010) (specifically, whether “reasonable modifications of policies, practices, or procedures or the provision of auxiliary aids or services will mitigate the risk [of the arrestee]”).

¹⁸⁹ Est. of Hill by Hill v. Miracle, 853 F.3d 306, 314 (6th Cir. 2017).

¹⁹⁰ Id.; see also supra Part II(C)(iii) discussing circuit decisions which recognize Graham’s flexibility.

¹⁹¹ Alternatively, the new test could be codified through legislation. See, e.g., Assemb. B. 392, 2019 Leg. (Cal. 2019) (proposing codification of Graham). However, given the demonstrated erosion of legislation as evidenced in the ADA and ADAA, this Note is wary of this approach and leaves contemplations of codification to other scholars.

¹⁹² Miracle, 853 F.3d at 314.

¹⁹³ Id. at. 310-11.

¹⁹⁴ Id. at 310.

¹⁹⁵ Id. at 310-11.

¹⁹⁶ Id. at 311

¹⁹⁷ Id. at 313.

¹⁹⁸ Id. at 314.

¹⁹⁹ Id. (quoting Graham v. Connor, 490 U.S. 386, 397 (1989)).

²⁰⁰ Smith v. City of Greensboro, No. 1:19CV386, 2020 WL 1452114, at *6 (M.D.N.C. Mar. 25, 2020); Est. of Williams v. Douglas Cnty., No. 1:16-CV-2913, 2018 WL 9848045, at *12 (N.D. Ga. Sept. 6, 2018); but see Maldonado v. Town of Greenburgh, 460 F. Supp. 3d 382, 393 (S.D.N.Y. 2020) (declining to following Miracle approach); Lachance v. Town of Charlton, 368 F. Supp. 3d 231, 238 (D. Mass. 2019), aff’d, 990 F.3d 14 (1st Cir. 2021).

²⁰¹ Miracle, 853 F.3d at 313.

²⁰² See supra Part II.

²⁰³ See supra Part II.

²⁰⁴ See WROC Staff, WATCH: Footage of encounter between Daniel Prude and Rochester police officers before his death, WROC (Sep 2, 2020, 12:17 PM), https://www.rochesterfirst.com/news/local-news/watch-body-camera-footage-of-altercation-between-daniel-prude-and-rochester-police-officers/ [https://perma.cc/ZMP3-RKLF].

²⁰⁵ See, e.g., supra note 133, discussing Lewis v. Truitt.

²⁰⁶ Zielinski, supra note 10; see also supra note 132 and accompanying text, discussing wrongful arrest approach.

²⁰⁷ Miracle, 853 F.3d at 314.

²⁰⁸ Id. (quoting Tennessee v. Garner, 471 U.S. 1, 8–9 (1985)).

²⁰⁹ DOJ Examples and Resources, supra note 127.

²¹⁰ See e.g., Deorle v. Rutherford, 272 F.3d 1272, 1283 (9th Cir. 2001) (“We do not adopt a per se rule establishing two different classifications of suspects: mentally disabled persons and serious criminals. Instead, we emphasize that where it is or should be apparent to the officers that the individual involved is emotionally disturbed, that is a factor that must be considered in determining, under Graham, the reasonableness of the force employed.”); accord Phillips v. Cmty. Ins. Corp., 678 F.3d 513, 524 (7^th Cir. 2017); Walen v. Nauman, No. CV 05-3036-PHX, 2008 WL 11447901, at *6 (D. AZ 2008).

²¹¹ Cf. Est. of Larsen v. Murr, 511 F.3d 1255, 1259 (10th Cir. 2008).

²¹² See supra Part II.

²¹³ Graham v. Connor, 490 U.S. 386, 397 (1989).

²¹⁴ Id.

²¹⁵ See Amnesty Int’l, Deadly Force: Police Use of Lethal Force in the United States (June 17, 2015), https://www.amnestyusa.org/reports/deadly-force-police-use-of-lethal-force-in-the-united-states/ [https://perma.cc/563N-2WGH] (“International standards clearly require that force should not be used by law enforcement officials unless there are no other means available that are likely to achieve the legitimate objective. If the use of force is unavoidable, it must be the minimum amount of force necessary to achieve the objective, and the use of lethal force should only be used as a last resort; if the use of force is unavoidable, they should minimize damage and injury and ensure those affected receive prompt medical and other assistance”); see, e.g., Eighth U.N. Congress on the Prevention of Crime and the Treatment of Offenders, Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, 115, U.N. Doc. A/CONF.144/28/Rev.1 (Sept. 7, 1990) (“In the training of law enforcement officials, Governments and law enforcement agencies shall give special attention to issues of police ethics and human rights, especially in the investigative process, to alternatives to the use of force and firearms, including the peaceful settlement of conflicts, the understanding of crowd behavior, and the methods of persuasion, negotiation and mediation, as well as to technical means, with a view to limiting the use of force and firearms”).

²¹⁶ See Canada Criminal Code, R.S.C. 1985, c C-46, § 25(4)(e) (“A peace officer, and every person lawfully assisting the peace officer, is justified in using force that is intended or is likely to cause death or grievous bodily harm to a person to be arrested, if (a) the peace officer is proceeding lawfully to arrest, with or without warrant, the person to be arrested; (b) the offence for which the person is to be arrested is one for which that person may be arrested without warrant; (c) the person to be arrested takes flight to avoid arrest; (d) the peace officer or other person using the force believes on reasonable grounds that the force is necessary for the purpose of protecting the peace officer, the person lawfully assisting the peace officer or any other person from imminent or future death or grievous bodily harm; and (e) the flight cannot be prevented by reasonable means in a less violent manner.”); see also Evelyn Michalos, Note, Time Over Matter: Measuring the Reasonableness of Officer Conduct in § 1983 Claims, 89 Fordham L. Rev. 1031, 1058 (2020) (comparing the Canadian excessive force test under its criminal code to Graham).

²¹⁷ See Michalos, supra note 216, at 1061 (citing Puricelli v. Toronto Police Servs. Bd., [2014] O.J. No. 5638 (Can. Ont. Super. Ct. Just. Div.)).

²¹⁸ See Avery, supra note 82, at 295-96 (quoting Int’l Ass’n Chiefs Police, Training Key No. 274, Abnormal Behavior 1-2 (1979)).

²¹⁹ See Eighth U.N. Congress, supra note 215, at 113, 116.

²²⁰ See supra Part III(B).

²²¹ See supra Part II(A).

²²² See supra Part II(C)(iii).

²²³ See supra Part II(C)(ii).

²²⁴ See David S. Abrams, Four commonsense ways to reform policing in America, The Hill (June 9, 2020), https://thehill.com/opinion/criminal-justice/501558-four-commonsense-ways-to-reform-policing-in-america [https://perma.cc/9Q3T-LLN4] (listing “immediate, commonsense steps that can begin now to make policing in this country more just and more effective”); German Lopez, How to reform American police, according to experts, Vox (June 1, 2020), https://www.vox.com/2020/6/1/21277013/police-reform-policies-systemic-racism-george-floyd [https://perma.cc/PH52-FZXB] (finding that Law Vegas policy that avoided law enforcement use of force in foot pursuit cases led to “23 percent reduction in total use of force and an 11 percent reduction in officer injury over several years, on top of reducing racial disparities.”).

²²⁵ Susan Mizner, There Is No Police Exception to the Americans With Disabilities Act, ACLU (Jan. 8, 2015), https://www.aclu.org/blog/speakeasy/there-no-police-exception-americans-disabilities-act [https://perma.cc/3AJ6-4VLU].

²²⁶ See DOJ Examples and Resources, supra note 127.

²²⁷ Root Complaint, supra note 3, at 16-18.

²²⁸ WROC Staff, supra note 204.

²²⁹ Eric Westervelt, Mental Health And Police Violence: How Crisis Intervention Teams Are Failing, NPR (Sept. 18, 2020), https://www.npr.org/2020/09/18/913229469/mental-health-and-police-violence-how-crisis-intervention-teams-are-failing [https://perma.cc/TLS2-JWYV].

²³⁰ Nir, supra note 22.

²³¹ Prude Complaint, supra note 7, at 14; see also WROC Staff, supra note 204.

²³² Id. at 2-3.

²³³ Police Executive Research Forum, Guiding Principles on Use of Force 36 (2016), https://www.policeforum.org/assets/30%20guiding%20principles.pdf [https://perma.cc/92LT-2U5C].

²³⁴ A 2015 nationwide survey found that found that while law enforcement agencies spend a median of 58 hours of recruit training on firearms and another 49 hours on defensive tactics, agencies spend only about 8 hours training on the topics of de-escalation and crisis intervention. The findings are summarized in Police Executive Research Forum, Critical Issues in Policing: Re-Engineering Training on Police Use of Force 11-12 (2015), http://www.policeforum.org/assets/reengineeringtraining1.pdf [https://perma.cc/7WNU-BY8W].

²³⁵ The Rochester CIT was created in response to a similar excessive force incident involving the Rochester Police Department in 2004. CITs provide specialized training to officers under the guidance of mental health professional on how to respond to mental health emergencies. Campbell, supra note 182, at 326. Their purpose is to “sensitize officers to understand that noncompliance or resistance by a citizen is not reflective of a lack of respect for the police or predictive of violence, while also increasing empathy for persons suffering from mental illness and their caregivers.” Michael T. Rossler & William Terrill, Mental Illness, Police Use of Force, and Citizen Injury, 20 Police Q. 189, 206 (2017).

²³⁶ Prude Body Camera at 33:45 (officer laughing “I bet he’s on PCP” before pushing Mr. Prude’s covered head into the pavement). Raw video: Police body cam video in Daniel Prude case, Rochesterfirst.com (Sept. 3, 2020), https://www.rochesterfirst.com/video/raw-video-police-body-cam-video-in-daniel-prude-case/5819564/ [https://perma.cc/TRT5-YUZ6] (officer laughing at 33:45 “I bet he’s on PCP” before pushing Mr. Prude’s covered head into the pavement).

²³⁷ Westervelt, supra note 229.

²³⁸ Prude Complaint, supra note 7, at 28-29 (citing David Andreatta, Rochester Police Department backpedals on controversial training, Democrat & Chron. (Sept. 6, 2017), http://www.democratandchronicle.com/story/news/local/columnists/andreatta/2017/09/06/rochester-backpedals-controversial-police-training/639216001/ [https://perma.cc/R3AU-6E46]. These included the “junk science known as anthropometry, … [which trains] police officers to note the length of an arrestees’ fingers in their official police paperwork as evidence of the individual’s genetic predisposition for aggressiveness when attempting to justify the officers’ use of force ex post.” Id.

²³⁹ Id. at 28 n. 5 (citing Miller v. City of L.A., No. EDCV 07- 806-VAP (JCRx), 2009 U.S. Dist. LEXIS 150685, at *5 (C.D. Cal. July 29, 2009); White v. Gerardot, No. 1:05-CV-382, 2008 U.S. Dist. LEXIS 87761, at *5-6 (N.D. Ind. Oct. 24, 2008); ADT Sec. Servs. v. Swenson, 276 F.R.D. 278, 318 (D. Minn. 2011); Lopez v. Chula Vista Police Dep’t, No. 07cv1272-WQH-BLM, 2010 U.S. Dist. LEXIS 16972, at *6-7 (S.D. Cal. Feb. 18, 2010); see State of New Mexico v. Perez, D-202-cr-201500105 (Aug. 24, 2015).

²⁴⁰ See supra Part III(A)(ii), discussing direct threat analysis.

²⁴¹ Cf. Drummond v. City of Anaheim, 343 F.3d 1052, 1062 (9th Cir.2003) (“[T]raining materials are relevant not only to whether the force employed in this case was objectively unreasonable, … but also to whether reasonable officers would have been on notice that the force employed was objectively unreasonable.”).

²⁴² Brakkton Brooker, Rochester Mayor Suspends Police Officers Who Pepper-Sprayed 9-Year-Old Girl, NPR (Feb 1, 2021), https://www.npr.org/2021/02/01/962813494/rochester-releases-video-of-police-pepper-spraying-9-year-old-girl [https://perma.cc/X5HB-Y3BC].

²⁴³ Tim Stelloh, 3 officers suspended after police pepper spray 9-year-old girl in Rochester, N.Y., NBC (Feb. 1, 2021, 7:21 AM), https://www.nbcnews.com/news/us-news/police-pepper-spray-9-year-old-girl-rochester-n-y-n1256313 [https://perma.cc/64ZR-ALJA].

²⁴⁴ Michael S. Rogers et al., Effectiveness of Police Crisis Intervention Training Programs, 47 J. Am. Acad. Psychiatry L. 414, 417-18 (2019).

²⁴⁵ Id.

²⁴⁶ Yasmeen Krameddine & Peter H. Silverstone, How to Improve Interactions Between Police and the Mentally Ill, 5 Frontiers in Psychiatry, Jan. 2015, at 2.

²⁴⁷ See, e.g., Settlement Agreement at 21, United States v. Cleveland, No. 1:15-cv-01046-SO (N.D Ohio June 12, 2015), https://www.justice.gov/crt/case-document/file/908536/download [https://perma.cc/UK8C-PQC7] (categorizing use of force “based on the following factors: potential of the technique or weapon to cause injury; degree of injury caused; degree of pain experienced; degree of disability experienced by the subject; complaint by the subject; degree of restraint of the subject; impairment of the functioning of any organ; duration of force; and physical vulnerability of the subject.”); Settlement Agreement And Stipulated [Proposed] Order of Resolution at 18, United States v. Seattle, No. 2:12-cv-01282-JLR (W.D. Wash. July 27, 2012), https://www.justice.gov/sites/default/files/crt/legacy/2012/07/31/spd_consentdecree_7-27-12.pdf [https://perma.cc/CDQ5-ST57] (same standard).

²⁴⁸ Rogers et al., supra note 244, at 417.

²⁴⁹ Memorandum Regarding Instructional System Design Model for Comprehensive Use of Force Training at 2, United States v. Seattle, No. 2:12-cv-01282-JLR (W.D. Wash. May 30, 2014) https://www.justice.gov/sites/default/files/crt/legacy/2014/10/23/spd_docket144.pdf [https://perma.cc/MJ4D-MA4R].

²⁵⁰ Transcript of Oral Argument at 34, Sheehan v. City of S.F., 575 U.S. 600 (2015) (No. 13-1412).

²⁵¹ Rod Covey, Port of Seattle PD Policy Manual 249 (2012), https://www.powerdms.com/public/PORT/documents/2056436 [https://perma.cc/XXA9-35DJ].

²⁵² Id.

²⁵³ DOJ Commonly Asked Questions, supra note 148. Similar accommodations must be made for hearing impaired arrestees. Id.

²⁵⁴ See Abigail Abrams, Black, Disabled and at Risk: The Overlooked Problem of Police Violence Against Americans with Disabilities, Time (June 25, 2020, 8:56AM), https://time.com/5857438/police-violence-black-disabled/ [https://perma.cc/A26D-BV3Y] (discussing Oregon’s CAHOOTS diversion program, established in the 1980s, “that reroutes 911 and non-emergency calls relating to mental health, substance use or homelessness to a team of medics and crisis-care workers.”).

²⁵⁵ Root Complaint, supra note 3, at 2, 20.