Nicole Haberle v. Daniel Troxell

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________

No. 16-2074
_____________

NICOLE HABERLE, In her own right, on behalf of her two
minor children, and as administrator of the
Estate of Timothy Nixon, deceased

Nicole Haberle,
Appellant

v.

OFFICER DANIEL TROXELL, Individually, and in his
official capacity as Nazareth Borough Police Officer;
THOMAS TRACHTA, Individually, and in his official
capacity as Nazareth Borough Police Chief;
MAYOR CARL STYRE, Individually, and in his official
capacity as Mayor of Nazareth Borough;
PRESIDENT DAN CHIAVAROLI, Individually, and in his
official capacity as President of Nazareth Borough Council;
VICE PRESIDENT LARRY STOUDT, Individually, and in
his official capacity as Vice President of Nazareth Borough
Council; JOHN SAMUS, Individually, and in his official
capacity as a member of Nazareth Borough Council;
COUNCIL MEMBER MICHAEL KOPACH, Individually,
and in his offical capacity as a member of Nazareth Borough
Council; COUNCIL MEMBER FRANK MAUREK,
Individually, and in his official capacity as a member of
 Nazareth Borough Council; COUNCIL MEMBER
CHARLES DONELLO, Individually, and in his official
capacity as a Member of Nazareth Borough Council;
COUNCIL MEMBER CARL FISCHL, Individually, and in
his official capacity as a member of Nazareth Borough
Council; JOHN/JANE DOE POLICE STAFF #1-X,
Individually, and in their official capacities as staff of the
Nazareth Police Department; BOROUGH OF NAZARETH

_______________

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(E.D. Pa. No. 5-15-cv-02804)
District Judge: Hon. Joseph F. Leeson, Jr.
_______________

Argued: November 4, 2016

Before: JORDAN, GREENAWAY, JR., and RENDELL,
Circuit Judges.

(Opinion Filed: March 20, 2018)

_______________

Joseph E. Welsh [ARGUED]
Lauer & Fulmer
701 Washington St.
Easton, PA 18042
Counsel for Appellant

2
Rufus A. Jennings
John P. Morgenstern [ARGUED]
Deasey Mahoney & Valentini
1601 Market Street
Suite 3400
Philadelphia, PA 19103
Counsel for Appellee
_______________

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 by the
Borough of Nazareth learned of that threat, he did not wait for
trained crisis support professionals but instead knocked on the
door of the apartment where Nixon was located and
announced his presence. Nixon immediately shot himself.

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

3
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.

I. BACKGROUND1

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

1
When reviewing a decision to grant a motion to
dismiss, we “accept as true all well-pleaded facts and
allegations, and must draw all reasonable inferences
therefrom in favor of the plaintiff.” Bell v. Cheswick
Generating Station, 734 F.3d 188, 193 n.5 (3d Cir. 2013).

4
went there, accompanied by other officers from the Borough
and surrounding municipalities.2 Upon arriving at the
apartment, some of the officers suggested setting up a
perimeter and asking the Pennsylvania State Police to send
crisis negotiators. Others suggested asking Haberle to help
communicate with Nixon. Troxell rebuffed those
suggestions, calling the other officers “a bunch of f[---]ing
pussies.” (App. at 7.) He declared his intention to
immediately go to the apartment, because “[t]his is how we
do things in Nazareth.” (App. at 7.) He did as he said,
knocked on the door of the apartment, and identified himself
as a police officer. Nixon then promptly went into one of the
bedrooms of the apartment and turned the stolen gun on
himself.

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
amended, included eleven counts.3 The Defendants moved

2
According to Haberle, Nixon was not a danger to
anyone and was peacefully drinking beer with his cousin.
She does not, however, allege that Troxell knew what was
happening inside the apartment.
3
Haberle had been allowed to amend her complaint
under the safe harbor provisions of Federal Rule of Civil
Procedure 11(c)(2) to remove some inflammatory rhetoric in
the initial pleading. The amended complaint includes claims
listed as “[c]ounts.” (See App. at 81-89.) The first six claims
were brought under 42 U.S.C. § 1983. Count one claimed

5
pursuant to Federal Rule of Civil Procedure 12(b)(6) to
dismiss the amended complaint, and that motion was granted.
The District Court did not grant Haberle an opportunity to
further amend her complaint, concluding that any additional
amendment would be futile. This timely appeal followed.

II. DISCUSSION4

that Troxell had violated the Fourth and Fourteenth
Amendments in a variety of ways, including depriving Nixon
of his right to bodily integrity, freedom from unreasonable
searches and seizures, freedom from state-created dangers,
and freedom from arbitrary conduct that shocks the
conscience. Count two claimed that all of the officers denied
Nixon needed medical care. Count three was against the
officers other than Troxell and alleged a failure to intervene
to prevent unconstitutional conduct. Count four attempted to
hold Troxell’s superiors responsible for Troxell’s conduct.
Count five alleged municipal liability for a failure to train.
Count six involved an allegation of civil conspiracy. The
seventh count alleged violations of the ADA by the Borough.
The remaining counts claimed violations of state law,
including intentional infliction of emotional distress,
negligent infliction of emotional distress, wrongful death, and
a survivorship action for lost revenue and pain and suffering.
4
The District Court had jurisdiction over Haberle’s
federal claims under 28 U.S.C. §§ 1331 and 1343. It had
supplemental jurisdiction over her state law claims under
28 U.S.C. § 1367. We have jurisdiction pursuant to 28
U.S.C. § 1291. Our review of the District Court’s dismissal
order is de novo. Phillips v. Cty. of Allegheny, 515 F.3d 224,
230 (3d Cir. 2008).

6
 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

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 (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).

7
Due Process Clause of the Fourteenth Amendment.5 Finally,
she argues that the Borough violated the ADA. None of those
arguments is persuasive.

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 (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. “[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.

In this case, the District Court correctly concluded that
there was no seizure. Whether or not well-advised, and

5
A “state-created danger” may exist where a state
actor either creates a harmful situation or increases a citizen’s
exposure or vulnerability to an already-present danger. See
Bright v. Westmoreland Cty., 443 F.3d 276, 281-82 (3d Cir.
2006) (discussing the state-created danger doctrine).

8
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, or that he was unable to
“decline the [officer’s] requests or otherwise terminate the
encounter.” Florida v. Bostick, 501 U.S. 429, 436 (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

9
Amendment to protect citizens against injuries caused by
private actors. DeShaney v. Winnebago Cty. Dep’t of Soc.
Servs., 489 U.S. 189, 197 (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:

(1) [T]he harm ultimately caused was
foreseeable and fairly direct;
(2) a state actor acted with a degree of
culpability that shocks the conscience;
(3) a relationship between the state and the
plaintiff existed such that the plaintiff was a
foreseeable victim of the defendant’s acts, or a
member of a discrete class of persons subjected
to the potential harm brought about by the
state’s actions, as opposed to a member of the
public in general; and
(4) a state actor affirmatively used his or her
authority in a way that created a danger to the
citizen or that rendered the citizen more
vulnerable to danger than had the state not acted
at all.

Id. (citations, footnotes, and internal quotation marks
omitted). The District Court here considered the second
element in particular and determined that Officer Troxell’s

10
conduct lacked “a degree of culpability that shocks the
conscience.” Id. We agree with that assessment.6

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 (1998). Instead,
“only the most egregious official conduct can be said to”
meet that standard. Id. at 846.

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). 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

6
Because Troxell’s conduct does not shock the
conscience, we do not address the other prongs of the “state-
created danger” doctrine. Before the District Court and again
on appeal, Troxell argued that the “state-created danger”
claim against him should be barred by qualified immunity.
The District Court did not address qualified immunity, and,
given our disposition of the claim, neither do we.

11
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,” (Opening Br.
at 24), but the fact that Troxell chose to immediately knock
while other officers counseled waiting manifests only a
disagreement over how to manage a risk, not a disregard of it.
As the District Court noted, “[u]nder the circumstances that
the officers were confronting, any decision they could have
made … was not free from risk to Nixon, the other occupants
of the apartment, or the officers.” (App. at 16-17.) Nixon’s
suicide is surely tragic, and, in its aftermath “it is natural to

12
second-guess the decisions of Troxell,” (App. at 17), but we
cannot say that what he did shocks the conscience.

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.7

7
According to Haberle, even if her ADA claim against
the Borough was meritless at the point of arrest, it should still
survive because the Borough’s failure to establish a suitable
training program is, by itself, a violation of the ADA. To
support her theory, Haberle points to an opinion from the
United States District Court for the Middle District of
Pennsylvania, Schorr v. Borough of Lemoyne, 243 F. Supp.
2d 232 (M.D. Pa. 2003). In Schorr, the court concluded that
whether there was an ADA claim on the day of the arrest was

13
Our analysis begins with the statutory text. See Ross v. Blake,
136 S. Ct. 1850, 1856 (2016) (“Statutory interpretation, as we
always say, begins with the text … .”). To successfully state
a claim under Title II of the ADA, a person “must
demonstrate: (1) he is a qualified individual; (2) with a
disability; (3) [who] 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; (4) by reason of his disability.” Bowers v. Nat’l

“irrelevant” because the purported injury did not occur the
day of the police altercation but instead “occurred well before
that day, when the … policy makers failed to institute
[policies] to accommodate disabled individuals … by giving
the officers the tools and resources to handle the situation
peacefully.” Id. at 238.
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.

14
Collegiate Athletic Ass’n, 475 F.3d 524, 553 n.32 (3d Cir.
2007).8 The first question, then, is whether arrestees can be
“qualified individuals” under the ADA, and the best response
is that they can, for there is nothing to categorically exclude
them from the statute’s broad coverage.9 See Gorman v.

8
The language of the statute itself is, “no qualified
individual with a disability shall, by reason of such disability,
be excluded from participation in or be denied the benefits of
the services, programs, or activities of a public entity, or be
subjected to discrimination by any such entity.” 42 U.S.C.
§ 12132.
9
That arrestees can qualify does not, of course, mean
that they necessarily will qualify. There remains a question
whether a potentially violent person with mental health
problems who, while possessing a gun, barricades himself in
another person’s apartment is a “qualified individual” under
the ADA. The ADA defines a “qualified individual with a
disability” as “an individual with a disability who, with or
without reasonable modifications to rules, policies, or
practices, the removal of architectural, communication, or
transportation barriers, or the provision of auxiliary aids and
services, meets the essential eligibility requirements for the
receipt of services or the participation in programs or
activities provided by a public entity.” 42 U.S.C. § 12131(2).
We have previously noted that a “significant risk test” has
been used to determine whether an individual is qualified to
receive protection under the analogous Rehabilitation Act.
See New Directions Treatment Servs. v. City of Reading, 490
F.3d 293, 303 (3d Cir. 2007). Whether application of that
same test in the ADA context is appropriate, however, is not

15
Bartch, 152 F.3d 907, 912-13 (8th Cir. 1998) (concluding that
an arrestee could be a qualified individual under the ADA
despite not having “‘volunteered’ to be arrested”); cf. Pa.
Dep’t of Corr. v. Yeskey, 524 U.S. 206, 210-11 (1998) (noting
that a state prisoner could be a “qualified individual” under
the ADA even when participation in a service, program, or
activity of the State is not voluntary).

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)).

something that we need to address now. We reserve
judgment on that issue for another day.

16
 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
a “public entity.”’” Gorman, 152 F.3d at 912 (quoting
Yeskey, 524 U.S. at 210); see 42 U.S.C. § 12131(1)(A)-(B)
(defining “public entity” to include, among other things, “any
State or local government” and “any department, agency,
special purpose district, or other instrumentality of a State or
States or local government”); see also Yeskey, 524 U.S. at
209-10 (concluding that state prisons are public entities under
the ADA because “the ADA plainly covers state institutions
…”). Furthermore, persuasive precedent indicates that the
ADA’s reference to “the services, programs, and activities of
a public entity” should likewise be interpreted broadly “to
‘encompass[] virtually everything that a public entity does.’”
Babcock v. Michigan, 812 F.3d 531, 540 (6th Cir. 2016)
(alteration in original) (quoting Johnson v. City of Saline, 151
F.3d 564, 569 (6th Cir. 1998)); see also Yeskey v. Comm. of
Pa. Dep’t of Corr., 118 F.3d 168, 171 (3d Cir. 1997) (noting
that similar “broad language” in the ADA’s implementing
regulations was “intended to appl[y] to anything a public
entity does” (alteration in original) (internal quotation marks
omitted)), aff’d, 524 U.S. 206 (1998). Nevertheless, courts

17
across the country are divided on whether police fieldwork
and arrests can rightly be called “services, programs, or
activities of a public entity … .” 42 U.S.C. § 12132.10

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).

10
The Supreme Court had granted certiorari to address
that question, City & Cty. of San Francisco v. Sheehan, __
U.S. __, 135 S. Ct. 702 (2014), but it later dismissed the writ
as improvidently granted. City & Cty. of San Francisco v.
Sheehan, __ U.S. __, 135 S. Ct. 1765, 1773-74 (2015). The
issue thus continues to divide some federal courts. See
generally Robyn Levin, Note, Responsiveness to Difference:
ADA Accommodations in the Course of an Arrest, 69 Stan. L.
Rev. 269 (2017) (compiling cases).

18
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 support from our sister circuits. See,
e.g., Sheehan, 743 F.3d at 1217 (“Title II of the [ADA]
applies to arrests.”); Roberts v. City of Omaha, 723 F.3d 966,
973 (8th Cir. 2013) (“[T]he ADA … appl[ies] to law
enforcement officers taking disabled suspects into custody.”).
Even though there is some disagreement concerning the point
during a law enforcement encounter at which the ADA
applies to police conduct, no court of appeals has held that the
ADA does not apply at all. See, e.g., Hainze v. Richards, 207
F.3d 795, 801 (5th Cir. 2000) (holding “that Title II does not
apply to an officer’s on-the-street responses to reported
disturbances or other incidents … prior to the officer’s
securing the scene and ensuring that there is no threat to
human life”); Gohier v. Enright, 186 F.3d 1216, 1221 (10th
Cir. 1999) (“[A] broad rule categorically excluding arrests
from the scope of Title II … is not the law.”).11

11
A successful ADA claim demands more than an
allegation of an arrest of a qualified individual with a
disability. The implementing regulations for the ADA make

19
 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

clear that there must also have been a failure to make
reasonable accommodations. See 28 C.F.R. § 35.130(b)(7)(i)
(stating that public entities are only required to make
“reasonable modifications in policies, practices, or
procedures” to comply with the ADA (emphasis added)); see
also 42 U.S.C.A. § 12131 (referencing “reasonable
modifications to rules, policies, or practices” in defining
“qualified individual”); supra note 9. The analysis as to what
is “reasonable” under the circumstances, including exigent
circumstances, and as to how their determination is reached,
presents complicated issues. See Levin, supra note 10. We
have no occasion now to consider the analytical approach to
an ADA claim arising from an arrest because we conclude
that Haberle’s ADA claim for money damages fails due to her
failure to plead deliberate indifference. Nevertheless, in the
future, we may need to consider whether and under what
circumstances it is reasonable to require police officers to
make accommodations during an arrest when they face an
exigent threat.

20
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. ex rel. Durrell, 729
F.3d at 263 n.23 (noting that the standard for proving
deliberate indifference being adopted for the ADA context “is
consistent with our standard of deliberate indifference in the
context of § 1983 suits by prison inmates”).

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

21
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 (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.12

12
Haberle contends that the District Court erred in not
granting her leave to amend her complaint again. She did not,
however, “request[] leave to amend, nor suggest[] the
existence of any allegations not contained in the Amended
Complaint.” (App. at 3.) On appeal, she has not pointed to
any amendments that she would have made to her complaint
if given the opportunity to do so. (Opening Br. at 24-25.)
And it seems clear that she cannot make any amendment that
would save her § 1983 claim, so granting leave to amend
would be futile with respect to that claim. See Alston v.
Parker, 363 F.3d 229, 235 (3d Cir. 2004) (“We have held that
even when a plaintiff does not seek leave to amend, if a
complaint is vulnerable to 12(b)(6) dismissal, a District Court
must permit a curative amendment, unless an amendment
would be inequitable or futile.”). But Haberle should be
given the narrow opportunity to amend her complaint with
respect to her ADA claim, particularly her allegations of a
history of civil rights violations by the Borough, because

22
 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. As the
District Court explained, “[t]he failure to train police officers

deliberate indifference was not discussed in the District Court
as to that claim.

23
to refrain from doing so much as knocking on the door when
they receive a call that a mentally ill individual has stolen a
firearm, is contemplating suicide, and may be in the presence
of others whose status is unknown is not so obvious [a
deficiency] that the Borough could be said to have been
deliberately indifferent to the need for that training.” (App. at
22.)

III. CONCLUSION

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.

24
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 18 (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 (1998)—
that arrests constitute “services, programs, or activities of a
public entity” under the ADA. 42 U.S.C. § 12132.1

I.

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 14 (quoting Bowers v. Nat’l
Collegiate Athletic Ass’n, 475 F.3d 524, 553 n.32 (3d Cir.

1
In contrast to Bircoll v. Miami-Dade Cty., 480 F.3d
1072, 1084 (11th Cir. 2007)—where the Eleventh Circuit
declined 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 Fourth Circuit’s
decision in Seremeth v. Bd. of Cty. Comm’rs Frederick Cty.,
counsels that the Court should reach both clauses in light of
Yeskey. 673 F.3d 333, 338 (4th Cir. 2012) (“[I]n light
of Yeskey’s expansive interpretation, the ADA applies to police
interrogations under either test.” (emphasis added)).

1
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 the ADA, the Rehabilitation Act of 1973. 42
U.S.C. § 12201(a) (declaring that Title II is not to “be
construed to apply a lesser standard than the standards applied
under . . . the Rehabilitation Act of 1973”); see also Bragdon
v. Abbott, 524 U.S. 624, 632 (1998) (holding that § 12201(a)
“requires [courts] to construe the ADA to grant at least as much
protection as provided by . . . the Rehabilitation Act”). Section
504 of the Rehabilitation Act defines “program or activity” to
mean “all of the operations” of an entity, 29 U.S.C. § 794(b)
(emphasis added), and we have recognized that “[t]he statutory
definition of ‘[p]rogram or activity’ in Section 504 indicates
that the terms were intended to be all-encompassing.” Yeskey

2
v. Com. of Pa. Dep’t of Corr., 118 F.3d 168, 170 (3d Cir. 1997)
(alterations in original) (emphasis added), aff'd sub nom.
Yeskey, 524 U.S. at 213. Similarly, our sister circuits have also
relied on § 504 to construe “services, programs, or activities”
broadly for purposes of Title II.

In Barden v. City of Sacramento, for example, the Ninth
Circuit explained:

Th[e] broad construction of the phrase,
“services, programs, or activities,” is supported
by the plain language of the Rehabilitation Act .
. . The legislative history of the ADA similarly
supports construing the language generously,
providing that Title II “essentially . . . simply
extends the anti-discrimination prohibition
embodied in section 504 [of the Rehabilitation
Act] to all actions of state and local
governments.” H.R.Rep. No. 101–485(II), at 84
(1990), reprinted in 1990 U.S.C.C.A.N. 303,
367 (emphasis added); see also id. at
151, reprinted in 1990 U.S.C.C.A.N. 303, 434
(“Title II . . . makes all activities of State and
local governments subject to the types of
prohibitions against discrimination . . . included
in section 504 . . . .”) (emphasis added).

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,’ . . .

3
‘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.2

II.

In addition to the plain text, the Department of Justice’s
interpretations of Title II also provide that arrests are “services,
programs, or activities of a public entity” under the ADA. 42
U.S.C. § 12132. Pursuant to its authority to “promulgate
regulations” and “render technical assistance” to assist public

2
The Supreme Court has cautioned that the open-
endedness of “services, programs, or activities” should not be
confused for ambiguity. See Yeskey, 524 U.S. at 212 (“As we
have said before, the fact that a statute can be applied in
situations not expressly anticipated by Congress does not
demonstrate ambiguity. It demonstrates breadth.” (internal
quotation marks omitted)); see also In re Phila. Newspapers,
LLC, 599 F.3d 298, 310 (3d Cir. 2010) (“In employing
intentionally broad language, Congress avoids the necessity of
spelling out in advance every contingency to which a statute
could apply.”).

4
entities in complying with the ADA, the Department of Justice
has interpreted Title II to apply to law enforcement activities,
generally, and arrests, specifically. 42 U.S.C. §§ 12134(a)
(authority to promulgate regulation), 12206(c)(1) (authority to
render technical assistance). In 2006, the Department issued
guidance stating that “[l]aw enforcement agencies are covered
by [Title II of the ADA] because they are programs of State or
local governments,” and that Title II “affects virtually
everything that officers and deputies do,” including “arresting,
booking, and holding suspects.” U.S. Dep’t of
Justice, Commonly Asked Questions About the Americans with
Disabilities Act and Law Enforcement § I (Apr. 4, 2006)
(emphasis added).3 The 2006 guidance is consistent with the
Department’s expansive interpretation of Title II. See 28
C.F.R. Pt. 35, App. B (“[T]itle II applies to anything a public
entity does.”).

3
This guidance merits at least Skidmore deference
because it reflects “a body of experience and informed
judgment to which courts and litigants may properly resort for
guidance.” Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944);
see also Frame v. City of Arlington, 657 F.3d 215, 225 (5th Cir.
2011) (“[B]ecause Congress directed the Department of Justice
(DOJ) to elucidate Title II with implementing
regulations, DOJ’s views at least would warrant respect and
might be entitled to even more deference.” (internal quotation
marks and footnotes omitted)).

5
 III.

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 17-18. 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, 135 S. Ct. 1765 (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 (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

6
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 on the ‘program or activity’ discussion in
Rosen”).

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.

IV.

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.

7