Gohier v. Enright

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
AUG 3 1999
UNITED STATES COURT OF APPEALS
PATRICK FISHER
TENTH CIRCUIT Clerk

JEANNE GOHIER, individually and as
personal representative for the Estate
of Michael Lucero,

Plaintiff-Appellant,
No. 98-1149
v.

GARY ENRIGHT; CITY OF
COLORADO SPRINGS, a Colorado
municipal corporation,

Defendants-Appellees.

Appeal from the United States District Court
for the District of Colorado
(D.C. No. 97-WY-925-WD)

Patric J. LeHouillier, of LeHouillier & Associates (Alexanderia Mason with him
on the brief), Colorado Springs, Colorado, for Plaintiff-Appellant.

Thomas J. Marrese, Senior Litigation Attorney for the City of Colorado Springs,
Colorado, (Patricia K. Kelly, City Attorney, with him on the brief), for
Defendants-Appellees.

Before BALDOCK, KELLY, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.
 Jeanne Gohier, representing the estate of Michael Lucero, appeals two

orders of the district court. Those orders had the combined effect of completely

dismissing the estate’s suit against the city of Colorado Springs and one of its

police officers, Gary Enright, who had fatally shot Lucero.

In its first order, the court granted summary judgment to Enright and the

City on Gohier’s § 1983 claims. It held that Enright was qualifiedly immune to

an excessive-force claim, and that, because he had not violated Lucero’s federal

rights, the City could not be liable under § 1983 for having a policy, custom, or

practice that caused a violation of federal rights. This court AFFIRMS that order

in its entirety for substantially the reasons stated in the order.

In the second order, the court affirmed a magistrate judge’s denial of

Gohier’s motion to amend her complaint. Gohier sought to add a claim that the

City had violated Title II, Subchapter A of the Americans with Disabilities Act,

42 U.S.C. §§ 12131–12134, by failing to treat and protect Mr. Lucero in light of

his disability, paranoid schizophrenia, which contributed to the very unfortunate

end of his encounter with Officer Enright. The magistrate concluded that

amendment would be futile, as Gohier could not as a matter of law state an ADA

claim. The district court affirmed on the same ground, after slightly qualifying

the magistrate’s explication. This court AFFIRMS the district court’s ruling, but

for different reasons, which require some discussion.

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 I. FACTS AND PROCEEDINGS

Shortly after midnight, Officer Enright responded to a dispatcher’s request

to investigate a disturbance on Nevada Avenue. The dispatcher reported that a

man on foot had hit a caller’s vehicle with a baseball bat, and that another caller

complained the man was breaking car windows with a pipe. The dispatcher gave

a description of the man.

Soon after the report, Enright was driving south down Nevada in the

vicinity of the incidents when he saw Lucero, who did not match the description,

walking south down the middle of the avenue. The area had no streetlights.

Enright pulled over, turning on his highbeams and overhead flashing lights.

Lucero kept walking, with his right hand clutched to his chest.

Enright got out of his car, leaving it idling. He had a nightstick, pepper

spray, a pistol, and a lapel microphone with which he could talk to the dispatcher.

According to Enright, the following events all transpired in the 20 to 30 seconds

after he left the car.

Enright identified himself and asked Lucero to talk to him. Lucero,

however, kept walking. Enright yelled, “Police, stop!” Lucero then stopped, 30

to 35 feet from Enright, put his right hand behind his back, and began walking

toward Enright at a “fast pace.” Enright described him as “crazed and wild-

eyed,” with his teeth gritted in a grimace and a “Charles Manson–type look.”

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 Enright did not call for backup. He drew his pistol, pointing it at a 45

degree angle at the ground between himself and Lucero. Although he ordered

Lucero to show his hands, Lucero kept walking quickly toward him with his right

hand hidden. Enright then leveled his pistol at Lucero and again shouted at him

to show his hands.

Still advancing, Lucero raised his right hand from behind his back and

began repeatedly swinging it down and forward in a stabbing motion. He held a

long, slender object that Enright thought was a knife. Around this time, Enright

decided that Lucero was mentally ill. He also decided to retreat five to seven feet

behind his car, while repeatedly ordering Lucero to “drop the knife” or “drop it.”

Lucero did not do so, but instead advanced to the driver’s side door of the

car. He was at this point no longer in the area illuminated by the car’s

headlights. He stopped and said, “Do you like your car? It’s gone.” When he

began to open the car door, Enright moved forward to stop him. Lucero then let

go of the door and either stepped or lunged toward Enright, making a stabbing

motion with the object. Enright shot him twice, killing him.

Gohier, as representative of Lucero’s estate and on her own behalf, filed a

complaint stating § 1983 excessive-force and failure-to-train claims, with pendent

negligence claims, against Enright and Colorado Springs. After defendants

moved for summary judgment, she moved to amend her complaint to add a claim

under Title II of the ADA. The district court designated a magistrate judge to

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hear and determine the motion to amend. See 28 U.S.C. § 636(b)(1)(A). The

magistrate judge denied the motion by written order, and Gohier moved the

district court to reconsider. See id. The court reviewed the order, determined that

it was not clearly erroneous or contrary to law, and affirmed it.

II. DISCUSSION

A. Standard of Review

This court reviews the district court’s refusal to grant Gohier leave to

amend her complaint for an abuse of discretion. See, e.g., Jefferson County Sch.

Dist. No. R-1 v. Moody’s Investor’s Servs., Inc., 175 F.3d 848, 858–59 (10th Cir.

1999). The district court rested that refusal, however, not on any discretionary

ground, but solely on the legal ground that the amendment would have been

futile. 1 A proposed amendment is futile if the complaint, as amended, would be

subject to dismissal. See id. at 859. The futility question is functionally

equivalent to the question whether a complaint may be dismissed for failure to

state a claim, a question this court reviews de novo. See, e.g., Chemical Weapons

Working Group, Inc. v. United States Dep’t of the Army, 111 F.3d 1485, 1490

1
The magistrate judge had noted in his order that the amendment would
likely confuse the jury and prejudice the defendants. The magistrate rested his
order, however, on futility: “The Plaintiffs’ motion to amend . . . is appropriately
denied on the grounds of futility. Accordingly, Plaintiffs’ motion to amend
complaint is DENIED.” More importantly, the district court’s order affirming the
magistrate described the latter’s denial of leave as “based on a determination that
[amendment] would prove to be futile.” The district court’s order addressed only
futility.

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(10th Cir. 1997) (noting de novo review of dismissal for failure to state claim);

see also, e.g., Burger King Corp. v. Weaver, 169 F.3d 1310, 1315 (11th Cir.

1999) (noting that, to extent denial of leave to amend based on futility, court of

appeals reviews de novo); Martin v. Associated Truck Lines, Inc., 801 F.2d 246,

248–49 (6th Cir. 1986) (same). “A district court by definition abuses its

discretion when it makes an error of law.” Koon v. United States, 518 U.S. 81,

100 (1996).

B. Analysis

1. Statutory Framework

Title II of the ADA commands that “no qualified individual with a

disability shall, by reason of such disability, be excluded from participation in or

be denied the benefits of the services, programs, or activities of a public entity, or

be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. The ADA

broadly defines a “qualified individual with a disability” as anyone who “meets

the essential eligibility requirements for the receipt of services or . . .

participation in programs or activities provided by a public entity.” Id.

§ 12131(2).

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 2. The Magistrate’s and District Court’s Reasoning

In evaluating Gohier’s proposed claim under Title II of the ADA, the

magistrate applied the general standard of Tyler v. City of Manhattan, 849 F.

Supp. 1429 (D.Kan. 1994). That standard requires a plaintiff to prove:

(1) that he [or she] is a qualified individual with a disability;
(2) that he [or she] was either excluded from participation in or denied the
benefits of some public entity’s services, programs, or activities, or was
otherwise discriminated against by the public entity; and
(3) that such exclusion, denial of benefits, or discrimination was by reason
of the plaintiff’s disability.

Id. at 1439. This general standard, which closely tracks the statute’s language, is

plainly correct. See Weinreich v. Los Angeles County Metro. Transp. Auth., 114

F.3d 976, 978 (9th Cir.), cert. denied, 118 S. Ct. 423 (1997) (stating essentially

identical test). Colorado Springs does not contest that it is a public entity, or that

Lucero had a disability. That leaves two potentially relevant questions: did the

city, by reason of Lucero’s disability, either (1) exclude him from participating in

or deny him the benefits of services, programs, or activities whose essential

eligibility requirements he met, or (2) otherwise subject him to discrimination?

The magistrate did not frame the inquiry in terms of those two questions.

Instead, in addressing Tyler’s second branch, the magistrate adopted the reasoning

of an unpublished district court opinion holding that “the individual [police]

protection of a particular person or . . . class of persons is not . . . a municipal

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service, benefit, or program.” Amirault v. City of Roswell, No. 6:95–CV–422,

1996 WL 391986, at *6 (D.N.M. July 11, 1996).

Amirault involved a Title II claim by a man with whom City police officers

had spoken, fearing that he was a suicide risk, but whose assurances that he had

changed his mind convinced them to let him go. See id. at *1. He soon thereafter

tried to kill himself. See id. He later sued the City under the ADA, arguing that

the police had violated his right to protection (from himself) by not arresting and

involuntarily committing him for mental-health evaluation. See id. at *2. The

court held that his claim failed under Tyler’s second branch. See id. at *5–6. It

relied on three overlapping rationales: no one has a right to be involuntarily

committed for protection from himself; the State has no affirmative duty to

protect any person not in its custody; and police protection is not an

individualized benefit whose denial can be actionable. See id. The court thus

held that “the City . . . had no duty to protect Plaintiff from himself . . ., nor was

Plaintiff denied a municipal or police service, benefit, or program to which he or

any other individual or class of individuals was entitled.” Id. at *6.

The magistrate in this case focused on the rule stated in the latter half of

that holding, i.e., that police protection is not a “municipal service, benefit, or

program.” He concluded that this rule bars Gohier’s proposed ADA claim, which

arose from police interaction with Lucero, as a matter of law.

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 Gohier pointed out to the district court that opinions from outside this

circuit establish a more specifically relevant test for Title II claims arising from

arrests. See Lewis v. Truitt, 960 F. Supp. 175, 178 (S.D.Ind. 1997) (“Courts have

held that a plaintiff may recover under the ADA where he can show that (1) he

was disabled, (2) the defendants knew or should have known that he was disabled,

and (3) the defendants arrested him because of legal conduct related to his

disability.” (citing Barber v. Guay, 910 F. Supp. 790, 802 (D.Me. 1995)); Jackson

v. Town of Sanford, No. 94–12–P–H, 63 U.S.L.W. 2351, 3 A.D. Cases 1366, 7

A.D.D. 211, 1994 WL 589617, at *6 (D.Me. Sept. 23, 1994). The district court

did not deny that Lewis’s test is more appropriate, instead holding only that the

magistrate’s decision to apply Tyler instead of Lewis had not been “contrary to

law or clearly erroneous.” That conclusion, however, was a non sequitur: the

Lewis test is not an alternative to Tyler, but a specific application of the general

standard set forth in Tyler. Indeed, the Lewis court itself quoted and applied

Tyler. See Lewis, 960 F. Supp. at 177.

The propriety of the magistrate’s ruling really turns on the second step of

his analysis: applying very broadly Amirault’s comment that police protection is

not an individualized benefit of a public entity’s “services, programs, or

activities,” as required by the ADA. Even assuming arguendo the correctness of

that debatable comment, the problem with the magistrate’s approach is that it

ignored the second basis for a Title II claim. As noted above, Title II commands

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that Lucero not “be excluded from participation in or be denied the benefits of the

services, programs, or activities of [Colorado Springs], or be subjected to

discrimination by [Colorado Springs].” 42 U.S.C. § 12132 (emphasis added).

The initial question is thus whether Lewis, on the one hand, or Amirault, as

broadly read by the magistrate, correctly decided whether a person with a

disability can state a claim under the ADA based on police conduct in an arrest or

investigation. In reviewing the magistrate’s order, the district court held that,

while Amirault’s facts are distinguishable, the quoted principle is not. The court

thus concluded that denying leave to amend based on Amirault was not “clearly

erroneous or contrary to law.”

3. The Scope of the ADA’s Applicability to an Arrest or Investigation

Amirault invoked a rule that police protection is not an individualized

benefit in addressing a narrow claim, i.e., that the ADA affirmatively obliged

police to protect a person from his own actions, which were caused by that

person’s disability. In this case, the magistrate and district court divorced

Amirault’s invocation of that rule from its narrow context and apparently

converted it into a broad rule barring any Title II claim arising from an arrest or

related police interaction involving a person with a disability. 2

2
This opinion broadly uses the term “arrest” to include several different
scenarios: arrests; investigations potentially involving an arrest, as in Amirault;
and violent confrontations not technically involving an arrest, as in this case.

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 Federal courts have addressed Title II claims arising from arrests under two

different theories. See generally Patrice v. Murphy, 43 F. Supp.2d 1156, 1158–60

(W.D.Wash. 1999) (surveying cases). The first is that police wrongly arrested

someone with a disability because they misperceived the effects of that disability

as criminal activity. See Lewis, 960 F. Supp. at 176–77; Jackson, 1994 WL

589617, at *1. The second is that, while police properly investigated and arrested

a person with a disability for a crime unrelated to that disability, they failed to

reasonably accommodate the person’s disability in the course of investigation or

arrest, causing the person to suffer greater injury or indignity in that process than

other arrestees. See Gorman v. Bartch, 152 F.3d 907, 912–13 (8th Cir. 1998)

(holding such claim viable); Rosen v. Montgomery County, 121 F.3d 154, 157–58

(4th Cir. 1997) (suggesting in dicta such claim not viable); Patrice, 43 F. Supp.2d

at 1160 (holding such claim not viable).

This case is logically intermediate between the two archetypes envisioned

by those theories. Officer Enright did not use force on Mr. Lucero because he

misconceived the lawful effects of his disability as criminal activity, inasmuch as

Lucero’s assaultive conduct was not lawful. Neither did Enright fail to

accommodate Lucero’s disability while arresting him for “some crime unrelated to

his disability.” See Patrice, 43 F. Supp.2d at 1159. Instead, Enright used force

on Lucero while Lucero was committing an assault related to his disability.

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 This court need not decide whether this case is better analyzed under a

wrongful-arrest or reasonable-accommodation-during-arrest theory. Even

assuming both theories are viable, the first does not apply to the facts of this case,

and Gohier has expressly declined to invoke the second. Accordingly, this court

merely clarifies that a broad rule categorically excluding arrests from the scope of

Title II, like the rule derived from Amirault by the district court in this case, is

not the law. It remains an open question in this circuit whether to adopt either or

both the wrongful-arrest theory of Lewis and Jackson and the reasonable-

accommodation-during-arrest theory of Gorman.

4. Wrongful-Arrest Theory

In two opinions on which Gohier relies, district courts declined to dismiss

ADA claims alleging that police had arrested, and, in one case, beaten, persons

with disabilities who had not committed any crime. See Lewis, 960 F. Supp. at

176–77; Jackson, 1994 WL 589617, at *1. 3 See generally James D. Johnson,

Note & Comment, Does the Americans with Disabilities Act Apply to the Conduct

of Law Enforcement Officers Pursuant to Arrests? A Survey of Gorman v. Bartch,

3
Gohier also relies on Barber v. Guay, 910 F. Supp. 790, 802 (D.Me. 1995).
Police arrested and used force on Barber, who had or was regarded as having a
mental disability, in resolving a trivial dispute between him and his landlord over
a wheelbarrow. See id. at 796, 802. In the brief part of its opinion declining to
dismiss Barber’s ADA claim, the court did not specify how the police may have
violated Title II in his arrest. See id. at 802. The ADA discussion is cursory, as
it serves only to reject a misguided argument that, because Barber was not an
employee under ADA’s Title I, the ADA did not apply at all. See id. Barber thus
offers little help in deciding when Title II claims are viable in an arrest context.

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14 Ga. St. U. L. Rev. 901, 920–22 (1998) (discussing cases). The police in each

case misperceived the effects of a disability as illegal conduct. In Lewis, they

beat and arrested, for the offense of resisting law enforcement, a deaf man who

could not understand their commands; in Jackson, they arrested for drunk driving

a man who was sober, and whose unsteadiness and slurred speech resulted from a

past stroke. See 960 F. Supp. at 176–77; 1994 WL 589617, at *1. The court in

each case relied on a passage in the ADA’s legislative history to conclude that a

person with a disability can state a claim for such mistreatment:

In order to comply with the non-discrimination mandate, it is often
necessary to [train] public employees about disability. For example,
persons who have epilepsy, and a variety of other disabilities, are
frequently inappropriately arrested and jailed because police officers
have not received proper training in [how to recognize and aid people
having] seizures. . . . Such discriminatory treatment based on
disability can be avoided by proper training.

H.R. Rep. No. 101–485, pt. III (1990), reprinted in 1990 U.S.C.C.A.N. 445

(quoted at 960 F. Supp. at 178; 1994 WL 589617, at *6 n.12).

In this case, Officer Enright did not misperceive lawful conduct caused by

Mr. Lucero’s disability as criminal activity and then arrest him for that conduct.

Lucero’s conduct was not lawful, and Enright did not arrest him. Enright used

force on Lucero not to effect an arrest, but to defend himself from a perceived

threat. When he shot Lucero, he reasonably thought it necessary to do so to avoid

serious harm or death. We take judicial notice that Lucero may not have been

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criminally responsible under Colorado law for his unlawful conduct, 4 and assume

that said conduct was the unfortunate result of a “disability” in terms of the ADA.

Nonetheless, whether or not Enright would have formally arrested Lucero, had

that been possible, and whether or not a jury would ultimately have convicted

Lucero of any crime, Enright’s use of force in self-defense is simply unlike the

wrongful arrests of Lewis and Jackson. Those men’s conduct did not warrant the

police response at issue in those cases, i.e., arrest. Lucero’s threatening conduct,

however, did warrant the police response at issue in this case, i.e., the use of

force in self-defense.

5. Reasonable-Accommodation-During-Arrest Theory

As noted above, the Eighth Circuit has held that Title II can apply to arrests

in a different type of case than the wrongful-arrest scenario of Lewis and Jackson.

See Gorman, 152 F.3d at 912–13 (reversing dismissal of ADA suit alleging police

had discriminated against arrestee with disability by transporting him to police

station in vehicle unequipped to safely accommodate people using wheelchairs).

Under Gorman’s rationale, Gohier might have argued that Title II required

Colorado Springs to better train its police officers to recognize reported

4
See Colo. Rev. Stat. §§ 16–8–101.5, –103, –104.5, –105.5 (1999)
(governing crimes committed after June 1995); see also, e.g., People v. Chavez,
629 P.2d 1040, 1047 (Colo. 1981) (en banc) (explaining that one who pleads not
guilty by reason of insanity “‘admits the acts charged, but denies criminal
culpability’” on grounds that “mental disease or defect . . . relieves him of
criminal responsibility for his conduct” (quoting Leick v. People, 322 P.2d 674,
681 (1958)).

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disturbances that are likely to involve persons with mental disabilities, and to

investigate and arrest such persons in a manner reasonably accommodating their

disability. Gohier, however, did not make any such argument under the ADA

below and, on appeal, affirmatively disclaimed reliance on the theory advanced by

the plaintiff in Gorman. This court thus expresses no opinion on whether a

reasonable-accommodation-during-arrest theory could extend to the facts of this

case.

III. CONCLUSION

This court AFFIRMS the district court’s order granting defendants

summary judgment on Gohier’s § 1983 claims for substantially the reasons stated

in that order, and AFFIRMS the order denying Gohier leave to amend her

complaint to allege a claim under the ADA for the reasons discussed above.

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