FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS [Hon. Timothy S. Hillman, U.S. District Judge]
[Hon. David H. Hennessy, U.S. Magistrate Judge]
Matthew R. Segal, with whom Ruth A. Bourquin, American Civil
Liberties Union Foundation of Massachusetts, Inc., Claudia
Center, American Civil Liberties Union Foundation, Richard L.
Neumeier, and Morrison Mahoney LLP, were on brief, for
W. Ogden, Daniel S. Volchok, Alexandra Stewart, Wilmer Cutler
Pickering Hale Da and Dorr LLP, Aaron M. Panner, Kellogg,
Hansen, Todd, Figel & Frederick, P.L.L.C, Nathalie F. P.
Gilfoyle, Deanne M. Ottaviano, and Jennifer Mathis on brief
for American Psychiatric Association, American Psychological
Association, and Judge David L. Bazelon Center for Mental
Health Law, amici curiae (in support of neither party).
R. Donohue, with whom Deidre Brennan Regan, Leonard H.
Kesten, and Brody, Hardoon, Perkins & Kesten, LLP, were
on brief, for appellees.
R. Atstupenas, Christopher J. Petrini, Peter L. Mello, and
Petrini & Associates, P.C. on brief for International
Municipal Lawyers Association and Massachusetts Chiefs of
Police Association, Inc., amici curiae (in support of
B. Petersen on brief for Axon Enterprise, Inc., amicus curiae
(in support of affirmance).
Kayatta, Circuit Judge, Souter, [*] Associate Justice, and
Selya, Circuit Judge.
appeal arises at the intersection of constitutional law and
disability-rights law. It touches upon a plethora of
important issues. Some of these issues relate to the
appropriateness of a police officer's use of a Taser in
attempting to regain custody of a mentally ill person who,
after being involuntarily committed, absconded from a
hospital. Others relate to the applicability vel non of Title
II of the Americans with Disabilities Act (ADA), 42 U.S.C.
§§ 12131-65, to ad hoc police encounters. In the
end, we decide the case on the narrowest available grounds
and affirm the entry of summary judgment for the defendants.
case has its genesis in an on-the-street encounter between
plaintiff-appellant Judith Gray (who suffers from bipolar
disorder) and Thomas Cummings, a police officer in Athol,
Massachusetts (the Town). Because the case was decided below
at the summary judgment stage, we must take the facts in the
light most hospitable to the non-moving party (here, Gray),
consistent with record support. See Houlton Citizens'
Coal. v. Town of Houlton, 175 F.3d
178, 184 (1st Cir. 1999). We caution, though, that we are not
obliged to credit "conclusory allegations, improbable
inferences, acrimonious invective, or rank speculation."
Ahern v. Shinseki, 629 F.3d 49, 54
(1st Cir. 2010).
Here, the raw facts are largely undisputed. In her
deposition, Gray testified that she "really [didn't]
know what happened" during the incident because she
"was in a full-blown manic phase." She added that
she "wouldn't know Officer Cummings if [she] fell
over him" and that she had reviewed the police report
prepared by Cummings and did not know whether or not it
accurately described the events that had transpired. Nor did
she present any other evidence contradicting Cummings's
version of the relevant events. Although we recognize that
juries have some leeway to "reject uncontradicted,
unimpeached testimony when it is improbable, inherently
contradictory, riddled with omissions, or delivered in a
manner giving rise to doubts," Quintana-Ruiz
v. Hyundai Motor Corp., 303 F.3d 62, 76
(1st Cir. 2002), that principle has no application here.
Accordingly, we elicit many of the facts from Cummings's
account. See Harriman v. Hancock
County, 627 F.3d 22, 34 (1st Cir. 2010) (finding no
material factual dispute when plaintiff "had no memory
of being beaten by anyone at anytime relevant to this
case"); see also Wertish v.
Krueger, 433 F.3d 1062, 1065 (8th Cir. 2006)
(deeming police officer's version of events
"unrefuted" when plaintiff testified that he had
very little memory of relevant events). Even so, we draw all
reasonable inferences from those facts in Gray's favor.
2, 2013, Gray - who was then fifty-seven years old -
experienced a manic episode and called 911. Athol police
officers arrived at Gray's home and transported her to
Athol Memorial Hospital. She was admitted to the hospital at
around 4:00 a.m., pursuant to Mass. Gen. Laws ch. 123, §
12 (authorizing involuntary "[e]mergency restraint and
hospitalization of persons posing risk of serious harm by
reason of mental illness"). Approximately six hours
later, Gray absconded from the hospital on foot. Hospital
staff called the Athol Police Department, asking that Gray -
"a section 12 patient" - be "picked up and
responded to the call and quickly located Gray, walking
barefoot along the sidewalk less than a quarter-mile from the
hospital. Cummings got out of his police cruiser. Gray swore
at him, and Cummings told her that she "ha[d] to go back
to the hospital." Gray again used profanity, declared
that she was not going back, and continued to walk away. In
response, Cummings radioed for backup and followed Gray on
foot. He repeatedly implored Gray to return to the hospital,
but his importunings were greeted only by more profanity.
Cummings followed Gray at a distance of roughly one hundred
feet. Within twenty-five to thirty seconds, he closed to
within five feet. At that point, Gray stopped, turned around,
"clenched her fists, clenched her teeth, flexed her body
and stared at [Cummings] as if she was looking right through
[him]." She again swore at Cummings and started walking
toward him. Cummings grabbed Gray's shirt but he could
feel Gray moving her body forward, so he "took her to
the ground." It is undisputed that Cummings had a
distinct height and weight advantage: he was six feet, three
inches tall and weighed 215 pounds, whereas Gray was five
feet, ten inches tall and weighed 140 pounds.
testified that once on the ground, he repeatedly instructed
Gray to place her hands behind her back. She did not comply.
Instead, she "tucked her arms underneath her chest and
flex[ed] tightly," swearing all the while. Cummings
warned Gray that she was "going to get ta[s]ed" if
she did not place her hands behind her back. Gray did not heed
this warning but, rather, swore at Cummings again and told
him to "do it." Cummings made "one last final
demand [for Gray] to stop resisting" and when "Gray
refused to listen," he removed the cartridge from his
Taser, placed it in drive-stun mode,  and tased Gray's back
for four to six seconds. Gray then allowed him to handcuff
helped Gray to her feet and called an ambulance, which
transported Gray to the hospital. According to Gray, she felt
"pain all over" at the moment she was tased, but
she "must have passed out because [she] woke up in
Emergency." Charges were subsequently filed against Gray
for assault on a police officer, resisting arrest, disturbing
the peace, and disorderly conduct, but were eventually
season, Gray sued Cummings and the Town in the federal
district court. She invoked federal question jurisdiction,
see 28 U.S.C. § 1331, and asserted causes of
action under 42 U.S.C. § 1983 and Title II of the ADA,
along with supplemental state-law claims for assault and
battery, malicious prosecution, and violations of the
Massachusetts Civil Rights Act (MCRA), Mass. Gen. Laws ch.
12, §§ 11H-11I. After the completion of pretrial
discovery, the defendants moved for summary judgment.
See Fed.R.Civ.P. 56(a). The district court referred
the opposed motion to a magistrate judge. See 28
U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b). Following a
hearing, the magistrate judge issued a report and
recommendation, suggesting that the motion be granted.
Specifically, the magistrate judge found no violation of the
Fourth Amendment under section 1983 on the part of either
Cummings or the Town and no viable state-law claims. As to
Cummings, the magistrate judge added that, in any event, he
was entitled to qualified immunity. The magistrate judge
further concluded that there had been no abridgement of the
ADA because, regardless of Gray's disability, Cummings
was entitled to employ an "appropriate level of force in
response to an ongoing threat."
objected to the magistrate judge's report and
recommendation. See 28 U.S.C. § 636(b)(1)(C);
Fed.R.Civ.P. 72(b). On de novo review, see Mercy Hosp.,
Inc. v. Mass. Nurses Ass'n, 429
F.3d 338, 343 (1st Cir. 2005), the district court entered a
two-sentence text order adopting the magistrate judge's
report and recommendation in substantial part. Because the
court agreed that Cummings was entitled to qualified
immunity, it declined to express any opinion on the
magistrate judge's determination that "Cummings
employed reasonable force under all of the
timely appeal followed. In addition to the parties'
briefs and oral argument, we have had the benefit of able
briefing by several amici.
review an order granting summary judgment de novo. See
Houlten Citizens' Coal., 175 F.3d at 184. "We
will affirm only if the record reveals 'that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.'" Avery
v. Hughes, 661 F.3d 690, 693 (1st Cir. 2011) (quoting
Fed.R.Civ.P. 56(a)). Against this backdrop, we proceed to
The Section 1983 Claims.
1983 supplies a private right of action against a person who,
under color of state law, deprives another of "any
rights, privileges, or immunities secured by the Constitution
and [federal] laws." 42 U.S.C. § 1983. To maintain
a cause of action under section 1983, "the plaintiff
must show a deprivation of a federally secured right."
Harrington v. City of Nashua, 610
F.3d 24, 28 (1st Cir. 2010). Gray has advanced separate
section 1983 claims against Cummings and the Town. We address
these claims sequentially.
section 1983 claim against Cummings is premised on the notion
that Cummings used excessive force in effecting her arrest
and, thus, violated her Fourth Amendment rights. To prevail
on such a claim, "a plaintiff must show that the
defendant employed force that was unreasonable under all the
circumstances." Morelli v.
Webster, 552 F.3d 12, 23 (1st Cir. 2009) (citing
Graham v. Connor, 490 U.S. 386,
396 (1989)). The degree of force to be used in any given
situation is most often a judgment call, which sometimes must
be made in a split second by a police officer confronted with
rapidly evolving circumstances. Determining whether a
particular use of force is reasonable requires consideration
of the totality of the circumstances. See Graham,
490 U.S. at 396. This consideration entails the weighing of a
myriad of factors such as "the severity of the crime at
issue, whether the suspect pose[d] an immediate threat to the
safety of the officers or others, and whether [the suspect
was] actively resisting arrest or attempting to evade arrest
by flight." Id.
starting point is the question of whether a reasonable jury
could find that Cummings violated Gray's Fourth Amendment
rights through the use of excessive force. The magistrate
judge answered this question in the negative, concluding
that, as a matter of law, "the single deployment of a
taser in drive stun mode" in these particular
circumstances was reasonable. Viewing the record most
hospitably to Gray and drawing all reasonable inferences to
her behoof, we think that a reasonable jury could find that
the force employed by Cummings violated the Fourth Amendment.
We explain briefly.
Town's policies describe a Taser in drive-stun mode as a
"pain compliance tool." Thus, the question reduces
to whether the circumstances surrounding the confrontation
between Gray and Cummings, interpreted in the light most
favorable to Gray, justified Cummings's use of such a
magistrate judge analyzed this question in accordance with
the Graham factors. In his view, the first factor -
"the severity of the crime at issue," id.
- favored Cummings because "Ms. Gray assaulted
[him]." At summary judgment, though, this assessment is
insupportable: it fails to view the facts in the light most
favorable to Gray.
regard, we think it important that Cummings was not called to
the scene to investigate a crime; he was there to return a
person suffering from mental illness to the hospital. When
the subject of a seizure has not committed any crime, the
first Graham factor ordinarily cuts in the
subject's favor. See Estate of Armstrong ex rel.
Armstrong v. Village of Pinehurst, 810
F.3d 892, 899 (4th Cir. 2016). To be sure, Gray did not
submit to Cummings's orders. Withal, this failure to obey
was at most a minor crime, not one that would tip the first
Graham factor in Cummings's favor. See
id. at 899-900.
does the alleged assault tilt the scales. In Cummings's
view, the assault occurred when, after Gray walked toward
him, he grabbed her shirt and she "continued pushing
against [his] arm." In the circumstances of this case,
we think that a reasonable jury could find that the facts did