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In the following highlighted case, the threats that prompted exclusion of an individual with intellectual disabilities (ID) from continued participation in a public recreation program were not necessarily real nor imminent when considered in context. Moreover, in the opinion of the federal district court: “This dispute ought to have been resolved short of litigation.” Further, the court found: “Plaintiffs’ basic social complaint is not an unreasonable one.” As characterized by the court, the Plaintiffs’ lawsuit described “what could well be governmental action based not on legitimate safety concerns, but rather on discriminatory stereotypes rooted in unfounded assumptions about cognitive disabilities.”
An Unhappy ID Camper
In the case of Angelika P. v. Town of Meredith, 2020 U.S. Dist. LEXIS 181738 (Dist. N.H., 10/1/2020), Plaintiff N.P. lives with his mother and guardian, Plaintiff Angelika P., in Meredith, New Hampshire. N.P. has intellectual disabilities. On recent cognitive functioning tests, N.P. scored below the first percentile, which placed him in the extremely low range for verbal comprehension, and, with respect to nonverbal intelligence, he scored in the “very poor” range compared to other students his age. N.P. tested in the “very low to severe range” of language functioning. At the time of the events giving rise to this action, N.P. was 20 years old.
N.P. had attended day camps offered by the defendant Town of Meredith (the Town) during summers and school vacations since 2015. The Meredith Parks and Recreation Department runs the day camps, and activities are conducted at the Town’s Recreation Center. In 2019, the summer camp ran from June 25, 2019 through August 16, 2019.
On August 6, 2019, a day camper reported that N.P. had made comments threatening camp staff. The Town asserted that the camper reported that N.P. threatened to kill three individuals: the camp director, a summer camp counselor and that camp counselor’s child. In response to the reported threats, the camp director and the program director for the Town’s Parks and Recreation Department notified the Meredith Police Department, which dispatched an officer.
The responding police officer, Keith True, who also served as the resource officer at the Town’s high school (where N.P. had been a student), knew N.P., and knew that N.P. had serious intellectual disabilities. Presumably, camp staff, directors and Town officials had the same information about N.P.’s profound disabilities, as he had been a regular camper for years.
Upon arriving at the Town’s Recreation Center, Officer True spoke with N.P. and asked him if he had “heard anyone say anything that may have scared someone.” N.P. responded that he had not made the comments, because he had not been at camp, he had been at an appointment. N.P. was, in fact, present at camp, and N.P. may or may not have had the ability to accurately recall and respond.
Officer True asked N.P. if he had heard “anyone making statements about hurting or killing someone, even as a joke.” N.P. said he had not and that he “wouldn’t say anything like that.” According to Officer True, N.P. did not know why Officer True was at camp, or why the officer wanted to speak with him.
After he spoke with N.P., Officer True met with the camp director and the director of the Town’s Parks and Recreation Department. Officer True told the camp director and the director of the parks and recreation department that he did not believe N.P. posed a threat, and that Officer True had not known N.P. to be violent. The officer then left the camp. No charges were filed against N.P.
N.P. remained at camp for the rest of the day without incident. When Angelika arrived to pick him up, the parks and recreation director handed her a “Meredith Parks and Recreation Behavior Report.” The director told Angelika that N.P. was suspended from participating in any Parks and Recreation Department program, and from being at any parks and recreation facility “for an indefinite period of time.”
That evening, Angelika emailed Meredith’s town manager. She explained N.P.’s intellectual disabilities, and that N.P. “has no real concept of what is being said or discussed beyond the surface,” or any idea that he had made any threats. Angelika told the town manager that N.P. “enjoys camp so much, and knowing camp is coming to an end makes him sad, so, he has had behavior incidents towards the end of camp in past years, knowing that it was going to end.”
Angelika asked to meet with the town manager in person to discuss N.P.’s suspension, arguing that the suspension “is extreme for someone who does not even know what he did or said, and has the mental ability of a young child.” Angelika asked the Town to modify the duration of N.P.’s indefinite suspension, to instead make the suspension “temporary, maybe for one or two days.” If N.P. misbehaved after he returned to camp, the Town could call her “immediately, and she would remove him from camp for the rest of the day.”
The town manager responded the next morning, August 7, 2019. He told Angelika that he needed to review the police and internal reports, and that “the suspension would remain in place until the investigation and research into this matter is completed.” Once completed, he said that Angelika would be notified of the outcome.
Angelika addressed the Town’s Behavior Report that same day and asked that her response be appended to the Report. She wrote that N.P. had a “significant intellectual disability that limits his understanding of questions being asked,” and “usually responded to questions based on what he thinks the person asking wants to hear.” She further wrote, “N.P. does not understand, or even recall the event, but the staff at the community center, especially those who have known N.P for the past four years, should understand that just because he is older, his intellectual ability remains that of a six-year-old.” Finally, Angelika expressed her disappointment that the Town had not involved her in the decision-making process, “in order to get a better understanding of an intellectually-challenged individual.”
The town manager emailed Angelika again on August 12, 2019. He informed her that N.P. would remain suspended for an initial period of 60 days (through October 7, 2019), after which Angelika could speak to the parks and recreation director about readmitting N.P. to the Parks and Recreation Department’s programs and facilities. N.P. was emotionally upset and very sad when told he could not return to camp for the rest of the summer.
On September 2, 2019, Angelika requested a copy of the investigatory findings that the town manager had referenced in his August 7 email. He responded that “the investigation was a review of police and internal reports,” and that no report had been drafted. Two days later, Angelika met with two members of the Town’s Select Board. During the meeting, one of the board members told Angelika that by allowing N.P. to remain at camp through the end of the day on August 6, 2019, the Town had been “compassionate,” as “they could have called to have him handcuffed and dragged away.” The board member further stated that he would present the matter to other members of the Select Board privately.
On September 17, 2019, the board member emailed Angelika, informing her that the Town’s Select Board supported the action taken by the Parks and Recreation Department. N.P.’s suspension ended on October 7, 2019.
According to the Town, no summer or school vacation camps were offered between August 16, 2019 and October 7, 2019. As a result, the Town contended that “N.P.’s suspension from Town programs and parks was, in effect, eight days long.”
Non-Discriminatory “Safety Measure”
In response to Plaintiffs’ lawsuit, the Town did not contest that N.P. is a “qualified individual with a disability,” as defined by the Americans with Disabilities Act (ADA). As cited by the federal district court, the ADA defines a “qualified individual with a disability” as follows:
[A]n 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.
The Defendant Town, however, argued that Plaintiffs’ claims under the ADA should fail because the Town did not discriminate against N.P. based on his disability, but rather acted in response to “threats” that N.P. made. Specifically, Defendant contended that “the complaint, at best, essentially pleads that because N.P. has an intellectual disability, he uttered words that, literally, amount to threats to which the Town lawfully responded by suspending him.”
According to the Town, even though N.P.’s “threats” may have resulted from his disability, that does not make his suspension based on those threats a discriminatory act. On the contrary, the Town maintained N.P.’s suspension was not discrimination, but a “safety measure,” which was taken only after N.P. had made the “threats” concerning other participants and staff within the camp program. Moreover, the Town pointed out that “N.P. has participated in the summer day-camp program for several years,” and N.P. “had behavior incidents toward the end of camp in past years.”
Consider Threat Context
As noted by the federal district court, the Town’s argument would prevail if N.P. “did, in fact, make credible or even sincere death threats against three individuals at summer camp, even if those threats were a consequence of Plaintiff N.P.’s disability.” In so doing, the federal district court acknowledged: “Courts have nearly uniformly rejected the idea that the ADA requires entities to countenance misconduct.” Accordingly, the court found “misconduct — even misconduct related to a disability — is not itself a disability and may be a basis for dismissal.” Similarly, the court acknowledged the ADA does not require that an individual “whose unacceptable behavior threatens the safety of others be retained, even if the behavior stems from a mental disability.”
In this particular instance, however, given the severity of N.P.’s intellectual and language disability, Plaintiffs claimed that “N.P. did not pose a threat” based upon the responding officer, Officer True’s assessment, which had found any claim of a threat to be unfounded following his conversation with N.P. Similarly, Plaintiffs noted that N.P. had been allowed to remain at the camp for the rest of the day. As a result, Plaintiffs claimed that the Town’s suspension of N.P., “not only from the rest of camp, but from any facility or activity for 60 days was arbitrary and unreasonable and based on fears or stereotypes of mentally disabled individuals.”
In the opinion of the federal district court, such “threats” must be assessed in context. At the outset of this particular situation, the court found the Town had apparently overlooked the context of N.P.’s threats. Moreover, the court noted that common sense should have guided an assessment of these threats within context:
For example, a six-year-old child proclaiming, “I’ll kill you if you tell Mom I ate the cookie” has, in context, hardly made a death threat, though one might try to make it so by reciting merely, “I’ll kill you” out of context. Common sense, it is often correctly noted, is not so common, but in its pursuit, context is of course everything.
Further, in the opinion of the court, it was “not clear from Plaintiffs’ complaint or Defendant’s answer whether N.P. did or did not make the referenced threats.” On one hand, the court noted that the complaint indicated “another camper heard N.P. make comments, which that camper interpreted as threats.” On the other hand, the court found the complaint acknowledged that N.P. had denied making any threats while speaking to Officer True.
Real Threat or Misguided Fear?
Given these “factual ambiguities” within Plaintiffs’ complaint and Defendant’s answer, the federal district court found it was “obvious that a more fully developed record is necessary before the court could properly rule” on Defendant’s motion to resolve to Plaintiffs’ claims without any further trial proceedings. As described by the federal district court, a more fully developed record was needed to consider “the full relevant context in which the words triggering Defendant’s actions were spoken, and how they would have been understood by reasonable people.” Moreover, in considering the context of the Town’s suspension decision, the court would adopt the perspective of reasonable people, “acting in good faith,” who would be “unburdened by misguided fears or stereotypes related to mental disabilities.”
In the opinion of the federal district court, the pretrial record did not clearly indicate whether “[N.P.’s] words, even if uttered as Defendant claims, could have been reasonably understood by reasonable people actually informed of [N.P.’s] disability as actionable ‘threats,’ or as posing any safety concern under the actual circumstances.”
Accordingly, the court would deny Defendant’s motion for summary judgment and require further proceedings and a potential jury trial to resolve the questions surrounding the credibility N.P.’s threats and whether Defendant’s safety concerns were real or misguided under the circumstances of this case.
Failure to Train and Supervise
Further, Defendant Town contended that Plaintiffs’ “failure to train and supervise claim must be dismissed because Plaintiffs fail to allege facts [were] sufficient to state such a claim.” In so doing, Defendant argued Plaintiffs’ complaint lacked “any factual allegations suggesting the Town inadequately trained its employees, or any facts that show a pattern of similar violations by untrained employees.” As characterized by Defendant, “Plaintiffs rely on wholly conclusory allegations” in support of their claim.
As cited by the federal district court, municipal liability based on a failure to train claim under federal civil rights law (Section 1983) would require Plaintiffs to show the following:
[M]unicipal decisionmakers either knew or should have known that training was inadequate but nonetheless exhibited deliberate indifference to the unconstitutional effects of those inadequacies.
Further, when evaluating a municipal liability claim, the federal district court would require “proof of deliberate indifference.” Such proof would require Plaintiffs to “plead more than a mere insufficiency of the municipality’s actions.” Moreover, to meet this “deliberate indifference” standard for municipal liability, the court would require a training program to be “quite deficient”:
Generally, a failure to supervise only gives rise to Section 1983 liability in those situations where there is a history of widespread abuse, only then may knowledge be imputed to the supervisory personnel.
In addition, the court noted: “the fact that training is imperfect or not in the precise form a plaintiff would prefer is insufficient to make such a showing” of the required deliberate indifference to establish municipal liability under Section 1983.
In this particular instance, the federal district court found that “Plaintiffs’ failure to train and supervise claim falls far short of meeting those requirements.” In the opinion of the court, “[n]otably lacking are any underlying factual allegations that support Plaintiffs’ legal conclusions”:
Plaintiffs fail to provide any details regarding Defendant’s training program, or how that program might be even arguably deficient. Nor does the complaint allege any facts from which the court might infer that Defendant disregarded a known risk.
Accordingly, the federal district court concluded, “Plaintiffs have not stated a Section 1983 municipal liability claim against the Town for failure to train and supervise.” The court, however, would allow Plaintiffs to “file a motion to amend their complaint” to “capably assert factual allegations that would support a cognizable Section 1983 municipal liability claim against the Town” for discriminating against disabled individuals in violation of the ADA.
ADA Suspension Claim Is Moot
The Defendant Town also had argued that Plaintiffs’ ADA claims were moot. As described by the federal district court: “A case is moot when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome.” In other words, a case is moot “when a court cannot give any effectual relief to the potentially prevailing party.”
In this particular instance, Plaintiffs’ “effectual relief” would have the federal district court issue an order “enjoining Defendant from excluding N.P. from its programs, services and activities on the basis of his disability.” Moreover, Plaintiffs would have the court require “Defendant to engage in an interactive process when a reasonable accommodation would enable his participation.”
In support of its argument that Plaintiffs’ ADA claims were moot, the Town pointed out the fact that “N.P.’s 60-day suspension was complete on October 7, 2019,” and, therefore, N.P. was “no longer suspended from any Town parks or programs.” Moreover, as noted by the court, “N.P. has since turned 21, and has, therefore, ‘aged out’ of eligibility for the Town’s camp programs.” As a result, Defendant argued Plaintiffs’ ADA claims were moot because there was “no pending controversy.”
The federal district court agreed that there was “no ongoing conduct to enjoin” because “N.P.’s 60-day suspension is over” and N.P. “is not currently being excluded from Defendant’s programs, services and activities.” On the contrary, the court found “N.P. is currently permitted to enjoy the parks and participate in the Town’s programs and activities to the extent he is otherwise eligible.” As a result, the federal district court found that any controversy concerning Defendant’s actions were no longer “immediate nor real.”
In reaching this determination, the federal district court noted: “issuance of a declaratory judgment deeming past conduct illegal is not permissible, as it would be merely advisory.” In so doing, the court acknowledged the admonition by the Supreme Court that “federal courts are not in the business of pronouncing that past actions which have no demonstrable continuing effect were right or wrong.”
Because the alleged discrimination had ceased and N.P. had “aged out” of the day-camp program, the federal district court agreed with Defendant Town that Plaintiffs’ ADA claims were moot because there was no indication that N.P. was to be excluded from future participation in the Town’s recreational programs on the basis of his disability.
On the other hand, as noted above, the court would allow the Plaintiffs to amend their complaint to allege facts to support their claim that the Town’s failure to adequately train and supervise their employees violated the ADA. To do so, in an amended complaint, Plaintiffs would have to sufficiently allege a history of indifference and discrimination against individuals with disabilities in violation of the ADA.
In an amended complaint, the federal district court acknowledged Plaintiffs’ ADA case might still “fall short under applicable law, but not before a full evidentiary development of the context in which N.P.’s ‘six-year-old’ words, or ‘threats,’ were expressed.” In so doing, the court noted the Town’s “mere recitation of maxims like ‘safety,’ unsupported by informed judgment or fact may well not suffice.” As a result, the federal district court denied the Town’s motion to dismiss Plaintiffs’ ADA complaint without further proceedings. According to the court, further consideration of Plaintiffs’ ADA claims “may require a trial or, at a minimum, well-supported pretrial summary judgment briefing.”
However, in lieu of further proceedings, the federal district court encouraged “the parties, with the assistance of counsel, to resolve this matter on rational and reasonable terms acceptable to both sides.” As noted by the court: “The principles at stake are important ones, and the legal outcome is far from clear; litigation may prove burdensome, and, in the end, unsatisfying to all.”
James C. Kozlowski, J.D., Ph.D., is an Attorney and Associate Professor in the School of Sport, Recreation and Tourism Management at George Mason University. Webpage with link to law review articles archive (1982 to present): mason.gmu.edu/~jkozlows.