UNSEALED MEMORANDUM OPINION1

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on the County Defendants' Motion for Partial Summary Judgment No. II: Dismissal of Counts II, V and VI of Plaintiffs' Second Amended Complaint, filed July 30, 2013 (Doc. 93)("MSJ"). The Court held a hearing on September 6, 2013. The primary issues are: (i) whether the Court should grant summary judgment on the claim of Plaintiffs J.H. on behalf of her minor child J.P. that the Defendant J.M. Sharkey used excessive force when he handcuffed J.P. following an altercation at Roosevelt Elementary School in Bernalillo County, New Mexico, thereby violating the Fourth Amendment to the Constitution of the United States of America; and (ii) whether the Court should grant summary judgment on the Plaintiffs' claims against Sharkey and Defendant Bernalillo County (collectively "the County Defendants") under the Americans with Disabilities Act, 42 U.S.C. §§ 12201-12213 ("ADA"). The Court will grant the MSJ. The Court concludes that Sharkey did not violate J.P.'s rights under the Fourth Amendment, because he had probable cause to arrest J.P., and because, given her recent attack on a student and on a school employee, he was entitled to handcuff her. The Court also concludes that, when Sharkey arrested J.P., he did not deprive her of any right that the ADA secures; further, there is no evidence that Bernalillo County acted with deliberate indifference, as the Plaintiffs must show to recover compensatory damages. Accordingly, the Court will grant summary judgment as to the Plaintiffs' claims under the ADA.

FACTUAL BACKGROUND

The Court will discuss the factual background in multiple parts. First, the Court needs to point out several formatting notes. The parties incorporated by reference most of the basic facts underlying the MSJ from Defendant J.M. Sharkey's Motion for Partial Summary Judgment No. I: Dismissal of Plaintiffs' Fourth Amendment Illegal Seizure Claim (Count I) Based on Qualified Immunity, filed July 30, 2013 (Doc. 92)("MSJ No. 1"), from the Plaintiff's Response to Defendant Sharkey's Motion for Partial Summary Judgment No. I: Plaintiff's Fourth Amendment Illegal Seizure Claim (Count I) Based on Qualified Immunity, filed August 16, 2013 (Doc. 103)("Response to MSJ No. 1"), and from the Reply to Plaintiffs' Response to J.M. Sharkey's Motion for Partial Summary Judgment No. I: Dismissal of Plaintiffs' Fourth Amendment Illegal Seizure Claim (Count I) Based on Qualified Immunity, filed September 3, 2013 (Doc. 115)("Reply to Response to MSJ No. 1"). The parties added only a few additional facts in the MSJ, in the Plaintiff's Response to Defendants' Motion for Partial Summary Judgment No. I: Dismissal of Counts II, V, and VI of Plaintiffs' Second Amended Complaint, filed August 16, 2013 (Doc. 102)("Response"), and in the County Defendants' Reply to Plaintiffs' Response to County Defendants' Motion for Partial Summary Judgment No. II: Dismissal of Counts II, V and VI of Plaintiffs' Second Amended Complaint, filed September 3, 2013 (Doc. 117)("Reply"). Where the parties took their facts from the more extensive discussion in MSJ No. 1, the Court will cite the MSJ No. 1, the Response to MSJ No. 1, and the Reply to Response to MSJ No. 1. Where the parties added additional facts in the MSJ, the Court will cite the MSJ, Response, and Reply.

Confusion over the parties' names plagues the briefing. Sometimes the parties — including the Plaintiffs — refer to J.H. on behalf of her minor child J.P. as a singular Plaintiff, see e.g., Response to MSJ No. 1 at 1 ("Plaintiff, J.H. on behalf of J.P., a minor, hereby responds to" MSJ No. 1), and sometimes the parties refer to J.H. and J.P. as plural Plaintiffs, see, e.g., Response to MSJ at 2 ("Plaintiffs hereby respond to Defendants' `undisputed' numerical material facts."). Given that even the Plaintiffs' briefing does not clearly prefer one name over the other, the Court will refer to J.H. on behalf of her minor child J.P. in the plural as Plaintiffs, because the caption refers to them in the plural. Where the Court quotes briefing, however, it will not change the parties' naming conventions, because changing the parties' naming conventions would confuse the reader more than it would illuminate.

The Court has also adopted a naming convention with respect to the County Defendants. The Court refers to Sharkey and Bernalillo County collectively as "the County Defendants," because they refer to themselves that way in their briefing, and to distinguish them from other Defendants formerly in the lawsuit. In the MSJ, the parties incorporated by reference their briefing from the MSJ No. 1, the Response to MSJ No. 1, and the Reply to Response to MSJ No. 1, regarding approximately 150 proposed undisputed facts. The MSJ No. 1 was, however, filed only on Sharkey's behalf, and the MSJ was filed on Sharkey and Bernalillo County's collective behalf. Where the Court draws facts from the MSJ No. 1 and discusses the parties' positions regarding those facts, it will refer only to Sharkey, because, again, the alternative would require rewriting substantial portions of the parties' briefing, which would confuse the reader. The Court will, in its analysis, treat the facts and arguments as applying to the County Defendants.

The facts proceed in eight parts. First, the Court provides background on J.P. Second, the Court discusses Sharkey's background, his training, and his role at Roosevelt Middle School. Third, the Court discusses the procedure for handling a de-escalation event. Fourth, the Court discusses the September 26, 2011, events. Fifth, the Court discusses J.P.'s booking at the Bernalillo County Detention Center. Sixth, the Court discusses the arrest's effects on J.P. Seventh, the Court discusses the charges against J.P., her competency evaluation, and the circumstances surrounding the dropping of her charges. Eighth and finally, the Court discusses matters that the parties addressed only in the MSJ and not in the MSJ No. 1; those matters relate primarily to Sharkey's training and to the exhaustion of remedies.

1. Background on J.P.

"J.P. has qualified as emotionally disturbed since at least 2008." Response to MSJ No. 1 ¶ A, at 9 (setting forth this fact). See Unidentified Report at 5-6 (taken July 19, 2013), filed August 16, 2013 (Doc. 103-1)("Unidentified Report").2

According to John King, Ph. D., who diagnosed J.P. after the incident underlying this case, her present condition is such that

Deposition of John H. King, Ph. D. at 36:25-37:6 (taken July Depo. at 36:25-37:6), filed August 16, 2013 (Doc. 103-1)("King Depo."). See Neuropsychological Evaluation Report at 1 (dated April 5, 2012), filed September 3, 2013 (Doc. 115-1).3

MSJ No. 1 ¶ 1, at 4 (setting forth this fact). See Response to MSJ No. 1 ¶ 1, at 2 (not disputing this fact); Individualized Education Program at 3, dated October 19, 2010, filed July 30, 2013 (Doc. 91-1)("IEP").

MSJ No. 1 ¶ 2, at 5 (setting forth this fact). See Response to MSJ No. 1 ¶ 2, at 3 (not disputing this fact); IEP at 10. "J.P.'s IEP team also prepared a [Behavioral Intervention Plan ("BIP")] for J.P. because she exhibited frequent verbal and physical aggression towards fellow students and staff, and interventions were needed to redirect her behavior." MSJ No. 1 ¶ 3, at 5 (setting forth this fact). See Response to MSJ No. 1 ¶ 3-7, at 3 (not disputing this fact)4; Behavior Intervention Plan (dated March 3, 2011), filed July 30, 2013 (Doc. 92-3)("BIP"). "J.P.'s behavior had resulted in physical harm to both peers and staff." MSJ No. 1 ¶ 4, at 5 (setting forth this fact). See Response to MSJ No. 1 ¶ 3-7, at 3 (not disputing this fact);5 BIP at 1.

MSJ No. 1 ¶ 5, at 5 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 3-7, at 3 (not disputing this fact);6 BIP at 1. "According to her BIP, J.P.'s behavior is a performance deficit, meaning she `knows how to perform the desired behavior, but does not consistently do so.'" MSJ No. 1 ¶ 6, at 5 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 3-7, at 3 (not disputing this fact);7 BIP at 1. "The presumed reason for J.P.'s behavior was `task/consequence avoidance.'" MSJ No. 1 ¶ 7, at 5 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 3-7, at 3 (not disputing this fact);8 BIP at 1.

J.P. had "been categorized as emotionally disturbed for IEP purposes" at the time of the incident underlying this case. MSJ No. 1 ¶ 8 at 6 (setting forth unmodified version of this fact). See Response to MSJ No. 1 ¶ 8, at 3 (not disputing this portion of the fact).9

MSJ No. 1 ¶ 9, at 6 (setting forth this fact)(quoting BIP at 3). See Response to MSJ No. 1 ¶ 9, at 3 (not disputing this fact). "The crisis intervention team is comprised of members of Roosevelt Middle School staff `that have been trained in de-escalation' and `are called in to any situation where a . . . teacher or staff member needs assistance.'" MSJ No. 1 ¶ 10, at 6 (setting forth this fact)(quoting Deposition of Cee Kaye Nation at 32:6-11 (taken June 14, 2013), filed July 30, 2013 (Doc. 92-2)("Sharkey's Nation Depo.")). See Response to MSJ No. 1 ¶ 10, at 8 (not disputing this fact).10

2. Sharkey's Background and Training; His Role at Roosevelt Middle School.

Response to MSJ No. 1 ¶ V, at 13. See Reply to Response to MSJ No. 1 ¶ V-W, at 12 (not disputing this fact); Deposition of John Matthew Sharkey at 12:13-13:5 (taken July 30, 2013), filed August 16, 2013 (Docs. 103-4, 103-5, 103-6, & 103-7 ("Plaintiffs' Sharkey Depo."). "Defendant Sharkey has had the opportunity to interact with several citizens who had mental health challenges throughout the course of his career. When dealing with citizens dealing with mental health challenges Defendant Sharkey seeks voluntary compliance through de-escalation techniques." Response to MSJ No. 1 ¶ W, at 13 (citation omitted)(setting forth this fact). See Reply to Response to MSJ No. 1 ¶ V-W, at 12 (not disputing this fact);11 Plaintiffs' Sharkey Depo. at 13:13-15; id. at 14:7-12.

"Defendant Sharkey became a School Resource Officer because he wanted a `constructive, positive' assignment where he could help people rather than targeting certain crimes." Response to MSJ No. 1 ¶ M, at 11 (setting forth this fact)(quoting Plaintiffs' Sharkey Depo. at 12:1-9). See Reply to Response to MSJ No. 1 ¶ M, at 10-11 (not disputing this fact); Plaintiffs' Sharkey Depo. at 19:10-20:2. Sharkey's purpose is to keep his students safe and not to arrest his students; even so, on occasion, he gets involved in criminal investigations — for example, when the Children, Youth, and Families Department of the State of New Mexico ("CYFD") contacts him, or when he must deal with those who commit drug offenses or violent crimes — and he arrests students, particularly when an offense involves battery on students or staff, or a drug offense. See Plaintiffs' Sharkey Depo. at 19:10-20:2; id. at 28:1-5; Deposition of John Sharkey at 20:12-21:12 (taken July 30, 2013), filed September 3, 2013 (Doc. 115-3).12 "In pursuance of this goal, Defendant Sharkey claims to take into consideration the struggles that the children he works with are faced by," where he knows of those struggles. Response to MSJ No. 1 ¶ M, at 11 (setting forth unmodified version of this fact). See Plaintiffs' Sharkey Depo. at 34:4-6.13

"Deputy Sharkey was hired by the Bernalillo County Sheriff's Office on January 30, 1989. Deputy Sharkey retired in March 2007. After being retired for approximately two years, Deputy Sharkey was rehired by the Bernalillo County Sheriff's Office in September 2009." MSJ No. 1 ¶ 11, at 6 (setting forth these facts). See Response to MSJ No. 1 ¶¶ 11-12, at 3 (not disputing these facts); Affidavit of John M. Sharkey ¶¶ 1-3, at 1 (executed July 30, 2013), filed July 30, 2013 (Doc. 92-4)("Sharkey Aff."). "For the 2011-2012 school year, Deputy Sharkey was assigned to be the school resource officer at Roosevelt Middle School." MSJ No. 1 ¶ 12, at 6 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 11-12, at 3 (not disputing this fact); Sharkey Aff. ¶ 4, at 3.

"Deputy Sharkey did not have access to J.P.'s special education files." MSJ No. 1 ¶ 13, at 6 (setting forth this fact). See Response to MSJ No. 1 ¶ 13, at 4 (not disputing this fact); Sharkey's Nation Depo. at 25:13-16; id. at 26:56-28:34.14 "Deputy Sharkey was not part of Roosevelt Middle School's crisis intervention team," although he was generally aware when someone calls out the team, and has witnessed the crisis team in action from within the immediate area. MSJ No. 1 ¶ 14, at 6 (setting forth unmodified version of this fact). See Response to MSJ No. 1 ¶ 14, at 3 (not disputing this fact);15 Sharkey's Nation Depo. 32:3-4; Sharkey Aff. ¶ 21, at 3. At the time of the event, "Deputy Sharkey's main responsibility as a school resource officer at Roosevelt Middle School was to help keep the campus safe." MSJ No. 1 ¶ 15, at 7 (setting forth unmodified version of this fact). See Sharkey's Nation Depo. at 26:25-27:9; Sharkey Aff. ¶ 16, at 3.16 "Deputy Sharkey is `always extremely calm'[ and] `never raises his voice.'" MSJ No. 1 ¶ 16, at 7 (setting forth unmodified version of this fact)(quoting Sharkey's Nation Depo. at 29:8-16). See Response to MSJ No. 1 ¶ 16, at 5 (not disputing this portion of the fact).17

"Defendant Sharkey `get[s] to know the students very, very well, because [he] know[s] them from elementary school all the way until they get [out] to middle school.'" Response to MSJ No. 1 ¶ N, at 11 (setting forth unmodified version of this fact)(quoting Plaintiffs' Sharkey Depo. at 74:12-15).18 Sharkey gets to know his students and, sometimes, sees what their struggles are, and takes those struggles of which he knows into account as he interacts with them. See Plaintiffs' Sharkey Depo. at 34:4-6.19 Sharkey likes his students and cares about his students very much; he does not want to arrest them and does not take that decision lightly. See Response to MSJ No. 1 ¶ N, at 11 (setting forth a similar fact); Plaintiffs' Sharkey Depo. at 74:23-25.20

"Defendant Sharkey . . . knows that there are different teachers associated with different special education challenges," and knows that certain teachers, including Ms. Gonzales, who have special education students. Response to MSJ No. 1 ¶ O, at 11-12 (setting forth unmodified version of this fact). See Plaintiffs' Sharkey Depo. at 62:24-63:10.21 Sharkey is aware that Albuquerque Public Schools has a crisis intervention team. See Plaintiffs' Sharkey Depo. at 63:11-14.22 "Defendant Sharkey has personally seen the school's Crisis Intervention Team deescalate students involved in screaming, yelling, and throwing desks around." Response to MSJ No. 1 ¶ P, at 12 (setting forth this fact). See Reply to Response to MSJ No. 1 ¶ P, at 11 (not disputing this fact); Plaintiffs' Sharkey Depo. at 64:6-24.

Sharkey did not know whether J.P. had a disability within the ADA's meaning before he arrested her; further, he had no reason to find out whether she had a disability, because whether a person that he is investigating has a disability plays no role in his investigation or in his decision to arrest that person. See Response to MSJ No. 1 ¶ R, at 12 (setting forth a similar fact); Plaintiffs' Sharkey Depo. at 7:5-21.23 Sharkey was aware, or should have been aware, that J.P. suffered from some educational and behavioral limitations; he did not, however, know or have reason to know that she was disabled within the ADA's definition of that term, or that any disability which she had would deprive her of the capacity to form general criminal intent. See Plaintiffs' Sharkey Depo. at 33:24-34:15 ("I get to know my students, and sometimes I'll see what their struggles are."); Plaintiffs' Sharkey Depo. at 62:24-63:5 ("Ms. Gonzales, she has special students. . . . [S]he has special classes."); Deposition of John Sharkey at 75:9-12 (taken July 30, 2013), filed September 3, 2013 (Doc. 115-2)("Sharkey Depo. Vol. III")("And her mom and her boyfriend arrived on scene, and mom was of the opinion of, `You can't do this, you can't even be here;' that there's a plan, and they have to handle the plan.").24

"Defendant Sharkey [was] trained in the Americans with Disabilities Act when he was trained to become a School Resource Officer in 2010." Response to MSJ No. 1 ¶ S, at 12 (setting forth this fact). See Reply to Response to MSJ No. 1 ¶¶ S-T, at 12 (not disputing this fact); Plaintiffs' Sharkey Depo. at 7:22-8:6. "Defendant Sharkey knows `that there are certain accommodations that are made for students that have a disability.'" Response to MSJ No. 1 ¶ T, at 12 (setting forth this fact)(quoting Plaintiffs' Sharkey Depo. at 8:10-13). See Reply to Response to MSJ No. 1 ¶¶ S-T, at 12 (not disputing this fact).25 Sharkey has been trained as follows: "If I remember correctly it was discussed as to we will have students that we interact with who have disabilities, whether it's a learning disability or behavioral disabilities, challenges that young people have that go to school and to realize that not every student would be the same." Plaintiffs' Sharkey Depo. at 9:2-12. See Response to MSJ No. 1 ¶ U, at 12 (setting forth similar facts); Reply to Response to MSJ No. 1 ¶ U, at 12 (not disputing this fact).26 "Defendant Sharkey was a Crisis Intervention Officer and has been trained in de-escalation techniques" in general, though not in de-escalation techniques as they relate to special needs or students with mental-health issues. Response to MSJ No. 1 ¶ U, at 12-13 (setting forth unmodified version of these facts). See Plaintiffs' Sharkey Depo. at 10:20-11:22.27 "Defendant Sharkey has never been trained on the possible psychological effects on children being restrained." Response to MSJ No. 1 ¶ EE, at 14 (setting forth this fact). See Reply to Response to MSJ No. 1 ¶ EE, at 14 (not disputing this fact); Plaintiffs' Sharkey Depo. at 71:24-72:4.28

During his deposition, "Defendant Sharkey agreed that there's always a question of whether a child has the ability to form criminal intent." Response to MSJ No. 1 ¶ CC, at 14 (setting forth this fact). See Plaintiffs' Sharkey Depo. at 59:11-23.29 "Defendant Sharkey determined that J.P., an emotionally disturbed 11 year-old, had the requisite criminal intent to commit the crime of [b]attery." Response to MSJ No. 1 ¶ DD, at 14 (setting forth this fact). See Plaintiffs' Sharkey Depo. at 56:2-57:20.30

Response to MSJ No. 1 ¶ Y, at 13 (setting forth this fact)(citations omitted). See Reply to Response to MSJ No. 1 ¶ Y, at 13 (not disputing this fact); Plaintiffs' Sharkey Depo. at 42:24:44:10.31 "Defendant Sharkey proffered that even if law-enforcement purposes are fulfilled by direct release to a child's parent, transporting a child to the Detention Center is appropriate because a child's angry parent could pose a threat to the safety of the school or its personnel." Response to MSJ No. 1 ¶ BB, at 14. See Plaintiffs' Sharkey Depo. at 50:11-52:5.32

3. Procedure for Handling a De-Escalation Event.

"A de-escalation event usually involves a student who is being aggressive." MSJ No. 1 ¶ 17, at 7. See Response to MSJ No. 1 ¶¶ 17-21, at 5 (not disputing this fact); Sharkey's Nation Depo. at 62:3-10. "At Roosevelt Middle School, when a special education classroom calls the office via intercom [or on the office telephone] requesting assistance from the crisis intervention team, office staff contacts the principal `or the admin' on the walkie-talkie." MSJ No. 1 ¶ 18, at 7 (setting forth this fact)(quoting Sharkey Nation Depo. at 34:21-35:3). Response to MSJ No. 1 ¶¶ 17-21, at 5 (not disputing this fact).33 "Deputy Sharkey also has a walkie-talkie so when a call goes out for the crisis intervention team, he hears it as well and responds to the area." MSJ No. 1 ¶ 19, at 17 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 17-21, at 5 (not disputing this fact); Sharkey's Nation Depo. at 35:11-18; Sharkey Aff. ¶ 18, at 3. "Deputy Sharkey allows the crisis intervention team `to do what they need to do' and `he's there if it escalates to a point where [the team] can't contain it.'" MSJ No. 1 ¶ 20, at 7 (setting forth this fact)(quoting Sharkey's Nation Depo. at 35:11-18). See Response to MSJ No. 1 ¶¶ 17-21, at 5 (not disputing this fact); Sharkey Aff. ¶¶ 22-25, at 3. "It is a safe practice to have Deputy Sharkey close at hand because a situation can get out of hand very quickly." MSJ No. 1 ¶ 21, at 7 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 17-21, at 5 (not disputing this fact); Sharkey's Nation Depo. at 61:12-62:2; Sharkey Aff. ¶ 23, at 3. "Deputy Sharkey is generally expected to take immediate control of the situation if he arrives on scene first and sees somebody being struck, in danger of being battered, or a situation quickly escalating." MSJ No. 1 ¶ 22, at 8 (setting forth this fact). See Sharkey's Nation Depo. at 36:15-19; Sharkey Aff. ¶¶ 25-26, at 3.34

4. The Incident on September 26, 2011.

"In the fall of 2011, J.P. was placed in Ms. Allison Gonzales's sixth grade special education class at Roosevelt Middle School." MSJ No. 1 ¶ 23, at 8 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 23-26, at 8 (not disputing this fact); Plaintiffs' Second Amended Complaint for Recovery of Damages due to Deprivation of Civil Rights and Rights Under the Americans with Disabilities Act, ¶ 5, at 1, filed June 28, 2013 (Doc. 85)("Complaint"); id. ¶ 25, at 4. "Ms. Gonzales was employed as a teacher with the Albuquerque Public Schools." MSJ No. 1 ¶ 24, at 8 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 23-26, at 8 (not disputing this fact); Deposition of Allison Gonzales at 13:6-17 (taken June 13, 2013), filed July 30, 2013 (Doc. 92-5)("Sharkey's Gonzales Depo."); Complaint ¶ 5, at 1; id. ¶ 25, at 4. "There were [sic] a total of seven (7) students in Ms. Gonzales's class, including J.P." MSJ No. 1 ¶ 25, at 8 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 23-26, at 8 (not disputing this fact); Sharkey's Gonzales Depo. at 14:20-22. "Ms. Gonzales also had a teaching assistant, Gwendoline Zamora." MSJ No. 1 ¶ 26, at 8 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 23-26, at 8 (not disputing this fact); Sharkey's Gonzales Depo. at 17:22-18:3. "Deputy Sharkey was aware that J.P. was assigned to a class that provided special education services, but he was not aware of the reason for her placement in that class as children receive special education services for a variety of reasons." MSJ No. 1 ¶ 27, at 8. See Sharkey Aff. ¶ 8, at 2.35

"On September 26, 2011, J.P. was disrupting the classroom after arriving late to school." MSJ No. 1 ¶ 28, at 9 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 28-42, at 6 (not disputing this fact);36 Statement by Allison Gonzales at 2 (dated September 26, 2011), filed July 30, 2013 (Doc. 92-6); Sharkey's Gonzales Depo. at 54:19-56:13. "When asked to participate in the lesson she responded, `I'm not doing shit.'" MSJ No. 1 ¶ 29, at 9 (setting forth this fact)(quoting Statement by Allison Gonzales at 2). See Response to MSJ No. 1 ¶¶ 28-42, at 6 (not disputing this fact).37 "J.P. then began to disrupt the class by loudly tapping a metal type marble." MSJ No. 1 ¶ 30, at 9 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 28-42, at 6 (not disputing this fact);38 Sharkey's Gonzales Depo. at 55:19-56:19. "J.P. ignored repeated requests from Ms. Gonzales and peers to stop bouncing the marble." MSJ No. 1 ¶ 31, at 9 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 28-42, at 6 (not disputing this fact); Sharkey's Gonzales Depo. at 55:19-56:19; id. at 58:19-59:11.39 "Ms. Zamora asked J.P. if she wanted some help and she said, `no.'" MSJ No. 1 ¶ 32, at 9 (setting forth this fact)(quoting Statement of Allison Gonzales at 2). See Response to MSJ No. 1 ¶¶ 28-42, at 6 (not disputing this fact).40 "Ms. Gonzales then asked J.P. if she wanted to talk to her mom or maybe her mom could come back to school in an effort to `change the environment, change the action, that might be a support as well.'" MSJ No. 1 ¶ 33, at 9 (setting forth this fact)(quoting Sharkey's Gonzales Depo. at 60:13-19). See Response to MSJ No. 1 ¶¶ 28-42, at 6 (not disputing this fact); Statement of Allison Gonzales at 2.41 "J.P. responded that her mother was at work and could not come to the school." MSJ No. 1 ¶ 34, at 9 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 28-42, at 6 (not disputing this fact);42 Statement of Allison Gonzales at 2. "J.P. then called another [sic] male student a `butt head' which elicited a response from him, and they exchanged words." MSJ No. 1 ¶ 35, at 9 (setting forth this fact)(quoting Statement of Allison Gonzales at 2). See Response to MSJ No. 1 ¶¶ 28-42, at 6 (not disputing this fact); Sharkey's Gonzales Depo. at 55:19-56:19.43 "The other student then returned to his seat to work with Ms. Gonzales." MSJ No. 1 ¶ 36, at 9 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 28-42, at 6 (not disputing this fact); Statement of Allison Gonzales at 2.44

"J.P. could not see her peers from her study carrel, so no eye contact took place from the time the other student took his seat." MSJ No. 1 ¶ 37, at 10 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 28-42, at 6 (not disputing this fact);45 Statement of Allison Gonzales at 2; Sharkey's Gonzales Depo. at 61:23-62:11. "J.P. then came around her study carrel and forcefully threw the metal marble across the room where it hit the wall hard, bounced back and rolled to the other side of the classroom." MSJ No. 1 ¶ 38, at 10 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 28-42, at 6 (not disputing this fact); Statement of Allison Gonzales at 2; Sharkey's Gonzales Depo. at 55:19-56:19.46 "J.P. then punched the other student in the back of the head with her fist." MSJ No. 1 ¶ 39, at 10 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 28-42, at 6 (not disputing this fact); Statement of Allison Gonzales at 2; Sharkey's Gonzales Depo. at 55:19-56:9; id. at 63:8-19.47

"Ms. Gonzales stood up and placed her body between both students to stop the altercation." MSJ No. 1 ¶ 40, at 10 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 28-42, at 6 (not disputing this fact); Statement of Allison Gonzales at 2; Sharkey's Gonzales Depo. at 55:19-57:4; id. at 63:20-23.48 "As J.P. attempted to strike the male student again, Ms. Gonzales moved J.P. toward the side of the room and immediately instructed the male student to leave the classroom." MSJ No. 1 ¶ 41, at 10 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 28-42, at 6 (not disputing this fact); Statement of Allison Gonzales at 2; Sharkey's Gonzales Depo. at 55:19-57:4.49 "Ms. Gonzales directed Ms. Zamora to call the office on the intercom to request assistance from the crisis intervention team." MSJ No. 1 ¶ 42, at 10 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 28-42, at 6 (not disputing this fact); Statement of Allison Gonzales at 2; Sharkey's Gonzales Depo. at 65: 1-11.50

"A staff member from the Roosevelt Middle School administrative office requested that Deputy Sharkey respond to classroom #11 in response to an unknown request by Ms. Gonzales." MSJ No. 1 ¶ 43, at 10 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 43-44, at 6 (not disputing this fact); Sharkey Aff. ¶ 27, at 4.51 "The administrative staff person was unable to explain to Deputy Sharkey why he was needed." MSJ No. 1 ¶ 44, at 10 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 43-44, at 6 (not disputing this fact);52 Sharkey Aff. ¶ 28, at 10.

"Back in the classroom, the male student may have made eye contact with J.P. when he was walking out as instructed by Ms. Gonzales though this is not certain." MSJ No. 1 ¶ 45, at 10-11 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 45-47, at 6 (not disputing this fact); Sharkey's Gonzales Depo. at 55:19-57:4. "Ms. Gonzales had a hold of J.P.'s arms just above the wri[s]ts." MSJ No. 1 ¶ 46, at 11 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 45-47, at 6 (not disputing this fact); Sharkey's Gonzales Depo. at 66:6-18. "Ms. Gonzales did not think it would be a good plan for her to put J.P. in a body hold because J.P. is `a fairly good-sized girl.'" MSJ No. 1 ¶ 47, at 11 (setting forth this fact)(quoting Sharkey's Gonzales Depo. at 47:65-66:50). See Response to MSJ No. 1 ¶¶ 45-47, at 6 (not disputing this fact). "While Ms. Gonzales tried to hold her back, J.P. attempted to head butt, hit and bite Ms. Gonzales" to free herself from Gonzales' hold. MSJ No. 1 ¶ 48, at 5 (setting forth unmodified version of this fact). See Response to MSJ No. 1 ¶ 48, at 6 (not disputing this portion of the fact); Statement of Allison Gonzales at 2; Sharkey's Gonzales Depo. at 66:24-5.53 "J.P. was eventually able to scratch Ms. Gonzales' hand and drew blood." MSJ No. 1 ¶ 49, at 11 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 49-50, at 6 (not disputing this fact); Sharkey's Nation Depo. at 46:9-17; Sharkey's Gonzales Depo. at 66:24-67:5; Statement of Allison Gonzales at 2. "J.P. was able to free herself from Ms. Gonzales' hold." MSJ No. 1 ¶ 50, at 11 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 49-50, at 6 (not disputing this fact); Sharkey's Gonzales Depo. at 67:10-11. "J.P. ran at the other student, hitting him once again on the head." MSJ No. 1 ¶ 51, at 11 (setting forth this fact). See Sharkey's Gonzales Depo. at 67:12-68:5; Statement of Allison Gonzales at 2.54 "As the other student exited the classroom, J.P. ran out [of] the classroom in pursuit of him." MSJ No. 1 ¶ 52, at 11 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 52-66, at 6 (not disputing this fact); Sharkey's Gonzales Depo. at 68:6-8; Statement of Allison Gonzales at 2.

"Ms. Zamora grabbed J.P. by her left arm and Ms. Gonzales grabbed her right arm." MSJ No. 1 ¶ 53, at 11 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 52-66, at 6 (not disputing this fact); Statement of Allison Gonzales at 2. "While Ms. Gonzales and Ms. Zamora were attempting to restrain her, J.P. kicked Ms. Gonzales in the leg, leaving a footprint." MSJ No. 1 ¶ 54, at 11 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 52-66, at 6 (not disputing this fact); Sharkey's Gonzales Depo. at 68:16-17; Statement of Allison Gonzales at 2. "The incident was a rapidly evolving situation." MSJ No. 1 ¶ 55, at 11 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 52-66, at 6 (not disputing this fact); Sharkey's Gonzales Depo. at 57:13-15.

"As he approached the classroom on foot, Deputy Sharkey saw Ms. Gonzales holding J.P." MSJ No. 1 ¶ 56, at 11 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 52-66, at 6 (not disputing this fact); Sharkey Aff. ¶ 29, at 4. "Deputy Sharkey heard raised voices and saw J.P. kick Ms. Gonzales in the right upper leg." MSJ No. 1 ¶ 57, at 12 (setting forth this fact). See Sharkey Aff. ¶ 31, at 4; Sharkey's Gonzales Depo. 71:2-6; Response to MSJ No. 1 ¶¶ 52-66, at 6 (not disputing this fact). "Other school personnel had not arrived." MSJ No. 1 ¶ 58, at 12 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 52-66, at 6 (not disputing this fact); Sharkey Aff. ¶ 32, at 4; Sharkey's Gonzales Depo. 69:4-6.55

"Deputy Sharkey ordered J.P. to stop." MSJ No. 1 ¶ 59, at 12 (setting forth this fact). See Sharkey Aff. ¶ 33, at 4; Response to MSJ No. 1 ¶¶ 52-66, at 6 (not disputing this fact). "When J.P. saw Deputy Sharkey coming around the corner, she immediately stopped kicking." MSJ No. 1 ¶ 60, at 12 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 52-66, at 6 (not disputing this fact); Sharkey Aff. ¶ 34, at 4; Sharkey's Gonzales Depo. at 69:18-21. "J.P. began moving away from Deputy Sharkey, taking Ms. Gonzales and Ms. Zamora with her as they were still trying to keep a hold on J.P." MSJ No. 1 ¶ 61, at 12 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 52-66, at 6 (not disputing this fact); Sharkey Aff. ¶ 35; Sharkey's Gonzales Depo. at 68:20-69:3. "Deputy Sharkey removed his handcuffs from his duty belt." MSJ No. 1 ¶ 62, at 12 (setting forth this fact). See Sharkey Aff ¶ 36; Response to MSJ No. 1 ¶¶ 52-66, at 6 (not disputing this fact). "J.P. re-entered Ms. Gonzales's classroom." MSJ No. 1 ¶ 63, at 12 (setting forth this fact); Sharkey Aff. ¶ 37, at 4, ¶ 37. See Response to MSJ No. 1 ¶¶ 52-66, at 6 (not disputing this fact). "Ms. Zamora let go of J.P. and escorted the other students outside the classroom and remained with them." MSJ No. 1 ¶ 64, at 12 (setting forth this fact). See Sharkey's Gonzales Depo. at 70:6-8; Response to MSJ No. 1 ¶¶ 52-66, at 6 (not disputing this fact). "J.P. scooted herself into a small room without a door within the classroom, sat on the floor, and locked her hands together to resist being handcuffed." MSJ No. 1 ¶ 65, at 12 (setting forth this fact). See Sharkey Aff. ¶ 38, at 4; Sharkey's Gonzales Depo. at 70:16-71:1; Response to MSJ No. 1 ¶¶ 52-66, at 6 (not disputing this fact). She would remain in that room on the floor crying for approximately fifteen minutes before Sharkey handcuffed her. See Response to MSJ No. 1 ¶ Q, at 12 (setting forth a similar fact); Plaintiffs' Sharkey Depo. at 5:3-16.56 "Shortly thereafter, the principal and head special education teacher arrived at Ms. Gonzales's classroom." MSJ No. 1 ¶ 66, at 12 (setting forth this fact); Sharkey Aff. ¶ 39, at 4. See Response to MSJ No. 1 ¶¶ 52-66, at 6 (not disputing this fact); Sharkey's Gonzales Depo. at 70:16-71:1. "Deputy Sharkey's demeanor toward J.P. was very calm and professional." MSJ No. 1 ¶ 67, at 12 (setting forth this fact). See Sharkey Aff. ¶ 40, at 4; Sharkey's Gonzales Depo. at 71:10-72:1.57 "When Defendant Sharkey arrested J.P. he did not ask anyone present whether she had a disability, even though she was arrested in a special education classroom." Response to MSJ No. 1 ¶ FF, at 14 (setting forth this fact). See Reply to Response to MSJ No. 1 ¶¶ FF-GG, at 14 (not disputing this fact); Plaintiffs' Sharkey Depo. at 76:22-77:2.58

"Deputy Sharkey became concerned that J.P. might resist if he forcibly attempted to handcuff her by himself." MSJ No. 1 ¶ 68, at 12-13 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 68-74, at 7 (not disputing this fact); Sharkey Aff. ¶ 41, at 4-5. "Deputy Sharkey therefore requested an additional deputy be dispatched to the scene because he believed two deputies would be better able to quickly and safely control . . . J.P. if she resisted." MSJ No. 1 ¶ 69, at 13 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 68-74, at 7 (not disputing this fact); Sharkey Aff. ¶ 44, at 5. "While waiting for an additional deputy, Ms. Gonzales advised Deputy Sharkey about the events that occurred in the classroom involving J.P. prior to his arrival." MSJ No. 1 ¶ 70, at 13 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 68-74, at 7 (not disputing this fact); Sharkey Aff. ¶ 45, at 5. "Ms. Gonzales then left the room to call J.P.'s mother and inform her of the incident." MSJ No. 1 ¶ 71, at 13 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 68-74, at 7 (not disputing this fact); Sharkey's Gonzales Depo. at 72:23-25; Sharkey Aff. ¶ 47, at 5. "The principal also attempted to contact J.P.'s mother." MSJ No. 1 ¶ 72, at 13 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 68-74, at 7 (not disputing this fact); Sharkey's Nation Depo. at 42:7-18. "When the other deputy arrived, Deputy Sharkey briefed him on the situation." MSJ No. 1 ¶ 73, at 13 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 68-74, at 7 (not disputing this fact); Sharkey Aff. ¶ 48, at 5.

"Deputy Sharkey then informed J.P. she was under arrest and directed her to stand up." MSJ No. 1 ¶ 74, at 13 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 68-74, at 7 (not disputing this fact); Sharkey Aff. ¶ 47:18-48:8. "Deputy Sharkey told J.P., `You will stand up and do this calmly.'" MSJ No. 1 ¶ 75, at 13 (setting forth this fact)(quoting Sharkey's Nation Depo. at 48:7-8).59 "J.P. complied and Deputy Sharkey gently handcuffed her behind her back." MSJ No. 1 ¶ 76, at 13 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 76-78, at 7 (not disputing these facts); Sharkey's Nation Depo. at 48:3-8; id. 50:17-51:6; Sharkey Aff. ¶ 51, at 5. "The other deputy observed but did not intervene." MSJ No. 1 ¶ 77, at 13 (setting forth this fact); Sharkey Aff. ¶ 53, at 4. See Response to MSJ No. 1 ¶¶ 76-78, at 7 (not disputing these facts); Sharkey's Nation Depo. at 50:9-14. "Deputy Sharkey ensured that he double locked the handcuffs to prevent them from tightening and ensured that there was a thumb-width of space, or approximately one inch, between the handcuffs and J.P.'s wrist." MSJ No. 1 ¶ 78, at 13 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 76-78, at 7 (not disputing this fact); Sharkey Aff. ¶ 54, at 5-6. "Deputy Sharkey determined that handcuffing J.P. was appropriate because of his concern that J.P. might attempt to strike him or others, and because he needed to secure J.P. to transport her to the Bernalillo County Juvenile Detention Center." MSJ No. 1 ¶ 79, at 14 (setting forth this fact). See Sharkey Aff. ¶ 55, at 6.60 "Defendant Sharkey did not make an evaluation of whether J.P. needed mental healthcare prior to transporting her to the Juvenile Detention Center even though he admitted that J.P.'s behavior on the subject date was something that he had never seen." Response to MSJ No. 1 ¶ GG, at 14 (setting forth this fact). See Reply to Response to MSJ No. 1 ¶¶ FF-GG, at 14 (not disputing this fact);61 Plaintiffs' Sharkey Depo. at 81:8-82:15.

"Deputy Sharkey calmly explained to J.P. that he would be walking her out to his patrol car." MSJ No. 1 ¶ 80, at 14 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 80-82, at 7 (not disputing this fact); Sharkey's Nation Depo. at 50:17-21; Sharkey Aff. ¶ 56, at 7. "Deputy Sharkey escorted J.P. from the class while school was in session in an effort to avoid embarrassing her in front of her peers or any other individuals who might be present between passing periods." MSJ No. 1 ¶ 81, at 13. See Sharkey's Nation Depo. at 51:21-52:7; Response to MSJ No. 1 ¶¶ 80-82, at 7 (not disputing this fact). "The principal followed Deputy Sharkey and J.P. out to his patrol car." MSJ No. 1 ¶ 82, at 14 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 80-82, at 7 (not disputing this fact); Sharkey's Depo. at 51:19-20. "There was nothing that happened on September 26, 2011 that would have indicated to the principal that law enforcement was not needed." MSJ No. 1 ¶ 83, at 14 (setting forth this fact).62 See Sharkey's Nation Depo. at 59:11-15. "Deputy Sharkey left the school immediately to avoid interacting with J.P.'s mother as his past interaction had been unpleasant due to her mistaken belief that a BIP takes precedence over state law when a student or teacher is assaulted or battered." MSJ No. 1 ¶ 84, at 14. See Sharkey Aff. ¶ 58, at 14; Response to MSJ No. 1 ¶ 84, at 7 (not disputing this fact).63

5. J.P.'s Booking at the Bernalillo County Detention Center.

"Deputy Sharkey transported J.P. to the juvenile detention center in his patrol unit." MSJ No. 1 ¶ 85, at 14 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 85-97, at 7 (not disputing this fact); Sharkey Aff. ¶ 60, at 6. "On the way to the juvenile detention center, Deputy Sharkey asked J.P. what would happen if she assaulted another student or teaching staff at Roosevelt Middle School, and J.P. responded that she would be handcuffed and arrested again." MSJ No. 1 ¶ 86, at 14 (setting forth these facts). See Response to MSJ No. 1 ¶¶ 85-97, at 7 (not disputing this fact); Sharkey Aff. ¶ 61, at 6. "J.P. then volunteered that she would not hit anyone anymore but would use words when she was upset." MSJ No. 1 ¶ 87, at 15 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 85-97, at 7 (not disputing this fact); Sharkey Aff. ¶ 62, at 6. "J.P. did not give Deputy Sharkey any indication that the handcuffs were causing her pain." MSJ No. 1 ¶ 88, at 15 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 85-97, at 7 (not disputing this fact); Sharkey Aff. ¶ 63, at 6-7. "J.P. cleared the medical examination and was booked into the juvenile detention center without incident." MSJ No. 1 ¶ 89, at 15 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 85-97, at 7 (not disputing this fact); Sharkey Aff. ¶ 64, at 7. "Deputy Sharkey charged J.P. only with battery upon a school employee in violation of N.M.S.A. (1978), § 30-3-9 (E)." MSJ No. 1 ¶ 90, at 15 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 85-97, at 7 (not disputing this fact); Sharkey Aff. ¶ 67, at 7; Statement of Probable Cause-Juvenile (dated September 26, 2011), filed July 30, 2013 (Doc. 92-7). "Deputy Sharkey submitted the incident report to the district attorney and juvenile probation office for review, ending his participat[ion] in the incident." MSJ No. 1 ¶ 91, at 15 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 85-97, at 7 (not disputing this fact); Sharkey Aff. ¶ 68, at 7.

"After booking J.P. into the juvenile detention center, Deputy Sharkey left J.P.'s mother a voice message on her personal cell phone informing her that J.P. had been arrested and was in custody." MSJ No. 1 ¶ 92, at 15 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 85-97, at 7 (not disputing this fact); Sharkey Aff. ¶ 69, at 7. "J.P.'s mother did not return Deputy Sharkey's call." MSJ No. 1 ¶ 93, at 7 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 85-97, at 7 (not disputing this fact); Sharkey Aff. ¶ 70, at 7.

"The juvenile detention center released J.P. to her mother." MSJ No. 1 ¶ 94, at 15 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 85-97, at 7 (not disputing this fact); Sharkey's Nation Depo. at 68:4-9. "Deputy Sharkey did not make the determination as to whether the juvenile detention center would accept J.P. for housing or release her to her mother." MSJ No. 1 ¶ 95, at 15 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 85-97, at 7 (not disputing this fact); Sharkey Aff. ¶ 71, at 7. "Deputy Sharkey was not aware that the juvenile detention center was going to release J.P. to her mother instead of accept her for housing at the facility." MSJ No. 1 ¶ 96, at 15 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 85-97, at 7 (not disputing this fact); Sharkey Aff. ¶ 72, at 7. "The determination to release J.P. to her mother was made by a juvenile probation and parole officer with the Children, Youth and Families Division by conducting a detention risk assessment to determine whether J.P. posed a significant threat to herself, a significant threat to others, or posed a flight risk." MSJ No. 1 ¶ 97, at 16 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 85-97, at 7 (not disputing this fact);64 Deposition of Jeannie Masterson at 57:8-14 (taken June 10, 2013), filed July 30, 2013 (Doc. 92-8)("Masterson Depo."); id. at 63:25-65:13; id. at 64:7-65:13; id. at 66:22-25; id. at 72:6-20. "The risk assessment guidelines do not indicate that a law enforcement officer or a probation and parole officer should consider a child's age and mental health status in determining whether a juvenile should be transported to or housed at the juvenile detention center." MSJ No. 1 ¶ 98, at 16 (setting forth this fact). See Masterson Depo. 91:6-62:12.65

6. J.P. Was Not Physically Injured as a Result of the Arrest, Handcuffing, or Transport to the Juvenile Detention Center.

"J.P. was not physically injured as a result of the arrest, handcuffing, or transport to the Juvenile Detention Center." MSJ No. 1 ¶ 100, at 16 (setting forth this fact). See Deposition of [J.H.] at 205:1-7 (taken July 17, 2013), filed July 30, 2013 (Doc. 92-9)("Sharkey's J.H. Depo.").66 "At most, J.P. had small red marks on the inside of her wrists from the handcuffs." MSJ No. 1 ¶ 101, at 16 (setting forth this fact). See Sharkey's J.H. Depo. at 202:11-25.67 "There were no indentations on J.P.'s wrists." MSJ No. 1 ¶ 102, at 17 (setting forth this fact). See Sharkey's J.H. Depo. at 203:13-21.68 "The small red marks on J.P.'s wrists faded away before that evening." MSJ No. 1 ¶ 103, at 17. See Sharkey's J.H. Depo. at 203:13-21.69 "J.P. did not complain about any physical effects from the handcuffs." MSJ No. 1 ¶ 104, at 17 (setting forth this fact). See Sharkey's J.H. Depo. at 204:17-25.70 "J.P.'s mother did not take J.P. to the Doctor as a result of the handcuffing." MSJ No. 1 ¶ 105, at 17 (setting forth this fact). See Sharkey's J.H. Depo. at 204:6-9.71

"Being arrested by a police officer at school is a significant" event for any child, and was traumatic for J.P. Response to MSJ No. 1 ¶ C, at 9 (setting forth unmodified version of this fact). See King Depo. at 10:24-11:5.72

7. Charges Against J.P.; J.P.'s Competency Evaluation; Dismissal of Charges Against J.P.

MSJ No. 1 ¶ 106, at 17 (quoting Preliminary Inquiry Determination at 1 (dated October 25, 2011), filed July 30, 2013 (Doc. 92-10)). See Response to MSJ No. 1 ¶¶ 106-115, at 8 (not disputing these facts). "On January 26, 2012, Children's Court Attorney Alesia Cappon filed a four count Petition, charging J.P. with the following crimes: Battery on School Personnel (Count I); Battery (County II); Interference with Educational Process (Count III); and Disorderly Conduct (Count IV)." MSJ No. 1 ¶ 107, at 17 (setting forth this fact). See Petition at 1-2, filed in state court in JR2012-0129 January 26, 2012, filed in federal court July 30, 2013 (Doc. 92-11). See Response to MSJ No. 1 ¶¶ 106-115, at 8 (not disputing these facts). "Deputy Sharkey did not prepare the Petition." MSJ No. 1 ¶ 108, at 17. See Response to MSJ No. 1 ¶¶ 106-115, at 8 (not disputing these facts); Sharkey Aff. ¶¶ 74-75, at 8. "Deputy Sharkey did not make the decision to or have any role in adding the charges of battery, interference with educational process or disorderly conduct which were brought for the first time against J.P. in the Petition." MSJ No. 1 ¶ 109, at 17-18 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 106-115, at 8 (not disputing these facts);73 Sharkey Aff. ¶ 76, at 8.

"During the pendency of the charges, J.P. underwent a competency evaluation." MSJ No. 1 ¶ 110, at 18 (setting forth this fact). See Response to MSJ No. 1 ¶¶ 106-115, at 8 (not disputing this fact); Report of Evaluation for Adolescent/Children Competency Evaluation from Clinton E. Rhyne, Ph. D., to The Honorable Judge Zamora (dated March 20, 2012), filed July 30, 2013 (Doc. 92-12)("Competency Evaluation"). "The psychologist who conducted the competency evaluation could only provide his `provisional' `impressions' of J.P. because she did not cooperate with the evaluation." MSJ No. 1 ¶ 111, at 18 (setting forth this fact)(quoting Competency Evaluation at 4). See Response to MSJ No. 1 ¶¶ 106-115, at 8 (not disputing this fact). "The psychologist's provisional impressions were `anxiety disorder NOS' and `oppositional defiant disorder.'" MSJ No. 1 ¶ 112, at 18 (setting forth this fact)(quoting Competency Evaluation at 4)(emphasis in MSJ No. 1). See Response to MSJ No. 1 ¶¶ 106-115, at 8 (not disputing this fact). "The psychologist further stated that J.P.'s `mute posture and complete refusal to engage the examiner is suggestive of developmental immaturity combined with underlying mental health issues that cannot be adequately assessed under the current circumstances.[']" MSJ No. 1 ¶ 113, at 18 (setting forth this fact)(quoting Competency Evaluation at 5)(emphasis in MSJ No. 1, but not in Competency Evaluation). See Response to MSJ No. 1 ¶¶ 106-115, at 8 (not disputing this fact).

The psychologist opined the following regarding J.P.'s competency to stand trial:

MSJ No. 1 ¶ 114, at 18 (quoting Competency Evaluation at 5-6). See Response to MSJ No. 1 ¶¶ 106-115, at 8 (not disputing this fact). "The charges against J.P. were dismissed because the juvenile court found her incompetent to stand trial." MSJ No. 1 ¶ 115, at 19 (setting forth this fact). See Amended Order Finding the Child Incompetent and Dismissal of the Charges Nunc Pro Tunc to May 2, 2012 at 1, filed in JR 2012-0129 May 21, 2012, filed in federal court July 30, 2013 (Doc. 92-13); Response to MSJ No. 1 ¶¶ 106-115, at 8 (not disputing this fact).74

8. Matters Discussed Only in the MSJ.

"J.P. had a history of attention and emotional and behavioral difficulties pre-dating the arrest." Response ¶ B, at 4 (setting forth this fact). See Deposition of John H. King, Ph.D. at 11:22-23 (taken July 29, 2013), filed August 16, 2013 (Doc. 102-1)(" King Depo. No. 2").75 As diagnosed after the event, "J.P. has Attention-Deficit/Hyperactivity Disorder, Combine Type; Mathematics Disorder; Oppositional Defiant Disorder; and Adjustment Disorder with Mixed Anxiety and Depressed Mood." Response ¶ C, at 4 (setting forth unmodified version of this fact). See King Depo. No. 2 at 13:20-25.76 "J.P.'s Attention-Deficit/Hyperactivity Disorder, Combine Type was onset prior to the incident at issue in this case." Response ¶ D, at 4 (setting forth this fact). See King Depo. No. 2 at 23:16-23.77 "In an evaluation on September 2, 2008, J.P. was exhibiting `frequent and high intensity defiant and aggressive behavior.[']" Response ¶ E, at 4 (setting forth this fact)(quoting Unidentified Report at 5).78 "J.P.'s evaluation also documented that J.P. was nervous, disorganized, depressed and aggressive." Response ¶ F, at 4 (setting forth this fact). See Unidentified Report at 5.79 "On September 9, 2008, J.P. had significant elevations on hyperactivity, aggression, depression, withdrawal, social skills, and functional communications. J.P. also had clinically significant range on conduct problems, attention problems[,] adaptability and study skills." Response ¶ G, at 4-5 (setting forth this fact). See Unidentified Report at 5-6.80

"J.P. suffered emotional distress as a result of the handcuffing and arrest. Some of the manifestations of this distress include bedwetting, soiling herself while both awake and asleep, anxiety at school, she would withdraw socially, [and] depression." Response ¶ K, at 5 (setting forth unmodified version of this fact).81 See Deposition of J.H. (taken July 17, 2013), filed August 16, 2013 (Doc. 102-3)("J.H. Depo. Vol. II"). "J.P.'s harm is still in the process of being determined as treatment is ongoing." Response ¶ L, at 5 (setting forth this fact). See King Depo. No. 2 at 215:5-12.82

"There is no admissible evidence that Plaintiffs exhausted their administrative remedies pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. § 14(f)-(i)." MSJ ¶ 2, at 4 (setting forth this fact). See Response ¶ 2, at 3 (not disputing this fact).83

MSJ ¶ 3, at 5-6 (setting forth this fact)(quoting Bernalillo County Sheriff's Department Rules and Regulations (no date provided), filed July 30, 2013 (Doc. 93-1)("BCSO Rules")). See Response ¶ 3 (not disputing this fact).84 "Prior to the incident which gave rise to this lawsuit, BCSO provided Deputy Sharkey with training on how to serve as School Resource Officer." MSJ ¶ 5, at 6-7. See NASRO School Resource Officer National Basic SRO Course Certificate passim (dated February 14-18, 2011), filed July 30, 2013 (Doc. 93-2); Response ¶ 5, at 3 (not disputing this fact).85

During the National Basic SRO Course, Deputy Sharkey received training on the following topics:

MSJ ¶ 6, at 7 (setting forth this fact)(quoting Basic School Resource Officer Course Manual at 3 (dated March, 2007), filed July 30, 2013 (Doc. 93-3)("Course Material")).86 "During the National Basic SRO Course, Deputy Sharkey learned about Special Education." MSJ ¶ 7, at 8 (setting forth unmodified version of this fact). See Course Material at 82-92.87 "Specific to Plaintiffs' claims, Deputy Sharkey learned about Attention Deficit Hyperactive Disorder (ADHD)." MSJ 8, at 8 (setting forth this fact). See Course Material at 90-91; Response ¶ 8, at 4 (not disputing this fact).88

PROCEDURAL BACKGROUND

J.H., acting on J.P.'s behalf, commenced this lawsuit in New Mexico state court on December 5, 2011; Sharkey's co-Defendants removed the case to federal court on February 9, 2012. See Notice of Removal (Doc. 1). On June 28, 2013, J.H. filed her Second Amended Complaint. See Doc. 85. The Complaint alleges seven causes of action; of those, the MSJ addresses only three causes of action: (i) Sharkey lacked probable cause to arrest J.P. and that, by handcuffing her, Sharkey used excessive force, see Complaint ¶¶ 57-59, at 7; (ii) the County Defendants violated the ADA — Bernalillo County, because it has not trained officers like Sharkey to handle the misbehavior of disabled children, and Sharkey, because he discriminated against her "by handcuffing, arresting and charging her for activity that is consistent with her disabilities," Complaint ¶¶ 49-56, at 8-9; and (iii) Bernalillo County violated the ADA, because it has not developed adequate training and policies that would accommodate disabled children, and because that failure caused J.P.'s injuries, see Complaint ¶¶ 57-56 [sic], at 10.

The County Defendants move the Court to dismiss each count. See MSJ passim. First, the County Defendants assert that Sharkey is entitled to dismissal of the excessive force claim, resting their argument on qualified immunity. See MSJ at 8. After reviewing the familiar qualified immunity standards, see MSJ at 8-9, the County Defendants argue that, under Tenth Circuit law, de minimis injuries are insufficient to support an excessive-force claim, see MSJ at 9-10 (citing, e.g., Koch v. City of Del City, 660 F.3d 1228 (10th Cir. 2011)). The County Defendants also submit that, as they more fully discussed in MSJ No. 1,

MSJ at 10. The County Defendants further argue that any constitutional right that Sharkey violated was not clearly established: citing cases discussing the more-than-de-minimis-injury requirement, they argue that J.P. did not suffer more than a de minimis injury, and that relevant precedent

MSJ at 11-12.

MSJ at 12-13 (footnote omitted). The County Defendants also state:

MSJ at 13 n.2.

The County Defendants also ask the Court to dismiss the ADA claims. See MSJ at 14. They first set out their view of some fundamental background principles:

Title II of the ADA states:

42 U.S.C. §§1232.

MSJ at 14. The County Defendants contend that the Court should dismiss any ADA claims against Sharkey, because he is not a "public entity" within Title II of the ADA's meaning. MSJ at 15 (citing. e.g., Braverman v. New Mexico, No. CIV 11-0829 JB/WDS, 2011 WL 6013587 (D.N.M. Oct. 19, 2011) (Browning, J.)).

As against Bernalillo County, the County Defendants assert that the Court should dismiss the ADA claims, because the Plaintiffs have not exhausted their remedies under the IDEA. See MSJ at 15-16. They note that, in S.A.S. v. Hibbing Public Schools,

See MSJ at 15-16.

The County Defendants also contend that J.P. has no evidence that, as of September 26, 2011, J.P. was disabled for ADA purposes. See MSJ at 16-17.

MSJ at 17-18.

The County Defendants also assert that, assuming that J.P. was disabled, they did not know J.P. was disabled, as the law requires. See MSJ at 18-19. The County Defendants note that Sharkey could not access J.P.'s files, that he never saw her IEP or BIP, that school officials neither informed him of the IEP or BIP nor told him that J.P. was disabled, and that Sharkey did not know why J.P. was in special education. See MSJ at 19. "At most," they say, "Deputy Sharkey knew that J.P. exhibited poor behavior on one or two occasions. There is no evidence, however, that Defendants know this behavior was rooted in a disability." MSJ at 2. They also argue that

MSJ at 20 (citation omitted).

The County Defendants also argue that, because J.P. directly threatened others' health and safety, Title II of the ADA does not protect her conduct. See MSJ at 20-21. They elaborate:

MSJ at 20-21.

The County Defendants point out that courts have recognized two genres of Title II ADA claims related to arrests: a wrongful-arrest theory and a reasonable-accommodation-during-arrest theory. See MSJ at 21-22. They cite Gohier v. Enright, 186 F.3d 1216 (10th Cir. 1999), which explains:

Gohier v. Enright, 186 F.3d at 1220. See MSJ at 21. They assert that the evidence does not support either theory. See MSJ at 21.

With respect to the first theory — wrongful arrest — the County Defendants suggest that Sharkey did not arrest J.P. because of legal conduct that was related to her disability. See MSJ at 22. They explain:

MSJ at 22.

With respect to the second, reasonable-accommodation theory, the County Defendants assert that Sharkey made reasonable accommodations:

MSJ at 23-24.

With respect to the Plaintiffs' final claim — the failure-to-train claim — the County Defendants argue that, "[e]ven when the evidence is viewed in the light most favorable to them, Plaintiffs cannot show that the training which Bernalillo County provided Deputy Sharkey was deliberately indifferent to or caused the alleged violation of J.P.'s rights under Title II of the ADA." MSJ at 24.

MSJ at 24-25. Accordingly, the County Defendants ask the Court to grant summary judgment on the excessive-force claim and on the two ADA claims. See MSJ at 25.

In their Response, the Plaintiffs first assert that Sharkey acted unreasonably when he handcuffed J.P. See MSJ at 6. After reviewing qualified immunity and Fourth Amendment standards, see MSJ at 6-7, the Plaintiffs contend that "Defendants' sole basis for alleging an absence of a constitutional violation is an allegation that J.P. was not physically injured by the handcuffing." Response at 7.89 They elaborate:

Response at 7-8. The Plaintiffs contend the decision of the United States Court of Appeals for the Sixth Circuit in Neague v. Cynkar, on which the County Defendants rely for the proposition that physical injury is required for an excessive force claim, is contrary to Tenth Circuit law. See Response at 8 n.2.

The Plaintiffs also argue that Sharkey violated certain provisions of the New Mexico Children's Code when he handcuffed J.P., and that "the Children's Code put a reasonable officer on notice that handcuffing J.P. violated her Fourth Amendment right to be free from the use of excessive force." Response ¶ 8 (capitalization and emphasis altered for readability). They explain:

The Tenth Circuit has already clearly established that when it comes to use of force, children have a different standard. Holland ex rel. Overdorff v. Harrington, 268 F.3d 1179, 1193 (10th Cir. 2001). In Holland, the court engages in a lengthy discussion that force used by police officers that is objectively reasonable when used against adults, is not necessarily reasonable when used against children. Id[.] 268 F.3d 1179, 1193 (10th Cir. 2001)("Pointing a firearm directly at a child calls for even greater sensitivity to what may be justified or what may be excessive under all the circumstances.")[.] The Tenth Circuit has already recognized use of force against children has a different standard[] than adults; yet Defendants continually argue J.P.'s age was immaterial. In addition, the Tenth Circuit has also clearly established that a person must clearly be dangerous and a threat to the officer to justify handcuffing. Manzanares v. Higdon, 575 F.3d 1135, 1150 (10th Cir. 2009). Defendant Sharkey has failed to show how a crying eleven year old child who is hiding in a closet presented a sufficient enough threat to justify his extensive use of force against that child.

Response at 10. The Plaintiffs also argue that a different New Mexico statute is relevant:

Response at 10-12.

The Plaintiffs turn to the ADA claims and assert that fact issues prevent summary judgment. See Response at 12. They expand:

Response at 12. They clarify that they only assert the ADA claims against Bernalillo County, so there is no reason to dismiss ADA claims as against him. See Response at 12.

The Plaintiffs contend that Title II of the ADA does not require them to exhaust their remedies. See MSJ at 13 & n. 13 (citing cases). They expand:

Response at 13-14.

The Plaintiffs also assert that J.P. was disabled on September 26, 2011, noting that Congress does not require a formal diagnosis of disability, but instead looks only to whether the person is "substantially limited in a major life activity." Response at 14-15 (internal quotation marks omitted)(citing Wilkerson v. Shinseki, 606 F.3d 1256 (10th Cir. 2010)). They continue:

Response at 13. After discussing general standards under the ADA, the Plaintiffs argue that J.P.'s mental condition impairs "her to the degree that she needs to have IEPs and BIPs in order to be functional at school." Response at 15. Somewhat confusingly, they continue: Defendants do not argue that J.P. was not impaired. Defendants do not argue that J.P.'s impairment substantially limited major life activities like learning and going to school. Defendants do not argue that J.P. was regarded as having that impairment or that the impairment was well documented. Therefore, J.P. meets the definition of disabled pursuant to the ADA without objection as Defendants merely contend J.P. was not diagnosed, which is immaterial to the ADA claim.

Response at 15-16. The Plaintiffs also argue that Ellenberg v. New Mexico Military Institute, which, they concede, held that qualifying for an IEP and a BEP is insufficient to satisfy the ADA's definition of disabled, is distinguishable:

Response at 17.

The Plaintiffs then turn to the County Defendants' knowledge, asserting that they knew or should have known that J.P. was disabled. See Response at 17. They continue:

Response at 17-18 (citation omitted).

The Plaintiffs again complain that the County Defendants have misleadingly used authority, stating that the cases are distinguishable on their facts, and that the cases on which the County Defendants rely involve employment discrimination, which Title I — not Title II — of the ADA covers. See Response at 18 & n. 4. They assert that Title II of the ADA does not require that the public entity have knowledge of the disability. See Response at 18-19. They concede that, to recover compensatory damages based on emotional distress, they must show intentional discrimination, see Response at 19, but they contend that a fact-finder can infer intentional discrimination from deliberate indifference, see Response at 18 & n.5. They continue:

Response at 19.

The Plaintiffs also argue that J.P. did not threaten others' health and safety:

Response at 19-20.

The Plaintiffs contend that they have established both a discrimination theory and an absence-of-reasonable-accommodation theory under the ADA. See Response at 21-22. The Plaintiffs, in essence, assert that J.P. lacked the mental capacity to have the intent that battery on a school teacher requires:

Honig v. Doe, 484 U.S. 305, 306-07 . . . (1988).

Response at 22-24.

As for the reasonable-accommodation claim, the Plaintiffs assert that

Response at 24-25. The Plaintiffs assert that,

Response at 25-26.

Finally, as for the training claim, the Plaintiffs contend that the issue of training's adequacy is a fact issue for the jury:

Defendants['] argument solely consist[s] of a statement that they had policies in place, without providing evidence that these policies and enforcement were adequate or reasonable. Defendants' addition of an adverb is not proof, and does not satisfy their "burden of showing that no genuine issue of material fact exists." EEOC v. Horizon/MS Healthcare Corp., 220 F.3d 1184, 1190 (10th Cir. 2000).

Response at 26-27 (emphasis in Response). The Plaintiffs, therefore, ask the Court to deny the MSJ. See Response at 27.

In the Reply, the County Defendants resist each argument. For the Fourth Amendment argument, the County Defendants submit as follows:

Reply at 7-8.

The County Defendants argue that the Plaintiffs incorrectly understand the law regarding emotional-distress damages in the excessive-force context:

Reply at 9.

With respect to the Plaintiffs' invocation of state law, the County Defendants note that the Plaintiffs have not identified clearly established authority with respect to the Fourth Amendment, as opposed to under state law, to support their views. See Reply at 9-10. They continue: New Mexico may choose to impose more lenient consequences for children, but the State legislature's decision to do so does not alter the Fourth Amendment's standards. Based on the foregoing undisputed facts and clearly established Fourth Amendment law, Deputy Sharkey's decision to handcuff J.P. was reasonable. Alternatively, Deputy Sharkey is entitled to qualified immunity on Plaintiffs' excessive force claim (Count II) because Plaintiffs failed to carry their burden of demonstrating that Deputy Sharkey violated clearly established Fourth Amendment law on the use of force.

Reply at 10. The County Defendants also note that the provisions that the Plaintiffs cite are, at any event, irrelevant:

Reply at 9-10 n.1.

The County Defendants then turn to the ADA claims. See Reply at 10. They note that the Plaintiffs have conceded any ADA claim as against Sharkey and ask the Court to dismiss any such claim with prejudice. See Reply at 10. As for the exhaustion argument, the County Defendants maintain that the Plaintiffs must exhaust their administrative remedies:

Reply at 10-11.

The County Defendants then discuss the Plaintiffs' argument that J.P. was disabled on September 26, 2011:

In Sutton, the Tenth Circuit acknowledged that the ADA did not define the term "impairment" and then looked to the EEOC's Interpretive Guidance on Title I of the Americans with Disabilities Act. 29 C.F.R. § 1630, App. for assistance in interpreting this term. The EEOC's Interpretative Guidance states that "`[i]t is important to distinguish between conditions that are impairments and physical, psychological, environmental, cultural and economic characteristics that are not impairments.'" Sutton, 130 F.3d at 899 (quoting 29 C.F.R. § 1630, App. §1630.2(h), ¶ 3). "`Hence, impairment does not include: physical characteristics . . . that are within the "normal" range and are not the result of a physiological disorder; characteristic predisposition to illness or disease; pregnancy; common personality traits such as poor judgment or quick temper where these are not the symptoms of a mental or psychological disorder; or environmental, cultural or economic disadvantages such as poverty, lack of education or a prison record.'" Id.; see Daley v. Koch, 892 F.2d 212, 215 ([2d] Cir. 1989)(holding in Rehabilitation Act case that personality traits of "poor judgment, irresponsible behavior and poor impulse control" could be described as commonplace and "in no way r[ose] to the level of an impairment").

Contrary to Plaintiffs' assertion, County Defendants' use of precedent is not misleading. In Krocka v. City of Chicago, 203 F.3d 507, 512 (7th Cir. 2000), the court found that "[b]ecause Krocka's severe depression is a medical condition diagnosed by a health professional, it qualifies as an impairment under the ADA."). This is entirely consistent with County Defendants' use of this authority in its Motion. See [Doc. No. 93], p. 17. County Defendants' citation to Kaltenberger v. Ohio College of Podiatric Med., 162 F.3d 432, 437 (6th Cir. 1998) was also accurate and is applicable here. In Kaltenberger, the court stated:

Reply at 11-13.

Turning to the question whether the County Defendants knew J.P. suffered from a disability, the County Defendants explain:

Finally, Plaintiff cannot establish Deputy Sharkey's knowledge with inadmissible hearsay from J.P.'s mother as to what J.P.'s former principal, Ms. Mildren, allegedly said she told Deputy Sharkey. See [Doc. No. 115-4], p.153, l. 7-p. 155, l. 4. According to J.H., Ms. Mildren said she had a private discussion with Deputy Sharkey and "brought to his attention that in the behavior intervention program that they have a one-two-three-four list they go through first before they call in the school resource officer." Id., p. 153, ll. 7-17. J.H. further testified that Ms. Mildren "did state to me that she made him aware that in the case of children who are in the Special Ed setting and especially ones who have IEP BIP, that they specifically have to follow protocol first and that it states on there that a school resource officer is referred to as last resort." Id., p. 153, l. 25 — p. 154, l. 10. J.H. was not present at the meeting Ms. Mildren purportedly had with Deputy Sharkey. Id., p. 154, ll. 11-16. J.H.'s testimony on this issue is inadmissible hearsay which does not create a genuine dispute and cannot support a plaintiff's opposition to summary judgment. See Fed. R. Civ. P. 56(c)(2); see also Llewellyn, 711 F.3d at 1180. Moreover, there is nothing in J.H.'s deposition testimony which would indicate that Ms. Mildren told Deputy Sharkey that J.P. had a disability.

Plaintiffs alternatively argue that they "need not show knowledge to establish a violation of Title II of the ADA." [Doc. No. 102], p. 19. According to Plaintiffs "intentional discrimination" can be established by showing Defendants' deliberate indifference. Id. "The test for deliberate indifference in the context of intentional discrimination comprises two prongs: (1) `knowledge that a harm to a federally protected right is substantially likely,' and (2) `a failure to act upon that . . . likelihood.'" Barber ex rel. Barber v. Colo. Dept. of Revenue, 562 F.3d 1222, 1229 (10th Cir. 2009). Knowledge that the plaintiff has a disability is still a requirement of the deliberate indifference standard. See id. (citing cases)

Reply at 13-14.

As for the direct-threat line of argument, the County Defendants state:

Reply at 15-16.

As for the wrongful-arrest and reasonable-accommodation-during-arrest theories, the County Defendants argue that the claims both fail:

Reply at 16.

Finally, the County Defendants contend that the Plaintiffs cannot show that the County Defendants trained Sharkey with deliberate indifference:

Reply at 16-17.

At the hearing, the Court heard argument first on the Fourth Amendment issues. See Transcript of Hearing at 37:1-4 (taken September 6, 2013)(Court)("Tr.").90 The County Defendants first noted that, in their view, it is undisputed that: (i) J.P. was under arrest for battering a school employee, a felony in New Mexico — even though the felony/misdemeanor distinction does not apply, because she is a juvenile, the underlying crime is a felony battery; and (ii) handcuffs were properly placed on her calmly with appropriate spacing — she never saw a doctor for any injuries, and the small red marks on her wrists disappeared after a day. See Tr. at 37:20-38:15 (Robles). The County Defendants noted that the Sixth Circuit has explained that it is per se reasonable to handcuff an arrestee, and also contended that no case states that you should not handcuff a juvenile, a mentally ill person, a developmentally disabled person, or a person who is otherwise disabled. See Tr. at 39:16-23 (Robles). The County Defendants conceded that physically impaired individuals are treated differently, but suggested that no case shows that police should not handcuff an individual with a mental disability. See Tr. at 38:23-25 (Robles). The County Defendants stated that, at the threshold, the Plaintiffs must point to a case similar to this one and stated that no such case exists. See Tr. at 39:1-5 (Robles). Further, they reiterated their argument that Tenth Circuit law is clear: red marks or soreness are not sufficient to assert an excessive force claim, and there is no case putting Sharkey on notice that handcuffing an eleven-year-old child with a learning disability in an otherwise lawful arrest would be unconstitutionally excessive force. See Tr. at 39:6-19 (Robles). They noted that district courts have held that, when a child is handcuffed and that handcuffing has not physically injured the child, the child cannot assert an excessive-force claim. See Tr. at 39:19-24 (Robles). They stated that the Plaintiffs have not identified a case supporting their theory that psychological harm is sufficient; further, they stated that handcuffing a child with J.P.'s disability is constitutional and that Sharkey violated no clearly established law in handcuffing her. See Tr. at 39:25-40:14 (Robles). They noted that the Plaintiffs' discussion of state law and best practices papers is beside the point, because they are irrelevant and inadmissible. See Tr. at 40:15-22 (Robles). They also reiterated their argument that J.H. is unqualified to comment on whether the arrest caused J.P. to suffer psychological harm. See Tr. at 40:23-41:12 (Robles).

The Plaintiffs first clarified their use of phrases like "excessive force" was something of a misnomer; their claim, they stated, is "really an unreasonable seizure claim." Tr. at 41:15-18 (Kennedy). They noted their position that handcuffing an eleven-year-old crying in the closet for fifteen minutes is unreasonable. See Tr. a 41:21-24 (Kennedy). They reiterated their argument that Holland ex rel. Overdorff v. Harrington, 268 F.3d 1179, 1195 (10th Cir. 2001), is instructive on whether injury is necessary in cases involving force or threatened force used against children. See Tr. at 41:24-42:3 (Kennedy). They also stated that Manzanares v. Higdon, 575 F.3d 1135, 1150 (10th Cir. 2009), stands for the notion that "we just don't simply allow law enforcement to [handcuff] everything that they feel like handcuffing [—] that there is a decision made as to whether a person needs to be handcuffed [based upon] the threat level of the person." Tr. at 42:3-8 (Kennedy). They stated that key facts are disputed: conceding that J.P. acted as the officer saw, they noted that J.P. then cried in the closet for fifteen minutes, and that, when Sharkey instructed her to stand up and put her hands behind her back, she was "completely compliant." Tr. at 42:8-16 (Kennedy). The Plaintiffs stated that, accordingly, if Sharkey had probable cause to arrest her, case law requires him to evaluate if J.P. is actually a threat before handcuffing her. See Tr. at 42:16-23 (Kennedy). Their counsel stated that J.H. is competent to testify as to the effects of these events on J.P. See Tr. at 42:23-43:3 (Kennedy). They also stated that handcuffing J.P., transporting her to a facility that would not accept her, and not calling J.H. is actionable. See Tr. at 43:4-8 (Kennedy). They also stated that the Court should consider state law in the excessive-force context, and stated that, under New Mexico law, "we have a state law that absolutely prohibits the restraint of children unless in emergency situations." Tr. at 43:4-19 (Kennedy).

The Court asked whether it is the law that handcuffing is per se reasonable in an assault case; the Plaintiffs conceded that, where a person is in custody under arrest and transported to a jail facility, this statement correctly reflects the law, but "[n]ot in the detention situation." Tr. at 43:22-44:4 (Court, Kennedy). The Plaintiffs stated that, even in executing a search warrant, a police officer's decision in handcuffing individual is subject to constitutional review; the Court stated, and the Plaintiffs confirmed, that that situation presents a reasonable-suspicion question. See Tr. at 44:9-13 (Kennedy, Court). The Court asked, and the County Defendants confirmed, that they were defending this case as a probable cause case and not a reasonable suspicion case. See Tr. at 44:12-23 (Court, Robles). In light of that position, the Court asked the Plaintiffs why, conceding that there generally is a per se rule that handcuffing is appropriate where there is probable cause, there should be a different rule for juveniles. See Tr. at 44:24-45:2 (Court). The Plaintiffs stated that they primarily rested

Tr. at 45:3-10 (Kennedy). The Court stated that "if you have a state statute your reaction is well, that's something different, but it's federal court. Isn't it basically no different whether it's [police department regulations,] guidelines, trade association, state? None of those are really going to be very useful, admissible or otherwise for defining federal" excessive force law. Tr. at 45:13-19 (Court). The Court stated that it was not sure it could admit that evidence at trial; the Plaintiffs stated that, at the qualified immunity stage, it is something that the officer has to explain: "I don't think [he] has the ability to disregard clear state statute and then say he acted reasonably as a police officer and that he has qualified immunity." Tr. at 45:25-46:11 (Kennedy). The Court asked about the "perp walks" to which officials sometimes subject adult securities law violators, and asked how one could then, in cases involving juveniles, "say there's got to be a different analysis because state law says so?" Tr. at 46:12-16 (Court). She first noted that some Courts of Appeals have held perp walks unconstitutional; the Court asked if that is an excessive-force analysis, and she stated that it is a Fourth Amendment, reasonable seizure analysis, but not an excessive force analysis. See Tr. at 46:17-25 (Kennedy, Court). The Court then asked if the Plaintiffs' concession brought the Court back to probable-cause analysis; the Plaintiffs stated that, although probable cause matters, how the officer treats the person in custody is also of constitutional significance. See Tr. at 47:1-5 (Court, Kennedy). The Plaintiffs stated that it acknowledged the Court's inclination to dismiss their claim under the Fourteenth Amendment to the Constitution of the United States of America,91 but stated that the Fourth Amendment applies to how officers treat people in custody and prevents the state from humiliating suspects — especially as to children, where restraints can be harmful. See Tr. at 47:3-16 (Kennedy). In their view, the government's interest in handcuffing J.P. was small, because she was not a threat. See Tr. at 47:16-25 (Kennedy).

The Court asked about the Tenth Circuit cases that limit damages in handcuffing cases, noting that, under the Plaintiffs' view, this "body of law would seem to just disappear at least for juveniles." Tr. at 48:1-10 (Court). The Plaintiffs stated that Holland ex rel. Overdorff v. Harrington and Grass v. Johnson, 322 F. App'x 586 (10th Cir. 2009), together stand for the notion that the Tenth Circuit would deal with minors differently; accordingly, the Plaintiffs contended that psychological injury should be actionable when an officer mistreats or abuses a minor. See Tr. at 48:11-49:3 (Kennedy). Upon the Court's request, the Plaintiffs confirmed that Holland ex rel. Overdorff v. Harrington is the best case from within the Tenth Circuit, and the Plaintiffs did not identify any more on-point cases outside of the Tenth Circuit. See Tr. at 49:3-21 (Court, Kennedy). The Plaintiffs reiterated their view that there was no reason to take J.P. to the juvenile detention facility, because the juvenile probation officer — not the person filing a criminal complaint — initiates charges; accordingly, in her view, the state's decision to handcuff J.P. and transport her to jail was pointless. See Tr. at 50:23-50:9 (Kennedy).

The County Defendants asserted that Holland ex rel. Overdorff v. Harrington does not control this case: in their view, that case involved using a show of force — i.e., the use of weapons and harsh language — against children who were not a threat. See Tr. at 50:14-25 (Robles). The County Defendants stated that, in a case involving the same facts, but with adults, the Tenth Circuit might find it to be an unreasonable force as well. See Tr. at 51:1-7 (Robles). The Court pointed to its decision in Mata v. City of Farmington, 791 F.Supp.2d 1118 (D.N.M. 2011)(Browning, J.), where, in essence, a police officer pointed a gun at a father and his minor child during a traffic stop for father's failure to wear his seatbelt; the Court concluded that a reasonable jury could find that the officer used excessive force. See generally 791 F. Supp. passim. See Tr. at 52:11-14 (Court). The County Defendants stated that Mata v. City of Farmington involved a high-end show of force in connection with a traffic violation, and asserted that the Tenth Circuit has clearly differentiated handcuffing from that sort of force. See Tr. at 51:15-52:1 (Robles). The County Defendants reiterated that Holland ex rel. Overdorff v. Harrington did not turn on whether the plaintiffs were juveniles, but instead on an outrageous show of force; in their view, explicitly under Sixth Circuit law and implicitly under Tenth Circuit law, once the police officer has probable cause, handcuffing the suspect is per se reasonable — setting aside cases that involve nerve injuries and the like. See Tr. at 52:8-20 (Robles).

As for Manzanares v. Higdon, the County Defendants pointed out that that case "is a meaningful case in the reasonable suspicion investigatory detention context, but we're way past that. We're at the point where an officer has probable cause to arrest someone for a felony battery." Tr. at 52:21-53:2 (Robles). The County Defendants also asserted that the discussion regarding whether Sharkey should have taken J.P. to a detention facility or should have, instead, made alternate arrangements is beside the point: under Tenth Circuit law, the existence of less intrusive alternatives are, in their view, irrelevant whether the officer's force application was reasonable, in light of the facts that the officer knew. See Tr. at 53:3-12 (Robles). They noted that one can look at this situation in hindsight "and divine different ways that it could have been handled, ways in which we would think well maybe in hindsight that could have been[,] should have been the better way of handling it. But," they stated, under Tenth Circuit law, the use of less restrictive alternatives "would be irrelevant in determining whether the application of . . . handcuffs in this case was reasonable." Tr. at 53:12-21 (Robles).

The County Defendants returned to the nature of the injuries and stated that, if Sharkey was to follow any body of law, he had to follow Tenth Circuit law stating that, if he arrests someone for probable cause and properly handcuffs them — ensuring that they do not suffer long-term injury — he has applied force properly. See Tr. at 53:22-54:5 (Robles). The County Defendants stated that, to hold Sharkey "accountable to a standard that's different than what the Tenth Circuit has already said is reasonable under the circumstances would be essentially rewriting the law and having the deputy follow a case that is not applicable to what we have in this matter." Tr. at 54:6-10 (Robles).

The Court stated:

Tr. at 54:11-55:9 (Court).

The Court then turned to the ADA portion of the MSJ. See Tr. at 55:10-12 (Court) The County Defendants stated that it is undisputed that Sharkey did not have access to J.P.'s files and that he did not know why J.P. was in special education courses. See Tr. at 55:14-21 (Robles). The County Defendants stated that Sharkey had testified both that he had not seen anything that would lead him to think that she suffered a mental health problem and that he did not know she had a disability which would cause her to be physically violent; indeed, they pointed out, he stated in his affidavit that he had never before seen J.P. act as she did on September 26, 2011. See Tr. at 55:22-56:5 (Robles). The County Defendants stated that, rather than reciting all the reasons that the Court should dismiss the ADA claims, they would focus on the most important issue: why the ADA should not apply when the state official dealing with the disabled person does not know of the disability. See Tr. at 56:6-16 (Robles). They stated that no ADA case law requires an individual to investigate to determine the disability's nature and extent; accordingly, they stated, "on that one very simple ground the ADA claim fails, because in order for [Sharkey] to accommodate a disability he has to know what that disability is. And without knowledge of a disability there is no ADA claim." Tr. at 56:21-57:5 (Robles). They also stated that it was "troubling" that the Plaintiffs' argument would suggest, because J.P. "was disabled, that she should suffer no consequence as a result of her violation of state law." Tr. at 57:6-10 (Robles). They stated that, from the undisputed facts, it is clear that Sharkey did not arrest J.P. because of legal conduct related to her disability, but instead for battery on a school employee. See Tr. at 57:10-14 (Robles). They stated that, even if one were to assume that striking the teacher "was a manifestation [of] or resulted from [J.P.]'s disability, [J.P.]'s conduct was nonetheless unlawful, because there is nothing about the ADA that insulates a person with a disability from the consequences of their criminal conduct." Tr. at 57:15-20 (Robles). They stated that being disabled does not mean that she is not responsible for her criminal acts; "[t]here only has to be an accommodation of her disability." Tr. at 57:20-23 (Robles). In their view, there has been no evidence or argument explaining how Sharkey could have reasonably accommodated her disability. See Tr. at 57:23-58:1 (Robles). They stated that this case is a run-of-the-mill arrest case; nothing from the record, in their view, suggests that J.P.'s disability demands a different result. See Tr. at 58:1-8 (Robles). They argued that the reasonable-accommodation-in-arrest cases — for example, cases involving handcuffing a one-armed suspect or securing a wheelchair-bound suspect in an appropriate vehicle to be transported to a second facility — differ entirely, and that the Plaintiffs have not argued how Sharkey should have handled her ADHD aside from letting her go free. See Tr. at 58:8-24 (Robles). They stated that the ADA does not tell those who suffer from learning disabilities like ADHD that they are not accountable for the criminal consequences of their behavior and may be released to their mother's custody. See Tr. at 58:25-59:4 (Robles). In their view, the other issues in the MSJ explain why the ADA claims are not actionable, but they wished to stress the reasons that they presented in the hearing, given the Court's limited time. See Tr. at 59:5-11 (Robles).

The Plaintiffs started by underscoring that their ADA claims are against Bernalillo County and not against the individual officer; they reiterated their argument that the Title I cases that the County Defendants cited are inapposite, because, under Title II,

Tr. at 59:23-60:21 (Kennedy). The Plaintiffs stated that, under IDEA, law enforcement must transmit to appropriate authorities information about the child, and Bernalillo County does not train its officers in that manner. See Tr. at 60:22-61:9(Kennedy)(citing 20 U.S.C. 1415(k)(6)(B)). The Plaintiffs also argue that Bernalillo County does not train its officers to identify or treat disabled children; in their view, a jury could infer that Sharkey had reason to know that J.P. was disabled, given her BIP's content. See Tr. at 61:11-23 (Kennedy). They argued that, given the increasing trend of putting police officers in schools, counties have an increasing obligation to accommodate schoolchildren; they noted that, in this case, handcuffing and moving J.P. traumatized her and exacerbated her disability. See Tr. at 61:24-62:16 (Kennedy). They disputed the County Defendants' suggestion that disabled children are not immune from the consequences of criminal conduct, arguing that it is the Court's — not the police officer's — job to determine criminal conduct's consequences; in their view, the police officer's job is to send charges to the correct person and to deal with the child. See Tr. at 62:10-24 (Kennedy). The Plaintiffs noted that, as for the County Defendants' facetious suggestion that the Plaintiffs' position would require police officers to just release J.P., in this case, that release is what happened: after Sharkey handcuffed her and transported her to the juvenile detention center, she was immediately released to her mother. See Tr. at 62:25-36:4 (Kennedy).

The Plaintiffs argued that their proposed accommodation is to release the child to her mother and refer the police report to the juvenile probation officer, which would have prevented the harm; and second, they argued, the police should call the probation officer ahead of time, because the officer could have told Sharkey that they would not take in J.P. for detention. See Tr. at 63:5-13 (Kennedy). They pointed to Buben v. City of Lone Tree, No. 08-cv-00127-WYD-MEH, 2010 WL 3894185 (D. Colo. Sept. 30, 2010)(Daniel, C.J.), in which the Honorable Wiley Y. Daniel, Chief Judge of the United States District Court for the District of Colorado, allowed a reasonable-accommodation claim to proceed where officers used a taser on a man enduring a psychotic episode. See Tr. at 63:14-23 (Kennedy).

In the Plaintiffs' view, they have met their burden to prove that J.P. had a disability, because she had ADHD before the incident and her symptoms existed as early as 2008. See Tr. at 63:23-64:8 (Kennedy). They also stated, without elaboration, that they have met their burden to show that J.P. was excluded from a public benefit because of the disability. See Tr. at 64:9-11 (Kennedy). They argued that the Tenth Circuit's opinion in Gohier v. Enright suggests that the Tenth Circuit views favorably the idea that Title II requires law enforcement to accommodate the learning-disabled population; they noted that Bernalillo County has created a place that children with emotional disturbance can receive counseling. See Tr. at 64:9-21 (Kennedy). They emphasized that police officers do not initiate the process in the juvenile system, but "a separate department" begins the process; in the Plaintiffs' view, "whether . . . that department reviews a child in custody or reviews a police report from a police officer the child is handled the same." Tr. at 64:24-65:4 (Kennedy). They stated that "the initiation of the process does not require handcuffing and transportation to a juvenile detention facility." Tr. at 65:4-6 (Kennedy). In their view, the New Mexico Children's Code and the relevant New Mexico mental health statutes have at their core avoiding institutionalizing disabled children. See Tr. at 65:1-9 (Kennedy).

The Court asked where the ADA violation occurred: the lack of a policy or the arrest itself. See Tr. at 65:13-16 (Court). The Plaintiffs suggested that there are two prongs to this area; first, they identified the wrongful-arrest prong, which they believe stands for the notion that one cannot criminalize activity that is the result of a disability, and explained that, in their view, this case falls into that category, because Bernalillo County failed to train its officers to recognize that kicking and "[th]rashing about" are symptoms of a disability. Tr. at 65:17-66:10 (Kennedy). The second prong, they said, is the failure-to-accommodate prong — where the government entity fails to train its officers in how to deal with mentally ill persons; in their view, they satisfy this prong, again, because, where a child is mentally disabled, where state law says that children are not to be restrained outside of emergency situations, where there is no government purpose in handcuffing the child and transporting her to a jail, "the failure to train officers[, to] require them essentially to contact the parents, which is what the juvenile detention facility did, or take the parents to [an] available center for" intake, and referral to counseling "is a failure to accommodate the disability" as against Bernalillo County. Tr. at 66:11-67:8 (Kennedy). The Plaintiffs denied that they argued that the ADA modifies constitutional law for arrest, but instead "adds an extra layer of statutory protection." Tr. at 67:14-68:9 (Court, Kennedy). The Court asked if any case says that the ADA changes how criminal justice works with individual defendants; the Plaintiffs reasserted that the Tenth Circuit recognized the wrongful-arrest and accommodation theories, and elaborated on Gohier v. Enright's facts:

Tr. at 68:25-70:10 (Kennedy).

The Court noted that the Plaintiffs asked for money, and not for training, in their Complaint, and asked "is there really a claim for failure to train under the ADA"; evidently misunderstanding the Court's question, the Plaintiffs stated that the law recognizes such a claim and discussed how such a claim works in theory. Tr. at 72:12-71:4 (Court, Kennedy).92

The County Defendants returned the Court's focus to undisputed facts, noting that Sharkey testified that Bernalillo County provided, and he had completed, forty hours of training dealing with those with mental health issues, including training involving learning disabilities, including ADHD, along with other disabilities. See Tr. at 71:9-72:4 (Robles). As for any allegation that the training was sufficient, they noted that no expert testimony in the record stated as much — "no testimony, affidavit, deposition, what have you that says, you know what? They should have done it differently. They should have given more. That was wrong what they taught. They should have taught something different." Tr. at 72:5-13 (Robles). In short, in the County Defendants' view, Bernalillo County properly prepared Sharkey to arrest and transport someone with ADHD. See Tr. at 72:14-22 (Robles).

To the question whether there is a failure to train claim under the ADA, the County Defendants noted that cases have divided and that the Tenth Circuit has not taken a position on the matter, but underscored that, in their view, even if the Court finds that the claim exists, Bernalillo County properly trained Sharkey to deal with J.P., and nothing in the record throws the training's adequacy into doubt. See Tr. at 72:23-73:23 (Robles).

The Court stated:

Tr. at 74:1-21 (Court).

LAW REGARDING SUMMARY JUDGMENT

Rule 56(a) of the Federal Rules of Civil Procedure states: "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "The movant bears the initial burden of `show[ing] that there is an absence of evidence to support the nonmoving party's case.'" Herrera v. Santa Fe Pub. Schs., No. CIV 11-0422 JB/KBM, 2013 WL 3462484, at *23 (D.N.M. June 28, 2013)(Browning, J.)(quoting Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991)). See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "If the moving party will bear the burden of persuasion at trial, that party must support its motion with credible evidence — using any of the materials specified in Rule 56(c) — that would entitle it to a directed verdict if not controverted at trial." Celotex Corp v. Catrett, 477 U.S. at 331 (Brennan, J., dissenting)(emphasis in original).93 Once the movant meets this burden, rule 56 requires the nonmoving party to designate specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. at 324; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986).

The party opposing a motion for summary judgment must "set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof." Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990). See Vitkus v. Beatrice Co., 11 F.3d 1535, 1539 (10th Cir. 1993)("However, the nonmoving party may not rest on its pleadings but must set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof." (internal quotation marks omitted)). Rule 56(c)(1) provides: "A party asserting that a fact . . . is genuinely disputed must support the assertion by . . . citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials." Fed. R. Civ. P. 56(c)(1). It is not enough for the party opposing a properly supported motion for summary judgment to "rest on mere allegations or denials of his pleadings." Anderson v. Liberty Lobby, Inc., 477 U.S. at 256. See Abercrombie v. City of Catoosa, 896 F.2d 1228, 1231 (10th Cir. 1990); Otteson v. United States, 622 F.2d 516, 519 (10th Cir. 1980)("However, `once a properly supported summary judgment motion is made, the opposing party may not rest on the allegations contained in his complaint, but must respond with specific facts showing the existence of a genuine factual issue to be tried.'" (citation omitted)). Nor can a party "avoid summary judgment by repeating conclusory opinions, allegations unsupported by specific facts, or speculation." Colony Nat'l Ins. Co. v. Omer, No. 07-2123, 2008 WL 2309005, at *1 (D. Kan. June 2, 2008)(citing Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir. 2006); Fed. R. Civ. P. 56(e)). "In responding to a motion for summary judgment, `a party cannot rest on ignorance of facts, on speculation, or on suspicion and may not escape summary judgment in the mere hope that something will turn up at trial.'" Colony Nat'l Ins. Co. v. Omer, 2008 WL 2309005, at *1 (quoting Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988)).

To deny a motion for summary judgment, genuine factual issues must exist that "can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. at 250. A mere "scintilla" of evidence will not avoid summary judgment. Vitkus v. Beatrice Co., 11 F.3d at 1539 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. at 248). Rather, there must be sufficient evidence on which the factfinder could reasonably find for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 251 (quoting Schuylkill & Dauphin Improvement Co. v. Munson, 81 U.S. 442, 448 (1871)); Vitkus v. Beatrice Co., 11 F.3d at 1539. "[T]here is no evidence for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable . . . or is not significantly probative, . . . summary judgment may be granted." Anderson v. Liberty Lobby, Inc., 477 U.S. at 249 (citations omitted). Where a rational trier of fact, considering the record as a whole, could not find for the nonmoving party, there is no genuine issue for trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

When reviewing a motion for summary judgment, the court should keep in mind certain principles. First, the court's role is not to weigh the evidence, but to assess the threshold issue whether a genuine issue exists as to material facts requiring a trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 249. Second, the ultimate standard of proof is relevant for purposes of ruling on a summary judgment, such that, when ruling on a summary judgment motion, the court must "bear in mind the actual quantum and quality of proof necessary to support liability." Anderson v. Liberty Lobby, Inc., 477 U.S. at 254. Third, the court must resolve all reasonable inferences and doubts in favor of the nonmoving party, and construe all evidence in the light most favorable to the nonmoving party. See Hunt v. Cromartie, 526 U.S. 541, 550-55 (1999); Anderson v. Liberty Lobby, Inc., 477 U.S. at 255 ("The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor."). Fourth, the court cannot decide any issues of credibility. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 255.

There are, however, limited circumstances in which the Court may disregard a party's version of the facts. This doctrine developed most robustly in the qualified-immunity arena. In Scott v. Harris, 550 U.S. 372 (2007), the Supreme Court concluded that summary judgment was appropriate where video evidence "quite clearly contradicted" the plaintiff's version of the facts. 550 U.S. at 378-81. The Supreme Court explained:

550 U.S. at 380-81 (emphasis in original).

The Tenth Circuit applied this doctrine in Thomson v. Salt Lake County, 584 F.3d 1304 (10th Cir. 2009), and explained:

Thomson v. Salt Lake Cnty., 584 F.3d at 1312. "The Tenth Circuit, in Rhoads v. Miller, [352 F. App'x 289 (10th Cir. 2009)(Tymkovich, J.)(unpublished),94 ]explained that the blatant contradictions of the record must be supported by more than other witnesses' testimony[.]" Lymon v. Aramark Corp., 728 F.Supp.2d 1222, 1249 (D.N.M. 2010)(Browning, J.)(citation omitted).

RELEVANT LAW REGARDING EXCESSIVE FORCE

When an officer moves for qualified immunity on an excessive force claim, "a plaintiff is required to show that the force used was impermissible (a constitutional violation) and that objectively reasonable officers could not have thought the force constitutionally permissible (violates clearly established law)." Cortez v. McCauley, 478 F.3d 1108, 1128 (10th Cir. 2007). Accord Mata v. City of Farmington, 791 F.Supp.2d 1118, 1137-38 (D.N.M. 2011)(Browning, J.). An excessive force claim "must . . . be judged by reference to the specific constitutional standard which governs that right, rather than to some generalized `excessive force' standard." Graham v. Connor, 490 U.S. at 394. The Supreme Court has long held that all claims of excessive force in the context of an arrest or detention should be analyzed under the Fourth Amendment's reasonableness standard. See Graham v. Connor, 490 U.S. at 395 ("[A]ll claims that law enforcement officers have used excessive force — deadly or not — in the course of an arrest, investigatory stop, or other `seizure' of a free citizen should be analyzed under the Fourth Amendment and its `reasonableness' standard. . . ."). The Supreme Court recognizes that "police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation." Graham v. Connor, 490 U.S. at 397. Consequently, "the reasonableness of the officer's belief as to the appropriate level of force should be judged from that on-scene perspective." Saucier v. Katz, 533 U.S. 194, 205 (2001), receded from by Pearson v. Callahan, 129 S.Ct. 808 (2009). A court must judge the reasonableness of a particular use of force from "the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. . . . That perspective includes an examination of the information possessed by the [officers]." Weigel v. Broad, 544 F.3d 1143, 1152 (10th Cir. 2008)(citations and internal quotation marks omitted). When an officer moves for qualified immunity on an excessive-force claim, "a plaintiff is required to show that the force used was impermissible (a constitutional violation) and that objectively reasonable officers could not have thought the force constitutionally permissible (violates clearly established law)." Cortez v. McCauley, 478 F.3d 1108, 1128 (10th Cir. 2007).

1. Relevant Factors in Determining Whether Officers' Actions Were Objectively Reasonable.

The Tenth Circuit has provided lists of non-exclusive factors that courts consider when determining whether force was objectively reasonable. In Estate of Larsen ex. rel Sturdivan v. Murr, the Tenth Circuit stated:

511 F.3d at 1260. In Weigel v. Broad, 544 F.3d 1143 (10th Cir. 2008), the Tenth Circuit also provided:

544 F.3d at 1151-52 (citations omitted). A court assesses "objective reasonableness based on whether the totality of the circumstances justified the use of force, and [must] pay careful attention to the facts and circumstances of the particular case." Estate of Larsen ex. rel Sturdivan v. Murr, 511 F.3d at 1260 (internal quotation marks omitted). Additionally, "[t]he `reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Graham v. Connor, 490 U.S. at 396.

2. Least-or Less-forceful Alternatives in Excessive-Force Cases.

"To avoid a `Monday morning quarterback' approach, the Fourth Amendment does not require the use of the least, or even a less, forceful or intrusive alternative to effect custody, so long as the use of force is reasonable under Graham v. Connor." James v. Chavez, No. 09-0540, 2011 WL 5822726, at *17 (D.N.M. Nov. 9, 2011)(Browning, J.). The Fourth Amendment requires only that the defendant officers chose a "reasonable" method to end the threat that the plaintiff posed to the officers in a force situation, regardless of the availability of less intrusive alternatives. Graham v. Connor, 490 U.S. at 397.

In Michigan Department of State Police v. Sitz, 496 U.S. 444 (1990), the Supreme Court examined a case addressing the constitutionality of highway sobriety checkpoints and stated that Brown v. Texas, 443 U.S. 47 (1979),

496 U.S. at 453-54. See Illinois v. Lafayette, 462 U.S. 640, 647 (1983)("[T]he reasonableness of any particular government activity does not necessarily turn on the existence of alternative `less intrusive' means."). "To avoid unrealistic second guessing, the Fourth Amendment does not require that an officer use the least-intrusive alternative available to protect himself or others so long as the method chosen is reasonable." Tanner v. San Juan Sheriff's Office, 864 F.Supp.2d 1090, 1115 (D.N.M.)(Browning, J.).

In United States v. Sokolow, 490 U.S. 1 (1989), the Supreme Court examined the stop under Terry v. Ohio of a suspected drug courier in an airport. The Supreme Court rejected Sokolow's contention that the arresting officers were "obligated to use the least intrusive means available to dispel their suspicions that he was smuggling narcotics." 490 U.S. at 11. Instead, the Supreme Court held: "The reasonableness of the officer's decision to stop a suspect does not turn on the availability of less intrusive investigatory techniques. Such a rule would unduly hamper the police's ability to make swift, on-the-spot decisions . . . and require courts to indulge in unrealistic second guessing." United States v. Sokolow, 490 U.S. at 11 (internal quotation marks and citations omitted). Similarly, in United States v. Sharpe, 470 U.S. 675, 686-87 (1985), the Supreme Court stated that

470 U.S. at 686-87 (quoting Cady v. Dombrowski, 413 U.S. 433, 447 (1973)).

In Marquez v. City of Albuquerque, 399 F.3d 1216 (10th Cir. 2005), the Tenth Circuit disagreed with the plaintiff's contention that expert testimony about when a police dog's use is objectively reasonable and about how defendant Lehocky's actions violated "well established law enforcement standards . . . should have been admitted since it would have been helpful to the jury in determining whether Lehocky used a reasonable amount of force." 399 F.3d at 1222. In so holding, the Tenth Circuit explained:

Marquez v. City of Albuquerque, 399 F.3d at 1222.

In United States v. Melendez-Garcia, the Tenth Circuit stated: "We must avoid unrealistic second guessing of police officers' decisions in this regard and thus do not require them to use the least intrusive means in the course of a detention, only reasonable ones." 28 F.3d at 1052 (internal quotation marks omitted). See Medina v. Cram, 252 F.3d 1124, 1133 (10th Cir. 2001)(stating that "the reasonableness standard does not require that officers use alternative less intrusive means" (internal quotation marks omitted)); Dickerson v. McClellan, 101 F.3d 1151, 1160 (6th Cir. 1996)("[T]he Fourth Amendment does not require officers to use the best technique available as long as their method is reasonable under the circumstances."); Schulz v. Long, 44 F.3d 643, 649 (8th Cir. 1995)("[T]he Fourth Amendment inquiry focuses not on what the most prudent course of action may have been or whether there were other alternatives available, but instead whether the seizure actually effectuated falls within the range of conduct which is objectively `reasonable' under the Fourth Amendment."); Scott v. Henrich, 39 F.3d 912, 915 (9th Cir. 1994)("Requiring officers to find and choose the least intrusive alternative would require them to exercise superhuman judgment. . . . Officers thus need not avail themselves of the least intrusive means of responding to an exigent situation; they need only act within that range of conduct we identify as reasonable."); Menuel v. City of Atlanta, 25 F.3d 990, 996-97 (11th Cir. 1994)("[T]he Fourth Amendment does not require officers to use the least intrusive alternatives in search and seizure cases. The only test is whether what the police officers actually did was reasonable."); Plakas v. Drinski, 19 F.3d 1143, 1149 (7th Cir. 1994)("We do not believe the Fourth Amendment requires the use of the least or even a less deadly alternative so long as the use of force is reasonable under Tennessee v. Garner [471 U.S. 1 (1985)] and Graham v. Connor.").

"Thus, the clearly established law in the Tenth Circuit holds that the Fourth Amendment does not require an officer to use the least or a less forceful alternative." Jonas v. Bd. of Comm'rs of Luna Cnty., 699 F.Supp.2d 1284, 1296 (D.N.M. 2010)(Browning, J.). See, e.g., Blossom v. Yarbrough, 429 F.3d at 968 (quoting Medina v. Cram, 252 F.3d at 1133)("It is well settled that `the reasonableness standard does not require that officers use alternative, less intrusive means' when confronted with a threat of serious bodily injury."); Jiron v. City of Lakewood, 392 F.3d 410, 414 (10th Cir. 2004)(stating that, in police-shooting case, officers are not required to use alternative, less intrusive means if their conduct is objectively reasonable). See also Roy v. Inhabitants of the City of Lewiston, 42 F.3d 691, 695 (1st Cir. 1994)("[I]n close cases, a jury does not automatically get to second guess these life and death decisions, even though plaintiff has an expert and a plausible claim that the situation could better have been handled differently."); Diaz v. Salazar, 924 F.Supp. 1088, 1100 (D.N.M. 1996)(Hansen, J.). Moreover, the reasonableness standard does not require that officers use "alternative `less intrusive' means." Illinois v. Lafayette, 462 U.S. 640, 647-48 (1983). The Court has also rejected the consideration of a less intrusive alternative to end a threat. See Chamberlin v. City of Albuquerque, No. 02-0603, 2005 WL 2313527, at *2 (D.N.M. July 31, 2005)(Browning, J.)(precluding the plaintiff's police procedures expert from testifying at trial regarding alternative less intrusive means).

3. The Actual-Injury Requirement.

As the Court explained in Sisneros v. Fisher, 685 F.Supp.2d 1188 (D.N.M. 2010)(Browning, J.),

685 F. Supp. 2d at 1208.

The cases make clear that "actual injury," not "physical injury," is required to sustain a claim of excessive use of force. E.g., Fisher v. City of Las Cruces, 584 F.3d 888, 894 (10th Cir. 2009)("[T]o recover on an excessive force claim, a plaintiff must show: (1) that the officers used greater force than would have been reasonably necessary to effect a lawful seizure, and (2) some actual injury caused by the unreasonable seizure that is not de minimis, be it physical or emotional." (quoting Cortez v. McCauley, 478 F.3d 1108, 1129 n.25 (10th Cir. 2007)(en banc)(emphasis added))). As the Tenth Circuit explained in Vondrak v. City of Las Cruces: "We have consistently rejected a bright-line rule requiring plaintiffs to demonstrate physical injury when bringing excessive force claims. . . . Nevertheless, when an excessive force claim relies upon unduly tight handcuffing, we have held that the plaintiff must show `some actual injury.'" Vondrak v. City of Las Cruces, 535 F.3d at 1208 (citing Holland ex rel. Overdorff v. Harrington, 268 F.3d 1179, 1195 (10th Cir. 2001))(internal citations omitted, emphasis added). In Cortez v. McCauley, the Tenth Circuit explained in more depth:

Cortez v. McCauley, 478 F.3d at 1129 (internal citations omitted, emphasis added). Thus, in Cortez v. McCauley, the Tenth Circuit rejected Cortez' excessive-use-of-force claim, not because he lacked physical injury, but because his injury — in his case, a physical injury — was de minimis. See 478 F.3d at 1129-30. The implication is that, had Cortez alleged some emotional injury, or some additional physical injury such as a dislocated shoulder or sprained wrist, his injuries would have risen to a non-de minimis level and become the "actual injury" that an excessive-use-of-force claim requires. E.g., Vondrak v. City of Las Cruces, 535 F.3d at 1209 (finding genuine issue of fact existed whether plaintiff suffered "actual injury" when, in addition to unduly tight handcuffing, plaintiff provided evidence that he might have permanent nerve damage in his wrists).

The quintessential example is Holland ex rel. Overdorff v. Harrington, in which a Sheriff deployed the SWAT team to execute an arrest warrant at a home in which the officers knew that other persons, including children, would be present. See Holland ex rel. Overdorff v. Harrington, 268 F.3d at 1192. The Tenth Circuit had to answer the question whether the officers' action of detaining the plaintiffs "at gunpoint, initially forcing several of them to lie down on the ground for ten to fifteen minutes, and ultimately gathering all of them in the living room of the residence" was an excessive use of force under the Fourth Amendment. 268 F.3d at 1192. Ultimately, the Tenth Circuit found that it was an excessive use of force, notwithstanding the lack of any alleged physical injuries:

268 F.3d at 1192-93 (internal citations and quotation marks omitted). The Tenth Circuit, however, did not stop there. In response to an argument that the plaintiff's claim must fail for want of evidence of physical injury, the Tenth Circuit stated:

268 F.3d at 1195. It thus appears that the Tenth Circuit does not require evidence of physical injury to satisfy the "actual injury" element of an excessive-use-of-force claim. Neither Vondrak v. City of Las Cruces nor Cortez v. McCauley repudiate that rule. See Fisher v. City of Law Cruces, 584 F.3d at 897 (stating that Cortez v. McCauley "acknowledged — and did not overrule — our prior conclusion that in excessive force cases `proof of physical injury manifested by visible cuts, bruises, abrasions or scars, is not an essential element.'"). The holdings in those cases apparently demonstrate only that the Tenth Circuit has decided that the injuries alleged in those cases — redness and pain caused by unduly tight handcuffing — are, as a matter of law, de minimis injuries.

In some instances, emotional trauma in addition to the soreness in the plaintiff's wrists is still insufficient. In one unpublished opinion, the Tenth Circuit held that officers committed no constitutional violation when they handcuffed and detained for over an hour two individuals who were arrested for violating Utah's obstruction-of-justice statute. See Silvan W. v. Briggs, 309 F. App'x 216, 224 (10th Cir. 2009). One of the detainees alleged in his affidavit that he suffered chaffing and soreness of wrists, and extreme emotional trauma, as a result of being publicly displayed in handcuffs. See 309 F. App'x at 224. In holding that the arresting officers did not use excessive force, the Tenth Circuit reasoned:

309 F. App'x at 224-25 (citations and internal quotation marks omitted).

4. Overlapping Excessive-Force and Unlawful-Arrest Claims.

The Tenth Circuit has also explained:

Cortez v. McCauley, 478 F.3d at 1127. Moreover,

478 F.3d at 1126. See Smith v. Kenny, 678 F.Supp.2d 1124, 1161 (D.N.M. 2009)(Browning, J.)(noting that the finding whether the officers' use of force is "commensurate with the circumstances" depends upon whether the arrest was lawful). Thus, if it is clear that the amount of force used would have been reasonable if the detention or arrest had been appropriate, then the plaintiff can recover damages only for the unlawful arrest — including any damages that flow from the officers' use of force during the arrest — but there will be no separate excessive-use-of-force claim. See Cortez v. McCauley, 478 F.3d at 1127 (holding that a plaintiff must present evidence that the force used was more than that which would be required in effectuating a lawful arrest for the plaintiff to prevail in obtaining damages for both an unlawful arrest and the use of excessive force).

As the Court has explained:

Sisneros v. Fisher, 685 F.Supp.2d 1188, 1211 (D.N.M. 2010)(Browning, J.)(citing Cortez v. McCauley, 478 F.3d at 1126).

LAW REGARDING LIABILITY FOR CONSTITUTIONAL VIOLATIONS UNDER 42 U.S.C. § 1983

Section 1983 of Title 42 of the United States Code provides:

42 U.S.C. § 1983. "To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." West v. Atkins, 487 U.S. 42, 48 (1988). Individual, non-supervisory defendants may be liable if they knew or reasonably should have known that their conduct would lead to the deprivation of a plaintiff's constitutional rights by others, and an unforeSeeable intervening act has not terminated their liability. See Martinez v. Carson, 697 F.3d 1252, 1255 (10th Cir. 2012)("The requisite causal connection is satisfied if [the defendants] set in motion a series of events that [the defendants] knew or reasonably should have known would cause others to deprive [the plaintiffs] of [their] constitutional rights.")(quoting Trask v. Franco, 446 F.3d 1036, 1046 (10th Cir. 2006)). The Supreme Court has made clear that there is no respondeat superior liability under 42 U.S.C. § 1983. See Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)("Because vicarious liability is inapplicable to Bivens95 and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution."); Bd. of Cnty. Comm'rs v. Brown, 520 U.S. 397, 403 (1997). "An entity cannot be held liable solely on the basis of the existence of an employer-employee relationship with an alleged tortfeasor." Garcia v. Casuas, No. CIV 11-0011 JB/RHS, 2011 WL 7444745, at *25 (D.N.M. Dec. 8, 2011)(Browning, J.)(citing Monell v. Dep't of Soc. Servs., 436 U.S. 658, 689 (1978)). Supervisors can be held liable only for their own unconstitutional or illegal policies, and not for the employees' tortious acts. See Barney v. Pulsipher, 143 F.3d 1299, 1307-08 (10th Cir. 1998).

1. Color of State Law.

"Under Section 1983, liability attaches only to conduct occurring `under color of law.'" Gallagher v. Neil Young Freedom Concert, 49 F.3d 1442, 1447 (10th Cir. 1995). The under-color-of-state-law requirement is a "jurisdictional requisite for a § 1983 action, which . . . furthers the fundamental goals of preserving an area of individual freedom by limiting the reach of federal law . . . and avoiding imposing on the state, its agencies or officials, responsibility for conduct for which they cannot fairly be blamed." Jojola v. Chavez, 55 F.3d 488, 492 (10th Cir. 1995). "The traditional definition of acting under color of state law requires that the defendant in a § 1983 action have exercised power `possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.'" West v. Atkins, 487 U.S. at 49 (quoting United States v. Classic, 313 U.S. 299, 326 (1941)). "The authority with which the defendant is allegedly `clothed' may be either actual or apparent." Jojola v. Chavez, 55 F.3d at 493. Accordingly, at a base level, to find that an action was taken under color of state law, the court must find that "`the conduct allegedly causing the deprivation of a federal right' must be `fairly attributable to the State.'" Gallagher v. Neil Young Freedom Concert, 49 F.3d at 1447 (quoting Lugar v. Edmonson Oil Co., 457 U.S. 922, 937 (1982)).

In the context of a public employee, the Tenth Circuit has directed that, while "`state employment is generally sufficient to render the defendant a state actor . . . . [,]' at the same time, it is `well settled that an otherwise private tort is not committed under color of law simply because the tortfeasor is an employee of the state.'" Jojola v. Chavez, 55 F.3d at 493 (quoting Lugar v. Edmonson Oil Co., 457 U.S. at 935-36 n.18; Mark v. Borough of Hatboro, 51 F.3d 1137, 1150 (3d Cir. 1995)). Thus, "before conduct may be fairly attributed to the state because it constitutes action `under color of state law,' there must be `a real nexus' between the employee's use or misuse of their authority as a public employee, and the violation allegedly committed by the defendant." Jojola v. Chavez, 55 F.3d at 493. What constitutes the required real nexus, however, is not completely clear. As the Tenth Circuit has stated, whether there is a real nexus in a particular case depends on the circumstances:

David v. City & Cnty. of Denver, 101 F.3d 1344, 1353 (10th Cir. 1996)(internal citations omitted)(quoting Martinez v. Colon, 54 F.3d 980, 986 (1st Cir. 1995)).

2. Individual Liability.

Government actors may be liable for the constitutional violations that another committed, if the actors "set in motion a series of events that the defendant knew or reasonably should have known would cause others to deprive the plaintiff of her constitutional rights," thus establishing the "requisite causal connection" between the government actor's conduct and a plaintiff's constitutional deprivations. Trask v. Franco, 446 F.3d 1036, 1046 (10th Cir. 2006). The Tenth Circuit has explained that § 1983 liability should be "`read against the background of tort liability that makes a man responsible for the natural consequences of his actions.'" Martinez v. Carson, 697 F.3d at 1255 (quoting Monroe v. Pape, 365 U.S. 167, 187 (1961), overruled in part by Monell v. Dep't of Soc. Servs., 436 U.S. at 663). "Thus, Defendants are liable for the harm proximately caused by their conduct." Martinez v. Carson, 697 F.3d at 1255 (citing Trask v. Franco, 446 F.3d at 1046). As the Court has previously concluded, "a plaintiff who establishes liability for deprivations of constitutional rights actionable under 42 U.S.C. § 1983 is entitled to recover compensatory damages for all injuries suffered as a consequence of those deprivations. The recovery should be guided by common-law tort principles — including principles of causation . . . ." Train v. City of Albuquerque, 629 F.Supp.2d 1243, 1251 (D.N.M. 2009)(Browning, J.).

The Tenth Circuit has found liability for those defendants who proximately caused an injury complained-of under § 1983 and stated that the fact that the "conduct of other people may have concurrently caused the harm does not change the outcome as to [the defendant]," so long as there was not a superseding-intervening cause of a plaintiff's harm. Lippoldt v. Cole, 468 F.3d 1204, 1220 (10th Cir. 2006).

Trask v. Franco, 446 F.3d at 1046. Thus, in the context of a claim under the Fourth Amendment, the Tenth Circuit has held that government actors "may be held liable if the further unlawful detention and arrest would not have occurred but for their conduct and if there were no unforeseeable intervening acts superseding their liability." Martinez v. Carson, 697 F.3d at 1255. The Tenth Circuit gave an example of a superseding intervening cause, quoting the Honorable Samuel J. Alito, then-Circuit Judge for the United States Court of Appeals for the Third Circuit, now-Associate Justice for the Supreme Court:

Trask v. Franco, 446 F.3d at 1046 (quoting Bodine v. Warwick, 72 F.3d at 400). Additionally, "[f]oreseeable intervening forces are within the scope of the original risk, and . . . will not supersede the defendant's responsibility." Trask v. Franco, 446 F.3d at 1047 (quoting William Lloyd Prosser et al., Prosser and Keeton on Torts § 44, at 303-04 (5th ed. 1984)). If

Trask v. Franco, 446 F.3d at 1047 (citing Restatement (Second) of Torts § 453 cmt.b (1965)).

3. Supervisory Liability.

The Tenth Circuit has held that supervisors are not liable under 42 U.S.C. § 1983 unless there is "`an affirmative link . . . between the constitutional deprivation and either the supervisor's personal participation, [] exercise of control or direction, or [] failure to supervise.'" Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009)(quoting Green v. Branson, 108 F.3d 1296, 1302 (10th Cir. 1997))(internal alterations omitted). Because supervisors can be held liable only for their own constitutional or illegal policies, and not for the torts that their employees commit, supervisory liability requires a showing that such policies were a "deliberate or conscious choice." Barney v. Pulsipher, 143 F.3d at 1307-08 (citations omitted)(internal quotation marks omitted). Cf. Bd. of Cnty. Comm'rs v. Brown, 520 U.S. at 404 ("[I]t is not enough for a § 1983 plaintiff merely to identify conduct properly attributable to the municipality. The plaintiff must also demonstrate that, through its deliberate conduct, the municipality was the `moving force' behind the injury alleged." (emphasis in original)).

The Tenth Circuit has recognized that Ashcroft v. Iqbal limited, but did not eliminate, supervisory liability for government officials based on an employee's or subordinate's constitutional violations. See Garcia v. Casuas, 2011 WL 7444745, at *25-*26 (citing Dodds v. Richardson, 614 F.3d 1185 (10th Cir. 2010)). The language that may have altered the landscape for supervisory liability in Ashcroft v. Iqbal is as follows: "Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution." 556 U.S. at 676. The Tenth Circuit in Dodds v. Richardson held:

614 F.3d at 1199. The Tenth Circuit noted that Ashcroft v. Iqbal "does not purport to overrule existing Supreme Court precedent," but stated that "Iqbal may very well have abrogated § 1983 supervisory liability as we previously understood it in this circuit in ways we do not need to address to resolve this case." Dodds v. Richardson, 614 F.3d at 1200. It concluded that Ashcroft v. Iqbal did not alter "the Supreme Court's previously enunciated § 1983 causation and personal involvement analysis." Dodds v. Richardson, 614 F.3d at 1200. The Tenth Circuit, based on this conclusion, set forth a test for supervisory liability under § 1983 after Ashcroft v. Iqbal:

Dodds v. Richardson, 614 F.3d at 1199-1200 (citing Summum v. City of Ogden, 297 F.3d 995, 1000 (10th Cir. 2002)). The Tenth Circuit noted, however: "We do not mean to imply that these are distinct analytical prongs, never to be intertwined." 614 F.3d at 1200 n.8. Relying on the Supreme Court's opinion in Bd. of Cnty. Comm'rs v. Brown, the Tenth Circuit reasoned that two of the prongs often, if not always, are sufficient proof that the third prong has been met also:

Dodds v. Richardson, 614 F.3d at 1200 n.8 (quoting Bd. of Cnty. Comm'rs v. Brown, 520 U.S. at 404-05)(internal quotation marks omitted). The Tenth Circuit noted that "[w]e think the same logic applies when the plaintiff sues a defendant-supervisor who promulgated, created, implemented or possessed responsibility for the continued operation of a policy that itself violates federal law." Dodds v. Richardson, 614 F.3d at 1200 n.8. Thus, the Tenth Circuit reduced the test to what can be seen as a two-part test for supervisor liability, requiring the plaintiff to prove "an `affirmative' link . . . between the unconstitutional acts by their subordinates and their `adoption of any plan or policy . . . — express or otherwise — showing their authorization or approval of such misconduct.'" Dodds v. Richardson, 614 F.3d at 1200-01 (quoting Rizzo v. Goode, 423 U.S. 362, 371 (1976)).

4. Municipal Liability.

A municipality will not be held liable under § 1983 solely because its officers inflicted injury. See Graves v. Thomas, 450 F.3d 1215, 1218 (10th Cir. 2006). Rather, to establish municipal liability under § 1983, a plaintiff must demonstrate: (i) that an officer committed an underlying constitutional violation; (ii) that a municipal policy or custom exists; and (iii) that there is a direct causal link between the policy or custom and the injury alleged. See Graves v. Thomas, 450 F.3d at 1218. When a claim is brought against a municipality for failing to train its officers adequately, the plaintiff must show that the municipality's inaction was the result of deliberate indifference to the rights of its inhabitants. See Graves v. Thomas, 450 F.3d at 1218.

LAW REGARDING QUALIFIED IMMUNITY

Qualified immunity recognizes the "need to protect officials who are required to exercise their discretion and the related public interest in encouraging the vigorous exercise of official authority." Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982). "Qualified immunity protects federal and state officials from liability for discretionary functions, and from `the unwarranted demands customarily imposed upon those defending a long drawn-out lawsuit.'" Roybal v. City of Albuquerque, No. CIV 08-0181, 2009 WL 1329834, at *10 (D.N.M. Apr. 28, 2009)(Browning, J.)(quoting Siegert v. Gilley, 500 U.S. 226, 232 (1991)). The Supreme Court deems it "untenable to draw a distinction for purposes of immunity law between suits brought against state officials under § 1983 and suits brought directly under the Constitution against federal officials." Butz v. Economou, 438 U.S. 478, 504 (1978). "The qualified immunity analysis is the same whether the claims are brought under Bivens or pursuant to the post-Civil War Civil Rights Acts." Breidenbach v. Bolish, 126 F.3d 1288, 1291 (10th Cir. 1997), overruled on other grounds as recognized in Currier v. Doran, 242 F.3d 905 (10th Cir. 2001).

Camreta v. Green, 131 S.Ct. 2020, 2030-31 (2011).

Issues of qualified immunity are best resolved at the "earliest possible stage in litigation." Pearson v. Callahan, 555 U.S. 223, 232 (2009)(quoting Hunter v. Bryant, 502 U.S. 224, 227 (1991)(per curiam)). "If qualified immunity is to mean anything, it must mean that public employees who are just doing their jobs are generally immune from suit." Lewis v. Tripp, 604 F.3d 1221, 1230 (10th Cir. 2010).

Qualified immunity shields government officials from liability where "their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Pearson v. Callahan, 555 U.S. at 231 (quoting Harlow v. Fitzgerald, 457 U.S. at 818). Qualified immunity also shields officers who have "reasonable, but mistaken beliefs," and operates to protect officers from the sometimes "hazy border[s]" of the law. Saucier v. Katz, 533 U.S. at 205. When a defendant asserts qualified immunity, the plaintiff must demonstrate: (i) that the defendant's actions violated his or her constitutional or statutory rights; and (ii) that the right was clearly established at the time of the alleged misconduct. See Riggins v. Goodman, 572 F.3d 1101, 1107 (10th Cir. 2009).

1. Procedural Approach to Qualified Immunity.

The Supreme Court recently revisited the proper procedure for lower courts to evaluate a qualified immunity defense. In Pearson v. Callahan, the Supreme Court held that lower courts "should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances of the particular case at hand." 555 U.S. at 236. The Supreme Court also noted that, while no longer mandatory, the protocol outlined in Saucier v. Katz — by which a court first decides if the defendant's actions violated the constitution, and then the court determines if the right violated was clearly established — will often be beneficial. See Pearson v. Callahan 555 U.S. at 241. In rejecting the prior mandatory approach, the Supreme Court recognized that "[t]here are cases in which it is plain that a constitutional right is not clearly established but far from obvious whether in fact there is such a right," and that such an approach burdens district court and courts of appeals with "what may seem to be an essentially academic exercise." 555 U.S. at 237. The Supreme Court also recognized that the prior mandatory approach "departs from the general rule of constitutional avoidance and runs counter to the older, wiser judicial counsel not to pass on questions of constitutionality unless such adjudication is unavoidable." 555 U.S. at 241 (alterations omitted)(internal quotation marks omitted). See Reichle v. Howards, 132 S.Ct. 2088, 2093 (2012) (affirming Pearson v. Callahan's procedure and noting that deciding qualified immunity issues on the basis of a right being not "clearly established" by prior case law "comports with our usual reluctance to decide constitutional questions unnecessarily"). Once the plaintiff establishes an inference that the defendant's conduct violated a clearly established constitutional right, a qualified immunity defense generally fails. See Cannon v. City & Cnty. of Denver, 998 F.2d 867, 870-71 (10th Cir. 1993).

The Supreme Court recognizes seven circumstances where district courts should proceed directly to and "should address only" the clearly established prong of the qualified immunity analysis: when (i) the first, constitutional violation question "is so factbound that the decision provides little guidance for future cases"; (ii) "it appears that the question will soon be decided by a higher court"; (iii) deciding the constitutional question requires "an uncertain interpretation of state law"; (iv) "qualified immunity is asserted at the pleading stage" and "the precise factual basis for the . . . claim . . . may be hard to identify"; (v) tackling the first element "may create a risk of bad decisionmaking" because of inadequate briefing; (vi) discussing both elements risks "bad decisionmaking," because the court is firmly convinced the law is not clearly established and is thus inclined to give little thought to the existence of the constitutional right; or (vii) the doctrine of "constitutional avoidance" suggests the wisdom of passing on the first constitutional question when "it is plain that a constitutional right is not clearly established but far from obvious whether in fact there is such a right." Kerns v. Bader, 663 F.3d 1173, 1180-81 (10th Cir. 2011) (quoting Pearson v. Callahan, 555 U.S. at 236-42). Regarding the last of these seven circumstances, the Supreme Court has clarified that courts may "avoid avoidance" and address the first prong before the second prong in cases involving a recurring fact pattern, where guidance on the constitutionality of the challenged conduct is necessary and the conduct is likely only to face challenges in the qualified immunity context. Camreta v. Greene, 131 S. Ct. at 2031-32. See Kerns v. Bader, 663 F.3d at 1181.96 "Courts should think carefully before expending `scarce judicial resources' to resolve difficult and novel questions of constitutional or statutory interpretation that will `have no effect on the outcome of the case.'" Ashcroft v. alKidd, 131 S.Ct. 2074, 2080 (2011) (quoting Pearson v. Callahan, 555 U.S. 223, 236-37 (2009)). See Camreta v. Greene, 131 S. Ct. at 2032 ("In general, courts should think hard, and then think hard again, before turning small cases into large ones.").97 The Tenth Circuit will remand a case to the district court for further consideration when the district court has given cursory treatment to the clearly established prong of the qualified immunity analysis. See Kerns v. Bader, 663 F.3d at 1182.

2. Clearly Established Rights in the Qualified Immunity Analysis.

In evaluating whether the right was clearly established, a district court considers whether the right was sufficiently clear that a reasonable government employee in the defendant's shoes would understand that what he or she did violated that right. See Casey v. W. Las Vegas Indep. Sch. Dist., 473 F.3d 1323, 1327 (10th Cir. 2007). "A clearly established right is generally defined as a right so thoroughly developed and consistently recognized under the law of the jurisdiction as to be `indisputable' and `unquestioned.'" Lobozzo v. Colo. Dep't of Corr., 429 F. App'x 707, 710 (10th Cir. 2011)(unpublished) (quoting Zweibon v. Mitchell, 720 F.2d 162, 172-73 (D.C. Cir. 1983)).

"Ordinarily, in order for the law to be clearly established, there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains." Currier v. Doran, 242 F.3d 905, 923 (10th Cir. 2001). On the other hand, the Supreme Court has observed that it is generally not necessary to find a controlling decision declaring the "very action in question . . . unlawful." Anderson v. Creighton, 483 U.S. 635, 640 (1987). "In determining whether the right was `clearly established,' the court assesses the objective legal reasonableness of the action at the time of the alleged violation and asks whether `the contours of the right [were] sufficiently clear that a reasonable official would understand that what he is doing violates that right.'" Holland ex rel. Overdorff v. Harrington, 268 F.3d 1179, 1186 (10th Cir. 2001)(alteration in original) (quoting Saucier v. Katz, 533 U.S. at 202). A court should inquire "whether the law put officials on fair notice that the described conduct was unconstitutional" rather than engage in "a scavenger hunt for cases with precisely the same facts." Pierce v. Gilchrist, 359 F.3d 1279, 1298 (10th Cir. 2004).

The Supreme Court has clarified that the clearly established prong of the qualified immunity test is a very high burden for the plaintiff: "A Government official's conduct violates clearly established law when, at the time of the challenged conduct, the contours of a right are sufficiently clear that every reasonable official would have understood that what he is doing violates that right." Ashcroft v. al-Kidd, 131 S. Ct. at 2083. "In other words, `existing precedent must have placed the statutory or constitutional question beyond debate.'" Reichle v. Howards, 132 S. Ct. at 2093 (quoting Ashcroft v. al-Kidd, 131 S. Ct. at 2083). While a case directly on point is not required, the Supreme Court has held that "existing precedent must have placed the statutory or constitutional question beyond debate." Ashcroft v. al-Kidd, 131 S. Ct. at 2083. "The operation of this standard, however, depends substantially upon the level of generality at which the relevant `legal rule' is to be identified." Anderson v. Creighton, 483 U.S. at 639. "The general proposition, for example, that an unreasonable search or seizure violates the Fourth Amendment is of little help in determining whether the violative nature of particular conduct is clearly established." Ashcroft v. al-Kidd, 131 S. Ct. at 2084. The level of generality at which the legal rule is defined is important, because qualified immunity shields officers who have "reasonable, but mistaken beliefs" as to the application of law to facts and operates to protect officers from the sometimes "hazy border[s]" of the law. Saucier v. Katz, 533 U.S. at 205.

The Tenth Circuit held in Kerns v. Bader that, although "a case on point isn't required if the impropriety of the defendant's conduct is clear from existing case law," the law is not clearly established where "a distinction might make a constitutional difference." 663 F.3d at 1188 (emphasis in original). In Kerns v. Bader, dealing with the search of a home, the Tenth Circuit explained that the relevant question "wasn't whether we all have some general privacy interest in our home," but "whether it was beyond debate in 2005 that the officers' entry and search lacked legal justification." 663 F.3d at 1183 (emphasis added). Earlier Tenth Circuit cases, clarifying the level of generality at which a legal rule must be defined, applied a sliding scale to determine when the law is clearly established. See Casey v. City of Fed. Heights, 509 F.3d 1278, 1284 (10th Cir. 2007) ("The more obviously egregious the conduct in light of prevailing constitutional principles, the less specificity is required from prior case law to clearly establish the violation."). "[W]hen an officer's violation . . . is particularly clear . . ., [the Tenth Circuit] does not require a second decision with greater specificity to clearly establish the law." Casey v. City of Fed. Heights, 509 F.3d at 1284. Furthermore, "general statements of the law are not inherently incapable of giving fair and clear warning. . . ." Hope v. Pelzer, 536 U.S. at 741.

LAW REGARDING TITLE II OF THE ADA'S APPLICATION TO ARRESTS

Title II of the ADA, 42 U.S.C. § § 12131-12165, 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 such services, programs or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132. The Tenth Circuit requires that a plaintiff prove three factors to establish a claim under Title II: (i) that he or she is a qualified individual with a disability; (ii) that he or she was either excluded from participation in or denied the benefits of some public entity's services, programs, or activities, or the public entity otherwise discriminated against the plaintiff; and (iii) that such exclusion, denial of benefits, or discrimination was by reason of the plaintiff's disability. See Gohier v. Enright, 186 F.3d 1216, 1219 (10th Cir. 1999) (explaining that this general standard, which tracks the language of the statute, is "plainly correct"). "Although a plaintiff may claim intentional discrimination, the Tenth Circuit has not yet articulated the essential elements of a claim of intentional discrimination under Title II of the ADA or detailed what a plaintiff must plead at a minimum to establish such a claim." Braverman v. New Mexico, No. CIV 11-0829 JB/WDS, 2012 WL 5378290, at * 22 (D.N.M. Sept. 26, 2012)(Browning, J.) (citing Tyler v. City of Manhattan, 118 F.3d 1400, 1405 (10th Cir. 1997)(Jenkins, J., dissenting); Young v. City of Claremore, O.K., 411 F.Supp.2d 1295, 1314 (N.D. Okla. 2005)).

In Gohier v. Enright, the Tenth Circuit addressed Title II's application to police conduct. In that case,

Gohier v. Enright, 186 F.3d 1216, 1217-18 (10th Cir. 1999).

The Tenth Circuit first recognized the two theories under which federal courts have addressed claims under the ADA arising from arrests:

Gohier v. Enright, 186 F.3d at 1220-21. The Tenth Circuit rejected "a broad rule categorically excluding arrest from the scope of Title II," stating that "[i]t 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." 186 F.3d at 1221.

The Tenth Circuit held that Enright did not violate the ADA:

Gohier v. Enright, 186 F.3d at 1221-22 (footnotes omitted). In a footnote, the Tenth Circuit suggested that, under Colorado law, Lucero might have been able to escape criminal responsibility by pleading insanity. See 186 F.3d at 1222 n.4.

The United States Court of Appeals for the Fourth Circuit recently confirmed Gohier v. Enright's understanding of the claims that plaintiffs may bring under Title II in the arrest context:

Waller ex rel Estate of Hunt v. Danville, 556 F.3d 171, 174 (4th Cir. 2009)(Wilkinson, J.).

1. Wrongful Arrest Under the ADA.

"The essence of [the wrongful arrest] theory is that the police mistake legal conduct caused by the disability as illegal conduct." Glover v. City of Wilmington, 966 F.Supp.2d 417, 428-29 (D. Del. 2013)(Andrews, J.). Under this theory, a plaintiff must establish three elements: (i) the plaintiff was disabled; (ii) the arresting officers knew or should have known that the plaintiff was disabled; and (iii) the defendant arrested the plaintiff because of legal conduct related to the plaintiff's disability. See, e.g., Lewis v. Truitt, 960 F.Supp. 175, 178 (S.D. Ind. 1997)(Godich, M.J.) ("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 he was disabled, and (3) the defendants arrested him because of legal conduct related to his disability.").

Although the second element — that the officer knew or should have known that the plaintiff was disabled — sometimes gets lost in the more general articulation of the test, the element was vital to the outcome in the leading cases on which the Tenth Circuit relied. For example, Lewis v. Truitt, on which the Tenth Circuit relied in Gohier v. Enright, see 186 F.3d at 1221, presented the following facts:

960 F. Supp. at 176-77 (citation omitted). The Honorable John Paul Godich, United States Magistrate Judge of the United States District Court for the Southern District of Indiana, allowed the claim to go forward, explaining:

960 F. Supp. at 178-79 (citation omitted).

Similarly, in Jackson v. Inhabitants of Town of Sanford — on which the Tenth Circuit also relied in Gohier v. Enright, see 186 F. 3d at 1221 — the arresting officer had reason to know that the plaintiff was disabled:

Jackson v. Inhabitants of Town of Sanford, 1994 WL 589617, at *1 (footnote omitted). The Honorable D. Brock Hornby, United States District Judge for the United States District Court for the District of Maine, allowed an ADA claim to proceed; the analysis on this issue is somewhat truncated, because the defendant Town of Sanford argued only that Title II of the ADA did not apply and that only the Fourth Amendment law controlled this area. See 1994 WL 589617, at *6. Judge Hornby explained:

1994 WL 589617, at *6 (footnote omitted). Even still, the case is fully consistent with the principle that, for a plaintiff to have a wrongful-arrest claim under Title II, the arresting officer must know or have reason to know that the arrestee is disabled.

In Sperry v. Maes, No. 10-CV-03171-RPM, 2013 WL 4365784 (D. Colo. July 10, 2013), the Honorable Richard P. Matsch, United States District Judge for the United States District Court for the District of Colorado, rejected a wrongful-arrest claim where the plaintiff asserted that, because of his disability, he did not have the requisite culpable state of mind. That case presented the following facts:

Sperry v. Maes, 2013 WL 3465784, at *1-2. Judge Matsch analyzed the ADA claim as follows:

Sperry v. Maes, 2013 WL 3465784, at *5-*6.

2. Reasonable Accommodation During Arrest.

"The essence of [the reasonable accommodation during arrest] theory is that once the police have a situation under control, the police have a duty to accommodate a disability." Glover v. City of Wilmington, 96 F. Supp. 2d at 429. The seminal case in this area is the decision of the United States Court of Appeals for the Eighth Circuit in Gorman v. Bartch. In that case, a wheelchair-bound man, Gorman, tried to enter a bar's dance floor; a bar employee denied him access to the dance floor, pulled his wheelchair up the steps down to the dance floor, and evicted him from the bar. See Gorman v. Bartch, 152 F.3d at 909. The wheelchair-bound man told two nearby police officers what happened; he argued with them, and "they eventually arrested him for trespassing and called for transportation to take him to the police station." 152 F. 3d at 909.

152 F.2d at 909. The Eighth Circuit held that Gorman has a good a Title II claim, explaining:

Gorman v. Bartch, 152 F.3d at 912-13 (footnote omitted).

3. The Unclear Status of Failure-to-Train Claims.

It seems reasonably clear, however, that in the absence of proof of an underlying violation of ADA, a failure-to-train claim would also fail:

Waller ex rel. Estate of Hunt v. Danville, 556 F.3d at 177 n.3. See also Bates ex rel. Johns v. Chesterfield Cnty., 216 F.3d 367, 373 (4th Cir. 2000)(Wilkinson, C.J.) ("As the officers did not discriminate against Bates by reason of his disability, Bates' additional ADA claim that the County failed to adequately train its officers also fails.").

ANALYSIS

The Court will grant the MSJ. The Court first concludes that the Sharkey is entitled to qualified immunity, because he did not violate J.P.'s Fourth Amendment right to be free from the use of excessive force, and because he did not violate any clearly established right. The Court next concludes that summary judgment is appropriate as to the ADA claims, because no County Defendant deprived J.P. of any right that the ADA protects.

I. SHARKEY IS ENTITLED TO QUALIFIED IMMUNITY, BECAUSE HE DID NOT VIOLATE J.P.'S CONSTITUTIONAL RIGHTS, AND BECAUSE, IN THE ALTERNATIVE, ANY RIGHT THAT HE VIOLATED WAS NOT CLEARLY ESTABLISHED ON SEPTEMBER 26, 2011.

The Court concludes that Sharkey is entitled to qualified immunity, because he did not violate J.P.'s constitutional right to be free from the use of excessive force — much less any clearly established constitutional right — when he handcuffed her incident to a lawful arrest. Despite the Plaintiffs' contrary insistence, Sharkey lawfully arrested J.P., and, given that he had probable cause to conclude that she had recently committed a violent offense, his decision to handcuff her, for his and others' safety, was objectively reasonable. Moreover, even if Sharkey violated J.P.'s constitutional rights, he violated no clearly established law. Accordingly, summary judgment is appropriate as to the excessive-force claim.

A largely undefended assumption underlies the Plaintiffs' briefing: that J.P.'s disability rendered her categorically incapable of forming general intent. No evidence supports that assumption. As background information about how New Mexico understands intent, it is useful to look, not to the recursive series of alternate definitions that the Plaintiffs discussed in their briefing, see Response at 22, but instead to a statement of New Mexico law: the Uniform Jury Instructions.98 The general criminal intent instruction provides:

NMRA, Crim. UJI 14-141 (footnotes omitted).99 See State v. Gonzales, 2005-NMCA-031, ¶ 23, 137 N.M. 107, 107 P.3d 547, ("general intent is only the intention to make the bodily movement which constitutes the act which the crime requires" (internal quotation marks omitted)). See also United States v. Miera, No. CR 12-3111 JB, 2013 WL 6504297, at *16 (D.N.M. Nov. 22, 2013)(Browning, J.) (discussing New Mexico law on general intent). That is, all the state needs to show to satisfy the general intent instruction is that a person purposely did an act. Even with the benefit of hindsight, there is no evidence that any disability J.P. has deprives her of the ability to purposely act.100

Even if the Plaintiffs' assumption were, with the benefit of evidence collected ex post during litigation, borne out, the ultimate question is not whether Sharkey's judgment was correct, but whether probable cause supported it. Ample evidence supports his judgment: minutes before Sharkey arrived, everyone concedes, J.P. attacked a fellow student and a teacher. When she saw Sharkey, she slinked away into an office, held her hands in a posture to avoid handcuffing, and cried, showing both consciousness of guilt and an effort to avoid her actions' consequences. In short, Sharkey saw J.P. kick her teacher, heard what happened, and, in light of all the circumstances, concluded that J.P. had probably committed the crime. Indeed, in light of the undisputed facts before the Court, it seems likely that she committed the crime, and it is difficult to fault Sharkey for concluding likewise.101

Even if Sharkey knew all evidence then available — including evidence that federal privacy law conceals from him102 — he still would not have concluded otherwise. In fact, had Sharkey ever seen the BIP, what it reveals would only have reinforced his conclusion. Listed in her BIP is the following statement: "[J.P.] will frequently lash out at peers and adults in the classroom. This behavior manifests as cussing, throwing objects and furniture with the intent to cause harm, as well as physical and verbal aggression to cause harm to peers and/or adults." BIP at 1 (emphasis added). Although the statements in the BIP are not legal conclusions, they would not have dissuaded him from concluding that she could purposely act.

That J.P.'s charges were dismissed because the juvenile court found her incompetent to stand trial does not change the analysis. The Plaintiffs' conclusion does not follow, both because the legal issues of competency and intent differ and, more fundamentally, because the arrest underlying this lawsuit traumatized J.P. By the Plaintiffs' own theory, the event traumatized J.P.; by their own theory, then, it is inappropriate to infer J.P.'s pre-trauma mental condition from her post-trauma mental condition. Whether she was competent to stand trial after enduring her traumatic arrest does not mean she was incapable of purposely acting before being arrested. What is more, the issue at the Fourth Amendment stage is not whether J.P. in fact had the requisite mental state, but whether Sharkey had probable cause to conclude that she had the requisite mental state. The Court concludes that Sharkey had such probable cause.

In short, the Plaintiffs ask the Court to conclude that: (i) J.P. lacked the capacity to purposely act; (ii) Sharkey knew or should have known that J.P. had a disability which deprived her of the capacity to purposely act; and (iii) he, therefore, arrested her wrongfully. But: (i) she has identified no evidence that J.P.'s disability deprived her of the capacity to purposely act — and the evidence is strong that she purposely acted on this occasion; (ii) she has identified no evidence that Sharkey knew that she suffered from a disability that would deprive her of the capacity to purposely act; and (iii) even if he knew of the evidence that undergirded her disability — which FERPA hides from his eyes, for J.P.'s privacy's sake — that evidence would not have given him any reason to doubt that she could not purposely act. Accordingly, the Court concludes that Sharkey handcuffed J.P. pursuant to a lawful arrest. With those facts in mind, the excessive-force analysis is straightforward.103

Further, no unreasonable seizure claim is present. Under Graham v. Connor,

Graham v. Connor, 490 U.S. at 396. The Plaintiffs ask the Court to focus on that J.P. was a juvenile and that she was disabled. Those two data points matter, but other data points matter, too: this disabled or limited juvenile had, very recently, attacked both a peer and an authority figure — drawing blood in the latter case. It took two adults, one on each arm, to subdue her. Sharkey was within the Fourth Amendment's boundaries when he decided, as the undisputed facts show that he did, that, given his concern that J.P. could attempt to strike him or others, it was necessary to handcuff her. Although she did not, ultimately, actively resist arrest, that fact does not prohibit Sharkey from handcuffing her to prevent her from lashing out again. Accordingly, the amount of force used to effect the seizure was reasonable.

None of the Plaintiffs' contrary arguments is sound. First, none of the Tenth Circuit cases on which the Plaintiffs rely teaches that Sharkey's acts were unreasonable. Holland ex rel. Overdorff v. Harrington differs substantially, because that case involved officers pointing loaded guns at innocent children playing basketball near where a SWAT team would execute a search warrant:

268 F.3d at 1183-84. The Tenth Circuit explained:

268 F.3d at 1193. In context, even the case's reference to using force on children suggests only that "[p]ointing a gun directly at a child calls for" heightened "sensitivity to what may be justified or may be excessive under all the circumstances":

268 F.3d at 1192-93 (internal quotation marks and citation omitted). See Mata v. City of Farmington, 791 F. Supp. 2d at 1154-55 (discussing Holland ex rel. Overdorff v. Harrington). The Tenth Circuit included the reference to children in a discussion of another factor: whether the officer pointed the gun directly at the person or whether the officer merely readied the gun. That the target of a use of force is a child is one factor in the reasonableness calculus, but it is not the only factor. Holland ex rel. Overdorff v. Harrington is not merely distinguishable, but entirely different: it involved pointing firearms directly at entirely innocent children who happened to be in the wrong place at the wrong time — not handcuffing a child who had recently, to the officer's eyes, violently attacked a peer and her teacher.

Grass v. Johnson is also not to the contrary. As alleged in that case, a police officer handcuffed a driving-under-the-influence suspect, fastened the suspect's seatbelt in the patrol car, and "punched [the suspect] in the face, giving him a black eye." 322 F. App'x at 587. It is in that context that the Tenth Circuit resisted a reading of its precedent that would "implicitly sanction[] an officer's use of force, albeit resulting in only minor injury, that was wholly unnecessary to carry out the arrest." 322 F. App'x at 589 (emphasis added). Further, the Tenth Circuit specifically noted that, taking the plaintiff's facts as true, the officer's "use of force came after [the plaintiff] was subdued and not posing a threat to anyone." 322 F. App'x at 590. Punching someone in the face after he is handcuffed and secured in a patrol vehicle is unnecessary to arrest that person; that situation differs in magnitude from handcuffing J.P. only a few minutes after J.P. had attacked a peer and her teacher. Further, J.P. had not yet been "subdued"; indeed, J.H. complains about the act of subduing her. Grass v. Johnson does not, therefore, dictate a contrary result.

Manzanares v. Higdon does not, as the Plaintiffs assert, support the proposition that "the Tenth Circuit has . . . clearly established that a person must clearly be dangerous and a threat to the officer to justify handcuffing." Response at 9. That case states that, based on Tenth Circuit law, "any reasonable officer would understand that it is unconstitutional to handcuff someone absent probable cause or an articulable basis to suspect a threat to officer safety combined with reasonable suspicion." Manzanares v. Higdon, 575 at 1150 (emphasis added). Accordingly, threats to officer safety are not necessary to justify handcuffing. As the Court has already explained, Sharkey had probable cause to arrest J.P. What is more, although Sharkey expressly disclaimed reliance on a reasonable suspicion theory — evidently believing it unnecessary, given that he had probable cause to arrest — because J.P. had recently harmed a peer and an adult, Sharkey had reasonable suspicion coupled with a threat to his safety.

Although the discussion about J.P.'s emotional damages evokes sympathy, it does not alter the excessive-force outcome. Although the Court agrees that "[p]hysical contact is not required for an excessive force claim — patently unreasonable conduct is," Cortez v. McCauley, 478 at 1131, pointing out as much leaves the Court in the same place: answering the antecedent question whether Sharkey used objectively unreasonable force. That question's answer does not depend on whether his use of objectively reasonable force upset J.P., even severely. Indeed, the contrary rule would have perverse consequences: if an excessive force claim would lie every time an arrestee complained that being properly arrested and properly handcuffed upset him, there would be no end to excessive force cases. Although Sharkey's arrest and handcuffing of J.P. has injured her, in the sense that she suffers from it, her suffering does not make his otherwise reasonable arrest and handcuffing of J.P. excessive force.

The discussion about New Mexico law is also of no help to the Plaintiffs' cause. First, the Court notes that the Plaintiffs misread qualified immunity law. They quote the following language from Hope v. Pelzer for the undisputed proposition that qualified immunity shields police officers from damages unless they violated "`clearly established statutory or constitutional rights of which a reasonable person would have known.'" Response at 9 (quoting Hope v. Pelzer, 536 U.S. at 739)(emphasis in Response, but not in Hope v. Pelzer)(internal quotation marks omitted). From this argument, the Plaintiffs suggest that, so long as Sharkey violated some clearly established statutory right x, Sharkey can be held liable for violating constitutional right y: "In this case, J.P. has a clearly established statutory right through the Children's Code which must be considered when determining whether Defendant Sharkey's actions were objectively reasonable." Response at 9. That reading of qualified immunity is wrong: the Plaintiffs seek recovery for an alleged Fourth Amendment violation; the relevant body of law for determining whether the alleged Fourth Amendment right was clearly established is Fourth Amendment law. The Plaintiffs cannot end run qualified immunity by locating a state statute, asserting that J.P. had clearly established rights under that statute, asserting that Sharkey violated that right, importing that right into Fourth Amendment law, and stating that, therefore, Sharkey violated clearly established Fourth Amendment law and is not entitled to qualified immunity. It is true, of course, that state law is not wholly irrelevant in all Fourth Amendment cases. See United States v. Mikulski, 317 F.3d at 1232 ("`[T]he question of compliance with state law may well be relevant in determining whether police conduct was reasonable for Fourth Amendment purposes.'" (quoting United States v. Baker, 16 F.3d at 856 n.1)). That said, an "officer['s] violation of state law is not, without more, necessarily a federal constitutional violation." United States v. Mikulski, 317 F.3d at 1232. It is simply a non sequitur to, as the Plaintiffs suggest, equate every "clearly established" statutory right with a "clearly established" Fourth Amendment right.104

What is more, the Plaintiffs have not pointed to any state law that Sharkey violated. The Plaintiffs first cite this statement from the "[p]urpose of act" portion of the Delinquency Act:

The purpose of the Delinquency Act is:

N.M. Stat. Ann. § 32A-2-2(A). The Plaintiffs ask the Court to conclude that Sharkey violated this statement of purpose, because "[h]andcuffing J.P. was an adult consequence to her alleged crime, not a child's consequence." Response at 10. First, the argument begs the question: the very thing disputed is whether handcuffing was an appropriate consequence for J.P., or a consequence that only adults should endure. Second, the Plaintiffs' quote of this statute is selective: they begin the quote at the words "to remove from children committing delinquent acts the adult consequences of criminal behavior," Response at 9 (quoting N.M. Stat. Ann. § 32A-2-2(A)), omitting the qualifying introductory phrase "consistent with the protection of the public interest," N.M. Stat. Ann. § 32A-2-2(A) (emphasis added). It is not consistent with the protection of the public interest to immunize children from all consequences of criminal behavior that adults might also endure. Third, the Plaintiffs' broad reading of the statement of purpose makes no sense, given that the body of the act imposes penalties a version of which adults also endure. To pick just two: (i) it explains that "[a] child may be taken into custody . . . pursuant to the laws of arrest for commission of a delinquent act," N.M. Stat. Ann. 32A-2-2(A) — adults are taken into custody, too; and (ii) it provides for detention of children, see N.M. Stat. Ann. § 32A-2-12 — adults are detained, too. Fourth, and probably most important, such broadly worded statements of purpose, although relevant for determining legislative intent, do not create legal rights and liabilities of their own force. The Plaintiffs' attempt to turn this legislative throat clearing into a concrete right that Sharkey violated fails on its own terms — as does their attempt to turn that concrete right into clearly established Fourth Amendment law.

The Plaintiffs' argument under the Children's Mental Health and Developmental Disabilities Act also fails, but for a different reason. The Plaintiffs quote the following two sentences: "Restraint and seclusion as provided for in this section is not considered treatment. It is an emergency intervention to be used only until the emergency ceases." N.M. Stat. Ann. § 32A-6A-9. The Plaintiffs ask the Court to conclude that these sentences prohibit "Sharkey from using handcuffs, or otherwise restraining, children like J.P. unless there is an emergency." Response at 11. The Plaintiffs skipped over six words in that quote: "as provided for in this section." N.M. Stat. Ann. § 32A-6A-9. The statute's "[r]ights related to treatment and habilitation" "apply to a child who is physically present and receiving treatment or habilitation services in New Mexico." N.M. Stat. Ann. at 32A-6A-6. J.P. is not such a child.105 Further, the next subsection of the statute details the "[r]estraint and seclusion" of which the quoted language speaks, see N.M. Stat. Ann. § 62A-6A-10, and the context of which that subsection speaks is the mental-health-treatment context and not the criminal-justice context. Sharkey did not restrain or seclude J.P. under that subsection as a treatment method; he "restrained" her, in the common sense of the term, using handcuffs because she had recently committed a violent act. The Children's Mental Health and Developmental Disabilities Act has nothing to say about this event.

In short, the Plaintiffs' attempted reworking of qualified immunity law fails. First, the Plaintiffs misunderstand the role of state law in developing clearly established law; the state statutory sections on which she relies do not alter Fourth Amendment law's contours. Second, even if the Plaintiffs could generate clearly established Fourth Amendment law by pointing to disparate state statutes that Sharkey might have violated, Sharkey did not violate the statutes on which the Plaintiffs rely.

As the Court has explained, none of the cases or statutes that the Plaintiffs cite are on point; at most, in the aggregate, they stand for the proposition that the state should treat children well. That obvious point is not enough to make it clearly established that an officer who learns that a child — even a disabled child — had recently violently attacked a fellow student and her teacher, drawing blood in the latter instance, cannot arrest and handcuff that child. The Court concludes that Sharkey did not violate J.P.'s constitutional right to be free from excessive force.

Further, in the alternative, the Court concludes that Sharkey did not violate any clearly established constitutional right. The Tenth Circuit interprets qualified immunity's clearly established law prong rigorously, indicating that, where "a distinction [between cases] might make a constitutional difference," the law is not clearly established. Kerns v. Bader, 663 at 1187 (emphasis in original). The Plaintiffs have not identified any case similar to this one that reach the result they seek. Accordingly, Sharkey did not violate clearly established law, and is entitled to qualified immunity on the Plaintiffs' Fourth Amendment excessive force claim. Summary judgment is, therefore, appropriate.

II. SUMMARY JUDGMENT IS APPROPRIATE AS TO THE ADA CLAIMS.

The Court concludes that summary judgment is appropriate as to each of the Plaintiffs' ADA claims. Although the Court concludes that plaintiffs may bring both a wrongful-arrest claim and a reasonable-accommodation-during-arrest claim under the ADA, the evidence supports neither claim. Further, because there has been no underlying ADA violation, and because there is no evidence of deliberate indifference, the failure-to-train claim must also fail.

Before delving into the evidence for the ADA claims, the Court first will lay out the two purported ADA claims as they appear in the Complaint. First, under the label "Violation of ADA in Criminalizing Disabilities and Suspending Children for Manifestations of Disabilities," Complaint at 8 (capitalization and emphasis altered for readability), the Plaintiffs allege as follows:

Complaint ¶¶ 57-56 [sic], at 10.

In light of applicable law, the Complaint is muddled: it refers to facts that are irrelevant to an ADA claim, and it does not cleanly recite the elements of the Title II claims arising out of arrests that courts have recognized. The first claim refers to suspensions — and that reference does not connect to any factual allegation in the Complaint's body — and alludes to a right "to a free public education and to be free of unnecessary restraints and to be free of unnecessary transportation of students from public school," Complaint ¶ 51, at 9; whatever the validity of that assertion about educational rights, those are not rights that the ADA, which bars discrimination and benefit deprivation based on disability, protects, at least as against Bernalillo County. Bernalillo County would be the wrong defendant for a claim about school policies and actions: under New Mexico law, it is the local school board that adopts educational policies for a school district and that has the capacity to sue and be sued. See N.M. Stat. Ann. § 22-5-4(E). The Plaintiffs recognize as much: in their Response, they assert that "Defendant County is not an educational institution, nor are there any statutory administrative procedures for them to their discrimination claim against Bernalillo County." Response at 13. With that statement, the Plaintiffs implicitly recognize that their claim is not truly about education; it is, instead, about discrimination in law enforcement. In any event, the remainder of the claim focuses entirely on the ADA, and — in substance, although not in form — suggests a wrongful arrest claim, see omplaint ¶ 53, at 9; id. ¶ 55, at 9, and a failure-to-train claim, see Complaint ¶ 54, at 9.

The second count is also confusing. Although it labels itself as a lack-of-accommodation claim, its substance is that Bernalillo County failed to train its employees with respect to wrongful arrest of the disabled and reasonable accommodation during arrest of the disabled. Further, it refers in its last paragraph to "Constitutional rights," Complaint ¶ 56, at 9, while the body of the claim is a statutory claim under the ADA.

Despite that the Complaint does not squarely lay out its facts under the applicable theories of liability, the Court can extract from it enough information that it can credibly analyze evidence as it relates to the liability theories that exist. Those claims are: a wrongful-arrest claim; a failure-to-reasonable-accommodate-during-arrest claim; and a failure-to-train claim. The Court will address each in turn.

A. THE PLAINTIFFS WERE NOT REQUIRED TO EXHAUST THEIR ADMINISTRATIVE REMEDIES UNDER THE IDEA BEFORE BRINGING THEIR ADA CLAIMS, BECAUSE THEY DO NOT SEEK RELIEF AVAILABLE UNDER THE IDEA.

Once the claims are properly constituted under applicable law, it is clear that IDEA exhaustion does not bar them, because the Plaintiffs seek relief that is not available under the IDEA. The Tenth Circuit has explained IDEA exhaustion as follows:

Fllenberg v. N.M. Military Inst., 478 F.3d 1262, 1280 (10th Cir. 2007). It also explained when this exhaustion is excused:

Ellenberg v. N.M. Military Inst, 478 F3d at 1276.

Although this case arises in an educational setting, the Plaintiffs are not challenging a local school district's provision of educational services, seeking relief that is "educational in nature," Ellenberg v. N.M. Military Inst., 748 F.3d at 1280. They are not suing the local school board — the entity in New Mexico that adopts education policies for local schools — for failing to provide the free appropriate public education that the IDEA demands; although the events occurred on a school campus, the events of which the Plaintiffs complain are Sharkey's and Bernalillo County's law enforcement actions. That is, they are suing because they think Sharkey wrongfully arrested J.P. and failed to reasonably accommodate her disability during his arrest, and because they think Bernalillo County has not trained its officers in how to interact with disabled children in an educational setting. No remedy for this violation is available under IDEA, which governs agencies that receive federal dollars under the IDEA. See 20 U.S.C. § 1415.

S.A.S. ex rel. W.S. v. Hibbing Public Schools is not to the contrary.106 To understand why, one must consider the plaintiffs' complaint in that case:

S.A.S. ex rel. W.S. v. Hibbing Pub. Schs., 2005 WL 2230415, at *4 (footnote omitted). That is, the plaintiffs in that case complained "that the City defendants acquiesced and participated in the District defendants' practice of denying special education and related services addressing S.A.S.'s disability by instituting criminal charges against S.A.S. for behavior related to his disability rather than employing measures called for or in line with his individual education plan." 2005 WL 2230415, at *2 (emphasis added). Regardless whether such a claim would be colorable, it is not a claim present here: in this case, the substance of the Complaint is not that the County Defendants deprived J.P. of special education services, but that Sharkey wrongfully arrested her or failed to accommodate her disability while he arrested her, and that Bernalillo County failed to train him in that regard. No relief for that violation is available under the ADA. Accordingly, IDEA exhaustion does not bar the Plaintiffs' claim.107

B. FACT ISSUES PRECLUDE SUMMARY JUDGMENT IN THE COUNTY DEFENDANTS' FAVOR WHETHER J.P. IS DISABLED WITHIN THE ADA'S MEANING.

Although the Court grants the MSJ, it will not grant the MSJ on the basis that J.P. is not disabled. Given the evidence that J.P. suffers from ADHD and other impairments, that her impairments substantially limit her ability to learn, and that her symptoms extend back to years before the events at issue, there is a genuine issue of material fact whether she was disabled on September 26, 2011. Accordingly, summary judgment on this basis is inappropriate.

Under Tenth Circuit law, to show that one has an actual disability under the ADA,

Doebele v. Sprint/United Mgt. Co., 342 F.3d 1117, 1129 (10th Cir. 2003).

There is no substantial dispute as to the first and second elements of the claim. First, ADHD may, in appropriate circumstances, be a recognized impairment under the ADA. See Bercovitch v. Baldwin Sch., Inc., 133 F.3d 141, 155 (1st Cir. 1998)("On the facts of a specific case, a plaintiff diagnosed with ADHD may have a mental impairment within the meaning of the statute."). Second, the Plaintiffs have identified an appropriate major life activity: learning. See Doyal v. Okla. Heart, Inc., 213 F.3d 492, 496 (10th Cir. 2000)(listing learning as a major life activity). The substantial dispute in this case is, as it usually is in ADHD cases under the ADA, whether J.P.'s impairments substantially limit her ability to learn. See, e.g., Johnson v. Sedgwick Cnty. Sheriff's Dep't, 461 F. App'x 756, 753 (10th Cir. 2012)(stating that ADHD is not a disability under the ADA where the plaintiff "provided no evidence that it substantially limited a major life activity").

The Court concludes that, viewing the evidence in the light most favorable to J.P., a jury could reasonably conclude that she was disabled within the meaning that the ADA gives that term. It is true that J.P.'s eligibility for a BIP or IEP does not, of its own force, mean that she is disabled under the ADA. See Ellenberg v. N.M. Military Inst., 572 F.3d at 824. That argument is not, however, the Plaintiffs': viewing the evidence in the light most favorable to J.P., they have identified a major life activity — learning — and have adduced evidence that J.P.'s impairments — ADHD principally among them — substantially limit that major life activity. As the Court explained above: "J.P. had a history of attention and emotional and behavioral difficulties pre-dating the arrest." Response ¶ B, at 4 (setting forth this fact). See King Depo. No. 1 at 11:22-23. As diagnosed after the event, "J.P. has Attention-Deficit/Hyperactivity Disorder, Combine Type; Mathematics Disorder; Oppositional Defiant Disorder; and Adjustment Disorder with Mixed Anxiety and Depressed Mood." Response ¶ C, at 4 (setting forth unmodified version of this fact). See King Depo. No. 2 at 13:20-25. "J.P.'s Attention-Deficit/Hyperactivity Disorder, Combine Type was onset prior to the incident at issue in this case." Response ¶ D, at 4 (setting forth this fact). See King Depo. No. 2 at 23:16-23. "In an evaluation on September 2, 2008, J.P. was exhibiting `frequent and high intensity defiant and aggressive behavior.[']" Response ¶ E, at 4 (setting forth this fact)(quoting Unidentified Report at 5). "J.P.'s evaluation also documented that J.P. was nervous, disorganized, depressed and aggressive." Response ¶ F, at 4 (setting forth this fact). See Unidentified Report at 5. "On September 9, 2008, J.P. had significant elevations on hyperactivity, aggression, depression, withdrawal, social skills, and functional communications. J.P. also had clinically significant range on conduct problems, attention problems[,] adaptability and study skills." Response ¶ G, at 4-5 (setting forth this fact). See Unidentified Report at 5-6. These sorts of activities are not, as the County Defendants suggest, "common personality traits such as poor judgment or quick temper [that] are not the symptoms of a mental or psychological disorder." Sutton v. United Air Lines, Inc., 130 F.3d at 898. That medical officials had not diagnosed her as having an impairment or disability at the time does not mean she was not, in fact, disabled at the time.

The authority that the County Defendants cite is not to the contrary. The Seventh Circuit's decisions in Krocka v. City of Chicago and Duda v. Board of Education say only that a medical condition diagnosed by a health professional qualifies as an impairment under the ADA; they do not say that all non-diagnosed conditions do not qualify as impairments under the ADA. See Krocka v. City of Chicago, 203 F.3d at 512; Duda v. Bd. of Educ., 133 F.3d at 1059. In other words, what Krocka v. City of Chicago identifies as a sufficient condition, the County Defendants try to use as a necessary condition. That usage is incorrect. Further, the Sixth Circuit's decision in Kaltenberger v. Ohio College of Podiatric Medicine stands for the proposition, explained more fully below, that a state entity "was not obligated to provide accommodation until plaintiff had provided a proper diagnosis of ADHD and requested specific accommodation," 162 F.3d at 437 (emphasis added); it does not state that she was not disabled within the ADA's meaning until a medical professional diagnosed her.

The Court suspects that the genesis of this line of argument was, in truth, that the Plaintiffs had not identified J.P.'s impairment at the time the County Defendants drafted their MSJ. See MSJ at 18 ("Plaintiffs have not even identified the impairment J.P. allegedly had as of September 26, 2011 . . . . As of September 26, 2011, the most Plaintiffs could demonstrate is that J.P. behaved poorly. J.P.'s poor behavior is insufficient to establish an impairment for purposes of the ADA."). The Plaintiffs have now, in their Response, identified J.P.'s impairments — "Attention-Deficit/Hyperactivity Disorder, Combine Type; Mathematics Disorder; Oppositional Defiant Disorder; and Adjustment Disorder with Mixed Anxiety and Depressed Mood," Response ¶ C, at 4. Although the County Defendants are entitled to argue to a jury that J.P. did not have a disability that substantially limited her ability to learn on September 26, 2011, because it had not developed at that time, the Plaintiffs have submitted evidence that the symptoms underlying J.P.'s condition extended as far back as 2008. See Response ¶ 5, at 4-5 ("On September 9, 2008, J.P. had significant elevations on hyperactivity, aggression, depression, withdrawal, social skills, and functional communications. J.P. also had clinically significant range on conduct problems, attention problems[,] adaptability and study skills.").

There is, therefore, a genuine dispute of material fact whether J.P. was disabled within the ADA's meaning. She has an impairment — ADHD and similar disorders; she has identified an appropriate major life activity — learning; she has identified evidence that, if believed, would lead a jury to conclude that her impairment substantially limits her ability to learn; and she has identified evidence that, if believed, would lead a jury to conclude that she suffered this disability on September 26, 2011. Accordingly, summary judgment on the basis that she lacked a disability within the ADA's meaning is inappropriate.

C. THE COURT WILL GRANT THE MSJ AS TO ANY CLAIM UNDER TITLE II OF THE ADA AGAINST SHARKEY IN HIS INDIVIDUAL CAPACITY, BECAUSE, AS THE PARTIES AGREE, NO SUCH CLAIM EXISTS.

The Court will grant summary judgment as to any claim under Title II of the ADA against Sharkey in his individual capacity. As the County Defendants pointed out, see MSJ at 15, there is no such claim under Title II of the ADA. See Braverman v. New Mexico, 2011 WL 6013587, at *22. The Plaintiffs implicitly recognize as much, suggesting that they assert any such claim only against Bernalillo County. See Response at 13. The Complaint is not, however, entirely clear on this point; it lists Sharkey's acts along with Bernalillo County's acts. See, e.g., Complaint ¶¶ 49-56, at 9. Accordingly, to ensure a clean record, the Court will grant summary judgment as to any Title II claim asserted against Sharkey in his individual capacity.

D. THERE ARE CLAIMS UNDER THE ADA FOR WRONGFUL ARREST AND FAILURE TO REASONABLY ACCOMMODATE A DISABILITY DURING ARREST.

The Court concludes that it is appropriate to recognize wrongful-arrest and reasonable-accommodation claims under the ADA. Although the Tenth Circuit has not expressly adopted the claims, the Tenth Circuit has discussed the claims, and no party has argued with any vigor that the theories do not, or should not, exist. Further, the Court reaches the same conclusion on its own.

It is useful first to review general background standards regarding Title II. That statue, 42 U.S.C. §§ 12131-12165, 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 such services, programs or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132. The Tenth Circuit requires that a plaintiff prove three factors to establish a claim under Title II: (i) that he or she is a qualified individual with a disability; (ii) that he or she was either excluded from participation in or denied the benefits of some public entity's services, programs, or activities, or the public entity otherwise discriminated against the plaintiff; and (iii) that such exclusion, denial of benefits, or discrimination was by reason of the plaintiff's disability. See Gohier v. Enright, 186 F.3d at 1219 (explaining that this general standard, which tracks the language of the statute, is "plainly correct").

The Court acknowledges a certain awkwardness in referring to arrest as a benefit of a service, program, or activity. Indeed, the Fourth Circuit initially doubted whether arrest could fit into the ADA's language. See Rosen v. Montgomery Cnty. Maryland, 121 F.3d at 157-58. After the Supreme Court of the United States decided Pennsylvania Department of Corrections v. Yeskey, 524 U.S. 206 (1998), which holds that Title II covers state prisons, Rosen v. Montgomery Cnty. Maryland is no longer good law on that point: Pennsylvania Department of Corrections v. Yeskey rejected the statutory-awkwardness arguments on which Rosen v. Montgomery County Maryland depended. Indeed, the Fourth Circuit has since discussed both a wrongful-arrest claim and a reasonable-accommodation claim, without mentioning Rosen v. Montgomery County Maryland. See Waller ex rel. Estate of Hunt v. Danville, 556 F.3d at 174.

Further, despite this initial awkwardness, upon close examination, Title II's language covers arrests. The Honorable Yvette Kane, United States District Judge for the United States District Court for the Middle District of Pennsylvania, has placed it within the "excluded from participation in or be denied the benefits of such services, programs or activities of a public entity" language:

Schorr v. Borough of Lemoyne, 243 F.Supp.2d 232, 235 (M.D. Penn. 2003). To elaborate, (i) being arrested only for crimes — and not for manifestations of disabilities — and (ii) being arrested in a manner that one's disability does not make more painful or humiliating than typical arrests are both, in at least a broad sense of the word, benefits of government activities.

Although this construction is not an implausible theory of how wrongful-arrest claims fit under the statute, the Court concludes that the theories more naturally fit under the "no qualified individual with a disability shall, by reason of such disability . . . be subjected to discrimination by any such entity." 42 U.S.C. § 12132. Wrongful arrest and failing to reasonably accommodate a disability during arrest seem to fit more comfortably into the catchall anti-discriminatory clause in the end of the sentence. Indeed, the Tenth Circuit has recognized that arrests need not be shoehorned into that language. See Gohier v. Enright, 186 F.3d at 1220 (implicitly endorsing reading "or be subjected to discrimination by" as encompassing arrests). Particularly given the well-established principle that courts should interpret antidiscrimination statutes broadly, see, e.g., Trainor v. Apollo Metal Specialties, Inc., 918 F.3d 976, 983 (10th Cir. 2002)("`In our review of the antidiscrimination laws we must be mindful of their remedial purposes, and liberally interpret their provisions to that end.'" (quoting Wheeler v. Hurdman, 825 F.2d 257, 262 (10th Cir. 1987))); Kelley v. City of Albuquerque, 375 F.Supp.2d 1183, 1224 (D.N.M. 2004)(Browning, J.)("A statute which is remedial in nature should be liberally construed." (internal quotation marks omitted), the Court concludes that the ADA countenances a version of these theories.

There remains, however, the question what the appropriate standards should be. It is true, one case on which the Tenth Circuit relied suggests that a wrongful-arrest claim under the ADA requires proof of three elements: (i) the plaintiff was disabled; (ii) the arresting officer knew or should have known that the plaintiff was disabled; and (iii) the defendant arrested the plaintiff because of legal conduct related to the plaintiff's disability. See, e.g., Lewis v. Truitt, 960 F. Supp. at 178. Another case on which the Tenth Circuit relied, however, suggests that, if probable cause to arrest is present, a plaintiff has no ADA claim. See Patrice v. Murphy, 43 F. Supp. 2d at 1161 ("[P]laintiff was arrested because she probable cause existed, as discussed more fully below, not because she is disabled. Absent a causal link between plaintiff's disability and the injury of which she complains (her arrest), there can be no claim under § 12132."). The Tenth Circuit declined to address the propriety of any of these tests, specifically noting that "[i]t 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[ v. Bartch]." 186 F.3d at 1221.

The Court concludes that, on balance, the probable-cause standard is the appropriate standard for ADA wrongful arrest claims. The Court begins with the statute's language: "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of such services, programs or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132. Under either the excluded-from-a-benefit language or the subjected-to-discrimination language, the proper standard for the wrongful-arrest theory is probable cause. The "service" of which a citizen enjoys a "benefit" is "the lawful exercise of police powers, including the appropriate use of force by government officials acting under color of law." Schorr v. Borough of Lemoyne, 243 F. Supp. 2d at 235. To say that an officer has lawfully exercised an arrest power is to say that the officer will exercise that power only when he has probable cause to arrest the citizen; the "benefit" that a citizen derives from the appropriate use of force in the arrest context is that police will arrest the citizen based only on probable cause to believe that the citizen committed a criminal offense. Under the subjected-to-discrimination theory, the logic is even clearer. The baseline against which "discrimination" is measured is the right that all citizens enjoy: the right to be arrested only based on probable cause.

To say that the proper standard is whether the police officer has probable cause to arrest is not to render the disability irrelevant. The probable cause inquiry depends on "facts known to the arresting officer at the time of the arrest." Buck v. City of Albuquerque, 549 F.3d at 1281. If the facts known to the officer include information about an individual's disability — and particularly if the information known to the officer about an individual's disability would exculpate the defendant — those facts inform the probable cause calculus.

To be clear, this standard leaves the ADA's wrongful arrest claim with meaningful work to do. Constitutional litigation against individuals imposes barriers to recovering damages and achieving systemic change that claims under the Title II of the ADA against public entities do not. In other words, the ADA creates different sorts of remedies than might be available in a constitutional case.

This approach accords with persuasive case law. In Bates ex rel Johns v. Chesterfield County, Va., Chief Judge J. Harvie Wilkinson of the Fourth Circuit rejected an ADA wrongful arrest claim, explaining:

Bates ex rel. Johns v. Chesterfield Cnty., Va., 216 F.3d at 373. See Bircoll v. Miami-Dade Cnty., 410 F.Supp.2d 1280, 1285 (S.D. Fl. 2006)("To have a cause of action for discrimination under the ADA, there must be a causal link between a plaintiff's disability and the wrongful arrest; i.e., no other probable cause for the arrest exists."); Sperry v. Maes, 2013 WL 3465784, at *6 (granting summary judgment on a false-arrest claim because a plaintiff had not presented facts that would allow a reasonable juror to find that police officers "denied him the Town's services, programs, or activities, or discriminated against him because of his mental illness. Rather, the record clearly shows that Defendants investigated his conduct and arrested him because there was probable cause to believe that he had committed debit card fraud."); Patrice v. Murphy, 43 F. Supp. 2d at 1161 ("[P]laintiff was arrested because she probable cause existed, as discussed more fully below, not because she is disabled. Absent a causal link between plaintiff's disability and the injury of which she complains (her arrest), there can be no claim under § 12132.").

Finally, the probable-cause standard has important practical benefits. First, police officers know and understand — or, at least, should know and understand — the probable cause standard. A different, heightened standard would significantly burden law enforcement vis-à-vis the disabled. Second, a heightened standard would afford disabled individuals a greater protection against the unlawful exertion of arrest power than nondisabled individuals enjoy — and the ADA is an antidiscrimination statute intended "to level the playing field," Murphy v. United Parcel Service, Inc., 946 F.Supp. 872, 877 (D. Kan. 1996)(Crow, J.), and not to create rights that other citizens do not enjoy. Third, courts are familiar with the probable cause standard, which makes the standard relatively administrable. Accordingly, the Court concludes that if a police officer has probable cause to arrest a disabled person, the disabled person does not have an ADA claim against the police officer.

The Court agrees with the existing reasonable-accommodation-during-arrest theory, which provides 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." Gohier v. Enright, 186 F.3d at 1220. That claim fits within the "subjected to discrimination" language. Accordingly, in an appropriate case, the Court would apply the reasonable-accommodation-during-arrest theory as it exists.

E. SHARKEY DID NOT WRONGFULLY ARREST J.P. WITHIN THE ADA'S MEANING.

The Court concludes that summary judgment is appropriate as to the wrongful-arrest claim. First, the Court concludes that, under the proper, no-probable-cause standard, Sharkey had probable cause to arrest J.P.; therefore, J.P. has no wrongful-arrest claim. Even under the more generous standard, a wrongful-arrest claim under the ADA requires proof of three elements: (i) the plaintiff was disabled; (ii) the arresting officer knew or should have known that the plaintiff was disabled; and (iii) the defendant arrested the plaintiff because of legal conduct related to the plaintiff's disability as the ADA defines that term. See, e.g., Lewis v. Truitt, 960 F. Supp. at 178. The Plaintiffs' claim fails on elements (ii) and (iii). Sharkey did not know or have reason to know that J.P. was disabled within the ADA's meaning. Further, even if he did know or have reason to know of J.P.'s disability, J.P.'s conduct was not lawful.

As the Court has already explained, Sharkey had probable cause to arrest J.P. The Court need not repeat that analysis here. The Court will, however, for the parties' benefit, also analyze the issue under the three-part standard that other courts have applied.

The Court has found undisputed that Sharkey did not know or have reason to know that J.P. was disabled within the ADA's definition of that term, much less that J.P.'s disability rendered her incapable of purposely acting. The Plaintiffs ask the Court infer to the contrary, so the Court will, once again, lay out its reasons for rejecting this inference. As the Court has explained, there is no evidence that J.P.'s disability or limitations rendered her incapable of purposely acting. Even if there were such evidence, Sharkey's knowledge of that condition is another matter: the evidence on which the Plaintiffs base the inference they seek is largely off-point, making the inference speculative. No reasonable jury could leap from the information that Sharkey had to the conclusion that the Plaintiffs seek. First, the Plaintiffs point to the underlined portion of the following testimony:

Plaintiffs' Sharkey Depo. at 33:24-34:15 (emphasis added). It requires an unreasonable inference to leap from that general aside about getting to know his students and, sometimes, seeing their struggles to knowledge that J.P. was disabled within the ADA's definition of that term — much less that her disability or limitation rendered her incapable of purposely acting, which would have exculpated her.

Second, the Plaintiffs point out that Sharkey knew J.P. was in a special education classroom. That much is true, and it is fair to say that, from that fact, he could have inferred that she had some educational or behavioral limitations. It is, however, too much of a leap from "J.P. is in a special education class" to "J.P. is disabled within the ADA's definition of that term" — let alone to "J.P. is a disabled within the ADA's definition of that term, and her disability renders her incapable of purposely acting."

Third, the Plaintiffs point to this answer from Sharkey's deposition:

Sharkey Depo. Vol. III at 75:4-14. As the Court explained earlier, in context, the most of which Sharkey was aware is that there was, when J.P. was in elementary school, "a plan" — not expressly a BIP or an EIP, but "a plan" — that, in J.H.'s view, barred his presence. Reading the evidence in the light most favorable to J.P., one could view this statement as indicating that Sharkey knew or should have known that, when J.P. was in elementary school — years before the events underlying this lawsuit — she had a BIP and an IEP. It would not, however, lead a reasonable jury to conclude to conclude that Sharkey knew or should have known that this BIP and IEP remained in effect when she entered middle school. Moreover, even if he knew or should have been able to infer that "plan" referred to a BIP or an EIP that remained in effect when she entered middle school, that fact would not give him reason to conclude that J.P. was disabled within the ADA's definition of that term, because BIPs and EIPs do not require the existence of such a disability. Again, it is fair to conclude that he should have been able to infer from that information that J.P. had some form of educational or behavioral limitations. It is, however, too great a leap from "during elementary school, J.P. had `a plan' that, in her mother's view, bars Sharkey's presence" to "J.P. has a disability in the ADA's definition of that term," let alone to "J.P. has a disability that renders her incapable of purposely acting."

Fourth, and finally, the Plaintiffs ask the Court to find that "Defendant Sharkey was aware of J.P.'s mental disability because he had been told by J.P.'s former principal after his first encounter with J.P. prior to the incident at issue in this case." Response to MSJ No. 1 ¶ X, at 13. See Deposition of J.H. at 153:25-154:10 (taken July 17, 2013), filed August 16, 2013 (Doc. 103-9) ("Plaintiffs' J.H. Depo."). Sharkey replies:

Reply to Response to MSJ No. 1 ¶ X, at 12-13. As the Court explained earlier, Sharkey is correct: Mildren has made an out-of-court statement, and the Plaintiffs seek to admit it for the truth of what it asserts — that Mildren told Sharkey about the role of SROs with respect to special-education students, particularly those with BIPs. Further, even if the testimony were not inadmissible hearsay, it would not give Sharkey any meaningful knowledge about J.P.'s condition — much less knowledge that would lead him to conclude that, because of her condition, she could not purposely act.

In short, then, although the evidence would allow a reasonable jury to conclude that Sharkey knew or should have known that J.P. suffered from educational or behavioral limitations, the Plaintiffs have not provided admissible evidence that would allow a jury reasonably to find that Sharkey knew or should have known of that J.P. was disabled within the ADA's definition of that term — or, more to the point, that any disability or limitation that J.P. had deprived her of the capacity to purposely act. The Court is conscious that, at the summary judgment stage, the court must resolve all reasonable inferences and doubts in favor of the nonmoving party, and construe all evidence in the light most favorable to the nonmoving party. See Hunt v. Cromartie, 526 U.S. at 550-55; Anderson v. Liberty Lobby, Inc., 477 U.S. at 255 ("The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." (emphasis added)). Even still, however, for the Court to deny the MSJ, it must conclude that genuine factual issues must exist that "can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. at 250. It must also conclude that there is more than a mere "scintilla" of evidence; the Plaintiffs cannot avoid summary judgment. Vitkus v. Beatrice Co., 11 F.3d at 1539. "[T]here is no evidence for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable. . . or is not significantly probative, . . . summary judgment may be granted." Anderson v. Liberty Lobby, Inc., 477 U.S. at 249 (citations omitted). This case presents, at most, a mere scintilla of evidence — evidence that is merely colorable and is not significantly probative — that Sharkey knew that J.P. was disabled within the ADA's definition of that term. Accordingly, the Court concludes that, taking the record as a whole, a rational trier of fact could not find that Sharkey knew or should have known of J.P.'s disability — or, more significantly, that her disability would render her incapable of forming criminal intent; accordingly, there is no genuine issue for trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

Further, even if Sharkey knew or should have known of J.P.'s disability, her claim would confront a separate problem: her conduct was not lawful. For the reasons that the Court has already explained, the Plaintiffs' contrary argument — that J.P. lacked the capacity to form general intent — lacks a sound basis either in the law or in the facts. The Court will not repeat itself here, save to point out that: (i) no evidence supports the notion that J.P. categorically could not purposely act; (ii) the evidence available supports the contrary inference; and (iii) the fact that charges against her were subsequently dismissed does not, as the Plaintiffs suggest, mean that "J.P. was not convicted of any crime because her actions were not criminal," Response at 23 (emphasis added).

J.P.'s claim is far from the wrongful-arrest claims that courts have recognized. In the leading cases on which the Tenth Circuit relied in Gohier v. Enright, the police officers knew or had very good reason to know that the subject had a disability that would innocently explain what otherwise appeared to be the actus reus of a crime or to strongly indicate that the subject had committed a crime. In Lewis v. Truitt, other individuals told police officers on the scene that the suspect was deaf and could not, therefore, hear them; despite the others' protests, the officers refused to believe that information or to write questions for him, beat him savagely, and arrested him, because he did not respond to the officers as they wished. In other words, the officers were told, on scene, that the suspect had a disability — deafness — that innocently explained what otherwise appeared to be a crime — failing to comply with police instructions. In Jackson v. Inhabitants of Town of Sanford, despite that the suspect explained that a stroke had partially paralyzed him and caused him to slurred his speech, a police officer arrested him for operating under the influence, because of his flawed performance on field sobriety tests — flaws that his disability explained. In both cases, someone told officers at the scene that the person suffered a disability that would innocently explain their actions; the police ignored that information and arrested the person anyway. Those cases differ materially from the facts here: there is no evidence that J.P.'s disability would innocently explain her attacking her teacher and a peer, and there is no evidence that Sharkey knew or should have known of J.P.'s disability, as the ADA defines that term.

Finally, the Plaintiffs' arguments about statutes other than the ADA are irrelevant, as are arguments about the general policy concerns related to protection of disabled children that those statutes reflect. It is, of course, true that "the ADA and the IDEA seek to protect disabled children." Response at 24. It is not, however, true that, because the IDEA protects children from expulsion or long-term suspension, the ADA must protect children from criminal arrest. The syllogism follows from a false premise: that overlapping statutes must identically remedy nonidentical harms that nonidentical defendants commit against overlapping-but-nonidentical victims. Further, although it is true that, in some ways, criminal arrest is "a fundamentally more serious and harmful consequence than suspension," Response at 24, it is also true that criminal activity — here, battery — is a fundamentally more serious and harmful act than the sort of misbehavior that would lead to suspension. Further, IDEA expressly disclaims the notion that its provisions prohibit law enforcement from doing its job:

20 U.S.C. § 1415(k)(6)(A). Accordingly, the Plaintiffs' discussion of Honig v. Doe, 484 U.S. at 306-07, which did not interpret the ADA, and of other federal statutes that protect children is beside the point in considering this ADA claim.

F. SHARKEY DID NOT FAIL TO REASONABLY ACCOMMODATE J.P.'S DISABILITY WHILE ARRESTING HER.

The Court further concludes that J.P.'s reasonable-accommodation-during-arrest claim also fails. The Plaintiffs have not identified any reasonable accommodation that Sharkey failed to provide which caused J.P. to suffer any greater injury or indignity during the arrest than any non-disabled arrestee would have suffered. Accordingly, summary judgment is appropriate.

First, the Court notes that, because Sharkey did not know of J.P.'s disability as the ADA defines that term, Sharkey — and, accordingly, Bernalillo County — did not fail to reasonably accommodate her disability. As the Tenth Circuit has explained, "[a] public entity cannot know that a modification to its services under the ADA is necessary if it does not first understand that an individual requires such modification because he is disabled." Robertson v. Las Animas Cnty. Sheriff's Dep't, 500 F.3d 1185, 1196 (10th Cir. 2007)(Tacha, C.J.)(emphasis in original). In Robertson v. Las Animas County Sherriff's Department, a deaf pretrial detainee sued a sheriff's department, alleging that the department knew that he was deaf but did not reasonably accommodate his deafness leading up to or during his probable cause hearing, because it had not provided him with communication services appropriate for his disability:

Robertson v. Las Animas Cnty. Sheriff's Dep't, 500 F.3d at 1189-90. He sued, among others, the sheriff's department and the sheriff, alleging that they "violated Title II of the ADA by not providing him with telephone services while he was imprisoned and by not allowing him to participate in his probable cause hearing." 500 F.3d at 1190. The Tenth Circuit reversed the district court's grant of summary judgment, because there were genuine issues of material fact "as to whether Mr. Robertson is disabled within the meaning of the ADA, whether the detention facility knew of his disability, and whether the detention facility knew an accommodation was necessary to enable him to participate in its services to the same extent as a non-disabled prisoner." 500 F.3d at 1200. In doing so, the Tenth Circuit explained:

Robertson v. Las Animas Cnty. Sheriff's Dep't, 500 F.3d at 1196. The Tenth Circuit imposed an further standard with respect to knowledge of a plaintiff's need for an accommodation:

Robertson v. Las Animas Cnty. Sheriff's Dep't, 500 F.3d at 1197-98 (footnote omitted).

Although Robertson v. Las Animas County Sheriff's Department was not a reasonable-accommodation-in-arrest case, it was a Title II case, and the Court sees no sound reason to conclude that its knowledge requirement should not extend to this Title II case as well.108 The logic behind the requirement applies with equal force: a disabled arrestee, no less than a disabled pretrial detainee, should not be able to keep his disability secret and sue later for a failure to accommodate. See Robertson v. Las Animas Cnty. Sheriff's Dep't, 500 F.3d at 1196 ("This is a `duty dictated by common sense lest a disabled [individual] keep his disability a secret and sue later for failure to accommodate.'" (quoting Beck v. Univ. of Wis. Bd. of Regents, 75 F.3d at 1134)). Similarly, the entity must also know that the arrestee requires an accommodation, either because the need is obvious or because the arrestee requests an accommodation. The alternative would effectively impose a strict-liability regime on police officers who, as far as they knew, were doing nothing more than securing a suspect as usual.

The contours of the reasonable-accommodation-during-arrest claim are somewhat less clear than the wrongful-arrest claim's contours are, but the core of the claim 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." Gohier v. Enright, 186 F.3d at 1220 (emphasis added)(citing, e.g., Gorman v. Bartch, 152 F.3d at 912-13). The Plaintiffs have not identified a reasonable accommodation that Sharkey should have taken. The Plaintiffs' theory of what Sharkey should have done has been something of a moving target. In briefing, they asserted: "Defendant Sharkey should not have handcuffed J.P.; Defendant Sharkey should not have arrested J.P.; and Defendant Sharkey should not have transported J.P. to the detention center. Sharkey had a multitude of less severe and more appropriate alternatives." Response at 25. During the hearing, they instead identified as a proposed accommodation that law enforcement should release the child to her mother and refer the police report to the juvenile probation officer, which would have prevented the harm; and second, they argue, one should call the probation officer ahead of time, because the officer could have told Sharkey that they would not take J.P. in for detention. See Tr. at 63:5-13 (Kennedy).

The proposed accommodations are not reasonable accommodations. The requested accommodations — no handcuffing, no arrest, no transportation to a juvenile detention center, a requirement that law enforcement immediately release the child to the mother and refer a police report to a juvenile probation officer, and a requirement that the police call a probation officer ahead of time rather than transport the child to a detention center — are in effect requests that Bernalillo County exempt disabled children from the normal consequences of violent delinquent acts; the ADA inflicts no such requirement.

New Mexico's statutory scheme governing child detention is carefully constructed to respect a child's interests. New Mexico law requires "[a] person taking a child into custody" to, "with all reasonable speed," do one of the following:

N.M. Stat. Ann. § 32A-2-10(A) (emphasis added). The subsection to which the underlined subsection refers details which facilities are appropriate for which children. See N.M. Stat. Ann. 32(A)-2-12. The requirement that a child be taken in person to a place of detention "with all reasonable speed" serves an important purpose: the child's physical presence better enables CYFD to carry out its statutory duty to determine whether it should detain a child. New Mexico law provides:

N.M. Stat. Ann. § 32A-2-11. It is difficult to imagine how, absent knowledge that a child has a known mental health issue and would not, therefore, be appropriate for a given detention facility, a CYFD probation officer could competently carry out his or her duties to look out for the child's safety and others' safety based only on information gleaned from a telephone conversation with a police officer.109

In essence, the Plaintiffs want New Mexico to restructure its juvenile justice system and create a separate track for children with certain educational or behavioral limitations — a track that allows CYFD probation officers to shortcut their statutory obligations to the public and to the child based only on a police officer's telephone call, even where the police officer does not know that the child has a serious mental health issue. Ultimately, that system would not serve the child — because the child would not be able to present her side of the story, at least not without a police officer holding a telephone to her ear — or the public — because a telephone call might not deliver information whether a child substantially risks harm to others that would have been obvious in person. The ADA requires reasonable accommodation and not wholesale restructuring of a juvenile justice system as respectful of children's interests as New Mexico's. It is noteworthy that nothing about Sharkey's arrest of J.P. was out of the ordinary, save that he, viewing the facts in the light most favorable to the Plaintiffs, arrested a disabled juvenile, as the ADA defines that term. For example: (i) he handcuffed her "gently," Sharkey Aff. ¶ 51, at 5 — despite the Plaintiffs' contrary suggestion that "it is relatively impossible to `gently' handcuff a child, because the act in itself is damaging," Response at 25, it is possible to handcuff a child in a gentle manner; (ii) he ensured that he double locked the handcuffs to prevent them from tightening and ensured that there was a thumb-width of space, or approximately one inch, between the handcuffs and J.P.'s wrist, see Sharkey Aff. ¶ 54, at 5-6; (iii) he calmly explained to J.P. that he would be walking her out to his patrol car, see Sharkey's Nation Depo. at 50:17-21; Sharkey Aff. ¶ 56, at 7; and (iv) he escorted J.P. from the class while school was in session in an effort to avoid embarrassing her in front of her peers or any other individuals who might be present between passing periods, see Sharkey's Nation Depo. at 51:21-52:7. The Plaintiffs have pointed to nothing out of the ordinary about the arrest, protesting only that Sharkey arrested and handcuffed J.P. and transported her to a juvenile detention center — as New Mexico law permits.110

The Court contrasts such ordinary facts to the seminal reasonable-accommodation case, Gorman v. Bartch. That case involved officer's transport of a wheelchair-bound man in the following painful and humiliating circumstances:

152 F.2d at 909. The manner of Sharkey's arrest of J.P. was utterly ordinary; the manner of Gorman's arrest was made humiliating and painful, because the officers did not accommodate his disability. Further, Gorman's disability was obvious, and he requested only that he be transported in a manner that did not humiliate or injure him. J.P.'s disability here was far from obvious, and she requested no accommodation at all; the Plaintiffs' complaint now is, in essence, that the juvenile justice system is structurally flawed. In sum, Gorman v. Bartch is far removed from this case. The Plaintiffs have not pointed to a reasonable-accommodation case similar to this one, and the Court has not found any. Accordingly, for all the foregoing reasons, summary judgment is appropriate as to this claim.

G. ANY FAILURE-TO-TRAIN CLAIM FAILS, BECAUSE THERE IS NO UNDERLYING ADA VIOLATION, AND BECAUSE THERE IS NO EVIDENCE OF DELIBERATE INDIFFERENCE.

The Court concludes that any failure-to-train claim under the ADA fails. First, because there is no underlying ADA violation, any failure to train did not cause a violation of the ADA. Second, there is no evidence of deliberate indifference.

Because there is no underlying ADA violation, the failure-to-train claim must also fail. Although the existence and contours of a failure-to-train claim in this context are still emerging, it seems clear that any failure to train must have caused an underlying violation for a failure-to-train claim to lie. As the Honorable J. Harvie Wilkinson, United States Circuit Judge for the Fourth Circuit, explained in a similar case:

Waller ex rel. Estate of Hunt v. Danville, 556 F.3d at 177 n.3. See Bates ex rel. Johns v. Chesterfield County, 216 F.3d 367, 373 (4th Cir. 2000)(Wilkinson, C.J.)("As the officers did not discriminate against Bates by reason of his disability, Bates' additional ADA claim that the County failed to adequately train its officers also fails."). This rule is not unique to the ADA context; it mirrors the traditional rule in failure-to-train claims under 42 U.S.C. § 1983. See generally City of Canton v. Harris, 489 U.S. 378 (1989). The Court has concluded that Sharkey did not violate J.P.'s rights under the ADA. Accordingly, the failure-to-train claim must fail.

The claim also fails for a separate reason: there is no evidence of deliberate indifference. The Plaintiffs ask for the following relief:

Complaint at 11-12. Accordingly, the only specific request for relief against Bernalillo County is for compensatory damages. The Plaintiffs concede that, to recover compensatory damages under the ADA, they must prove, at a minimum, that Bernalillo County acted with deliberate indifference — that is, they must satisfy the same deliberate indifference standard that applies under the Rehabilitation Act. See Response at 29 & n.5. "`Deliberate indifference requires both knowledge that a harm to a federally protected right is substantially likely, and a failure to act upon that. . . likelihood.'" Barber ex rel. Barber v. Colorado Dep't of Revenue, 562 F.3d 1222, 1229 (10th Cir. 2009)(quoting Duvall v. Cnty. of Kitsap, 260 F.3d 1124, 1119 (9th Cir. 2001))(applying the Rehabilitation Act's deliberate-indifference standard, which also applies under the ADA).111 The Plaintiffs' sole argument on the deliberate indifference point is as follows:

Response at 19. The Plaintiffs have not, however, provided any evidence that Bernalillo County knew that harm to the disabled population's federally protected rights was substantially likely to result from its policies, or that it failed to act on that likelihood. Accordingly, summary judgment on the failure-to-train claim is appropriate.112

IT IS ORDERED that on the County Defendants' Motion for Partial Summary Judgment No. II: Dismissal of Counts II, V and VI of Plaintiffs' Second Amended Complaint, filed July 30, 2013 (Doc. 93), is grantedo.