LeRoux v. Montgomery County, Maryland

UNITED STATES DISTRICT COURT

DISTRICT OF MARYLAND

(SOUTHERN DIVISION)

THE ESTATE OF RYAN LEROUX, et al. *

Plaintiffs *

v. * Case No. 8:22-cv-00856-AAQ

MONTGOMERY COUNTY, *

MARYLAND, et al.

*

Defendants

*

MEMORANDUM OPINION

This case concerns the death of Ryan Nicholas LeRoux after he was shot twenty-three

times by Montgomery County Police Department (“MCPD”) officials. Plaintiffs, his surviving

family members, allege violations of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §

12101 et seq., and the Rehabilitation Act, 29 U.S.C. § 794(a), as well as state common law torts

alleging negligence, gross negligence, and wrongful death. Before the Court is a Motion to

Dismiss filed by Defendants Montgomery County, Maryland (the “County”), Police Officers John

Austin Cerny, Brooks Michael Inman, Sarah Vaughn, and Cpl. Romand Schmuck (collectively

“Officer Defendants”). ECF No. 33. Although Defendants raise several points, Defendants’

arguments are largely premised on: 1) recasting the facts in the light most favorable to the

Defendants, contra to the applicable standard; 2) characterizing an event that allegedly unfolded

over the course of approximately two hours as an immediate occurrence; and 3) ignoring several

allegations regarding Mr. LeRoux’s apparent mental disabilities. Accordingly, for the reasons

discussed below, Defendants’ Motion to Dismiss will be granted, in part, and denied, in part.

BACKGROUND

I. Mr. LeRoux’s Mental Health History Prior to the Shooting.

Ryan Nicholas LeRoux had a long history of mental illness and psychiatric treatment.1 He

was diagnosed with depression and Attention Deficit Hyperactivity Disorder (“ADHD”) at the age

of 8. ECF No. 25, at ¶ 37. He had undergone inpatient psychiatric treatment multiple times,

including being involuntarily committed to Northwest Hospital after state police found him

walking by the side of the road, wearing no clothes and claiming that individuals were chasing

him. Id. at ¶¶ 37, 39. During his inpatient treatment, he continued to exhibit psychosis and

paranoid behaviors, including suspicions regarding his healthcare providers, fears that his mother

and father were imposters and not his real parents, and reports that someone was following and

placing tracking devices on him. Id. at ¶ 40. While committed, Mr. LeRoux was prescribed

antipsychotic medication, id. at ¶ 41, which he continued to utilize even after his release. At the

time of his death, Mr. LeRoux had a prescription for Risperidone, an antipsychotic medication – a

bottle of which was found when officers inventoried the contents of his car. Id. at ¶¶ 26, 38.

Just four days before Mr. LeRoux was killed, he had an encounter with the Montgomery

County Police Department. Staff from a Holiday Inn called MCPD and requested that they remove

Mr. LeRoux from a hotel room which he refused to leave after the time set for check-out. Id. at ¶

43. Four MCPD officers found him lying in bed underneath the sheets and, when he did not

respond to orders to leave, threatened him with trespassing. Id. at ¶ 44. Mr. LeRoux remained

unresponsive during the encounter, but did not resist when the four officers grabbed him and

handcuffed his arms behind his back. Id. at ¶ 45. He merely asked that they loosen the cuffs on

his wrists. Id.

1 Because the case is currently before the Court on Defendants’ Motion to Dismiss, I accept all

well-pled allegations as true for the purpose of deciding this Motion. Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009).

II. Montgomery County’s Available Policies and Resources for Mental Health Crises

in the Field.

Unfortunately, Mr. LeRoux’s situation was not unique. According to the National Institute

of Mental Health, nearly one in five Americans live with a mental illness, affecting almost 53

million Americans altogether. National Institute of Mental Health, Mental Illness (Jan. 2022),

https://www.nimh.nih.gov/health/statistics/mental-illness. A number of state and local

governments have responded by creating services for and policies related to the treatment of

individuals suffering from mental illness. See e.g. Maryland Department of Health, Behavioral

Health (May 18, 2022), https://msa.maryland.gov/msa/mdmanual/16dhmh/mha/html/mhaf.html.

MCPD has a number of policies and resources available to support individuals suffering

from mental health crises. MCPD’s Field Services Bureau operates the MCPD Crisis Intervention

Team (“CIT”), which coordinates CIT training for officers and responds to mental health situations

in the field. ECF No. 25, at ¶ 50. CIT training involves a forty-hour course that covers topics

including trauma-informed policing, de-escalation strategies, psychiatric disorders, and

intellectual and developmental disabilities. Id. at ¶ 48. Although CIT training is mandatory for

new MCPD recruits, only 66% of officers have completed it and, for those who have completed it

once, there is no requirement that they repeat or refresh their training. Id. at ¶¶ 48-49. The CIT is

made up of two officers and one clinician from the Montgomery County Department of Health

and Human Services (“DHHS”). Id. at ¶ 50.

Additionally, DHHS operates the Montgomery County Crisis Center, which provides crisis

services both in-person and by phone twenty-four hours a day, seven days a week. Id. at ¶ 51. The

Montgomery County Crisis Center manages the Mobile Crisis Team (“MCT”), which responds to

psychiatric emergencies when they occur, facilitates hospital psychiatric evaluations, and provides

crisis evaluation, crisis stabilization, and recommendations for treatment and resources. Id. at ¶¶

52-53. The MCT is a two-person team composed of a licensed mental health professional and a

second Crisis Center staff member. Id. at ¶ 52.

When an individual calls “911” in Montgomery County, the first point of contact is the

Emergency Communications Center (“ECC”), which MCPD operates. Id. at ¶ 55. While ECC

dispatchers have participated in the CIT training program in the past, they currently do not receive

such training. Id. at ¶¶ 56, 101. ECC dispatchers have a variety of resources with which to respond

to a 911 call, including patrol officers, officers with CIT training, the MCPD Crisis Intervention

Team, or the DHHS MCT accompanied by MCPD officers; officers may also request specialized

services while on the scene. Id. at ¶¶ 57-58, 98.

According to Plaintiffs, the services are in great demand. Approximately one in five calls

to MCPD are for mental health distress. Id. at ¶ 108. However, the ECC does not have a policy

for handling calls that may require mental health care. Id. at ¶ 100.

Compounding matters, Plaintiffs allege that MCPD regularly uses excessive and deadly

force when encountering individuals experiencing mental health and emotional crises. Id. at ¶ 89.

In 2018, an MCPD officer shot and killed Robert White, who suffered from ADHD, allegedly

because he reached into his pocket while walking down the street. Id. at ¶ 91. On May 7, 2020,

MCPD responded to a 911 call stating that a man had thrown a rock through his neighbor’s

window; an officer arrived, saw the individual acting erratically, and allegedly shot him two

minutes after arriving. Id. at ¶ 90.

According to Plaintiffs, these situations were not aberrations. In 2019, 30% of MCPD

encounters that involved force involved individuals suspected of having mental illness. Id. at ¶

94. In 2021, 48% of those subject to use of force by MCPD were suffering from a mental illness

at the time of the encounter. Id. at ¶ 94. A 2021 review of MCPD by the Montgomery County

Council’s Office of Legislative Oversight suggested that suspected mental illness was a key risk

factor for triggering use of force from officers. Id. at ¶ 92. Another review of MCPD conducted

by Effective Law Enforcement for All2 in 2021 found “MCPD’s policies and practices regarding

responding to calls involving mental and behavioral health crises are outdated and insufficient to

address the need.” Id. at ¶ 93.

III. The Shooting: July 16, 2021

At 9:12 p.m. on July 16, 2021, two workers at a McDonald’s in Montgomery County called

MCPD to report a young man parked in the drive-thru lane of the restaurant. Id. at ¶ 3. The

McDonald’s employees described him as “acting like crazy” because he would not move out of

the drive-thru lane, had on headphones, and had not paid for his food. Id. at ¶ 3. The employees,

however, were clear that no one was “in danger.” Id. Rather than calling for a MCT or a MCPD

CIT member, the dispatcher routed the call to an armed patrol officer without any crisis

intervention training. Id. at ¶¶ 62-63.

At 10:28 p.m., more than an hour after the 911 call, MCPD Officer Brooks Inman arrived

at the McDonald’s, where he saw Mr. LeRoux reclined in the driver’s seat of his car and on his

phone. Id. at ¶ 6. Officer Inman also saw a gun laying on the passenger’s seat. Id. at ¶ 7. Officer

Inman drew his own weapon, aiming it at Mr. LeRoux and told Mr. LeRoux to put his hands up.

Id. Mr. LeRoux responded by looking at Officer Inman and then returning his gaze to his phone.

Id. at ¶¶ 8-9. He did not pick up the firearm. Id. at ¶ 10. Officer Inman then yelled at Mr. LeRoux

for approximately three minutes, telling him to “keep [his] fucking hands up!” Id. While Officer

2 Effective Law Enforcement for All is a Maryland-based non-profit organization that was “formed

to help police, civic, and community leaders partner to reinvent law enforcement in their

communities to achieve policing that is effective, respectful, restrained and, above all, safe for the

public and the police.” Effective Law Enforcement for All, About Us, https://ele4a.org/about-us/.

Inman updated other MCPD officers thereafter, he did not request any assistance from a crisis

negotiator or a mental health professional. Id. at ¶¶ 11, 13.

By 10:38 p.m., almost ninety minutes after the initial 911 call, three additional MCPD

officers had arrived: Officer Sara Vaughan, Officer John Cerny, and Officer Romand “Brian”

Schmuck. Id. at ¶¶ 14-16. All three drew their weapons and aimed them at Mr. LeRoux’s car,

which they had surrounded. Id. At 10:49 p.m., more than twenty minutes after MCPD arrived

and more than ninety minutes after the initial phone call to ECC, Captain Brian Dillman radioed

to MCPD Dispatch and requested that they have one or two crisis negotiators respond to the

McDonald’s; at 10:53 p.m., Dispatch replied that a crisis negotiator was on the way. Id. at ¶¶ 17-

18. MCPD did not alert Montgomery County’s MCT or Emergency Medical Services. Id. at ¶¶

20-21.

By 11:02 p.m., seventeen officers had arrived at the scene, though none were crisis

negotiators or part of a CIT. Id. at ¶ 19. The officers surrounded Mr. LeRoux’s car and placed

“stop sticks” under his tires, which involved walking in front of and behind the vehicle. Id. at ¶¶

22, 71, 75. At some point, the officers ran the license plates on Mr. LeRoux’s car to obtain his

identity and cell phone number. Id. at ¶ 76. They also began to formulate a plan to remove Mr.

LeRoux from the car, which involved breaking the front passenger window, removing the gun

from the passenger seat, and pulling him through the open, broken window. Id. at ¶ 80. While the

officers were surrounding the car, they speculated as to Mr. LeRoux’s mental state. MCPD

Officer Anna Owen “chuckled” that the situation was “a suicide by cop kind of thing” and noted

that he was “not aggressive at all” towards the McDonald’s employees. Id. at ¶ 73. MCPD Officer

Chad Eastman commented that Mr. LeRoux was “gonna end up offing himself.” Id. at ¶ 23.

At 11:02 p.m., Mr. LeRoux sat up from the reclining position in the driver’s seat. Id. at ¶

81. Officers Cerny and Vaughan radioed that they saw Mr. LeRoux raise out of his seat with a gun

in his hand. Id. at ¶ 24. At that point, four of the seventeen officers present shot Mr. LeRoux

twenty-three times, killing him. Id. It is unclear whether Mr. LeRoux was actually holding the

gun when the Officer Defendants shot him. Id. at ¶ 82. According to Plaintiffs, while bodycam

footage of the incident “possibly depicts him raising his right arm,” Mr. LeRoux was left-handed.

Id. at ¶ 83.

Within two weeks of the shooting, the Montgomery County Executive announced a

partnership with Effective Law Enforcement for All to help respond to incidents of force involving

MCPD. Id. at ¶ 106. The organization produced a report sharing preliminary recommendations

for improving policies related to use of force, id. at ¶ 93, and is currently reviewing the shooting

of Mr. LeRoux and other similar incidents to “provide additional recommendations for . . .

trainings needed to avoid similar situations.” Id at ¶ 106.

IV. Procedural Background

Paul and Rhonda LeRoux, Mr. LeRoux’s parents, as well as the estate of Mr. LeRoux, filed

their initial Complaint on April 8, 2022. ECF No. 1. Defendants filed their first Motion to Dismiss

on May 27, 2022. ECF No. 19. Before the Court could rule on that Motion, Plaintiffs filed an

Amended Complaint on July 8, 2022. ECF No. 25. The Amended Complaint included eleven

counts, alleging that: 1) Montgomery County’s failure to dispatch mental health services violated

Title II of the ADA, id. at ¶¶ 110-24; 2) Montgomery County’s failure to implement de-escalation

or crisis intervention techniques violated Title II of the ADA, id. at ¶¶ 125-38; 3) Montgomery

County’s differential treatment of Mr. LeRoux based on his disability violated Title II of the ADA,

id. at ¶¶ 139-50; 4) Montgomery County’s failure to provide Mr. LeRoux effective communication

violated Title II of the ADA, id. at ¶¶ 151-61; 5) Montgomery County’s failure to dispatch mental

health services to respond to Mr. LeRoux violated Section 504 of the Rehabilitation Act, id. at ¶¶

162-75; 6) Montgomery County’s failure to implement de-escalation or crisis intervention

techniques violated Section 504 of the Rehabilitation Act, id. at ¶¶ 176-88; 7) Montgomery

County’s differential treatment of Mr. LeRoux based on his disability violated Section 504 of the

Rehabilitation Act, id. at ¶¶ 189-98; 8) Montgomery County’s failure to provide Mr. LeRoux

effective communication violated Section 504 of the Rehabilitation Act, id. at ¶¶ 199-208; 9)

Montgomery County’s and the Officers’ negligence caused the death of Mr. LeRoux, id. at ¶¶ 209-

15; 10) Montgomery County’s and the Officers’ gross negligence caused the death of Mr. LeRoux,

id. at ¶¶ 216-221; and 11) Montgomery County and the Officers caused the wrongful death of Mr.

LeRoux, id. at ¶¶ 222-26.

Defendants filed a Motion to Dismiss the Amended Complaint on August 19, 2022. ECF

No. 33. On the same day, Defendants also filed a Motion for Leave to File Physical Exhibits, ECF

No. 34, which the Court granted without ruling on whether consideration of such materials was

proper at the motion to dismiss stage. ECF No. 35. Plaintiffs filed a Response in Opposition to

the Motion to Dismiss the Amended Complaint on September 30, 2022. ECF No. 38. Defendants

filed a Reply on November 4, 2022. ECF No. 47. Additionally, the United States filed a Statement

of Interest in support of the Plaintiffs’ Opposition on October 4, 2022. ECF No. 43, 44.

LEGAL STANDARD

Fed. R. Civ. P. 12(b)(6) provides that a party may move to dismiss where there is “failure

to state a claim upon which relief can be granted.” To survive a motion to dismiss under 12(b)(6),

a complaint must contain facts sufficient to “state a claim to relief that is plausible on its face.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56

(2007). For the purposes of a motion to dismiss, the Court should accept as true the well-pled

allegations of the complaint. Byrd v. Gate Petroleum Co., 845 F.2d 86, 87 (4th Cir. 1988). The

plaintiff need not plead facts that are probable, but must present facts showcasing more than a

“sheer possibility” that the conduct perpetuated by a defendant is unlawful. Ashcroft, 556 U.S. at

678.

When considering a motion to dismiss pursuant to Rule 12(b)(6), the court may not

consider extrinsic evidence unless the motion to dismiss is converted into one for summary

judgment. Fed. R. Civ. P. 12(d). The court should not make such a conversion where the parties

are not given notice and are not afforded the opportunity to conduct reasonable discovery. Carter

v. Baltimore Cty., Maryland, 39 Fed.Appx. 930, 932-33 (4th Cir. 2002). However, extrinsic

evidence may be considered where the documents attached to a motion to dismiss are integral to

the complaint. Anand v. Ocwen Loan Servicing, LLC, 754 F.3d 195, 198 (4th Cir. 2014).

DISCUSSION

Defendants have challenged each of the eleven counts on multiple grounds, arguing that

Plaintiffs have failed to plausibly state a cause of action due to numerous alleged deficiencies in

their Amended Complaint. These challenges can be grouped into two main categories: those

addressing claims under the Americans with Disabilities Act (“ADA”) and Rehabilitation Act and

those relating to the state law tort claims.

First, Defendants claim that Plaintiffs failed to meet the criteria for a claim under the ADA

or Rehabilitation Act because allegedly: (1) they failed to plead that Mr. LeRoux was a qualified

individual with a disability and related limitations, ECF No. 33-1, at 10; (2) they failed to plead

that the County was aware of a known disability evincing a clear need for accommodation, id. at

12-13; (3) they failed to identify a reasonable accommodation that Mr. LeRoux was entitled to and

then denied, id. at 24; (4) the ADA does not support a failure-to-train claim and, even if it does,

Plaintiffs failed to plead deliberate indifference as required, id. at 35; and (5) they failed to establish

that discrimination was the proximate cause of Mr. LeRoux’s death, id. at 39.

Second, Defendants argue that Plaintiffs’ state law tort claims fail because the Officer

Defendants are protected by public official immunity and the County is protected by governmental

immunity. Id. at 40-44. In the alternative, Defendants claim that Plaintiffs have failed to

sufficiently plead their negligence, gross negligence, and wrongful death claims. Id. at 44-45.

Finally, Defendants briefly argue that Plaintiffs’ claims for punitive damages should be dismissed

because they fail establish actual malice. Id. at 45.

I. Consideration of Extrinsic Materials

Defendants argue that the Court should consider the 911 call, ECC radio traffic and body

worn camera footage from the night of Mr. LeRoux’s death when ruling on their Motion to Dismiss

because the materials are “integral to and relied upon by Plaintiffs’ Amended Complaint.” ECF

33-1, at 10 (citing Thompson v. Badgujar, No. 20-cv-1272-PWG, 2021 WL 3472130, at *7, *10

(D. Md. Aug. 6, 2021)). Specifically, Defendants have filed seven electronic files along with their

Motion to Dismiss. ECF Nos. 33-3-9. The recordings purport to depict the incidents described in

the Complaint. Id. In particular, Defendants seek to challenge Plaintiffs’ assertion that the body-

worn camera (“BWC”) footage is inconclusive as to whether Mr. LeRoux pointed a gun at police

when they shot him. See ECF No. 33-1, at 6.

When reviewing a motion to dismiss, “[t]he court may consider documents attached to the

complaint, as well as documents attached to the motion to dismiss, if they are integral to the

complaint and their authenticity is not disputed.” Thompson, 2021 WL 3472130, at *4. Here, the

video depicting the shooting is incorporated into the Complaint. ECF No. 25, at ex. 2-5. Plaintiffs

admit that they relied on the materials Defendants present in drafting their Complaint, but note that

they also considered other information, as well. ECF No. 38, at 4-5.

Defendants rely on Thompson to support the proposition that disputes between the

complaint and extrinsic evidence at the motion to dismiss stage should be resolved in favor of the

latter. ECF No. 33-1, at 10. In Thompson, this Court dismissed without prejudice a number of

claims linked to a deadly shooting involving a man with multiple mental illnesses. 2021 WL

3472130, at *1. Defendants in that case filed a motion to dismiss and relied in part on footage of

the incident taken from the defendant officer’s body camera. Id. at *3. The Court in Thompson

emphasized contradictions between the plaintiff’s complaint and the video. Id. Notably, the

complaint alleged that “at no point during the encounter did [the deceased] provoke the officer or

pose a risk of serious injury to anyone” while the video revealed that “[the deceased took] an

athletic or fighting stance . . . and [began] charging toward Officer Badgujar, his hands chest-high

and elbows bent, yelling ‘Do it!’ repeatedly.” Id. at *2-*3. In reviewing these materials, this Court

determined that where what is plain from the video “flatly contradicts” assertions in the complaint,

disputes are resolved in favor of the video. Id. at *3.

This case is unlike Thompson in that there is no similarly obvious contradiction between

Plaintiffs’ assertions in the Amended Complaint and the external materials as to whether Mr.

LeRoux raised a weapon. The external materials, like Plaintiffs’ Complaint, are inconclusive on

the matter. Likewise, the materials submitted by Defendants do not contradict any other elements

of the Complaint material to the present decision.3 Further, the video confirms that at no point

3 Defendants emphasize two additional differences between the Amended Complaint and the

electronic materials, namely that Mr. LeRoux failed to raise his hands in response to the officers’

commands, and that the requesting officer did not ask for the crisis negotiator explicitly because

of Mr. LeRoux’s mental state. ECF No. 33-1, at 5; ECF No. 47, at 4 n. 2. For the purposes of this

before 11:02 p.m. did Mr. LeRoux take any action other than passively reclining in his car and

staring at his phone. Since there is no direct contradiction as to whether Mr. LeRoux posed an

immediate threat to the officers present, unlike Thompson, there is no need to resolve a dispute in

favor of the external materials. For the purpose of this Motion, this Court will accept the facts as

asserted in Plaintiffs’ Amended Complaint. See Smith v. City of Greensboro, No. 19CV386, 2020

WL 1452114, at *4 (M.D.N.C. Mar. 25, 2020) (exercising its power to “simply ignore the material

at this time” where defendants “seek to employ the video to challenge Plaintiffs’ characterization

of the facts and demonstrate that the Officers’ behavior was reasonable”) (internal citations

omitted).

The role of the motion to dismiss is to test the sufficiency of the complaint: it is not to

assess the merits of the case or its evidence. Defendants’ exhibits have been considered and do

not meet the level of clarity needed to rebut the facts, as alleged by Plaintiffs, that are material to

the present decision.

II. Claims under the ADA and Rehabilitation Act

Under Title II of the ADA, “no qualified individual with a disability shall, by reason of

such disability, be excluded from participation in or be denied the benefits of the services,

programs, or activities of a public entity, or be subjected to discrimination by any such entity. 42

U.S.C. § 12132. Title II applies to police activities and investigations. See Seremeth v. Bd. of

Cnty. Comm’rs Frederick Cnty., 673 F.3d 333, 337-39 (4th Cir. 2012) (holding that officers and

other employees of law enforcement agencies “must make reasonable modifications in policies,

practices, or procedures when the modifications are necessary to avoid discrimination on the basis

Motion, the Court will accept that Mr. LeRoux neither raised his hands; nor did the requesting

officer make any such motivation explicit.

of disability. . .”) (quoting 28 C.F.R. § 35.130(b)(7)). Under the Rehabilitation Act, “[n]o

otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability,

be excluded from the participation in, be denied the benefits of, or be subjected to discrimination

under any program or activity receiving federal financial assistance.” 29 U.S.C. § 794(a). The

ADA applies to police departments and their investigation of criminal conduct. Seremeth, 673

F.3d at 338-39. “Title II of the ADA and § 504 of the Rehabilitation Act are closely related, and

to ‘the extent possible, [courts] construe similar provisions in the two statutes consistently.’”

Paulone v. City of Frederick, 787 F.Supp.2d 360, 369 (D. Md. 2011) (quoting Freilich v. Upper

Chesapeake Health, Inc., 313 F.3d 205, 214 (4th Cir. 2002)).

A. Plaintiffs Have Adequately Pled that Mr. LeRoux Was a Qualified Individual

with a Disability Who Had Limitations Related to that Disability.

Defendants challenge Counts I-VIII by arguing both that Plaintiffs have failed to plead that

Mr. LeRoux was a qualified individual with a disability and that Mr. LeRoux had limitations

resulting from that disability. ECF No. 33-1, at 10, 22.

Under Title II, a “qualified individual with a disability” is defined as one “who, with or

without reasonable modifications to rules, policies, or practices, the removal of architectural,

communication, or transportation barriers, or the provision of auxiliary aids and services, meets

the essential eligibility requirements for the receipt of services or the participation in programs or

activities provided by a public entity.” 42 U.S.C. § 12131(2). Both the ADA and the

Rehabilitation Act “share the same definitions of disability.” Rogers v. Dept. of Health &

Environmental Control, 174 F.3d 431, 433 (4th Cir. 1999). The ADA defines disability as “a

physical or mental impairment that substantially limits one or more major life activities.” 42

U.S.C. § 12102(1)(A). “Major life activities include, but are not limited to . . . communicating

[and] interacting with others.” 28 C.F.R. § 35.108(c)(1)(i). “An impairment does not need to

prevent, or significantly or severely restrict, the individual from performing a major life activity

in order to be considered substantially limiting.” 28 C.F.R. § 35.108(d)(1)(v). Major depressive

disorder and schizophrenia are impairments that “substantially limit[] brain function,” 28 C.F.R.

§ 35.108(d)(2)(iii)(K), and will “virtually always” be found to impose a substantial limitation on

major life activity. Id., § 35.108(d)(2)(ii); see also Shields v. Prince George’s Cnty., Md., No.

GJH-15-1736, 2019 WL 3536800, at *12 (D. Md. Aug. 2, 2019) (“Mr. Shields suffered from

schizophrenia, which qualifies as a disability.”); Thompson v. Wakefern Food Corp., No. RDB-

15-1240, 2015 WL 9311972, at *6 (D. Md. Dec. 23, 2015) (“Plaintiff clearly alleges that he suffers

from several mental conditions – schizophrenia, bipolar disorder, and a ‘psychotic disorder’ – each

of which could ‘substantially limit’ major life activities.”). The ADA “requires police departments

to make reasonable accommodations for disabled suspects.” Felix v. City of New York, No. 16-

cv-5845 (AJN), 2020 WL 6048153, at *4 (S.D.N.Y. Oct. 13, 2020).

When assessing claims filed under the ADA, the “definition of ‘disability’ shall be

construed broadly in favor of expansive coverage to the maximum extent permitted by the terms

of the ADA.” 28 C.F.R. § 35.108(a)(2)(i); see also J.D. by Doherty v. Colonial Williamsburg

Found., 925 F.3d 663, 670 (4th Cir. 2019) (holding that the ADA’s disability definition must be

read “‘broadly in favor of expansive coverage,’ keeping in mind that the language ‘is not meant to

be a demanding standard.’”) (internal citations omitted). This approach is “consistent with the

purpose of the ADA Amendments Act of 2008 . . . which was passed to ‘reinstat[e] a broad scope

of protection to be available under the ADA.’” J.D. by Doherty, 925 F.3d at 670 (internal citations

omitted). “The primary purpose of the ADA Amendments Act is to make it easier for people with

disabilities to obtain protection under the ADA.” 28 C.F.R. § 35.101(b).

In order to allege that Mr. LeRoux had a disability, Plaintiffs must plead that he had a

physical or mental impairment that substantially limited at least one major life activity. Here,

Plaintiffs have pled that Mr. LeRoux suffered from schizophrenia, ECF No. 25 at ¶ 111, and had

been diagnosed with depression and ADHD at the age of eight. Id. at ¶ 37. The ADA

implementing regulations speak clearly on this subject, writing that schizophrenia and depression

are both impairments that cause a substantial limitation in brain function. 28 C.F.R. § 35.108

(d)(2)(iii)(K). Generally, courts have found that plaintiffs who suffer from schizophrenia have a

disability for the purpose of the ADA because of the cognitive limitations that result from the

condition. See Shields, 2019 WL 3536800, at *12 (“Mr. Shields suffered from schizophrenia,

which qualifies as a disability.”); Thompson v. Wakefern Food Corp., No. RDB-15-1240, 2015

WL 9311972, at *6 (D. Md. Dec. 23, 2015) (“Plaintiff clearly alleges that he suffers from several

mental conditions—schizophrenia, bipolar disorder, and a ‘psychotic disorder’—each of which

could ‘substantially limit’ major life activities.”); see also Harvard v. Inch, 411 F.Supp.3d 1220,

1241 (N.D. Fla. 2019) (finding that multiple plaintiffs demonstrated limitations in brain function

by pleading diagnoses of disorders including paranoid schizophrenia, major depressive disorder,

bipolar disorder); Gough v. McCain, No. 1:190CV091183, 2022 WL 669866, at *16 (W.D. La.

Feb. 3, 2022) (finding that, since the implementing regulations declared that schizophrenia is a

disability under the ADA due to its limitation of brain function, Gough’s ADA claims were

timely); Snider v. Alvarez, No. 18-801, 2020 WL 6395499, at *27 (M.D. Penn. Nov. 2, 2020)

(accepting as true allegations that Snider was disabled on the basis of his schizophrenia and bipolar

disorder diagnoses); Felix, 2020 WL 6048153, at *4 (finding that the ADA and the Rehabilitation

Act apply to individuals with disabilities like schizophrenia because the “ADA’s implementing

regulations explicitly acknowledge schizophrenia as a disability covered by the ADA”).

Additionally, Plaintiffs have pled that Mr. LeRoux was hospitalized multiple times for psychiatric

and inpatient treatment, exhibited bizarre behaviors including suspicions that his parents were

imposters and that his clothes contained tracking devices, and had been found non-responsive

during a prior encounter with MCPD. ECF No. 25, at 10-11.

Plaintiffs have also pled that, on the night in question, Mr. LeRoux exhibited behavior

consistent with someone mentally impaired, which in turn impaired his ability to communicate

with the officers: he remained parked in the drive-through of a McDonald’s without paying for his

food, didn’t respond to orders from the Officer Defendants, kept his headphones on and looked at

his phone while officers yelled at him through megaphones, placed stop sticks around his car, and

surrounded him with guns drawn. Id. at 3-7; see also id. at ¶ 158 (“Ryan did not have an

opportunity to communicate effectively with the responding officers.”). For the purpose of a

motion to dismiss, Plaintiffs have sufficiently alleged that Mr. LeRoux was substantially limited

in his ability to communicate and interact with others on the night of his death as a result of a

disability.

The cases Defendants cite emphasize that the mere assertion of a learning disability may

not be enough to demonstrate a substantial limitation on a major life activity. See Johnson v.

Sedgwick Cnty. Sheriff’s Dep’t, 461 Fed.Appx. 756, 758 (10th Cir. 2012); Lipscomb v. Techs.,

Serv., & Info., No. DKC-09-3344, 2011 WL 691605, at *13 (D. Md. Feb. 18, 2011). While Mr.

LeRoux was diagnosed with learning disabilities, he was also diagnosed with depression and

schizophrenia. As discussed above, schizophrenia or depression alone are both sufficient to

establish the presence of a disability under the implementing guidelines. Further, as noted above,

Plaintiffs have not rested on these diagnoses alone, but have alleged facts speaking to the impact

of these conditions on his ability to communicate on the night of his death.

B. Plaintiffs Have Sufficiently Pled that Mr. LeRoux’s Disability Was Obvious or

Apparent.

Defendants also claim that Plaintiffs have failed to plead adequately that the County had

knowledge of Mr. LeRoux’s disability. ECF No. 33-1, at 13. Under Title II of the ADA, a public

entity must make reasonable modifications when the entity has knowledge of a person’s disability

and related limitations. Seremeth, 673 F.3d at 336. A plaintiff can establish that a defendant had

such knowledge by showing that the individual with a disability or a third party explicitly asked

for modification, though a specific request is not required. See Estate of Robert Ethan Saylor v.

Regal Cinemas, Inc., No. WMN-13-3089, 2016 WL 4721254, at *16 (D. Md. Sept. 9, 2016). A

plaintiff can also demonstrate knowledge by showing that a need for a reasonable modification

was obvious or apparent. See Jarboe v. Maryland Dep’t of Pub. Safety & Corr. Servs., No. ELH-

12-572, 2013 WL 1010357, at *19 (D. Md. Mar. 13, 2013); see also Smith v. City of Greensboro,

2020 WL 1452114, at *13. A conclusion that a disability was obvious or apparent can be

established where officers observed behaviors suggesting an individual was suffering from a

mental illness or received information from third parties suggesting the presence of a mental

illness. See Brizuela v. City of Sparks, No. 3:19-cv-00692-MMD-VPC, 2022 WL 3229389, at *33

(D. Nev. Aug. 10, 2022).

In Shields v. Prince George’s County, this Court denied a defendant’s motion for summary

judgment, in part, because the plaintiff “introduced some evidence that county employees knew

Mr. Shields suffered from a mental illness.” 2019 WL 3536800, at *12-13. The Court specifically

noted “his inability to answer basic questions or follow commands” and his exhibition of other

behaviors that “made it apparent that he was suffering from a mental illness.” Id. at *13. The

defendants, who were correctional officers, were quoted saying that Mr. Shields was “talking just

real loud, yelling and stuff” and that he “kept singing,” rather than answering questions about his

medical history. Id. Based on this, defendants said they ‘“knew something was wrong’ with Mr.

Shields mentally or emotionally, but ‘didn’t know what it was.’” Id. (internal citations omitted).

Nonetheless, the Court found this was sufficient for plaintiff’s ADA claim to advance to trial. Id.;

see also Smith, 2020 WL 1452114, at *13 (finding that it was “at least plausible that the Officers

recognized Smith as . . . disabled, even if the precise nature of his disability was uncertain” because

of his strange behavior, including pacing back and forth, running in circles, and banging his head

against the windows of a squad car).

Prior encounters with the police “predicated on the same individual’s suspected mental

illness” can also be enough to imply knowledge, even if they involved separate officers in the same

department. Brizuela, 2022 WL 3229389, at *32. In Brizuela, defendant officers shot and killed

Rolando Brizuela in the enclosed patio of his home. Id. at *1. Eight months prior to the fatal

encounter, the police department responded to a report that Mr. Brizuela, while armed, was seeing

monsters. Id. at *32. On the day of the shooting, an officer observed that Mr. Brizuela was

behaving erratically, id. at 33, and spoke to neighbors who suggested that Mr. Brizuela had been

“‘having some problems,’ including . . . talking about ‘killing people,’ . . . ‘talking to himself,’ and

. . . hearing voices.’” Id. at *4 (internal citations omitted). The officers returned to Mr. Brizuela’s

home where Mr. Brizuela raised a gun towards them and, in response, the officers opened fire,

shooting Mr. Brizuela eleven times. Id. at *7-8. His widow sued on multiple grounds, including

discrimination on the basis of disability under the ADA. Id. at *10. The court found that she had

shown enough for a rational factfinder to conclude that the defendants had knowledge of Mr.

Brizuela’s mental health challenges, emphasizing the department’s prior encounter with the

decedent. Id. at *32-33. As the Court stated, “liability under Title II of the ADA would be nearly

impossible if a police department does not have the requisite knowledge that an individual has a

mental illness even after that same department responded to an incident expressly predicated on

the same individual’s suspected mental illness.” Id. at *32.

Using Shields and Brizuela as models, Plaintiffs have alleged enough at this stage to

support the conclusion that Mr. LeRoux’s disabilities were apparent to the County. Mr. LeRoux

exhibited highly unusual behaviors over the course of his encounter with MCPD, such as parking

in the drive-thru of the McDonald’s for almost two hours and not responding in any way to

repeated instructions from law enforcement for over thirty minutes as they pointed guns at him

and placed stop sticks around his car. ECF No. 25, at ¶¶ 68-72. Additionally, the County received

third-party notice from a worker at the restaurant that Mr. LeRoux was “acting crazy.” Id. at ¶ 3.

At the time of Mr. LeRoux’s shooting, officers present made comments suggesting they knew that

they may be interacting with an individual with a mental health disorder, speculating that this was

a “suicide by cop kind of thing” and that he was “gonna end up offing himself.” Id. at ¶¶ 73-74.

Another officer, in response to Mr. LeRoux’s conduct called a crisis negotiator, further suggesting

that Mr. LeRoux’s need for specialized assistance was apparent. Id. at ¶ 17. Finally, Plaintiffs

also assert that once the officers ran Mr. LeRoux’s license plate to confirm his identity, the County

should have known about Mr. LeRoux’s mental health challenges based on a prior encounter just

four days before the shooting in which MCPD officers found him lying in bed in a similarly

unresponsive condition as they found him in his car. Id. at ¶¶ 43-45. Together,4 these facts are

sufficient to allege that the Mr. LeRoux’s disabilities were apparent to the County.

4 Defendants’ argument is also based on viewing each of these facts in isolation and then

challenging the import of the facts individually. See e.g. ECF No. 33-1, at 19-21. Defendants’

attempt to parse Plaintiffs’ Amended Complaint, as such, ignores the relevant question, which asks

whether the facts, viewed together, sufficiently allege that the County knew or should have known

of Mr. LeRoux’s disability. See Shields, 2019 WL 3536800, at *12-13 (viewing together the

impact of the plaintiff’s actions and words in determining whether defendants had knowledge of

his disability).

Much of Defendants’ argument is based on re-casting each of Plaintiffs’ claims in the

narrowest light possible – contrary to the applicable standard at this stage of the case. Namely,

Defendants attempt to separate the knowledge of the dispatcher from the knowledge of the officers

on site even though all of Plaintiffs’ ADA and Rehabilitation Act claims are against the County,

as a whole. For example, in Counts I and V, Plaintiffs allege that the County failed to dispatch

mental health services to respond to the situation. Plaintiffs incorporate by reference their previous

allegations in the 109 paragraphs of factual allegations that preceded it. Id. at ¶ 110. Defendants

characterize the claim as being limited to the actions of the ECC upon receiving the initial call

from the McDonald’s. ECF No. 33-1, at 16. However, as Plaintiffs allege, the failure to dispatch

extended to the County’s failure to call for such services once the Officer Defendants arrived and

gathered additional information regarding Mr. LeRoux’s condition. ECF No. 25, at ¶ 96

(“Interaction with the police on the fateful night of July 16 could have been completely avoided if

anyone in the ECC or among the dispatched officers had acted appropriately on their knowledge

that Ryan was having a mental health crisis and called mental health professionals instead of solely

armed police officers.”); id. at ¶ 119 (“At the very least, the dispatcher should have ensured a

response by CIT-trained officers.) (emphasis added); ECF No. 38, at 14 (“In addition to the

information the ECC dispatcher had and had access to, the responding officers had a second

opportunity to run Ryan’s license plate number, from which they received his name and telephone

number, among other information.”). Likewise, in Counts IV and VIII, Plaintiffs argue that the

County failed to provide Mr. LeRoux effective communication. In response, Defendants argue

that the Court should only consider the knowledge of the officers when assessing the County’s

knowledge. ECF No. 33-1, at 18-21. However, drawing all inferences in favor of Plaintiffs,

Plaintiffs’ claims under these counts extend beyond just the actions taken by the officers, but

extend to the County’s actions in failing to dispatch mental health services with, or in lieu of,

police officials in response to the initial call.

Defendants rely on three cases to support their contention that Plaintiffs have failed to plead

actual or constructive knowledge: ECF No. 33-1, at 13-16 (citing Thompson, 2021 WL 3472130;

Smith, 2020 WL 1452114; Talley v. City of Charlotte, No. 3:14-cv-00683-MOC-DCK, 2016 WL

8679235 (W.D.N.C. Jul. 22, 2016)). These three cases are distinguishable.

In Smith, the plaintiffs’ claim did not fail because they failed to sufficiently allege that

defendants had knowledge of the decedent’s disability. Rather, the court found that even though,

in the Complaint “there [we]re no allegations that the Officers were made aware of this specific

medical history, either before or during their interactions with Smith” it was enough that the

complaint stated, without factual support, that “it was clear to the Officers that Smith was in the

throes of a mental health crisis and that they were aware of [Smith’s] mental state and

vulnerability.” 2020 WL 1452114, at *13 (internal quotation marks omitted). Plaintiffs’ pleadings

here, as noted above, exceed this standard.5

5 The claim in Smith failed because the court found that the complaint did not allege specific

modifications that would have been required beyond the treatment generally afforded to “any

agitated, intoxicated, or distressed person requiring medical attention.” Smith, 2020 WL 1452114,

at *13; see also Smith Complaint, at ¶ 25 (alleging “Defendants believed that Marcus was under

the influence of drugs.”). Further, in Smith, the court noted that the factual material in the

complaint did not allow for the inference that accommodations were obviously needed because it

was not until their brief in opposition to the defendants’ motion to dismiss that plaintiffs identified

any accommodations that should have been provided. Smith, 2020 WL 1452114, at *13. Unlike

in Smith, Plaintiffs, in their Complaint, allege that there were numerous possible accommodations

that were available and known to the County, including the MCPD’s CIT team, the DHHS-

operated Montgomery County Crisis Center hotline and Mobile Crisis Team, and CIT training for

officers. Plaintiffs allege that employing such measures would have accommodated Mr. LeRoux’s

disability by allowing the County to better respond to his lack of communication and, thus,

prevented his death. ECF No. 25, at ¶ 88.

Defendants also rely on Talley and Thompson to rebut the claim that comments made

during the incident suggest awareness of a disability. As noted, officers present made comments

suggesting they knew that they may be interacting with an individual with a mental health disorder.

ECF No. 25, at ¶¶ 73-74. While Thompson and Talley support the proposition that passing

comments alone may not be sufficient to prove a defendant’s knowledge of a disability, Thompson,

2021 WL 3472130, at *11; Talley, 2016 WL 8679235, at *11, they do not dictate the result in this

case. As noted above, Plaintiffs suggest several other facts indicative of the fact that Mr. LeRoux’s

disabilities were apparent. Viewed together, these allegations are enough to distinguish Talley and

Thompson and to plausibly support a conclusion that the County had knowledge of Mr. LeRoux’s

need for an accommodation.

C. Plaintiffs Have Sufficiently Pled Claims Under the ADA.

Defendants advance multiple overlapping arguments that Plaintiffs have failed to state a

claim under the ADA or the Rehabilitation Act. First, Defendants argue that Counts III and VII

must be dismissed because Plaintiffs have not identified any specific action the County took

against Mr. LeRoux because of his disabilities. ECF 33-1, at 34. Second, Defendants argue that

Plaintiffs have failed to identify a reasonable accommodation that Mr. LeRoux was entitled to and

subsequently denied. Id. at 24. Finally, as part of the second argument, Defendants assert that

there was no duty to accommodate Mr. LeRoux under the exigent circumstances he allegedly

created. Id. at 30.

“The intent of the [ADA] is to promote equal access and participation in government

services unless the provision causes an ‘undue burden.’” Seremeth, 673 F.3d at 340. The Fourth

Circuit has recognized “three distinct grounds for relief: (1) intentional discrimination or disparate

treatment; (2) disparate impact; and (3) failure to make reasonable accommodation. A Helping

Hand, LLC v. Baltimore Cnty., MD, 515 F.3d 356, 362 (4th Cir. 2008). “A public entity must

‘make reasonable modifications in policies, practices, or procedures when the modifications are

necessary to avoid discrimination on the basis of disability, unless the public entity can

demonstrate that making the modifications would fundamentally alter the nature of the service,

program, or activity.’” Seremeth, 673 F.3d at 339 (internal citations omitted). “A modification is

reasonable if it is ‘reasonable on its face’ or used ‘ordinarily in the run of cases’ and will not cause

‘undue hardship.’” National Federation of the Blind v. Lamone, 813 F.3d 494, 507 (4th Cir. 2016)

(internal citations omitted). “What constitutes reasonable accommodations during a police

investigation . . . is a question of fact and will vary according to the circumstances.” Seremeth,

673 F.3d at 340; see also Pandazides v. Virginia Bd. of Educ., 13 F.3d 823, 833 (4th Cir. 1994)

(holding that the reasonableness of a particular accommodation is a question of fact); see also

Brown v. Dept. of Public Safety and Correctional Services, 383 F.Supp.3d 519, 558-59 (D. Md.

2019) (finding that the jury must resolve questions related to whether plaintiffs received the

assistance needed “to communicate ‘as effectively’ as other [incarcerated persons].”). Exigent

circumstances are considered as part of the reasonableness of the accommodation, rather than as a

separate inquiry. Seremeth, 673 F.3d at 339. The mere existence of exigent circumstances does

not excuse officers from providing reasonable accommodations. Id.

1. Plaintiffs Have Sufficiently Pled Multiple Reasonable Accommodations

and a Claim for Disability-Based Discrimination.

Plaintiffs have alleged that there were a number of reasonable accommodations that could

have been implemented in the hours that led to the shooting that would have allowed Mr. LeRoux

to effectively communicate and, in turn, survive the encounter. For example, in Counts I and V,

Plaintiffs claim that Mr. LeRoux would still be alive if reasonable accommodations – such as

dispatching the Mobile Crisis Team, the Crisis Intervention Team, or an officer trained in CIT –

had been provided. ECF No. 25, at ¶¶ 118, 170. Likewise, in Counts II and VI, Plaintiffs claim

that reasonable de-escalation techniques – including calling mobile crisis services, using crisis

intervention techniques, or waiting for the crisis negotiator before engaging Mr. LeRoux by

surrounding his vehicle, swearing at him, and directing their weapons at him – were similarly

reasonable accommodations. Id. at ¶¶ 133, 183. Accordingly, Plaintiffs have alleged a number of

possible accommodations that allegedly were available to Defendants. Further, Plaintiffs allege

that had these modifications been provided, individuals with specialized training “could have

evaluated [Mr. LeRoux], stabilized the mental health crisis, and arranged mental health services.”

Id. at ¶ 20.

As a result of the failure to employ these accommodations, Plaintiffs claim that the County

discriminated against Mr. LeRoux by denying him the opportunity to communicate equally and

effectively with police officials, id. at ¶¶ 158, 205; see also ECF No. 38, at 17-18, and by shooting

and killing him because of his disability, which denied him the benefit of surviving a police

encounter, ECF 25, at ¶¶ 139-50, 189-98.

Defendants’ arguments, in response, seek to impermissibly heighten the pleading standard

at the motion to dismiss stage. For example, Defendants argue that even if Plaintiffs have

identified accommodations that the County should have provided, Plaintiffs have failed to

specifically explain how the accommodations would have allowed the County to effectively

communicate with Mr. LeRoux.6 See ECF No. 33-1, at 26 (“The Amended Complaint, however,

6 This theme runs through several of Defendants’ arguments. Later on in Defendants’ Motion,

they argue that it is not enough for a plaintiff to allege as part of a failure to train claim that training

is no longer provided, but they must specifically identify when the training ceased, among other

details. ECF No. 33-1, at 37. The argument asks for well beyond the “short and plain statement

of the claim showing that the pleader is entitled to relief” the complaint is intended to provide.

Twombly, 550 U.S. at 555.

does not cite to any actual modifications that such an individual would or could have made to the

police’s normal practices . . . ). Defendants’ argument is contrary to the precedent applicable at

the motion to dismiss stage. “Plaintiffs’ prima facie burden [to identify a reasonable

accommodation] is not a heavy one.” Henrietta D. v. Bloomberg, 331 F.3d 261, 280 (2d Cir. 2003)

(internal quotations and citations omitted). “[I]t is enough for the plaintiff to suggest the existence

of a plausible accommodation, the costs of which, facially, do not clearly exceed its benefits, and

that [o]nce the plaintiff has done this, she has made out a prima facie showing that a reasonable

accommodation is available, and the risk of non-persuasion falls on the defendant.” Id. (internal

quotations and citations omitted).

Defendants’ argument is further undercut by the fact that at the same time, they call on the

Court, without support, to accept that the measures the County did apply – the use of a megaphone,

the development of a plan to remove Mr. LeRoux through the windshield of his vehicle, and calling

Mr. LeRoux on his telephone – were, in fact, reasonable accommodations. ECF No. 33-1, at 26-

27. The argument is contradictory, as it calls on the Court to at once reject the measures that

Plaintiffs allege should have been applied, while accepting that Defendants’ proposed

accommodations would have allowed an individual with Mr. LeRoux’s disabilities to effectively

communicate with MCPD. Ultimately, whether the accommodations Plaintiffs propose would

have allowed the County to effectively communicate with Mr. LeRoux, or whether the measures

the County employed were sufficient are questions of fact that cannot be resolved upon a motion

to dismiss. At this stage, it is sufficient that Plaintiffs have plausibly alleged measures that on their

face would have allowed Mr. LeRoux to effectively communicate with the County. Nat’l Fed’n

of the Blind, Inc. v. Lamone, 438 F. Supp. 3d 510, 529-30 (D. Md. 2020) (declining to grant motion

to dismiss where proposed modifications sought to “enact a significant change” and came at a

“significant cost” but were still plausible at pleading stage “where all inferences must be drawn in

Plaintiffs’ favor.”). Plaintiffs’ allegation that the County could have employed various

modifications that would have resulted in individuals who had specialized training in working with

individuals suffering from mental disabilities, as opposed to officers who had no such training,

interacting with Mr. LeRoux meets this standard.

2. Plaintiffs Have Sufficiently Pled the Accommodations Could Have

Been Provided Under the Alleged Circumstances.

Defendants’ argument, regarding the alleged “exigent circumstances”, is similarly

unavailing at this stage of the case. First, Defendants repeatedly emphasize the danger that Mr.

LeRoux posed to the officers by allegedly raising his gun towards them. See ECF No. 33-1, at 27

(“Plaintiffs have taken the position that the police should have ‘accommodated’ Mr. LeRoux by

not taking action for their own protection at the moment they reported seeing Mr. LeRoux raise

his gun at them”). The argument misconstrues Plaintiffs’ Amended Complaint, as well as the

relevant query when considering a motion to dismiss. Plaintiffs’ Complaint does not concede that

Mr. LeRoux raised his weapon, but rather alleges that the evidence is inconclusive on this point.

To conclude that Mr. LeRoux did raise his weapon would require the Court to not only disregard

the facts alleged in the Complaint, but draw inferences against the non-moving party, contra to the

applicable standard. Second, Defendants repeatedly emphasize the exigent circumstances in which

the Defendants’ encounter with Mr. LeRoux unfolded, emphasizing the split-second decision

officers had to make once Mr. LeRoux sat up in his vehicle. See id. at 28 (“Plaintiff cannot credibly

assert that the officers should have accommodated Mr. LeRoux by standing there waiting for the

negotiator while Mr. Leroux pointed his gun at them.”). Defendants’ argument again misconstrues

the facts, as alleged in the Complaint. As Plaintiffs’ allege, the County’s failure to accommodate

was not limited to the instant in which Mr. LeRoux sat up, but began more than two hours before

when the County failed to contact either of the teams available to serve individuals in the County

experiencing mental health crises. According to Plaintiffs, these failures continued over the course

of the next two hours, as officers failed to promptly seek the assistance of mental health teams,7

failed to employ proper techniques on which they allegedly were not trained, and instead employed

other measures which allegedly escalated the situation. According to the Complaint, by the time

Mr. LeRoux sat up in his seat, thus allegedly creating the exigent circumstances which Defendants

emphasize, he had already been denied several accommodations. See Vos v. City of Newport

Beach, 892 F.3d 1024, 1037 (9th Cir. 2018) (reversing summary judgment, in part, where officers

shot a man who was running around a convenience store and ignored two commands to drop the

scissors because the officers “had the time and the opportunity to assess the situation and

potentially employ . . . accommodations . . . including de-escalation, communication, or

specialized help.”).

Each of the cases Defendants cite for the proposition that these modifications were

unreasonable because of exigent circumstances are distinguishable. As a preliminary matter,

Seremeth, Waller, Hainze, and Poole, on which Defendants rely, ECF No. 33-1, at 30; ECF No.

47, at 8, were all decided at the summary judgment stage, when the Court may not accept a

plaintiff’s allegations but must examine whether the allegations can withstand evidence the

defendant presents in response. See Seremeth, 673 F.3d at 336; Waller ex rel. Estate of Hunt v.

Danville, VA, 556 F.3d 171, 174 (4th Cir. 2009); Hainze v. Richards, 207 F.3d 795, 798 (5th Cir.

2000); Poole v. Gaston Cnty., No. 3:15-cv-309-DCK, 2017 WL 4479219, at *4 (W.D.N.C. Oct. 6,

7 Defendants also argue that the County, in fact, did eventually call a crisis negotiator and thus did

provide one of the modifications requested. ECF No. 33-1, at 25. However, as Plaintiffs’ allege,

the County failed to call for the negotiator promptly, ECF No. 25, at ¶ 5, thus preventing them

from arriving before the situation resulted in Mr. LeRoux’s death.

2017). While Thompson was decided upon a motion to dismiss, as noted above, in that case, the

court was presented with clear video evidence rebutting the plaintiffs’ complaint that the decedent

did not pose an immediate threat. 2021 WL 3472130, at *11. Accordingly, in each of these cases,

the court was presented with and required to consider a more robust record when assessing the

reasonableness of the intervention. See Seremeth, No. 1:09-cv-00058, 2010 WL 2025551 (D. Md.

filed May 18, 2010), ECF Nos. 47-2, 3, 4, 5, 6, 7, 8 (Defendants’ motion for summary judgment

citing to deposition of plaintiff, interrogatories answered by plaintiff, deposition of defendant

officer, affidavit of defendant officer, incident report from the arrest, interrogatories answered by

defendant Sherriff, policies relating to treatment of individuals with disabilities, attendance records

for trainings, and affidavit of Frederick County Attorney); Waller, 556 F.3d at 174 (discussing the

initial reversal and remand of the first grant of summary judgment because “the parties had not

fully briefed the merits of the claim, and that appellant had not been able to conduct discovery on

the claim” and reconsideration of the issues after “extensive discovery” had been conducted);

Hainze, Brief for Plaintiff-Appellant, Kim Michael, Hainze, 1999 WL 33619189, at *6 (5th Cir.

May 12, 1999) (citing to depositions of plaintiff and defendants, as well as affidavits of defendants

and defendants’ expert); Poole, 2017 WL 4479219, at *2 (citing to depositions of defendant

officers as well as the official description of the 911 call). In contrast, there is no developed factual

record here, as discussed supra. Even if such a record did exist, considering it at this stage would

be inappropriate, since the success of a motion to dismiss, almost always, turns on the plaintiff’s

complaint.

Second, the cases that Defendants cite involved situations in which the individual harmed

posed a clear and immediate threats to police officials. See Seremeth, 673 F.3d at 340 (“The

deputies were responding to a domestic disturbance call, which Deputy Rohrer characterized as

‘some of the most dangerous calls that we ever go on.’ The deputies were obligated to assure

themselves that no threat existed against them, Seremeth’s children, or anyone else.”); Waller, 556

F.3d at 173 (“When [the responding officer] spoke to [decedent] through the back door, [decedent]

yelled, ‘I’m going to blow your goddamned head off.’ . . . After [decedent] came toward the

officers twice, swinging what appeared to be a scythe and brandishing what looked like a knife,

three officers shot and killed him.”); Hainze, 207 F.3d at 797 (“Deputy Allison exited his vehicle,

drew his weapon, and ordered Hainze away from the truck. Hainze responded with profanities

and began to walk towards Allison [with a knife in his hand] . . . Allison twice ordered Hainze to

stop but Hainze ignored him. When Hainze was within four to six feet, Allison fired two shots in

rapid succession into Hainze’s chest.”); Thompson, 2021 WL 3472130, at *11 (“Mr. White

certainly posed an unpredictable threat to the officer. This is particularly so, considering Mr. White

charged at Officer Badgujar after the officer’s request that he stop . . . as well as his repeated

physical altercations with the officer and unwillingness to follow demands. The need to address

these exigent circumstances left Officer Badgujar with no time to have gathered more information

about Mr. White and relay it to dispatch.”); Poole, 2017 WL 4479219, at *3 (“Poole then pulled

out a pistol, pointed it up into the air, and immediately began lowering the pistol in a motion

consistent with gaining target acquisition upon Defendant Officers.”).

In contrast, Plaintiffs’ allegations, and the available evidence that the Court may consider,

do not establish that Mr. LeRoux posed a similar threat to the officers. Mr. LeRoux did not pick

up the firearm at any point in his initial exchange with Officer Inman. ECF No. 25, at ¶ 10. He

did not verbally or physically threaten the officers when they surrounded Mr. LeRoux’s car and

placed “stop sticks” under his tires, which involved walking in front of and behind the vehicle. Id.

at ¶¶ 22, 71, 75. The lack of an immediate threat is further supported by the timing of the shooting

in relation to the other events of the night: if an exigent circumstance existed from the moment

Officer Inman arrived, then the County – ninety minutes after the initial 911 call – would not have

been able to attempt to implement the single modification it allegedly did.

3. Plaintiffs Need Not Establish at this Stage that the Alleged

Discrimination and Failure to Accommodate Were the Proximate

Causes of Mr. LeRoux’s Death.

Defendants also allege that Counts I through VIII must be dismissed because Plaintiffs

have failed to set forth allegations sufficient to “establish” that any purported discrimination or

failure to accommodate was the proximate cause of Mr. LeRoux’s death. ECF No. 33-1, at 39.

To ultimately succeed, “the plaintiff is obligated to show . . . that the defendant’s violation

of the ADA proximately caused her actual injury before she can recover.” Montgomery v. District

of Columbia, No. 18-1928 (JDB), 2022 WL 1618741, at *23 (D.D.C. May 23, 2022) (citing

DeLeon v. City of Alvin Police Dep’t, Civ. A. No. H-09-1022, 2010 WL 4942648, at *3 (S.D. Tex.

Nov. 30, 2010); Armstrong v. Turner Indus., Inc., 141 F.3d 554, 562 (5th Cir. 1998)). “Whether

one event can be described as the cause of another is an intensely fact-sensitive question and

‘ordinarily is one for the jury.’” Montgomery, 2022 WL 1618741, at *28 (citing Colonial Parking,

Inc. v. Morley, 391 F.2d 989, 990 (D.C. Cir. 1968)).

Although Defendants describe their argument as one related to proximate cause, it is

largely repetitive of their previously addressed argument that Plaintiffs’ claims must be dismissed

because they failed to specify the exact measures that properly trained officials would have

employed. ECF No. 33-1, at 40 (“[Plaintiffs] claim that someone trained in crisis intervention

should have arrived on scene to provide some unidentified accommodation for unidentified

limitations resulting from an unspecified disability; that the officers should have implemented

some additional, unidentified de-escalation techniques; and that the officers should have

implemented some other, unidentified communication method.”). As discussed above, at this

stage of the proceedings, it is sufficient that Plaintiffs have alleged an accommodation that

plausibly would have allowed Mr. LeRoux to effectively communicate with the officers present

and survive the encounter.8

4. Plaintiffs Have Met the Pleading Requirements for Failure to Train

Claims Under the ADA.

Defendants also argue that Plaintiffs’ ADA failure-to-train claims under Counts I, II, V,

and VI should be dismissed for failure to state a claim. Id. at 35. Since each of the counts alleges

more than a failure-to-train, the failure to state such a claim would not unilaterally defeat each

count. Still, for the purpose of assessing the subcomponents of each count, a discussion of

Defendants’ arguments seeking dismissal of Plaintiffs’ failure-to-train claims under the ADA

follows.9

a. The ADA Supports a Cause of Action for Failure to Train.

8 Defendants provide little additional support for their argument that Plaintiffs have failed to

properly plead proximate cause. In their Reply, Defendants argue that it is “wholly speculative”

that Mr. LeRoux would not have died had the officers, acting on behalf of the County, waited for

a crisis negotiator, ECF No. 47, at 25, but fail to address the fact that Plaintiffs have pled the

existence of discrimination beyond only failing to wait. See ECF No. 25, at ¶¶ 118-21, 132-35,

147, 158, 169-70, 182-83, 195, 204-05. Likewise, Defendants’ argument that the officers were in

immediate danger relies on facts contrary to the pleadings. As noted above, Plaintiffs allege that

for approximately two hours, Mr. LeRoux sat silently in the driver’s seat of his vehicle. While the

presence of a weapon created some danger, the Court cannot conclude at this stage of the case,

that the weapon alone created a risk of danger that made Plaintiffs’ proposed accommodations

unreasonable. The result of such a ruling, upon a motion to dismiss, would be that anytime a

weapon is present, regardless of the other circumstances, an accommodation is per se

unreasonable. Such a holding would be inconsistent with the ADA and the Fourth Circuit’s exigent

circumstances precedents.

9 As discussed above, Plaintiffs have presented enough in their Complaint to support underlying

ADA and Rehabilitation Act violations; accordingly, their failure-to-train claim cannot be

dismissed on that ground alone. Contra ECF No. 33-1, at 35; Thompson, 2021 WL 3472130, at

*11 (“But because there is no underlying ADA violation, the failure to train claim, to the extent

one is asserted, must fail.”) (citing Waller, 556 F.3d at 177 n. 3)).

Defendants argue that, because the U.S. Court of Appeals for the Fourth Circuit has failed

to recognize a failure-to-train claim, such a claim cannot lie. However, when the court has

addressed the issue, it has declined to consider such a cause of action because the plaintiff’s claim

failed for other reasons. Waller, 556 F.3d at 177 n.3 (declining to reach the question of whether a

failure-to-train claim existed because the officers had met the duty of reasonable accommodation).

There is no indication in Waller, or in any other Fourth Circuit decision, however, that would

indicate that the Fourth Circuit would not recognize an ADA Title II failure to train claim under

the appropriate circumstances.” Estate of Saylor v. Regal Cinemas. Inc., 54 F.Supp.3d 409, 424

(D. Md. 2014). Accordingly, as this Court has stated, “such a claim is viable”. Id.

Other district courts in and out of the Fourth Circuit have likewise found such a claim to

be viable after Waller. See Poole v. County, No. 3:15-cv-00309-FDW-DCK, 2016 WL 4267792,

at *6 (W.D.N.C. Aug. 11, 2016) (rejecting the county’s contention that Waller precluded a failure-

to-train claim under the ADA); Hogan v. City of Easton, Civ. No. 04-759, 2004 WL 1836992, at

*7 (E.D. Pa. Aug. 17, 2004) (finding that “the Complaint states a valid claim under the ADA based

on the failure of the [defendants] to properly train its police officers for encounters with disabled

persons.”); see also Lewis v. Truitt, 960 F.Supp. 175, 178 (S.D. Ind. 1997) (“In order to comply

with the non-discrimination mandate, it is often necessary to provide training to public employees

about disability.”) (quoting H.R. Rep. No. 101-485, pt. III (1990)). Given that both this District

and other districts have found that these claims may lie, the fact that the Fourth Circuit has yet “to

reach the issue is no indication that it would not follow other courts and recognize such a claim.”

Saylor, 54 F.Supp.3d at 426.

b. Plaintiffs Have Sufficiently Alleged Deliberate Indifference.

As to the question of deliberate indifference, Defendants fail to identify any cases that

require a plaintiff to plead specific facts supporting a finding of deliberate indifference at the

motion to dismiss stage of an ADA failure-to-train claim. ECF No. 33-1, at 35-38; see also

Connick v. Thompson, 563 U.S. 51, 61 (2011) (applying the deliberate indifference standard to

Plaintiff’s claims under 42 U.S.C. § 1983); Chaunnault v. Mitchell, 923 F.Supp.2d 765, 787 (E.D.

Va. 2013) (same); Hill v. Robeson County, N.C., 733 F.Supp.2d 676, 686-87 (E.D.N.C. 2010)

(same); Peters v. City of Mount Rainer, No. GJH-14-00955, 2014 WL 4855032, at *5 (D. Md.

Sept. 29, 2014) (same); Brown v. City of Charleston, No. 2:12-cv-01865-DCN, 2013 WL 6850145,

at *3 (D.S.C. Dec. 30, 2013) (same); Hall v. Fabrizio, No. JKB-12-754, 2012 WL 2905293, at *2

(D. Md. Jul. 13, 2012) (same).

Further, the sole published case from this Court assessing an ADA failure-to-train claim in

the context of a motion to dismiss did not require Plaintiffs to plead deliberate indifference.10 See

Saylor, 54 F.Supp.3d at 424-28. Relying on the “implicit duty to train officers as to how to interact

with individuals with disabilities in the course of an investigation or arrest,” this Court, upon a

motion to dismiss, asked only whether there was an underlying violation of Title II, id. at 425, and

whether Plaintiffs had sufficiently alleged that deputies were not trained to make modifications

when interacting with individuals with developmental disabilities. Id. at 427.

As in Saylor, Plaintiffs here have alleged both an underlying failure to accommodate and

that the officers were not trained on how to accommodate individuals with disability-based mental

health crises. Plaintiffs have alleged that the “Montgomery County ECC does not have a policy

10 However, the Court, subsequently, in an unpublished decision, did require a showing of

deliberate indifference at the summary judgment stage. Saylor, 2016 WL 4721254, at *16.

Accordingly, the Court analyzes Plaintiffs’ claim under this standard, as well, out of an abundance

of caution.

for handling calls that appear to be related to mental health crisis” and that “ECC dispatchers do

not receive training in CIT, in identifying mental health-related calls, or in the resources available

to respond to mental health crises. ECF No. 25, at ¶¶ 100-01. Plaintiffs also allege that only 66%

of MCPD officers have received any CIT training and that there is no requirement for repeating or

refreshing such training. Id. at ¶ 49. Applying the test in Saylor, this is sufficient to state a claim

for failure to train.

Even if the standard applicable to failure to train claims under § 1983 was appropriate to

assess a plaintiff’s pleading of an ADA failure-to-train claim, Plaintiffs have met that burden. To

hold a municipality liable for failure to train or failure to implement a policy in the § 1983 context,

a plaintiff must allege three elements: (1) that the defendant instituted inadequate policies or

inadequately trained its officers, (2) that the policies or training were so deficient that they

demonstrated deliberate or conscious choice by the municipality, and (3) that the training or policy

deficiency caused the officer’s conduct. City of Canton, Ohio v. Harris, 489 U.S. 378, 390 (1989);

see also Lewis v. Simms, No. AW-11-cv-2172, 2012 WL 254024, at *2-3 (D. Md. Jan. 26, 2012).

Although a plaintiff need not prove their claim in response to a motion to dismiss, it must allege

“some facts” relevant to each element. Hall, 2012 WL 2905293, at *2.

As discussed above, Plaintiffs have alleged multiple deficiencies in the County’s training

of its officers, satisfying prong one. Contra McDougald v. Spinnato, No. ELH-17-2898, 2019 WL

1226344, at *15 (D. Md. Mar. 15, 2019) (dismissing a §1983 claim in part because plaintiff “failed

to identify a particular [police] training practice or any specific defect or omission in the [police]

training program.”); Hall, 2012 WL 2905293, at *2 (dismissing a failure to train claim because

“the complaint [did] not allege any facts regarding the sort of training that Baltimore police officers

actually receive or how that training reflects the decision of any municipal policymaker.”).

Specifically, Plaintiffs alleged that although CIT training is mandatory for new MCPD recruits,

only 66% of officers have completed it. ECF No. 25, at ¶¶ 48-49. Plaintiffs also detail resources

available to officers responding to individuals with mental health needs; nonetheless, Plaintiffs

have also alleged that although calls from individuals suffering from mental health issues are

frequent, id. at ¶ 108, the ECC does not have a policy for handling calls that may require mental

health care. Id. at ¶ 100. Two external reviews – including one requested by Montgomery

County’s executive – found that the MCPD’s policies and practices were inadequate to serve

members of the community with mental health disorders. Id. at ¶¶ 92-93.

Also, as discussed above, Plaintiffs have alleged facts from which the Court could infer

that individuals with training in interacting with individuals suffering from mental illness would

have responded to the situation differently than the officers who upon their arrival allegedly

surrounded the vehicle, began swearing at Mr. LeRoux, and drew their weapons, despite the

alleged lack of an immediate threat over the course of a prolonged period of time. Further, neither

the ECC dispatcher nor the responding officers attempted to utilize available services until more

than ninety minutes had passed from the initial 911 call, thus allegedly resulting in a situation in

which they were not available in a timely manner and, ultimately, Mr. LeRoux’s death. Id. at ¶¶

3, 18.

This leaves prong two: deliberate indifference. “To satisfy [§ 1983], a municipality’s

failure to train its employees in a relevant respect must amount to ‘deliberate indifference’ to the

rights of persons with whom the [untrained employees] come into contact.” Connick, 563 U.S. at

61 (internal citations omitted). “‘[D]eliberate indifference’ is a stringent standard of fault,

requiring proof that a municipal actor disregarded a known or obvious consequence of his action.”

Board of County Commissioners of Bryan Cty. v. Brown, 520 U.S. 397, 410 (1997). “Thus, when

city policymakers are on actual or constructive notice that a particular omission in their training

program causes city employees to violate citizens’ constitutional rights, the city may be deemed

deliberately indifferent if the policymakers choose to retain that program.” Connick, 563 U.S. at

61-62. In Connick, the Supreme Court considered whether a “district attorney’s office [could be]

held liable under § 1983 for failure to train its prosecutors based on a single Brady violation.” Id.

at 54. Although the Court held that a single Brady violation would be insufficient, id., it noted that

the Court in Canton “sought not to foreclose the possibility . . . that the unconstitutional

consequences of failing to train could be so patently obvious that a city could be liable under §

1983 without proof of a pre-existing pattern of violations.” Id. at 64.

Plaintiffs have sufficiently alleged, for the purposes of a motion to dismiss, that the County

was deliberately indifferent in failing to train its officers. According to the Amended Complaint,

in 2021, “48% of victims subject to use of force by the MCPD were suffering from mental illness

at the time of the encounter.” Id. at ¶ 92, 94. According to the Montgomery County Council’s

Office of Legislative Oversight, MCPD “encounters with persons with mental illness too often end

in tragedy.” Id. at ¶ 93-94. On at least two prior occasions, before the incident that is the subject

of this suit, these uses of force resulted in death.11 Id. at ¶¶ 89, 91. Although Defendants attempt

to distinguish these instances on the grounds that they did not result in a finding of liability or

misconduct, “there is no requirement that complaints result in a formal finding of misconduct for

such complaints to support findings of failure to supervise or failure to train.”12 Felix v. City of

11 Consistent with many of their other arguments, Defendants ask the Court, at the motion to

dismiss stage, to conduct its own analysis of the appropriateness of one of these shootings based

on an external report beyond the Complaint. See ECF No. 33-1, at 39 n. 28.

12 However, once Plaintiffs’ claim advances beyond the motion to dismiss stage, they may have

difficulty relying on the incident at issue in Thompson for, as discussed above, this Court has

previously reviewed the body camera footage at issue in that case and found that the decedent’s

New York, 344 F.Supp.3d 644, 662 (S.D.N.Y. 2018). This is particularly so at the motion to

dismiss stage. See id. (“[T]he question at this stage is whether Plaintiffs have plausibly supported

the existence of a training deficiency and the City’s awareness of the same.”). Plaintiffs’

allegations are distinguishable from those cases in which this Court has dismissed § 1983 claims

pre-discovery. See Peters, 2014 WL 4855032, at *5 (“Peters has not even attempted to allege any

such facts; instead, he has simply stated in broad, conclusory terms and in a variety of different

ways that the City failed to train and supervise its officers.”); Hall, 2012 WL 2905293, at *2

(dismissing a failure to train claim against the BPD because the complaint “d[id] not . . . allege a

single instance of these alleged violations other than Plaintiff’s own experience”).

III. Claims for Negligence, Gross Negligence, and Wrongful Death

Plaintiffs also claim that Defendants are liable for the death of Mr. LeRoux under common

law theories of negligence, gross negligence, and wrongful death. Defendants challenge each of

the three counts on three grounds: (1) that the County is protected by governmental immunity; (2)

that the Officer Defendants are protected by public official immunity; and (3) that Plaintiffs have

failed to state a claim for negligence, gross negligence and wrongful death. ECF No. 33-1, at 40,

44.

A. Count IX: Negligence

Plaintiffs’ negligence claim against the County will be dismissed because the County is

protected by governmental immunity. However, since Plaintiffs have alleged actual malice and

conduct posed an immediate threat to the officers. At this stage, the Court is considering this

incident only because it is ancillary to other evidence of deliberate indifference and that there may

have been other relevant circumstances, evidencing a failure to train, that are not readily apparent

from the Court’s decision in Thompson.

stated a claim for negligence, their negligence claim against the Officer Defendants will not be

dismissed.

1. Governmental Immunity Protects the County.

Defendants argue that Count IX, as to the County, should be dismissed because the

County’s operation of its police force is protected by governmental immunity. Id. at 44. Compared

with the common law sovereign immunity of the State and its agencies, “the common law

governmental immunity of local governments, municipalities, and their agencies is limited.”

Baltimore Police Dept. v. Cherkes, 780 A.2d 410, 429 (Md. App. 2001). A local government is

only “immune from liability for common law torts when the conduct was committed in a

governmental capacity, but can be held liable for common law torts arising from conduct in its

private or proprietary capacity.” Moore v. Peitzmeier, TDC-18-2151, 2019 WL 1370097, at *2

(D. Md. Mar. 26, 2019) (internal citations omitted); see also Gray-Hopkins v. Prince George’s

Cty., Md., 309 F.3d 224, 234 (4th Cir. 2002); Crouch v. City of Hyattsville, No. DKC-09-2544,

2010 WL 3653345, at *4 (D. Md Sept. 15, 2010). “A law enforcement officer ‘purporting to

enforce the State criminal law’ acts in a ‘quintessentially governmental’ capacity.” Moore, 2019

WL 1370097, at *2 (internal citations omitted); see also DiPino v. Davis, 729 A.2d 354, 370 (Md.

1999) (“In this case, it is clear that DiPino’s conduct was not committed in any private or

proprietary capacity. In her capacity as a City police officer, she was purporting to enforce the

State criminal law. That is quintessentially governmental in nature. There is, therefore, no

common law liability on the part of the city.”). “Thus, a city is immune as to common law tort

claims asserted against it based on torts committed by its police officers.” Crouch, 2010 WL

3653345, at *4.

Here, Plaintiffs pursue three common law tort claims against the County under a theory of

vicarious liability.13 At the time of the shooting, the officers were responding to a disturbance at

a restaurant, which constitutes a governmental function. See Moore, 2019 WL 1370097, at *3

(“[T]he Officer Defendants were responding to and investigating a disturbance” and “thus engaged

in the enforcement of criminal laws, a governmental, rather than proprietary function.”). As such,

the County is protected under governmental immunity. While the County may ultimately be

responsible for paying a judgment resulting from claims against the Officer Defendants, Plaintiffs

cannot maintain a claim for common law negligence against the County. See Taylor v.

Montgomery County, Maryland, No. GJH-20-3143, 2021 WL 3857949, at *10 (D. Md. Aug. 30,

2021); Moore, 2019 WL 1370097, at *3. As such, Count IX against the County will be dismissed.

2. Plaintiffs Have Sufficiently Pled that the Officer Defendants Are

Not Protected by Public Official Immunity.

“An official of a municipal corporation, while acting in a discretionary capacity, without

malice, and within the scope of the official’s employment or authority shall be immune as an

official or individual from any civil liability for the performance of the action.” Md. Code. Cts. &

Jud. Proc. § 5-507(a)(1); see also White v. City of Annapolis by and through City Council, 439

F.Supp.3d 522, 536 (D. Md. 2020). Law enforcement officers are public officials for the purpose

of public official immunity. McGowan v. Prince George’s Cty., Maryland, 401 F.Supp.3d 564,

571 (D. Md. 2019) (citing Cooper v. Rodriguez, 118 A.3d 829 (Md. App. 2015)). However, there

is no immunity for any alleged intentional torts or any alleged acts committed with actual malice

or which were grossly negligent. See McGowan, 401 F.Supp.3d at 571 (citing Ashton v. Brown,

13 The third tort claim, for wrongful death, is based only in part on a theory of vicarious liability.

As discussed below, portions of the claim arise out of the County’s own actions in, for example,

failing to train its officers.

660 A.2d 447 (1995)). Malice means “conduct characterized by evil or wrongful motive, intent to

injure, knowing and deliberate wrongdoing, ill-will, or fraud;” a plaintiff asserting malice “must

point to specific evidence that raises an inference that the defendant’s actions were improperly

motivated.” White, 439 F.Supp.3d at 536 (citing Koon as next friend of Glay v. Prince George’s

Cnty., No. DKC-17-2799, 2019 WL 1317401, at *7 (D. Md. Mar. 22, 2019)). Determining

whether officers acted with malice is a fact-intensive exercise that looks to the whole record. See

Williams v. Prince George’s County, 685 A.2d 884, 896-97 (Md. App. 1996) (“[W]e may look to

the facts and circumstances set forth in the deposition testimony as well as other matters outside

of the pleadings.”).

To survive a motion to dismiss, the plaintiff must make “specific factual allegations [that],

if proven, could support a finding that [defendants] acted with actual malice.” Hovatter v.

Widdowson, No. CCB-03-2904, 2004 WL 2075467, at *6 (D. Md. Sept. 15, 2004); see also Hall

v. Maryland, No. RDB-19-3005, 2020 WL 5642047, at *6 (D. Md. Sept. 22, 2020) (“To overcome

a motion raising governmental immunity, the plaintiff must allege with some clarity and precision

those facts which make the act malicious.”). If a plaintiff does so, defendants “are not entitled to

statutory immunity as a matter of law, and the claims against them can proceed.” Hovatter, 2004

WL 2075467, at *6.

While the word “malice” does not create an easily definable standard, this Court has

established contours for proving malice in situations that involve police shootings. Generally, a

finding of malice hinges on the specific facts of the police encounter. “Unjustified application of

malignant force may give rise to a reasonable inference that [an officer] was motivated by ill will

toward or an affirmative intent to injure Plaintiff.” Solis v. Prince George's Cnty., 153 F.Supp.2d

793, 805 (D. Md. 2001); see also Gray-Hopkins v. Prince George’s Cty., Maryland, 309 F.3d 224,

233 (4th Cir. 2002) (finding officer acted with malice and was not entitled to public official

immunity because plaintiff’s version of the facts justified conclusion that the officer shot and killed

decedent while his hands were above his head); Cooper v. Doyle, No. DKC-22-0052, 2022 WL

16923857, at *3 (D. Md. Nov. 14, 2022) (finding malice where plaintiff alleged that defendant

officers shot decedent several times in the back as he ran away from them without a weapon in his

hands). In Cooper, this Court assessed an officer’s malice in relationship to potential harm: where

an individual “did not pose a risk of harm to the officers or others,” “application of lethal force

would be unjustified and malicious.” Cooper, 2022 WL 16923857, at *3; see also Sawyer v.

Humphries, 587 A.2d 467, 474 (1991) (“Wrestling another to the ground, pulling his hair, and

hitting him on the face, again without cause or provocation, is certainly malicious conduct.”);

Solis, 153 F.Supp.2d at 805 (“Officer Ruffin choked Plaintiff and struck him multiple times for no

apparent reason. Such unjustified application of malignant force may give rise to a reasonable

inference that Officer Ruffin was motivated by ill will toward or an affirmative intent to injure

Plaintiff.”); Smith v. Mothershed, No. WMN-12-3215, 2013 WL 4501310, at *4 (D. Md. Aug. 21,

2013) (denying officer’s claim to statutory immunity based on plaintiff’s allegations that

defendants dragged him out of a car through an open window, beat and tasered him, and caused a

K-9 to bite a large piece of flesh from his leg); Johnson v. Prince George’s Cty., No. DKC 10-

0582, 2011 WL 806448, at *7 (D. Md. Mar. 1, 2011) (finding malice where an officer

“gratuitous[ly]” beat a plaintiff in response to his “reasonable question”); Williamson v. Prince

George’s Cty., Maryland, No. DKC 10-1100, 2011 WL 280961, at *6 (D. Md. Jan. 26, 2011)

(holding that plaintiff had adequately pled malice for the purpose of a motion to dismiss after

presenting evidence that defendant severely beat plaintiff after he made a sarcastic comment).

Where disputed material facts exist in the record and where “inferences of malicious conduct may

be drawn from [plaintiff’s] version of the facts,” claims of negligence against police officials are

not suitable for early disposition. Okwa v. Harper, 757 A.2d 118, 129 (Md. 2000).

At the time of the incident, the Officer Defendants were acting as law enforcement officers

and were within the category of defendants who can invoke public official immunity. The parties

do not dispute that the officers were acting within the scope of their employment nor that they

were acting in a discretionary capacity. Instead, the parties dispute whether the Officer Defendants

acted with malice. Compare ECF No. 33-1, at 41-42 and ECF No. 38, at 24-25.

As required to survive a motion to dismiss, Plaintiffs have not “[m]erely assert[ed] that an

act was done maliciously” but rather have “allege[d] with some clarity and precision those facts

which make the act malicious.” Cooper, 2022 WL 16923857, at *3. As discussed above, Plaintiffs

have pled that the Officer Defendants surrounded Mr. LeRoux’s vehicle while he sat therein

attending to his phone. Although a weapon was present, Plaintiffs allege that he made no

movement towards the weapon or turned away from his phone for over thirty minutes. In the

interim, officers allegedly swore at Mr. LeRoux and discussed a plan to drag him across shards of

glass through a car window. These allegations go beyond “merely asserting that an act was done

maliciously[,]” Elliot, 473 A.2d at 969, or providing only “bare legal conclusions.” Hovatter, 2004

WL 2075467, at *7.

The cases Defendants cite are distinguishable. For example, Williams v. Prince George’s

County involved the review of a lower court’s decision to grant the defendant county summary

judgment based on a developed factual record which included depositions of the officers involved,

who testified as to their motivations and states of mind at the time of the incident in dispute. 685

A.2d at 889-890. While the court in that case reviewed the record and found no instance of malice,

id. at 897, this case lacks the robust factual record necessary to make a determination as to whether

Plaintiffs’ factual allegations regarding malice are supported. Further, the court’s conclusions

stand in contrast with Plaintiffs’ allegations in this case. See id. at 896 (“Therein is to be found no

expressions of hostility of the officers nor any physical harm inflicted, and indeed, the record

reflects conciliation, accommodation, and even an apologetic attitude on the part of the arresting

officer.”). Likewise, Parker v. State, which Defendants also cite, addressed the absolute immunity

granted to judicial officers for judicial acts. 653 A.2d 436, 443 (Md. 1995). Other than

mentioning that law enforcement officers receive qualified immunity in some circumstances, it

has little bearing on this case. Finally, in Davis v. DiPino, the court assessed whether a law

enforcement officer acted with malice when submitting an Application for Statement of Charges.

637 A.2d 475, 480 (Md. App. 1994). In DiPino, the court dismissed the plaintiff’s claim because

there was no allegation that the officer had included false or misleading information in the

application. Id. Defendants provide no explanation as to why the standard for malice in submitting

forms dictates the result in this case involving the alleged unlawful use of force.

The presence of actual malice is generally a fact-specific inquiry not well-suited to

resolution upon a motion to dismiss. Here, Plaintiffs have made sufficient factual allegations that

officers acted with actual malice. As such, these claims will not be dismissed, at this time, due to

public official immunity.

3. Plaintiffs’ Have Stated a Claim for Negligence.

Even if a plaintiff’s claim is not barred by public official immunity, their complaint must

adequately state a claim for negligence. Negligence is “any conduct, except conduct recklessly

disregardful of an interest of others, which falls below the standard established by law for

protection of others against unreasonable risk of harm.” Barbre v. Pope, 935 A.2d 699, 717 (Md.

2007) (quoting Mayor & City Council of Baltimore v. Hart, 910 A.2d 463, 472 (2006)). To

successfully state a claim for negligence, a plaintiff must allege that the defendant was under a

duty to protect the plaintiff from injury, the defendant breached that duty, and the plaintiff suffered

an actual injury or loss that resulted from that breach. Hart, 910 A.2d at 472.

Plaintiffs allege that the Officer Defendants had a duty to interact appropriately with an

individual suffering from mental disabilities, including waiting for a crisis intervention team before

unnecessarily escalating the encounter by repeatedly targeted him with their weapons. ECF No.

25, at ¶ 211. Additionally, Plaintiffs alleged that officers failed to timely request mental health

assistance, and, instead, swore at and threatened violence against Mr. LeRoux. Id. at ¶ 212.

Defendants’ response does not contest the sufficiency of the allegations under the applicable legal

precedents. ECF No. 33-1, at 44. Instead, their rebuttal focuses on the actions the officers took

once they saw Mr. LeRoux allegedly raise a weapon. Id. Putting aside the question as to whether

Mr. LeRoux actually raised a weapon, Defendants’ argument ignores that Plaintiffs’ negligence

claim focuses on the actions the Officer Defendants did and did not take before Mr. LeRoux was

allegedly seen raising a weapon. As such, Plaintiffs’ negligence claim will not be dismissed at

this time.

B. Count X: Gross Negligence

For similar reasons, Plaintiffs’ gross negligence claim will be dismissed against the

County,14 while Plaintiffs’ claim against the Officer Defendants, as pled, is sufficient to surpass

Defendants’ Motion to Dismiss.

14 As discussed supra, the County is protected by governmental immunity in this circumstance;

accordingly, Count X will be dismissed as to that Defendant. See Moore, 2019 WL 1370097, at

*4 (dismissing all common law tort claims, including a claim of gross negligence, against the

county).

Defendants allege that Plaintiffs’ allegations against the Officer Defendants do not meet

the “stringent standard” for a claim of gross negligence and, as a result, should be dismissed both

for failing to defeat public official immunity and for failing to state a viable claim. ECF No. 33-

1, at 44.

As discussed above, Maryland statutory law immunizes “local government employees

from tort liability for acts or omissions committed within the scope of their employment and made

without actual malice or gross negligence.” Hovatter, 2004 WL 2075467, at *6 (citing Md. Code

Ann., Cts. & Jud. Proc.§ 5-399.2(b)). Unlike the actual malice standard, which is a distinct inquiry

from whether negligence was committed, the statutory exception for gross negligence corresponds

to the underlying need to state a claim: where a plaintiff has stated a claim for gross negligence,

they meet the pleading requirements to bypass public official immunity.

“Gross negligence is ‘an intentional failure to perform a manifest duty in reckless disregard

of the consequences as affecting the life or property of another.’” Shields, 2019 WL 3536800, at

*13 (quoting Cooper, 118 A.3d at 845). “The Maryland Court of Appeals has held that the

principle of objective reasonableness as articulated in Graham v. Connor, 490 U.S. 386, 394

(1989), applies to excessive force claims brought under common law claims of gross negligence.”

Taylor, 2021 WL 3857949, at *9 (citing Stutzman v. Krenik, 350 F. Supp.3d 366, 383 (D. Md.

2018)). “Ordinarily, unless the facts are so clear as to permit a conclusion as a matter of law, it is

for the trier of fact to determine whether a defendant’s negligent conduct amounts to gross

negligence.” Cooper, 118 A.3d at 846 (quoting Taylor v. Harford Cty. Dep’t of Soc. Servs., 862

A.2d 1026, 1034 (Md. 2004)).

When evaluating a claim of gross negligence upon a motion to dismiss, this Court assesses

whether the pleadings include facts speaking to an intentional failure to perform a manifest duty

and a thoughtless disregard for the consequences. See Shields, 2019 WL 3536800, at *13 (denying

motion for summary judgment on the grounds that, “[g]iven that [the correctional officers’] goal

was to change [Mr. Shields’s] clothes so that he could get medical treatment, the decision to

ineffectively strike, punch, and kick him, or to tacitly authorize this conduct, ‘implies a thoughtless

disregard of the consequences’ (i.e. Mr. Shields’s injuries) ‘without the exertion of any effort to

avoid them.’”) (quoting Cooper, 118 A.3d at 854); Barbre, 935 A.2d at 718-19 (finding that

plaintiff pled enough to demonstrate gross negligence by alleging that “Barbre ordered Pope, who

was unarmed, to raise his hands, and that after Pope complied with the request, Barbre approached

with his gun drawn and shot him in the neck.”).

As discussed above, Plaintiffs have alleged that Mr. LeRoux did not pose a threat to the

officers because he did not make any movement towards the firearm in response to Officer Inman,

ECF No. 25, at ¶ 10, did not verbally or physically threaten the officers when they surrounded his

car and placed “stop sticks” under his tires, which involved walking in front of and behind the

vehicle, id. at ¶¶ 22, 71, 75, and did not communicate with officers at any point in the exchange

despite the fact that he had multiple weapons pointed at him. Id. at ¶¶ 14-16. Plaintiffs allege that

it is unclear whether Mr. LeRoux ever raised a weapon during the encounter. Id. at ¶83. These

facts support a conclusion that Mr. LeRoux for, at a minimum, most of the encounter did not pose

a threat to the officers. Nonetheless, as Plaintiffs allege, the officers “repeatedly trained their guns

on him despite him not engaging in any threatening behavior, declined to request any mental health

assistance, and developed a cruel plan to break the window and haul him through the broken

window.” Id. at 219. Together, these facts are sufficient to plead a claim that the Officer

Defendants exhibited gross negligence in reckless disregard of the ultimate impact these actions

had on Mr. LeRoux’s life. See Sulton v. Baltimore County, Maryland, No. SAG-18-2864, 2021

WL 948820, at *1, *8 (D. Md. Mar. 12, 2021) (denying motion to dismiss because plaintiffs had

adequately pled gross negligence against officers who shot and killed a man who was “sufficiently

far away from the Defendant officers that he did not pose any threat to their safety and could not

reasonably be perceived to pose any threat to their safety”).

C. Count XI: Wrongful Death

For the reasons stated above, the portions of the wrongful death claim against the County,

grounded in negligence and gross negligence, will be dismissed based on governmental immunity.

However, because Plaintiffs have pled enough to surpass public official immunity on its other state

law claims and have alleged plausible ADA and Rehabilitation Act claims, Count XI will not be

dismissed as against the Officer Defendants. Additionally, for the same reason, the portions of the

wrongful death claim arising out of Counts I-VIII will not be dismissed against the County.

In Maryland, a wrongful death action “may be maintained against a person whose wrongful

act causes the death of another.” Md. Code Ann., Cts. & Jud. Proc. § 3-902. A wrongful act is

“an act, neglect, or default including a felonious act which would have entitled the party injured

to maintain an action and recover damages if death had not ensued.” Id., § 3-901(e). “To succeed

on a wrongful death claim under Maryland law, a plaintiff who qualifies as a beneficiary under the

wrongful death statute ‘must show by a preponderance of the evidence that the conduct of [the]

defendant was negligent and that such negligence was a proximate cause of the death of the

decedent.’” Thompson, 2021 WL 3472130, at *12 (quoting Weimer v. Hetrick, 25 A.2d 643, 652

(Md. 1987)). Defendants assert that since the wrongful death claim is derivative of claims under

Counts I through VIII, this claim should fail for the same reasons as they assert earlier in their

brief. ECF No. 33-1, at 45.

Defendants’ argument is unavailing for, as discussed above, the referenced claims are

legally sufficient for the purpose of a motion to dismiss. Plaintiffs have pled a number of plausible

claims of an “act, neglect, or default,” including violations of the ADA and Rehabilitation Act and

the commission of negligence and gross negligence under state law. There is no dispute over

whether Defendants were the cause in fact of Mr. LeRoux’s death: all parties agree that Mr.

LeRoux was shot and killed by the Officer Defendants. Likewise, as discussed above, Plaintiffs

have plausibly alleged that the harm that Mr. LeRoux suffered was the foreseeable result of the

Defendants’ failure to employ the measures that were proper when interacting with a person

suffering from the disabilities alleged, in light of the time period over which the interactions

occurred. Because Mr. LeRoux would have been able to pursue such claims had he survived the

encounter with the Officer Defendants, Plaintiffs can pursue them pursuant to § 3-904.

Accordingly, Plaintiffs’ wrongful death claim, as alleged, is sufficient to survive a motion to

dismiss.

D. Punitive Damages

Finally, Defendants ask the Court to dismiss Plaintiffs’ demand for punitive damages

against the Officer Defendants because Plaintiffs have allegedly failed to set forth facts

“establish[ing]” actual malice, evil motive, or intent. ECF No. 33-1, at 45.

To recover punitive damages in any tort action, facts sufficient to show actual malice must

be pled and later proven, and parties must make a specific demand for their recovery before

damages are awarded. Darcars Motors of Silver Spring, Inc. v. Borzym, 818 A.2d 1159, 1180

(Md. App. 2003). Plaintiffs need not establish malice at the motion to dismiss stage in order to

preserve a claim for punitive damages at trial. Rather, Plaintiffs need only establish malice at trial

in order to collect punitive damages. See Exxon Mobil Corp. v. Albright, 71 A.3d 30, 57 (Md.

2013) (“Punitive damages may be awarded only if a plaintiff proves at trial malice, ill will, or

intent to injure.”) (emphasis added); Borzym, 818 A.2d at 1164-65 (finding punitive damages

permissible where evidence supports a jury’s finding that dealership’s conduct was motivated by

actual malice).

Here, Plaintiffs have made a specific demand for the recovery of punitive damages in their

Amended Complaint. ECF No. 25, at 39. Plaintiffs also allege that the Officer Defendants showed

malice towards Mr. LeRoux, by “repeatedly curs[ing] at him, repeatedly train[ing] their guns on

him despite him not engaging in any threatening behavior, declin[ing] to request any mental health

assistance, and develop[ing] a cruel plan to break the window and haul him through the broken

window.” Id. at ¶¶ 212, 219, 225. Accordingly, Plaintiffs’ claim for punitive damages against the

Officer Defendants may proceed. See Sulton, 2021 WL 948820, at * 8 (“Assessment of the types

of damages that might be available if Plaintiffs eventually prevail on their claims is not well-suited

to the relevant question presented in a Rule 12(b)(6) motion – whether Plaintiffs have adequately

stated claims affording them some basis for relief.”).

CONCLUSION

For the reasons stated above, Defendants’ Motion to Dismiss will be GRANTED in part

and DENIED in part. Defendants’ Motion to Dismiss Counts I through VIII of Plaintiffs’

Amended Complaint shall be DENIED. Defendants’ Motion to Dismiss Counts IX through XI of

Plaintiffs’ Amended Complaint shall be GRANTED, in part, as to the Defendant County, and

DENIED as to the Officer Defendants.

So ordered.

Date: March 20, 2023 ______/s/______________

Ajmel A. Quereshi

United States Magistrate Judge