The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
EDWARD LEE BENTLER,
Plaintiff, CIVIL ACTION NO. 3:22-cv-01107
v. (SAPORITO, J.)
NICHOLAS NEDEROSTEK, et al.,
Defendants.
MEMORANDUM
This is a federal civil rights case. The plaintiff, Edward Lee Bentler,
brings claims arising out of an incident in which he was shot by a state
trooper, Corporal Nicholas Nederostek. Some of the plaintiff’s claims
have been dismissed previously. Three counts remain. In Count I, Bentler
asserts a Fourth Amendment excessive force claim against Nederostek
under 42 U.S.C. § 1983. In Counts IV and V, Bentler asserts disability
discrimination claims against the Pennsylvania State Police (“PSP”)
under Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C.
§ 12131 , and Section 504 of the Rehabilitation Act of 1973
(“Section 504” or “RA”).
The defendants have moved for summary judgment. Doc. 57. The
motion is fully briefed and ripe for decision. Doc. 64; Doc. 72; Doc. 80;
Doc. 58; Doc. 70.
I. LEGAL STANDARD
Under Rule 56 of the Federal Rules of Civil Procedure, summary
judgment should be granted only if “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). A fact is “material” only if it might affect the outcome
of the case. , 477 U.S. 242, 248 (1986). A
dispute of material fact is “genuine” only if the evidence “is such that a
reasonable jury could return a verdict for the non-moving party.”
, 477 U.S. at 248. In deciding a summary judgment motion, all
inferences “should be drawn in the light most favorable to the non-
moving party, and where the non-moving party’s evidence contradicts the
movant’s, then the non-movant’s must be taken as true.”
, 24 F.3d 508, 512 (3d Cir. 1994).
The party seeking summary judgment “bears the initial
responsibility of informing the district court of the basis for its motion,”
and demonstrating the absence of a genuine dispute of material fact.
, 477 U.S. 317, 323 (1986). If the movant makes
such a showing, the non-movant must set forth specific facts, supported
by the record, demonstrating that “the evidence presents a sufficient
disagreement to require submission to the jury.” , 477 U.S. at
251–52.
In evaluating a motion for summary judgment, the Court must first
determine if the moving party has made a prima facie showing that it is
entitled to summary judgment. Fed. R. Civ. P. 56(a); , 477 U.S.
at 331. Only once that prima facie showing has been made does the
burden shift to the non-moving party to demonstrate the existence of a
genuine dispute of material fact. Fed. R. Civ. P. 56(a); , 477
U.S. at 331.
Both parties may cite to “particular parts of materials in the record,
including depositions, documents, electronically stored information,
affidavits or declarations, stipulations (including those made for the
purposes of the motion only), admissions, interrogatory answers or other
materials.” Fed. R. Civ. P. 56(c)(1)(A). “An affidavit or declaration used to
support or oppose a motion must be made on personal knowledge, set out
facts that would be admissible in evidence, and show that the affiant or
declarant is competent to testify on the matters stated.” Fed. R. Civ. P.
56(c)(4). “Although evidence may be considered in a which is
inadmissible at trial, the of the evidence must be capable of
admission at trial.” , 994 F. Supp. 2d 593, 599
(M.D. Pa. 2014); , 192 F.3d
378, 387 n.13 (3d Cir. 1999) (noting that it is not proper, on summary
judgment, to consider evidence that is not admissible at trial).
II. MATERIAL FACTS1
The plaintiff, Edward Lee Bentler, physically assaulted a non-party,
Enos White, on July 19, 2020. He then took a .22 caliber long rifle from
White’s home and left in a green pickup truck. Based on this incident, a
1 In compliance with Local Rule 56.1, the defendants’ motion for
partial summary judgment is “accompanied by a separate, short and
concise statement of the material facts, in numbered paragraphs, as to
which the moving party contends there is no genuine issue to be tried,”
Doc. 58. M.D. Pa. L.R. 56.1. Moreover, each factual statement presented
by the defendants in support of their respective motions for summary
judgment “include[s] references to the parts of the record that support
the statements.” ; Fed. R. Civ. P. 56(c)(1).
A party opposing summary judgment is likewise required by the
local rules to file “a separate, short and concise statement of the material
facts, responding to the numbered paragraphs” in the movant’s
statement of material facts, which must similarly “include references to
the parts of the record that support the statements.” M.D. Pa. L.R. 56.1.
Here, the non-moving plaintiff has filed the requisite responsive
statement of material facts, responding to the numbered paragraphs of
the moving defendant’s statement of material facts. Doc. 70.
The court’s statement of material facts is based on the parties’
respective statements, and where they conflict, disputed facts are viewed
in the light most favorable to the non-moving plaintiff.
warrant was issued for Bentler’s arrest. Although the warrant was issued
at the application of another, non-party state trooper, the individual
defendant, PSP Corporal Nicholas Nederostek, assisted in the
investigation of the July 19 incident. Bentler later pleaded guilty to a
misdemeanor charge of simple assault arising out of the July 19 incident.
That night, Bentler pulled the truck over at a boat launch during a
rainstorm. As he attempted to turn the truck around, he drove the truck
into a ditch. At approximately 7:00 a.m. on July 20, 2020, Bentler called
911 for assistance.
In response to a 911 dispatch, nonparty fire chief Robert Thatcher
was the first to arrive at the boat launch. Thatcher observed that Bentler
had a rifle on his lap and distanced himself from the plaintiff.
Nonparty state trooper Taylor Smith was the first PSP employee to
arrive at the boat launch. Immediately after he exited his vehicle,
Trooper Smith yelled to Bentler: “Let me see your hands!” Bentler did not
immediately respond. Smith yelled at Bentler to “put your hands up so I
can see you.” Bentler then responded, “No.” Smith then ordered Bentler
to “get over here . . . put your hands up now.” Bentler again responded,
“No.” Smith yelled, “Yes.” Bentler responded, “No.” Smith yelled, “Let me
see your hands.” Bentler responded, “My hands are right here.” Smith
asked, “Where is the other one?” Before Bentler could reply, Smith yelled,
“Just put ‘em up so I can see them.” Bentler immediately responded, “No.”
Bentler then said, “I called for help, not for you to harass me.” Smith
stated, “Alright, well, I hear you have a gun. Dude, you have a gun in the
truck. Step away from the truck and I’ll leave you alone.” Bentler
responded, “No, I won’t.” Smith yelled, “Step away from the truck!”
Bentler responded, “No.” Bentler then asked Trooper Smith, “Do you got
a weapon?” Smith replied, “Yeah. Put it down.” Bentler responded,
“Nope.” Smith yelled, “Put it down!” Bentler responded, “No.”
Trooper Smith then radioed PSP dispatch, stating, “6 Gibson.
Subject has a rifle in his possession.” Bentler yelled for help and said he
was scared. Smith responded, “I’ll help you. Put the gun down.” Bentler
responded, “You got to go first.” Smith replied, “I’ll put mine away when
you put yours away.” Bentler’s next response was inaudible on the video
recording. Smith responded, “Put the gun down.” After a six second
pause, Smith yelled again, “Put the gun down.” Bentler replied, “No.”
After a five second pause, Smith screamed, “Put it down!” Bentler
responded, “No.” Smith screamed, “Put the gun down now!” Bentler
responded, “No.” He said something more, but the recorded audio is
inaudible. Smith yelled, “Put the gun down.”
Approximately one-and-a-half minutes after Trooper Smith had
arrived on scene, Corporal Nederostek and Trooper Gregory Yanochko
arrived in separate vehicles. Smith asked Nederostek, “You got your
rifle?” Nederostek responded, “I got the rifle out.” Shortly after that,
Smith yelled his last command at Bentler, directing him again to put the
firearm down, and Nederostek began to engage with Bentler.
When Corporal Nederostek arrived, Bentler was standing by the
bed of the pickup truck, on the passenger side. He was holding the rifle
across his torso and pointed down towards the ground. Nederostek
ordered Bentler to “Put the rifle down.” Bentler did not immediately
respond. Nederostek repeated, “Put it down.” Bentler replied, “I asked for
help.” Nederostek yelled, “Put the rifle down, Eddie.” Bentler did not
respond. A few seconds later, Nederostek said, “Eddie, put it down.”
Bentler responded, “I need help man.” Nederostek replied, “Alright, well
you need to put the rifle down.” Bentler responded, “No I don’t. You need
to put yours down.” Nederostek replied, “Doesn’t work like that Eddie,
come on.”
Then, within 45 seconds of his arrival, and less than 30 seconds
after he had verbally engaged with Bentler, Nederostek saw Bentler
discard his cigarette and step out from behind the side of the pickup
truck. Nederostek immediately fired three shots at Bentler, striking him
twice and causing him to fall to the ground. At the time when he stepped
out from behind the truck, Bentler was still holding his rifle, which was
angled down at the ground. Although Nederostek later testified at
deposition that he subjectively believed that Bentler was about to raise
the rifle to aim it at him and begin shooting, Nederostek confirmed in his
testimony in state court criminal proceedings that Bentler never
shouldered the firearm, never raised it, and never pointed or aimed it at
Nederostek. At his own deposition, Bentler later testified that he had
stepped out from behind the truck with the intent to discard the firearm.
Later that same day, nonparty PSP Corporal Daniel Nilon prepared
and filed a criminal complaint with affidavit of probable cause concerning
the events at the boat launch, charging Bentler with various felony and
misdemeanor offenses. Ultimately, following a jury trial, Bentler was
convicted of aggravated assault by physical menace under 18 Pa. Cons.
Stat. Ann. § 2702(a)(6), simple assault by physical menace under 18 Pa.
Cons. Stat. Ann. § 2701(a)(3),2 terroristic threats under 18 Pa. Cons. Stat.
Ann. 2706(a)(1), and unlawful possession of a firearm by a convicted felon
under 18 Pa. Cons. Stat. Ann. § 6105(a)(1). Bentler’s criminal conviction
was later upheld by the Superior Court of Pennsylvania on appeal.
, 303 A.3d 781 (unpublished table decision),
2023 WL 4761797 (Pa. Super. Ct. July 26, 2023)
The PSP provides training to its members on areas including but
not limited to uses of force and situations involving individuals with
mental illness.3 In addition to training at the PSP Academy, PSP also
provides its members with annual Mandatory Inservice Training (MIST).
MIST trainings have, at times, covered topics related to mental illness.
PSP provides training that incorporate de-escalation practices with
mentally unstable individuals.4 PSP provides yearly disability related
2 We note that the state court docket sheet references § 2701(a)(1),
but the criminal information upon which Bentler was convicted
references § 2701(a)(3), which comports with the nature of the charges as
discussed elsewhere in the state court record and other evidence in the
summary judgment record.
3 The plaintiff disputes the relevance of this training with respect
to his excessive force claim. We agree, and we consider this fact statement
only with respect to the plaintiff’s ADA/RA disability discrimination
claims against the PSP.
4 These include PSP’s policy on Use of Force (FR-9-1), Defs.’ Ex. 5,
training, both through MIST programs and through online platforms.5
Corporal Nederostek, in particular, had received MIST training on
mental health issues.
III. DISCUSSION
A. Application of
The defendants’ first argument focuses on a particular disputed fact
in this case: whether, at the time when Corporal Nederostek employed
deadly force against him, Bentler was merely holding a rifle, pointed at
the ground, or if he had raised and aimed the rifle at the state troopers.
Courts of this circuit have recognized that an officer’s use of deadly force
may be reasonable as a matter of law—or at least not in violation of
clearly established law, thus entitling the officer to qualified immunity—
when the subject of the officer’s use of deadly force had aimed or pointed
Doc. 58-5, and its policy on Incidents Involving Persons with Mental
Illness / Mental Health Emergencies (AR 7-3), Defs.’ Ex. 6, Doc. 58-6.
5 In their statement of material facts, the moving defendants
characterized these training programs as training on the Americans with
Disabilities Act and the Rehabilitation Act. The plaintiff has disputed
this characterization, noting that none of the training materials in the
record are so titled. The supporting evidence cited by the moving
defendants is deposition testimony in which the deponent was asked
about “ADA training” and described the yearly “disability related
training” available to PSP members.
a gun at the officer. , , 637 F.3d 177, 183–
84 (3d Cir. 2011) (affirming summary judgment on qualified immunity
grounds with respect to initial use of deadly force where troopers
encountered a fleeing car theft suspect who, when ordered to show his
hands and freeze, abruptly pulled his hand out of his waistband as
though to draw a pistol); , No. 10-894, 2018 WL
827425, at *8 (E.D. Pa. Feb. 12, 2018) (granting summary judgment on
the merits in favor of police officer who used deadly force against suspect
pointing a handgun at him). , No. 08-
4517, 2011 WL 5080320, at *2 (D.N.J. Oct. 25, 2011) (“Generally, deadly
force is warranted when there is an imminent threat of serious physical
injury or death to officers, bystanders or the public.”).
The plaintiff contends that, at the time when Nederostek shot him,
Bentler was merely holding his rifle, which was pointed toward the
ground.6 The plaintiff has pointed to various items of evidence to support
this position, including video recordings from the troopers’ vehicles.
The defendants, on the other hand, contend that Corporal
6 Bentler contends that he was about to throw the rifle down, in
compliance with the troopers’ orders to “put it down.” It is his actions,
however, not his subjective intent, that are at issue in this case.
Nederostek was prompted to use deadly force because Bentler had
pointed or aimed the rifle at Nederostek, thus posing an imminent threat
of serious bodily injury to the defendant state trooper. Ordinarily, this
would constitute a genuine dispute of material fact, the resolution of
which is reserved to a jury at trial.
But the defendants argue that Bentler’s § 1983 excessive force
claim against Nederostek is barred by the favorable termination rule
articulated by the Supreme Court in , 512 U.S. 477
(1994). In , the Supreme Court held that, where judgment in favor
of a plaintiff in a § 1983 action for damages would necessarily imply the
invalidity of the plaintiff’s conviction or sentence, the plaintiff must first
demonstrate “that the conviction or sentence has been reversed on direct
appeal, expunged by executive order, declared invalid by a state tribunal
authorized to make such determination, or called into question by a
federal court’s issuance of a writ of habeas corpus [under] 28 U.S.C.
§ 2254.” at 486–87. In , 544 U.S. 74 (2005), the
Supreme Court reaffirmed this rule and broadened it to encompass
equitable remedies as well, holding that, under , a Ҥ 1983 action is
barred (absent prior invalidation)—no matter what the relief sought
(damages or equitable relief), no matter the target of the . . . suit (state
conduct leading to conviction or internal prison proceedings)— success
in that action would necessarily demonstrate the invalidity of
confinement or its duration.” at 81–82.
We note that “ typically does not bar actions for Fourth
Amendment violations.” , 420 Fed. App’x 175, 179 (3d
Cir. 2011) (per curiam); , 109 F.3d 142, 145–
46 (3d Cir. 1997) (holding that did not foreclose excessive force
claim); , 529 F.3d 503, 506 (3d Cir. 2008) (per curiam)
(declining to apply to bar an excessive force claim). But “even where
a particular type of conviction is not necessarily inconsistent with a
§ 1983 suit, courts look to the underlying facts . . . to assess whether a
claim is barred by .” , 819 Fed.
App’x 103, 106 (3d Cir. 2020);
, 411 F.3d 427, 448 (3d Cir. 2005),
, , 603 F.3d 181, 188 (3d Cir.
2010). This “fact-based approach requires a district court to inquire into
the nature of the criminal conviction and the antecedent proceedings.”
, 411 F.3d at 451. “[T]o determine ’s applicability, a court
must ask whether the plaintiff could prevail only by negating an element
of the offense of which he was convicted.” , 819 Fed. App’x
at 106 (citation modified) (quoting another source).
Here, Bentler was convicted of aggravated assault by physical
menace under 18 Pa. Cons. Stat. Ann. § 2702(a)(6). Under this statute,
“[a] person is guilty of aggravated assault if he . . . attempts by physical
menace to put [a state law enforcement officer],7 while in the performance
of duty, in fear of imminent serious bodily injury.” 18 Pa. Cons. Stat. Ann.
§ 2702(a)(6). The defendants argue that a judgment in favor of Bentler
on his § 1983 excessive force claim would necessarily imply the invalidity
of his aggravated assault conviction because the state court jury verdict
was premised on a factual finding that Bentler attempted to put state
troopers and fire personnel in fear of imminent serious bodily injury by
pointing a rifle at them.
But, under this statute, “[o]ne is not required to ‘point or shoot a
7 The statute includes a list of 39 enumerated categories of “officers,
agents, employees or other persons” covered by its provisions. These
include various types of federal, state, and local law enforcement officers,
as well as state court judges, district attorneys, public defenders,
firefighters, emergency medical service providers, psychiatric and health
care providers, teachers and other school officials, various state elected
officials, and public utility workers. 18 Pa. Cons. Stat. Ann. § 2702(c).
firearm in order to be found guilty of [aggravated] assault by physical
menace.’” , 381 F. Supp. 3d 443, 457 (E.D. Pa.
2019) (quoting , No. 1861 WDA 2016, 2017 WL
6523267, at *4 (Pa. Super. Ct. Dec. 21, 2017));
, No. 43 EDA 2025, 2026 WL 575199, at *5 (Pa. Super. Ct. Mar. 2,
2026) (“A defendant in possession of a gun need not point it at the victim
to be found guilty of simple assault by physical menace.”);
, No. 3198 EDA 2013, 2014 WL 10803143, at *4
(Pa. Super. Ct. Aug. 25, 2014) (“[T]here is no case law in this
Commonwealth that mandates that an individual cannot be found guilty
of the crime of simple assault by physical menace, absent having pointed
a firearm directly at the victim.”).8
8 We note that court decisions interpreting the statutory language
of the physical menace subsection of the aggravated assault statute,
§ 2702(a)(6), have relied on decisions interpreting the statutory language
of the corresponding provision of the simple assault statute, § 2701(a)(3),
as well. “The language of § 2702(a)(6) is nearly identical to the language
used to define simple assault in § 2701(a)(3). The only difference between
the two sections is whether the victim of the assault is a law enforcement
agent.” , No. 19-5351, 2023 WL 5432498, at *14 n.7
(E.D. Pa. Aug. 23, 2023) (citation omitted); , 817
A.2d 549, 554 (Pa. Super. Ct. 2003) (“The salient difference between the
simple assault by physical menace subsection and the aggravated assault
by physical menace subsection is the occupation of the victim; the
For example, in , 614 A.2d 1146 (Pa. Super.
Ct. 1992), the Superior Court of Pennsylvania affirmed a conviction for
simple assault by physical menace where the defendant “erratically
emerged from her home carrying a shotgun, shouting and advancing from
her porch” at sheriff’s deputies while they were attempting to serve her
with mortgage foreclosure papers. at 1148. The parties stipulated in
that the criminal defendant held the shotgun “‘in the cradle,’ or in
one arm, visible to onlookers,” but “never pointed the gun at the
deputies.” at 1148 n.2. The court concluded that, although the
criminal defendant “never pointed the gun at the deputies, . . . her overall
demeanor and actions were designed to, and did in fact, put the deputies
in fear of imminent serious bodily injury.”
Similarly, the Superior Court has upheld convictions for simple
assault by physical menace in other cases where a criminal defendant
merely brandished a firearm, without pointing it at his victims, and
aggravated assault subsection requires that the victim be one of [39]
enumerated ‘officers, agents, or employees,’ while the simple assault
subsection requires that the victim merely be another person.”),
, 870
A.2d 924 (Pa. Super. Ct. 2005), , 909 A.2d 1254 (Pa. 2006). We have
done the same here.
exhibited other hostile behavior. , 2026 WL 575199, at *5;
, 2014 WL 100803143, at *4; , 326
A.3d 1006, 1011 n.2 (Pa. Super. Ct. 2024) (noting, in the context of a
weight of the evidence claim, that even without the victim’s testimony
that the criminal defendant an AR-style rifle at her, other
evidence that the defendant brandished an AR-style rifle was sufficient
to prove simple assault by physical menace).
Based on the foregoing, we are unable to conclude that the plaintiff
can only prevail in this case by negating a necessary element of his
offense of conviction. On the record before us, viewed in the light most
favorable to the non-moving plaintiff, a reasonable jury could find that
Bentler did not raise or aim his rifle at Corporal Nederostek, and that
finding would not necessarily imply the invalidity of his criminal
conviction for aggravated assault by physical menace.9
9 In their reply brief, the defendants pivot to a new, albeit parallel,
argument in support of this same theory, shifting from whether Bentler
pointed or aimed a firearm at state troopers to a perfunctory argument
about whether Bentler more generally posed a serious risk of imminent
serious bodily injury. But arguments raised for the first time in a reply
brief are waived. , 623 F. Supp. 3d
526, 537 n.3 (E.D. Pa. 2022); , 622 F. Supp.
3d 89, 98 (E.D. Pa. 2022); , 616 F. Supp. 3d 394,
407 (M.D. Pa. 2022). Moreover, even without the benefit of any response
to this new argument from the non-moving plaintiff, we find it
unpersuasive. While both the criminal prosecution and this civil case
involve determinations touching on the prospect of serious bodily injury
at the time of the incident at the boat launch, the focus of that inquiry in
the criminal prosecution of Bentler for aggravated assault by physical
menace and the focus of that inquiry in connection with Bentler’s
excessive force claim are distinctly different. In this case, the court and a
jury must consider whether, under the circumstances presented, a
reasonable police officer in Corporal Nederostek’s shoes would have
perceived that Bentler posed an imminent threat of serious bodily injury
to that officer or to others present at the scene. In the state criminal
proceedings, the jury considered whether had the specific,
subjective intent to put Nederostek or the other troopers in fear of
imminent serious bodily injury, and whether Nederostek or the other
troopers were actually placed in such fear is relevant but not dispositive
of the charged offense. , 452 A.2d 809, 815
(Pa. Super. Ct. 1982); , 303 A.2d 781
(unpublished table decision), 2023 WL 4761797, at *8 (Pa. Super. Ct.
2023) (focusing on our plaintiff’s “specific intent” and whether “Bentler
intended to place the three state troopers in fear of imminent serious
bodily injury”); , 2014 WL 10803143, at *4 (focusing on whether “it
was [the criminal defendant’s] conscious object or purpose to cause fear
of serious bodily injury”) (quoting , 614 A.2d at 1151);
, 473 A.2d 1040, 1042–43 (Pa. Super. Ct.
1984) (focusing on whether the defendant “intended by his conduct to put
[the victim] in fear of imminent serious bodily injury”).
, 105 F.4th 520, 524 (M.D. Pa. 2024) (“[W]e
understand § 2702(a)(6) to require, at a minimum, some physical act with
the mental state of specific intent to threaten an officer or other
statutorily listed individual with corporeal harm.”) (internal quotation
marks and brackets omitted). A jury’s determination in this case that,
under the circumstances presented, a reasonable police officer would not
have perceived a threat of imminent serious bodily injury would not
necessarily imply the invalidity of the state court jury’s determination
that, under the very same circumstances, Bentler intended to put the
state troopers in fear of such an imminent serious bodily injury.
B. Corporal Nederostek and Qualified Immunity
The defendants have interposed an affirmative defense of qualified
immunity with respect to the plaintiff’s excessive force claim against
Corporal Nederostek.
“The doctrine of qualified immunity protects government officials
from liability for civil damages insofar as their conduct does not violate
clearly established statutory or constitutional rights of which a
reasonable person would have known.” , 555 U.S.
223, 231 (2009) (internal quotation marks omitted). “Qualified immunity
balances two important interests—the need to hold public officials
accountable when they exercise power irresponsibly and the need to
shield officials from harassment, distraction, and liability when they
perform their duties reasonably.” Qualified immunity “provides ample
protection to all but the plainly incompetent or those who knowingly
violate the law.” , 475 U.S. 335, 341 (1986). “Thus, so long
as an official reasonably believes that his conduct complies with the law,
qualified immunity will shield that official from liability.”
, 669 F.3d 144, 159 (3d Cir. 2012) (citing , 555 U.S. at
244). Although qualified immunity is generally a question of law that
should be considered at the earliest possible stage of proceedings, a
genuine dispute of material fact may preclude summary judgment on
qualified immunity. , 571 F.3d 318, 325–26 (3d Cir. 2009).
A qualified immunity determination involves a two-pronged
inquiry: (1) whether a constitutional or federal right has been violated;
and (2) whether that right was “clearly established.” , 533
U.S. 194, 201 (2001), , 555 U.S. at 236
(permitting federal courts to exercise discretion in deciding which of the
two prongs should be addressed first). “The relevant, dispositive
inquiry in determining whether a right is clearly established is whether
it would be clear to a reasonable officer that his conduct was unlawful in
the situation he confronted.” at 202.
In the Third Circuit, it is the party asserting the affirmative defense
of qualified immunity who bears the burden of persuasion.
, 750 F.3d 273, 288 (3d Cir. 2014). Thus, the moving defendants
must
show that there was no genuine dispute of material fact
to refute their contention that they did not violate [the
plaintiff’s] constitutional rights as he asserted them, or
show that reasonable officers could not have known
that their conduct constituted such a violation when
they engaged in it.
We start here with the first prong of the analysis. “The use
of excessive force during an arrest is a cognizable violation under the
Fourth Amendment.” , 40 F. Supp. 3d 467, 475 (E.D. Pa.
2014) (citing , 441 U.S. 520, 534 n.16 (1979)). “[A] plaintiff
may prevail on an excessive force claim if he can show that a seizure
occurred and that the seizure ‘was unreasonable under the
circumstances.’” , 484 Fed. App’x 676, 679 (3d Cir. 2012)
(quoting , 637 F.3d 177, 181 (3d Cir. 2011)).
“A seizure occurs when a suspect ‘submits to the police’s show of
authority or the police subject him to some degree of physical force.’”
at 680 (quoting , 183 F.3d 279, 291 (3d Cir. 1999)). Thus,
it is undisputed that Bentler was “seized” by Corporal Nederostek.
As for whether that seizure was reasonable, “we examine the
objective reasonableness of the officer[’s] conduct.”
, No. 22-2898, 2024 WL 3565308, at *8 (3d Cir. July 29, 2024)
(citing , 795 F.3d 410, 417 (3d Cir. 2015)). “This
requires that we consider whether under the totality of the
circumstances, the officer[’s] actions are objectively reasonable in light of
the facts and circumstances confronting them, without regard to their
underlying intent or motivations.” (internal quotation marks omitted)
(quoting , 361 F.3d 772, 776 (3d Cir. 2004)).
The following factors guide our analysis: (1) the
severity of the crime at issue, (2) whether the suspect
poses an imminent threat to the safety of the police or
others in the vicinity, (3) whether the suspect attempts
to resist arrest or flee the scene, (4) the possibility that
the persons subject to the police action are themselves
violent or dangerous, (5) the duration of the action,
(6) whether the action takes place in the context of
effecting an arrest, (7) the possibility that the suspect
may be armed, and (8) the number of persons with
whom the police officers must contend at one time.
at *8 n.16 (citation modified) (first quoting , 795 F.3d at 417
(citing , 490 U.S. 386, 396 (1989) (identifying the first
three factors)); and then quoting , 128 F.3d 810, 822 (3d
Cir. 1997) (identifying the last five factors),
, 499 F.3d 199, 209–11 (3d Cir. 2007));
, 216 F. Supp. 3d 544, 558 (E.D. Pa. 2016) (citing , 361 F.3d
at 776–77); , 40 F. Supp. 3d at 476. Courts of the Third Circuit have
also considered a ninth factor—whether the force led to physical injury
to the plaintiff. , 128 F.3d at 822; , 975
F.3d 327, 338 (3d Cir. 2020); , 216 F. Supp. 3d at 558.
Moreover,
[t]he ‘reasonableness’ of a particular use of force must
be judged from the perspective of a reasonable officer
on the scene, rather than with the 20/20 vision of
hindsight. . . . The calculus of reasonableness must
embody allowance for the fact that police officers are
often forced to make split-second judgments—in
circumstances that are tense, uncertain, and rapidly
evolving—about the amount of force that is necessary
in a particular situation.
, 490 U.S. at 396–97. “Because the inquiry is so fact-
dependent, . . . the reasonableness of the use of force is normally an issue
for the jury.” , 21 F.4th 74, 79 (3d Cir. 2021) (internal
quotation marks omitted).
With respect to the first factor—the severity of the crime at issue—
the moving defendants point to Nederostek’s awareness that Bentler had
assaulted someone and stolen a firearm the previous day.10 In response,
10 In their briefs, the defendants have included flourishes that rely
on disputed facts or on facts not included in their own statement of
material facts. The defendants’ briefs state that Bentler “brutally
assaulted an elderly citizen and stole a firearm and a truck.” Defs.’ Br.
Supp. 15, Doc. 64; Defs.’ Reply Br. 5, Doc. 80. Their statement of material
facts does not characterize the assault at all, stating only that Bentler
“physically assaulted” Enos White on July 19 , 2020. Defs.’ Statement of
Material Facts ¶ 1, Doc. 58. It also does not provide any characterization
of White as “elderly.” It is undisputed that Bentler assaulted White
and took the rifle from him, and Bentler pleaded guilty and was convicted
the plaintiff points to case law holding that the “severity of the crime”
under this factor decreases when the crime is completed and no longer in
progress at the time of the use-of-force incident, and thus constitutes a
factual dispute for a jury to determine.
, No. EDCV 20-438, 2021 WL 6618857, at *9 (C.D. Cal. Dec. 6,
2021) (citing , 929 F.3d 1125, 1136 (9th Cir. 2019)).
We agree that the facts regarding this factor are in genuine dispute.
With respect to the second factor—whether the suspect poses an
imminent threat to the safety of the police or others in the vicinity—the
moving defendants point to several facts that militate in favor of a finding
that Bentler posed such an imminent threat to safety, including
Nederostek’s awareness of the prior day’s assault and theft of a firearm
by Bentler,11 Bentler’s current possession of that firearm, and Bentler’s
refusal to comply with orders to drop the rifle.12 The plaintiff argues that
of simple assault and theft of movable property as a result. The plaintiff
has effectively demonstrated a genuine dispute of fact with respect to
whether Bentler was authorized to use the truck at issue.
11 The defendants also refer to a stolen truck, but whether Bentler
was authorized to use the truck is disputed. note 10.
12 The defendants also rely on a disputed fact—whether Bentler
raised the rifle to point it at the state troopers—and on Bentler’s “history
of drug use,” but the parties’ statements of material facts do not point to
he never posed an imminent threat to safety because he never raised the
rifle, and he was preparing to throw it down when shot. The facts
regarding this factor are in genuine dispute.
With respect to the third factor—whether the suspect attempts to
resist arrest or flee the scene—the moving defendants suggest that
Bentler evaded arrest after assaulting Enos White the day prior, and that
he resisted arrest by refusing to comply with the state troopers’ orders to
show his hands and drop his weapon. In response, the plaintiff points to
the fact that it was Bentler himself who called 911 to report his location
on July 20, to the fact that the truck was disabled at the time of the use-
of-force incident, and to the fact Bentler had made no effort to flee the
scene at that time.13 The plaintiff further points to case law holding that
any competent evidence of such a history. At most, the plaintiff’s history
as a drug user is a disputed fact.
13 The plaintiff also points to the absence of any evidence in the
record to suggest that Bentler was aware that a warrant had been issued
for his arrest as a result of the July 19 incident. The moving defendants
make a good point in reply to this fact: Our analysis of the reasonableness
of the seizure at issue is focused on the perspective of a reasonable police
officer at the scene, not the plaintiff’s subjective awareness. But while
Corporal Nederostek was clearly aware of the arrest warrant, there is no
evidence in the record to suggest that Bentler had “evaded” arrest in
connection with that incident. Regardless, this factor is sufficiently
disputed to make it a jury issue.
“noncompliance with commands does not, without more, rise to active
resistance.” , 97 F.4th 379, 396 (6th Cir. 2024).
The facts regarding this factor also remain in genuine dispute.
With respect to the fourth factor—the possibility that the persons
subject to the police action are themselves violent or dangerous—the
plaintiff has conceded that he had assaulted nonparty Enos White the
day before, and that he was in possession of a rifle. Nevertheless, the
plaintiff argues that this factor alone is not sufficient to justify the use of
deadly force. We agree that, standing alone, this factor is not dispositive
of the reasonableness analysis overall, but this factor clearly weighs in
favor of reasonableness.
With respect to the fifth factor—the duration of the action—the
parties spar over whether the relevant time period in this action is “a few
minutes” or “mere seconds,” with both parties relying on the Third
Circuit’s opinion in , 975 F.3d 327 (3d Cir. 2020).
In , the Third Circuit found this factor to weigh in favor of the plaintiff
with respect to an excessive force claim against a police officer where “the
situation unfolded over the course of a few minutes, not a few tense and
dangerous seconds.” at 337. The parties dispute whether the relevant
time frame for this factor is the period of a few minutes over which this
entire incident unspooled, or the period of approximately 45 seconds that
Corporal Nederostek was present on the scene before shooting Bentler.
Under these circumstances, we find the facts regarding this factor,
including the duration of the relevant time period to be considered,
remain in genuine dispute.
With respect to the sixth factor—whether the action takes place in
the context of effecting an arrest—it appears to be undisputed that the
action here took place in that context. While Bentler may have called 911
for help, there is no dispute that the responding state troopers were
advised by dispatchers that they were responding to a call involving a
person with a firearm, and they were aware that Bentler was subject to
an outstanding arrest warrant. The facts regarding this factor clearly
weigh in favor of reasonableness.
With respect to the seventh factor—the possibility that the suspect
may be armed—it is undisputed that Bentler was armed with a rifle. The
facts regarding this factor clearly weigh in favor of reasonableness.
With respect to the eighth factor—the number of persons with
whom the police officers must contend at one time—it is undisputed that
the state troopers outnumbered Bentler three to one.14 The facts
regarding this factor clearly weigh against reasonableness.
With respect to the ninth factor—whether the force led to physical
injury to the plaintiff—it is undisputed that Bentler sustained two
gunshot wounds as a result of this use-of-force incident. The facts
regarding this factor clearly weigh against reasonableness.
Based on the evidence of record, viewed in the light most favorable
to the non-moving plaintiff, a reasonable jury could conclude that
Corporal Nederostek’s use of deadly force against Bentler under the
circumstances set forth above constitutes an unreasonable seizure, in
violation of Bentler’s Fourth Amendment rights.
Despite the existence of a genuine dispute of material fact on the
merits of the plaintiff’s § 1983 excessive force claim, the defendants may
nevertheless prevail on summary judgment with respect to this claim
14 In their brief in support, the moving defendants suggest that this
factor is neutral because there was only one officer on the scene. Defs.’
Br. Supp. 14 n.5. This appears to be a drafting error by counsel, as it is
clearly undisputed that Corporal Nederostek was one of state
troopers on the scene at the time of the shooting. Trooper Smith arrived
on scene before Nederostek and had been verbally engaged with Bentler
before Nederostek’s arrival. Trooper Yanochko arrived at the same time
as Nederostek, in a separate vehicle.
under the second prong of the analysis.
“In determining whether a right has been clearly established, the
court must define the right allegedly violated at the appropriate level of
specificity.” , 669 F.3d at 159. If the right is defined too broadly, at
a high level of generality, it risks “convert[ing] the rule of qualified
immunity that our cases plainly establish into a rule of virtually
unqualified liability simply by alleging violation of extremely abstract
rights.” , 483 U.S. 635, 639 (1987). “We are thus
required to frame the right at issue in a more particularized, and hence
more relevant, sense, in light of the case’s specific context, not as a broad
general proposition.” , 800 F.3d 633,
638 (3d Cir. 2015) (citations and internal quotation marks omitted).
The contours of the right must be sufficiently clear that
a reasonable official would understand that what he is
doing violates that right. This is not to say that an
official action is protected by qualified immunity unless
the very action in question has previously been held
unlawful; but it is to say that in the light of pre-existing
law the unlawfulness must be apparent.
, 483 U.S. at 640 (citation omitted).
Here, the moving defendants suggest that the specific context is
whether a police officer may constitutionally use lethal force against an
individual who had brutally assaulted an elderly person,15 was suspected
of being high on illegal substances,16 stole a firearm and a vehicle,17 was
the subject of an arrest warrant, possessed a deadly weapon (a rifle),
violated and disregarded multiple officers’ orders to drop the rifle, and
then pointed his rifle toward the officer18 and the officer believed his own
life and others’ lives were in danger. Defs.’ Br. Supp. 9. They argue that
the plaintiff is unable to point to a prior decision addressing identical
facts.
At that level of specificity, there indeed appears to be no prior case
law finding an officer’s conduct unconstitutional.19 But this articulation
of this case’s specific context would effectively require us to find the
defendant “protected by qualified immunity unless the very action in
question has previously been held unlawful.” , 483 U.S. at
640. The plaintiff’s articulation of the specific context is closer to the
mark: Whether an individual holding a rifle and initially refusing
15 note 10.
16 note 12.
17 note 10.
18 note 12.
19 What case law exists cuts the other way, particularly based on a
firearm being pointed at a police officer or others.
commands to drop the weapon, but who is holding the rifle pointed down,
telling officers he needs help, and not pointing, leveling, or aiming the
rifle at himself or others, is constitutionally protected from the use of
lethal force. Pl.’s Br. Opp’n 19, Doc. 72. Ultimately, in the context of
summary judgment, where we are required to view the facts in the light
most favorable to the non-moving plaintiff, we find the specific context
presented to be: Whether a police officer may constitutionally use lethal
force against an individual who is holding a rifle, pointed down, who has
not pointed or aimed the rifle at officers or others, but who has refused
multiple commands to drop the rifle.
In evaluating whether a constitutional right is clearly established,
we must first look to factually analogous Supreme Court precedent, as
well as binding Third Circuit opinions. , 994 F.3d
157, 165 (3d Cir. 2021). Next, we must consider whether there is a “a
robust consensus of cases of persuasive authority.” ;
, 563 U.S. 731, 742 (2011). This persuasive authority may
include appellate decisions from other circuits, or district court decisions,
from within the Third Circuit or elsewhere. ; , 257
F.3d 309, 321 & n.10 (3d Cir. 2001).
Viewed in this context, it is apparent to us that any reasonable
officer would have known in July 2020 that the use of deadly force against
an individual holding a firearm, pointed down at the ground and not
pointed or aimed at officers or others, was unreasonable, despite the
individual’s prior refusal to comply with multiple commands to drop the
weapon. , 120 Fed. App’x
914, 918 (3d Cir. 2005) (holding that it had been “clearly established prior
to this [January 1994] incident . . . that under and [20] law
enforcement officers may not kill suspects who do not pose an immediate
threat to their safety or to the safety of others simply because they are
armed”) (internal quotation marks and brackets omitted);
, 118 F.4th 1044, 1067 (9th Cir. 2024) (holding that “it
was clearly established by June 22, 2018, that the use of deadly force is
unreasonable where the victim does not directly threaten the officer with
a weapon, even if the officers know the victim is armed”) (internal
quotation marks omitted); , 80 F.4th 264, 295
(4th Cir. 2023) (holding that “it was clearly established in September
2017 that an officer would contravene the Fourth Amendment by using
20 , 471 U.S. 1 (1985).
deadly force against a suspect who is holding a firearm in his hand and
ignoring commands to drop the weapon, but who is standing still in a
position of surrender, is not firing the weapon or aiming it any person,
and is not otherwise making a furtive or threatening movement that
would suggest he had an intent to use the weapon to harm the officer or
anyone else”).
In their supporting brief, the moving defendants cite several cases
from courts in this circuit in support of their argument on this point, but
the cited cases are inapposite. In , No. 18-
1019, 2022 WL 952855 (W.D. Pa. Mar. 30, 2022), the plaintiff’s decedent
not only had “a gun in his hand, raised to fire,” but he actually exchanged
gunfire with the officer who shot him. at *1. In
, No. 3:10-CV-388, 2013 WL 1339027 (M.D. Pa. Apr. 1, 2013), the
plaintiff’s decedent did not merely have a weapon in her hand, but she
had “rapidly approached [an officer] with a knife, ignored the officers’
warnings to stop and drop the knife, and was within several feet of [the
officer] when she was shot.” at *6; at *2 (noting that it
was undisputed that the decedent had approached the officer “while
pointing the knife at him” and that the entire incident occurred over “a
matter of seconds”). In , No. 1:14-CV-219, 2017 WL
11368374 (M.D. Pa. Nov. 3, 2017), , 2019 WL 3549603
(M.D. Pa. Aug 5, 2019), a police officer observed a suspect slashing the
tires of a police van with a knife and gave chase on foot; the officer lunged
at the fleeing suspect who was armed with a knife, but missed and fell to
the ground; the suspect then turned to face the prone officer with the
knife still in his hand, and the officer shot him.
In their reply brief, the moving defendants have attempted to
appropriate the decision cited by the plaintiff to support their
own case. They point to language in the decision indicating that the
plaintiff was not “making a furtive or threatening movement
that would suggest he had an intent to use the weapon to harm the officer
or anyone else,” , 80 F.4th at 295–96, suggesting that Bentler was
doing so in this case. But their reply brief cites to no evidence in the
record that Bentler did make any such furtive or threatening movement
with the rifle, and, viewing the evidence of record in the light most
favorable to the non-moving plaintiff, we have found that while Bentler
was holding the rifle at the time he was shot, it was pointed at the
ground.
Accordingly, we find that the defendants have failed to meet their
burden of persuasion with respect to the affirmative defense of qualified
immunity.
C. PSP and Qualified Immunity
The defendants contend that PSP is entitled to qualified immunity
from the plaintiff’s ADA and RA statutory claims.21 But it is well
established that government entities and other institutional defendants
are simply not entitled to qualified immunity, which is available only to
individual defendants sued in their capacity.
, 445 U.S. 622, 655–56 (1980) (holding that government
entities are not entitled to qualified immunity and justifying qualified
immunity for individual officers based on “the concern that the threat of
monetary liability will introduce an unwarranted . . .
consideration into the decisionmaking process”);
21 We note that, as a state agency, the PSP is not entitled to
Eleventh Amendment immunity under the ADA with respect to conduct
that also violates the Constitution. , 546 U.S.
151, 159 (2006). Moreover, as a presumptive recipient of federal funds,
PSP has waived Eleventh Amendment immunity with respect to Section
504 of the Rehabilitation Act. , 82 F.4th 217, 227
(3d Cir. 2023); , 302 F.3d 161, 171 (3d Cir. 2002).
Thus, qualified immunity is the only affirmative defense interposed by
the defendants on behalf of PSP on summary judgment.
, 213 F.3d 344, 346 (7th Cir. 2000) (“Qualified immunity is a
personal defense, which does not apply to institutional defendants in
suits under federal statutes.”) (citing ),
, 531 U.S. 356, 374 n.9 (2001); ,
570 F. Supp. 3d 1078, 1095 (D.N.M. 2021) (noting in the discovery context
that “a state government agency . . . is not a public official entitled to
assert qualified immunity”); , 465 F. Supp. 3d 1165,
1175 (W.D. Wash. 2020) (“[Q]ualified immunity does not apply to Title II
claims because qualified immunity is a defense afforded to officials sued
in their individual capacities and Title II [of the ADA] authorizes suits
against public entities, not individuals.”) (internal quotation marks and
brackets omitted).
D. ADA and RA Claims on the Merits
In Counts IV and V of the complaint, Bentler asserts disability
discrimination claims against the PSP under Title II of the ADA and
Section 504 of the RA. Title II of the ADA provides that “no qualified
individual with a disability shall by reason of such disability be excluded
from participation in or be denied the benefits of the services, programs,
or activities of a public entity or be subjected to discrimination by any
such entity.” 42 U.S.C. § 12132. Section 504 of the RA provides that “[n]o
otherwise qualified individual with a disability . . . shall, solely by reason
of her or his disability, be excluded from participation in, be denied the
benefits of, or be subject to discrimination under any program or activity
receiving Federal financial assistance.” 29 U.S.C. § 794(a).
“Whether suit is filed under the Rehabilitation Act or under the
Disabilities Act, the substantive standards for determining liability are
the same.” , 62 F.3d 92, 95 (3d Cir.1995). To
prevail on a claim under Title II of the ADA, a plaintiff “must
demonstrate: (1) he is a qualified individual; (2) with a disability; (3) who
was excluded from participation in or denied the benefits of the services,
programs, or activities of a public entity, or was subjected to
discrimination by any such entity; (4) by reason of his disability.”
, 885 F.3d 170, 178 (3d Cir. 2018) (quoting
, 475 F.3d 524, 553 n.32 (3d Cir. 2007) (brackets
omitted). “Where compensatory damages are sought, a plaintiff must also
show intentional discrimination under a deliberate indifference
standard.” , 82 F.4th 217, 225 (3d Cir. 2023);
, 933 F.3d 285, 289 (3d Cir. 2019);
, 729 F.3d 248, 263 (3d Cir. 2013). “The
elements of a claim under the RA are the same, except that the plaintiff
must also show that the program in question received federal dollars.”
, 82 F.4th at 225; , 734 F.3d 229,
235 n.10 (3d Cir. 2013).
The defendants first argue that the plaintiff’s disability
discrimination claims are barred altogether under a categorical and
atextual “exigent circumstances” exception to the ADA first articulated
by the Fifth Circuit in , 207 F.3d 795 (5th Cir. 2000).
In , the Fifth Circuit held that “Title II does not apply to an
officer’s on-the-street responses to reported disturbances or other similar
incidents, whether or not those calls involve subjects with mental
disabilities, prior to the officer’s securing the scene and ensuring that
there is no threat to human life.” , 207 F.3d at 801.
Other circuits have rejected ’s categorical approach, holding
that Title II of the ADA applies to law enforcement arrests and
investigations with any exigent circumstances merely factoring into the
reasonableness of the officer’s actions or the requested accommodation.
, 743 F.3d 1211, 1232 (9th Cir. 2014)
(“We agree with the majority of circuits to have addressed the question
that Title II applies to arrests. . . . [E]xigent circumstances inform the
reasonableness analysis under the ADA . . . .”), ,
575 U.S. 600 (2015); ,
673 F.3d 333, 339 (4th Cir. 2012) (“[N]othing in the text of the ADA
suggests that a separate exigent-circumstances inquiry is appropriate.”);
(“[W]hile there is no separate exigent-circumstances inquiry, the
consideration of exigent circumstances is included in the determination
of the reasonableness of the accommodation.”);
, 480 F.3d 1072, 1085 (11th Cir. 2007) (“[T]he question is not so much
one of the applicability of the ADA because Title II prohibits
discrimination by a public entity by reason of [a person’s] disability. The
exigent circumstances presented by criminal activity and the already
onerous tasks of police on the scene go more to the reasonableness of the
requested ADA modification than whether the ADA applies in the first
instance.”); , 954 F.3d 981, 988
(7th Cir. 2020) (assuming without deciding that Title II applied to an
officer’s use of lethal force against a subject who ran at him with a knife);
, 917 F.3d 1, 17 (1st Cir. 2019) (assuming without
deciding that “Title II of the ADA applies to ad hoc police
encounters . . .and that exigent circumstances may shed light on the
reasonableness of an officer’s actions”); , 870 F.3d
471, 489 (6th Cir. 2017) (assuming without deciding that Title II applies
to arrests, but noting that decisions applying Title II to arrests “have also
noted that the exigent circumstances inherent in an arrest inform the
reasonable-accommodation analysis”); , 186 F.3d
1216, 1221 (10th Cir. 1999) (“[A] broad rule categorically excluding
arrests from the scope of Title II . . . is not the law.”) (rejecting a similar
categorical rule that police protection was not an individualized benefit
of a public entity’s “services, programs, or activities” under the ADA).
, 695 F.3d 778, 785–86 (8th Cir. 2012) (“The
duties of police officers during a traffic stop call for the exercise of
significant judgment and discretion, and we will not second guess those
judgments, where, as here, an officer is presented with exigent or
unexpected circumstances. In these circumstances, it would be
unreasonable to require that certain accommodations be made in light of
overriding public safety concerns.”) (citing ). This court and other
district courts within this circuit have rejected it as well, albeit in the
context of motions to dismiss. , No. 3:23-CV-
01632, 2024 WL 2214686, at *13–15 (M.D. Pa. May 15, 2024);
, No. 3:22-1107, 2023 WL 3510822, at *10 n.2 (M.D. Pa. 2023),
Doc. 29; , 945 F. Supp. 2d 574, 591 n.15 (M.D. Pa.
2013); , 809 F. Supp. 2d 384, 399–400 (W.D. Pa.
2011); , 340 F. Supp. 2d 550, 554 & n.2 (M.D. Pa.
2004). has its critics even within the Fifth Circuit. ,
, 936 F.3d 326, 333 (5th Cir. 2019) (Ho, J.,
concurring in the judgment) (“In . . . , our court created a
categorical ‘exigent circumstances’ defense that appears nowhere in the
text of either the Americans with Disabilities Act or the Rehabilitation
Act. So it is not surprising that every circuit to opine on this issue has to
our knowledge rejected our approach.”) (collecting cases).
The defendants nevertheless urge us to adopt the exigent
circumstances exception articulated in . But we find ’s
categorical approach to be inconsistent with the approach employed by
the Third Circuit in , 885 F.3d 170 (3d Cir. 2018), which
is binding circuit precedent.
In , the Third Circuit examined a plaintiff’s arrest-related
ADA claim element by element to determine whether the ADA applies
when police officers make an arrest. at 178. With respect to the
first element, it concluded that arrestees “can be ‘qualified individuals’
under the ADA, . . . for there is nothing to categorically exclude them
from the statute’s broad coverage.” at 179. Addressing the second
element—whether arrestees may have disabilities covered by the ADA—
the Third Circuit concluded that “the answer to that is clearly ‘yes.’”
Turning next to the fourth element, the Third Circuit concluded that: “If
the arrestee’s disability played a role in the decisionmaking process and
had a determinative effect on the outcome of the process, , if the
arrestee’s disability was a ‘but for’ cause of the deprivation or harm he
suffered, then the fourth element of an ADA claim has been met.”
(citation modified).
The Third Circuit then returned to the third, “most controversial”
element: “[W]hether arrests made by police officers are ‘services,
programs, or activities of a public entity,’ or alternatively, whether police
officers may be liable under the ADA for ‘subjecting a qualified individual
to discrimination’ while effectuating an arrest.” (brackets omitted).
The Third Circuit noted that courts across the country were divided on
whether police investigation and arrests constitute “services, programs,
or activities of a public entity.” at 180. But it declined to resolve that
question, finding the alternative prong of the third element—whether the
arrestee was “subjected to discrimination” by the police—was
determinative, explaining:
The ”subjected to discrimination” phrase in Title II is a
catch-all phrase that prohibits all discrimination by a
public entity, regardless of the context. Moreover, we
have said that discrimination under the ADA
encompasses not only adverse actions motivated by
prejudice and fear of disabilities, but also includes
failing to make reasonable accommodations for a
plaintiff’s disabilities. It follows then, that police
officers may violate the ADA when making an arrest by
failing to provide reasonable accommodations for a
qualified arrestee’s disability, thus subjecting him to
discrimination. Given that catchall, we believe that the
ADA can indeed apply to police conduct during an
arrest.
(citations omitted) (citation modified); , 917 F.3d at 16
(characterizing as “holding that Title II applies without
exception to ad hoc police encounters”).
It follows then that, “[u]nder this approach, exigent circumstances
attendant to a police officer’s decisions during an ad hoc encounter simply
weigh in the balance when evaluating the reasonableness of a prospective
ADA accommodation.” , 917 F.3d at 16 (citing , 885 F.3d at
181 n.11); , 885 F.3d at 181 n.11 (acknowledging that “[t]he
analysis as to what is ‘reasonable’ under the circumstances,
, and as to how their determination is reached,
presents complicated issues”) (emphasis added);
, 556 F.3d 171, 175 (4th Cir. 2009)
(“Reasonableness in law is generally assessed in light of the totality of
the circumstances, and exigency is one circumstance that bears
materially on the inquiry into reasonableness under the ADA.
Accommodations that might be expected when time is of no matter
become unreasonable to expect when time is of the essence.”).
Thus, we decline to adopt and apply the Fifth Circuit’s categorical
exigent circumstances exception in this case. Moreover, even if the
exigent circumstances exception were applicable to the adjudication of
disability discrimination claims in the Third Circuit, based on the facts
of record, viewed in the light most favorable to the non-moving plaintiff,
we find that the level of exigency present at the time and place when
Bentler was shot by Corporal Nederostek is a disputed material fact.
, No. 4:04-CV-978, 2005 WL 2250840, at *6 n.8
(M.D. Pa. Sept. 15, 2005).
The defendants contend that the plaintiff is unable to establish a
prima facie case under the ADA, presenting several cursory arguments
seriatim.
The defendants first argue that the plaintiff’s ADA claim fails as a
matter of law because an arrest is not a “service” or an “activity” under
Title II of the ADA. In support, the defendants note that, in , the
Third Circuit declined to decide whether an arrest constitutes a service
or activity under Title II. , 85 F.3d at 180. But the reason the
Third Circuit declined to determine whether an arrest constitutes a
“service” or “activity” under Title II is “because § 12132 is framed in the
alternative,” and it instead looked “to the second phrase, namely, to
whether the arrestee was ‘subjected to discrimination’ by the police.”
As we noted above, under this second phrase, the Third Circuit held that
“police officers may violate the ADA when making an arrest by failing to
provide reasonable accommodations for a qualified arrestee’s disability,
thus subjecting him to discrimination.”
The defendants next argue that the plaintiff’s ADA and RA claims
fail as a matter of law because, under the “significant risk” or “direct
threat” exception, Bentler was not a “qualified individual” in light of his
possession of a rifle and his failure to comply with orders from the state
troopers.22
The direct threat (or significant risk) exception began as a judicially
created doctrine first articulated by the Supreme Court in
, 480 U.S. 273 (1987). ,
242 F.3d 437, 447 n.6 (3d Cir. 2001). It stems from a recognition “of the
importance of prohibiting discrimination against individuals with
disabilities while protecting others from significant health and safety
risks, resulting, for instance, from a contagious disease.”
, 524 U.S. 624, 649 (1998).
In , an elementary school teacher who had been fired from
her job, solely because of her susceptibility to recurrent and contagious
tuberculosis, brought a disability discrimination action under the
22 The moving defendants also rely on Bentler’s alleged pointing of
the weapon at Corporal Nederostek and other individuals, which we of
course disregard on summary judgment as a disputed material fact.
Rehabilitation Act.23 The Supreme Court concluded that, although her
tuberculosis clearly constituted a disability, and notwithstanding her
other qualifications for the schoolteacher job, “[a] person who poses a
significant risk of communicating an infectious disease to others in the
workplace will not be otherwise qualified for his or her job if reasonable
accommodation will not eliminate that risk.” , 480 U.S. at 287 n.16.
The Court instructed that, to determine whether Arline was otherwise
qualified for the job of elementary schoolteacher, “the district court will
need to conduct an individualized inquiry and make appropriate findings
of fact.” at 287. The Court further explained that:
In the context of the employment of a person
handicapped with a contagious disease, . . . this inquiry
should include findings of facts, based on reasonable
medical judgments given the state of medical
knowledge, about (a) the nature of the risk (how the
disease is transmitted), (b) the duration of the risk
(how long the carrier is infectious), (c) the severity of
the risk (what is the potential harm to third parties),
and (d) the probabilities the disease will be transmitted
and will cause varying degrees of harm.
at 287–88 (internal quotation marks and brackets omitted). Finally,
the district court was instructed to “evaluate, in light of these medical
23 We note that the ADA was enacted three years later, in 1990.
findings, whether the employer could reasonably accommodate the
employee under the established standards for that inquiry.” at 288.
Finding the record on these issues inadequately developed, the Supreme
Court remanded the case for further findings of fact. at 289.
Following that decision, Congress amended the Rehabilitation Act
to codify the Supreme Court’s holding, although notably limited to the
employment context only. Civil Rights Restoration Act of 1987, Pub.
L. No. 100-259, § 9, 102 Stat. 28 (1988) (codified at 29 U.S.C.
§ 705(20)(D)) (“For the purposes of sections 503 and 504, as such sections
relate to employment, such term does not include an individual who has
a currently contagious disease or infection and who, by reason of such
disease or infection, would constitute a direct threat to the health or
safety of other individuals or who, by reason of the currently contagious
disease or infection, is unable to perform the duties of the job.”).
When enacted in 1990, the ADA also codified by
incorporating the direct threat (or significant risk) exception into Title I
of the ADA, which prohibits disability discrimination in the public and
private employment context. 42 U.S.C. § 12113 (providing employers
with an affirmative defense to a discrimination charge based on
“qualification standards” that “may include a requirement that an
individual shall not pose a direct threat to the health or safety of other
individuals in the workplace”); § 12111(3) (defining “direct
threat” as “a significant risk to the health or safety of others that cannot
be eliminated by reasonable accommodation”). Shortly thereafter, the
EEOC promulgated regulations to implement these statutory provisions.
29 C.F.R. § 1630.15(b) (implementing 42 U.S.C. § 12113); 29 C.F.R.
§ 1630.2(r) (defining “direct threat” and codifying the analytical
framework).
The ADA also incorporated the direct threat (or significant risk)
exception into Title III of the ADA, which prohibits disability
discrimination by providers of public accommodations. 42 U.S.C.
§ 12182(b)(3) (“Nothing in [Title III] shall require an entity to permit an
individual to participate in or benefit from the goods, services, facilities,
privileges, advantages and accommodations of such entity where such
individual poses a direct threat to the health or safety of others. The term
‘direct threat’ means a significant risk to the health or safety of others
that cannot be eliminated by a modification of policies, practices, or
procedures or by the provision of auxiliary aids or services.”). Shortly
thereafter, the Department of Justice promulgated a regulation to
implement this statutory provision. 28 C.F.R. § 36.208.
Upon enactment, Title II of the ADA, which prohibits disability
discrimination by public entities regardless of activity,24 did not include
any similar reference to the direct threat or substantial risk exception.
The implementing regulations promulgated by the Department of Justice
shortly thereafter likewise omitted any reference to the direct threat or
substantial risk exception. In promulgating those regulations, however,
the Department commented on its regulatory definition of the term
“qualified individual with a disability,” noting that “[w]here questions of
safety are involved, the principles established in § 36.208 [(implementing
Title III)] will be applicable,” and discussing the direct threat exception
and application of the analytical framework under Title II.
Nondiscrimination on the Basis of Disability in State and Local
Government Services, 56 Fed. Reg. 35694, 35701 (July 26, 1991).
Notwithstanding the absence of any express statutory or regulatory
24 , 490 F.3d
293, 301 (3d Cir. 2007) (“Section 12132 of Title II of the ADA . . .
constitutes a general prohibition against discrimination by public
entities, regardless of activity.”).
provision, the Third Circuit and other federal courts have applied the
direct threat (or substantial risk) exception in the context of public
entities on multiple occasions. ,
, 490 F.3d 293, 305–07 (3d Cir. 2007); , 242 F.3d at
447–452. Eventually, the Department promulgated new regulations to
codify the direct threat (or substantial risk) exception and application of
the analytical framework in the Title II public entity context.
Nondiscrimination on the Basis of Disability in State and Local
Government Services, 75 Fed. Reg. 56164, 56180 (Sept. 15, 2010)
(codified at 28 C.F.R. § 35.139). This regulation provides:
(a) [Title II] does not require a public entity to
permit an individual to participate in or benefit from
the service, programs, or activities of that public entity
when that individual poses a direct threat to the health
or safety of others.
(b) In determining whether an individual poses a
direct threat to the health or safety of others, a public
entity must make an individualized assessment, based
on reasonable judgment that relies on current medical
knowledge or on the best available objective evidence,
to ascertain: the nature, duration, and severity of the
risk; the probability that the potential injury will
actually occur; and whether reasonable modifications
of policies, practices, or procedures or the provision of
auxiliary aids or services will mitigate the risk.
28 C.F.R. § 35.139. In another section, the regulations define “direct
threat” as “a significant risk to the health or safety of others that cannot
be eliminated by a modification of policies, practices or procedures, or by
the provision of auxiliary aids or services as provided in § 35.139.”
§ 35.104.
Typically, Title II cases involving application of the direct threat
exception have dealt with communicable diseases or with laws restricting
on the placement of substance abuse treatment services facilities.25
, 490 F.3d 293 (challenge to state statute restricting
placement of methadone clinics); , 242 F.3d 437 (challenge to county
policy precluding placement of non-HIV positive children in foster home
that included an HIV-positive child with AIDS);
, 489 F. Supp. 3d 333 (E.D. Pa. 2020)
(challenging local ordinance placing restrictions on operation of
methadone clinic, and imposing additional fees on patients residing
there). In , however, the Third Circuit acknowledged that there
remained an open question whether, under the significant risk test, “a
potentially violent person with mental health problems who, while
25 Other cases involving the direct threat exception within this
circuit mostly appear to arise in the employment (Title I) or public
accommodation (Title III) contexts.
possessing a gun, barricades himself in another person’s apartment is a
‘qualified individual’ under the ADA.” , 85 F.3d at 179 n.9.
But the court expressly declined to address the applicability of the direct
threat exception in the context of an arrest or use of force by police in that
case, reserving the issue for another day.
The moving defendants urge us to take up the issue reserved in
and apply the direct threat (or significant risk) exception here to
find that Bentler was not a qualified individual under the ADA because
he posed a significant risk to the health or safety of others that could not
be eliminated by any reasonable accommodation. But we decline to do so
for two reasons.
First, as the Third Circuit has recognized, “the significant risk test
requires a rigorous objective inquiry.” , 490 F.3d at 305.
“The existence, or nonexistence, of a significant risk must be determined
from the standpoint of the person who refuses the . . . accommodation,
and the risk assessment must be based on medical or other objective
evidence.” , 524 U.S. at 649. A defendant’s subjective “belief that
a significant risk existed, even if maintained in good faith, would not
relieve him from liability.” ; , 490 F.3d at 306
(“[W]e cannot base our decision on the subjective judgments of the people
purportedly at risk . . . .”). Here, the defendants have relied solely on the
subjective assessment of risk by Corporal Nederostek. They have failed
to adduce the sort of “objective, scientific information” necessary to
properly ascertain the nature, duration, and severity of the risk posed by
Bentler at the time when Nederostek shot him, the probability that any
potential injury would actually occur, or whether that risk could be
eliminated by any reasonable accommodation. In sum, the moving
defendants have failed to develop a sufficient record to support
application of the direct threat (or significant risk) exception in this case.
Second, there remain genuine disputes of material fact with respect
to elements of the direct threat (or significant risk) exception. The nature
of the risk posed by Bentler is a disputed issue of material fact—the
moving defendants have expressly relied on the factual contention that
Bentler pointed or aimed his rifle at state troopers, which has been
effectively disputed by the plaintiff. Whether any risk posed could be
eliminated by reasonable accommodation is also a disputed issue of
material fact—the moving defendants have failed to adduce any evidence
whatsoever to suggest that any risk posed by Bentler could not be
eliminated or mitigated by reasonable accommodations.26
Thus, based on the evidence of record, viewed in the light most
favorable to the non-moving plaintiff, we are unable to conclude that
Bentler was not a “qualified individual” under the ADA in light of his
possession of a rifle and his failure to comply with orders from the state
troopers.
The defendants next argue that the plaintiff is unable to adduce
sufficient evidence to establish that he was disabled for ADA purposes.
Under the ADA, the term “disability” is defined as: (1) “a physical
or mental impairment that substantially limits one or more major life
activities”; (2) “a record of such an impairment”; or (3) “being regarded as
having such an impairment.” 42 U.S.C. § 12102(1). “There is no question
that a mental health disorder qualifies as a disability.” ,
No. 3:13-CV-01151, 2016 WL 7155988, at *16 (M.D. Pa. Dec. 7, 2016)
26 The plaintiff’s complaint alleges several proposed reasonable
accommodations, including, but not limited to: “employing the passage of
time to advantage, using non-threatening communication, respecting the
individual’s comfort zone and not unreasonably agitating or exciting the
individual and instead calming the situation.” Compl. ¶ 170, Doc. 1. On
summary judgment, the defendants have not raised any challenge at all
with respect to the plaintiff’s claims on this issue.
(citing , 334 F.3d 318, 329 (3d Cir.
2003)), , 714 Fed. App’x 128 (3d Cir. 2017).
The plaintiff has responded by pointing to evidence of his disability
in the record. In or about 2014, Bentler was diagnosed with depression,
anxiety, post-traumatic stress disorder, and bipolar disorder.27 He was
prescribed multiple medications related to those diagnoses, but which he
stopped taking in the months prior to the boat launch incident. At his
deposition, Bentler testified that his mental health conditions impacted
his daily life in that he was subject to constant mood changes, an inability
to socialize, feelings of isolation, and fear of large groups. Pl. Ex. B
(Bentler Dep. Tr.), at 91–94, Doc. 71-2. He testified that, on the date of
the boat launch incident, his various mental health symptoms were
27 Although courts must “determine the existence of disabilities on
a case-by-case basis,” , 527 U.S. 555,
566 (1999), mental health impairments such as these have previously
been recognized as disabilities by both federal courts and federal agencies
under appropriate circumstances. , 29 C.F.R. § 35.108(d)(2)(iii)
(recognizing that “it should easily be concluded that” mental
impairments such as “[m]ajor depressive disorder, bipolar disorder, [and]
post-traumatic stress disorder” “will, at a minimum, substantially
limit . . . brain function”); , 184 F.3d 296,
306–11 (3d Cir. 1999) (finding a genuine dispute of material fact with
respect to whether a plaintiff’s bipolar disorder substantially limited her
ability to think even while receiving treatment, such that it constituted
a disability under the ADA).
intensified, stating that it “just seemed like my world was crashing down
for some reason” and that his “anxiety was through the roof because I
didn’t know what was going to really happen.” at 84. Bentler called
911 from the boat launch, informing the operator that he needed medical
help because he was not mentally stable. Pl. Ex. I-1 (911 call recording,
pt. 1), Doc. 74. After explaining his location, Bentler stated to the
operator: “I’m just not in the right state of mind. I feel like hurting myself
or someone else. I just need help.” Bentler later stated to the operator:
“Please don’t send people to excessive force me because I’m not in the
right state of mind so I don’t know what I’m capable of. I need to go to the
hospital to get checked out.” Pl. Ex. I-2 (911 call recording, pt. 2), Doc. 74.
He later told the operator that: “I haven’t been in the right state of mind
for a couple of days now,” and that “I have a gun, I have a knife, . . . I
don’t know what the fuck I’m doing.” The 911 dispatcher contacted a
PSP dispatcher to relay the call information, informing PSP that Bentler
was armed and that he was “out of his mind” and “not in the right state
of mind.” Pl. Ex. J-3 (PSP dispatch call recording, pt. 3), Doc. 74. The PSP
dispatcher relayed to the responding state troopers that Bentler was not
in a good place and needed help.
Based on the evidence of record, viewed in the light most favorable
to the non-moving plaintiff, a reasonable jury could conclude that Bentler
suffered from one or more mental impairments that substantially limited
one or more major life activities, or that he was regarded as having such
an impairment, and that he was therefore disabled for ADA purposes.
The defendants next argue that the plaintiff is unable to adduce
sufficient evidence that PSP was aware of Bentler’s disability.
The plaintiff has responded by pointing to evidence in the record
that PSP was indeed aware of his disability. In addition to information
conveyed to and between county and PSP dispatchers and responding
state troopers, as set forth above, the record includes documentary
evidence indicating that PSP had at least twenty-one prior contacts with
Bentler. A check of PSP’s Query Initial Crime (QIC) database revealed
thirteen records identifying Bentler as a suspect or accused, and a check
of PSP’s Computer-Aided Dispatch (CAD) database revealed an
additional eight incidents involving Bentler. Moreover, CAD included
numerous “CAUTION” flags attached to Bentler’s record: “Combative,”
“Escape History,” “Known Drug User,” “Mentally Unstable,” “Violent
Tendencies,” and “Suicidal.” CAD also included a noted disability:
“Mental Disability / Senile.” Defs. Ex. 2 (Gen. Offense Rep.), at 20, Doc.
58-2. The record includes investigatory interview transcripts in which
Corporal Nederostek admitted that he had been informed by dispatch
that Bentler was “in a bad mental state and needed help,” Pl. Ex. D
(Nederostek Interview Sept. 18, 2020), at 4, Doc. 71-4; Pl. Ex. E
(Nederostek Interview July 23, 2020), at 1, Doc. 71-5, in which Trooper
Smith admitted that dispatch had informed them that Bentler was “not
in a good place,” and thus “could be a danger to himself or others,” Pl. Ex.
F (Smith Interview Sept. 17, 2020, at 12, Doc. 71-6, and in which Trooper
Yanochko acknowledged having previously assisted with a “302” civil
commitment involving Bentler, Pl. Ex. G (Yanochko Interview July 20,
2020), at 5, Doc. 71-7.
Based on the evidence of record, viewed in the light most favorable
to the non-moving plaintiff, a reasonable jury could conclude that PSP
was aware of Bentler’s longstanding mental health and behavioral
issues, as well as the mental health crisis occurring at that moment, and
thus it was aware of his disability.
The defendants next argue that, to the extent he seeks to hold PSP
liable under a failure-to-train theory, the plaintiff is unable to adduce
sufficient evidence that PSP was deliberately indifferent to Bentler’s
protected rights.
Because Bentler seeks compensatory damages, he must
demonstrate intentional discrimination by PSP under a deliberate
indifference standard. To establish deliberate indifference, an ADA or RA
claimant must show “(1) knowledge that a federally protected right is
substantially likely to be violated and (2) failure to act despite that
knowledge.” , 885 F.3d at 181 (ellipsis omitted); ,
82 F.4th at 226. With respect to a government or corporate entity, the
knowledge element may be met in one of two ways: (a) by showing that
“existing policies caused a failure to adequately respond to a pattern of
past occurrences of injuries like the plaintiffs’”; or (b) by showing “that
the risk of cognizable harm was so great and so obvious that the risk and
the failure to respond will alone support finding deliberate indifference.”
, 885 F.3d at 181 (citation modified). Bentler relies on the second
option, contending that risk of harm was “so great and so obvious.”
The moving defendants have pointed to evidence that PSP has
adopted policies and, pursuant to those policies, established both entry-
level and continuing-education training programs for its members
concerning uses of force and situations involving individuals with mental
illness. The non-moving plaintiff, meanwhile, has pointed to an employee
training transcript for Corporal Nederostek and to his own deposition
testimony to suggest that the individual defendant received no training
or inadequate training with respect to situations involving interaction
with individuals suffering from mental health disabilities. The plaintiff
further points to the conduct of Corporal Nederostek and Trooper Smith
during the boat launch incident, which contravened PSP’s official policy
and procedures for incidents involving persons with mental illness or
mental health emergencies. Moreover, as the plaintiff has noted, while
the defendants produced copies of certain PSP policies and Corporal
Nederostek’s training transcript in discovery, no training materials were
produced to substantiate whether or to what extent Nederostek, Smith,
Yanochko, or PSP troopers in general received training on de-escalation
or other mental-health related police practices.
Based on the evidence of record, viewed in the light most favorable
to the non-moving plaintiff, a reasonable jury could conclude that, despite
knowing of the obvious risk that its troopers might discriminate on the
basis of disability or fail to make reasonable accommodations when
encountering individuals with mental health conditions, the PSP failed
to provide its troopers with adequate specialized training for interacting
with such individuals with mental health conditions, and that PSP was
therefore deliberately indifferent to Bentler’s protected rights.
The defendants next argue that PSP cannot be held vicariously
liable under the ADA or the RA for the deliberately indifferent conduct of
its employees.
Although the Third Circuit has not addressed this issue, this court
and others within this circuit have repeatedly held that a public entity
may be held vicariously liable for money damages under the ADA and RA
for the purposeful or deliberately indifferent conduct of its employees.
, No. 1:24-CV-01654, 2025 WL 2884820, at *13
(M.D. Pa. Oct. 9, 2025) (“Under Title II of the ADA, public entities are
vicariously liable for the actions of their employees.”); , 2024
WL 2214686, at *10 (holding that PSP may be held vicariously liable
under the ADA and RA for the deliberately indifferent acts of its officers);
, No. 25-454, 2026 WL 184523, at *4 (D. Del.
Jan. 23, 2026) (finding plaintiff had stated plausible ADA and RA claims
against municipal police departments where responding municipal police
officers knew the plaintiff was an emotionally disturbed person but
responded aggressively and did not attempt to de-escalate the situation
or use nonlethal force), , 2026 WL 374565 (D. Del. Feb.
10, 2026); , 693 F. Supp. 3d 467, 489 (E.D.
Pa. 2023) (“Under Title II of the ADA, . . . public entities are vicariously
liable for the acts of their employees.” (internal quotation marks and
brackets omitted)); , 503 F. Supp. 3d 318, 339–40
(W.D. Pa. 2020) (holding that the Commonwealth of Pennsylvania may
be held vicariously liable under the ADA for deliberately indifferent
conduct by state trial court judges); , 456 F. Supp. 3d
666, 671 (E.D. Pa. 2020) (“When a public entity . . . is sued under Title II
[of the ADA], the entity is vicariously liable for the acts of its
employees.”); , 910 F. Supp. 187, 195 (M.D. Pa. 1995)
(noting that a hospital may be held vicariously liable under the ADA for
the conduct of a physician-surgeon if employed by the hospital).28
The moving defendants have identified no reason to depart from
this line of authority.29 Thus, we find that, as a public entity, PSP may be
held vicariously liable for the deliberately indifferent acts of the
responding state troopers under Title II of the ADA and under Section
504 of the RA.
Finally, the defendants argue that the plaintiff is unable to adduce
sufficient evidence of causation—that is, that the responding state
28 Most federal circuit courts to address this same issue agree.
, , 302 F.3d 567, 574–75 (5th Cir. 2002)
(“[W]hen a plaintiff asserts a cause of action against an employer-
municipality, under either the ADA or the RA, the public entity is liable
for the vicarious acts of of its employees as specifically provided by
the ADA.”); , 260 F.3d 1124, 1141 (9th Cir. 2001)
(“When a plaintiff brings a direct suit under either the Rehabilitation Act
or Title II of the ADA against a municipality (including a county), the
public entity is liable for the vicarious acts of its employees.”);
, 121 F.3d 154, 157 n.3 (4th Cir. 1997) (“[W]e reject the
County’s first argument that there is no respondeat superior liability
under the ADA and that the County can only be held [liable] for a
of discrimination.”). , 20 F.4th 1117, 1121–
22 (6th Cir. 2021) (finding no vicarious liability under the ADA or the
RA).
29 The moving defendants’ supporting and reply briefs cite no case
law that directly supports their argument. Defs. Br. Supp. 36–37;
Defs. Reply Br. 16.
troopers’ actions at the boat launch were taken because of Bentler’s
disability.
The Third Circuit prescribed the applicable legal standard for this
fourth element of a disability discrimination claim—whether the plaintiff
was “excluded from a service, program, or activity or discriminated
against by reason of his disability”—in its decision: “If the
arrestee’s disability played a role in the decisionmaking process and had
a determinative effect on the outcome of that process, , if the arrestee’s
disability was a ‘but for’ cause of the deprivation or harm he suffered,
then the fourth element of an ADA claim has been met.” , 885
F.3d at 179 (citation modified) (quoting another source);
, 2024 WL 2214686, at *11 (quoting ). While a
disabled plaintiff may establish causation by showing that he was treated
than similarly situated non-disabled individuals, he can also
establish causation by showing that the defendant failed to make
reasonable accommodations for the plaintiff’s disabilities, treating him
the as other non-disabled individuals but without accounting for
his disabilities. , 885 F.3d at 180 (“[P]olice officers may
violate the ADA when making an arrest by failing to provide reasonable
accommodations for a qualified arrestee’s disability, thus subjecting him
to discrimination.”); , 2024 WL 2214686, at *12 (finding
causation plausibly alleged where complaint alleged that responding
officers were aware that the decedent had a disability and nevertheless
responded with significant force and did not employ de-escalation
tactics); , No. 4:13-CV-01226, 2016 WL 4154927,
at *8 (M.D. Pa. Aug. 4, 2016) (finding that issuance of misconducts for
manifestations of inmate-plaintiff’s mental illness and punishing him in
the same way as other non-mentally ill inmates would have been
punished constituted a failure to provide reasonable accommodations,
and thus cognizable disability discrimination), , 2016 WL
4140728 (M.D. Pa. Aug. 4, 2016).
Based on the evidence of record, viewed in the light most favorable
to the non-moving plaintiff, a reasonable jury could conclude that the
responding state troopers failed to provide reasonable accommodations
for Bentler’s current mental health emergency and his more
longstanding mental health disabilities, eschewing de-escalation tactics
and subjecting him to significant and deadly force instead, thereby
subjecting Bentler to discrimination on the basis of his disability.
IV. CONCLUSION
For the foregoing reasons, the defendants’ motion for summary
judgment will be denied. This matter will be set down for trial on the
plaintiff’s remaining claims under Counts I, IV, and V of the complaint.
An appropriate order follows.
Dated: May 1, 2026
JOSEPH F. SAPORITO, JR.
United States District Judge