Inappropriate Law Enforcement Response to Individuals with
Diabetes: An Introduction and Guide for Attorneys

Sarah Fech
Legal Advocacy Staff Attorney, American Diabetes Association
Gregory Murray
Law Clerk, American Diabetes Association
September 2014

TABLE OF CONTENTS
INTRODUCTION......................................................................................................................... 1
THE SCIENCE AND MEDICINE OF DIABETES .................................................................. 2
I.
Basic Information on Diabetes............................................................................. 3
II.
Hypoglycemia ........................................................................................................ 4
III.
Hyperglycemia....................................................................................................... 6
DISCUSSION ................................................................................................................................ 7
I.
42 U.S.C. § 1983..................................................................................................... 7
A.
Fourth Amendment Right to Be Free from Unreasonable Seizures ........... 9
1.
Prima Facie Case............................................................................. 9
2.
Diabetes-Specific Cases ................................................................ 11
3.
Tasers ............................................................................................ 18
4.
The Non-Criminal “Community Caretaker” Context ................... 25
B.
Failure to Train ......................................................................................... 26
1.
Prima Facie Case........................................................................... 26
2.
Diabetes-Specific Cases ................................................................ 29
3.
Successful Non-Diabetes Failure-to-Train Cases ......................... 32
C.
Fourteenth Amendment Right of Pretrial Detainees to Medical Care ...... 33
1.
Prima Facie Case........................................................................... 33
2.
Diabetes-Specific Fourth and Fourteenth Amendment Cases ...... 38
D.
Procedural Considerations ........................................................................ 44
1.
Bivens Actions – Bringing a Claim against a Federal Agent ....... 44
2.
Qualified Immunity ....................................................................... 45
3.
Municipal Immunity ..................................................................... 46
4.
Eleventh Amendment Immunity of State Entities ........................ 47
5.
Limitations Period......................................................................... 49
6.
Notice ............................................................................................ 49
E.
Remedies ................................................................................................... 50
1.
Damages, Equitable Relief, and Attorney’s Fees ......................... 50
2.
Diabetes-Specific Settlements ...................................................... 53
II.
Title II of the Americans with Disabilities Act ................................................. 55
A.
Prima Facie Case ...................................................................................... 56
B.
Wrongful Arrest ........................................................................................ 59
C.
Reasonable Accommodation .................................................................... 63
D.
Limitations Period..................................................................................... 67
E.
Remedies ................................................................................................... 68
III.
Section 504 of the Rehabilitation Act of 1973................................................... 69
A.
Relation to Title II of the Americans with Disabilities Act ...................... 70
ii

B.
C.
D.

IV.
V.

Prima Facie Case ...................................................................................... 70
Diabetes-Specific Cases ............................................................................ 71
Procedural Considerations ........................................................................ 75
1.
Federal Financial Assistance......................................................... 76
2.
Eleventh Amendment Immunity ................................................... 76
3.
Limitations Period......................................................................... 77
E.
Remedies ................................................................................................... 78
State Law Claims ................................................................................................ 80
Criminal Law Considerations............................................................................ 80
A.
Unconstitutionally Lengthy Detentions .................................................... 81
B.
Involuntary Confessions ........................................................................... 82
C.
Pleading..................................................................................................... 85

CONCLUSION ........................................................................................................................... 85

iii

INTRODUCTION
Regrettably, police officers occasionally discriminate against individuals with diabetes
during investigations, arrests, or pretrial holdings. Such discrimination takes many forms: an
officer expressly targets an individual for adverse treatment because of his or her diabetes
diagnosis; an officer mistakes hypoglycemia or other effects of diabetes as unlawful conduct; an
officer fails to make reasonable accommodations for an individual with diabetes during an arrest
or pretrial detention; an officer or jail official denies necessary medical care or supplies to an
individual with diabetes during the immediate hours after he or she has been arrested; or a state
or municipality fails to provide adequate training to its officers regarding recognizing and
accommodating individuals with diabetes.
This paper is a guide for practitioners interested in bringing police misconduct cases on
behalf of individuals with diabetes. In this guide, we will discuss federal claims against police
officers or municipal governments under 42 U.S.C. § 1983, Title II of the Americans with
Disabilities Act, and § 504 of the Rehabilitation Act and, likewise, supplemental state law claims
practitioners may bring under a variety of common law tort theories. Our examination includes
discussion of the elements of each federal claim; cases in which such claims have been pleaded
both successfully and unsuccessfully; procedural hurdles that plaintiffs must overcome in
pleading such claims; and forms of relief available under each claim.
It is advisable for plaintiffs to plead parallel claims under all three federal statutes, as well
as under all applicable state law tort theories, but the procedural hurdles, evidentiary hurdles, and
relief associated with each differ. Attorneys representing individuals aggrieved by police
misconduct should investigate applicable state law claims; as such claims are an essential avenue
of obtaining justice for plaintiffs. A state-by-state survey of relevant law is beyond the scope of

1

this memorandum, but state law theories are discussed briefly in section IV. See discussion infra
at p.80.
Prevailing plaintiffs have received relief ranging from compensatory and punitive
damages (as high as $17.5 million in one recent case) to injunctive relief mandating that pretrial
detainees and prisoners receive prompt medical evaluation and treatment, and that law
enforcement officials receive training on responding appropriately to individuals with diabetes.
Attorney’s fees may be available depending on whether a plaintiff is a prevailing party pursuant
to the particular cause of action upon which a court has ordered relief. When a plaintiff does
prevail by obtaining a judgment on the merits or a court-ordered consent decree, a court has
discretion over the award of reasonable attorney’s fees.

THE SCIENCE AND MEDICINE OF DIABETES
It is critical to understand the science and medicine of diabetes in order to appropriately
respond to claims that a person with diabetes is posing a safety threat to himself, the community,
or to an officer. When police officers do take improper actions based on safety concerns, they
almost always do so either out of ignorance of diabetes and its effects or because improper or
insufficient medical evidence was considered in making the decision. Therefore, knowledge of
the medicine and science of diabetes is critical in evaluating police officer or police department’s
action and deciding whether to take a case. 1

1

This section is not intended as a comprehensive primer on diabetes; much more information about the disease can
be found on the American Diabetes Association’s (The Association) web site at www.diabetes.org. The Association
also offers a guide to demonstrating coverage under the ADAAA Amendments Act of 2008 for people with
diabetes: http://main.diabetes.org/dorg/PDFs/Advocacy/Discrimination/atty-demonstrating-covereage-adaaa.pdf.

2

I.

Basic Information on Diabetes
Diabetes is a disorder of the endocrine system that affects over 29 million Americans 2

and is characterized by high blood glucose (sugar) levels resulting from defects in insulin
secretion, insulin action or both. The pancreas is responsible for making and secreting insulin, a
hormone that regulates the level of glucose in the blood. In diabetes, the pancreas produces
insufficient or no insulin, limiting the body’s ability to regulate glucose and convert it into
energy.
Normally, during digestion, the body changes food into a form of sugar called glucose.
The blood then carries this glucose to cells throughout the body. There, insulin allows glucose to
enter the cells and it is changed into energy for the cells to use or store for future needs. Even in
people without diabetes, blood glucose levels go up and down throughout the day in response to
food and the needs of the body. However, in the person without diabetes, this is a finely tuned
system that keeps blood glucose levels within the normal, healthy range.
In diabetes, this process is disrupted because insulin is not present or cannot be used
properly. There are two main types of diabetes: type 1 diabetes and type 2 diabetes. 3 In type 1
diabetes, the pancreas stops making insulin or makes only a tiny amount. Type 1 develops when
the body’s immune system destroys beta cells in the pancreas, the only cells in the body that
make insulin. Thus a person with type 1 diabetes must receive insulin from an outside source
(typically through injections or use of an insulin pump) in order to survive.
In type 2 diabetes, the body retains the ability to make insulin, but cannot make enough to
meet its needs. It is generally believed that in people with type 2 diabetes the body’s cells cannot
2

National Diabetes Statistics Report. Atlanta, GA, U.S. Department of Health and Human Services, Centers for
Disease Control and Prevention, 2014.
3
Type 1 diabetes is sometimes still referred to as “juvenile diabetes” or “insulin-dependent diabetes,” while type 2
diabetes is sometimes referred to as “adult-onset diabetes” or “non-insulin dependent diabetes.” However, these
terms should be avoided, as they are ambiguous and no longer favored by the diabetes health care community.

3

recognize insulin or use it as effectively as in people without diabetes (a condition known as
insulin resistance). This causes the body to need more insulin to process the same amount of
glucose. Generally over time the strain on the pancreas will decrease its ability to produce insulin
and cause blood glucose levels to rise. Some people with type 2 (particularly in the early stages
of the disease) can control their diabetes solely through diet and exercise. Others must take
various types of medications, while still others use insulin much as those with type 1 do. 4
When insulin is absent or ineffective, the glucose in the bloodstream cannot be used by
the cells to make energy. Instead, glucose collects in the blood, leading to the high glucose levels
or “hyperglycemia” that is the defining characteristic of untreated diabetes.

II.

Hypoglycemia
Insulin and oral medications that lower blood glucose are used to treat diabetes. All types

of insulin and some oral medications (sulfonylureas) can lower blood glucose too much, leading
to a potentially dangerous condition known as hypoglycemia. The medical definition of
hypoglycemia is a blood glucose reading of 70 mg/dL or lower. 5 Symptoms of mild to moderate
hypoglycemia include tremors, sweating, lightheadedness, irritability, confusion, and drowsiness.
It is common to mistake the symptoms of hypoglycemia for alcohol or drug intoxication.
Hypoglycemia usually can be treated easily and effectively by consuming a ready source of
glucose such as fruit juice. If it is not treated promptly, however, hypoglycemia can become

4

A third type of diabetes, gestational diabetes, occurs during pregnancy, and usually ends when the pregnancy does.
Individuals with gestational diabetes typically manage with very close monitoring of blood glucose, diet, and
exercise, and, in some cases, insulin. If they take insulin, they are at risk of hypoglycemia just like people with type
1 and 2 who take insulin.
5
See Defining and Reporting Hypoglycemia in Diabetes, Diabetes Care vol. 28 no. 5, 1245–49 (May 2005)
http://care.diabetesjournals.org/content/28/5/1245.full.

4

severe and potentially life-threatening. Symptoms of severe hypoglycemia include inability to
swallow, convulsions or unconsciousness.
It is important to distinguish between severe hypoglycemia and its milder forms. All
people with type 1 diabetes, and some people with type 2 (those who are taking insulin or oral
medications which lower blood glucose levels) will experience hypoglycemia. It is simply not
possible with current diabetes treatment to regulate blood glucose levels as tightly as people
without diabetes do naturally. However, severe hypoglycemia is rare. It occurs when the
individual is unable to treat herself, either due to unconsciousness or cognitive impairment, and
must be assisted by others in order to receive treatment to raise blood glucose levels. Severe
hypoglycemia is a serious medical problem, and will impair an individual’s ability to perform
almost any task. It does not develop instantaneously. When blood glucose levels drop,
individuals with diabetes first experience milder hypoglycemia, which can then become severe if
untreated. Most people with diabetes are able to recognize the signs and symptoms of mild
hypoglycemia, and will be able to treat the condition to keep it from becoming severe.
However, some individuals over time lose the ability to recognize the early warning signs
of hypoglycemia. This condition is known as hypoglycemia unawareness. These individuals are
at increased risk for a sudden episode of severe hypoglycemia because they may not recognize
the milder hypoglycemia that precedes it and may not be able to treat appropriately. Some of
these individuals may be able to lessen this risk by modifying their diabetes management
regimen (for example, more frequent blood glucose testing or using a continuous blood glucose
meter, a sensor inserted under the skin which monitors blood glucose levels in real time).
Also, as noted earlier, not all people with diabetes are subject to hypoglycemia, severe or
otherwise. Individuals who are not taking insulin or oral medications known as sulfonylureas (in

5

other words, those who have type 2 diabetes treated with diet and exercise, or with other classes
of medications) are not subject to the risk of hypoglycemia.

III.

Hyperglycemia
Hyperglycemia (high blood glucose) can cause a host of symptoms and can also

eventually lead to unconsciousness. 6 Hyperglycemia generally begins at 200 mg/dL, but
individuals differ in the point at which they begin to show symptoms, sometimes only beginning
at 300 mg/dL or higher. Hyperglycemia develops much more slowly, and should not develop at
all if adequate insulin and/or oral medications are taken. The symptoms of mild to moderate
hyperglycemia include hunger, thirst and dehydration, headache, nausea, fatigue, blurry vision,
frequent urination, and itchy, dry skin. Individuals with hyperglycemia can also have fruity
smelling breath, which can be mistaken for the smell of alcohol. In addition to these short-term
consequences of acute hyperglycemia, chronic high blood glucose levels can cause a number of
very serious long-term complications, such as nerve damage, heart disease, blindness, kidney
failure, stroke, and death. Thus, in situations where a person is unable to take medication to
address high blood glucose for an extended period of time, their chances of experiencing these
health complications rises.
If a person who needs insulin is not able to take that medication for a period ranging from
several hours to several days, s/he can experience diabetic ketoacidosis, abbreviated as DKA.
Primarily persons with type 1 diabetes but also some with type 2 can experience this condition. 7
It is a life-threatening and often deadly consequence of a shortage of insulin. The body begins to

6

Guillermo E. Umpierrez et al., Diabetic Ketoacidosis and Hyperglycemic Hyperosmolar Syndrome, Diabetes
Spectrum vol. 15 no. 1, 28–36 (Jan. 2002), http://spectrum.diabetesjournals.org/content/15/1/28.short.
7
People with type 2 diabetes are more likely to develop hyperglycemic hyperosmolar syndrome. The mortality rate
for this condition is high.

6

burn fatty acids for energy since it cannot use the glucose without insulin. The byproducts of
breaking down fatty acids are ketone bodies, which render the blood acidic. Diabetic
ketoacidosis, if left untreated, will result in death.

DISCUSSION
I.

42 U.S.C. § 1983
One avenue by which individuals with diabetes aggrieved by police misconduct may seek

redress is through 42 U.S.C. § 1983 (2012):
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, subjects, or causes to
be subjected, any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for redress . . . .
To state a claim under § 1983, a plaintiff must prove that (1) he or she was deprived of a right
secured by the Constitution or laws of the United States and (2) the alleged deprivation was
committed under color of state law. 8
With respect to circumstances involving arrests by police officers, a person making an
arrest is acting under color of law if . . . he [or she] is acting as a public officer. 9 When an
individual is deprived of a federally protected right during an arrest, the operative question for §
1983 liability becomes whether, when effectuating the arrest, a police officer was acting as a
public official and, therefore, under color of law. 10 A private individual, such as a private

8

Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49–50 (1999).
Bryant v. Donnell, 239 F. Supp. 681, 686 (W.D. Tenn. 1965).
10
See, e.g., Delcambre v. Delcambre, 635 F.2d 407, 408 (5th Cir. 1981) (finding no § 1983 liability for alleged
assault by chief of police because the altercation arose out of an argument over family and political matters and the
plaintiff was neither arrested nor threatened with arrest); Washington-Pope v. City of Philadelphia, 979 F. Supp. 2d
544, 552—54 (E.D. Pa. 2013) (creating the “fair attribution” standard for determining whether an individual is
acting under color of state law and delineating several relevant but non-determinative factors); Winfield v. United
9

7

contractor, may also be found to be a state actor if she has acted with or obtained significant aid
from a state official. 11
Nevertheless, before considering whether a police officer was acting under color of law
when making an arrest, “[t]he first inquiry in any § 1983 suit . . . is whether the plaintiff has been
deprived of a right ‘secured by the Constitution and laws [of the United States].’” 12 Important
federally protected rights to consider in relation to arrests include the Fourth Amendment right to
be free from unreasonable seizures and the Fourteenth Amendment right of pretrial detainees to
adequate medical care.
Attorneys can bring § 1983 actions against police officers in their individual and/or
official capacities. Attorneys should note that where a suit alleges claims against an officer in his
or her official capacity, it will be treated as a suit against the municipality. The municipality
cannot be liable for individual officer actions under § 1983 absent an allegation that the action is
part of the municipality’s custom or policy. 13 So where practitioners bring suits against police
officers in their official capacity, it will be necessary to allege that the officer’s unconstitutional
action was part of the municipality’s custom or policy. If that cannot be alleged in good faith, the
suit must be brought against the officer only in his or her individual capacity. But in many cases
practitioners will be well advised to bring suit against particular officers in both their individual
and official capacities.

States, 430 F. Supp. 912, 913–14 (S.D.N.Y. 1977) (finding that a police officer was acting under color of law when
he erroneously arrested an individual, mistakenly believing that he was the individual named in a federal warrant).
11
West v. Atkins, 487 U.S. 42, 57 (1988) (finding a physician, private contractor acted under color of state law for §
1983 purposes).
12
Baker v. McCollan, 443 U.S. 137, 140 (1979).
13
Monell v. Dep’t of Soc. Servs. of the City of New York, 436 U.S. 658, 694 (1978) (“it is when execution of a
government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said
to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983”).

8

A.

Fourth Amendment Right to Be Free from Unreasonable Seizures
1.

Prima Facie Case

The Fourth Amendment of the U.S. Constitution states:
The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no Warrants
shall issue, but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons or things to be
seized.
Police officers’ use of unreasonable force has been found to violate an individual’s Fourth
Amendment right to be free from unreasonable seizures. 14 To state a claim of unreasonable force
as an unreasonable seizure in violation of the Fourth Amendment, a plaintiff must prove that (1)
a seizure occurred and (2) the seizure was unreasonable. 15
For the purpose of invoking Fourth Amendment protections, a “seizure” occurs “only
when government actors have, ‘by means of physical force or show of authority . . . in some way
restrained the liberty of a citizen.’” 16 However, not all encounters between police and civilians
constitute seizures and trigger Fourth Amendment protections. 17 Consensual encounters between
police and civilians are not seizures invoking the protections of the Fourth Amendment. 18
Nevertheless, consensual encounters can mature into investigatory detentions and resultantly

14

Graham v. Connor, 490 U.S. 386, 394–95 (1989).
Brower v. Cnty. of Inyo, 489 U.S. 593, 599 (1989). The Fifth Circuit also requires that the plaintiff show more
than a de minimus injury resulted from the unreasonable force. Tarver v. City of Edna, 410 F.3d 745, 752 (5th Cir.
2005).
16
Graham, 490 U.S. at 395 n.10 (quoting Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968)); see Brower, 489 U.S. at 596.
17
See, e.g., Lum v. City of Grants Pass, No. 09-3075-CL, 2011 U.S. Dist. LEXIS 24542, at *43 (D. Or. Jan. 6, 2011)
(finding no seizure had occurred where the officer was assisting the paramedics in holding down a combative
plaintiff so that the paramedics could assess his medical condition; Harless v. City of Columbus, 183 F. Supp. 2d
1024, 1029–30 (S.D. Ohio 2002) (finding that plaintiff’s voluntary decision to speak with police officers during a
traffic stop, despite his freedom to leave, vitiated his claim that a Fourth Amendment seizure had occurred).
18
Id. at 1029 (citing United States v. Avery, 137 F.3d 343, 352 (6th Cir. 1997)).
15

9

trigger the protections of the Fourth Amendment “if the officer takes actions that would indicate
to a reasonable person that he [or she] was not free to leave.” 19
Determining whether a seizure is unreasonable under the Fourth Amendment requires “a
careful balancing of ‘the nature and quality of the intrusion on the individual’s Fourth
Amendment interests’ against the countervailing governmental interests at stake.” 20 Courts will
examine whether the force was unreasonable by considering whether it was “objectively
reasonable under the particular circumstances.” 21 The Supreme Court has emphasized that the
inquiry into the countervailing government interests is not rigid but, rather, requires “careful
attention to the facts and circumstances of each particular case, including (1) the severity of the
crime at issue, (2) whether the suspect poses an immediate threat to the safety of the officers or
others, and (3) whether he [or she] is actively resisting arrest or attempting to evade arrest by
flight.” 22 The reasonableness inquiry is approached objectively and asks “whether the officers’
actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them,
without regard to their underlying intent or motivation.” 23 Furthermore, the reasonableness of a
seizure must be adjudged from the perspective of a “reasonable officer on the scene, rather than
with the 20/20 vision of hindsight,” 24 and “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.” 25 Each case requires careful analysis of the facts and weighing each Graham factor. 26

19

Id. (citing INS v. Delgado, 466 U.S. 210, 215 (1984)).
Graham, 490 U.S. at 396 (quoting Terry, 392 U.S. at 8) (internal quotation marks omitted).
21
Greiner v. City of Champlin, 27 F.3d 1346, 1354 (8th Cir. 1994).
22
Graham, 490 U.S. at 396 (numbers added). See also Morrissey v. Town of Agawam, 883 F. Supp. 2d 300, 308–09
(D. Mass. 2012) (for a clear and concise application of the Graham factors).
23
Id. at 397.
24
Id. at 396.
25
Id. at 396–97.
20

10

Countering the factors outlined in Graham, when determining the reasonableness of a
seizure, a court also may consider the level of intrusion by examining (1) the quantum of force
used to effectuate an arrest, (2) the availability of less intrusive methods of apprehending or
subduing a suspect, and (3) an arrestee’s mental or emotional state. 27 For example, the level of
intrusion of a traffic stop—a brief, involuntary detention—is minimal. As a result, it does not
constitute an unreasonable seizure in violation of the Fourth Amendment if a police officer has a
reasonable and articulable suspicion that an individual has violated a traffic law, based on the
officer’s observation of the alleged violation. 28
2.

Diabetes-Specific Cases

Fourth Amendment unreasonable force claims under § 1983 represent an important
avenue of redress for individuals with diabetes that have experienced police misconduct.
Plaintiffs often have difficulty proving Fourth Amendment unreasonable force claims under §
1983, 29 but pleading particular facts may help such claims to survive summary judgment. First,
when visible indicators—such as twitching or convulsing or the presence of a medical-alert
tag—could have alerted a police officer that an individual has diabetes, or where officers are on
notice of a person’s medical condition or emergency, courts are more likely to find that questions

26

See, e.g., Phillips v. Cmty. Ins. Corp., 678 F.3d 513 (7th Cir. 2012) (noting that summary judgment is frequently
inappropriate in unreasonable force cases).
27
See Luchtel v. Hagemann, 623 F.3d 975, 980 (9th Cir. 2010) (numbers added); Solovy v. Morabito, 375 Fed.
Appx. 521 (6th Cir. 2010) (genuine issue of material fact existed on an unreasonable force claim where plaintiff was
unconscious at the wheel and compliant when awoken, not threatening or engaging in illegal conduct; nevertheless
medical records indicated multiple injuries inflicted by officers despite his compliance).
28
Harless, 183 F. Supp. 2d at 1029–30; see also Whren v. United States, 517 U.S. 806, 817–19 (1996) (holding that
a routine traffic stop does not constitute an unreasonable seizure in violation of the Fourth Amendment when a
police officer has probable cause to believe that an individual has violated a traffic law).
29
Though unreasonable force cases are typically highly fact driven, data indicates that summary judgment is
disproportionately granted in civil rights cases, a category which includes unreasonable force lawsuits. See Fed.
Judicial Ctr., Estimates of Summary Judgment Activity in Fiscal Year 2006, at 6 (2007), available at
http://www.fjc.gov/public/pdf.nsf/lookup/sujufy06.pdf/$file/sujufy06.pdf (showing that summary judgment is
granted in seventy percent of civil rights cases in which it is sought compared with a rate of sixty percent for all
cases generally).

11

of fact exist as to the reasonableness of the use of force and, therefore, deny summary
judgment. 30
A second factor that is indicative of success in surviving a summary judgment motion is
when the plaintiff posed no threat to officers or others, or when there is a substantial question as
to whether a threat existed. 31
Shumate v. Cleveland is a case that practitioners should pay particularly close attention to
when bringing claims of unreasonable force 32 against persons experiencing diabetes
emergencies. 33 The facts alleged present a clear example of unreasonable force. In this case, the
plaintiff’s coworkers called 911 to report that the plaintiff was acting strangely, staggering
around in the parking lot and speaking incoherently. 34 When defendant police officers arrived,
the plaintiff informed them that he did not need assistance, that he was diabetic and needed
sugar. 35 The defendants checked the plaintiff’s license to discover he had outstanding traffic
warrants. The defendants attempted to place him in handcuffs, citing a fear that the plaintiff

30

Compare McAllister v. Price, 615 F.3d 877, 879 (7th Cir. 2010) (plaintiff was unresponsive, twitching, and
convulsing in the driver’s seat) and Burns v. City of Redwood City, 737 F. Supp. 2d 1047 (N.D. Cal. 2010) (question
of fact as to whether Burns was wearing his medical-alert bracelet and whether the officers saw it) and Hall v.
Raech, 677 F. Supp. 2d 784, 792, 798 (E.D. Pa. 2010) (plaintiff produced evidence from which a reasonable juror
could conclude that defendant officers should have recognized plaintiff was experiencing a medical emergency
where he testified there was a medical-alert decal on his windshield, that he was wearing a medical-alert necklace,
and that he informed officers right away that he was experiencing low blood glucose) with Morrissey, 883 F. Supp.
2d at 304 (noting that plaintiff was not wearing anything to identify him as having diabetes, granting summary
judgment for defendants).
31
Compare Burns, 737 F. Supp. 2d at 1047 (finding a triable issue of fact existed as to whether officers’ use of force
was unreasonable where plaintiff, a body builder having a hypoglycemia emergency in a movie theater, pushed or
stumbled into the officer) with Morrissey, 883 F. Supp. at 305–06 (summary judgment granted where plaintiff could
not dispute an extensive struggle between himself and officers).
32
The case also brings a claim of deliberate indifference to plaintiff’s serious medical need, which is discussed at
footnotes 184—190 and accompanying text.
33
483 Fed. Appx. 112 (6th Cir. 2012). It should be noted that the case was under review by the appellate court for
defendants’ motions for summary judgment on grounds of qualified immunity. This means that the court was
assessing the claims under the question of whether it would have been clear to a reasonable officer that their conduct
was unlawful in light of clearly established law, rather than assessing the prima facie elements of the claims directly.
The discussion obviously includes assessment of the alleged facts, but through a slightly different lens. For a further
discussion of qualified immunity, see page 44.
34
Id. at 113.
35
Id.

12

would wander in front of traffic, but the plaintiff resisted. 36 Eventually, handcuffs were
successfully applied, and the plaintiff was placed in the back seat of a police vehicle. 37 The
plaintiff inquired why he was being arrested, and some spittle landed on one defendant officer’s
face. 38 The defendant officer then punched the plaintiff in the face. 39 The court, noting the three
factors, pointed out its prior holding that striking a person in handcuffs is objectively
unreasonable. 40 It also found significant that the defendant could cite no reason why he needed to
punch the plaintiff, as opposed to just close the vehicle door, to prevent any further spittletransfer. 41
Many cases hinging on whether there is a threat to officers or others involve situations in
which plaintiffs experience a hypoglycemic episode while operating a vehicle. In these situations
courts frequently find that plaintiffs present a serious threat to officers and others. 42 Importantly,
though, the threat must be an immediate one. If the threat is remote or speculative, use of force
may be objectively unreasonable. 43
In Wertish, a witness reported that the plaintiff was driving erratically on a state highway,
swerving between the shoulder and the eastbound lane. 44 A responding police officer activated
his emergency lights several times to initiate a traffic stop, but the plaintiff did not respond. 45 A
five-mile chase ensued, during which the plaintiff’s vehicle veered far beyond the limits of the
36

Id.
Id.
38
Id.
39
Id.
40
Id. at 114.
41
Id.
42
See, e.g., Wertish v. Krueger, 433 F.3d 1062, 1064 (8th Cir. 2006) (summary judgment granted where plaintiff
was swerving through traffic because of hypoglycemia and stopped by officers who ordered him out of the vehicle,
pinned him to the ground, and handcuffed him); Janis v. Biesheuvel, 428 F.3d 795, 797,799 (8th Cir. 2005) (plaintiff
was driving erratically and officers engaged in a 30-minute pursuit on a highway before successfully stopping her).
43
Hall v. Raech, 677 F. Supp. 2d at 801 (plaintiff was in his stopped vehicle and immediately complied with
officer’s request to turn off the ignition and otherwise indicated no threatening behavior); Abraham v. Raso, 183
F.3d 279, 289-290 (3d Cir. 1999).
44
433 F.3d at 1064.
45
Id. at 1064–65.
37

13

eastbound lane. 46 Eventually, the plaintiff stopped his vehicle at the side of the road, at which
point two officers approached with their weapons drawn and ordered him to exit the vehicle. 47
After some delay, the plaintiff opened the vehicle door, and the officers threw him to the ground,
pinned him in a prone position, and handcuffed him. 48 After the officers had brought him to his
feet, he regained some awareness and informed them that he had diabetes. 49 The officers then
transported him to a local hospital, where medical professionals confirmed that he had been
experiencing a severe hypoglycemic episode. 50
The plaintiff brought a Fourth Amendment unreasonable force claim under § 1983
against the arresting police officer. 51 Because there was nothing visible to signal to the officer
that the plaintiff had diabetes and because the officer had acted reasonably in responding to the
plaintiff as if he were intoxicated or a fleeing criminal, the Eighth Circuit affirmed the district
court’s grant of summary judgment. 52
While auto accidents frequently persuade courts that significant enough imminent threat
existed to justify a degree of force, it is not always the case. In McAllister, 53 the plaintiff with
diabetes, while driving on a state highway, experienced a severe hypoglycemic episode during
which he struck two other vehicles. Once a police officer arrived at the scene, he asked the
plaintiff whether he was all right and requested that he turn off his ignition, but the plaintiff
remained unresponsive, twitching and convulsing, and was unable to turn off his ignition despite
attempting to do so. 54 The officer became angry because he believed that the plaintiff was

46

Id. at 1065.
Id.
48
Id.
49
Id.
50
Id. at 1065–66.
51
Id. at 1064.
52
Id. at 1066–67.
53
615 F.3d at 879.
54
Id.
47

14

intoxicated, and he forcibly removed the plaintiff from his vehicle, threw him to the ground,
applied his knee to the plaintiff’s back, and handcuffed him. 55 The plaintiff continued to twitch
intensely while lying in a prone position on the ground. 56 At this point, a witness suggested that
the officer check the plaintiff for a medical-alert tag, and upon discovering a necklace indicating
that the plaintiff had diabetes, the officer removed the handcuffs. 57 The plaintiff eventually was
diagnosed with a broken hip, a bruised lung, and abrasions to his face and wrists in connection
with the altercation. 58
The plaintiff brought a Fourth Amendment unreasonable force claim under § 1983
against the defendant police officer in his individual capacity. 59 The Seventh Circuit affirmed the
district court’s denial of summary judgment for several reasons: (1) evidence linked the
plaintiff’s injuries to the officer’s conduct; (2) it was apparent from the plaintiff’s convulsing and
unresponsive state that he had been impaired during and after the accident; and (3) the officer
had used such a large degree of force against a nonresistant suspect. 60
In Adams v. City of Laredo, 61 the plaintiff with diabetes, while driving his pickup truck,
experienced an acute hypoglycemic episode causing him to blackout. As a result, he collided
with vehicles parked along residential roads, ran a stop sign, and crashed into a metal roadway
barrier. Id. at *2–3. Police officers arrived at the scene and attempted unsuccessfully to shatter
his driver’s side window in order to remove him from the truck. Id. at *3–4. Meanwhile, the
plaintiff remained unresponsive with his hands on the steering wheel but eventually placed his

55

Id. at 879–80.
Id.
57
Id.
58
Id.
59
Id. at 880–81.
60
Id. at 881–86.
61
No. L-08-165, 2011 U.S. Dist. LEXIS 54384, at *1–2, *7 (S.D. Tex. May 19, 2011).
56

15

truck back into drive and departed the scene, nearly hitting several officers. 62 After a brief chase,
the plaintiff proceeded over a curb, and his truck came to rest at the embankment of a creek. 63
Officers quickly arrived at the scene, shattered his driver’s side window, and forcibly removed
him from the truck, placing him onto the ground and restraining him with handcuffs. 64 Because
he appeared to be in pain, one officer transported the plaintiff to a local hospital, where medical
staff confirmed that he had been experiencing a nearly fatal hypoglycemic episode. 65
The plaintiff brought a Fourth Amendment unreasonable force claim under § 1983
against the defendant municipality. 66 Because he and the responding police officers provided
differing accounts as to whether the officers had hit and kicked him after handcuffing him and
because both he and the municipality provided expert medical testimony to support their
accounts, the district court denied the defendant’s motion for summary judgment, reasoning that
“the evidence shows that there are questions of fact as to the elements of an unreasonable force
claim.” 67 Outside of the vehicle accident context, the threat analysis is still relevant. The court in
Bady v. Murphy-Kjos denied defendant’s motion for summary judgment where the plaintiff was
visibly disoriented and weak, posing no threat as he paced the sidewalk slowly even despite his
serious alleged crime of assaulting a firefighter attempting to render first aid. 68 The court ruled
that a jury could reasonably find unreasonable force where the police used a Taser/CED on the
plaintiff multiple times after he was already handcuffed, lying face down in the ground. 69 The
court further found that a jury could reasonably conclude that kneeing the plaintiff and taking

62

Id. at *4.
Id. at *4–5.
64
Id. at *5–6.
65
Id. at *7–8.
66
Id. at *8, *10.
67
Id. at *10–15.
68
No. 06-2254 (JRT/FLN), 2008 U.S. Dist. LEXIS 110212, at *14 (D. Minn. Aug. 7, 2008).
69
Id. at *15.
63

16

him to the ground was an unreasonable seizure, under the circumstances. 70 In Bady, the plaintiff
was visiting friends at their home when he began having difficulty breathing, experiencing chest
and neck pain, and loss of balance. After the plaintiff passed out, his friends called 911.
Firefighters arrived and attempted to administer glucose to regulate his blood glucose, but
because the plaintiff was being unresponsive and combative, the police department was called.
This case illustrates a unique example where police officers certainly had the opportunity
to know that the plaintiff was experiencing a medical emergency. Firefighters were called to the
scene specifically to address a diabetic emergency. 71 Despite his evident medical emergency, the
court noted, “Rather than investigating and inquiring into the circumstances, however, the
officers approached Bady and immediately attempted to take him down to the ground. Although
assaulting a firefighter is a severe crime, a reasonable officer on the scene observing Bady’s
behavior may have questioned whether Bady was indeed combative and whether he posed any
threat to the officers.” 72 The case supports the argument that police officers are not given carte
blanche to arrive at a scene and take down any allegedly combative person.
Burns is another case where surviving summary judgment turned on a question of fact as
to the threat the plaintiff posed. The hypoglycemic incident in this case occurred at a movie
theatre. 73 Officers were alerted to a potentially loitering, intoxicated individual, and while they
tried to assess the situation, the plaintiff either pushed or stumbled into an officer. Because the
plaintiff was a body builder, and because testimony differed as to the degree of threat the
plaintiff posed, the court affirmed the district court’s denial of summary judgment. 74 The court

70

Id.
Id. at *2.
72
Id. at *14.
73
737 F. Supp. at 1052.
74
Id. at 1059, 68.
71

17

found it persuasive that the plaintiff’s “crimes” of public intoxication and eventually battery on
an officer were “not severe.” 75
Separate and apart from visual clues that the individual has diabetes, the force must still
be objectively reasonable. It is frequently the case that an officer encounters a person with
diabetes who is unconscious or semi-unconscious and non-combative. In these instances, courts
have focused on the fact that the individual poses no threat to the officers, and found that very
little use of force is justified. For example, in Solovy, the plaintiff was found slumped over the
wheel of his car. 76 While officers suspected he may have been drinking and driving, he posed no
risk to the public or officers while unconscious. 77 The Solovy court noted that while intoxicated
persons can be unpredictable, raising some safety concerns, the reasonableness of force is still
dependent on the individual’s hostility: “the mere fact of intoxication does not justify gratuitous
violence.” 78 Janis brings Solovy into starker relief, and contrasting the two cases shows the effect
on acceptable force, and how much that allowance depends on whether the person at issue is
potentially putting another in danger. These cases are consistent with the Ninth’s Circuit’s
explicit statement that the second Graham factor—whether the suspect is posing a safety risk to
officers or others—is the most important factor. 79
3.

Tasers

Under certain circumstances, the use of Tasers or conducted energy devices (“CEDs”)
also may support claims of unreasonable force in violation of individuals’ Fourth Amendment
right to be free from unreasonable seizures. The use of CEDs on individuals with diabetes is
75

Id. at 1059. Mr. Burns won the lawsuit, and the jury awarded $218,000 in damages. Haddad & Sherwin, Diabetic
Mr. Universe Bring Police Officers to Trial, http://www.haddadandsherwin.com/lower.php?url=mr-universe-case
(last visited March 25, 2014).
76
375 Fed. Appx. at 522.
77
Compare id. at 525 with Janis, 428 F.3d at 795 (officers were entitled to qualified immunity where plaintiff was
driving erratically on the highway as a result of his diabetic shock).
78
Solovy, 375 Fed. Appx. at 526.
79
Mattos, 661 F.3d at 441.

18

particularly significant because of the potentially adverse effects of such force on the endocrine
system, which already is compromised in individuals with diabetes, as well as other bodily
systems. At the present time, there has not been a published study on the effects of CEDs and
diabetes. However, there is some indication that CEDs can impact the metabolic system. 80
Additionally, the National Institute of Justice (NIJ) is commissioning studies at the University of
California in San Diego and New Jersey Medical School on the effects of CEDs on the metabolic
pathways in the body, as well as the cardiac and respiratory systems. 81 More scientific study of
this issue is needed. 82
Few courts have examined the use of CEDs on individuals with diabetes in relation to
claims of unreasonable force in violation of the Fourth Amendment. Nevertheless, resolving such
a diabetes-related claim, the court in Schreiner v. City of Gresham held that a CED constitutes an
intermediate level of force that must be justified by a strong and compelling government
interest. 83
Mattos consolidated two cases involving claims against police officers that the use of
CEDs constituted unreasonable force in violation of the Fourth Amendment. One case concerned
a traffic stop during which the plaintiff “fail[ed] to sign a traffic citation [for] driving 32 miles
per hour in a 20-mile-per-hour zone.” 661 F.3d at 444. Officers used a Taser on the plaintiff
when she “stiffened her body and clutched her steering wheel to frustrate the officers’ efforts to
80

See, e.g., Taser International has published a fact sheet on the risks of metabolic acidosis during CED use. Taser
International, Metabolic Acidosis-Detail (2008), available at http://www.ecdlaw.info/outlines/06-10-08 TRS
Metabolic Acidosis.pdf.
81
Information on NIJ’s research is available at www.nij.gov/topics/technology/less-lethal/conducted-energydevices.htm.
82
For a more detailed discussion of medical research investigating the potentially adverse impact of the use of
Tasers and CEDs on children, the elderly, pregnant women, and individuals with certain underlying medical
conditions, see Amnesty International, ‘Less Than Lethal’?: The Use of Stun Weapons in US Law Enforcement 35–
49 (2d ed. 2008), available at http://www.amnesty.org/en/library/asset/AMR51/010/2008/en/
530be6d6-437e-4c77-851b-9e581197ccf6/amr510102008en.pdf.
83
681 F. Supp. 2d 1270, 1276 (D. Or. 2010); see also Bryan v. MacPherson, 630 F.3d 805, 826 (9th Cir. 2010) (in a
case not involving diabetes, concluding that CEDs “when used in dart-mode constitute an intermediate, significant
level of force that must be justified by the governmental interest involved”).

19

remove her from her car.” Id. at 445. The other case involved a domestic disturbance. Id. at 449.
As the plaintiff was exiting her home to discuss the situation with an officer, another officer
suddenly entered the hallway, obstructing her egress. Id. She extended her arms to prevent
sudden bodily contact with the second officer, and the officer used a Taser on her. Id.
In both cases, the Ninth Circuit reversed the district courts’ denial of summary judgment
on qualified immunity grounds 84 on the plaintiffs’ § 1983 unreasonable force claims. 85 Balancing
the nature of the Fourth Amendment intrusions against the governmental interests at stake, the
court found in each case that a reasonable fact finder could conclude that the officers’ use of
Tasers was unreasonable and constitutionally unreasonable. 86 However, because at the time of
the violations “there were three circuit courts of appeals cases rejecting claims that the use of a
Taser constituted unreasonable force [and] there were no circuit Taser cases finding a Fourth
Amendment violation,” the court could not conclude “in light of these existing precedents, that
‘every ‘reasonable official would have understood’. . . beyond debate’ that tasing [the plaintiffs]
in these circumstances constituted unreasonable force.” 87 Thus, despite the officers’ use of
unreasonable force, they were entitled to qualified immunity against the plaintiffs’ § 1983
unreasonable force claims. Id. at 451–52.
In Bryan, 88 a police officer stopped the plaintiff for a seatbelt violation. The plaintiff
pulled his vehicle to the side of the road and exited the car. 89 Because he was aware that he had
failed to fasten his seatbelt, the plaintiff, wearing only boxer shorts and tennis shoes, became
84

While it is discussed in detail later at page 45, an officer is entitled to qualified immunity where (1) the officer’s
conduct violated a clearly established right which (2) the reasonable officer would have clearly understood that he or
she was under an affirmative duty to refrain from such conduct. Siegert v. Gilley, 500 U.S. 226, 232 (1991). The
Supreme Court held in Saucier v. Katz that a qualified immunity defense is available to claims of unreasonable
force. 533 U.S. 194 (2001).
85
Id. at 452.
86
Id. at 441, 451.
87
Id. at 452.
88
630 F.3d at 822.
89
Id.

20

agitated and began “yelling gibberish and hitting his thigh.” 90 At a distance of approximately
twenty to twenty-five feet, the officer perceived the plaintiff stepping toward him and then shot
the plaintiff with his Taser. 91 As a result, the plaintiff became incapacitated and fell to the
ground, suffering four broken teeth and facial contusions. 92 He maintained that he had not
stepped toward the officer. 93
Among other claims, the plaintiff brought an unreasonable force claim under § 1983
against the police officer. 94 Citing “[t]he physiological effects, the high levels of pain, and
foreseeable risk of physical injury,” that the use of Tasers occasions, the Ninth Circuit concluded
that “the [officer’s Taser] and similar devices when used in dart-mode constitute an intermediate,
significant level of force that must be justified by the governmental interest involved.” 95
Considering that the plaintiff had not attempted to flee, was visibly unarmed, and stood at a
reasonable distance from the officer, the Ninth Circuit held that “the intermediate level of force
employed by [the officer] against [the plaintiff] was unreasonable in light of the governmental
interests at stake,” and that the officer had violated the plaintiff’s Fourth Amendment right to be
free from unreasonable force. 96 Nevertheless, the Ninth Circuit ultimately reversed the district
court’s denial of summary judgment because it found that “a reasonable officer in [the officer’s]
position could have made a reasonable mistake of law regarding the constitutionality of the Taser
use in the circumstances,” and thus, found that the officer was entitled to qualified immunity. 97

90

Id.
Id.
92
Id.
93
Id.
94
Id. at 823.
95
Id. at 825–26.
96
Id. at 832.
97
Id. at 833.
91

21

In Schreiner, 98 the plaintiff had diabetes and, while experiencing a hypoglycemic
episode, was attempting to inject herself with insulin using a syringe with a bent needle. A friend
contacted the police because the plaintiff was incoherent and in need of medical assistance. 99
When an officer arrived at the scene, the friend informed him that the plaintiff had diabetes and
was not attempting to hurt herself, but could not release the syringe. 100 The officer instructed the
plaintiff to drop the syringe, but she was unable to comply. 101 Eventually, he and another officer
decided to Taser the plaintiff to force her to drop the syringe, which they did, causing her to drop
it. 102
The plaintiff brought claims under § 1983 against the municipality and one arresting
officer, alleging that he had used unreasonable force in Tasering her. 103 The district court denied
the defendants’ motion for summary judgment as to the unreasonable force claims because “a
jury could conclude that [the arresting officer] used unreasonable force in executing his seizure
of plaintiff.” 104 The court noted that “a Taser constitutes ‘an intermediate, significant level of
force that must be justified by a strong government interest that compels the employment of such
force.’” 105
In Gruver v. Borough of Carlisle, 106 a police officer responded to an individual with
diabetes who had been driving erratically and subsequently had parked his vehicle in a gas

98

681 F. Supp. 2d at 1273.
Id.
100
Id.
101
Id.
102
Id.
103
Id. at 1274 (plaintiff also brought ADA and Rehabilitation Act claims for the city’s failure to accommodate her
disability in rendering emergency services as well as for intentional discrimination. Schreiner at 1277. While she
was unable to show that the defendant’s discriminatory actions were motivated by her disability, she was allowed to
proceed on the failure to accommodate theory. The court denied the defendant’s motion for summary judgment on
these claims, ruling that a question of fact remained as to whether defendants reasonably accommodated her). See
discussion infra at 65.
104
Id. at 1276.
105
Id.
106
No. 4:CV 05-1206, 2006 U.S. Dist. LEXIS 31448, at *4–5 (M.D. Pa. May 19, 2006).
99

22

station parking lot, his head slumped over the steering wheel. Following a brief exchange, the
plaintiff exited his vehicle and began approaching the gas station in a disoriented fashion. 107
Because he risked walking into oncoming traffic and had resisted the officer’s attempts to
restrain him, the officer brought the plaintiff to the ground, where he pinned and handcuffed him
and called for backup. 108 Later, another officer used a Taser on the plaintiff because he had failed
to respond to subsequent requests that he cease resistance. 109 Once he had been escorted to a
patrol car, the officers discovered his medical-alert necklace indicating that he had diabetes and
realized that he was experiencing a hypoglycemic episode. 110
The plaintiff brought claims under § 1983 against the municipality and arresting officers,
alleging that they had used unreasonable force in their attempts to restrain him. 111 The district
court granted the defendants’ motion for summary judgment because the plaintiff “appeared to
be intoxicated or in some state of distress,” and “the Officers’ use of force, including the
application of the Taser gun, was consistent with the level of the Plaintiff’s resistence [sic] and
there [was] no indication that the Officers applied any gratuitous force to the Plaintiff.” 112 For
these reasons, the court could not find that the officers’ conduct was objectively unreasonable.
Id.
As evidenced by Mattos, 113 Bryan, 114 and Schreiner, 115 courts may regard the use of
Tasers or CEDs as an elevated level of force that must be justified by a strong and compelling

107

Id. at *6–7.
Id. at *7–8.
109
Id. at *8.
110
Id. at *8–9.
111
Id. at *10.
112
Id. at *13.
113
661 F.3d at 448.
114
630 F.3d at 826.
115
681 F. Supp. 2d at 1276.
108

23

government interest to avoid Fourth Amendment violations. Even so, Gruver, 116 shows that
courts continue to exercise expansive deference when reviewing police officers’ on-the-scene
determinations as to whether specific circumstances warrant the use of such technology, and
proving that any use of force is objectively unreasonable thus remains an uphill battle.
Mattos 117 and Bryan 118 demonstrate that the defense of qualified immunity remains a
significant hurdle for plaintiffs alleging § 1983 unreasonable force claims involving the use of
Tasers. In fact, in many circuits, the burden is on the plaintiff to demonstrate that an officer is not
entitled to qualified immunity. 119 While the burden is high, and sometimes falls on the plaintiff,
it is not unattainable. The Eastern District of Michigan laid out in Eldridge, that “reasonable
officers are on notice that using a Taser and significant physical force on a citizen who is
suffering a medical condition and not resisting arrest, and who poses no threat to the officer or
public, violates the suspect’s clearly established constitutional right to be free from unreasonable
force.” 120 In Eldridge, the plaintiff was having a hypoglycemic incident and stopped his car at a
construction site when officers arrived and questioned him. The plaintiff was confused,
repeating, “I’m fine.” The officers Tasered him as they pulled him out of the car, and when
plaintiff had trouble getting to the ground and continued to be confused, the officers noticed a
medical-alert bracelet. They asked if he had a medical condition, and shouted at him for not
telling them. The court in this case denied the officers’ requests for qualified immunity, because
this was not on the line between unreasonable and acceptable force. 121 The court stressed the fact
116

2006 U.S. Dist. LEXIS 31448, at *13.

117

661 F.3d at 448.
118
630 F.3d at 833.
119

Eldridge v. City of Warren, No. 10-12893, 2012 U.S. Dist. LEXIS 42818, at *9 (E.D. Mich. Mar. 28, 2012). But
see Bailey v. Pataki, 708 F.3d 391, 404 (2d Cir. 2013) (“Qualified immunity is an affirmative defense and the
burden is on the defendant-official to establish it on a motion for summary judgment.”); Reedy v. Evanson, 615 F.3d
197, 223 (3d Cir. 2010).
120
Id. at *16.
121
Id. at *17.

24

that Eldridge posed no threat to the officers or anyone, since he was in a vehicle that was turned
off as soon as the officers arrived. Furthermore, the court notes the lack of resistance and threat
by Eldridge as the officers question him. It is important that the court noted this, because though
he did not actively resist, Eldridge also did not comply with the officers’ requests, and yet the
court still found that a jury could find his response to mitigate in his favor. 122
4. The Non-Criminal “Community Caretaker” Context
A person is protected by the Fourth Amendment even where there is no allegation of
criminal activity. “[A] person’s Fourth Amendment rights are not eviscerated simply because a
police officer may be acting in a non-investigatory capacity for ‘it is surely anomalous to say that
the individual . . . [is] fully protected by the Fourth Amendment only when the individual is
suspected of criminal behavior.’”) 123 Officers sometimes act in the “community caretaker” role,
wherein, no criminal activity has been alleged or observed, but rather, the officers are involved to
respond to a situation where a member of the community requires emergency assistance. In
terms of the amount of force permitted in the law enforcement context as compared with the
“community caretaker” context, there remains a question as to whether the officer may use the
same amount of force, but he certainly cannot use greater force. 124 In Policky, officers arrived on
scene to assist paramedics attempting to treat an uncooperative Mr. Policky, who was potentially
having diabetes complications, and who committed no crime either preceding the officers’
arrival or during the attempt to treat the situation. 125 The court found that a jury could reasonably
conclude that the officer’s use of force in pushing plaintiff to his knees was unreasonable, where
122

Id. at *14.
United States v. King, 990 F.2d 1552, 1560 (10th Cir. 1993) (quoting Camara v. Municipal Court, 387 U.S. 523,
530 (1967)).
124
Policky v. City of Seward, 433 F. Supp. 2d 1013, 1018 (D. Neb. 2006) (refusing to dismiss plaintiff’s § 1983
claim for an unreasonable seizure against the officer in his individual capacity) (finding no evidence of a threat
posed by plaintiff, despite plaintiff’s yelling, cursing, and being upset).
125
Id. at 1023.
123

25

the plaintiff had undisputedly committed no crime, and there was no evidence that the plaintiff
posed any threat to anyone.
In Borton v. City of Dothan, the court pointed out that the Graham factors include one
factor for the severity of the crime at issue. 734 F. Supp. 2d 1237, 1249 (M.D. Ala. 2010).
Therefore, it makes logical sense that in cases where there is no crime at issue, the balancing of
those Graham factors will be more likely to turn in the plaintiff’s favor. In Borton, officers were
called to the scene by the plaintiff’s family member, who was concerned for her mental health
and safety, but she had committed no crime. Id.

B. Failure to Train
1.

Prima Facie Case

The Supreme Court in City of Canton v. Harris 126 held that inadequate training of
municipal employees may underpin § 1983 liability where the failure to train amounts to a
municipality’s deliberate indifference to the federally protected rights of individuals with whom
the municipal employees come into contact. 127 Beyond a municipality’s deliberate indifference,
the Court also held that the deficiency in the training program must be closely related to the
ultimate injury. 128
In failure-to-train cases, the plaintiff seeks to impose liability against a municipality (city,
county, etc.) rather than the officer individually. When the systematic failure to train police
officers amounts to a custom, pattern or official policy, it justifies a finding of municipal

126

489 U.S. 378, 387–92 (1989).
Similarly, municipal liability may be premised on a police department’s failure to institute proper investigations
and disciplinary procedures. These claims can be department-wide, or with regards to the failure to meaningfully
investigate an individual officer. See Beck v. City of Pittsburgh, 89 F.3d 966, 972 (3d. Cir. 1996); Bielevicz v.
Dubinon, 915 F.2d 845 (3d Cir. 1990).
128
Id. at 391.
127

26

liability. 129 The Supreme Court in Harris noted that it may seem strange to assert that a
municipality has a policy of not training its employees:
But it may happen that in light of the duties assigned to specific officers or
employees the need for more or different training is so obvious, and the
inadequacy so likely to result in the violation of constitutional rights, that the
policymakers of the city can reasonably be said to have been deliberately
indifferent to the need. In that event, the failure to provide proper training may
fairly be said to represent a policy for which the city is responsible, and for which
the city may be held liable if it actually causes injury. 130

One particular officer’s inadequate training, alone, will not suffice to establish the deliberate
indifference standard. 131 Deliberate indifference arises primarily where municipal employees’
repeated violations of federally-protected rights evince that “the need for further training must
have been plainly obvious to the city policymakers.” 132 Stated another way, failure to train
municipal employees will be considered deliberate indifference “where the failure has caused a
pattern of violations.” 133
Absent evidence of a pattern of violations, a plaintiff may maintain a failure-to-train
claim where the particular violation of federal rights at issue is “a highly predictable
consequence of a failure to equip law enforcement officers with specific tools to handle recurring
situations.” 134

129

Monell v. Dep’t of Soc. Servs. of the City of New York, 436 U.S. 658, 694 (1978).
489 U.S. at 390 (emphasis added).
131
Id. at 391.
132
Id. at 390 n.10.
133
Berg v. Cnty. of Allegheny, 219 F.3d 261, 276 (3d Cir. 2000).
130

134

Id. at 276 (quoting Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 409 (1997)) (holding that in
order for a failure-to-train to amount to deliberate indifference in the absence of a pattern of violations, the plaintiff
must show both that the situation requiring the specific training is likely to recur and that officers lacking the
training will frequently violate citizens’ federal rights).

27

Practitioners should take note of the difficulties associated with pleading this type of
claim. Following Bell Atlantic Corp. v. Twombly 135 and Ashcroft v. Iqbal 136 it is clear that
conclusory or “bare-bones” allegations will no longer survive a motion to dismiss. To prevent
dismissal, all civil complaints must now set out “sufficient factual matter” to show that the claim
is facially plausible. Iqbal and Twombly have been particularly problematic in municipal liability
cases, because it is difficult to obtain “sufficient factual matter” regarding a municipality’s policy
absent discovery, but a plaintiff cannot survive a motion to dismiss and access discovery without
it. The Ninth Circuit has additionally interpreted this requirement of showing a program-wide
inadequacy in training to mean that a simple allegation that officers should have had a specific
type of training will not suffice. 137
Campbell v. City of Springboro 138 is a clear illustration of a complete, across the board
absence of training and supervision. There, the creation of a new canine unit in the police
department was placed on the shoulders of one officer alone, with no supervision at all. 139 There
was a question about whether there was any written policy in effect at all, because the policy
defendants claimed was in effect was a model policy downloaded from the internet—not
disseminated amongst staff, not placed in all policy manuals, and missing specific training and
certification guidelines. 140 Despite many complaints from the officer, he was given insufficient
time to spend training the canine, which meant that the canine went at least one month with no
maintenance training, when 16 hours per month was recommended. 141 On these facts, the court

135

550 U.S. 544, 556 (2007) (rejecting the traditional 12(b)(6) standard set forth in Conley v. Gibson, 355 U.S. 41,
45-46).
136
556 U.S. 662, 677 (2009).
137
Alexander v. City & Cnty. of S.F., 29 F.3d 1355, 1367 (9th Cir. 1994); Green v. Tri-County Metro. Transp. Dist.,
3:11-CV-00876-BR, 2012 U.S. Dist. LEXIS 161092 (D. Or. Nov. 9, 2012).
138
788 F. Supp. 2d 637 (S.D. Ohio 2011).
139
Id. at 679.
140
Id.
141
Id.

28

found that the inadequate training and supervision may be fairly said to represent the policy of
the city. 142
2.

Diabetes-Specific Cases

Successfully pleading a claim of inadequate training under § 1983 is difficult, but
including particular components may increase the likelihood of surviving summary judgment.
An ideal pleading should show an established pattern of similar constitutional violations; that the
plaintiff’s injury is an obvious or highly predictable consequence of inadequate training; and a
causal connection between a lack of training and the plaintiff’s injury. 143 None of the failure-totrain cases involving diabetes have survived summary judgment. 144 This section offers examples
of cases where plaintiffs with diabetes have alleged a failure to train officers, and the subsequent
section discusses successful failure-to-train cases in other contexts.
In Padula v. Leimbach 145 the decedent had diabetes and, while driving one morning, he
turned into a parking lot, drove against traffic onto a truck scale, stopped, and thereby clogged
traffic. Id. He remained in his vehicle, unresponsive and muttering gibberish. 146 The police
dispatcher told the responding officers that the incident involved an intoxicated man. 147 When
the officers attempted to rouse the decedent, he began yelling incoherently and flailing his
arms. 148 During the ensuing altercation, the officers pinned the decedent to the ground and

142

Id at 680.
Hall v. Raech, 677 F. Supp. 2d at 805 (officer’s testimony that he never received training on identifying medical
emergencies may satisfy the “likely to recur” prong since medical emergencies are likely to recur, but failed to show
that it would result in officers frequently violating citizens’ constitutional rights, under the Bryan County test).
144
At least one failure to train diabetes case has survived a motion to dismiss. Dewell v. Lawson, 489 F.2d 877
(10th Cir. 1974) (overturning the trial court’s grant of defendant’s motion to dismiss where a plaintiff’s wife notified
the police department that her husband was experiencing a diabetes emergency and had wandered away, but an
officer arrested him and put him in jail, despite an all-points bulletin specifically describing the plaintiff and his need
for medical attention).
145
740 F. Supp. 2d 980, 985 (N.D. Ind. 2010).
146
Id.
147
Id.
148
Id. at 985–86.
143

29

handcuffed him. 149 After noticing that his eyes had rolled back and that he had begun foaming at
mouth, one officer called for an ambulance. 150 Although emergency medical personnel
administered dextrose and transported the decedent to a local hospital after determining that he
was experiencing an episode of severe hypoglycemia, he died approximately one month later. 151
The administrator of the decedent’s estate brought a § 1983 claim against the defendant
municipality for inadequately training its officers to recognize the symptoms of diabetes and
distinguish them from symptoms of intoxication. 152 The district court granted the municipality’s
motion for summary judgment because the plaintiff failed to demonstrate any pattern of
constitutional violations against individuals with diabetes that would (1) suggest any deficiency
in the officers’ training and (2) reflect deliberate indifference to the decedent’s constitutional
rights. 153
In Adams the plaintiff had diabetes and, while driving his pickup truck, experienced an
acute hypoglycemic episode causing him to blackout. 154 After a brief chase that ended when the
plaintiff stalled his vehicle on a creek embankment, police officers shattered his driver’s side
window, forcibly removed him from the vehicle, placed him onto the ground, and restrained him
using handcuffs. 155
The plaintiff brought § 1983 claims against the defendant municipality for inadequately
training its police officers (1) on the use of force and (2) on identifying and dealing with suspects
experiencing hypoglycemia. 156 As to the former claim, the district court granted the
municipality’s motion for summary judgment because (1) the plaintiff had not alleged any
149

Id. at 986.
Id.
151
Id. at 987.
152
Id. at 990–91.
153
Id. at 991.
154
2011 U.S. Dist. LEXIS 54384, at *1–2, *7.
155
Id. at *4–6; see discussion supra at p.16.
156
Id. at *21–22.
150

30

particular deficiency or defect in the training policy and (2) the responding officers had fulfilled
all state-mandated training with regard to the use of force during arrests. 157 As to the latter claim,
the court also granted the municipality’s motion for summary judgment because the plaintiff had
failed to show (1) a pattern of similar incidents; (2) that the use of unreasonable force is an
obvious or highly predictable consequence of not training officers to recognize suspects
experiencing hypoglycemia; or (3) any causal connection between the officers’ lack of training
and the use of unreasonable force during the arrest. 158
In Bohnert v. Mitchell 159 the plaintiff had diabetes and, while driving on an interstate
highway, experienced an acute hypoglycemic episode. He subsequently sustained multiple
serious injuries during the course of his arrest. 160 Although he had been carrying a card in his
wallet noting his diabetes diagnosis, 161 the plaintiff presented no evidence that the responding
police officers were actually aware that he was not intoxicated. 162 Only after he had been
handcuffed did he ask the officers for help, at which point one officer called for an ambulance. 163
The officers then suspected that the plaintiff had diabetes after discovering a small packet of
candy in his pocket. 164 The plaintiff brought § 1983 claims for inadequate training and
supervision against the officers’ supervisors as well as the county. 165 However, because there is

157

Id. at *27–30.
Id. at *30–32.
159
No. CV-08-2303-PHX-LOA, 2010 U.S. Dist. LEXIS 114587, at *5 (D. Ariz. Oct. 26, 2010), motion granted in
part, motion denied in part sub nom. Bohnert v. Burke, 2010 U.S. Dist. LEXIS 131696 (D. Ariz. 2010), summary
judgment granted, No. CV-08-2303-PHX-LOA, 2010 U.S. Dist. LEXIS 134697 (D. Ariz. Dec. 20, 2010).
160
Id.
161
Id. at *9–10.
162
Id. at *6.
163
Id.
164
Id. at *8–9.
165
Id. at *24 (the plaintiff also brought a claim under Title II of the ADA. The court granted summary judgment to
the individually named defendants, citing 9th and 2nd Circuit court precedent that a public actor cannot be sued for
damages in his individual capacity under Title II of the ADA. Id. at *16. The court also found that the state could
not be held vicariously liable for the officer’s alleged discrimination. In order to receive monetary damages under
Title II of the ADA, a plaintiff must show intentional discrimination, and because the officer did not know that the
158

31

no respondeat superior liability under § 1983 and because the plaintiff had failed to plead that
the officers had violated his constitutional rights in their individual capacities, the district court
granted the defendants’ motion for summary judgment, finding no violation of the plaintiff’s
constitutional rights. 166
Again, surviving summary judgment on a claim of inadequate training under § 1983 often
is difficult. Establishing deliberate indifference by showing a pattern of similar constitutional
violations or that the plaintiff’s injury obviously or very likely follows from inadequate training
is an imposing pleading standard. 167 Furthermore, demonstrating a causal connection between a
plaintiff’s injuries and deficient training policies is a difficult undertaking. 168 Nevertheless,
courts may be more likely to deny summary judgment when plaintiffs have made some showing
of these elements.
3. Successful Non-Diabetes Failure-to-Train Cases
To date, no person with diabetes has survived summary judgment on a failure-to-train
claim, but others have been successful. While not an articulated factor, these cases share one
thing in common: all have resulted in a very serious physical injury to the plaintiff. 169 Cases

plaintiff had diabetes until after he used force, the court granted summary judgment to the State as well. Id. at *21–
22).
166
Id. at *25–26; see also discussion infra at p.47 (discussing municipal immunity and the unavailability of
respondeat superior liability under § 1983).
167
See Padula, 740 F. Supp. 2d at 991; Adams, 2011 U.S. Dist. LEXIS 54384, at *30–31.
168
See Adams, 2011 U.S. Dist. LEXIS 54384, at *31–32.
169
Conn v. City of Reno, 591 F.3d 1081 (9th Cir. 2010) vacated by City of Reno v. Conn, 131 S. Ct. 1812 (2011),
reinstated in part, on remand 658 F.3d 897 (9th Cir. 2011).Reinstated by, in part, On reconsideration by Conn v.
City of Reno, 2011 U.S. App. LEXIS 18487 (9th Cir. Nev., Sept. 6, 2011) (plaintiff committed suicide); Myres v.
Hooton, No. 1:03-cv-104, 2005 U.S. Dist. LEXIS 6981 (E.D. Tenn. Mar. 11, 2005) (plaintiff was choked, beaten,
and kicked by officer); Layman v. Alexander, 343 F. Supp. 2d 483 (W.D.N.C. 2004) (permanent traumatic brain
injury); Comfort v. Town of Pittsfield, 924 F. Supp. 1219 (D. Me. 1996) (serious head injury and injury to right eye);
Hopson v. Cheltenham Twp., Civil Action No. 90-0587, 1990 U.S. Dist. LEXIS 8905, at *30 (E.D. Pa. July 17,
1990) (suicide).

32

involving suicide, in particular, illustrate the path of demonstrating deliberate indifference via a
recurring situation. 170

C.

Fourteenth Amendment Right of Pretrial Detainees to Medical Care
1.

Prima Facie Case

Police may detain or arrest an individual with diabetes, and during the detention period—
however brief—an individual might be denied access to necessary medical care or supplies, such
as blood glucose testing supplies, insulin, glucagon, pills, or food, thereby resulting in injury. 171
Pretrial detainees may seek redress under the Due Process Clause of the Fourteenth Amendment
of the U.S. Constitution, which provides in pertinent part: “No State shall . . . deprive any person
of life, liberty, or property, without due process of law.” 172
When identifying the applicable constitutional protections in such cases, it is important to
distinguish between arrestees (individuals who have been arrested and have not yet received a
judicial determination of probable cause), pretrial detainees, and convicted prisoners, for
different standards apply to each group. 173 Thus, for cases involving a pretrial detainee, attorneys
should use the Fourteenth Amendment’s due process principles to guide their complaints of
170

For a fuller discussion of these types of cases in the context of prisoners with diabetes, the Association has a
parallel publication to this one: Benjamin Eisenberg, Legal Rights of Prisoners and Detainees with Diabetes: An
Introduction and Guide for Attorneys and Advocates (unpublished manuscript) (on file with the Association).
171
See Oritz v. City of Chic., 656 F.3d 523, 526–29 (7th Cir. 2011) (concerning police officers’ refusal to permit a
pretrial detainee access to pills for diabetes, thereby contributing to detainee’s death one day later).
172
U.S. Const. amend. XIV, § 1.
173

See, e.g., Lopez v. City of Chic., 464 F.3d 711, 718–19 (7th Cir. 2006) (“due process principles govern a pretrial
detainee’s conditions of confinement after the judicial determination of probable cause, and the Eighth Amendment
applies following conviction”); Weyant v. Okst, 101 F.3d 845, 856 (2d Cir. 1996); Boswell v. Cnty. of Sherburne,
849 F.2d 1117, 1120–21 (8th Cir. 1988) (citing Bell v. Wolfish, 441 U.S. 520, 523 (1979)) (“Pretrial detainees have
not received a formal adjudication of the charges against them and as such are beyond the power of the state to
punish”); Drogosch v. Metcalf, 557 F.3d 372, 378 (6th Cir. 2009) (“But it is the Fourth, rather than the Fourteenth,
Amendment that applies to this case because the Fourth Amendment governs the period of confinement between
arrest without a warrant and the preliminary hearing at which a determination of probable cause is made, while due
process regulates the period of confinement after the initial determination of probable cause.”); Hamm v. Hatcher,
No. 05-CV-503 (KMK), 2009 U.S. Dist. LEXIS 43975, at *11–17 (S.D.N.Y. May 5, 2009).

33

denial of medical care. For cases involving an arrestee, attorneys should seek to have courts
apply the much more generous “objectively unreasonable” test under the Fourth Amendment.
Both are discussed below. 174
The Supreme Court has held that the Eighth Amendment of the U.S. Constitution protects
convicted prisoners against prison officials’ deliberate indifference to their serious medical
needs. 175 “A serious medical need is one that has been diagnosed by a physician as requiring
treatment, or one that is so obvious that even a layperson would easily recognize the necessity
for a doctor’s attention.” 176 Prison doctors may manifest deliberate indifference in their
responses to prisoners’ medical needs, and prison guards may manifest deliberate indifference by
intentionally denying or delaying access to medical care or by intentionally interfering with
prescribed treatments. Estelle, 429 U.S. at 104–05. However, “an inadvertent failure to provide
adequate medical care” does not amount to a constitutional violation. Id. at 105–06.
Additionally, to prove a prison official’s deliberate indifference to a convicted prisoner’s
serious medical need, a plaintiff must prove two elements: (1) the alleged constitutional
deprivation must be “sufficiently serious,” demonstrating incarceration “under conditions posing
a substantial risk of serious harm;” and (2) the prison official must have a “sufficiently culpable
state of mind.” 177 The latter element speaks to deliberate indifference, which cannot be equated
with simple negligence. 178 Rather, a prison official possesses a “sufficiently culpable state of

174

For a discussion of the Eighth Amendment protections afforded prisoners with diabetes, see Benjamin Eisenberg,
Legal Rights of Prisoners and Detainees with Diabetes: An Introduction and Guide for Attorneys and Advocates
(unpublished manuscript) (on file with the Association).
175
Estelle v. Gamble, 429 U.S. 97, 104–05 (1976).
176
Schaub v. VonWald, 638 F.3d 905, 914 (8th Cir. 2011) (quoting Camberos v. Branstad, 73 F.3d 174, 176 (8th
Cir. 1995)) (internal quotation marks omitted).
177
Farmer v. Brennan, 511 U.S. 825, 834 (1994). But see Oritz, 656 F.3d at 530–31 (applying a four-factor test
according to the Fourth Amendment’s reasonableness standard).
178
Farmer, 511 U.S. at 835.

34

mind” when he or she “knows of and disregards an excessive risk to inmate health or safety.” 179
“[T]he official must both be aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he [or she] must also draw the inference.” 180
Beyond the Eighth Amendment floor articulated in Estelle, “the Supreme Court has not
precisely limned the duties of a custodial official under the Due Process Clause [of the
Fourteenth Amendment] to provide needed medical treatment to a pretrial detainee.” 181
However, nearly all circuits merely apply the Eighth Amendment deliberate indifference
standard under the Fourteenth Amendment’s Due Process Clause. 182 So while pretrial detainees
seek redress under different authority, their claims will be analyzed in the same manner. 183

179

Id. at 837.
Farmer, 511 U.S. at 837; see also Araujo v. City of New York, 08-CV-3715 (KAM) (JMA), 2010 U.S. Dist.
LEXIS 26082 (E.D.N.Y. Mar. 19, 2010) (officers were not deliberately indifferent where they obtained detainee’s
medicine after being informed of diabetes, but failed to administer it, where detainee was transferred four times in
37 hours and made no official aware of any pain or life-threatening conditions).
181
Hamm, 2009 U.S. Dist. LEXIS 43975, at *15–16 (quoting Weyant, 101 F.3d at 856) (internal quotation marks
omitted).
182
Some courts suggest that in theory they are prepared to award greater protections to pretrial detainees, but have
not actually awarded greater protections in actual cases. Marsh v. Butler County, 268 F.3d 1014, 1024 n.5 (11th Cir.
2001) (declining to decide how the Eighth and Fourteenth Amendment standards for evaluating medical needs
claims differ given the lack of argument); see also Gibson v. County of Washoe, 290 F.3d 1175, 1189 n.9 (9th Cir.
2002) (“It is quite possible . . . that the protections provided pretrial detainees by the Fourteenth Amendment in
some instances exceed those provided convicted prisoners by the Eighth Amendment.”); cf. Oregon Advocacy
Center v. Mink, 322 F.3d 1101, 1121 (9th Cir. 2003) (holding that “the substantive due process rights of
incapacitated criminal defendants are not governed solely by the deliberate indifference standard”).
183
See Allen v. York Cnty. Jail, 213 Fed. Appx. 13 (1st Cir. 2007); Caiozzo v. Koreman, 581 F.3d 63, 70 (2d Cir.
2009) (“the standard for deliberate indifference is the same under the Due Process Clause of the Fourteenth
Amendment as it is under the Eighth Amendment”); Boring v. Kozakiewicz, 833 F.2d 468, 472 (3d Cir. 1987); Ervin
v. Mangum, No. 93-7129, 1997 U.S. App. LEXIS 29363, at *10 (4th Cir. Oct. 27, 1997) (“As a practical matter,
however, we do not distinguish between the Eighth and Fourteenth Amendments in the context of a pretrial
detainee’s § 1983 claim); Hare v. City of Corinth, 135 F.3d 320, 326 (5th Cir. 1998); Estate of Owensby v. City of
Cincinatti, 414 F.3d 596, 602–03 (6th Cir. 2005); Cavalieri v. Shepard, 321 F.3d 616, 620 (7th Cir. 2003); Butler v.
Fletcher, 465 F.3d 340, 344 (8th Cir. 2006) (“we have . . . repeatedly applied the deliberate indifference standard of
Estelle to pretrial detainee claims that prison officials unconstitutionally ignored a serious medical need”); Redman
v. Cnty. of San Diego, 942 F.2d 1435, 1449 (9th Cir. 1991); Barrie v. Grand Cnty., 119 F.3d 862, 867 (10th Cir
1997) (“Under the Fourteenth Amendment’s due process clause, pretrial detainees . . . are entitled to the same
degree of protection regarding medical attention as that afforded convicted inmates under the Eighth Amendment”);
Hamm v. DeKalb Cnty., 774 F.2d 1567, 1574 (11th Cir. 1985).
180

35

Shumate v. Cleveland presents a clear example of deliberate indifference to a serious
medical need, based on the facts alleged. 184 There, while staggering around a parking lot, the
plaintiff stated to the defendant officers that he had diabetes and needed sugar. 185 The
accompanying ambulance crew offered to check the plaintiff’s blood glucose, but the officers
refused. 186 Instead, after discovering that the plaintiff had several traffic warrants for his arrest,
they decided to take him to the station first and then permit the ambulance crew to treat him. 187
The court pointed out that the plaintiff put the defendant officers on notice of his medical need
both through his actions (staggering around and frothing at the mouth) and by verbally
requesting medical attention. 188 The court also pointed to the officers’ refusal of the medical
crew’s offer to treat the plaintiff on the scene. 189 The court affirmed the district court’s ruling
that the defendants were not entitled to qualified immunity based on these facts. 190
Arrestees are the final class of individuals who can bring a § 1983 claim for inadequate
medical care. While the Supreme Court has not considered this issue, a number of circuits have
ruled that the Fourth Amendment protects a person from the time of an initial, warrantless
seizure until a formal arraignment or probable cause hearing. Lopez, 464 F.3d at 711; Drogosch,
557 F.3d at 378 (sixth circuit); Gaylor v. Does, 105 F.3d 572, 574 (10th Cir. 1997); see also
Luna v. Bell, No. 3:11-cv-00093, 2013 U.S. Dist. Lexis 147497, at *5–8 (M.D. Tenn. Oct. 10,
2013) (discussing the difference between the Fourth and Eighth Amendment standards). In these
circuits, only after a formal charge is made does the individual become a pretrial detainee and
protection shifts from the Fourth Amendment to the Fourteenth Amendment’s due process
184

See 483 Fed. Appx. at 112.
Id. at 113.
186
Id.
187
Id.
188
Id. at 114.
189
Id.
190
Id.
185

36

clause. The theory behind the distinction is that where the officer’s probable cause determination
has not been verified, either through a warrant or a Gerstein hearing, the arrestee is still protected
under the Fourth Amendment’s prohibition against unreasonable seizures. 191 Once the probable
cause determination has been verified, the seizure ends, and the analysis shifts to the due process
principles of the Fourteenth Amendment. 192 As a matter of prudence, plaintiff’s counsel should
plead both Fourth and Fourteenth Amendment violations.
The Fourth Amendment sets a standard that prevents officer conduct that is “objectively
unreasonable.” 193 The Seventh Circuit provides a clear test for whether the defendant’s conduct
was objectively unreasonable, enumerating four factors: (1) the defendant must have notice of
the arrestee’s medical need, by word or by observation of physical symptoms; (2) the seriousness
of the medical need—based on a sliding scale, balanced against the third factor; (3) the scope of
the requested treatment; and (4) “police interests” relevant to the reasonableness determination,
encompassing such factors as administrative, penological, or investigatory concerns. 194 In the
Sixth, Seventh, and Tenth Circuits, then, a person bringing a claim for inadequate medical care
provided to an arrestee has a much easier standard to meet than the same claim for a pretrial
detainee or convicted inmate. Counsel should pay special attention to whether a warrant was
issued or a Gerstein hearing took place, and claim arrestee status to avail their clients of this
lower bar to establish denial of medical care. And though the remaining circuits have not yet
191

Gerstein v. Pugh, 420 U.S. 103 (1975).
Lopez, 464 F.3d at 718.
193
Id. (citing Abdullahi v. City of Madison, 423 F.3d 763, 768 (7th Cir. 2005)) (where an arrestee was shackled to
the wall of a small, windowless room for four days without a sink or toilet, and without food or drink, this was more
than adequate to support a finding that the detectives’ conduct was objectively unreasonable).
194
Currie v. Cundiff, No. 09-cv-866-MJR, 2012 U.S. Dist. LEXIS 38935, at *19 (S.D.Ill. Mar. 22, 2012), aff’d sub
nom. Currie v. Chhabra, 728 F.3d 626 (7th Cir. 2013). The four-factor test was first explicitly established in
Williams v. Rodriguez, 509 F.3d 392, 403 (7th Cir. 2007) in reflecting on the court’s own analysis in Sides v. City
of Champaign, 496 F.3d 820 (7th Cir. 2007) a case in which the police forced a man to stand against the fender of
his car for an hour on a 90 degree day. The Seventh Circuit has also created a separate standard for claims against
medical professionals, as opposed to correctional staff, which it calls the “professional judgment” standard. This
standard is comparable to the deliberate indifference standard, but the variation should be noted. Chavez v. Cady,
207 F.3d 901, 905 (7th Cir. 2000).
192

37

established this difference, there are no cases which strike down the distinction between arrestees
and pretrial detainees, so counsel would be well advised to consider making the distinction even
outside the sixth, seventh and tenth circuits.
2.

Diabetes-Specific Fourth and Fourteenth Amendment Cases

Unlike failure-to-train cases, which have been frequently unsuccessful due to the
difficulty of establishing system-wide deficiencies, claims of denial of adequate medical care
under § 1983 are among the easiest claims for plaintiffs to plead. They are also among those
most likely to survive summary judgment. Common to most successful pleadings are allegations
that a plaintiff clearly communicated (1) his or her diabetic status to police officers as well as (2)
the possibility of adverse effects following a denial of medical care. Successful pleadings also
allege that police officers nevertheless ignored such information and failed to provide adequate
medical treatment.
In Oritz, 195 the decedent was arrested in her home and informed the arresting officers that
she required medication to manage her diabetes but was not permitted to bring it with her to
lockup. Her son soon delivered her medication to the facility where she was being held, but an
officer refused to accept it, stating that the decedent would be taken to a hospital to receive
care. 196 During a booking interview the decedent stated that she had “serious medical problems”
and used medication to manage diabetes. 197 Her condition deteriorated over the following day,
and officers repeatedly ignored or denied her requests for medical assistance. 198 Finally, the
decedent passed away in her cell. 199

195

656 F.3d at 527.
Id.
197
Id. at 527–28.
198
Id. at 528–29.
199
Id. at 529.
196

38

The decedent’s estate brought § 1983 claims against the defendant city and multiple
police officers for failing to provide adequate medical care. 200 Because the decedent was an
arrestee, and had not yet had a judicial determination of probable cause, the Seventh Circuit
applied the Fourth Amendment reasonableness standard to assess the decedent’s § 1983
claims. 201 The court then applied the Seventh Circuit’s four-factor reasonableness test, discussed
above in the arrestee context. 202 The Seventh Circuit reversed the district court’s grant of
summary judgment with respect to the defendant city and officers for several reasons: (1) the
officers had sufficient notice that the decedent required medical care to treat her serious medical
conditions; 203 (2) the district court had improperly excluded expert testimony demonstrating that
the officers failure to act had caused the decedent’s death; 204 (3) there remained an unresolved
dispute concerning whether the city had stipulated to accept liability if any of the officers were
found to be liable; 205 and (4) the officers were not entitled to qualified immunity because
“providing no medical care in the face of a serious health risk constitutes deliberate
indifference.” 206
In Garretson v. City of Madison Heights, 207 the plaintiff was arrested; during the booking
process she informed police that she had diabetes and would require an insulin injection. Despite
her ongoing attempts to alert police to her medical needs, she was placed in a holding cell
overnight without receiving any insulin and subsequently experienced symptoms of insulin
deprivation and high blood glucose. 208 The next morning, emergency medical personnel

200

Id. at 527.
Id. at 530.
202
Id.
203
Id. at 532–34.
204
Id. at 534–38.
205
Id. at 530.
206
Id. at 538–39.
207
407 F.3d 789, 794 (6th Cir. 2005).
208
Id.
201

39

transported her to a local hospital, where she remained for several days receiving treatment for
diabetic ketoacidosis. 209
The plaintiff brought Fourteenth Amendment § 1983 claims against the defendant
municipality and multiple police officers for failing to provide adequate medical care as required
under the Fourteenth Amendment. 210 To prove municipal liability, she needed to establish
causation between an official municipal policy and her injury and show that municipal officers
had acted with deliberate indifference to her serious medical needs. 211 The Sixth Circuit affirmed
the district court’s grant of summary judgment because the plaintiff offered no evidence of a
pattern of such detainee treatment or municipal sanction thereof or that her treatment constituted
the “moving force” behind her injuries. 212
Regarding the police officers against whom the plaintiff had brought Fourteenth
Amendment § 1983 claims, the Sixth Circuit affirmed the district court’s grant of summary
judgment with respect to those that had no knowledge of her diabetic condition and, therefore,
lacked “sufficiently culpable states of mind.” 213 However, with respect to those that had known
of her diabetic condition, the Sixth Circuit reversed the district court’s grant of summary
judgment because it found that their inaction created a genuine issue of material fact about
whether their actions violated her Fourteenth Amendment right to adequate medical care. The
court also found that her constitutional right was so clearly established that they reasonably

209

Id. at 794–95.
Id. at 795.
211
See id. This entailed showing: “(1) a clear and persistent pattern of mishandled medical emergencies for prearraignment detainees; (2) notice, or constructive notice of such pattern, to [the municipality]; (3) tacit approval of
the deliberate indifference and failure to act amounting to an official policy of inaction; and (4) that the custom or
policy of inaction was the ‘moving force,’ or direct causal link, behind the constitutional injury.” Id. at 796.
212
Id.
213
Id. at 797.
210

40

should have recognized their affirmative duty to act otherwise. 214 Consequently, the Sixth Circuit
found that the officers were not entitled to qualified immunity for their actions. 215
In Lolli v. Cnty. of Orange, 216 the plaintiff was arrested pursuant to an outstanding
warrant for an unpaid parking ticket. During the arrest he informed the police officer that he had
diabetes, felt ill, and needed to eat as soon as possible. 217 A nurse at the jail to which he was
transported also noted his diabetes diagnosis. 218 However, the plaintiff subsequently remained in
a cell without food for several hours. 219 When he inquired as to the arrival of a snack that the
nurse had promised, he contended that several officers removed him from his cell and beat him
severely, causing serious and lasting physical injuries. 220 The officers maintain that the plaintiff
was unresponsive to orders, verbally abusive, and combative and denied knowing that he had
diabetes. Id.
As a pretrial detainee, the plaintiff brought Fourteenth Amendment § 1983 claims against
the defendant county and multiple police officers alleging that they had exhibited deliberate
indifference to his serious medical needs. 221 The Ninth Circuit acknowledged, “[A]
constitutional violation may take place when the government does not respond to the legitimate
medical needs of a detainee whom it has reason to believe is diabetic.” 222 The court then found
that “the officers’ indifference to [the plaintiff’s] extreme behavior, his obviously sickly
appearance and his explicit statements that he needed food because he was a diabetic could
easily lead a jury to find that the officers consciously disregarded a serious risk to [his]

214

Id. at 798–99.
Id.
216
351 F.3d 410, 412 (9th Cir. 2003).
217
Id.
218
Id.
219
Id.
220
Id. at 412–13.
221
Id. at 412, 418.
222
Id. at 420.
215

41

health.” 223 The Ninth Circuit therefore reversed the district court’s grant of summary judgment
with respect to those officers that the evidence showed may have known that the plaintiff had
diabetes, and it affirmed with respect to those officers about whom the evidence revealed no such
knowledge. 224 Regarding the municipal liability claim, the Ninth Circuit affirmed the district
court’s grant of summary judgment because the plaintiff neither challenged the order directly nor
presented evidence of any omissions evincing the defendant county’s responsibility for the
officers’ actions. 225
In Beatty v. Davidson, 226 the plaintiff had diabetes and was arrested at his home as he was
conducting a blood glucose check and administering insulin. Although he expressed his need to
complete the insulin administration, the arresting officer refused to allow him to proceed, stating
that medical care would be provided at the holding center to which he was being taken. 227
Despite this guarantee, the plaintiff remained jailed overnight without receiving any insulin
because the medical department there was unstaffed overnight. 228 During this interval, he
communicated to police that he felt ill, disoriented, and dehydrated and required insulin;
nevertheless, he received no medical attention. 229 The next day, the medical department
examined and scheduled the plaintiff for periodic blood glucose checks but failed to conduct an
evening blood glucose check following his arraignment. 230 The plaintiff ultimately required
hospitalization for diabetic ketoacidosis, dehydration, and hypothermia. 231

223

Id. at 421.
Id.
225
Id. at 415.
226
713 F. Supp. 2d 167, 169 (W.D.N.Y. 2010).
227
Id.
228
Id. at 169–170.
229
Id.
230
Id. at 170–71.
231
Id. at 172.
224

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The plaintiff brought Fourteenth Amendment § 1983 claims against the defendant
medical department nurse, holding center supervisors, and municipality for denying him
adequate medical care as a pretrial detainee in violation of the Fourteenth Amendment. 232 The
district court denied the defendants’ motion for summary judgment because it found that
sufficient evidence existed to demonstrate that (1) the medical department nurse had exhibited
deliberate indifference to the plaintiff’s serious medical condition; 233 (2) the holding center
supervisors’ gross negligence in supervising their subordinates had resulted in the plaintiff’s
injuries; 234 and (3) the plaintiff’s injuries resulted from the county’s failure to institute a system
to accommodate chronically ill pretrial detainees. 235
Practitioners should keep in mind that where a pretrial detainee obtains some medical
care, but disagrees with the course or adequacy of treatment, it will be exceptionally difficult to
establish an actionable claim under § 1983. 236 Indeed, the deliberate indifference standard is
more than medical negligence. 237
Because of the possibility of immediate and serious adverse effects from untreated
diabetes, plaintiffs may not face substantial difficulty in demonstrating that police officers’ and
jail officials’ denial of medical care or supplies posed a substantial risk of serious harm. 238
Additionally, the preceding cases illustrate that plaintiffs often survive the summary judgment
stage when they have pleaded that they expressly communicated to officers their diabetes
diagnoses and the possibility of immediate adverse effects following denial of medical treatment.
232

Id. at 168.
Id. at 173–76.
234
Id. at 176–77.
235
Id. at 178–79.
236
See Schulker v. Kenton Cnty., No. 10-143-DLB-CJS, 2013 U.S. Dist. LEXIS 6950, at *9–12 (E.D. Ky. Jan. 17,
2013) (plaintiff received two shots of insulin instead of four during a 24 hour detention).
237
Farmer v. Brennan, 511 U.S. 825, 837 (1994); Natale v. Camden Cnty Corr. Facility, 318 F.3d 575, 582 (3d Cir.
2003); Nicini v. Morra, 212 F.3d 798, 811 (3d Cir. 2000) (“Deliberate indifference is a ‘subjective standard of
liability consistent with recklessness as that term is defined in criminal law.’).
238
See Lolli, 351 F.3d at 420.
233

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When attorneys evaluate the strength of a potential case, particular attention should be
paid to whether the potential plaintiff conveyed his or her diabetes diagnosis and need for
medical treatment to officials while detained. Although not an explicit element in any circuit’s
test, as a practical matter, proof that the detained individual gave actual notice (as compared with
constructive notice) will strengthen the case significantly. This is because most courts have held
that even under the Fourteenth Amendment, deliberate indifference is the standard by which to
judge these claims. 239 Establishing that officers and jail officials possessed such knowledge
strongly supports findings of deliberate indifference, and providing actual notice is one of the
easiest ways to establish this. 240

D.

Procedural Considerations

Attorneys should be aware of several important procedural points when bringing claims
under § 1983.
1.

Bivens Actions – Bringing a Claim against a Federal Agent

Litigation under § 1983 typically does not apply to actions against federal government
employees. 241 However, the landmark case Bivens v. Six Unknown Named Agents of Fed. Bureau
of Narcotics instituted a court-created right of action, via the Federal Question jurisdiction of the
district courts.

242

This right of action allows plaintiffs to bring claims for damages for

constitutional violations against federal officers in their individual—not official—capacities. Id.
While the agents in Bivens attempted to argue that the right to privacy was a state-created right,
the court disagreed, reasoning that the Fourth Amendment limits the exercise of federal

239

Beatty, 713 F. Supp. 2d at 173–76; Lolli, 351 F.3d at 421; Oritz, 656 F.3d at 532–34.
See Beatty, 713 F. Supp. 2d at 173–76; Lolli, 351 F.3d at 421; Oritz, 656 F.3d at 538–39.
241
Settles v. U.S. Parole Comm’n, 429 F.3d 1098 (2005).
242
403 U.S. 388, 389 (1971); 28 U.S.C. § 1331(a).
240

44

power. 243 In Bivens, agents of the Federal Bureau of Narcotics allegedly made a warrantless
entry of plaintiff’s apartment, searched it, and arrested him on narcotics charges, all without
probable cause. 244 The court held that the plaintiff was permitted to bring a cause of action
against the federal agents for violating his Fourth Amendment right to be free from unreasonable
search and seizure. 245 While it may be less likely for an individual with diabetes to interact with
a federal agent than a state or municipal police officer, it should be noted that in those cases, the
aggrieved possess the same right to bring an action for unreasonable searches and seizures in
violation of the Fourth Amendment.
2.

Qualified Immunity

A police officer may be entitled to a defense of qualified immunity for any monetary
liability incurred as a result of using unreasonable force in violation of the Fourth Amendment,
failure to provide adequate medical care in violation of the Fourth or Fourteenth Amendments or
failure to train in violation of the Fourteenth Amendment. 246 An officer may claim qualified
immunity unless (1) the evidence, viewed in the light most favorable to the plaintiff, establishes
a violation of a constitutional or statutory right and (2) the right was clearly established at the
time of the violation, such that a reasonable official would have known that his or her actions
were unlawful. 247 The Supreme Court has emphasized that qualified immunity is an inquiry “in
which the result depends very much on the facts of each case.” 248

243

Id. at 391–92.
Id. at 389.
245
Id.
246
See Stafford v. Stewart, 461 Fed. Appx. 767, 771 (10th Cir. 2012); Estate of Henson v. Callahan, 440 Fed. Appx.
352, 356, 358 (5th Cir. 2011); Thomson v. Salt Lake Cnty., 584 F.3d 1304, 1312–15 (10th Cir. 2009).
247
Gardner v. Bd. of Police Comm’rs, 641 F.3d 947, 950 (8th Cir. 2011); see Pearson v. Callahan, 555 U.S. 223,
231–32 (2009).
248
Brosseau v. Haugen, 543 U.S. 194, 201 (2004); see also Scott v. Harris, 550 U.S. 372, 383 (2007) (“Although
respondent’s attempt to craft an easy-to-apply legal test in the Fourth Amendment context is admirable, in the end
we must still slosh our way through the factbound morass of ‘reasonableness.’”).
244

45

The first step of this analysis—whether an official violated a constitutional or statutory
right—requires assessing “the objective legal reasonableness of the action, assessed in light of
the legal rules that were clearly established at the time it was taken.” 249 Regarding the second
step of this analysis, the Supreme Court has stated that “officials can be on notice that their
conduct violates established law even in novel factual situations.” 250 Upon revisiting this
framework, the Supreme Court held that the two-step analysis need not be addressed in
sequence. 251 Courts often require case law narrowly defining the applicable standards to find that
a right has been clearly established, but the Supreme Court has stated, “in an obvious case, these
standards can ‘clearly establish’ the answer, even without a body of relevant case law.” 252
The qualified immunity defense often serves as a substantial obstacle to recovery in §
1983 claims. Arguing against the defense frequently is an uphill battle: “As a practical matter,
officials almost always secure qualified immunity, either from the trial court or the appellate
tribunal. Only the most flagrant and shocking conduct will defeat qualified immunity; merely
‘stupid’ actions are insufficient.” 253 One exception to the powerful qualified immunity defense is
that where plaintiffs seek injunctive relief in addition to or in lieu of damages, qualified
immunity will not be an available defense. 254
3.

Municipal Immunity

A municipality can be liable under § 1983 “only where the municipality itself causes the
constitutional violation at issue . . . Respondeat superior or vicarious liability will not attach

249

Thomson, 584 F.3d at 1313 (quoting Pearson, 555 U.S. at 244) (internal quotation marks omitted).
Hope v. Pelzer, 536 U.S. 730, 741 (2002).
251
Pearson, 555 U.S. at 236 (noting that sequential analysis “is often beneficial,” but that courts may exercise
discretion where application would result in unnecessary litigation and determination of constitutional issues,
ultimately “disserv[ing] the purpose of qualified immunity” and resulting in “substantial expenditure of scarce
judicial resources”).
252
Brosseau, 543 U.S. at 199.
253
James C. Harrington, The ADA and Section 1983: Walking Hand in Hand, 19 REV. LITIG. 435, 438 (2000).
254
Pearson, 555 U.S. at 242.
250

46

under § 1983.” 255 Thus, in cases in which police officers allegedly have deprived individuals of
federally protected rights under color of state law, a municipality will not be liable “solely
because it employs a tortfeasor.” 256 Rather, for § 1983 liability to attach to a municipality, “there
[must be] a direct causal link between a municipal policy or custom and the alleged
constitutional deprivation.” 257Additionally, when a plaintiff alleges that a municipality is liable
for failing to train its police officers, the municipality will be liable “only where the failure to
train amounts to deliberate indifference to the rights of persons with whom the police come into
contact.” 258
4.

Eleventh Amendment Immunity of State Entities

Although municipal entities and employees do not have immunity under the Eleventh
Amendment, state entities and employees do. The Eleventh Amendment of the U.S. Constitution
prevents plaintiffs from obtaining relief against state government entities or state employees in
their official capacities. 259 State employees are not immune from suit, however, in their
individual capacities. 260 For this reason, attorneys must be mindful of issues of Eleventh
Amendment (or sovereign) immunity when bringing claims under § 1983.
The Eleventh Amendment states: “The Judicial power of the United States shall not be
construed to extend to any suit in law or equity, commenced or prosecuted against one of the
United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S.
Const. amend. XI. Although the language of the Eleventh Amendment does not mention suits by

255

City of Canton, 489 U.S. at 385 (citing Monell v. Dep’t of Soc. Servs., 436 U.S. at 694–95).
Monell, 436 U.S. at 691.
257
City of Canton, 489 U.S. at 385.
258
Id. at 388; see discussion supra at p.26.
259
See, e.g., Everson v. Leis, 556 F.3d 484, 493 n.3 (6th Cir. 2009), aff’d, 412 F. App’x 771 (6th Cir. 2011)
(declining to address claims against police officers in their official capacities because of Eleventh Amendment
immunity); Fitch v. Ky. State Police, No. 3:10-49-DCR, 2010 U.S. Dist. LEXIS 120013, at *15–16 (E.D. Ky. Nov.
10, 2010) (applying Eleventh Amendment Immunity for state police and state transportation agency).
260
Sutton v. Utah State Sch. For the Deaf & Blind, 173 F.3d 1226, 1237 (10th Cir. 1999).
256

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citizens against their own states, the Supreme Court has held that its cases “have extended the
[Eleventh] Amendment’s applicability to suits by citizens against their own States.” 261 Sovereign
immunity applies not only to states themselves, but also to state instrumentalities. 262 In all such
cases, states or state government entities cannot be made parties to suits in federal court without
their consent. 263
Of particular importance to attorneys bringing § 1983 claims against police officers,
Eleventh Amendment immunity extends to state officials, including police officers, acting in
their official capacities. 264 However, while sovereign immunity bars federal actions against
police officers in their official capacities to the extent that plaintiffs seek monetary damages, the
Eleventh Amendment does not bar federal actions against officers in their official capacities
wherein plaintiffs seek only prospective injunctive relief. 265 Such actions are not regarded as
actions against the state. 266 Additionally, “the Eleventh Amendment does not extend its
immunity to units of local government,” Garrett, 531 U.S. at 369, including cities and counties.
The Eleventh Amendment bars federal actions against state police officers acting in their
official capacities only to the extent that plaintiffs seek monetary damages. Plaintiffs still may
261

Bds. & Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 363 (2001).
Harris v. Angelina Cnty., 31 F.3d 331, 338 n.7 (5th Cir. 1994).
263
Id. at 339.
264
See Robinette v. Jones, 476 F.3d 585, 589–90 (8th Cir. 2007).
265
Fry v. McCall, 945 F. Supp. 655, 660 (S.D.N.Y. 1996). In order to take advantage of the exception to state
immunity from liability, the plaintiff must name a person (usually the agency head) in his or her official capacity,
rather than naming the agency. See also Stoner v. Wis. Dep’t of Agric., Trade & Consumer Prot., 50 F.3d 481, 482–
83 (7th Cir. 1995) (affirming dismissal of damages action against state employees in their official capacities);
Channer v. Murray, 247 F. Supp. 2d 182, 187–88 (D. Conn. 2003), motion denied, summary judgment granted, No.
3:00cv230 (SRU), 2005 U.S. Dist. LEXIS 5304 (D. Conn. Mar. 31, 2005) (“The Eleventh Amendment immunity
that protects the state from suits for monetary relief also protects state officials sued for damages in their official
capacities.”); Salvador v. Lake George Park Comm’n, No. 1:98-CV-1987 (FJS/DRH), 2001 U.S. Dist. LEXIS
23465, at *3 (N.D.N.Y. Mar. 28, 2001) (“[C]ompensatory and punitive damages [are] not available in an action
brought by a citizen against a state or state agency.”); see generally Mountain Cable Co. v. Pub. Serv. Bd., 242 F.
Supp. 2d 400, 403–04 (D. Vt. 2003) (quoting Milliken v. Bradley, 433 U.S. 267, 289 (1977)) (“In its long-standing
exception to Eleventh Amendment sovereign immunity, Ex parte Young ‘permits federal courts to enjoin state
officials to conform their conduct to requirements of federal law, notwithstanding a direct and substantial impact on
the state treasury.’”).
266
Alley v. Angelone, 962 F. Supp. 827, 831 n.1 (E.D. Va. 1997) (citing Will v. Mich. Dep’t of State Police, 491 U.S.
58, 71 n.10 (1989)).
262

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obtain prospective injunctive relief from state police officers in their official capacity despite
sovereign immunity. 267 Separately, plaintiffs may sue state actors in their individual capacities, if
the plaintiff is intent on seeking damages. 268 Furthermore, plaintiffs may obtain both legal and
equitable relief from municipal police officers. 269
5.

Limitations Period

Section 1983 does not provide a statute of limitations, and for that reason, federal courts
apply the statutes of limitations of the states in which § 1983 actions are brought. 270 When a
federal cause of action lacks a statute of limitations, a court will adopt the most appropriate or
most analogous state statute of limitations, as long as it is not inconsistent with federal law or
policy to do so. 271 Because statutes of limitations vary from state to state, the limitations period
applied to § 1983 necessarily will vary also. Most courts apply state statutes of limitations
governing statutorily created actions to § 1983 actions. 272 Some courts apply state statutes of
limitations governing contract claims, 273 state civil rights actions, 274 or actions against public
officials 275 to § 1983 actions.
6.

Notice

268

Sutton, 173 F.3d at 1237.
This discussion of sovereign immunity applies only to suits in federal court. The Eleventh Amendment does not
bar plaintiffs from obtaining relief in state court.
270
Deepwells Estates, Inc. v. Inc. Vill. of the Head of the Harbor, 973 F. Supp. 338, 344 (E.D.N.Y. 1997) (citing
Wilson v. Garcia, 471 U.S. 261, 268–69 (1985)).
271
See Goodman v. Lukens Steel Co., 482 U.S. 656, 660 (1987); Wilson v. Garcia, 471 U.S. at 266–68.
272
See, e.g., Bd. of Regents v. Tomanio, 446 U.S. 478, 484 n.4 (1980) (applying New York’s three-year statute of
limitations for actions “to recover upon a liability, penalty or forfeiture created or imposed by statute” to § 1983);
Wolfe v. Horn, 130 F. Supp. 2d 648, 657 (E.D. Pa. 2001) (applying Pennsylvania’s two-year statute of limitations
for personal-injury actions to § 1983); Williams v. D.C., 676 F. Supp. 329, 331 (D.D.C. 1987) (applying the District
of Columbia’s three-year statute of limitations for tort actions seeking recovery for personal injuries to § 1983);
Shorters v. Chic., 617 F. Supp. 661, 662–66 (N.D. Ill. 1985) (applying Illinois’ five-year statute of limitations for
“all civil actions not otherwise provided for” to § 1983).
273
See, e.g., Vanlaarhoven v. Newman, 564 F. Supp. 145, 150 (D.R.I. 1983) (applying Rhode Island’s ten-year
statute of limitations for breach of implied warranty to § 1983).
274
See, e.g., Hall v. Asher, 355 F. Supp. 808, 811 n.6 (D. Md. 1973) (applying Maryland’s three-year statute of
limitations for violations of an article of the Maryland Declaration of Rights to § 1983).
275
See, e.g., Freeze v. Griffith, 849 F.2d 172, 175 (5th Cir. 1988) (applying Louisiana’s one-year statute of
limitations for actions against state officials to § 1983).
269

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Most states require that a plaintiff bringing a tort claim against a state (including a
municipality within the state) provide timely notice before initiating claim in state or federal
court. 276 Plaintiffs bringing tort claims in state court therefore should consult state law for any
applicable notice requirements.
Even though § 1983 claims generally are characterized as torts, 277 a plaintiff need not
adhere to a state notice-of-claim requirement prior to initiating a § 1983 claim in state court. 278
The Felder Court concluded that state notice-of-claim requirements conflict with the Supremacy
Clause and the remedial objectives of § 1983. 279 Additionally, a plaintiff usually is not required
to comply with any notice provisions before initiating a federal claim in federal court. 280

E.

Remedies
1.

Damages, Equitable Relief, and Attorney’s Fees

Compensatory damages are typically recoverable for violations of § 1983 involving
police misconduct. 281 A judge can find a damages award to be excessive when it is “so high as to

276

E.g., Wis. Stat. § 893.80(a) (2011) (requiring that a plaintiff provide written notice of the circumstances of the
claim to the relevant governmental subdivision within 120 days after the happening of the event giving rise to the
claim); Cal. Gov’t Code §§ 905, 910, 911, 915 (requiring filing of tort claim within six months of incident absent
certain exceptions).
277
Wilson v. Garcia, 471 U.S. at 276.
278
Felder v. Casey, 487 U.S. 131, 138 (1988).
279
Id.
280
See Brown v. United States, 742 F.2d 1498, 1500 (D.C. Cir. 1984); Rosa v. Cantrell, 705 F.2d 1208, 1221 (10th
Cir. 1982).
281
See, e.g., Chaudhry v. City of Los Angeles, No. 11-55820, 2014 U.S. App. LEXIS 9208 (9th Cir. May 19, 2014)
(finding that California’s bar against pre-death pain and suffering damages in survival actions was inconsistent with
the deterrence policy underlying § 1983 and holding that California law disallowing pre-death pain and suffering
does not apply to § 1983 claims where the decedent’s death was caused by a violation of federal law); Carey v.
Piphus, 435 U.S. 247, 260 (1978); Ciraolo v. City of New York, 216 F.3d 236, 238 (2d Cir. 2000) (district court
awarded compensatory damages, not contested on appeal); Sabir v. Jowett, 214 F. Supp. 2d 226, 244–47 (D. Conn.
2002) (endorsing award of compensatory damages when the record demonstrated that the plaintiff sustained injuries

50

shock the judicial conscience and constitute a denial of justice,” 282 When determining whether a
damages award is excessive, a court also may consider whether it is “within the reasonable range
based on awards in other cases of a similar nature.” 283
Additionally, punitive damages may be awarded under § 1983 to deter or punish
constitutional violations. 284 The Supreme Court in Smith v. Wade articulated the standard for
punitive damages in a § 1983 action: “[A] jury may be permitted to assess punitive damages in
an action under § 1983 when the defendant’s conduct is shown to be motivated by evil motive or
intent, or when it involves reckless or callous indifference to the federally protected rights of
others.” 285 When deciding whether a punitive damages award is excessive or shocks the judicial
conscious, a court will consider three guideposts: “(1) the degree of reprehensibility of the
defendant's misconduct; (2) the disparity between the actual or potential harm suffered by the
plaintiff and the punitive damage award; and (3) the difference between the punitive damages
awarded by the jury and the civil penalties authorized or imposed in comparable cases.” 286
Finally, the Supreme Court has held that punitive damages are not available against
municipalities in a § 1983 action, unless expressly authorized by statute. 287

for which medical treatment was required, resultantly was required to hire an attorney, and experienced continuing
physical injuries and emotional distress); Hogan v. Franco, 896 F. Supp. 1313, 1325–29 (N.D.N.Y. 1995)
(endorsing award of compensatory damages for serious physical injuries, denial of medical treatment, and pain and
suffering because it fell “within the range of reasonableness of comparable cases”).
282
Sabir, 214 F. Supp. 2d at 244–45 (quoting O’Neill v. Krzeminski, 839 F.2d 9, 13 (2d Cir. 1988)) (internal
quotation marks omitted) or “if it is the result of a miscarriage of justice and represents a windfall to the plaintiff
without regard to [his] [sic] injury,” id. at 245 (quoting Oliver v. Cole Gift Ctr., Inc., 85 F. Supp. 2d 109, 114 (D.
Conn. 2000)) (internal quotation marks omitted).
283
Sabir, 214 F. Supp. 2d at 245; see Hogan, 896 F. Supp. at 1325–29.
284
Smith v. Wade, 461 U.S. 30, 56 (1983); Robinson v. Cattaraugus Cnty., 147 F.3d 153, 161 (2d Cir. 1998) (even
where compensatory damages are not found, a jury may still award punitive damages); Sabir, 214 F. Supp. 2d at 246
(citing Carey v. Piphus, 435 U.S. at 257 n.11).
285
461 U.S. at 56.
286
Estate of Moreland v. Dieter, 395 F.3d 747, 756 (7th Cir. 2005) (quoting State Farm Mut. Auto. Ins. Co., Inc. v.
Campbell, 538 U.S. 408, 418 (2003)); see also Sabir, 214 F. Supp. 2d at 574–75 (identifying same guideposts).
287
Newport v. Fact Concerts, 453 U.S. 247, 271 (1981).

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Equitable relief also is available for violations of § 1983 involving police misconduct. 288
However, in cases seeking injunctive relief plaintiffs may encounter a significant obstacle to
establishing standing. In L.A. v. Lyons, the plaintiff sought a preliminary and permanent
injunction against the City to bar the use of the control holds. 289 He had been the recipient of a
control hold during a routine traffic stop, and presented evidence that since his complaint many
individuals had also been placed in control holds in circumstances where there was no threat of
injury to officers, and had died. 290 The Court found that this evidence fell short of the standard,
which requires the plaintiff to assert that he is in real and immediate danger of sustaining the
injury again. 291 The Court went on to state that,
In order to establish an actual controversy in this case Lyons would have had not only to
allege that he would have another encounter with the police but also to make the
incredible assertion either (1) that all police officers in Los Angeles always choke any
citizen with whom they happen to have an encounter, whether for the purpose of arrest,
issuing a citation, or for questioning, or (2) that the City ordered or authorized police
officers to act in such manner.
Id. at 105.
In § 1983 cases, a court may award reasonable attorney’s fees to a prevailing party
pursuant to the Civil Rights Attorney’s Fees Awards Act of 1976. 292 To recover attorney’s fees
under § 1988, a plaintiff must be a “prevailing party.” 293 Plaintiffs are considered to be
“prevailing parties” if “they succeed on any significant issue in litigation which achieves some of
the benefit the parties sought in bringing suit.” 294 That is, a court must award actual relief on the

288

See, e.g., Lewis v. Kugler, 446 F.2d 1343, 1350 (3d Cir. 1971) (“If the plaintiffs can establish that they are
subjected to a deliberate pattern and practice of constitutional violations by the [state police], we believe that they
are entitled to appropriate injunctive relief.”). Cf. Pearson v. Callahan, 555 U.S. at 242 (treating as assumed the
availability of injunctive relief in § 1983 claims).
289
461 U.S. 95, 98 (1983).
290
Id. at 100.
291
Id. at 101—05.
292
42 U.S.C. § 1988(b) (2006).
293
Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).
294
Id. (internal quotation marks omitted) (quoting Nadeau v. Helgemoe, 581 F.2d 275, 278–79 (1st Cir. 1978)).

52

merits of the case; “a favorable judicial statement of law in the course of litigation” does not
suffice for an award of attorney’s fees. 295
2.

Diabetes-Specific Settlements

The New York Attorney General investigated a police department for an alleged practice
of unreasonable use of force, including inappropriate use of Tasers, against African Americans.
One such incident included in the investigation involved an individual with diabetes who was
Tasered repeatedly as he was experiencing an acute hypoglycemic episode on the side of the
road, causing substantial and enduring injuries. The parties entered a consent decree providing
for substantial revisions to the defendant police department’s use-of-force training and oversight
policies. 296
In a notable recent case, a man with diabetes was arrested and held for fifty-eight hours
without receiving medical care. 297 He subsequently developed diabetic ketoacidosis, become
comatose, and sustained disabling brain damage. 298 At trial, a jury awarded damages totaling
$17.5 million. 299
In another recent case, a man with diabetes, who had been denied adequate medical care
for a foot injury during a pretrial detention period, received a settlement totaling $12,500 from
the defendant city, Lowell, Massachusetts. 300 More significantly, the settlement agreement

295

Hewitt v. Helms, 482 U.S. 755, 763 (1987).
Press Release, N.Y. State Attorney Gen., Attorney General Cuomo Reaches Agreement with the City of Niagara
Falls to Reform Its Police Practices (Nov. 30, 2010), http://www.ag.ny.gov/media_center/2010/nov/nov30a_10.html.
297
Vargas v. City of New York, No. 33215/07, 2010 WL 4718952 (N.Y. Sup. Ct. Oct. 19, 2010) rev’d on other
grounds, 105 A.D.3d 834 N.Y. App. Div. (2013) (on the basis of a procedural error by plaintiff’s counsel).
298
Id.
299
Id.
300
Settlement Agreement and Release at 1, Bailey v. City of Lowell, No. 1:09-cv-10546-RGS (D. Mass. Dec. 11,
2009).
296

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dictated that Lowell’s police officers and detention attendants would receive training on diabetes,
hypoglycemia, and hyperglycemia for at least three years from the date of the settlement. 301
Following class certification in Rosen v. City of Philadelphia, 302 the plaintiffs—
consisting of persons with diabetes that had been denied timely and appropriate medical care and
diet while in police custody—obtained substantial concessions from the defendant city. 303 The
relief obtained included: (1) law enforcement directives providing for prompt medical evaluation
of and, if necessary, food for detained individuals with diabetes, (2) contractual relationships
with service providers to administer routine and sufficient medical care to prisoners with
diabetes, (3) an eighteen-month monitoring period during which the defendant city’s police
department agreed to provide documentation of its implementation of the settlement agreement
to the American Diabetes Association (The Association), (4) changes to the defendant city’s
police training procedures incorporating instruction on diabetes and its effects, and (5) attorneys’
fees and costs. 304
In 2010, an Ohio plaintiff settled with the Mentor City Police Department for
$110,000. 305 His complaint alleged that the police drew a loaded weapon on him and forcibly
removed him from the vehicle. The complaint also alleges that the officers withheld evidence of
Coxon’s diabetic condition, and that the prosecution engaged in malicious prosecution by
instituting criminal proceedings that lacked probable cause against Mr. Coxon, with malice and
ulterior purpose. 306

301

Id. at 2.
No. 00-764, 2001 U.S. Dist. LEXIS 5371, at *6–7 (E.D. Pa. Mar. 6, 2001).
303
Settlement Agreement for Injunctive Relief at 3–9, Rosen v. City of Phila., available at
http://main.diabetes.org/dorg/living-with-diabetes/correctmats-lawyers/ad-rosen-settlement-agreement.pdf.
304
Id. at 3—9.
305
Max Reinhart, Kirtland Teacher Settles Suit against Mentor Police, News Herald (Nov. 5, 2010, 12:00 AM),
http://www.news-herald.com/general-news/20101105/kirtland-teacher-settles-suit-against-mentor-police.
306
Complaint on file at the Association.
302

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II.

Title II of the Americans with Disabilities Act
Title II of the Americans with Disabilities Act (“ADA”) provides: “[N]o 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.” 307 The ADA also mandates that, no later than one year
after its enactment (July26, 1990), the Attorney General shall “promulgate regulations in an
accessible format that implement [Title II].” 308 Accordingly, the Department of Justice has
established that:
A public entity shall . . . evaluate its current services, policies, and practices, and
the effects thereof, that do not or may not meet the requirements of [Title II] and,
to the extent modification of any such services, policies, and practices is required,
the public entity shall proceed to make the necessary modifications. 309
Nevertheless, modifications are not always required, as “[a] public entity shall 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.” 310 The
majority of circuits have held that Title II of the ADA applies to arrests. 311
To establish a violation of Title II of the ADA, a plaintiff must prove that (1) he or she is
a qualified individual with a disability; (2) he or she either was excluded from participation in or
denied the benefits of a public entity’s services, programs, or activities, or otherwise was

307

42 U.S.C. § 12132 (2006).
Id. § 12134(a).
309
28 C.F.R. § 35.105(a) (2011).
310
Id. § 35.130(b)(7).
311
Sheehan v. City & Cnty. of S.F., No. 11-16401, 2014 U.S. App. LEXIS 3321, at *8 (9th Cir. Feb. 21, 2014).
308

55

discriminated against by the public entity; and (3) the exclusion, denial of benefit, or
discrimination was by reason of the plaintiff’s disability. 312

A.

Prima Facie Case

When bringing claims under Title II of the ADA, attorneys should address several
preliminary procedural hurdles at the outset—namely, attorneys should ensure that the publicentity and qualified-individual-with-a-disability elements are satisfied. First, the ADA defines a
“public entity,” in part, as “any department, agency, special purpose district, or other
instrumentality of a State or States or local government.” 313 A state employee in his or her
individual capacity does not satisfy the definition of “public entity.” 314 Additionally, the term
“instrumentality of a State” refers to governmental units or units created by them. 315
The Supreme Court has held that Title II is applicable to state correctional facilities, and
therefore that inmates may bring Title II claims. 316 In Yeskey, the Court found that state prisons
“fall squarely within the statutory definition of ‘public entity.’” 317 Partly as a consequence, lower
courts have held that local police departments are “public entities” within the meaning of the
ADA. 318
Second, as defined by the ADA, a “qualified individual with a disability” is:

312

Bircoll v. Miami-Dade Cnty., 480 F.3d 1072, 1083 (11th Cir. 2007).
42 U.S.C. § 12131(1)(B).
314
See Roque v. Armstrong, 392 F. Supp. 2d 382, 389 (D. Conn. 2005).
315
Edison v. Douberly, 604 F.3d 1307, 1310 (11th Cir. 2010).
316
Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 209–10 (1998).
317
Id. at 210.
318
See, e.g., Hainze v. Richards, 207 F.3d 795, 799–800 (5th Cir. 2000) (“The broad language of the statute and the
absence of any stated exceptions has occasioned the courts’ application of Title II protections into areas involving
law enforcement.”); Waller v. City of Danville, 515 F. Supp. 2d 659, 662–63 (W.D. Va. 2007) (“Courts have
liberally interpreted the definition of a ‘public entity’ . . . to include state-run prisons as well as local police
forces.”); Salinas v. City of New Braunfels, 557 F. Supp. 2d 771, 775 (W.D. Tex. 2006) (“A municipal police
department qualifies as a public entity.”).
313

56

[A]n individual with a disability who, with or without reasonable modifications
to rules, policies, or practices, the removal of architectural, communication, or
transportation barriers, or the provision of auxiliary aids and services, meets the
essential eligibility requirements for the receipt of services or the participation in
programs or activities provided by a public entity. 319
To meet this definition, an individual must show that he or she has a disability as defined by the
ADA. The ADA defines “disability,” with respect to an individual, as “a physical or mental
impairment that substantially limits one or more major life activities of such individual; a record
of such an impairment; or being regarded as having such an impairment . . . .” 320 Significantly,
the ADA Amendments Act of 2008 321 has greatly expanded the range of cases wherein an
individual is regarded as having a disability. As amended, the ADA now provides that:
An individual meets the requirement of “being regarded as having such an
impairment” if the individual establishes that he or she has been subjected to an
action prohibited under this Act because of an actual or perceived physical or
mental impairment whether or not the impairment limits or is perceived to limit a
major life activity. 322

Following the ADA Amendments Act of 2008, the term “disability” is to be construed
broadly, and this directive is the most crucial aspect of determining whether an individual has a
disability within the meaning of the ADA. 323 The federal regulations also state that “[t]he term
‘substantially limits’ shall be construed broadly in favor of expansive coverage, to the maximum
extent permitted by the terms of the ADA. 324 ‘Substantially limits’ is not meant to be a
demanding standard.” Section 1630.2(j)(1)(iii) elaborates:

319

42 U.S.C. § 12131(2).
Id. § 12102(1)(A)–(C).
321
Pub. L. No. 110-325, 122 Stat. 3553 (2008).
322
42 U.S.C. § 12102(3)(A).
323
The ADA Amendments Act of 2008 expressly disapproves of the narrow interpretation of “disability” offered in
Sutton v. United Air Lines, Inc., 527 U.S. 471, 482–83 (1999), and Toyota Motor Mfg., Ky., Inc. v. Williams, 534
U.S. 184, 196–99 (2002).
324
29 C.F.R. § 1630.2(j)(1)(i) (2011).
320

57

The primary object of attention in cases brought under the ADA should be
whether covered entities have complied with their obligations and whether
discrimination has occurred, not whether an individual’s impairment substantially
limits a major life activity. Accordingly, the threshold issue of whether an
impairment “substantially limits” a major life activity should not demand
extensive analysis.
The ADA defines “major life activities” as including, but not limited to, “caring for
oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting,
bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and
working,” as well as “the operation of a major bodily function, including but not limited to,
functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological,
brain, respiratory, circulatory, endocrine, and reproductive functions.” 325 “Major life activities”
encompasses the functioning of the endocrine system.
The regulations also provide that the operation of a major bodily function may
include the operation of an individual organ within a body system. This would
include, for example, the operation of the kidney, liver, pancreas, or other
organs. . . . The link between particular impairments and various major bodily
functions should not be difficult to identify. Because impairments, by definition,
affect the functioning of body systems, they will generally affect major bodily
functions. For example . . . diabetes affects the operation of the pancreas and also
the function of the endocrine system. 326
Additionally, a number of pre-ADAAA cases acknowledged that diabetes is a physical
impairment. 327 The current versions of the ADA and its accompanying regulations, together with
supporting case law, indicate that individuals submitting well-pleaded complaints should have
little difficulty establishing that diabetes is a disability under the ADA and, therefore, that they

325

42 U.S.C. § 12102(2)(A)—(B). See also 29 C.F.R. § 1630.2(i)(1)(i)–(ii) (expanding the statutory definitions).
Regulations to Implement the Equal Employment Provisions of the Americans with Disabilities Act, as
Amended, 76 Fed. Reg. 16978, 17007 (Mar. 25, 2011) (to be codified at 29 C.F.R. pt. 1630.2(i)).
327
See, e.g., Fraser v. Goodale, 342 F.3d 1032, 1038 (9th Cir. 2003) (“We have little difficulty in concluding that
diabetes is a ‘physical impairment’ under the ADA.”); Lawson v. CSX Transp., Inc., 245 F.3d 916, 923 (7th Cir.
2001) (“We have no difficulty in determining that [appellant’s] insulin-dependent diabetes and related medical
conditions are physical impairments under the [ADA].”); Gonzales v. City of New Braunfels, 176 F.3d 834, 837 (5th
Cir. 1999) (describing diabetes as a “serious impairment”).
326

58

satisfy the definition of “qualified individuals with disabilities.” 328 Following Yeskey, federal
courts generally have relied on two theoretical bases when determining whether the ADA is
applicable in arrest contexts: the so-called wrongful arrest and reasonable accommodation
theories. 329

B.

Wrongful Arrest

Under the wrongful arrest theory, an individual may be able to state a claim under Title II
of the ADA when he or she is arrested because police officers misperceived the lawful effects of
his or her disability as unlawful conduct. 330 Courts are in disagreement as to whether an arrest
qualifies as “a program, service or activity” covered by Title II of the ADA. 331 However, the
Eleventh Circuit has articulated that the final clause of § 12132 protects qualified individuals
with a disability from being subjected to discrimination by any such entity, and is not tied
directly to the services, programs, or activities of the public entity. 332 This final clause in Title II

328

See also U.S. Equal Opportunity Employment Commission, Questions & Answers about Diabetes in the
Workplace and the Americans with Disabilities Act (ADA), http://www.eeoc.gov/laws/types/diabetes.cfm (“As a
result of changes made by the ADAAA, individuals who have diabetes should easily be found to have a disability
within the meaning of the first part of the ADA’s definition of disability because they are substantially limited in the
major life activity of endocrine function.”); Brian East, The ADA Amendments Act of 2008: Including Final EEOC
Regulations and Guidance and Current Case Law passim (May 1, 2011) (unpublished manuscript) (on file with the
Association), http://www.diabetes.org/assets/pdfs/know-your-rights/for-lawyers/employment/adaaa-and-final-eeocregs-east.pdf (examining strategy for proving that diabetes is a disability under the amended ADA); Brian Dimmick
& Katie Hathaway, Demonstrating Coverage under the ADA Amendments Act of 2008 for
People with Diabetes (2011) http://main.diabetes.org/dorg/PDFs/Advocacy/Discrimination/atty-demonstratingcovereage-adaaa.pdf.
329
Gohier v. Enright, 186 F.3d 1216, 1220 (10th Cir. 1999); Buchanan v. Maine, 417 F. Supp. 2d 45, 72–74 (D. Me.
2006). See Rachel E. Brodin, Comment, Remedying a Particularized Form of Discrimination: Why Disabled
Plaintiffs Can and Should Bring Claims for Police Misconduct Under the Americans with Disabilities Act, 154 U.
PA. L. REV. 157, passim (2005) (expounding on the wrongful arrest and reasonable accommodation theories).
330
See Lewis v. Truitt, 960 F. Supp. 175, 176–79 (S.D. Ind. 1997).
331
Ryan v. Vt. State Police, 667 F. Supp. 2d 378 (D. Vt. 2009); Bircoll, 480 F.3d at 1072; Catlett v. Jefferson Cnty.
Corr. Dep’t, No. 3:00CV-340-S, 2000 U.S. Dist. LEXIS 21662 (W.D. Ky. Nov. 3, 2000) (“while lower courts have
come to varying outcomes with respect to whether Title II applies in the context of a valid arrest, the common thread
that runs through all of the decisions is that the determination is fact-specific”); Gohier, 186 F.3d at 1221 (“a broad
rule categorically excluding arrests from the scope of Title II … is not the law.”).
332
Bledsoe v. Palm Beach Cnty. Soil & Water Conservation Dist., 133 F.3d 816, 821–22 (11th Cir. 1998) (quoting
42 U.S.C. § 12132).

59

is a catch-all phrase that prohibits all discrimination by a public entity, regardless of the context.
Therefore, practitioners should carefully review law in their jurisdiction to determine how to
approach pleading a wrongful arrest Title II claim. In order to recover under the wrongful arrest
theory, a plaintiff must show that (1) he or she was disabled; (2) the defendants knew or should
have known that he or she was disabled; and (3) the defendants arrested him or her because of
legal conduct related to his or her disability. 333
The central sticking point of this type of claim seems to be the third prong; proving that
the arrest is because of conduct related to the arrestee’s disability. A common defense that courts
are happy to accept is that the arrest was because of illegal conduct, not because of disabilityrelated conduct. 334 In Ryan, the court accepted the argument that officers arrested the deaf
amputee not because of his inability to communicate with them, but because they believed he
was obstructing their entry to his bar. This type of distinction illustrates the importance of
perspective in a claim like this. Even though the wrongful arrest theory was not properly before
the court, the court nevertheless opined that there was nothing in the complaint to permit a
reasonable juror to conclude that the VSP decided to arrest Ryan solely because he was deaf or
an amputee.
Further complicating the third prong analysis is that some, but not all, courts have
required that plaintiffs show they were arrested solely because of legal conduct related to their
disability. 335 42 U.S.C. § 12132 states:
Subject to the provisions of this title, 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.
333

Lewis v. Truitt, 960 F. Supp. at 178.
See, e.g., Ryan v. Vt. State Police, 667 F. Supp. 2d at 378.
335
Lewis v. Truitt, 960 F. Supp. at 178 (not using the word “solely”); Ryan, 667 F. Supp. 2d at 387 (requiring a
showing of solely because).
334

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The word “solely” does not appear. By contrast, the Rehabilitation Act does employ the word
“solely”:
No 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 or under any program or activity conducted by any
Executive agency or by the United States Postal Service. 336
Nevertheless, courts have articulated that discrimination must be solely based on a person’s
disability. 337
Lewis v. Truitt is a good illustration of a court accepting the wrongful arrest theory. 338
There, police officers arrived at the plaintiff’s home and arrested him when he refused to
relinquish custody of his young granddaughter pending the outcome of a custody dispute. 339 The
plaintiff was deaf, and although others present at the scene had informed the officers of his
disability and that the most effective way to communicate with him was to write down any
questions, the officers refused to believe that he was deaf and refused to write down their
questions. 340 Subsequently, the officers physically assaulted the plaintiff, causing bruises,
contusions, and severe internal injuries, before eventually arresting him. 341 The district court
denied the defendants’ motion for summary judgment as to the plaintiff’s Title II claim because
the plaintiff “most assuredly had the right to be informed by what authority the officers had come
upon his property and by what authority they were entering his house,” and “a genuine issue of

336

29 U.S.C. § 794(a) (emphasis added).
Tucker v. Tennessee, 539 F.3d 526, 532 (6th Cir. 2008).
338
960 F. Supp. at 177–79.
339
Id. at 176–77.
340
Id. at 176.
341
Id.
337

61

material fact exist[ed] on the question of whether Defendants arrested Plaintiff because of his
disability.” 342
In Jackson v. Inhabitants of the Town of Sanford, 343 following a traffic collision, the
plaintiff, who had partial right-side paralysis and slurred speech as the result of an earlier stroke,
was arrested for operating a motor vehicle under the influence of intoxicating liquor or drugs.
When the arresting officer arrived at the scene, the other driver involved in the collision stated
that he believed that the plaintiff was drunk. 344 The plaintiff was not drunk, but rather, his
physical disabilities caused him to appear to be unsteady and confused. 345 The officer arrested
him after he poorly performed several field sobriety tests. 346
The plaintiff brought claims under Title II of the ADA against the defendant municipality
for disability-based discrimination; failure to train its police officers to recognize symptoms of
disabilities; and failure to modify law-enforcement policies and procedures to prevent
discriminatory treatment of disabled individuals. 347 The district court denied the defendants’
motion for summary judgment, concluding that “[t]he legislative history of the ADA
demonstrates that Congress was concerned with unjustified arrests of disabled persons such as
[the plaintiff] alleges here.” 348 In support, the court cited a House Judiciary Committee report
concerning the ADA, stating:
In order to comply with the nondiscrimination mandate, it is often necessary to
provide training to public employees about disability. For example, persons who
have epilepsy, and a variety of other disabilities, are frequently inappropriately
arrested and jailed because police officers have not received proper training in the

342

Id. at 178—79.
No. 94-12-P-H, 1994 U.S. Dist. LEXIS 15367, at *1–3 (D. Me. Sept. 23, 1994).
344
Id. at *2.
345
Id.
346
Id. at *2–3.
347
Id. at *22–23.
348
Id. at *24.
343

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recognition of and aid of seizures. Such discriminatory treatment based on
disability can be avoided by proper training. 349
Thus far, no individuals with diabetes have brought Title II claims relying on the
wrongful arrest theory, although several recent cases describe factual situations in which
such claims would have been possible. 350 In light of all-too-commonplace factual
scenarios in which police officers mistake the effects of diabetes—especially the effects
of hypoglycemia—as intoxication, 351 the wrongful arrest theory may be well worth
consideration in contexts in which individuals’ behavior during hypoglycemic episodes
has caused police officers to respond and effectuate arrests. 352

C.

Reasonable Accommodation

Under the reasonable accommodation theory, an individual with a disability may be able
to state a claim under Title II of the ADA when police officers have properly investigated and
arrested him or her for a crime unrelated to his or her disability but have failed to reasonably
accommodate that disability during the investigation or arrest, thereby causing him or her to
suffer greater injury or indignity in the process than other arrestees. 353 As in other contexts,
determining whether an accommodation is reasonable requires a fact-specific, individualized
analysis of the individual with disabilities’ circumstances. 354

349

Id. at *24 n.12 (quoting H.R. Rep. No. 101-485, pt. 3, at 49–50 (1990), reprinted in 1990 U.S.C.C.A.N. 445,
472–73).
350
See, e.g., Burns, 737 F. Supp. 2d at 1052–56 (concerning the arrest of an individual experiencing a hypoglycemic
episode when responding officers mistook his behavior for intoxication); Fitch, 2010 U.S. Dist. LEXIS 120013, at
*8–11 (concerning the arrest of an individual for operating a motor vehicle while intoxicated when officers detected
a sweet and fruity odor that his body exuded as a result of his diabetic condition).
351
See Burns, 737 F. Supp. 2d at 6–7; Fitch, 2010 U.S. Dist. LEXIS 120013, at *8–9.
352
Although beyond the scope of this memorandum, the Association becomes aware of many situations each year in
which individuals arrested during hypoglycemic episodes are charged with driving under the influence, resisting
arrest, or assaulting police officers. Typically—but not always—such charges are dismissed.
353
Gohier, 186 F.3d at 1220–21.
354
Wong v. The Regents of the Univ. of Cal., 192 F.3d 807, 818 (9th Cir. 1999).

63

In Schreiner, 355 the plaintiff had diabetes and, while experiencing a hypoglycemic
episode, was attempting to inject herself with insulin using a syringe with a bent needle. 356 A
friend contacted the police because the plaintiff was incoherent and in need of medical
assistance. 357 When an officer arrived at the scene, the friend informed him that the plaintiff had
diabetes and was not attempting to hurt herself, but could not release the syringe. 358 The officer
instructed the plaintiff to drop the syringe, but she was unable to comply. 359 Eventually, he and
another officer decided to Taser the plaintiff to force her to drop the syringe, which they did,
causing her to drop the syringe. 360
The plaintiff brought a claim under Title II of the ADA against the defendant
municipality and responding police officers alleging that they had failed to reasonably
accommodate her disability while providing emergency services. 361 The district court denied the
defendants’ motion for summary judgment on the basis that “the situation was under control and
rather than inflicting pain upon [the plaintiff], [the responding officer] should have consulted
with paramedics and administered medical treatment.” 362
While there is a duty to reasonably accommodate individuals in an arrest context, there
are often exigent circumstances that militate against police officers’ duty to modify their
services, policies, and practices. 363

355

681 F. Supp. 2d at 1273.
See discussion supra at pp. 21–22.
357
681 F. Supp. 2d at 1273.
358
Id.
359
Id.
360
Id.
361
Id. at 1278.
362
Id. at 1279.
363
See Hainze, 207 F.3d at 801–02 (concluding that it is within the discretion of officers to use reasonable force
against individuals with disabilities in such “exigent circumstances” because it was not convinced that requiring
them to “use less than reasonable force in defending themselves and others, or to hesitate to consider other possible
actions in the course of making such split-second decisions, is the type of ‘reasonable accommodation’
contemplated by Title II.”); Waller ex rel. Estate of Hunt v. City of Danville, 556 F.3d at 175 (“exigency is one
circumstance that bears materially on the inquiry into reasonableness under the ADA.”); Tucker, 539 F.3d at 536
356

64

Courts are often very deferential to officer decisions made under exigent circumstances.
However, the Ninth Circuit recently overturned a district court grant of summary judgment to
officers in a case involving a woman with mental illness, discussing the exigencies of the
circumstances in a way that was quite favorable for the plaintiff. 364 Police entered Sheehan’s
home without a warrant, to provide emergency assistance with committing her for psychiatric
treatment, per her social worker’s request. 365 They entered her bedroom, and Sheehan brandished
a knife, at which point they retreated back into the hallway and closed the door. 366 They then
drew their weapons, forced their way into the room a second time, and Sheehan was still holding
the knife, so officers pepper sprayed her and then shot her five to six times. 367 One officer
admitted she did not take into account Sheehan’s mental illness at the time of the second
entry. 368 The court held that despite these exigent circumstances, a reasonable jury could find
that once the officers exited the bedroom, the situation had been defused sufficiently to wait for
back-up and proceed with less confrontational tactics, to accommodate her mental illness. 369
In Wilson v. Blackman Charter Twp., 370 the plaintiff felt the onset of a hypoglycemic
episode and returned to his vehicle, which was located in the parking lot of the shopping mall
where he and his fiancée had been shopping. His family quickly arrived and gave him orange
juice to counteract the episode; however, the township already had dispatched a police officer to

(“[W]e rely on and expect law enforcement officers to respond fluidly to changing situations and individuals they
encounter. Imposing a stringent requirement under the ADA is inconsistent with that expectation . . .”); Bircoll, 480
F.3d 1072 (“the question is not so much one of the applicability of the ADA because Title II prohibits discrimination
by a public entity by reason of 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.”).
364
Sheehan, 2014 U.S. App. LEXIS 3321, at *6–8.
365
Id. at *4.
366
Id.
367
Id. at *4–5.
368
Id. at *16.
369
Id. at *57.
370
No. 09-10150, 2010 U.S. Dist. LEXIS 46421, at *1–2 (E.D. Mich. May 12, 2010).

65

the scene. 371 When the officer arrived, family members of the plaintiff informed him that the
plaintiff was experiencing low blood glucose. 372 The officer attempted to engage the plaintiff,
but he responded coldly and began flailing his arms. 373 The plaintiff also struggled with
emergency medical technicians when they arrived, and officers eventually forcibly removed and
restrained the plaintiff so that he could be transported to a local hospital. 374 The plaintiff was
charged with disorderly conduct, but the charge was rescinded when an internal investigation
revealed that the responding officer had acted in an unnecessarily confrontational manner with
respect to the plaintiff’s family. 375
The plaintiff brought claims against the defendant municipality and several police
officers under Michigan law, 376 to which the district court concluded that an analysis of the
relevant facts under Title II of the ADA would apply and be dispositive. 377 The court relied on
the “exigent circumstances” exception and found that the officers were required to secure the
area and neutralize any threat to human life before reasonably accommodating the plaintiff’s
disability. 378 Consequently, the court granted the defendants’ motion for summary judgment
because “at the time [the officers] removed [the plaintiff] from the vehicle, the situation was not
under control. [The plaintiff] was not cooperating with the EMTs, who were unable to administer
medical treatment.” 379
As illustrated by Wilson, the “exigent circumstances” exception to police officers’ duty to
make reasonable accommodations for individuals with disabilities is a significant obstacle to

371

Id.
Id.
373
Id. at *2–3.
374
Id. at *3–4.
375
Id. at *4.
376
Mich. Comp. Laws § 37.1102(1) (2011).
377
Wilson, 2010 U.S. Dist. LEXIS 46421, at *19.
378
Id. at *21–23.
379
Id. at *23.
372

66

prevailing on Title II claims under the reasonable accommodations theory. 380 Indeed, courts have
expressed willingness to defer to officers’ discretion in determining whether particular
circumstances involving arrests even allow for reasonable accommodations. 381 Courts have also
attached temporal and spatial limitations to the application of Title II. For example, in Rosen, the
court noted that even if “the police were required to provide auxiliary aids at some point in the
process, that point certainly cannot be placed before the arrival at the stationhouse.” 382
Nevertheless, if a plaintiff can show that the immediate area was secure and that there was no
threat to human safety, a court may be more likely to find that officers should have made
reasonable accommodations for his or her disability. 383

D.

Limitations Period

Title II of the ADA does not provide a statute of limitations. 384 Rather, Title II expressly
states that “[t]he remedies, procedures, and rights” available under § 504 of the Rehabilitation
Act shall be the same as those available under Title II. 385 Thus, the jurisprudence surrounding the
limitations periods adopted in Rehabilitation Act cases is applicable to cases involving Title II of

380

2010 U.S. Dist. LEXIS 46421, at *23.
See Tucker, 539 F.3d at 536; Hainze, 207 F.3d at 801 (holding that only once there is no threat to human safety,
officers are under a duty to reasonably accommodate individuals with disabilities); Rosen v. Montgomery Cnty.,
Md., 121 F.3d 154, 158 (4th Cir. 1997) (noting that “the police do not have to get an interpreter before they can stop
and shackle a fleeing bank robber”).
382
121 F.3d at 158.
383
See Schreiner, 681 F. Supp. 2d at 1279.
384
Stewart v. D.C., No. 04-1444, 2006 U.S. Dist. LEXIS 12991, at *26 (D.D.C. Mar. 12, 2006).
385
42 U.S.C. § 12133; see discussion infra at p.71.
381

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the ADA. 386 As with the Rehabilitation Act, a court will adopt the most appropriate or most
analogous state statute of limitations, provided that it is not inconsistent with federal law or
policy to do so. 387 Most courts have applied state statutes of limitations for personal injury
actions to actions under Title II of the ADA. 388

E.

Remedies

Title II expressly provides that “[t]he remedies, procedures, and rights” available under §
504 of the Rehabilitation Act shall be the same as those available under Title II of the ADA. 389
In turn, the Rehabilitation Act provides:
The remedies, procedures, and rights set forth in title VI of the Civil Rights Act of
1964 . . . shall be available to any person aggrieved by any act or failure to act by
any recipient of Federal assistance or Federal provider of such assistance under
section 504 of this Act. 390
Thus, the same remedies are available for violations of Title VI of the Civil Rights Act, § 504 of
the Rehabilitation Act, and Title II of the ADA. The discussion of the remedies available under §
504—which typically include compensatory damages, but not punitive damages, as well as
declaratory and injunctive relief—thus is fully applicable in the context of Title II. 391
Jackson 392 is notable for its resolution following the court’s denial of summary judgment
as to the plaintiff’s Title II claims. A few days after the summary judgment ruling, the plaintiff

386

Frame v. City of Arlington, 575 F.3d 432, 437 n.4 (5th Cir. 2009).
See Goodman, 482 U.S. at 660; Wilson v. Garcia, 471 U.S. at 266–68.
388
See, e.g., Frame, 575 F.3d at 437 (applying Texas’ two-year statute of limitations for personal-injury actions to
Title II of the ADA); Everett v. Cobb Cnty. Sch. Dist., 138 F.3d 1407, 1409 (11th Cir. 1998) (applying Georgia’s
two-year statute of limitations for personal-injury actions to Title II of the ADA); Smith v. City of Phila., 345 F.
Supp. 2d 482, 485–86 (E.D. Pa. 2004) (applying Pennsylvania’s two-year statute of limitations for personal-injury
actions to Title II of the ADA).
389
42 U.S.C. § 12133.
390
29 U.S.C. § 794a(a)(2).
391
See discussion infra at p.80.
387

392

1994 U.S. Dist. LEXIS 15367, at *23–25.

68

received a five-figure settlement. 393 The defendant town also agreed to amend its police officers’
training regimen to comply with the ADA as interpreted by the district judge. 394 To assure that
officers would not discriminate against individuals with disabilities, they would be required to
receive “adequate training to enable them to distinguish between symptoms of disabilities and
criminal activity.” 395
Regarding attorney’s fees, the ADA provides:
In any action or administrative proceeding commenced pursuant to this chapter,
the court or agency, in its discretion, may allow the prevailing party, other than
the United States, a reasonable attorney’s fee, including litigation expenses, and
costs, and the United States shall be liable for the foregoing the same as a private
individual. 396
To qualify as a “prevailing party” for purposes of the ADA, a plaintiff typically must secure
either a judgment on the merits or a court-ordered consent decree. 397

III.

Section 504 of the Rehabilitation Act of 1973

Section 504 of the Rehabilitation Act of 1973 provides:
No otherwise qualified individual with a disability in the United States . . . 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 . . . . 398
393

Rachel E. Brodin, Remedying a Particularized Form of Discrimination: Why Disabled Plaintiffs Can and Should
Bring Claims for Police Misconduct Under the Americans with Disabilities Act, 154 U. PA. L. REV. 157, 163 n.41
(2005).
394
Brent Macey, Sanford Settles Suit over Arrest of Disabled Man, PORTLAND PRESS HERALD, Sept. 30, 1994, at
1A.
395
Id.
396
42 U.S.C. § 12205.
397
Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 603–04 (2001); see
also Lazarus v. Cnty. of Sullivan, 269 F. Supp. 2d 419, 421 (S.D.N.Y. 2003) (quoting Farrar v. Hobby, 506 U.S.
103, 111–12 (1992)) (“A party prevails ‘when actual relief on the merits of his [or her] claim materially alters the
legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the
plaintiff.’”).
398
29 U.S.C. § 794(a).

69

A.

Relation to Title II of the Americans with Disabilities Act

The language of Title II of the ADA generally tracks the language of § 504 of the
Rehabilitation Act of 1973. 399 Title II expressly provides that “[t]he remedies, procedures, and
rights” available under § 504 shall be the same as those available under Title II. 400 Furthermore,
Title V of the ADA provides that “nothing in this Act shall be construed to apply a lesser
standard than the standards applied under . . . the Rehabilitation Act of 1973. . . .” 401
Considering the parallel construction, statutorily created rights, and legislative intent of
Title II of the ADA and § 504 of the Rehabilitation Act, the Hainze court concluded that
“[j]urisprudence interpreting either section is applicable to both.” 402

B.

Prima Facie Case

To establish a prima facie violation of § 504, a plaintiff must prove that (1) he or she is a
“handicapped person” under the Rehabilitation Act; (2) he or she is “otherwise qualified” for
participation in the program or activity; (3) he or she is being excluded from participation in,
being denied the benefits of, or being subjected to discrimination under the program or activity
solely by reason of his or her handicap; and (4) the relevant program or activity receives federal
financial assistance. 403
The Rehabilitation Act defines “disability” as “a physical or mental impairment that
constitutes or results in a substantial impediment to employment,” or as “a physical or mental
399

Compare 42 U.S.C. § 12132 and 42 U.S.C. § 12131(1)(B) with 29 U.S.C. § 794(a) and 29 U.S.C. § 794(b)(1)(A).
42 U.S.C. § 12133.
401
42 U.S.C. § 12201(a).
402
207 F.3d at 799; see also Scheerer v. Potter, 443 F.3d 916, 919 (7th Cir. 2006) (“Because of the similarity
between the prima facie requirements under Rehabilitation Act and the Americans with Disabilities Act . . . we look
to our case law under the ADA to determine whether a plaintiff has established his prima facie burden.”); Gorman v.
Bartch, 152 F.3d 907, 912 (8th Cir. 1998) (quoting Allison v. Dep’t of Corr., 94 F.3d 494, 497 (8th Cir. 1996))
(“The ADA has no federal funding requirement, but it is otherwise similar in substance to the Rehabilitation Act,
and ‘cases interpreting either are applicable and interchangeable.’”).
403
Mayberry v. Von Valtier, 843 F. Supp. 1160, 1167 (E.D. Mich. 1994).
400

70

impairment that substantially limits one or more major life activities.” 404 The Rehabilitation Act
therefore incorporates the definition of “disability” specified in Title II of the ADA, 405 and as a
result, “ADA standards apply to determining whether a person is ‘disabled’ within the meaning
of the Rehabilitation Act.” 406
An individual is “otherwise qualified” for participation in a program or activity if he or
she is “‘able to meet all of a program’s requirements in spite of his [or her] handicap.’” 407 “The
definition does not include someone ‘who would be able to meet the requirements of a particular
program in every respect except as to the limitations imposed by their disability.’” 408 Prisoners
are not excluded from coverage under § 504 (or Title II of the ADA) for failing to meet the
criteria of “otherwise qualified individuals with a disability.” 409 The Third Circuit found that the
terms “eligibility” and “participation” in Title II of the ADA “do not . . . ‘imply voluntariness’ or
mandate that an individual seek out or request a service to be covered,” but rather, “the term
‘eligibility’ simply describes those who are ‘fitted or qualified to be chosen,’ without regard to
their own wishes.” 410 The Supreme Court simply stated that “the words do not connote
voluntariness.” 411

C. Diabetes-Specific Cases
Courts generally apply the Rehabilitation Act in the same manner as they apply Title II of
the ADA; thus, attorneys should be alert to the possibility of cross-application of cases involving
404

Id. § 705(9)(A)—(B) (citing 42 U.S.C. § 12102).
42 U.S.C. § 12102(1)(A).
406
Ryan v. Shawnee Mission Unified Sch. Dist. No. 512, No. 05-2213-JWL, 2006 U.S. Dist. LEXIS 61307, at *18
(D. Kan. Aug. 25, 2006); see discussion supra p.56.
407
St. Johnsbury Acad. v. D.H., 240 F.3d 163, 173 (2d Cir. 2001) (quoting Se. Cmty. Coll. v. Davis, 442 U.S. 397,
406 (1979)).
408
Id. (quoting Davis, 442 U.S. at 406 (emphasis added)).
409
Yeskey v. Pa. Dep’t of Corr., 118 F.3d 168, 173–74 (3d Cir. 1997), aff’d, 524 U.S. 206 (1998).
410
Id.
411
Id. at 211.
405

71

either statute. Importantly, any claim made under § 504 of the Rehabilitation Act must allege that
the defendant state or municipal entity has received federal funding. Failure to allege this
element may be fatal to an otherwise meritorious claim.
In Schreiner, the plaintiff had diabetes and, while experiencing a hypoglycemic episode,
was attempting to inject herself with insulin using a syringe with a bent needle. 412 A friend
contacted the police because the plaintiff was incoherent and in need of medical assistance. 413
When an officer arrived at the scene, the friend informed him that the plaintiff had diabetes and
was not attempting to hurt herself, but could not release the syringe. 414 The officer instructed the
plaintiff to drop the syringe, but she was unable to comply. 415 Eventually, he and another officer
used a Taser on the plaintiff to force her to drop the syringe, which caused her to drop the
syringe. 416
The plaintiff brought claims under § 504 of the Rehabilitation Act against the defendant
municipality and responding police officers alleging that they had discriminated against her
because of her disability and that they had discriminated against her in failing to reasonably
accommodate her disability. 417 The district court first noted that “Section 504 of the
Rehabilitation Act . . . tracks the language in Title II of the ADA, and case law interpreting either
statute is applicable to the other.” 418 Then, rejecting the defendants’ exigent circumstances
argument, the court denied their motion for summary judgment on the basis that “the situation

412

681 F. Supp. 2d at 1273; see discussion supra pp. 22–23; 65.
681 F. Supp. 2d at 1273.
414
Id.
415
Id.
416
Id.
417
Id. at 1277–78.
418
Id. at 1277 (citing Hainze, 207 F.3d at 799).
413

72

was under control and rather than inflicting pain upon [the plaintiff], [the responding officer]
should have consulted with paramedics and administered medical treatment.” 419
In Hahn v. Walsh, 420 the plaintiff had diabetes as well as several mental health
impairments. On the occasion at issue, police officers arrested her for aggravated domestic
battery and admitted her to a local jail as a pretrial detainee. 421 At multiple times before being
transported to the jail, upon her arrival, and while incarcerated, she communicated to the officers
that she had diabetes, was mentally unbalanced, and required medical attention. 422 However,
“[a]t no time did anyone from the jail contact [the plaintiff’s] husband, doctors, or any other
person to get [her] medications or to obtain information about her medical conditions.” 423 The
plaintiff subsequently became seriously ill, collapsed, and died at the jail. 424
The plaintiff’s estate brought claims under § 504 of the Rehabilitation Act against the
defendant municipality and arresting police officers alleging that they had discriminated against
the plaintiff because of her disability and that they had discriminated against her in failing to
provide adequate medical care. 425 The district court rejected the defendants’ argument that the
estate could not show that the plaintiff was “otherwise qualified” to receive medical care,
concluding: “[The plaintiff] was eligible for medical treatment because she was a pretrial
detainee; therefore, she was ‘otherwise qualified’ for the benefit she sought.” 426 The court also
found that the estate’s allegations that “Defendants refused to provide [her] with necessary
medical treatment for her diabetes (and mental illness) ‘[a]s a punishment for [her] incoherent,
erratic, uncooperative and/or irrational behaviors’” sufficiently demonstrated that the defendants
419

Id. at 1279.
No. 09-2145, 2009 U.S. Dist. LEXIS 120619, at *3 (C.D. Ill. Nov. 24, 2009) (subsequent history omitted).
421
Id.
422
Id. at *3–4.
423
Id. at *4.
424
Id.
425
Id. at *5, 21.
426
Id. at *24.
420

73

had discriminated against the plaintiff on the basis of her disabilities. 427 Therefore, the court
denied the defendants’ motion to dismiss the plaintiff’s Rehabilitation Act claims. 428
In Fitch, 429 the plaintiff worked as a commercial truck driver and had diabetes and
“impairments which affect his equilibrium, balance and hearing.” While traveling through
Kentucky, he entered a weigh station where police officers “told him that he smelled of alcohol
and . . . accused him of operating his truck while intoxicated.” 430 He explained that, “as a result
of his diabetic condition, his body produces ‘ketones’ which cause him to exude a sweet/fruity
odor.” 431 Rather than administering a breathalyzer test to measure his blood alcohol content, the
officers required the plaintiff to perform several field sobriety tests assessing his balance and
equilibrium—even though the plaintiff had informed the officer that his disabilities prevented
him from performing them successfully. 432 The officers subsequently arrested the plaintiff for
operating a motor vehicle while intoxicated, but a blood test later confirmed that he had not
consumed alcohol prior to his arrest. 433
The plaintiff brought claims under § 504 of the Rehabilitation Act against the Kentucky
State Police and arresting police officer alleging that they “negligently and recklessly failed to
provide reasonable accommodations to [him] [sic] in the form of properly training and equipping
their personnel.” 434 Dismissing the claim against the Kentucky State Police, the district court
noted that the plaintiff had not alleged that the entity had received any federal funding “with
respect to any program or activity implicated by the allegations made in the action”—a necessary

427

Id. at *26–27.
Id. at *24–25, *27.
429
2010 U.S. Dist. LEXIS 120013, at *8.
430
Id. at *9.
431
Id.
432
Id. at *9–10.
433
Id. at *10–11.
434
Id. at *14–15 (internal quotation marks omitted).
428

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element of a claim under the Rehabilitation Act. 435 The court also expressed skepticism that an
individual could be “otherwise qualified” for participation in an arrest—another necessary
element of a claim under the Rehabilitation Act. 436 Dismissing the claim against the arresting
officer, the court found that “there is no individual liability under . . . the Rehabilitation Act.” 437
To restate, because courts apply the Rehabilitation Act in the same manner as they apply
Title II of the ADA, 438 the rulings in the above cases express the same principles illustrated by
the previously discussed ADA cases. 439 In particular, Schreiner 440 shows that the “exigent
circumstances” argument invoked by police officers to militate against their duty to provide
reasonable accommodations under Title II of the ADA also may apply in § 504 suits—although
Schreiner further demonstrates that courts do not always accept “exigent circumstances”
arguments. 441 Fitch 442 offers at least two important lessons for attorneys: (1) failure to allege that
a defendant state entity has received federal funding may be fatal to a § 504 claim and (2) courts
may interpret the “otherwise qualified” element, as well as other elements more narrowly than in
the ADA context.

D.

Procedural Considerations

Attorneys should be aware of several important procedural points when bringing claims
under § 504. Inattention to these matters frequently creates difficulty in establishing § 504
liability, but developing strategies to address them early on will help to ensure that they do not
serve as bars to recovery.
435

Id. at *18.
Id. at *18–19 (citing Rosen v. Montgomery Cnty. Md., 121 F.3d at 157).
437
Id. at *19.
438
See Hainze, 207 F.3d at 799.
439
See supra 60–69.
440
681 F. Supp. 2d at 1279.
441
See discussion supra at pp. 22–23; 65; 74.
442
2010 U.S. Dist. LEXIS 120013, at *18–19.
436

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1.

Federal Financial Assistance

The Rehabilitation Act does not define “financial assistance.” 443 However, as used in
§ 504, the phrase “financial assistance” refers to transactions involving a transfer of government
funds by way of subsidy or sale of government assets. 444 The Tenth Circuit has defined
“financial assistance” as a government subsidy, and “[t]he test to determine whether a
government transfer of money to an entity is a subsidy is whether Congress or the federal agency
administering the program intended to subsidize the entity.” 445 Absent such intent, a transfer of
money is not considered to be “financial assistance,” even if the entity has received some
benefit. 446 The “congressional intent test” is an illustration of the distinction drawn by Congress
between recipients of federal financial assistance and mere beneficiaries of such assistance. 447
Only recipients with discretion to receive federal aid are required to comply with § 504; mere
beneficiaries with no such discretion are not similarly bound. 448 This might be called the “accept
or reject test.” Relatedly, in the context of Title IX coverage, the Supreme Court has broadly
construed a similar “receiving federal financial assistance” requirement. 449
2.

Eleventh Amendment Immunity

443

Shepherd v. U.S. Olympic Comm., 94 F. Supp. 2d 1136, 1146 (D. Colo. 2000).
Culp v. Phila. Newspapers, Inc., 59 Fair Empl. Prac. Cas. (BNA) 194 (E.D. Pa. 1991).
445
Shepherd, 94 F. Supp. 2d at 1146.
446
Id.
447
See United States Dep’t of Transp. v. Paralyzed Veterans of America, 477 U.S. 597, 605–06 (1986).
448
See id. at 606 (“By limiting coverage to recipients, Congress imposes the obligations of § 504 upon those who are
in a position to accept or reject those obligations as a part of the decision whether or not to ‘receive’ federal funds.”).
449
See Grove City Coll. v. Bell, 465 U.S. 555, 569 (1984) (concluding that Title IX coverage is not foreclosed
because federal funds are granted to college students rather than directly to one of the college’s educational
programs); Megan L. Rehberg, Grove City College v. Bell, Law & Higher Education (Mar. 1, 2011, 6:15 PM),
http://lawhighereducation.org/70-grove-city-college-v-bell.html (noting that because Congress was dissatisfied by
the outcome in Grove City, it essentially mooted the case three years later with the enactment of the Civil Rights
Restoration Act of 1987, thereby interpreting Title IX more expansively. See generally James Lockhart, Annotation,
Who Is Recipient of, and What Constitutes Program or Activity Receiving, Federal Financial Assistance for
Purposes of § 504 of Rehabilitation Act (29 U.S.C.A. § 794), Which Prohibits Any Program or Activity Receiving
Financial Assistance from Discriminating on Basis of Disability, 160 A.L.R. FED. 297 (2000) (collecting and
summarizing cases and secondary sources).
444

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States are not immune under the Eleventh Amendment of the U.S. Constitution from
federal suit pursuant to § 504 of the Rehabilitation Act. 450 “Section 2000d-7 unambiguously
conditions the receipt of federal funds on a waiver of Eleventh Amendment immunity to claims
under . . . section 504 of the Rehabilitation Act,” and state agencies waive their immunity “[b]y
continuing to accept federal funds.” 451 However, some courts have held that states do not waive
their Eleventh Amendment immunity by accepting federal funds pursuant to § 504 unless such
waiver is given knowingly. 452
Waiver of sovereign immunity applies only to those state agencies receiving federal
funds; if a state agency does not accept federal funds, it can avoid waiver of its Eleventh
Amendment immunity. 453
3.

Limitations Period

The Rehabilitation Act does not provide a statute of limitations. 454 When a federal cause
of action lacks a statute of limitations, a court will adopt the most appropriate or most analogous
state statute of limitations, as long as it is not inconsistent with federal law or policy to do so. 455
Because statutes of limitations vary from state to state, the limitations period applied to the
Rehabilitation Act necessarily will vary also. Most courts have applied state statutes of

450

See 42 U.S.C. 2000d-7(a)(1) (2006) (“A State shall not be immune under the Eleventh Amendment . . . for a
violation of section 504 of the Rehabilitation Act . . . or the provisions of any other Federal statute prohibiting
discrimination by recipients of Federal financial assistance.”).
451
Garrett v. Univ. of Ala. at Birmingham Bd. of Trs., 344 F.3d 1288, 1293 (11th Cir. 2003).
452
See, e.g., Shariff v. Coombe, 655 F. Supp. 2d 274, 306–07 (S.D.N.Y. 2009) (finding that inmates’ claims against
the State of New York and prison officials for monetary relief under § 504 were barred by the Eleventh Amendment
because the inmates’ claims were filed before New York had reason to suspect that § 504 was enacted pursuant to
the Commerce Clause, and thus, they had not yet made a knowing waiver of their sovereign immunity at the time
the inmates filed their claims).
453
Doe v. Nebraska, 345 F.3d 593, 598 (8th Cir. 2003).
454
Stewart, 2006 U.S. Dist. LEXIS 12991, at *26.
455
See Goodman, 482 U.S. at 660; Wilson, 471 U.S. at 266–68; see also Ling Yuan Hu v. George Washington Univ.,
766 F. Supp. 2d 236, 241 (D.D.C. 2011) (quoting Doe v. Se. Univ., 732 F. Supp. 7, 8–9 (D.D.C. 1990)) (“‘The
Rehabilitation Act does not contain its own statute of limitations, and therefore the period to be applied must be
drawn from the appropriate state statute. . . .’”).

77

limitations for personal-injury actions to actions under § 504 of the Rehabilitation Act. 456
However, courts have applied other state statutes of limitations in a variety of contexts. 457

E.

Remedies

The Rehabilitation Act provides:
The remedies, procedures, and rights set forth in title VI of the Civil Rights Act of
1964 . . . shall be available to any person aggrieved by any act or failure to act by
any recipient of Federal assistance or Federal provider of such assistance under
section 504 of this Act. 458
Because Title VI creates a private right of action but lacks a remedies provision, federal case law
determines the available remedies. 459 In doing so, federal courts rely on the analysis in Franklin
v. Gwinnett Cnty. Pub. Schs. 460 There, the Supreme Court held that when a statute creates a
private right of action but lacks a remedies provision, “federal courts may use any available
remedy to make good the wrong done.” 461 In doing this, the court will investigate whether

456

See, e.g., Everett, 138 F.3d at 1409 (applying Georgia’s two-year statute of limitations for personal-injury actions
to the Rehabilitation Act); Howard v. Mendez, 304 F. Supp. 2d 632, 634–35 (M.D. Pa. 2004) (applying
Pennsylvania’s two-year statute of limitations for personal-injury actions to the Rehabilitation Act); BD v. DeBuono,
130 F. Supp. 2d 401, 423–24 (S.D.N.Y. 2001) (applying New York’s three-year statute of limitations for personal
injury actions to the Rehabilitation Act).
457
See, e.g., Hutchings v. Erie City & Cnty. Library Bd. of Dirs., 516 F. Supp. 1265, 1270–71 (W.D. Pa. 1981)
(focusing on the contractual employment relationship between the parties and determining that the statute of
limitations governing contract claims was most appropriate); M.K. ex. rel. Mrs. K. v. Sergi, 554 F. Supp. 2d 175,
192–93 (D. Conn. 2008) (applying Connecticut’s three-year statute of limitations for tort actions to the
Rehabilitation Act); Andrews v. Conrail, 831 F.2d 678, 683–84 (7th Cir. 1987) (applying Indiana’s two-year statute
of limitations for “actions relating to the terms, conditions, and privileges of employment except actions based upon
a written contract” to the Rehabilitation Act); Jones v. Frederick Cnty. Bd. of Educ., 689 F. Supp. 535, 538–39 (D.
Md. 1988) (applying Maryland’s general three-year statute of limitations for civil actions to the Rehabilitation Act);
Marin v. N.Y. State Dep’t of Labor, 512 F. Supp. 353, 355 (S.D.N.Y. 1981) (applying New York’s three-year statute
of limitations for statutorily created actions to the Rehabilitation Act); Wolsky v. Med. Coll. of Hamptons Rds., 1
F.3d 222, 223–25 (4th Cir. 1993) (applying the one-year statute of limitations under the Virginia Rights of Persons
with Disabilities Act to the Rehabilitation Act because the former was modeled after and is almost identical to the
Rehabilitation Act).
458
29 U.S.C. § 794a(a)(2).
459
Tafoya v. Bobroff, 865 F. Supp. 742, 748–49 (D.N.M. 1994).
460
503 U.S. 60, 65–76 (1992); see also Tafoya, 865 F. Supp. at 749.
461
Franklin, 503 U.S. at 66 (quoting Bell v. Hood, 327 U.S. 678, 684 (1946)).

78

Congress intended to limit the remedies available, and whether the remedies sought are
appropriate. 462
Courts typically have found that monetary damages are available for violations of §
504. 463 Additionally, courts usually have held that a showing of intentional discrimination is
necessary for recovery of compensatory damages. 464 However, punitive damages are not
recoverable for violations of § 504. 465
Declaratory relief also is available for violations of § 504. 466
Regarding attorney’s fees, the Rehabilitation Act provides: “In any action or proceeding
to enforce or charge a violation of a provision of [the Rehabilitation Act], the court, in its
discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s
fee as part of the costs.” 467 To qualify as a “prevailing party” for purposes of the Rehabilitation
Act, a plaintiff typically must secure either a judgment on the merits or a court-ordered consent
decree. 468

462

Tafoya, 865 F. Supp. at 749.
See, e.g., W.B. v. Matula, 67 F.3d 484, 494 (3d Cir. 1995) (holding that plaintiffs may seek damages directly
under § 504); Rodgers v. Magnet Cove Pub. Schs., 34 F.3d 642, 643–45 (8th Cir. 1994) (relying on the principle that
where legal rights have been invaded and a federal statute creates a private right of action, federal courts may use
any available remedy to make good the wrong); Smith v. Barton, 914 F.2d 1330, 1333–38 (9th Cir. 1990) (“[M]oney
damages are available in the Ninth Circuit for violations of section 504.”). But see Longoria v. Harris, 554 F. Supp.
102, 106–07 (S.D. Tex. 1982) (holding that only injunctive and declaratory relief and not monetary damages are
available under § 504).
464
See, e.g., Powers v. MJB Acquisition Corp., 184 F.3d 1147, 1152–54 (10th Cir. 1999) (concurring with other
circuit courts that entitlement to compensatory damages under § 504 requires proof of intentional discrimination);
Ferguson v. City of Phoenix, 157 F.3d 668, 674 (9th Cir. 1998) (“[C]ompensatory damages are not available under .
. . § 504 absent a showing of discriminatory intent.”).
465
Barnes v. Gorman, 536 U.S. 181, 189–90 (2002).
466
See Gowins v. Greiner, No. 01 Civ. 6933 (GEL), 2002 U.S. Dist. LEXIS 14098, at *17 (S.D.N.Y. July 31, 2002)
(holding that claims under the Rehabilitation Act for declaratory relief against state officials may proceed to the
extent permitted by Ex Parte Young, 209 U.S. 123, 159 (1908)), as is injunctive relief); Nat’l Org. on Disability v.
Tartaglione, No. 01-1923, 2001 U.S. Dist. LEXIS 16731, at *18–19 (E.D. Pa. Oct. 11, 2001) (affirming that
injunctive relief is available for violations of Title VI, whose remedies, procedures, and rights have been
incorporated into the Rehabilitation Act).
467
29 U.S.C. § 794a(b).
468
Buckhannon Bd. & Care Home, Inc., 532 U.S. at 603–04 (examining nearly identical fee-shifting language in the
Americans with Disabilities Act).
463

79

IV.

State Law Claims
In addition to claims for violations of 42 U.S.C. § 1983, Title II of the ADA, and § 504 of

the Rehabilitation Act, individuals with diabetes that have experienced police misconduct may
bring supplemental state law claims under a variety of common-law tort theories, including:
negligence; intentional or negligent infliction of emotional distress; assault; battery; false arrest;
false imprisonment; wrongful death; and negligent hiring, training, or supervision. 469 Because
tort law varies from state to state, attorneys should investigate the applicable standards in the
jurisdictions in which they are bringing suit.
All states also have their own version of these federal anti-discrimination laws, though
they vary significantly in their definitions of disability and in other ways. 470 Practitioners should
consult local authorities for guidance on how these state laws differ from their federal versions,
because some may provide greater protections. In addition, each state has an administrative
body, usually called civil rights commissions, which practitioners might find to be more
desirable venues to redress police misconduct. 471

V.

Criminal Law Considerations
In the context of criminal prosecutions, defense attorneys should use the science and

medicine of diabetes in their pre-trial strategy. Depending on the circumstances of the case,
469

See Everson, 556 F.3d at 502 (asserting claim for emotional distress); Lolli, 351 F.3d at 442 (asserting claims for
negligence, intentional and negligent infliction of emotional distress, and assault and battery); Padula, 740 F. Supp.
2d at 984 (asserting claims for negligence, wrongful death, and negligent hiring, training, and supervision); Bohnert,
2010 U.S. Dist. LEXIS 114587, at *26–27 (asserting claims for negligence, infliction of emotional distress, false
arrest, and assault and battery); Gruver, 2006 U.S. Dist. LEXIS 31448, at *14 (asserting claims for false
imprisonment and assault and battery); Wertish, 433 F.3d at 1067 (asserting claims for assault, battery, false arrest,
and false imprisonment).
470
See, e.g., Fla. Stat. § 760.01 (LexisNexis 2013); Ind. Code § 22-9-1-1 (LexisNexis 2013); Me. Rev. Stat. tit. 5 §
4552 (2013); Mich. Comp. Laws § 37.2102 (LexisNexis 2013); Va. Code Ann. § 2.2-3900B (2013). See also
Claudia Center and Anne Hill, Chart Comparing State Definitions of Disability, ArchiveADA (Jan. 23, 2014,
1:12PM), http://www.law.georgetown.edu/archiveada/documents/statebystatechart--updated.pdf.
471
See States Civil Rights Offices, http://civilrights.findlaw.com/enforcing-your-civil-rights/state-civil-rightsoffices.html (last visited Aug. 6, 2013).

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motions to suppress evidence may be appropriate, and attorneys should stress the particular
medical consequences of otherwise somewhat ordinary police misconduct for those with
diabetes. 472
Individuals with diabetes may have grounds to move to suppress evidence obtained in
violation of the Fourth and Fifth Amendments. Whenever officers make unreasonable searches
and seizures in violation of the Fourth Amendment, evidence that comes from these
unconstitutional seizures should be suppressed. Individuals who are seized for an extended
period of time and denied medical care may have grounds to move to suppress evidence under
the Fourth Amendment. Under the Fifth Amendment, individuals questioned while experiencing
hyperglycemia or hypoglycemia may move to suppress statements or confessions that are not a
product of a knowing and intelligent waiver of the right to remain silent, on the grounds that their
state of mind was impaired.
Common examples of criminal charges that occur for persons with diabetes will include
resisting arrest, assault on a police officer, and driving under the influence. These are typical
charges because the effects of hyper and hypoglycemia can result in combative or obstinate
behavior that police officers perceive as knowingly resisting. Practitioners should look out for
these charges in particular, but any charge could result in evidence that should be suppressed.

A. Unconstitutionally Lengthy Detentions

472

See Nicola N. Zammitt et al., Delayed Recovery of Cognitive Function Following Hypoglycemia in Adults with
Type 1 Diabetes, 57 Diabetes no. 3 732—36 (2008), http://diabetes.diabetesjournals.org/content/57/3/732; Alex J.
Graveling et at., Acute Hypoglycemia Impairs Executive Cognitive Function in Adults with and without Type 1
Diabetes, 36 Diabetes Care no. 10 3240—46 (2013), http://care.diabetesjournals.org/content/36/10/3240.full;
Christopher T. Knodl and Elizabeth R. Seaquist, Cognitive Dysfunction and Diabetes Mellitus, 29 Endocrine
Reviews no. 4 494—511 (2008), http://edrv.endojournals.org/content/29/4/494.full.pdf+html.

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The need to manage diabetes has arisen in several situations throughout the law
enforcement process, and has been considered a convincing factor in courts’ assessments of
whether constitutional violations have occurred. For example, in United States v. Song Ja Cha,
the court found a 26.5 hour-long seizure of a man’s house to be unconstitutionally long, in
violation of the Fourth Amendment. 473 Courts will weigh many considerations in determining
whether a detention is too long, one being whether the police made reasonable efforts to
reconcile their law enforcement needs with the demands of personal privacy. 474 In Song Ja Cha,
the same reconciliation weighed in favor of the plaintiffs because the police did not allow Mr.
Cha to enter his residence even with police accompaniment for eleven hours after he sought
permission, and more than four hours after the police were informed that Mr. Cha needed
medicine for his diabetes. 475 The court emphasized Mr. Cha’s diabetes in its summation of the
“poignant facts” of the case. 476 On these facts, there was no reason to deny entry to the home
with police accompaniment, especially in light of Mr. Cha’s serious medical need. The law
enforcement need did not outweigh the demand of personal privacy. Thus, the court concluded
that the evidence had to be suppressed as a direct result of the Fourth Amendment violation. 477
B. Involuntary Confessions
For a confession or any incriminating statement to be admissible into evidence, it must be
voluntary. 478 A statement cannot be voluntary unless there is a finding of knowing and intelligent

473

597 F.3d 995, 1000 (9th Cir. 2010).
Illinois v. McArthur, 531 U.S. 326, 331–32 (2001) (also finding significant that there was probable cause that
drugs were in the home, the police had good reason to believe the suspect would destroy the drugs unless restrained,
and finally the total length of restraint was only two hours).
475
597 F.3d at 1000.
476
Id. at 1002.
477
Id.
478
United States v. Watson, 469 F.2d 362 (5th Cir. 1972) (setting a preponderance of the evidence standard for
admissibility).
474

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waiver. 479 In order to determine whether a defendant’s Miranda waiver is valid, the court must
engage in a two-part inquiry:
First, the relinquishment of the right must have been voluntary in the sense that it
was the product of a free and deliberate choice rather than intimidation, coercion,
or deception. Second, the waiver must have been made with a full awareness of
both the nature of the right being abandoned and the consequences of the decision
to abandon it. Only if the “totality of the circumstances surrounding the
interrogation” reveals both an uncoerced choice and the requisite level of
comprehension may a court properly conclude that the Miranda rights have been
waived. 480
A suspect with diabetes may experience hypoglycemia or hyperglycemia to the extent
that it affects her ability to knowingly and intelligently waive her right to remain silent. In
this case, practitioners should move to suppress any incriminating statements made while
the suspect was in that state. The primary question in these cases will be whether, by a
preponderance of the evidence, the government is able to establish that the suspect gave a
knowing and voluntary waiver of the privilege against self-incrimination, despite
experiencing the effects of hypoglycemia or hyperglycemia. 481 One factor courts seem to
find persuasive is whether the individual, at any point, asked to stop the interrogation for
medical attention or in some way indicate that she was not feeling well. 482 Absent an

479

Miranda v. Arizona, 384 U.S. 436, 475 (1966) (“If the interrogation continues without the presence of an attorney
and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and
intelligently waived his privilege against self-incrimination”); Watson, 469 F.2d at 362.
480
Moran v. Burbine, 475 U.S. 412, 421 (1986).
481
Other considerations will still need to be addressed, for example, establishing that the suspect was in custody and
therefore entitled to Miranda warnings. The entitlement to Miranda warnings attaches only “when custodial
interrogation begins.” United States v. Acosta, 363 F.3d 1141, 1148 (11th Cir. 2004). “A defendant is in custody for
the purposes of Miranda when there has been a ‘formal arrest or restraint on freedom of movement of the degree
associated with a formal arrest.’” United States v. Brown, 441 F.3d 1330, 1347 (6th Cir. 2006) (quoting California v.
Beheler, 463 U.S. 1121, 1125 (1983); see also United States v. McDowell, 250 F.3d 1354, 1362 (11th Cir. 2001)
(Whether a suspect is in custody “depends on whether under the totality of the circumstances, a reasonable man in
his position would feel a restraint on his freedom of movement to such extent that he would not feel free to leave.”
(quotation marks and alterations omitted)).
482
See, e.g., United States v. Galvan-Mena, No. 08-CR-30019-MJR, 2008 U.S. Dist. LEXIS 104764, at *10 (S.D.
Ill. Dec. 29, 2008) (suppression denied when, among other factors, suspect never informed interrogators of any

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abundantly clear symptom of hypoglycemia or hyperglycemia, such as losing
consciousness, it appears that courts will rely on some kind of verbal notice to officers.
In Watson, the court examined a circumstance where FBI agents questioned a suspect
within five minutes after he informed officers that his insulin level was low and requested a
coke. 483 Despite officers’ testimony that the suspect “appeared to be basically alright” the court
found that the suspect’s waiver was not voluntary. 484 The court stated there was no evidence that
these agents had any expert knowledge with regard to how a person would “appear” while
experiencing insulin shock, and so their testimony about how the suspect appeared was not
persuasive. 485 The circuit court remanded the case for a redetermination in light of the fact that
the government offered no medical testimony on the effects of hypoglycemia. 486
In United States v. Harrison the court addressed a very contrasting interrogation of an
individual with diabetes. 487 Though the court found that the suspect was not in custody for the
purposes of Miranda protection, it went on to address the voluntariness of his confession
nonetheless. 488 The court found a valid waiver. 489 First, under the first prong of the Moran
inquiry, the court noted that the officers used a normal tone of voice, and did not make any
promises or threats to the suspect. 490 Under the second prong, the suspect argued that he was
experiencing a diabetes attack and that rendered his confession involuntary. 491 The court
identified the facts that the suspect never asked to end the interview, never asked for medical

diabetes-related symptoms); United States v. Harrison, No. 2:12CR193-MEF, 2013 U.S. Dist. LEXIS 65737 (M.D.
Ala. Apr. 5, 2013) (suppression denied when suspect never asked for an opportunity to take his medication).
483
469 F.2d at 365.
484
Id. at 367.
485
Id.
486
Id.
487
2013 U.S. Dist. LEXIS 65737.
488
Id. at *9–10.
489
Id. at *10.
490
Id. at *13.
491
Id. at *16.

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attention, 492 was able to answer all questions coherently, and wrote out a two and a half page
statement with no difficulty. 493 Furthermore, the suspect presented no medical evidence that he
actually had diabetes. 494 The court noted that these facts did not raise sufficient issues with the
voluntariness of the suspect’s confession to suppress it. 495

C. Pleading
Criminal defense attorneys should be careful to counsel their clients about the
consequences of pleading guilty to any criminal charge. A guilty plea (or even something like a
diversion program) 496 can present serious difficulties to any § 1983 claims the defendant might
choose to bring later. The Supreme Court has ruled that in order to recover damages in a § 1983
case, a plaintiff must have had any conviction or sentence deemed invalid by a state tribunal,
reversed on appeal, expunged, or called into question by a federal court’s writ of habeas
corpus. 497 So for example, if a client accepts a plea deal and pleads guilty to resisting arrest as a
lesser offense than assault on a police officer, the client’s ability to bring a suit under § 1983 for
unreasonable use of force would be seriously damaged and potentially foreclosed entirely.
CONCLUSION
It is an all-too-common reality that some police officers across the country violate the
civil rights of individuals with diabetes during investigations, arrests, or pretrial holdings. In the
less serious cases, individuals have been humiliated and harassed for having diabetes, and in

492

While the court does not note this as an important fact, the suspect here did not use insulin, but rather, oral
medications, to control his diabetes.
493
Id. at *18.
494
Id.
495
Id.
496
Gilles v. Davis, 427 F.3d 197, 211-212 (3d Cir. Pa. 2005) (diversion program is not a favorable termination under
Heck and participation bars a § 1983 claim).
497
Heck v. Humphrey, 512 U.S. 477 (1994).

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more serious cases, the results have been catastrophic, even fatal. However, persons so
aggrieved, and their estates, are not with avenues of redress; they may bring federal claims
against officers or municipal governments under 42 U.S.C. § 1983, Title II of the Americans
with Disabilities Act, and § 504 of the Rehabilitation Act and, likewise, may bring supplemental
state law claims under a variety of common law tort theories. It is advisable for plaintiffs to
consider pleading parallel claims under all three federal statutes, as well as under all applicable
state law theories, but the procedural hurdles, evidentiary hurdles, and relief associated with each
differ. Consequently, what constitutes a successful pleading able to withstand summary
judgment will vary depending on the specific claims alleged. Attorneys are welcome to contact
the Legal Advocacy Department at the Association for assistance with legal research in any case
involving diabetes. 498

498

The Legal Advocacy Department may be reached at LegalAdvocate@diabetes.org.

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