PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIAN C. BATES, by his next friend,
Cheryl Anne Johns,
Plaintiff-Appellant,

v.
                                                                     No. 99-1663
CHESTERFIELD COUNTY, VIRGINIA;
WAYNE GENOVA; MIKE MARRION;
DAVID B. BILLER; JOHN DOE, I; JOHN
DOE, II; JOHN DOE, III,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
James R. Spencer, District Judge.
(CA-99-61-3)

Argued: April 7, 2000

Decided: June 19, 2000

Before WILKINSON, Chief Judge, NIEMEYER, Circuit Judge,
and HAMILTON, Senior Circuit Judge.

_________________________________________________________________

Affirmed by published opinion. Chief Judge Wilkinson wrote the
opinion, in which Judge Niemeyer and Senior Judge Hamilton joined.

_________________________________________________________________

COUNSEL

ARGUED: Suleman Sadiq Gill, WRIGHT, ROBINSON,
OSTHIMER & TATUM, Richmond, Virginia, for Appellant. Stylian
Paul Parthemos, Senior Assistant County Attorney, Chesterfield, Vir-
ginia, for Appellees. ON BRIEF: Paulo E. Franco, Jr., Renu M.
Setaro, WRIGHT, ROBINSON, OSTHIMER & TATUM, Richmond,
Virginia, for Appellant. Steven L. Micas, County Attorney, Jeffrey L.
Mincks, Deputy County Attorney, Chesterfield, Virginia, for Appel-
lees.

_________________________________________________________________

OPINION

WILKINSON, Chief Judge:

Brian Bates brought suit against Chesterfield County, Virginia, and
several of its police officers under 42 U.S.C. § 1983 and the Ameri-
cans with Disabilities Act. Bates claims that the officers violated his
Fourth Amendment right to be free from unreasonable seizure and
discriminated against him on account of his autism. The district court
granted summary judgment to the defendants. We conclude that the
officers acted reasonably both in conducting the initial investigatory
stop and in their use of force to restrain Bates. And as the officers
complied with the Fourth Amendment in all respects, we are unable
to discern any discrimination on account of disability. Accordingly,
we affirm the judgment of the district court.

I.

Because the district court dismissed Bates' claims on the defen-
dants' motion for summary judgment, we view the evidence in the
light most favorable to Bates. See Hartsell v. Duplex Prods., Inc., 123
F.3d 766, 768 (4th Cir. 1997). At approximately 6:00 p.m. on Sep-
tember 28, 1998, Ivan Schwartz went outside his home to play with
his sons. Schwartz spotted a tall, skinny, shirtless teenager on the
street at the end of his driveway. Unbeknownst to Schwartz, this teen-
ager was seventeen-year-old Brian Bates. Bates, who lived approxi-
mately two miles from Schwartz's home, has been autistic since birth.
While Schwartz was talking to his boys, Bates walked up Schwartz's
driveway. Schwartz told his boys to go inside.

Bates entered Schwartz's garage and walked up to a cage contain-
ing kittens. Schwartz notes that Bates was talking incoherently to the

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kittens, making animal noises, and reaching into the cage. Schwartz
twice asked Bates if he could help him, but Bates did not respond.
Schwartz then said, "Look, I'm asking you a question. Talk to me."
Bates still did not respond. Schwartz asked Bates for his name, but
Bates again did not reply. Schwartz then asked Bates where he lived.
Bates stated, "Death Valley, California." When Schwartz again asked
Bates where he lived, Bates responded, "In Hell."

Schwartz was ultimately able to back Bates out of his garage and
down his driveway. Schwartz again attempted to communicate with
Bates. The only coherent response Schwartz received was Bates'
screaming out the names of professional wrestlers. When Bates had
reached the end of Schwartz's driveway, Bates ran into the woods at
the end of the cul-de-sac. Schwartz immediately called 911 and told
the dispatcher what had happened.

The dispatcher relayed the call to Chesterfield County police offi-
cers. Officer Wayne Genova, who at the time was working radar only
a few blocks from Schwartz's home, responded and drove his police
motorcycle to Schwartz's home. Upon arriving, Genova was waved
down by Walter Amos, Schwartz's neighbor. Amos had witnessed the
incident, and Amos and Schwartz had talked shortly thereafter.
Schwartz had to leave before Genova arrived, and Amos told
Schwartz he would stay and wait. Although Amos does not recall the
specific words he used, he does remember telling Genova something
to the effect, "I don't know if this boy is on drugs or drunk but he is
acting weird or crazy and just went running through the woods."

Officer Genova, still on his motorcycle, continued searching for the
individual described by Amos and the dispatcher. Genova located him
on a nearby street. Genova asked Bates to come talk with him. Bates
walked away. Genova then ordered Bates to come back. Bates walked
over to the police motorcycle, which Genova had dismounted. With-
out permission from Genova, Bates sat sideways on the motorcycle.
Genova responded by pushing Bates off the motorcycle.

Bates then pushed Officer Genova and walked away. Genova
attempted to grab Bates, but Bates fought him off. During the strug-
gle, Bates used his fingernails to scratch Genova's left arm. Bates
then ran down the street. Genova called for backup and remounted his

                    3
motorcycle. Genova caught up with Bates, dismounted, and tried to
grab Bates by the wrist. Bates resisted, spit on Genova, and told the
officer to leave him alone. Genova grabbed Bates by the throat and
wrestled him to the pavement. Genova warned Bates not to spit on
him. Genova then attempted to handcuff Bates, but Bates continued
to resist. Bates also bit Genova, drawing blood from the officer's left
forearm.

While Genova and Bates were struggling, Richard Conroy, the
Special Agent in Charge of Enforcement for the Virginia State Chari-
table Gaming Commission, approached them in his car. Conroy later
reported, "It was immediately apparent to me that the officer was in
trouble and needed assistance." Conroy got out of his car and identi-
fied himself as a law enforcement officer. The two officers then grap-
pled with Bates and ultimately were able to handcuff his arms in front
of his body.

Shortly thereafter, Officers David Biller and J.R. Boylan arrived.
At this point, Bates was bucking up and down on the pavement. The
four officers wrestled with Bates and were able to handcuff his arms
behind his back. The officers then moved Bates to the grass at the side
of the road. At some point during the struggle, Genova asked Bates
what his name was and whether he was on any drugs. Bates
responded that he was on a number of prescription medications. At
no point did Bates inform the officers that he was autistic. While
Genova was disinfecting his wounds at Officer Boylan's patrol car,
Officers Biller and Boylan stood watch over Bates. Bates began to
kick at the officers. He kicked Officer Biller hard directly in the groin,
incapacitating the officer. The officers responded by turning Bates
over and holding him face down in an attempt to prevent him from
hurting them.

Around this time, Sharon Williams arrived on the scene. Williams,
who knew Bates' family, informed the officers that Bates suffered
from autism. Bates' mother and stepfather, Cheryl and Bill Johns,
then arrived. The parents also told the officers that Bates was autistic.
Bates' parents sought to approach Bates, but the officers initially kept
them back. Once Bates discovered that his parents had arrived, Bates
says he "spun around" to face his stepfather. The officers reacted by
grabbing Bates and forcing him to the ground. One of the officers

                     4
grabbed Bates by his neck. Bates claims that the officers were "beat-
ing" on him as he struggled to get away.

Other Chesterfield County officers arrived on the scene. One of
them urged Bates' parents to retrieve his medication, and Bates'
mother went to get the medicine. While she was away, Bates' stepfa-
ther and a man identifying himself as Bates' uncle were allowed to
speak with Bates. When Bates' mother returned, she gave Bates his
medication. Bates eventually calmed down.

An ambulance arrived and the paramedics examined both Bates
and Genova. One of the paramedics noted that Bates had "minor abra-
sions" on his torso. He concluded that Bates did not need further med-
ical attention, and the paramedics did not take him to the hospital.
Officer Genova, on the other hand, went to the hospital where he was
tested for exposure to various diseases due to Bates' bite and scratch.
Sixteen days later, Officer Biller also sought medical attention
because his groin injury had not yet healed.

After consulting with the other officers at the scene, Sergeant
Michael Marrion decided to charge Bates as a juvenile for assaulting
Officers Genova and Biller. Marrion released Bates to his parents
rather than transporting him to the detention center as the police
would normally have done. Marrion thought that a night in the deten-
tion center would be detrimental to Bates given his mental disorder
and aggressive behavior.1

On January 21, 1999, Bates filed suit against both Chesterfield
County and several of its officers. Bates alleges that the officers vio-
lated his Fourth Amendment right to be free from unreasonable sei-
zure. Bates also brought a variety of state law tort claims as well as
claims that the defendants violated the Americans with Disabilities
Act. See 42 U.S.C. §§ 12132, 12134 (1994). The defendants moved
_________________________________________________________________
1 Bates' claims are primarily concerned with the September 28 inci-
dent. In addition, Bates points to an "incident" occurring two evenings
later. On September 30, the police responded to several reports that Bates
was swinging a 2x4 at cars. This so-called incident, however, involved
no arrest of Bates, and it is undisputed that no officer touched Bates at
any time throughout the episode.

                    5
for summary judgment with respect to Bates' claims. Bates moved
under Fed. R. Civ. P. 56(f) to stay disposition of the summary judg-
ment motion until Bates could conduct further discovery. The district
court granted the defendants' summary judgment motion and denied
Bates' Rule 56(f) motion. Bates now appeals.

II.

A.

Bates first contends that Officer Genova violated the Fourth
Amendment on September 28 when he detained Bates to ask him
some questions.

We disagree. Because Officer Genova was conducting an investi-
gatory stop and not an arrest, Genova needed only a reasonable suspi-
cion that "criminal activity may be afoot." Terry v. Ohio, 392 U.S. 1,
30 (1968). "[T]he level of suspicion required for a Terry stop is obvi-
ously less demanding than that for probable cause," and "is considera-
bly less than proof of wrongdoing by a preponderance of the
evidence." United States v. Sokolow, 490 U.S. 1, 7 (1989). An officer
merely needs "`some minimal level of objective justification' for
making the stop." Id. (quoting INS v. Delgado, 466 U.S. 210, 217
(1984)). In other words, the officer "must be able to articulate some-
thing more than an inchoate and unparticularized suspicion or hunch."
Id. (internal quotation marks omitted).

Based on the information possessed by Officer Genova at the time,
his suspicion that "criminal activity may be afoot" was more than rea-
sonable. Genova was informed by the 911 dispatcher of a "suspicious
subject." The dispatcher then passed along the information reported
by Ivan Schwartz -- "a white male juvenile with blonde hair [and]
bad complexion, last seen wearing no shirt, baggy jean shorts, . . .
walked up to [Schwartz's] garage and seemed not to comprehend
where he was at, and then ran into the woods at the end of the cul-de-
sac." Genova was thus aware that Bates may have trespassed on pri-
vate property and might trespass again. See Va. Code Ann. §§ 18.2-
119, 18.2-121 (Michie 1996). In addition, Officer Genova was
informed that Bates may have been under the influence of intoxicants
in public. See id. § 18.2-388. When Genova arrived on the scene, he

                    6
spoke with Walter Amos. Although Amos later could not recall the
specific words he used, Amos remembered telling Genova something
to the effect, "I don't know if this boy is on drugs or drunk but he is
acting weird or crazy and just went running through the woods." With
these facts in front of him, it was reasonable for Officer Genova to
stop Bates and assess the situation.

B.

Bates next argues that the defendant officers violated the Fourth
Amendment by using excessive force against him."[T]he question is
whether the officers' actions are `objectively reasonable' in light of
the facts and circumstances confronting them ...." Graham v. Connor,
490 U.S. 386, 397 (1989). Reasonableness "must be judged from the
perspective of a reasonable officer on the scene, rather than with the
20/20 vision of hindsight." Id. at 396.

At every stage of the September 28 incident, the police officers'
use of force was objectively reasonable. Officer Genova first
attempted merely to speak with Bates. Bates walked away. Genova
then ordered Bates to come over to him. In approaching, however,
Bates sat on Genova's police motorcycle, which he had no right to do.
By taking the first step to commandeering the officer's motorcycle,
Bates threatened not only Officer Genova and police property; he also
put himself and the public at risk. In response, Genova simply pushed
Bates off the motorcycle. Genova was surely not constitutionally
required to permit an individual suspected of being intoxicated and
having committed a trespass to control his police vehicle while
Genova was conducting his investigatory stop.

Bates then initiated a series of physical confrontations with the
police to which the officers responded in reasonable fashion. Bates
pushed Officer Genova, thereby assaulting a police officer. When
Genova tried to grab Bates, Bates fought him off, scratching Geno-
va's left arm. Genova and the other officers attempted to handcuff
Bates. Bates spit, bit, and kicked the officers. It ultimately required
four officers to restrain Bates and to stop him from harming not only
the officers but himself. And yet in light of what the district court
described as Bates' "fierce resistance," the officers did not pepper
spray Bates nor use their batons against him. In fact, Bates suffered

                    7
minimal injury from the confrontations. Bates himself reports, "As a
result of the police officers' actions, I was cut, bruised and scraped."
And the attending paramedic saw no need to take Bates to the hospi-
tal. See Dean v. City of Worcester, 924 F.2d 364, 369 (1st Cir. 1991)
(noting that the severity of a § 1983 plaintiff's injuries is a relevant
factor in determining whether force was excessive).

With respect to the force used in these confrontations, it is impor-
tant to consider "the severity of the crime at issue, whether the suspect
poses an immediate threat to the safety of the officers or others, and
whether he is actively resisting arrest." Graham, 490 U.S. at 396.
Here, all three factors weigh in the officers' favor. First, Bates had
committed the offense of assaulting a police officer. Second, Bates
was an immediate threat to the officers, as evidenced by the fact that
he scratched Officer Genova, bit him to the point of bleeding, and
incapacitated Officer Biller by kicking him directly in the groin.
Third, it is beyond question that Bates was "actively resisting arrest."
In light of these factors, we simply cannot conclude that the force
used by the officers was excessive.

Bates makes much of the officers' use of force in light of his men-
tal disability. It is undisputed, however, that Bates never told the offi-
cers he was autistic. Moreover, in the midst of a rapidly escalating
situation, the officers cannot be faulted for failing to diagnose Bates'
autism. Indeed, the volatile nature of a situation may make a pause
for psychiatric diagnosis impractical and even dangerous.

Even after the officers were informed of Bates' autism, the force
used by the officers was reasonable in light of all the circumstances.
For example, the police reacted with force when, in Bates' own
words, he "spun around" to face his stepfather. In light of Bates' pre-
vious resistance to police -- his scratching, spitting, biting, and kick-
ing -- the officers acted reasonably by forcibly restraining him.
Knowledge of a person's disability simply cannot foreclose officers
from protecting themselves, the disabled person, and the general pub-
lic when faced with threatening conduct by the disabled individual.
We do not underestimate the difficulties that an autistic individual
may face in dealing with law enforcement officers. At the same time,

                     8
that fact cannot set aside an officer's responsibility to uphold the law
and ensure public safety.2

III.

Bates next contends that the defendants violated the Americans
with Disabilities Act. See 42 U.S.C. §§ 12132, 12134 (1994). Section
12132 provides, "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." Id.
§ 12132. Bates alleges that his "unjustified detainment and abuse"
constituted discrimination against him by reason of his disability.
Specifically, Bates contends that the officers should have been aware
of his autism throughout the September 28 incident and should have
taken this condition into account when interacting with him. Bates
argues that if they had, he would not have been detained or arrested
and the ensuing scuffle would not have occurred.

We need not undertake an independent ADA inquiry in this case
because our Fourth Amendment scrutiny has already accounted for all
the situation's circumstances. For in evaluating the validity of an
investigatory stop, a court must consider "`the totality of the circum-
stances -- the whole picture.'" Sokolow, 490 U.S. at 8 (quoting
United States v. Cortez, 449 U.S. 411, 417 (1981)). And in examining
a claim of excessive force, a court must ask whether the officers' con-
duct was "`objectively reasonable' in light of the facts and circum-
stances confronting them." Graham, 490 U.S. at 397. Just like any
other relevant personal characteristic -- height, strength, aggressive-
_________________________________________________________________
2 Bates also contends that the district court improperly granted defen-
dants summary judgment with respect to his state tort claims. Bates,
however, concedes that "the viability of the state law claims hinges on
the objective reasonableness of the Officer Defendants' actions." And as
their actions were objectively reasonable, the district court properly
granted summary judgment on these state law claims.

In addition, Bates argues that the district court erred by not granting
his Rule 56(f) request to conduct more discovery. We agree with the dis-
trict court that there was no need for further discovery.

                     9
ness -- a detainee's known or evident disability is part of the Fourth
Amendment circumstantial calculus.

Here, we have concluded that under all the circumstances the offi-
cers' actions were objectively reasonable. Officer Genova had a rea-
sonable, articulable suspicion that criminal activity was afoot when he
conducted his initial investigatory stop. See Terry, 392 U.S. at 30-31.
The officers' use of force against Bates was also objectively reason-
able -- both the force used before the officers were aware or should
have been aware of Bates' autism and the force used after they were
notified of the disability. See Graham, 490 U.S. at 396-99. And Bates
was not arrested because of his disability. Rather, he was arrested
because there was probable cause to believe that he assaulted a police
officer. Thus the stop, the use of force, and the arrest of Bates were
not by reason of Bates' disability, but because of Bates' objectively
verifiable misconduct. Such reasonable police behavior is not dis-
crimination. As a result, there has been no ADA violation.3

IV.

For the foregoing reasons, the judgment of the district court is

AFFIRMED.
_________________________________________________________________
3 As the officers did not discriminate against Bates by reason of his dis-
ability, Bates' additional ADA claim that the County failed to adequately
train its officers also fails.

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