                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


 BRANDON MONTGOMERY, as personal
 representative for the estate of Gary
 Montgomery,

         Plaintiff,

         v.                                                Civil Action No. 18-1928 (JDB)

 THE DISTRICT OF COLUMBIA, et al.,

         Defendants.



                                  MEMORANDUM OPINION

       In 2012, Gary Montgomery was charged in Superior Court with first-degree murder for

fatally stabbing Deoni JaParker Jones at a bus stop in Washington, D.C. After initially being held

at the D.C. Jail, Montgomery spent much of the next five years confined at a psychiatric hospital

while proceedings regarding his competency to stand trial unfolded. After finally being determined

competent, Montgomery was acquitted at trial in 2017. He died shortly thereafter.            Plaintiff

Brandon Montgomery, as personal representative for the estate of Gary Montgomery, has brought

this action against the District of Columbia and several Metropolitan Police Department officers

(collectively “defendants”). Plaintiff alleges that defendants committed various constitutional and

statutory violations related to their investigation and detention of Montgomery. Currently pending

before this Court is [10] defendants’ partial motion to dismiss four counts of the complaint. For

the reasons that follow, the Court will grant in part and deny in part defendants’ motion.




                                                 1
                                                BACKGROUND

    I. FACTS 1

         On February 2, 2012, at approximately 8:12 p.m., Deoni JaParker Jones was stabbed in the

head and killed while sitting at a bus stop in northeast Washington, D.C. Compl. [ECF No. 1]

¶ 36. A nearby motorist, Jermaine Jackson, witnessed the murder and provided his account to the

Metropolitan Police Department (“MPD”) a few hours later. Id. ¶¶ 37, 40. According to Jackson,

the killer was between 5’9 and 6’0 tall, between thirty and forty years old, and dressed in a gray

hoodie under a black puffy jacket. Id. ¶ 41. After Jones was stabbed, Jackson exited his car and

fought with the killer to prevent him from escaping, punching him to the ground and stomping on

his head several times. Id. ¶¶ 39, 42. The killer eventually escaped. Id. ¶ 39. Video footage from

the interior of America’s Best Wings, a business establishment a few blocks from where the murder

occurred, showed a person fitting Jackson’s description running in the opposite direction of the

murder scene. Id. ¶ 56.

         The next day, MPD released a different video to the public that showed a man crossing a

street in the area of the murder a few minutes before it occurred. Id. ¶ 48. After releasing the

video, MPD received several phone calls from individuals identifying the man as Gary

Montgomery. Id. ¶ 62. Montgomery, then fifty-five years old, was a mentally disabled resident

of the District of Columbia (“the District”) who had suffered from Schizophrenia for most of his

adult life. Id. ¶ 31. Montgomery was identifiable to his neighbors based on his “prominent limp”

and “distinctive clothing.” Id. ¶ 63.

         MPD first interrogated Montgomery in connection with Jones’s murder on February 4,

2012. Id. ¶¶ 65, 71. Photographs and video footage captured by MPD that day show Montgomery


         1 For the purposes of defendants’ motion, the allegations in plaintiff’s complaint are accepted as true. See,
e.g., Leatherman v. Tarrant Cty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993).

                                                          2
wearing a light brown jacket, khaki pants, and white tennis shoes, which Montgomery said he had

been wearing for several days and which matched the clothing worn by the man crossing the street

in the released video. Id. ¶¶ 72–74. Despite Jackson’s account of the murder and his fight with

the killer, Montgomery “did not appear to be 30[–]40 years old,” and his “face was unblemis hed

and free of any bruises or injuries.” Id. ¶ 46.

       Defendant Officers Brian Wise and Hosam Nasr conducted the interrogation of

Montgomery, which lasted for nearly six hours. Id. ¶ 108. The officers used the Reid technique,

id. ¶ 109, “a method of interrogation . . . aimed at extracting confessions and evaluating suspect

credibility.” United States v. Jacques, 744 F.3d 804, 808 n.1 (1st Cir. 2014); see United States v.

Preston, 751 F.3d 1008, 1023 & n.19 (9th Cir. 2014) (“The ‘Reid method,’ named for the manual

of which [John E.] Reid was a coauthor, is widely used by law enforcement agencies.”).

Throughout the interrogation, “Montgomery repeatedly showed signs of psychosis manifested by

disorganized and jumbled thoughts,” and provided responses to questions that “frequently had no

apparent meaning.”     Compl. ¶¶ 113–14. Montgomery’s mental illness limited his “ability to

understand information and to communicate information” throughout the interrogation. Id. ¶ 115.

At one point, Officer Wise inquired whether Montgomery had a mental illness. Id. ¶ 116. The

officers nevertheless did not “make any modification or accommodation to their interrogation of

. . . Montgomery to ensure he was able to communicate and understand the information given to

him.” Id. ¶ 23.

       On February 7, Officer Wise interviewed Mark Johnson, who a member of the public had

also identified as possibly being the person in the released video. Id. ¶¶ 79, 81. Johnson told Wise

that, around the time of the murder, he was buying heroin near the bus stop where Jones was killed.

Id. ¶ 81. When Wise showed Johnson a picture of Montgomery, Johnson told Wise he recognized


                                                  3
Montgomery from the neighborhood but did not say Montgomery was with him on the night of

the murder. Id. ¶ 82.

        At some point between February 4 and 10, MPD arrested Montgomery, after which

Officers Wise and Nasr interrogated him for a second time. See id. ¶¶ 2, 92. During the second

interrogation, Montgomery was “in an active psychotic state[,] hearing voices and speaking to

voices he heard.” Id. ¶ 117. As with the first interrogation, Montgomery’s ability to understand

the officers’ statements and communicate with them was limited, id. ¶ 115, but no accommodatio ns

for his mental illness were made, id. ¶ 23.

        On February 23, the D.C. Superior Court held a preliminary detention hearing pursuant to

section 23-1325(a) of the D.C. Code, which authorizes pretrial detention of defendants charged

with certain serious crimes, including first-degree murder, upon a showing of (1) probable cause

to believe that the defendant committed the offense and (2) clear and convincing evidence that no

conditions of release will reasonably assure the safety of the community. Jeffers v. United States,

208 A.3d 357, 359 (D.C. 2019); see United States v. Montgomery, 2012 CF1 002614 (D.C. Sup.

Ct. Feb. 11, 2012) 2 ; Compl. ¶ 53. When the government asked Officer Nasr, who testified at the

hearing, whether anyone aside from Montgomery was near Jones in the minutes leading up to her

death, Nasr said no. Compl. ¶ 53. Nasr’s testimony was knowingly false, plaintiff alleges, because

at the time, MPD possessed footage showing another man sitting next to Jones at the bus stop in

the moments before her death—footage that it had not yet disclosed to the public or to




        2 The Court may take judicial notice of the public record of proceedings before the D.C. Superior Court. See
Turpin v. Ray, 319 F. Supp. 3d 191, 203 n.5 (D.D.C. 2018) (“Because the D.C. Superior Court docket is a public
document, the Court may take judicial notice of such documents” in the context of a motion to dismiss.) (citing Covad
Commc’ns Co. v. Bell Atl. Corp., 407 F.3d 1220, 1222 (D.C. Cir. 2005)); see also Lewis v. Parker, 67 F. Supp. 3d
189, 195 n.6 (D.D.C. 2014).


                                                         4
Montgomery’s defense counsel. 3 Id. ¶¶ 53–54, 92. The hearing resulted in a finding that pretrial

detention was warranted. See Seventh Docket Entry of Feb. 23, 2012, Montgomery, 2012 CF1

002614.

         Montgomery was indicted on November 7, 2012. First Docket Entry of Nov. 7, 2012,

Montgomery, 2012 CF1 002614. Shortly thereafter, Montgomery’s defense counsel submitted a

written request to the government for material covered under Brady v. Maryland, 373 U.S. 83

(1963). 4,   5   Compl. ¶¶ 92–93. In response, the government represented that it would disclose a

surveillance DVD, but no such DVD was included in the materials Montgomery’s counsel

received. 6 Id. ¶¶ 92, 95.

         In early 2013, the Superior Court ordered that Montgomery be moved from the D.C. Jail

to a psychiatric hospital and examined for competency to stand trial. Fifth Docket Entry of Jan.

29, 2013, Montgomery, 2012 CF1 002614. Montgomery was initially found competent to stand

trial, but his competency status changed several times over the next few years. See Docket Entries

of Apr. 5, 2013–Nov. 29, 2016, Montgomery, 2012 CF1 002614. In late 2016, Montgomery was

again found competent and a jury trial was scheduled for July 31, 2017. Seventh Docket Entry of

Nov. 29, 2016, Montgomery, 2012 CF1 002614.



          3 The complaint also alleges that MPD possessed additional evidence casting doubt on Montgomery’s guilt

that it did not disclose at the time of the detention hearing, including the results of DNA testing on clothing that the
killer dropped at the bus stop, which did not match Montgomery’s DNA. See Compl. ¶¶ 78, 92.
         4  Under Brady, “a prosecutor [must] . . . disclose . . . information favorable to the accused ‘that is material
[either] to . . . guilt or to punishment.’” United States v. Bowie, 198 F.3d 905, 908 (D.C. Cir. 1999) (citing Brady,
373 U.S. at 87).

         The exact date of the Brady request is unclear, but the complaint alleges it was on or before December 18,
         5

2012. See Compl. ¶¶ 92–93.

          6 By December 18, 2012, the government had provided Montgomery’s defense counsel with the following

materials: video footage of MPD’s February 2012 interrogations of Montgomery, documentation of three
identification procedures conducted in the case, and the death, autopsy and toxicology, and forensic biology reports.
Compl. ¶ 92.

                                                           5
        Montgomery’s counsel made an additional request for Brady material in June 2017.

Compl. ¶ 94. In the week preceding the trial, the government disclosed Jackson’s eyewitness

account of Jones’s murder, the America’s Best Wings video showing a person fitting Jackson’s

description of the killer, and details of MPD’s interview of Johnson. Id. ¶¶ 60, 85, 90.

        After a two-week trial beginning on July 31, 2017, a jury acquitted Montgomery of first-

degree murder. Id. ¶¶ 1, 3; Fifth Docket Entry of Aug. 16, 2017, Montgomery, 2012 CF1 002614.

Shortly after his release, Montgomery died at sixty-one years of age. Compl. ¶ 31.

    II. PROCEDURAL HISTORY

        On August 16, 2018, Brandon Montgomery, as personal representative for Montgomer y’s

estate, filed the present lawsuit. Id. at 7, 39. The complaint consists of nine counts alleging various

constitutional and statutory violations committed by the District, Officer Wise, Officer Nasr, and

others. 7 Id. ¶¶ 132–199. Defendants move to dismiss four of the nine counts: Count IV (claim

under 42 U.S.C. § 1983 alleging Officers Wise and Nasr violated Montgomery’s due process rights

under Brady); Count VII (claim under section 1983 against the District alleging municipal liability

for various constitutional violations under Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978));

Count VIII (claim under Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §

12132); and Count IX (claim under section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a)).

Defs.’ Mot. for Partial Dismissal of the Compl. (“Mot.”) [ECF No. 10] at 1. The motion to dismiss

is fully briefed and ripe for resolution.




        7  The complaint also names as defendants Officers “John Doe, whose identities are currently unknown, [who]
represent those employees of the District of Columbia MPD . . . who had supervisory authority over [d]efendants
Brian Wise and Hosam Nasr.” Compl. ¶ 35.

                                                        6
                                       LEGAL STANDARD

         “To survive a motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009) (citation and internal quotation marks omitted). Plausibility requires “more than

a sheer possibility that a defendant has acted unlawfully.”          Id. (citation omitted).    “Legal

conclusions cast in the form of factual allegations” are insufficient. Browning v. Clinton, 292 F.3d

235, 242 (D.C. Cir. 2002) (citation and internal quotation marks omitted). A court must accept

factual allegations as true and grant the plaintiff the benefit of all inferences that can be drawn

from the facts alleged. Id. (citation and internal quotation marks omitted).

                                             ANALYSIS

    I.     BRADY CLAIM

         In Count IV, plaintiff brings a section 1983 claim against Officers Wise and Nasr for their

alleged failure to disclose material, exculpatory information to prosecutors (and hence to defense

counsel) prior to Montgomery’s detention hearing, which resulted in his confinement for over five

years and his prosecution for a crime that he did not commit. Compl. ¶¶ 150–52. Because section

1983 “is not itself a source of substantive rights, but merely provides a method for vindica ting

federal rights elsewhere conferred,” the first step in analyzing a plaintiff’s claim is to “identify the

specific constitutional right allegedly infringed.” Albright v. Oliver, 510 U.S. 266, 271 (1994)

(citation and internal quotation marks omitted).

         Here, plaintiff alleges that the officers violated Montgomery’s due process rights under

Brady, which sets forth the government’s duty “to disclose . . . information favorable to the accused

that is ‘material [either] to . . . guilt or to punishment.’” Bowie, 198 F.3d at 908 (quoting Brady,

373 U.S. at 87); Compl. ¶ 151. Defendants’ primary response is that, even if Montgomery’s Brady



                                                   7
rights were violated, Officers Wise and Nasr are protected by the doctrine of qualified immunity.

See Mot. at 6–8.

       Qualified immunity “protects government officials from liability for civil damages insofar

as their conduct does not violate clearly established . . . constitutional rights of which a reasonable

person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (citation and interna l

quotation marks omitted).      Qualified immunity therefore bars relief unless the plaintiff can

establish both (1) the violation of a constitutional right and (2) that the right at issue was “clearly

established” at the time of the violation.   Id. at 232; see Saucier v. Katz, 533 U.S. 194, 200–01

(2001). Following the Supreme Court’s decision in Pearson, courts may consider this two-step

inquiry in either order. 555 U.S. at 236. Here, the Court will not resolve the first inquiry—whe ther

a police officer’s failure to disclose exculpatory material prior to a detention hearing violates a

defendant’s right to due process under Brady—but instead will move directly to the second:

whether, even if it does, such a right was clearly established at the time of the alleged misconduct.

See Kenley v. District of Columbia, 83 F. Supp. 3d 20, 38 (D.D.C. 2015) (taking the same approach

in resolving similar section 1983 claim).

       “The relevant, dispositive inquiry in determining whether a right is clearly established is

whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he

confronted.” Saucier, 533 U.S. at 202. “In determining whether officers strayed beyond clearly

established bounds of lawfulness,” courts in this district look to cases from the Supreme Court and

the D.C. Circuit, “as well as to cases from other courts exhibiting a consensus view.” Johnson v.

District of Columbia, 528 F.3d 969, 976 (D.C. Cir. 2008). Unless “existing precedent” has “placed

the statutory or constitutional question beyond debate,” the defendants may not be held liable.

Reichle v. Howards, 566 U.S. 658, 664 (2012).


                                                  8
        Plaintiff has not met the “clearly established” standard. Relying on cases interpreting

Brady, plaintiff contends that there is ample authority establishing that exculpatory evidence “must

be [timely] disclosed ‘pretrial.’”   Pl.’s Mem. of P. & A. in Opp’n to Defs.’ Mot. for Partial

Dismissal of the Compl. (“Opp’n”) [ECF No. 15] at 10–11 (citation omitted). That may be true,

but that is not the constitutional right plaintiff alleges was infringed. The right that forms the basis

of plaintiff’s section 1983 claim would require the government to disclose exculpatory informa tio n

to the defense prior to a preliminary detention hearing in order to prevent unfair pretrial detention

decisions. See Compl. ¶¶ 150–52; Opp’n at 10–12. But neither the Supreme Court nor the D.C.

Circuit has clearly recognized Brady rights in the context of pretrial proceedings. To the contrary,

both have indicated that the purpose of Brady is to preserve defendants’ right to a fair trial and to

avoid wrongful convictions, rather than to provide broader protections in other proceedings. See,

e.g., Strickler v. Greene, 527 U.S. 263, 281 (1999) (“[T]here is never a real ‘Brady violatio n’

unless the nondisclosure was so serious that there is a reasonable probability that the suppressed

evidence would have produced a different verdict.”) (emphasis added); Kyles v. Whitley, 514 U.S.

419, 433 (1995) (finding Brady obligations to exist “when suppression of the evidence would be

of sufficient significance to result in the denial of the defendant’s right to a fair trial”) (emphasis

added) (citation and internal quotation marks omitted); United States v. Straker, 800 F.3d 570, 603

(D.C. Cir. 2015) (defining the prejudice element of Brady claims as requiring “a reasonable

probability that an earlier disclosure [of evidence] would have changed the trial’s result”)

(emphasis added) (citation omitted).

        To comply with Brady, the government must therefore disclose material, exculpatory

evidence “at such a time as to allow the defense to use the favorable material effectively in the

preparation and presentation of its case” at trial. United States v. Celis, 608 F.3d 818, 835 (D.C.


                                                   9
Cir. 2010); see United States v. Pollack, 534 F.2d 964, 973–74 (D.C. Cir. 1976) (explaining that

to determine whether Brady disclosure is timely courts “balance . . . the potential dangers of early

discovery against the need . . . [to] avoid[] wrongful convictions,” and that Brady is not violated

where “the timing of the government’s disclosures” does not “heighten[]” “the possibility of

[defendants’] convictions”).     What this timeliness requirement means in practice will vary

depending on the facts of each case and the nature of the favorable material. But what it does not

mean is that there is a clear constitutional right to Brady material immediately after arrest or prior

to a preliminary detention hearing.

       Moreover, courts in other jurisdictions “disagree[] about whether the due-process rights

articulated in Brady are implicated at all where plaintiffs were not convicted in their crimina l

cases,” Kenley, 83 F. Supp. 3d at 39 (emphasis in original), with many finding they are not, see,

e.g., Bianchi v. McQueen, 818 F.3d 309, 320 (7th Cir. 2016) (“A violation of Brady requires a

showing of prejudice, which can’t be made here because the plaintiffs were acquitted.”); Flores v.

Satz, 137 F.3d 1275, 1278 (11th Cir. 1998) (“Plaintiff . . . was never convicted and, therefore, did

not suffer the effects of an unfair trial.    As such, the facts of this case do not implicate the

protections of Brady.”).

       Here, Montgomery was acquitted, not convicted.            And plaintiff’s section 1983 claim

asserting a Brady violation is premised not on any alleged unfairness at trial, but rather on a pretrial

detention proceeding held approximately two weeks after Montgomery’s arrest—at which

detention was ordered—and the fact of Montgomery’s prosecution. Based on the lack of existing

precedent that has resolved the question in plaintiff’s favor, this Court is not persuaded that

Montgomery had a clearly established constitutional right to exculpatory evidence prior to his




                                                  10
detention hearing.     Hence, Officers Wise and Nasr are entitled to qualified immunity, and

defendants’ motion to dismiss Count IV will be granted.

    II.     M ONELL CLAIM

          In Count VII, plaintiff alleges that the District is liable under section 1983 for various

violations of Montgomery’s rights arising out of his arrest, interrogation, and prosecution. Compl.

¶¶ 165–170. In Monell, the Supreme Court held that municipalities like the District do not enjoy

absolute immunity from section 1983 liability. 436 U.S. at 690, 694. But while municipalities

may be held liable under that section, they are “responsible only for their own illegal acts” and

“are not vicariously liable . . . for their employees’ actions.” Connick v. Thompson, 563 U.S. 51,

60 (2011) (emphasis in original) (citations omitted); see also Monell, 436 U.S. at 692. Hence, a

plaintiff that “seek[s] to impose liability on local governments under § 1983 must prove that ‘action

pursuant to official municipal policy’ caused their injury.”       Connick, 563 U.S. at 60 (quoting

Monell, 436 U.S. at 691). Generally, “[o]fficial municipal policy includes the decisions of a

government’s lawmakers, the acts of its policymaking officials, and practices so persistent and

widespread as to practically have the force of law.” Id. at 61. “In limited circumstances,” however,

“a local government’s decision not to train certain employees about their legal duty to avoid

violating citizens’ rights may rise to the level of an official government policy for purposes of §

1983.” Id.

          Plaintiff contends that this case falls within that rare situation—i.e.,        that while

Montgomery’s injuries did not result from any express District policy, they did arise out of the

District’s failure to adequately train its officers.    See Compl. ¶ 168; Opp’n at 15. Specifica lly,

plaintiff alleges that the District failed to train its officers not to “conduct[] constitutiona lly

inadequate investigations, engag[e] in discrimination against mentally ill suspects, fabricat[e]


                                                   11
inculpatory evidence, . . . maliciously prosecute[ suspects,] . . . suppress[] material[,] exculpatory

information   and evidence[,] and us[e] unconstitutional          and discriminatory      interrogatio n

techniques.” Compl. ¶ 169.

       Because “[a] policy of inadequate training is far more nebulous” than an explicit munic ipa l

policy, a “municipality’s culpability for a deprivation of rights is at its most tenuous where a claim

turns on a failure to train.”   Connick, 563 U.S. at 61 (citations and internal quotation marks

omitted). Accordingly, to successfully make out a “failure-to-train” claim, a plaintiff must clear a

high hurdle: he must establish that the municipality’s purported failure to train “amount[ed] to

‘deliberate indifference to the rights of persons with whom the [untrained employees] come into

contact.’” Id. (alteration in original) (citations omitted). “Deliberate indifference is a stringe nt

standard of fault, requiring proof that a municipal actor disregarded a known or obvious

consequence of his action.” Id. (citation omitted). Ordinarily, to establish deliberate indiffere nce,

a plaintiff must allege a pattern of constitutional violations by inadequately trained employees that

are similar to the instant violation. Id. at 62. Such a pattern demonstrates a “continued adherence

to an approach that [the municipality] know[s] or should know has failed to prevent . . .

[unconstitutional] conduct by employees,” and thus “may establish the conscious disregard for the

consequences of [its] action—the ‘deliberate indifference’—necessary to trigger munic ipa l

liability.” Bd. of Cty. Comm’rs of Bryan Cty. v. Brown, 520 U.S. 397, 407 (1997). Allegatio ns

of a pattern of constitutional violations stemming from “inadequately trained employees” also

“may tend to show that the lack of proper training, rather than . . . factors peculiar to the officer

involved in a particular incident,” caused the plaintiff’s injury. Id. at 408 (citation omitted).

       Here, plaintiff fails to adequately allege such a pattern of similar constitutional violatio ns.

Although plaintiff references MPD’s 1994 interrogation of a suspect for a different crime that


                                                  12
allegedly resulted in a “coerced and false confession,” Compl. ¶ 167, a conclusory mention of a

single incident twenty years before Montgomery’s interrogation is insufficient to allege a pattern

of misconduct. It hardly amounts to adequately alleging, as is necessary here, “that ‘the city itself

[decided] to violate the Constitution” by “disregard[ing] a known or obvious consequence of” its

failure to train its employees.   Robinson v. Pezzat, 818 F.3d 1, 12 (D.C. Cir. 2016) (quoting

Connick, 563 U.S. at 61–62).

        The absence of any alleged pattern of constitutional violations, however, does not end the

inquiry. The Supreme Court has left open the possibility that a plaintiff can, “in a narrow range

of circumstances,” successfully       allege Monell liability     based on a single        incident   of

unconstitutional conduct by municipal employees. Connick, 563 U.S. at 63 (citation omitted). If

such conduct was a “patently obvious” consequence of the municipality’s failure to train its

employees, the Court explained, such conduct may be enough to imply the municipality’s

deliberate indifference to the plaintiff’s rights. Id. at 63–64. Under this “single- incident” theory,

it is not enough for a plaintiff simply to allege, without more, that employee training could have

prevented the alleged constitutional violation.        Instead, the complaint must allege facts that

establish an obvious “affirmative link” between the failure to adequately train employees and the

alleged constitutional violation, such that the failure to train, rather than the employee’s errors or

negligence, “was the ‘moving force’ behind the constitutional violation.” Baker v. District of

Columbia, 326 F.3d 1302, 1306 (D.C. Cir. 2003) (citation omitted); see City of Canton v. Harris,

489 U.S. 378, 391 (1989) (“[A]dequately trained officers occasionally make mistakes; the fact that

they do says little about the training program or the legal basis for holding the city liable.”).

        Plaintiff does not meet this stringent standard. The complaint contains only generalized

allegations that Officers Wise and Nasr are guilty of engaging in illegal conduct—includ ing,


                                                  13
among others things, fabricating inculpatory evidence, engaging in discrimination against mentally

ill suspects, and conducting constitutionally inadequate investigations—coupled with the bald

assertion that the District “failed to adequately . . . train . . . [its] employees.” Compl. ¶ 168.

Absent from the complaint is any suggestion that the District, despite being faced with some

“obvious need for specific” training that might prevent conduct resulting in constitutio na l

violations, declined to offer it. 8 Connick, 563 U.S. at 64. Indeed, plaintiff offers no explanatio n

for why specialized training—apart from whatever ordinary training MPD officers receive as a

matter of course—is even necessary to prevent much of the alleged misconduct.                            Presumably

police officers know, without any additional specific training, not to—for instance—fabricate

evidence. See id. (noting that the narrow circumstances under which single- incident liability for

failure to train might be warranted include situations where there is “no reason to assume” that

officers were aware of what constituted unconstitutional misconduct, and where, absent training,

there was “no way for novice officers to obtain” such knowledge). Plaintiff’s summary allegatio ns

are insufficient to assert that the District itself was the moving force behind such violations. Hence,

regardless of how egregious the officers’ treatment of Montgomery may have been, plaintiff has


         8 Plaintiff at least implicitly suggests that MPD officers did not receive training instructing them not to use
the Reid technique on mentally ill suspects. See Compl. ¶ 112; Opp’n at 16. However, while plaintiff alleges that
“the Reid technique . . . can elicit false confessions” when used on mentally ill suspects, Compl. ¶ 112 (emphasis
added), that could be said of any interrogation technique, and does not in itself allege an affirmative link between the
District’s purported failure to train and the constitutional violations plaintiff alleges here. Moreover, plaintiff does
not cite any cases suggesting that constitutional violations are such a “patently obvious” consequence of using the
Reid technique on mentally ill suspects that the District may be held liable merely for failing to instruct employees
not to use it. While courts have “expressed concern about approaches such as the Reid Technique” in the context of
assessing the voluntariness of confessions, Dassey v. Dittman, 877 F.3d 297, 321 (7th Cir. 2017) (Wood, C.J., Rover
& Williams, J.J., dissenting)—particularly when used on juveniles or individuals with disabilities, see United States
v. Monroe, 264 F. Supp. 3d 376, 393 n.153 (D.R.I. 2017)—the Court is aware of no authority suggesting that failing
to prevent its use—whether on competent adults, juveniles, or the mentally disabled—creates enough risk of
unconstitutional conduct to impose municipal liability for deliberate indifference. See Stoot v. City of Everett, 582
F.3d 910, 929–30 (9th Cir. 2009) (rejecting Monell claim alleging that city’s failure to train officers not to use Reid
technique in “conducting juvenile interrogations” “amount[ed] to . . . deliberate indifference”); Monroe, 264 F. Supp.
3d at 393 (“[T]here is nothing impermissible as a matter of law with . . . [the Reid technique].”). Hence, irrespective
of whether the officers’ use of the Reid technique in this instance violated Montgomery’s constitutional rights—a
question this Court has no occasion to decide—plaintiff has not alleged sufficient facts to establish, nor is there
authority to support, municipal liability stemming from the District’s policies or practice.

                                                          14
failed to state a Monell claim against the District based on an unconstitutional policy, and

defendants’ motion to dismiss Count VII will be granted.

    III.        STATUTORY DISCRIMINATION CLAIMS

           In Count VIII and Count IX, plaintiff alleges that the District, through its employees

Officers Wise and Nasr, interrogated Montgomery in a manner that violated Title II of the

Americans with Disabilities Act (“ADA”) and section 504 of the Rehabilitation Act, respectively.

See Compl. ¶¶ 171–199. Title II of the ADA provides that “no qualified individual with a disability

shall, by reason of such disability, be excluded from participation in or be denied the benefits of

the services, programs, or activities of a public entity, or be subjected to discrimination by any

such entity.” 42 U.S.C. § 12132. The ADA is “directly patterned on the Rehabilitation Act,” and

the elements of an ADA Title II claim are nearly identical to the elements of a Rehabilitation Act

section 504 claim. 9 Adams v. Rice, 531 F.3d 936, 948 (D.C. Cir. 2008). Because Title II and

section 504 claims are “similar in substance[,] . . . cases interpreting either are applicable and

interchangeable.” Chenari v. George Wash. Univ., 847 F.3d 740, 746 (D.C. Cir. 2017) (citation

omitted). Hence, this Court will analyze Counts VIII and IX as one set of claims, and the analysis

below applies to both the Title II and section 504 claims.

           To state a claim under Title II, a claimant must allege sufficient facts to establish that (1) he

is a qualified individual with a disability, 10 (2) a public entity excluded him from participation in

or denied him the benefits of the entity’s services, programs, or activities, or subjected him to

discrimination, and (3) the public entity discriminated against him by reason of the disability. See


           Unlike Title II, section 504 specifically prohibits discrimination under programs or activities that receive
           9

federal financial assistance or are conducted by an Executive agency or by the United States Postal Service. See 29
U.S.C. § 794(a). Defendants do not dispute that the District’s activities are within section 504’s scope. See Mot. at
11–14.

           Defendants do not dispute plaintiff’s assertion that Montgomery was a qualified individual with a disability
           10

within the meaning of the ADA. See 42 U.S.C. § 12131(2); Compl. ¶ 172.

                                                         15
Pierce v. District of Columbia, 128 F. Supp. 3d 250, 267 (D.D.C. 2015). “It is clear beyond cavil

that the core principle that underlies the protections of [s]ection 504 and Title II is equal access,”

and that equal access requires public entities “to provide reasonable accommodations” to

qualifying individuals. Id. at 268.

         Plaintiff alleges that police investigations are subject to Title II and that Officers Wise and

Nasr, who were aware of Montgomery’s disability, engaged in intentional discrimination by failing

to reasonably accommodate his disability during his interrogation.                       Compl. ¶¶ 177, 179–81.

Defendants respond that MPD’s interrogation of Montgomery is outside the scope of Title II

because it was not a program that was intended to benefit Montgomery, or a program that he was

excluded from participating in. Mot. at 12 (arguing that the ADA exclusively “protects the rights

of disabled persons to public benefits or to participation in a public program”); see also Reply in

Supp. of Defs.’ Mot. to Dismiss [ECF No. 18] at 6–7 (“[T]he text of Title II of the ADA does not

contemplate the provision of accommodations to a suspect in a police investigation.”).

         The Court rejects defendants’ categorical assertion that Title II does not apply to arrests

and interrogations. Contrary to defendants’ supposition, a public entity need not intend to benefit

an individual through a program or activity to be subject to Title II. On its face, the statutory

language of Title II establishes two separate circumstances under which a qualified individual with

a disability might have a claim against a public entity: (1) the individual was “excluded from

participation in or . . . denied the benefits of the services, programs, or activities of a public entity,”

or (2) the individual was “subjected to discrimination by any such entity.”11 42 U.S.C. § 12132;

see Williams v. Taylor, 529 U.S. 362, 404 (2000) (applying the “cardinal principle of statutory



         11 Similarly, section 504 establishes three sets of circumstances under which a qualified individual has a claim
against a public entity subject to the statute: (1) the individual was excluded from participation in, (2) denied the
benefits of, or (3) subjected to discrimination under any of the entity’s programs or activities. See 29 U.S.C. § 794(a).

                                                          16
construction” requiring courts to “give effect, if possible, to every clause and word of a statute,”

including independent clauses); see also Haberle v. Troxell, 885 F.3d 170, 180 (3d Cir. 2018)

(explaining that Title II “is framed in the alternative” and allows a plaintiff to “attempt to show an

ADA claim under [only] the final clause in the . . . statute”).

       Every court of appeals to have considered the question has found that Title II applies to

police conduct under at least the second provision. See Gray v. Cummings, 917 F.3d 1, 16 (1st

Cir. 2019) (accepting the “uncontroversial premise that the . . . activities of a municipal police

department are generally subject to the provisions of Title II of the ADA”); Haberle, 885 F.3d at

180 (“[W]e believe that [Title II of] the ADA can indeed apply to police conduct . . . .”); Seremeth

v. Bd. of Cty. Comm’rs Frederick Cty., 673 F.3d 333, 338 (4th Cir. 2012) (holding that “the ADA

applies to police interrogations”); Bircoll v. Miami-Dade Cty., 480 F.3d 1072, 1084–85 (11th Cir.

2007) (deciding that police officers may subject individuals to discrimination under Title II

regardless of whether arrests qualify as a program, service, or activity); Hainze v. Richards, 207

F.3d 795, 801–02 (5th Cir. 2000) (holding that Title II applies to police conduct after the officers

responding to a disturbance have secured the scene and ensured that there is no threat to human

life); Gohier v. Enright, 186 F.3d 1216, 1221 (10th Cir. 1999) (“[A] broad rule categorically

excluding arrests from the scope of Title II . . . is not the law.”). So too have other courts in this

district. See, e.g., Sacchetti v. Gallaudet Univ., 181 F. Supp. 3d 107, 128–30 (D.D.C. 2016) (noting

that, while the exact “extent to which Title II of the ADA applies to arrests and post-arrest conduct

by police officers . . . is not yet settled,” a plaintiff may plausibly state a claim “under Title II of

the ADA against the MPD for failure to accommodate [a plaintiff’s] disabilities,” including an

obvious “mental illness,” during and after arrest).




                                                  17
         This Court agrees. Congress enacted the ADA “to provide a clear and comprehens ive

national mandate for the elimination of discrimination against individuals with disabilities.” 42

U.S.C. § 12101(b)(1). To that end, the ADA “must be interpreted broadly to include the ordinary

operations of a public entity in order to carry out the purpose of prohibiting discriminatio n. ”

Gorman v. Bartch, 152 F.3d 907, 913 (8th Cir. 1998). Hence, reading the “‘subjected to

discrimination’ phrase in Title II” as “a catch-all phrase that prohibits all discrimination by a public

entity,” Haberle, 885 F.3d at 180, including in the arrest and interrogation contexts, comports both

with the text and purpose of the ADA. 12 Drawing all reasonable inferences in plaintiff’s favor, the

detailed allegations of MPD’s failure to accommodate Montgomery’s obvious disability during

his arrest and interrogation, see Compl. ¶¶ 21–23, 113–118, 171–199, are enough, at this stage, to

state a plausible claim, see Gohier, 186 F.3d at 1220–21; Sacchetti, 181 F. Supp. 3d at 129.

Whether the specific arrest or post-arrest conduct plaintiff alleges here in fact amounts to

discrimination under Title II is best addressed on a more fully-developed record. See Sacchetti,

181 F. Supp. 3d at 130 (“Whether [plaintiff] can establish that the MPD officers’ alleged conduct

amounted to a denial of reasonable accommodation[] for [plaintiff’s] disabilities is a question

properly reserved for resolution until a meaningful opportunity for discovery is provided.”).

         Defendants raise one additional argument. Even if the ADA applies to police conduct, they

say, plaintiff has failed to state a claim for compensatory damages because he has not adequately

alleged intentional discrimination by the District. Mot. at 14; Sacchetti, 181 F. Supp. 3d at 126

(“A plaintiff may recover compensatory damages for violations of Title II of the ADA . . . [only]

if he proves that the defendant’s discriminatory actions were intentional.”) (quoting Pierce, 128 F.


         12 As pointed out in Sacchetti, 181 F. Supp. 3d at 129 n.11, this conclusion is further confirmed by regulations

implementing Title II of the ADA, which broadly provide that public entities like MPD “shall take appropriate steps
to ensure that communications with . . . members of the public . . . with disabilities are as effective as communications
with others.” 28 C.F.R. § 35.160(a)(1) (emphasis added).

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Supp. 3d at 278); see Haberle, 885 F.3d at 181 (the remedy of compensatory damages under Title

II “is not available absent proof of intentional discrimination”) (citation and internal quotation

marks omitted).

       The Court finds that plaintiff has adequately alleged intentional discrimination. Neither

party disputes that, to state a claim for intentional discrimination under Title II or section 504, a

plaintiff must sufficiently allege at least “deliberate indifference,” defined in this context as

“knowledge that a harm to a federally protected right is substantially likely, and a failure to act

despite that likelihood.” Pierce, 128 F. Supp. 3d at 278–79 (citation omitted) (collecting cases).

Courts in this district have found that standard satisfied where MPD officers or other District

personnel were allegedly aware that a suspect or arrestee had a disability, but nevertheless failed

to assess whether accommodations were necessary, or to provide those accommodations.               See

Sacchetti, 181 F. Supp. at 126 (holding that plaintiff successfully stated a claim for intentio na l

discrimination under Title II where “MPD knew that [the plaintiff] was . . . suffering from a mental

illness, . . . and despite this knowledge, failed to . . . transport him to a medical or mental health

facility”); Pierce, 128 F. Supp. 3d at 279 (finding that plaintiff “easily satisfie[d]” the “deliberate

indifference” standard under Title II . . . where “[t]he District’s employees and contractors knew

that [the plaintiff] had a hearing disability, and yet they did not undertake an assessment of the

accommodations that [he] might need in order to access prison services”).

       Here, plaintiff has not only alleged that MPD employees failed to assess whether

Montgomery needed an accommodation during his interrogations, but also that they willfully took

advantage of his disability.      Due to Montgomery’s “fractured thoughts and disconnected

sentences” during a several-hour interrogation, plaintiff alleges, Officer Wise paused to “ask . . .

Montgomery if he had a mental illness,” to which Montgomery responded, “if I’m talkin’ to myself


                                                  19
I’ll – you know, I’ll go to a psychiatrist.” Compl. ¶¶ 17, 116. The video of the interrogation also

shows, according to plaintiff, that Montgomery was “in an active psychotic state[,] hearing voices

and speaking to voices he heard.” Id. ¶ 117. Despite clearly being aware of Montgomery’s mental

impairment and inability to comprehend the proceedings based on this behavior, plaintiff alleges,

neither Wise nor Nasr made “any modification or accommodation to their interrogation . . . to

ensure [Montgomery] was able to communicate and understand the information given to him.” Id.

¶ 23.    Moreover, plaintiff continues, the officers proceeded to “intentionally . . . exploit

[]Montgomery’s mental illness,” id. ¶ 20, “prey[ing] on . . . [his] inability to communicate and

understand” the questions asked, id. ¶ 118. These allegations satisfy plaintiff’s burden to plausibly

claim that the District, through its officers, exhibited deliberate indifference to their duties under

the ADA and the Rehabilitation Act. 13

         Having rejected defendants’ challenges to plaintiff’s Title II and section 504 claims, the

Court will deny defendants’ motion to dismiss Counts VIII and IX.




          13 Relying on the Third Circuit’s decision in Haberle, defendants suggest that, in bringing an intentional

discrimination claim under Title II and section 504, plaintiff may not rely on “the specific acts of the detectives,” but
only on the District’s express policies. Mot. at 14 (citing Haberle, 885 F.3d at 181). But Haberle did not reach whether
conduct by a public entity’s employees may be relied on to state a Title II claim for intentional discrimination. Instead,
the court there determined that a plaintiff can rely on a public entity’s policies and practices to establish deliberate
indifference—but that plaintiff’s attempt to do so failed. See Haberle, 885 F.3d at 181 (rejecting the plaintiff’s
“general allegations that the [public entity] has ‘a history of violating the civil rights of residents’”). And, in this and
other jurisdictions, courts frequently have permitted plaintiffs asserting intentional discrimination to rely on the
specific action, or lack of action, taken by police officers or other public-entity personnel in failing to provide
reasonable accommodation. See, e.g., J.H. ex rel. J.P. v. Bernalillo Cty., 806 F.3d 1255, 1261 (10th Cir. 2015) (relying
on individual officer’s conduct and knowledge to resolve plaintiff’s reasonable accommodation claim); Gorman, 152
F.3d at 913 (noting that whether plaintiff “can prove he was discriminated against” under Title II and section 504 turns
on “[t]he facts of what actually occurred on the night of the arrest,” including police officers’ conduct); Sacchetti, 181
F. Supp. 3d at 130 (finding allegations concerning “MPD officers’ alleged conduct” in failing to offer reasonable
accommodation sufficient to state a claim against the District under the ADA) (emphasis added); Pierce, 128 F. Supp.
3d at 279 (finding deliberate indifference where “[t]he District’s employees and contractors knew that [plaintiff] had
a hearing disability, and yet they did not undertake an assessment of the accommodations that Pierce might need in
order to access prison services”) (emphases added). Moreover, the District itself has previously conceded that “a
public entity can be held liable under the ADA for deliberate indifference of its employees or agents.” Hunter ex rel.
A.H. v. District of Columbia, 64 F. Supp. 3d 158, 170 (D.D.C. 2014). The Court therefore rejects defendants’
suggestion that plaintiff cannot rely on the “specific acts” of Officers Wise and Nasr here.

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                                        CONCLUSION

       For the foregoing reasons, the Court will grant defendants’ motion to dismiss Counts IV

and VII, and deny the motion as to Counts VIII and IX. A separate order will issue on this date.



                                                                  /s/

                                                           JOHN D. BATES

                                                       United States District Judge


Dated: August 5, 2019




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