                                                                                 FILED
                                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                         Tenth Circuit

                             FOR THE TENTH CIRCUIT                            July 26, 2019
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
 CAROLYN HANS,

       Plaintiff - Appellant,

 v.                                                          No. 18-3096
                                                   (D.C. No. 5:16-CV-04117-DDC)
 BOARD OF SHAWNEE COUNTY                                      (D. Kan.)
 COMMISSIONERS; HERMAN T.
 JONES,

       Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before BRISCOE, LUCERO, and PHILLIPS, Circuit Judges.
                   _________________________________

      Carolyn Hans appeals the district court’s grant of summary judgment in favor

of defendants. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

                                           I

      The parties are familiar with the facts, which we do not need to describe in

detail. Briefly, Hans, who is deaf, was arrested by Shawnee County Sheriff’s Office

Deputy Justin Dobler and Corporal Jace Beightel following a domestic dispute. She

sued the Board of County Commissioners of Shawnee County and Herman Jones,



      *
         This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Shawnee County Sheriff, in his official capacity. Hans brought claims under: (1) 42

U.S.C. § 1983; (2) Title II of the Americans with Disabilities Act (“ADA”); and (3)

Kansas tort law. The district court granted summary judgment in favor of defendants

on all claims. Hans appealed.

                                            II

      We review the district court’s grant of summary judgment de novo. Water Pik,

Inc. v. Med-Systems, Inc., 726 F.3d 1136, 1143 (10th Cir. 2013). We view the facts

in the light most favorable to Hans, the non-moving party, and draw all reasonable

inferences in her favor. Talavera ex rel. Gonzalez v. Wiley, 725 F.3d 1262, 1267

(10th Cir. 2013).

                                            A

      Hans alleges that defendants violated her Fourth Amendment rights when their

employees arrested her without probable cause. To prevail on this claim, Hans must

demonstrate, inter alia, that there is a dispute of material fact as to whether the

officers had probable cause to arrest her. Cottrell v. Kaysville City, 994 F.2d 730,

733 (10th Cir. 1993) (“A Plaintiff may recover damages under § 1983 for wrongful

arrest if she shows she was arrested without probable cause.”). We review whether

there was probable cause under an objective standard:

      Probable cause exists when the facts and circumstances within the
      officers’ knowledge, and of which they have reasonably trustworthy
      information, are sufficient in themselves to warrant a man of reasonable
      caution in the belief that an offense has been or is being committed and
      that the person . . . was involved in the crime.



                                            2
Patel v. Hall, 849 F.3d 970, 981 (10th Cir. 2017) (quotation omitted). The offense in

question is Kansas domestic battery, which requires “[k]nowingly causing physical

contact with a family or household member . . . in a rude, insulting or angry manner.”

Kan. Stat. § 21-5414(a)(2) (2015).

      It is undisputed that Hans admitted to the arresting officers that she made

physical contact with her husband. Having reviewed the entire record, including a

body camera video of Hans’ interactions with law enforcement, we are satisfied that

reasonably cautious officers would have concluded the contact occurred in an angry

manner. Although Hans characterizes the physical contact as minor, the statements

made to police by Hans’ husband and her own reenactment of the contact provided

probable cause for her arrest. Accordingly, defendants are entitled to summary

judgment on Hans’ § 1983 claim.

                                          B

      Hans seeks compensatory damages under Title II of the ADA, alleging

defendants failed to accommodate her disability. We have previously held that “[t]o

recover compensatory damages under § 504 [of the Rehabilitation Act], a plaintiff

must establish that the agency’s discrimination was intentional.” Barber ex rel.

Barber v. Colo. Dep’t of Revenue, 562 F.3d 1222, 1228 (10th Cir. 2009) (citation

omitted). And we “look to decisions construing the Rehabilitation Act to assist us in

interpreting analogous provisions of the ADA.” J.V. v. Albuquerque Pub. Sch., 813

F.3d 1289, 1298 n.6 (10th Cir. 2016) (quotation omitted).



                                          3
      Further, several of our sibling circuits have directly held that a plaintiff cannot

recover compensatory damages under Title II of the ADA without establishing

intentional discrimination. See McCullum v. Orlando Reg’l Healthcare Sys., Inc.,

768 F.3d 1135, 1146-47 (11th Cir. 2014) (“To prevail on a claim for compensatory

damages under either the [Rehabilitation Act] or the ADA, a plaintiff must show that

a defendant violated his rights under the statutes and did so with discriminatory

intent.”); Nieves-Marquez v. Puerto Rico, 353 F.3d 108, 126 (1st Cir. 2003); Delano-

Pyle v. Victoria Cty., 302 F.3d 567, 574 (5th Cir. 2002); Duvall v. Cty. of Kitsap,

260 F.3d 1124, 1138 (9th Cir. 2001). We agree. Title II of the ADA provides for

remedies available under the Rehabilitation Act, 42 U.S.C. § 12133, which in turn

provides for remedies available under Title VI of the Civil Rights Act of 1964, 29

U.S.C. § 794a(a)(2). And the Supreme Court has held that plaintiffs cannot “recover

compensatory damages under Title VI except for intentional discrimination.”

Alexander v. Sandoval, 532 U.S. 275, 283 (2001).1

      Hans needs to show on the merits that the alleged failure to accommodate was

intentional in order to recover compensatory damages. The district court concluded

that Hans waived the opportunity to assert intentional discrimination because she did

not include such a theory in the Pretrial Order. See Tyler v. City of Manhattan, 118



      1
       Hans argues there is a circuit split on this issue, citing to cases discussing the
ADA in the context of claims for equitable relief. See, e.g., Helen L. v. DiDario, 46
F.3d 325, 328 (3rd Cir. 1995). She does not cite any cases holding that compensatory
damages are available absent intentional discrimination.

                                           4
F.3d 1400, 1404 (10th Cir. 1997) (affirming district court order striking claim for

compensatory damages because Pretrial Order did not allege intentional

discrimination). On appeal, Hans fails to address this ruling. See Tran v. Trs. of

State Colls. in Colo., 355 F.3d 1263, 1266 (10th Cir. 2004) (“Issues not raised in the

opening brief are deemed abandoned or waived.” (quotation omitted)). Because Hans

does not challenge the district court’s basis for rejecting her entitlement to

compensatory damages under Title II, we do not disturb that ruling.2




       2
          The dissent asserts that Hans adequately addressed this preservation
argument in her opening brief. We disagree. She discussed Tyler in the context of
whether plaintiffs are required to show intentional discrimination as part of their
reasonable accommodation claims, but did not explain why the district court’s
separate preservation ruling was incorrect. Opening Br. 31-32.
       But even assuming Hans did not need to plead intentional discrimination in the
pretrial order, we would still affirm. We agree with the dissent that “intentional
discrimination can be inferred from a defendant’s deliberate indifference to the
strong likelihood that pursuit of its questioned policies will likely result in a violation
of federally protected rights.” Barber, 562 F.3d at 1228 (quotation omitted)
(discussing Rehabilitation Act). But “[t]he failure to act must be more than negligent
and involve an element of deliberateness.” Albuquerque Pub. Sch., 813 F.3d at 1298
(quotations omitted). And the district court ruled (in the alternative) that Hans has
not created a material dispute as to deliberate indifference. The dissent contends that
deputies may have been deliberately indifferent to a strong likelihood of ineffective
communication. See 28 C.F.R. § 35.160(a)(1) (public entities must “take appropriate
steps to ensure that communications with applicants, participants, members of the public,
and companions with disabilities are as effective as communications with others”).
However, our review of the summary judgment record shows that the deputies sought
to communicate effectively with Hans and were at worst negligent rather than
deliberately indifferent. See Bircoll v. Miami-Dade Cty., 480 F.3d 1072, 1087 (11th
Cir. 2007) (“In many circumstances, oral communication plus gestures and visual
aids or note writing will achieve effective communication.”).
                                             5
                                              C

         Hans alleges three violations of Kansas tort law: (1) false arrest; (2) negligent

training and supervision; and (3) intentional infliction of emotional distress.

         Under Kansas law, a false arrest claim requires the restraint of an individual

without legal excuse. See Mendoza v. Reno Cty., 681 P.2d 676, 678 (Kan. 1984). If

the undisputed facts show that officers had probable cause to arrest plaintiff, she

cannot prevail on a false arrest claim. Id. Given our previous determination that the

officers had probable cause, defendants are entitled to summary judgment on this

claim.

         Defendants are also entitled to summary judgment on Hans’ negligent training

and supervision claim because plaintiff has not “establish[ed] facts showing that

more or better training would have prevented the harm.” Estate of Belden v. Brown

Cty., 261 P.3d 943, 968 (Kan. 2011). Hans has not explained what additional

training should have been provided or how such additional training would have

prevented the harm. Similarly, Hans has not adduced facts that would allow a

reasonable jury to find defendants engaged in negligent supervision through

“inadequate oversight and review of an employee in the performance of [the

employee’s] job duties or failing to control an employee with propensities that might

pose a danger.” Id.

         As to Hans’ intentional infliction of emotional distress claim, the district court

concluded that Hans’ summary judgment response failed to identify admissible

evidence sufficient to meet the elements of the tort. On appeal, Hans merely states,

                                              6
without citations to the record or relevant legal authority, that the same conduct

giving rise to her other causes of action also established liability for intentional

infliction of emotional distress. An argument advanced by “mere conclusory

allegations with no citations to the record or any legal authority for support” is

insufficient to preserve appellate review. Garrett v. Selby Connor Maddux & Janer,

425 F.3d 836, 841 (10th Cir. 2005).

                                           III

       For the foregoing reasons, the district court’s grant of summary judgment in

favor of defendants is AFFIRMED.


                                             Entered for the Court


                                             Carlos F. Lucero
                                             Circuit Judge




                                            7
No. 18-3096, Hans v. Board of Shawnee County Commissioners, et al.

PHILLIPS, J., concurring in part and dissenting in part.

       Carolyn Hans sued the Board of County Commissioners of Shawnee County and

the Shawnee County Sheriff, asserting claims for relief under 42 U.S.C. § 1983, Title II

of the Americans with Disabilities Act (ADA), and Kansas law. I join Part II.A of the

majority opinion affirming summary judgment on her wrongful-arrest claims. But I

dissent from Part II.B affirming summary judgment on her ADA claims. Because the

underlying factual allegations bear on both claims, I briefly summarize them below.

                                    BACKGROUND

       Carolyn Hans lives in Topeka, Kansas. She was born deaf to deaf parents and

primarily communicates by American Sign Language (ASL). Carolyn can lip read just a

“tiny, little bit,” about “one or two words at a time.” Hans’s App. vol. 3 at 455. When she

communicates with non-deaf people, she usually uses gestures or writes notes.

       On the evening of April 3, 2015, Carolyn dialed 911 to report a domestic dispute

with her husband, Raymond Hans. The dispatcher spoke with Raymond and sent Deputy

Justin Dobler and Corporal Jace Beightel of the Shawnee County Sheriff’s Office to the

Hans home. Corporal Beightel (but not Deputy Dobler) was wearing a body camera, and

the video captures much of the ensuing encounter. The deputies knew that Carolyn was

deaf, so they spoke loudly and slowly to her. Carolyn generally understood the deputies’

questions, but the deputies sometimes had difficulty understanding her.

       After about ten minutes of interviewing the couple, the deputies had learned

(1) that Carolyn wanted to drive away from the house after an argument with Raymond;
(2) that Raymond had begun draining the air from Carolyn’s car tire to stop her from

leaving; and (3) that Carolyn had pushed Raymond away from the tire so he could not

flatten it. In addition, the deputies learned from Raymond that Carolyn had “stomped” on

his hand, Defs.’ Ex. 11 at 01:38, 05:08, but later heard him retract that allegation,

admitting that Carolyn’s poor equilibrium had caused her to accidentally step on his hand

while pushing him, Defs.’ Ex. 12 at 02:15. Deputy Dobler told Raymond that Carolyn

was “protecting her property,” and that “[i]f you came up to my car and I saw you

messing with it, I’d push you away from it too.” Defs.’ Ex. 11 at 05:14, 05:38. Deputy

Dobler then asked, “So what do we need to do to resolve this? She wants her keys, so she

can drive [and] let stuff cool off.” Id. at 05:49. Raymond responded, “That would be

wise.” Id. The deputies decided that because Carolyn had not intentionally stepped on

Raymond’s hand, no battery had occurred. Defs.’ Ex. 12 at 04:07.

       Carolyn tried to communicate several times that she wanted to retrieve her suitcase

from her bedroom. The deputies could not understand her, so they asked Raymond for

help. Raymond listened to her and told them that she needed to go upstairs to get a

suitcase packed. As she left the house with the packed suitcase, intending to stay at her

cousin’s house, Corporal Beightel confronted her and asked, “Do you understand you

were this close [gesturing with his fingers] to going to jail?” Defs.’ Ex. 13 at 04:50.

Carolyn became upset, protesting with further details about the domestic encounter.

       She walked to the driveway, picked up a dog biscuit off the concrete, and

explained to Corporal Beightel (with words and gestures) that after she pushed Raymond

from the tire, Raymond had thrown the dog biscuit at her, hitting her in the eye. Corporal


                                              2
Beightel went back inside the house and asked Raymond whether he had thrown a dog

biscuit at Carolyn. Raymond denied it, asking, “where would I get a dog treat?” Defs.’

Ex. 13 at 07:20. Corporal Beightel responded, “The dog treat is out there!” Id. Raymond

replied, “Oh, when she came home, she carries them in the car. Usually, I’ll open the

garage, the dogs will come out, and we give them a treat. With all of the arguing, it was

probably one of the dogs [inaudible]. I didn’t throw nothing at her, honest to God.” Id. at

07:32. At that point, Corporal Beightel said, “Ok, she’s going to jail. . . . She told us you

threw something that hit her in the eye. . . . What she did, after she had been explained

about going to jail, was a different description of what she said the first time. So, she’s

going to jail.” Id. at 07:52.1 The officers offered Raymond the opportunity to provide a

formal written statement, which he declined.

       Despite having struggled to understand what Carolyn was trying to communicate,

the deputies never called an ASL interpreter or gave Carolyn a chance to write down her

version of events that supposedly were a change of story. Deputy Dobler had initially

allowed her to write down what happened in his pocket notebook, but he had put the

notebook away after about five to ten minutes, because he “felt it wasn’t necessary” and

believed they “were able to communicate very effectively” without the notebook. Hans’s

App. vol. 1 at 172. In addition, despite a county policy advising that “where possible a



       1
         As Carolyn explained the dog-biscuit incident, she made a kicking motion. See
Defs.’ Ex. at 05:16, 06:32. The defendants argue that the deputies arrested her because
they believed that she had kicked Raymond. But Corporal Beightel—the officer who
made the decision to arrest Carolyn—testified that he did not recall having seen Carolyn
make a kicking motion. Defs.’ Ex. 13 at 07:52; Hans’s App. vol. 3 at 52.

                                              3
written statement should be obtained from any suspect,” see id. vol. 2 at 356, the deputies

did not invite Carolyn to provide a formal written statement, as they had done for

Raymond. Deputy Dobler testified that a written statement from Carolyn was

unnecessary, because he had already decided that he had probable cause to arrest her and

that “it wouldn’t have been practical from a safety point of view.” Id. vol. 3 at 501. But

he also testified that Carolyn posed no safety threat. Id. at 502, 505 (answering “no” to

the question “[a]t any time did you fear for your safety as it related to Ms. Hans?” and to

the question “[w]as there ever any time during that interaction that you felt like life or []

safety w[ere] really on the line?”).

       Ultimately, the deputies arrested and jailed Carolyn because they believed she had

changed her story about something (though it’s not clear what). During her booking into

the county jail, Hans was not provided an ASL interpreter. One of the booking officers

testified that he remembered allowing Hans to write notes, while another had no

recollection of the booking. For her part, Hans testified that the booking officers did not

offer her the opportunity to write down her answers to the questions. The officers placed

Hans on suicide watch, purportedly because she had answered “a little bit” to the

question “are you feeling hopeless or helpless?” Id. vol. 1 at 131–36. Hans denies having

given such an answer. During her jailing, Carolyn was strip searched, and, despite her

requests to use a toilet, told to urinate into a grate on the floor. Carolyn was later released,

and the district attorney declined to file charges. Carolyn then brought this suit.2 The



       2
           Hans asserted ADA claims based on both her arrest and her jailing.

                                               4
district court granted summary judgment for the defendants on all Hans’s claims, and

Hans has appealed.

                                      DISCUSSION

   I. Wrongful-Arrest Claims

       I agree with the majority that Hans’s wrongful-arrest claims fail as a matter of law,

because the deputies had an objectively reasonable basis to believe that Hans had

committed Kansas domestic battery—that is, she had “knowingly caus[ed] physical

contact with” a family member in a “rude, insulting or angry manner.” Kan. Stat. § 21-

5414(a)(2) (2015). Hans admits that she pushed her husband, so even if the deputies had

called an ASL interpreter, based on Carolyn’s later account of events, the deputies would

still have had a reasonable, objective basis supporting probable cause that Hans had

committed Kansas domestic battery.3 Cf. Heien v. North Carolina, 135 S. Ct. 530, 536

(2014) (holding that “reasonable suspicion can rest on a mistaken understanding of the

scope of a legal prohibition”).

       But for the many reasons spelled out below, I would reverse the district court’s

ruling on Hans’s ADA Title II reasonable-accommodation claims.


       3
         I do wonder whether Carolyn’s pushing Raymond away from the tire he was
trying to flatten to keep her from escaping the domestic dispute, even if done while
angry, is necessarily contact “done in a rude, insulting or angry manner.” See Kan. Stat.
§ 21-5414(a)(2) (2015). But the parties didn’t brief this issue. Instead, Hans argues that
she had a right to defend her property under Kansas law. She is correct that Kansas police
officers must consider whether someone is defending her property when making
probable-cause determinations, see Kan. Stat. § 21-5231(a), but Carolyn’s husband
apparently co-owned the car, see id. at § 23-2801, and I cannot say that Kansas’s defense-
of-property statute extends as far as allowing force to prevent other co-owners from
damaging property.

                                             5
   II. Title II Claims

       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. From this language, our circuit has recognized

three types of claims: “(1) intentional discrimination (disparate treatment); (2) disparate

impact; and (3) failure to make a reasonable accommodation.” J.V. v. Albuquerque Pub.

Sch., 813 F.3d 1289, 1295 (10th Cir. 2016). Each type of claim involves a different form

of discrimination. The first type, disparate treatment, occurs when a defendant

intentionally treats a disabled plaintiff less favorably than similarly situated non-disabled

people. Cinnamon Hills Youth Crisis Ctr., Inc. v. Saint George City, 685 F.3d 917, 919

(10th Cir. 2012). The second type, disparate impact, “doesn’t require proof of intentional

discrimination,” but rather occurs when a facially neutral policy disproportionately and

negatively impacts the disabled (generally proved with statistical evidence). Id. at 922.

The third type, failure to make a reasonable accommodation, occurs when the entity was

on notice of the need for an accommodation, either because the plaintiff asked for one or

the need was obvious, and the proposed accommodation was reasonable.4 Albuquerque

Pub. Sch., 813 F.3d at 1299.




       4
        Our court has held that Title II applies to arrests, 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.”), as well as “det[ention] in a county jail,” Robertson
v. Las Animas Cty. Sheriff’s Dep’t, 500 F.3d 1185, 1193 (10th Cir. 2007).

                                               6
       For her Title II claims, Hans pleaded two claims for failure to provide a

reasonable accommodation. The district court elected not to “decide whether a genuine

issue of material fact exists about [Hans’s] ability to make a submissible case on these

claims because [it] determine[d] that [Hans] cannot recover compensatory damages under

Title II of the ADA without establishing intentional discrimination.” Hans v. Bd. of

Shawnee Cty. Commissioners, No. 16-4117-DDC, 2018 WL 1638503, at *16 (D. Kan.

Apr. 5, 2018). The majority does the same. Maj. Op. at 3–5. Because I would reverse the

district court on its compensatory-damages ruling, I first explain why I would also

conclude that Hans has raised a genuine issue of material fact on her reasonable-

accommodation claim.

       First, a jury could reasonably conclude that the need for an accommodation was

obvious,5 because the deputies knew Hans was deaf, and the video demonstrates that they

had considerable difficulty trying to understand what she was saying. Second, Hans has

identified two accommodations that a jury could find reasonable.6 Hans claims (and the

defendants do not dispute) that “an ASL interpreter was literally a phone call away.”

Appellant’s Opening Br. at 36. In addition, she asserts that the deputies should have at



       5
         Hans did not request an accommodation, so the question is whether the need for
an accommodation was “obvious” to the defendants. See Robertson, 500 F.3d at 1197
(“When a disabled individual’s need for an accommodation is obvious, the individual’s
failure to expressly ‘request’ one is not fatal to the ADA claim.”).
       6
        The regulations effectuating the ADA make clear that, where necessary and
practicable, a public entity must provide hearing-impaired individuals with
accommodations to ensure that it can communicate with them “as effective[ly]” as it does
with others. 28 C.F.R. § 35.160(a)(1); see also id. at § 35.160(b), (c).

                                             7
least given her “an opportunity to write out her account of the events” and “to participate

in follow-up questions.” Id. Indeed, Deputy Dobler allowed Hans to write down her story

in his pocket notebook early in the interaction, but the deputies did not offer her the same

accommodation later in the interaction, soon before arresting her. Accordingly, under our

court’s Title II caselaw, a reasonable factfinder could conclude that the defendants failed

to reasonably accommodate Hans and thus “denied [her] the ability to participate in

[emergency services] to the same extent as non-disabled individuals.” See Robertson, 500

F.3d at 1199.

       Having concluded that Hans has raised the needed genuine issues of material fact,

I now turn back to the district court’s rationale for granting summary judgment against

her two reasonable-accommodation claims. The district court concluded that Hans

“cannot recover compensatory damages under Title II of the ADA without establishing

intentional discrimination.” Hans, 2018 WL 1638503, at *16. It further concluded that

Hans “waived the opportunity to assert intentional discrimination by omitting that claim

from the Pretrial Order” and that, even absent waiver, Hans “failed to establish facts from

which a reasonable jury could find that [the] defendants intentionally discriminated

against her.” Id. This analysis suffers fatal defects.

       A. Hans didn’t need to plead “intentional discrimination” to be entitled to
          compensatory damages.
       The majority opinion traces a chain from Title VI to the Rehabilitation Act to Title

II, which it concludes requires pleading intentional discrimination (not a standalone




                                               8
disparate-treatment claim)7 as a prerequisite to compensatory damages. Id. at 4. In this

regard, the majority cites four circuits reaching that conclusion. Id. (citing McCullum v.

Orlando Reg’l Healthcare Sys., Inc., 768 F.3d 1135, 1146-47 (11th Cir. 2014); Nieves-

Marquez v. Puerto Rico, 353 F.3d 108, 126 (1st Cir. 2003); Delano-Pyle v. Victoria Cty.,

302 F.3d 567, 574 (5th Cir. 2002); Duvall v. Cty. of Kitsap, 260 F.3d 1124, 1138 (9th Cir.

2001)). The majority concludes that these cases support its result—affirming dismissal of

Hans’s Title II reasonable-accommodation claims on grounds that she has waived

compensatory damages (the only remedy she sought for this violation) by not pleading

intentional discrimination. Id. In my view, the majority errs in three ways.

       First, though the cited circuit cases and others on the same point8 require Title II

plaintiffs to prove intentional discrimination to obtain compensatory damages, none of

these cases create any pleading requirements. Doing so now certainly takes us from the

mainstream.

       Second, the majority relies on Tyler v. City of Manhattan, 118 F.3d 1400, 1404

(10th Cir. 1997), as support for this newfound pleading requirement. In a parenthetical,


       7
         Much confusion stems from the circuit courts indiscriminately using the term
“intentional-discrimination.” When used to describe the nature of a claim, courts often
use the term interchangeably with “disparate treatment.” See, e.g., Albuquerque Pub.
Sch., 813 F.3d at 1295. But many courts also use the term to describe the level of
culpability necessary to obtain compensatory damages, using “intentional discrimination”
interchangeably with “deliberate indifference.” See Part II.C infra.
       8
         I have found four other circuits that have adopted the same rule. See Lacy v.
Cook Cty., Illinois, 897 F.3d 847, 863 (7th Cir. 2018); S.H. ex. rel. Durrell v. Lower
Merion Sch. Dist., 729 F.3d 248, 262 (3d Cir. 2013); Meagley v. City of Little Rock, 639
F.3d 384, 389 (8th Cir. 2011); Powell v. Nat’l Bd. of Med. Examiners, 364 F.3d 79, 89
(2d Cir. 2004).

                                              9
the majority describes Tyler as a case “affirming [a] district court order striking [a] claim

for compensatory damages because [the] Pretrial Order did not allege intentional

discrimination.” Maj. Op. at 4–5. From this the majority concludes that Hans is not

entitled to compensatory damages under Title II. This misstates Tyler. In fact, Tyler

analyzed compensatory damages as requiring the pleading of intentional discrimination

simply because the parties had proceeded on that basis. 118 F.3d at 1403 (“Tyler does not

contest the district court’s ruling that intentional damages must be pleaded and proved in

order to recover compensatory damages for mental and emotional distress under the

ADA.”). Id. at 1403–04 (emphasis added).

       Third, the majority asserts that “Hans fails to address [Tyler’s] ruling” and

therefore has “waived” the opportunity to “challenge the district court’s basis for

rejecting her entitlement to compensatory damages under Title II.” Maj. Op. at 5. But

Hans argued in her opening brief that Tyler “did not determine that a party could not

recover damages if they did not plead intentional discrimination” and that it was

“inappropriate [for the district court] to say that such is the holding of the Tyler decision.”

Appellant’s Opening Br. at 32. Hans therefore did address Tyler and did challenge the

district court’s basis for concluding that Tyler created a new pleading requirement.

       Whether Title II plaintiffs must plead or prove intentional discrimination to obtain

compensatory damages are still open questions in our circuit. This is borne out by a case

decided two years after Tyler. In Davoll v. Webb, our court concluded that the district

court had not plainly erred by not instructing that compensatory damages for reasonable-

accommodation claims require a showing of intentional discrimination under Title II. 194


                                              10
F.3d 1116, 1141–42 (10th Cir. 1999). With our circuit’s law being so undeveloped, I

believe it unfair to dismiss Hans’s Title II reasonable-accommodation claims for failure

to do something we have not yet required—plead intentional discrimination to support

compensatory damages for a reasonable-accommodation claim. See Travelers Indem. Co.

v. U.S., for Use of Constr. Specialties Co., 382 F.2d 103, 106 (10th Cir. 1967) (“The ends

of justice are not served when forfeiture of just claims because of technical rules is

allowed.”).

       B. Hans has sufficiently pleaded intentional discrimination.

       Even if our circuit’s caselaw did require Hans to “plead intentional

discrimination,” I would conclude that she has sufficiently done so. Hans can plead an

ADA Title II reasonable-accommodation claim without pleading the words “intentional

discrimination” as part of her reasonable-accommodation claim. Even if Tyler governed

Hans’s case, Tyler did not require explicitly pleading the words “intentional

discrimination.” Instead, it spoke of the pretrial order’s “not describ[ing] acts of

intentional wrongdoing,” and lacking alleged “specific acts of intentional discrimination

against [the plaintiff] in particular.” 118 F.3d at 1403. Applying that same test here, and

drawing all reasonable inferences in her favor, Hans’s pleadings allege intentional

wrongdoing. See Hans’s App. vol. 1 at 17 (“Hans was denied full access to the County’s

services, strictly because of her status as a disabled person.”); id. at 19 (“Hans was

repeatedly and disturbingly denied full access to the County’s services strictly because of

her status as a disabled person.”). See also Nieves-Marquez v. Puerto Rico, 353 F.3d 108,




                                             11
126 (1st Cir. 2003) (“[W]ith all reasonable inferences drawn in its favor, [the complaint]

alleges intentional discrimination.”).9

       C. Hans has created a genuine issue of material fact as to intentional
          discrimination.
       As noted, our circuit has yet to decide whether Title II plaintiffs asserting

reasonable-accommodation claims must prove intentional discrimination to be entitled to

compensatory damages. The district court relied on our Rehabilitation Act jurisprudence

and caselaw from other circuits to “predict that our Circuit—if presented with the issue—

would require [proving] intentional discrimination to recover compensatory damages

under Title II of the ADA.” Hans, 2018 WL 1638503, at *25. The district court further

concluded that, on this record, no reasonable factfinder could decide that the defendants

intentionally discriminated against Hans. Id. The majority seemingly agrees that Title II

claimants must prove intentional discrimination to be entitled to compensatory damages.

See Maj. Op. at 4. But when our court does ultimately decide this question in a published


       9
          Even if the majority disagrees that Hans has pleaded intentional discrimination,
our court allows parties to “constructively” amend their pleadings in summary-judgment
briefing, so long as there is no prejudice to the opposing party. See Ahmad v. Furlong,
435 F.3d 1196, 1202 (10th Cir. 2006) (“[W]e have held that an affirmative defense was
not waived for trial purposes when it had first been raised in a motion for summary
judgment three months earlier.”). Here, despite having a clear opportunity to move to
dismiss Hans’s complaint for failure to assert intentional discrimination, the defendants
first raised the issue in their motion for summary judgment, long after the close of
discovery and the filing of the pretrial order. In her response brief, Hans argued she did
not need to prove deliberate indifference, and that, even if she did need to, the record
sufficiently established deliberate indifference. Under Ahmad, this was sufficient to put
the defendants on notice that Hans was pursuing an intentional-discrimination theory, and
the defendants cannot credibly allege any prejudice from her failure to allege it in the
pleadings. See 435 F.3d at 1201 (“[S]trict adherence to the pleading requirement is
inappropriate when the purpose of the requirement has been otherwise fulfilled.”).

                                             12
opinion,10 it should note that the circuits that have all reached the same result could be

wrong.11

       In any event, the court need not decide this question at this juncture, because even

assuming that Hans must prove intentional discrimination to be entitled to compensatory

damages, she has raised genuine issues of material fact about whether the defendants

intentionally discriminated against her.

       “[U]nlike some tests for intentional discrimination,” our sister circuits use the

“deliberate indifference” test, which “‘does not require a showing of personal ill will or

animosity toward the disabled person.’” Meagley v. City of Little Rock, 639 F.3d 384, 389

(8th Cir. 2011) (quoting Barber ex rel. Barber v. Colorado Dep’t of Revenue, 562 F.3d

1222, 1228 (10th Cir. 2009)). Deliberate indifference under Title II requires showing that

“the defendant knew that harm to a federally protected right was substantially likely and


       10
         In Tyler, the United States, as amicus curiae, argued that plaintiffs need not
prove intentional discrimination to obtain money damages under Title II, but we opted
not to decide the issue because neither of the parties had raised it. 118 F.3d at 1403.
       11
          See Tyler, 118 F.3d at 1409 (Jenkins, J., dissenting) (noting that requiring a
showing of intentional discrimination to obtain money damages conflicts with the
presumption set forth in Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 72–73
(1992), that “when legal rights have been invaded, and a federal statute provides for a
general right to sue for such invasion, federal courts may use any available remedy to
make good the wrong done”) (internal quotations omitted); Ferguson v. City of Phoenix,
157 F.3d 668, 680 (9th Cir. 1998) (Tashima, J., dissenting) (“The majority’s . . . holding[]
that a Title II plaintiff must prove discriminatory intent, erects a near-insurmountable
wall against the recovery of compensatory damages under the ADA.”); Davoll v. Webb,
194 F.3d 1116, 1142 (10th Cir. 1999) (finding no plain error where district court allowed
compensatory damages without a showing of intentional discrimination); Levorsen v.
Octapharma Plasma, Inc., 828 F.3d 1227, 1230 (10th Cir. 2016) (“[C]ourts must
construe [the ADA] liberally to afford individuals with disabilities access to the same
establishments available to those without disabilities.”).

                                             13
failed to act on that likelihood.” McCullum v. Orlando Reg’l Healthcare Sys., Inc., 768

F.3d 1135, 1147 (11th Cir. 2014); cf. Havens v. Colorado Dep’t of Corr., 897 F.3d 1250,

1264 (10th Cir. 2018).12

       Here, the deputies did not call an ASL interpreter or allow Hans to write down her

version of the events. And the defendants allege no exigencies precluding Hans’s

proposed accommodations. See Bircoll v. Miami-Dade Cty., 480 F.3d 1072, 1086–87

(11th Cir. 2007) (concluding that it would be unreasonable for a police officer to call an

ASL interpreter during a DUI stop because the officer “had to determine quickly, on the

roadside at 3:00 a.m., whether [the plaintiff] was sober enough to drive his car further or

whether to impound his car and arrest him”). In my view, a reasonable jury could

conclude that the deputies knew that Hans’s disability “required [them] to act differently

than [they] would otherwise have acted, yet failed to adjust [their] behavior accordingly.”

See Gray v. Cummings, 917 F.3d 1, 18 (1st Cir. 2019); see also Delano-Pyle v. Victoria

Cty., 302 F.3d 567, 570–75 (5th Cir. 2002) (affirming jury’s finding of deliberate

indifference based on a police officer’s failure to reasonably accommodate a hearing-

impaired individual during a roadside sobriety test) (“Instead of [recognizing that the


       12
          The district court concluded that the record did not establish deliberate
indifference, in part, because it believed that Hans needed to identify a “specific policy”
that violated Hans’s rights. Hans, 2018 WL 1638503, at *20. But our “deliberate
indifference” jurisprudence under the RA, a similar legislative regime, requires only that
the plaintiff prove “(1) the defendant had knowledge that a harm to a federally protected
right was substantially likely, and (2) a failure to act upon that likelihood.” Havens, 897
F.3d at 1264 (internal alterations and quotation marks omitted); see also Delano-Pyle v.
Victoria Cty., 302 F.3d 567, 570–75 (5th Cir. 2002) (holding that “neither a policymaker,
nor an official policy must be identified for claims asserted under the ADA” seeking
compensatory damages).

                                            14
plaintiff] was not understanding his verbal commands and trying a more effective form of

communication, [the officer] only became annoyed and continued to further instruct [the

plaintiff] through verbal communication.”).

                                    CONCLUSION

      For these reasons, I would reverse the district court’s dismissal of Hans’s two

ADA Title II reasonable-accommodation claims.




                                              15
