                                                                            FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                    November 17, 2014
                          UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                        Clerk of Court
                                       TENTH CIRCUIT



 TODD SPERRY,

           Plaintiff - Appellant,

 v.                                                          No. 13-1336
                                                   (D.C. No. 1:10-CV-03171-RPM)
 JASON T. MAES, individually, and in his                      (D. Colo.)
 official capacity as a detective with the
 Castle Rock Police Department;
 GEORGE ELDER, individually, and in
 his official capacity as an officer with the
 Castle Rock Police Department; TOWN
 OF CASTLE ROCK COLORADO, a
 municipality,

           Defendants - Appellees.



                                    ORDER AND JUDGMENT*


Before BRISCOE, Chief Judge, HARTZ and HOLMES, Circuit Judges.



       Plaintiff Todd Sperry filed claims against Castle Rock police officers Jason Maes

and George Elder and the Town of Castle Rock, Colorado for malicious prosecution in

violation of the Fourth Amendment under 42 U.S.C. § 1983 and for the failure to



       *
        This order and judgment is not binding precedent, except under the doctrines of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.
recognize and accommodate a disability under Title II of the Americans with Disabilities

Act, 42 U.S.C. § 12132. The district court granted summary judgment in favor of the

defendants. We affirm.

                                              I.

       This case arises out of a criminal theft investigation conducted by the Town of

Castle Rock Police Department. Todd Sperry contends that the investigation and his

subsequent arrest were (1) in retaliation for prior complaints made by Sperry regarding

how the department investigated the car crash that killed his son, and (2) without probable

cause because the officers knew he was mentally disabled and unable to form the mens

rea required for the type of theft charged.

                                 A. Factual background

       On November 13, 2007, Todd Sperry’s son died in a one-car crash investigated by

the Castle Rock Police Department. Sperry, who is cognitively disabled and has trouble

reading and adding simple numbers, was greatly upset by the crash and by the resulting

police investigation. On the night of the crash, then-Castle Rock Police Chief Tony Lane

went to Sperry’s house because officers said Sperry was “kind of out of control” and

expressed concern he might hurt himself or somebody else. Aplee. Supp. App. at 403.

Lane stated that he did not know about Sperry’s mental disability at the time and that

Sperry’s reactions were not “unexpected or out of the ordinary” for someone who had just

lost a son. Id. Lane said he later heard that Sperry was “different” and sometimes

“mildly irrational” (though he would not go so far as to say “retarded”), but he was

                                              2
primarily concerned with Sperry as a “potential threat to officer safety.” Id. at 403-04.

       In the days after the crash, Sperry said he called Corporal Ty Petersen, an officer

with the Castle Rock Police Department, approximately 20 times to make complaints

about the investigation. According to Sperry, Petersen “threatened to arrest [him] for

interfering with his investigation” and demanded to see photographs that Sperry had taken

of the scene. Id. at 391. Sperry said “a lot of police came over asking for the photos” and

threatened him following the crash, but he was not able to identify most of them. Id.

Police officers also took Sperry to a mental health facility several days after the accident.

       Lane said everyone in the department knew about the fatal crash, but said he was

unaware of what officers knew about Sperry’s mental health other than some circulated

safety information. Specifically, a police lieutenant emailed the entire department shortly

after the accident to tell officers that Sperry was taken in for a mental health evaluation

and to advise them that Sperry had displayed aggressive behavior in the past.1 Id. at 462.

Sperry stated that the unnamed officers he interacted with “knew” about his disability

because his “family told them and I told them,” and “they said I wasn’t talking right.”

Aplee. Supp. App. at 385.


       1
         Sperry provided other emails from police officials regarding Sperry, but none
were addressed to the named defendants or the entire police force, so it is unclear to what
extent that information reached the officers who later investigated Sperry for theft. Those
emails placed an alert on Sperry’s residence as a potential threat to officer safety and
indicated that Sperry “has mental health issues,” can be “extremely vocal and boisterous
in his expressions” when not on medication, “easily angers and is difficult to reason
with,” and was still “very confrontational” as of November 16, 2007. Aplee. Supp. App.
at 463-66.

                                              3
       In February 2008, Sperry was issued a debit card by H&R Block containing his tax

refund. On or shortly before April 14, 2008, the card’s balance was -$76.56. Between

April 14, 2008, and June 6, 2008, Sperry used the card 73 times at a particular gas station

and made a total of $5,109.78 in purchases. Each time the credit card reader declined the

card and displayed a message that a bank authorization code was required, and each time

Sperry used what he said was his personal identification number (PIN), 1932, to make the

purchase.2 It is unknown whether Sperry understood that his debit card had a finite

balance or that his PIN was not a valid bank authorization code, but after a clerk

contacted the issuing bank on June 6, 2008, and informed Sperry that the debit card had

no money on it, Sperry never returned to the store.

       Clifton Porter, an employee of the oil company affiliated with the gas station who

was familiar with the credit card system, investigated Sperry’s debit card charges for the

company and filed a police report with the Castle Rock Police Department on July 8,

2008. Officer George Elder took Porter’s statement that day, which detailed the charges

and Porter’s belief that the funds had been obtained illegally by Sperry “duping” the gas

station employees into letting him use an unauthorized code. Id. at 68, 78. Elder passed

the information he received from Porter on to a supervisor and did not conduct any




       2
         Clifton Porter, an employee of the oil company affiliated with the gas station,
stated that any combination of four numbers would work to “force” a sale through the
system, which assumes that the numbers come from the clerk calling a bank for
authorization.

                                             4
further investigation into the matter.3 Elder said he did not know at any point that Sperry

was cognitively disabled.

       Detective Jason Maes was assigned to follow up on Elder’s initial police report.

Maes said he had never met Sperry and did not know he had a mental disability. Sperry

disputed this in his deposition. Sperry identified Maes as someone who had previously

spoken with Sperry after the death of his son regarding a different arrest warrant and said,

“We know there’s something wrong with you. . . . You’re different. Did your mom drop

you when you were a baby.” Id. at 296. Sperry identified Maes not by his name tag, but

by appearance (“holes in his face”) and by the officer saying his name was “Maes” to

another person. Id.

       In performing his investigation, Maes reviewed the credit card receipts and

conducted a photo line-up with the two gas station clerks, both of whom identified Todd

Sperry as the suspect. Maes interviewed the clerks and said neither indicated Sperry

might have a mental disability, with both describing the debit card misuse as intentional.

After reviewing the receipts and records from H&R Block, Maes said he noticed multiple

days with multiple charges at the same place, which he believed based on his experience

to be “uncommon and highly suspect.” Id. at 301. Maes also said he considered it


       3
          Elder had conducted one prior investigation into Todd Sperry and his wife for
illegal dumping, but stated that he had never met either person and only made one phone
call to the house. He said he did not remember Sperry’s name when Porter filed his
report. Elder was reportedly the only African American officer in the Castle Rock Police
Department at the time, and Sperry stated that he never interacted with an officer of that
description.

                                             5
“suspicious” that Sperry never returned to the gas station after June 6, 2008, despite being

a frequent customer for the previous two months. Id.

       Maes filed an arrest affidavit on September 4, 2008, and stated in a later affidavit

that he based his probable cause determination for the theft charge4 on the “totality of the

circumstances,” and that Sperry’s use of a code “was not as important as the fact that he

did in fact override the system and knowingly overcharge his account with a significant

sum.” Aplee. Supp. App. at 301-02, 324. However, his arrest affidavit does state that

Sperry “somehow obtained a pre-authorization code” to override the credit card system,

which Sperry disputes. Id. at 323. Maes said he did not uncover any information during

his investigation about Sperry having a mental disability or how that disability would

have influenced Sperry’s actions. Commander Tim Gorman stated that at the time of

Sperry’s arrest, the Castle Rock Police Department did not have formal policies for

dealing with suspects with particular disabilities other than deafness, but that the manual

was updated in or before 2010 to reflect the department’s requirement that patrol officers


       4
           The relevant Colorado theft statute reads:

                (1) A person commits theft when he or she knowingly obtains, retains, or
                exercises control over anything of value of another without authorization or
                by threat or deception; or receives, loans money by pawn or pledge on, or
                disposes of anything of value or belonging to another that he or she knows
                or believes to have been stolen, and:

                (a) Intends to deprive the other person permanently of the use or benefit of
                the thing of value.

       Colo. Rev. Stat. § 18-4-401.

                                               6
undergo crisis intervention training for interacting with individuals with mental health

disorders.5

       Upon receipt of Maes’ arrest affidavit, the district attorney’s office filed a

complaint against Sperry and a motion for an arrest warrant, which the court granted.

Three separate prosecutors who worked on the case indicated that they believed that

probable cause existed to arrest Sperry for theft based on Maes’ arrest affidavit. Deputy

District Attorney Brittany Martin, who was working on the case in 2010 when the district

attorney’s office made the decision to dismiss the charges against Sperry, stated the

dismissal was due to “new information that led us to conclude that we might have some

difficulty in successfully proving the case to a jury beyond a reasonable doubt,” as well as

an agreement by Sperry to reimburse the gas station. Id. at 336.

                                  B. Procedural history

       After an initial timely complaint, Sperry filed a Third Amended Complaint on

September 19, 2011. That complaint named George Elder, Jason Maes, and the Town of

Castle Rock as defendants (the first two parties in their individual and official capacities).

Count 1 of Sperry’s complaint alleged a cause of action under 42 U.S.C. § 1983 for

violations of due process, deprivations of liberty, and excessive force, which the district

court interpreted as a malicious prosecution claim. The violation allegedly stemmed from

the creation of “false police reports” by the named defendants and from the arrest


       5
         Crisis intervention training may have been available earlier than 2010 as optional
training, according to Elder’s statements.

                                              7
affidavit created by Maes containing false information to “justify the unlawful purpose of

the credit card case in order to harass, discredit and harm Mr. Sperry.” Aplt. App. at 191-

92. The alleged false information related to whether Sperry knowingly used “1932” as a

pre-authorization code rather than as a PIN.

       Count 2 of the complaint alleged violations of the Americans with Disabilities Act

(ADA) and corresponding Colorado state law. Sperry’s complaint alleged that the named

defendants and other members of the Castle Rock Police Department knew about his

disability based on comments purportedly made by officers, as well as the officers’

involvement in taking Sperry in for a mental health evaluation shortly after the death of

his son. The complaint stated that police officers attributed to Sperry the “nefarious and

brilliant ability to obtain and use a secret authorization code to deceive” the gas station

clerks and credit card company despite the officers’ alleged knowledge of his cognitive

disability. Id. at 194. Count 2 also alleged that the town is liable for failing to train its

police officers on how to interact with disabled suspects such as Sperry.

       The defendants filed a motion for summary judgment on all claims, which the

district court granted. The court disposed of Sperry’s § 1983 claim against Elder on the

ground that Sperry did not show that Elder “caused his prosecution” by “exert[ing]

improper pressure or influence over the prosecutor or conceal[ing] or misrepresent[ing]

material facts to the prosecutor.” Aplee. Supp. App. at 507. The court also concluded,

based upon Elder’s lack of interaction with the Sperry family and the limited information

about Sperry known to have been circulated throughout the police department, that there

                                                8
was insufficient evidence to indicate that Elder knew Sperry had a cognitive disability

that made him incapable of engaging in theft involving a debit account.

       The court disposed of Sperry’s § 1983 claim against Maes by concluding that

Maes had probable cause to charge Sperry with theft and that nothing in the record

indicated Maes had knowledge that Sperry was unable to perform basic math skills and

could not understand a debit account. With regard to Sperry’s accusation that Maes made

a false statement in his arrest affidavit pertaining to Sperry’s use of a special authorization

code, the court ruled that even without that statement, the manner in which Sperry used

the debit card supported probable cause. Because both § 1983 claims against the officers

failed, the court concluded that any claim against the town under a municipal liability

theory is also subject to dismissal.6

       The court disposed of Sperry’s ADA claims by concluding that neither of the two

proposed theories of Title II liability was applicable. With regard to the wrongful arrest

theory, the court concluded the circumstances of Sperry’s disability were not known by

the officers at the time Sperry was investigated for theft and that Sperry’s actions thus

reasonably appeared to be unlawful. On the reasonable accommodation theory, the court

noted that no statute or case law imposed a duty on officers to investigate whether a

disability exists, particularly when a suspect’s course of conduct does not manifest a


       6
          It is not clear from the Third Amended Complaint that Sperry made a municipal
liability claim against the town under § 1983 with regard to the alleged malicious
prosecution, but both the defendants and the district court appeared to construe the
complaint broadly to include such a claim.

                                              9
mental disability. Lastly, the court refused to consider Sperry’s failure-to-train claim

under the ADA because it was not sufficiently fleshed out.

                                              II.

       On appeal, Sperry contends the district court erred in granting summary judgment

because it ignored genuine issues of material fact and did not resolve factual issues in the

light most favorable to the non-moving party. Sperry argues such improper judicial

determinations of fact led to incorrect rulings on his § 1983 and ADA claims. Aplt. Br. at

2, 15-28.

       We review grants of summary judgment de novo and “apply the same legal

standard used by the district court.” Toomer v. City Cab, 443 F.3d 1191, 1194 (10th Cir.

2006). “Summary judgment is proper if the evidence, viewed in the light most favorable

to the non-moving party, presents no genuine issue of material fact and the moving party

is entitled to judgment as a matter of law.” Id. “An issue is ‘genuine’ if there is sufficient

evidence on each side so that a rational trier of fact could resolve the issue either way.”

Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “An issue of fact is ‘material’ if under

the substantive law it is essential to the proper disposition of the claim.” Id.

       For cases involving qualified immunity, however, the court reviews summary

judgment orders deciding such issues differently. Medina v. Cram, 252 F.3d 1124, 1128

(10th Cir. 2001). In particular, when a defendant asserts qualified immunity, the plaintiff

bears the burden of establishing first, “that the defendant’s actions violated a

                                              10
constitutional or statutory right,” and second, “that the right at issue was clearly

established at the time of the defendant’s unlawful conduct.” Id. at 1128 (citing Albright

v. Rodriguez, 51 F.3d 1531, 1534 (10th Cir. 1995)).7 “If the plaintiff fails to carry either

part of his two-part burden, the defendant is entitled to qualified immunity.” Albright, 51

F.3d at 1535. If the plaintiff succeeds in carrying his burden, then the burden shifts to

“the defendant to show that there are no disputes of material fact as to whether his

conduct was objectively reasonable in light of clearly established law and the information

known to the defendant at the time.” Felders ex rel. Smedley v. Malcom, 755 F.3d 870,

877 (10th Cir. 2014) (quoting Mick v. Brewer, 76 F.3d 1127, 1131 (10th Cir. 1996)).

                A. Malicious prosecution claim under 42 U.S.C. § 1983

       Although the district court granted summary judgment to the defendants on the

merits, we analyze this case in the context of qualified immunity. The defendants raised

the defense of qualified immunity in both their response to Sperry’s complaint and their

motion for summary judgment. “Because qualified immunity protects government

officials from suit as well as from liability, it is essential that qualified immunity claims

be resolved at the earliest possible stage of litigation.” Hunter v. Bryant, 502 U.S. 224,

233-34 (1991) (citing Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). Thus, we must

determine whether the evidence, construed in the light most favorable to Sperry,

demonstrates that there was a violation of his clearly established constitutional rights.


       7
         The Supreme Court decided in Pearson v. Callahan that courts may conduct the
analysis in either order. 555 U.S. 223, 236 (2009).

                                              11
       Sperry argues his constitutional rights were violated by (1) Maes making material

false statements in his arrest affidavit pertaining to Sperry, (2) Elder and Maes omitting

material information about his mental disability in their report and arrest affidavit,

respectively, that would negate probable cause, and (3) Elder and Maes’ retaliatory

motives for investigating Sperry. Sperry is correct that this court considers material false

statements and omissions negating probable cause in a warrant to be clearly established

violations of the Fourth Amendment. Taylor v. Meacham, 82 F.3d 1556, 1562 (10th Cir.

1996) (citing Franks v. Delaware, 438 U.S. 154, 155-56 (1978); Stewart v. Donges, 915

F.2d 572, 581-83 (10th Cir. 1990)). The absence of probable cause in particular is what

gives a § 1983 malicious prosecution claim its constitutional character.

       More factors can be considered, however. We “take[ ] the common law elements

of malicious prosecution as the ‘starting point’ for the analysis of a § 1983 malicious

prosecution claim, but always reach[ ] the ultimate question, which [we] must, of whether

the plaintiff has proven a constitutional violation.” Taylor, 82 F.3d at 1561 (emphasis in

original). The five elements typically considered in a § 1983 malicious prosecution claim

are: “(1) the defendant caused the plaintiff’s continued confinement or prosecution; (2)

the original action terminated in favor of the plaintiff; (3) there was no probable cause to

support the original arrest, continued confinement, or prosecution; (4) the defendant acted

with malice; and (5) the plaintiff sustained damages.” Novitsky v. City Of Aurora, 491

F.3d 1244, 1258 (10th Cir. 2007). We analyze how these factors apply to Officers Elder

and Maes, in turn, and conclude that neither officer committed a constitutional violation.

                                             12
       1. Officer Elder

       The district court concluded that Sperry’s complaint against Officer Elder failed on

the first element of a malicious prosecution claim because Elder’s limited involvement in

the investigation was not sufficient to show he “caused” Sperry’s prosecution. Sperry

argues on appeal that the district court improperly believed Elder’s statement that he did

not know Sperry had a disability and that Elder should have included his knowledge of

Sperry’s disability in his report. Even if this court were to go further in its factual

inferences in Sperry’s favor, as he desires, and assume that Elder knew Sperry had some

type of cognitive disability, Elder’s assignment in this case was to memorialize a victim’s

statement, not to investigate the crime or absolve Sperry.

       As this court stated in Taylor, generally for police officers, “the chain of causation

[for a malicious prosecution claim] is broken by an indictment, absent an allegation of

pressure or influence exerted by the police officers, or knowing misstatements made by

the officers to the prosecutor.” 82 F.3d at 1564 (quoting Reed v. City of Chicago, 77 F.3d

1049 (7th Cir. 1996)). Elder did not make any knowing misstatements because the report

memorialized the statements of a victim for further investigation; none of Elder’s

“statements” were Elder’s own observations, and none went to the prosecutor directly.

Thus, Elder did not commit a constitutional violation and is entitled to qualified

immunity.

       2. Officer Maes


                                              13
       Perhaps more crucially, both Officer Maes and Officer Elder are entitled to

qualified immunity because there was probable cause to support Sperry’s arrest. Sperry

argues on appeal that Maes did not have probable cause because Maes made material

misstatements in and omissions from his arrest affidavit regarding Sperry’s cognitive

disability and capacity to have the mens rea for theft. On the issue of false statements

within or omitted information from arrest affidavits, this court has stated:

              Where false statements have been included in an arrest warrant
              affidavit, the existence of probable cause is determined by
              setting aside the false information and reviewing the remaining
              contents of the affidavit. In a case involving information omitted
              from an affidavit, the existence of probable cause is determined
              by examining the affidavit as if the omitted information had
              been included and inquiring if the affidavit would still have
              given rise to probable cause for the warrant.

Wolford v. Lasater, 78 F.3d 484, 489 (10th Cir. 1996) (internal citations and quotation

marks omitted).

       Federal law requires that Maes knowingly or recklessly made a false statement.

Franks, 438 U.S. at 155-56. The only statements in the arrest affidavit that Sperry points

to as false are (1) Maes’ characterization that Mark Bigler of H&R Block stated Sperry

“must have” provided a pre-authorization code to the gas station attendants and (2) Maes’

statement that Sperry “somehow obtained a pre-authorization code.” Aplee. Supp. App.

at 322-23. Given that Porter stated that Sperry “scammed” the gas station employees and

repeatedly used the same “1932” code to override the system, and that Porter represented

himself as someone who knew the company’s credit card system well, Maes’ statements



                                             14
in the arrest affidavit were plausible, non-reckless characterizations of the information he

gleaned from his investigation. Id. at 78.

       Thus, it is questionable whether this information could be considered knowingly

false, but even construing it in that light, it is not material. “Probable cause exists where

‘the facts and circumstances within their (the officers’) knowledge and of which they had

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.”

Brinegar v. United States, 338 U.S. 160, 175-76 (1949) (quoting Carroll v. United States,

267 U.S. 132, 162 (1925)) (parentheticals in original).

       Setting aside the two challenged statements, the arrest affidavit offers ample

evidence to indicate Sperry had engaged in theft, including but not limited to the high

number of transactions in a relatively brief period of time, the consistency of the

encounters, the victim statements, the statement from Bigler that Sperry should not have

been able to spend more than his refund with the card, and that Sperry never returned to

the gas station after the clerk who first checked with the bank told Sperry that the card

had no money on it. Moreover, all of the district attorneys who provided affidavits

indicated their own assessments of probable cause were based on the totality of the

circumstances, not just the use of a pre-authorization code. Thus, the statements in

question are not material to the probable cause determination.

       Maes’ alleged omission is a slightly more challenging question. However, even

considering the record in the light most favorable to Sperry, there is no evidence that


                                              15
Maes knew Sperry was incapable of understanding a bank account. It is also not clear

that an officer’s knowledge of a suspect’s unspecified cognitive disability would negate

probable cause. We have found no case standing for the proposition that an officer must

take a suspect’s potential mental disability into account in determining probable cause.8

Even someone who cannot manage his finances is capable of forming the mens rea for

theft, and Sperry’s repeated use of the debit card at the very least indicated that Sperry

understood that the card represented money and that he was receiving goods and services

by using it.

       While it is possible that Maes could have uncovered Sperry’s alleged inability to

maintain his finances prior to requesting an arrest warrant, a police officer who has

reasonably concluded that probable cause exists to arrest a suspect is not required to

further investigate all possible defenses or claims of innocence. See Romero v. Fay, 45

F.3d 1472, 1477-78 (10th Cir. 1995). As one circuit court noted, “the practical restraints

on police in the field are greater with respect to ascertaining intent and, therefore, the

latitude accorded to officers considering the probable cause issue in the context of mens

rea crimes must be correspondingly great.” Cox v. Hainey, 391 F.3d 25, 34 (1st Cir.

2004). All the evidence Maes uncovered in his investigation pointed to probable cause



       8
         This lack of cases also indicates an omission of this kind is not “clearly
established” as a constitutional violation for purposes of qualified immunity. Kerns v.
Bader, 663 F.3d 1173, 1183 (10th Cir. 2011) (requiring the well-defined right be
established “beyond debate” based on existing Supreme Court or Tenth Circuit precedent
or a significant number of cases from outside the circuit). See also Cortez v. McCauley,
478 F.3d 1108, 1114-15 (10th Cir. 2007).

                                              16
that Sperry intentionally committed theft, and Maes was not required to investigate the

extent of Sperry’s cognitive disability to negate that. To the extent Maes omitted

information about Sperry potentially having a cognitive disability, it is therefore not

material.

       Thus, the existence of probable cause defeats Sperry’s claims that Officers Maes

and Elder violated his constitutional rights under 42 U.S.C. § 1983. With no

constitutional violations at issue, both officers are entitled to qualified immunity. As for

the remaining claim against the town, the district court correctly concluded that because

the malicious prosecution claims against Elder and Maes fail, any resulting municipal

liability for the Town of Castle Rock also fails. Trigalet v. City of Tulsa, Okla., 239 F.3d

1150, 1154-56 (10th Cir. 2001).

                                       B. ADA claim

       Sperry argues this court’s decision in Gohier v. Enright, 186 F.3d 1216 (10th Cir.

1999), supports his claim that the Castle Rock police wrongfully arrested him after

misperceiving his disability as unlawful conduct. There, this court confirmed that the test

to apply in evaluating an ADA claim against police officers under Title II9 requires a

plaintiff prove:

              (1) that he [or she] is a qualified individual with a disability;
              (2) that he [or she] was either excluded from participation in or

       9
         The statutory language reads: “[N]o qualified individual with a disability shall,
by reason of such disability, be excluded from participation in or be denied the benefits of
the services, programs, or activities of a public entity, or be subjected to discrimination by
any such entity.” 42 U.S.C. § 12132.

                                             17
              denied the benefits of some public entity’s services, programs,
              or activities, or was otherwise discriminated against by the
              public entity; and
              (3) that such exclusion, denial of benefits, or discrimination was
              by reason of the plaintiff’s disability.

Gohier, 186 F.3d at 1219, quoting Tyler v. City of Manhattan, 849 F. Supp. 1429, 1439

(D. Kan. 1994).

       In Gohier, we discussed, but did not expressly adopt, two theories regarding police

accommodation of disabilities that other courts had proposed as circumstances in which

an individual may demonstrate they were denied the benefit of police services due to their

disability.

              The first is that police wrongly arrested someone with a
              disability because they misperceived the effects of that disability
              as criminal activity. The second is that, while police properly
              investigated and arrested a person with a disability for a crime
              unrelated to that disability, they failed to reasonably
              accommodate the person’s disability in the course of
              investigation or arrest, causing the person to suffer greater injury
              or indignity in that process than other arrestees.

Id. at 1220-21 (citations omitted).

       We need not go further here than we did in Gohier in discussing these theories

because Sperry has failed to meet the first prong of the test, which requires him to

demonstrate that he is a “qualified individual with a disability.” The ADA requires that a

person establish that he has or is regarded as having “a physical or mental impairment

that substantially limits one or more major life activities.” 42 U.S.C. § 12102(1)(A). In

particular, we have held that the “substantially limits” portion of a disability claim must



                                              18
indicate how a person’s disability affects him as “compared to the average person in the

general population” and that “courts must take into account: (1) the nature and severity of

the impairment; (2) the expected duration of the impairment; and (3) the permanent or

long term impact resulting from the impairment.” Sanchez v. Vilsack, 695 F.3d 1174,

1178 (10th Cir. 2012) (citations omitted).

       In this case, there is not sufficient evidence in the record regarding Sperry’s

impairment such that we could adequately conduct this analysis, nor is Sperry’s disability

so obvious from the facts that we may assume it substantially limits a major life activity.

The extent to which Sperry pleaded his disability include statements in his Third

Amended Complaint that “The United States Social Security Administration has

classified Mr. Sperry as a person with a mental disability (mild retardation),” and “Mr.

Sperry is a disabled person within the meaning of 42 U.S.C. §§ 12101 & 12102 and

C.R.S. §§27-10.5-101 &102 [sic].” Aplt. App. at 177, 194. Of the evidence that appears

to have been available to the district court in the motion for summary judgment, only the

affidavit of a family friend provides any additional insight into Sperry’s disability.10

Adam Devone stated in the affidavit that “Todd is mentally challenged, has trouble

reading and adding simple numbers. Todd receives federal funds from the Social

Security Administration as a mentally disabled person. Todd’s disability is evident to the


       10
          On appeal, Sperry provides further documentation of his disability from the
Social Security Administration, but such evidence does not appear to have been before
the district court. Aplt. App. at 283-91. “In reviewing a ruling on summary judgment, we
will not consider evidence that was not before the district court.” Wilburn v. Mid-South
Health Dev., Inc., 343 F.3d 1274, 1281 (10th Cir. 2003).

                                              19
average person, because of the way he talks and acts.” Aplee. Supp. App. at 415. Such

broad, bare assertions do not establish that Sperry is a qualified individual with a

disability under 42 U.S.C. § 12102(1).

       Even if this court could assume that Sperry is a qualified individual with a

disability under the ADA, there is similarly insufficient evidence that the Castle Rock

police officers knew about his disability to the extent of knowing that they must provide

an accommodation. “Before a public entity can be required under the ADA to provide a

disabled individual an auxiliary aid or service, a public entity must have knowledge of the

individual’s disability and the individual’s need for an accommodation.” Robertson v.

Las Animas Sheriff’s Dept., 500 F.3d 1185, 1196 (10th Cir. 2007) (emphasis added). As

discussed above, the evidence in the record shows that Castle Rock police officers had, at

best, only some knowledge that Sperry had an unspecified cognitive disability or

emotional disorder. In the context of police investigations, such an amorphous level of

knowledge does not impose on police officers the duty to further investigate the extent of

a suspect’s disability, particularly when all of the evidence uncovered indicates the

suspect’s behavior was intentional.

       Thus, we decline to apply either theory of ADA liability for police officers

discussed in Gohier. With regard to Sperry’s failure-to-train claim, it must be noted that

Gohier only briefly noted the possibility of such a claim. 186 F.3d at 1222 (“Gohier

might have argued that Title II required Colorado Springs to better train its police officers

to recognize reported disturbances that are likely to involve persons with mental


                                             20
disabilities, and to investigate and arrest such persons in a manner reasonably

accommodating their disability”). Nonetheless, we do not have to determine whether

such a claim exists because, even assuming it does, Sperry has not demonstrated the

“deliberate indifference” required to prove a failure-to-train claim by showing that the

Town of Castle Rock was “on notice” of the need for “more or different training.” City

of Canton, Ohio v. Harris, 489 U.S. 378, 390, 397 (1989). Given the dearth of case law

on police investigations of people with cognitive disabilities, much less claims against

this town in particular, Castle Rock can hardly be considered to have had such notice.

Moreover, Sperry does not address what type of training police could or should be

required to undergo to better recognize and consider mental disabilities when conducting

investigations. The only training that Sperry points to as being available is crisis

intervention training, which pertains to police interactions with mentally ill suspects in

high-intensity situations, not routine criminal investigations.

       Thus, we conclude that the district court correctly determined that Sperry’s ADA

claims against Maes, Elder, and the Town of Castle Rock must also fail.

                                             III.

       For the reasons set forth above, the district court’s order granting summary

judgment to Elder, Maes, and the Town of Castle Rock is AFFIRMED. Sperry’s motion




                                             21
to file a supplemental appendix is DENIED.

                                              Entered for the Court


                                              Mary Beck Briscoe
                                              Chief Judge




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