UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Angelika P., for herself and as guardian and next friend of N.P., an incapacitated adult, Plaintiffs

v. Case No. 19-cv-1114-SM Opinion No.

Town of Meredith, Defendant

O R D E R

Angelika P. (“Angelika”) filed this action for herself, and

as guardian and next friend of N.P., her son, against the Town

of Meredith, asserting, inter alia, violations of the Americans

with Disabilities Act,

et. seq., and the

Rehabilitation Act of 1973,

. After filing its

answer, the Town promptly moved for judgment on the pleadings.

Standard of Review

A motion for judgment on the pleadings under Fed. R. Civ.

P. 12(c) is subject to the same standard of review applicable to

a motion to dismiss under Rule 12(b)(6). See Portugues-Santana

v. Rekomdiv Int’l, Inc.,

(1st Cir. 2013).

Accordingly, the court must accept as true all well-pleaded

facts in plaintiffs’ complaint and indulge all reasonable

inferences in her favor. See Doe v. Brown Univ.,

(1st Cir. 2018); SEC v. Tambone,

(1st Cir.

1 2010). But, “[a] Rule 12(c) motion, unlike a Rule 12(b)(6)

motion, implicates the pleadings as a whole,” and therefore the

court may consider the facts alleged in defendant’s answer.

Aponte-Torres v. Univ. Of Puerto Rico,

, 54–55 (1st

Cir. 2006). However, because the court is obligated to view the

facts in favor of the non-movant, “any allegation in the answer

that contradict[s] the complaint” is treated as false. Goodman

v. Williams,

(D.N.H. 2003) (citations

omitted).

To survive defendant’s motion, the complaint must allege

each of the essential elements of a viable cause of action and

“contain sufficient factual matter, accepted as true, to state a

claim to relief that is plausible on its face.” Ashcroft v.

Iqbal,

(2009) (citation and internal

punctuation omitted). Legal boilerplate and general conclusory

statements are insufficient to state a cognizable claim. See

Menard v. CSX Transp., Inc.,

(1st Cir. 2012).

Nevertheless, while “evaluating the plausibility of a legal

claim requires the reviewing court to draw on its judicial

experience and common sense, the court may not disregard

properly pled factual allegations, even if it strikes a savvy

judge that actual proof of those facts is improbable.” Ocasio-

Hernandez v. Fortuno-Burset,

(1st Cir. 2011)

(citations and internal punctuation omitted).

2 Background

The complaint discloses the following. Plaintiff, N.P.,

lives with his mother and guardian, Angelika, in Meredith, New

Hampshire. He is intellectually disabled. On recent cognitive

functioning tests, N.P. scored below the first percentile, in

the extremely low range for verbal comprehension, and, with

respect to nonverbal intelligence, he scored in the “very poor”

range compared to other students his age. N.P. tested in the

“very low to severe range” of language functioning. Compl. ¶ 6.

At the time of the events giving rise to this action, N.P. was

20 years old.

N.P. has attended day camps offered by the Town of Meredith

during summers and school vacations since 2015. The day camps

are run by Meredith’s Department of Parks and Recreation.

Activities are conducted at the Town’s Recreation Center. In

2019, the summer camp ran from June 25, 2019, through August 16,

2019.

On August 6, 2019, a day camper reported that N.P. had made

comments threatening camp staff.1 In response, Sarah Perkins,

the camp director, and the Town’s Program Director for the

1 In its Answer, defendant asserts that the camper reported N.P. threatened to kill three individuals: the camp director (Sarah Perkins), a summer camp counselor, and that camp counselor’s child.

3 Department of Parks and Recreation, notified the Meredith Police

Department, who dispatched an officer.

The responding police officer, Keith True, who also served

as the resource officer at the Town’s high school (where N.P.

had been a student), knew N.P., and knew that N.P. was seriously

intellectually disabled. Presumably, camp staff, directors, and

Town officials had the same information about N.P.’s profound

disabilities, as he had been a regular camper for years.

Upon arriving at the Town’s Recreation Center, Officer True

spoke with N.P., and asked him if he had “heard anyone say

anything that may have scared someone.” Compl. ¶ 12. N.P.

responded that he had not made the comments, because he had not

been at camp, he had been at an appointment. Officer True asked

N.P. if N.P. heard “anyone making statements about hurting or

killing someone, even as a joke.” Compl. ¶ 12. N.P. said he

had not, that he “wouldn’t say anything like that.”

According to True, “N.P. did not know why Officer True was at

camp[,] [or why True] wanted to speak with him.”

After he spoke with N.P., Officer True met with Perkins and

Vint Choiniere, Director of the Town’s Parks and Recreation

Department. True told Perkins and Choiniere that he did not

believe N.P. posed a threat, and that True had not known N.P. to

4 be violent. True then left the camp. No charges were filed

against N.P.

N.P. remained at camp for the rest of the day without

incident. When Angelika arrived to pick him up, Choiniere

handed her a “Meredith Parks and Recreation Behavior Report.”

Choiniere told Angelika that N.P. was suspended from

participating in any Parks and Recreation Department program,

and from being at any Parks and Recreation facility “for an

indefinite period of time.” Compl. ¶ 15.

That evening, Angelika emailed Phillip Warren, Meredith’s

Town Manager. She explained N.P.’s intellectual disability, and

that N.P. “has no real concept of what is being said or

discussed beyond the surface,” or any idea that he had made any

threats. Compl. ¶ 16. Angelika told Warren that N.P. “enjoys

camp so much, and knowing [camp] is coming to an end makes him

sad [so] . . . he has had behavior incidents towards the end of

camp in past years, knowing that it was going to end.” Id. at ¶

16. She asked to meet with Warren in person to discuss N.P.’s

suspension, arguing that the suspension “is extreme for someone

who does not even know what he did or said[,] and has the mental

ability of a young child.” Id. Angelika asked the Town to

modify the duration of N.P.’s indefinite suspension, to instead

make the suspension “temporary, maybe for one or two days.” Id.

5 If N.P. misbehaved after he returned to camp, the Town could

call her “immediately, and [she] would remove him from camp for

the rest of the day.” Id.

Warren responded the next morning, August 7, 2019. Warren

told Angelika that he needed to review the police and internal

reports, and that “the suspension [would] remain in place until

the investigation and research into this matter is completed.”

Compl. ¶ 17. Once completed, he said, Angelika would be

notified of the outcome.

Angelika addressed the Town’s Behavior Report that same day

and asked that her response be appended to the Report. She

wrote that N.P. had a “significant intellectual disability that

limits his understanding of questions being asked,” and “usually

respond[ed to questions] based on what he thinks the person

[asking] wants to hear.” Compl. ¶ 19. She further wrote, “N.P.

does not understand, or even recall the event, but the staff at

the community center, especially those who have known N.P for

the past four years, should understand that just because he is

older, his intellectual ability remains that of a six-year-old.”

Id. Finally, Angelika expressed her disappointment that the

Town had not involved her in the decision-making process “in

order to get a better understanding of an intellectually-

challenged individual.” Id.

6 Warren emailed Angelika again on August 12, 2019. He

informed her that N.P. would remain suspended for an initial

period of 60-days (through October 7, 2019), after which

Angelika could speak to Choiniere about readmitting N.P. to the

Parks and Recreation Department’s programs and facilities. N.P.

was emotionally upset and very sad when told he could not return

to camp for the rest of the summer.2

On September 2, 2019, Angelika requested a copy of the

investigatory findings that Warren had referenced in his August

7 email. Warren responded that “the investigation was a review

of police and internal reports,” and that no report had been

drafted. Compl. ¶ 23. Two days later, Angelika met with

Jeannie Forrester and Ray Moritz, two members of the Town’s

Select Board. During the meeting, Moritz told Angelika that, by

allowing N.P. to remain at camp through the end of the day on

August 6, 2019, the Town had been “compassionate,” as “they

could have called to have him handcuffed and dragged away.”

Compl. ¶ 24. Moritz further stated that he and Forrester would

present the matter to other members of the Select Board

privately.

2 The defendant points out in its Answer that the Town did not offer any summer or school vacation camps between August 16, 2019 and October 7, 2019. So, says the Town, N.P.’s suspension from Town programs and parks was, in effect, eight days long.

7 On September 17, 2019, Moritz emailed Angelika, informing

her that the Meredith Select Board supported the action taken by

the Parks and Recreation Department.

N.P.’s suspension ended on October 7, 2019.

DISCUSSION

1. Plaintiffs’ Claims Under the ADA and Rehabilitation Act

First, the Town argues that plaintiffs’ claims under the

Americans with Disabilities Act (“ADA”) and the Rehabilitation

Act fail because the Town did not discriminate against N.P.

based on his disability, but rather acted in response to

“threats” that N.P. made. (Apparently overlooking, at the

outset, that “threats” must be assessed in context. For

example, a six year old child proclaiming, “I’ll kill you if you

tell Mom I ate the cookie” has, in context, hardly made a death

threat, though one might try to make it so by reciting merely,

“I’ll kill you” out of context. Common sense, it is often

correctly noted, is not so common, but in its pursuit, context

is of course everything.)

Pursuant to Title II of the ADA, “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.”

8 12132. Accordingly, “[t]o state a claim for a violation of

Title II, a plaintiff must allege: (1) that he is a qualified

individual with a disability; (2) that he was either excluded

from participation in or denied the benefits of some public

entity's services, programs, or activities or was otherwise

discriminated against; and (3) that such exclusion, denial of

benefits or discrimination was by reason of his disability.”

Toledo v. Sanchez,

, 31–32 (1st Cir. 2006) (citing

Parker v. Universidad de Puerto Rico,

(1st Cir.

2000), and

). Similarly, to state a claim

under the Rehabilitation Act, a plaintiff must allege “that (1)

they are disabled as defined by the statute; (2) they are

otherwise qualified for the program, activity, or benefit at

issue; (3) they have been excluded from the program, activity,

or benefit solely by reason of their disabilities; and (4) the

program, activity, or benefit is funded by federal financial

assistance.” Eric L. By & Through Schierberl v. Bird,

(D.N.H. 1994).

The parties’ respective arguments3 with respect to the

pending motion focus on causation. First, the parties disagree

3 At this time, defendant does not contest that N.P. is a “qualified individual with a disability,” defined by the ADA as “an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the

9 as to whether the Rehabilitation Act and the ADA have different

causation requirements. Plaintiffs argue that both the ADA and

the Rehabilitation Act require “but for” causation, while

defendant contends that the Rehabilitation Act’s causation

standard is more exacting, requiring that discrimination by

reason of disability be the only cause of the action at issue.

For purposes of the present motion, the court need not resolve

the dispute, as the outcome is the same under either standard.

Substantively, defendant contends that the complaint, at

best, essentially pleads that because N.P. has an intellectual

disability, he uttered words that, literally, amount to threats

to which the Town lawfully responded by suspending him.

According to the Town, even though N.P.’s “threats” may have

resulted from his disability, that does not make his suspension

based on those threats a discriminatory act. N.P. was suspended

because of his misbehavior – uttering words that amounted to

threats – says the Town, and not his disability. The Town

points out that N.P. has participated in the summer day-camp

participation in programs or activities provided by a public entity.”

.

Defendant does make the argument that the Town did not receive federal funds in 2019, and the Rehabilitation Act is therefore inapplicable. However, defendant concedes that plaintiffs have alleged the Town received federal funds. Given the case’s procedural posture, the court is bound to accept plaintiffs’ allegations as true, and defendant’s argument regarding the applicability of the Rehabilitation Act is unavailing at this early juncture.

10 program for several years, and the Complaint specifically

acknowledges that N.P. has had behavioral issues in past years.

See Compl. ¶ 16 (N.P. “had behavior incidents toward the end of

camp in past years”). But, the Town argues, N.P. was suspended

only after he made the “threats” concerning other participants

and staff within the camp program. That is not discrimination,

says the Town, “[t]hat is a safety measure.” Mem. in Supp. of

Mot. for Judgment on the Pleadings at 9.

In response, plaintiffs contend that defendant’s argument

prevails only if plaintiffs’ asserted version of the facts is

deemed false, which, of course, is an impermissible

determination on a motion for judgment on the pleadings.

According to the plaintiffs, they have not alleged in the

complaint that N.P. made threats. Plaintiffs further rely on

Officer True’s assessment following his conversation with N.P.

that N.P. did not pose a threat. They argue:

It is reasonable to infer [from plaintiffs’ allegations] that given 1) the severity of NP’s intellectual and language disability; 2) that the responding officer found any claim of a threat to be unfounded; and 3) that NP remained at the camp for the rest of the day, that excluding NP not only from the rest of camp, but from any facility or activity for 60 days was arbitrary and unreasonable and based on fears or stereotypes of mentally disabled individuals.

Pls.’ Opp. to Mot. for Judgment on the Pleadings at 6.

11 Had plaintiffs alleged that N.P. did, in fact, make

credible or even sincere death threats against three individuals

at summer camp, even if those threats were a consequence of

plaintiff’s disability, defendant’s position, which is well-

supported by relevant precedent, would prevail. Courts have

nearly uniformly rejected the idea that the ADA requires

entities to countenance misconduct. As the Court of Appeals for

the Fourth Circuit stated: “misconduct – even misconduct related

to a disability – is not itself a disability and may be a basis

for dismissal.” Halpem v. Wake Forest Univ. Health Scis.,

(4th Cir. 2012) (citations omitted). In the employment

context, our own court of appeals has similarly noted: “Put

simply, the ADA does not require that an employee whose

unacceptable behavior threatens the safety of others be

retained, even if the behavior stems from a mental disability.”

Calef v. Gillette Co.,

, 87 (1st Cir. 2003) (emphasis

added).

A Title II case that arose in the Court of Appeals for the

Second Circuit, McElwee v. Cty. of Orange,

(2d

Cir. 2012), is instructive. In McElwee, the plaintiff was

dismissed from defendant’s volunteer program after engaging in

“erratic and harassing behavior toward female staff members.”

. Plaintiff, who suffered from a neurodevelopmental

disorder called Pervasive Development Disorder – Not Otherwise

12 Specified (“PDD-NOS”), filed suit under Title II of the ADA and

Section 504 of the Rehabilitation Act, arguing that his

dismissal constituted “unlawful discrimination because he was

not provided a reasonable accommodation for his disability,”

namely: (1) defendants should have worked with him “to help him

behave more appropriately in the workplace; and (2) defendants

should have worked with the complaining employees “to educate

them about [plaintiff’s] disability so that they would be more

tolerant of his behavior.”

. The Second Circuit

disagreed, noting that plaintiff’s claim “is as much a request

to excuse his past misconduct as it is a request for future

accommodation,” and that plaintiff’s “inappropriate behavior is

indisputably a legitimate non-discriminatory reason for

dismissing [plaintiff] from the volunteer program, even if the

behavior resulted from his disability.”

. See also

Halpern,

(“[T]he law does not require the

school to ignore misconduct that has occurred because the

student subsequently asserts it was the result of a

disability.”).

So, again, had plaintiffs clearly alleged in their

complaint that N.P. made credible or non-frivolous death threats

against three individuals at the Town’s summer camp, defendant’s

argument would be persuasive under the existing law.

13 But, the problem with defendant’s argument is that whether

N.P. did or did not make the referenced “threats” is simply not

clear from the facts pled in the complaint or asserted in the

answer. Nor is any critical context discernable from the

complaint or the answer. Plaintiffs allege that another camper

heard N.P. make comments which that camper interpreted as

threats. Compl. ¶ 10. The complaint also alleges that, while

speaking to Officer True, N.P. denied making any threats.4 Given

the factual ambiguities, and in the absence of the full relevant

context in which the words triggering defendant’s actions were

spoken, and how they would have been understood by reasonable

people unburdened by misguided fears or stereotypes related to

mental disabilities, and acting in good faith, it is obvious

that a more fully developed record is necessary before the court

could properly rule on defendant’s dispositive motion. It is

not at all clear that plaintiff’s words, even if uttered as

defendant claims, could have been reasonably understood by

reasonable people actually informed of the plaintiff’s

disability as actionable “threats,” or as posing any safety

concern under the actual circumstances. It may well be,

however the facts are pled or established on summary judgment,

4 In that same paragraph, plaintiffs allege that N.P. told Officer True he “wasn’t even at camp.” But, based on the complaint’s allegations, N.P. was, in fact, present at camp, and N.P. may or may not have had the ability to accurately recall and respond.

14 that a jury will have to resolve those questions. But for now,

given the restrictions applicable to motions for judgment on the

pleadings, the motion is necessarily denied.

2. Angelika P.’s ADA Claim

Defendant argues that Angelika’s individual claim under the

ADA must be dismissed because she has not alleged any facts

showing that she, personally, was denied services or activities.

Defendant is correct.

Pursuant to

(g), “[a] public entity shall

not exclude or otherwise deny equal services, programs, or

activities to an individual or entity because of the known

disability of an individual with whom the individual or entity

is known to have a relationship or association.” Decisions in

this circuit interpreting the associational discrimination

provisions of the ADA appear to be somewhat limited, but the

parties seemingly agree that, to state an association claim,

Angelika must allege an injury separate from N.P.’s injury

resulting from her association with a disabled individual. See

Pl.’s Mem. in Supp. of Opp. to Mot. for Judgment at 15; Def.’s

Mem. in Supp. of Mot. for Judgment at 13. See also Glass v.

Hillsboro Sch. Dist. 1J,

(D. Or.

2001) (“plaintiffs appear to recognize that to prevail on their

associational discrimination claims, they must allege and prove

15 that they, not their children, had a right to defendant's

services, and that they were discriminated against in obtaining

those services solely because they were associated with disabled

individuals.”); United States v. Nobel Learning Communities,

Inc.,

(E.D. Pa. 2009) (“Courts that

have specifically addressed whether indirect consequences give

rise to an associational discrimination claim have held that

Title III of the ADA does not protect against such injuries.”)

(citing cases).

Angelika alleges that she was denied the ability “to have

her child participate in Meredith Parks and Recreation

Department programs and activities.” Compl. ¶ 48. She argues

that said denial “is a separate injury from the injury NP

suffered.” Mem. in Opp. to Mot. for Judgment on the Pleadings

at 15. But, she is incorrect: Angelika’s alleged injury is

derivative of N.P.’s injury, not a separate injury. She has not

alleged that she, personally, was denied services by the Town,

but rather that she was injured because her son was denied

services. In other words, Angelika has not alleged that the

Town directly discriminated against her, but instead alleges

that she was injured as a result of the Town’s discrimination

against her son. For that reason, defendant is entitled to

judgment on Angelika’s ADA claim.

16 To the extent Angelika can plausibly assert factual

allegations that would support a cognizable ADA claim against

the Town, she is free to file a motion to amend her complaint.

See Ashcroft v. Iqbal,

(“A claim has facial

plausibility when the plaintiff pleads factual content that

allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.”).

3. Failure to Train and Supervise

The Town contends the failure to train and supervise claim

must be dismissed because plaintiffs fail to allege facts

sufficient to state such a claim.5 It argues that plaintiffs’

complaint lacks any factual allegations suggesting the Town

inadequately trained its employees, or any facts that show a

pattern of similar violations by untrained employees. Instead,

defendant says, plaintiffs rely on wholly conclusory allegations

in support of their claim.

“Triggering municipal liability on a claim of failure to

train requires a showing that municipal decisionmakers either

knew or should have known that training was inadequate but

5 Defendant also argues that plaintiffs’ failure to train claim must be dismissed because plaintiffs fail to sufficiently state an underlying ADA or Rehabilitation Act claim. However, the court has determined that plaintiffs have, at this juncture, sufficiently stated a claim under the ADA and Rehabilitation Act.

17 nonetheless exhibited deliberate indifference to the

unconstitutional effects of those inadequacies.” Haley v. City

of Bos.,

(1st Cir. 2011). When evaluating a

municipal liability claim that requires proof of deliberate

indifference, the plaintiff must plead more than a ‘mere

insufficiency’ of the municipality’s actions.” Tortorello v.

Laconia Police Dep't, No. 19-CV-250-PB,

, at *2

(D.N.H. May 12, 2020) (quoting Marrero-Rodríguez v. Municipality

of San Juan,

(1st Cir. 2012)). “Instead, ‘a

training program must be quite deficient in order for the

deliberate indifference standard to be met: the fact that

training is imperfect or not in the precise form a plaintiff

would prefer is insufficient to make such a showing.’”

(quoting Marrero-Rodriguez,

) (alteration

omitted) (further quotations omitted)). See also Nevins v.

Mancini, No. CIV. 91-119-M,

, at *3 (D.N.H. Sept.

3, 1993) (“Generally, a failure to supervise only gives rise to

§ 1983 liability ‘in those situations where there is a history

of widespread abuse[,][o]nly then may knowledge be imputed to

the supervisory personnel.’”) (citing Wellington v. Daniels,

(4th Cir. 1983)).

Plaintiffs’ failure to train and supervise claim falls far

short of meeting those requirements. As defendant correctly

points out, plaintiffs’ claim is comprised entirely of

18 conclusory allegations. See, e.g., Compl. ¶ 60 (“Defendant had

notice that its supervising and training was deficient because

N.P. has a right to participate in its programs and activities,

but was not allowed to attend its programs and activities for 60

days.”). Notably lacking are any underlying factual allegations

that support plaintiffs’ legal conclusions. Plaintiffs fail to

provide any details regarding defendant’s training program, or

how that program might be even arguably deficient. Nor does the

complaint allege any facts from which the court might infer that

defendant disregarded a known risk.

Accordingly, plaintiffs have not stated a Section 1983

claim against the Town for failure to train and supervise. See

Iqbal,

(“the tenet that a court must accept as

true all of the allegations contained in a complaint is

inapplicable to legal conclusions. Threadbare recitals of the

elements of a cause of action, supported by mere conclusory

statements, do not suffice.”). To the extent plaintiffs can

capably assert factual allegations that would support a

cognizable Section 1983 claim against the Town, they are free to

file a motion to amend their complaint.

4. Plaintiffs’ Requests for Relief

Finally, defendant persuasively argues that plaintiffs are

not entitled to a declaratory judgment or to an injunction, as

19 both requests are moot. Plaintiffs seek, inter alia, the

“issuance of a declaratory judgment that Defendant has violated

the Americans with Disabilities Act and its implementing

regulation and the Rehabilitation Act of 1973 and its

implementing regulations,” as well as “an [o]rder enjoining

Defendant from excluding N.P. from its programs, services and

activities on the basis of his disability, and requiring

Defendant to engage in an interactive process when a reasonable

accommodation would enable his participation.” Compl., p. 13.

“[A] case is moot when the issues presented are no longer

live or the parties lack a legally cognizable interest in the

outcome.” Town of Portsmouth, R.I. v. Lewis,

(1st Cir. 2016) (quoting Am. Civil Liberties Union of Mass. v.

U.S. Conference of Catholic Bishops,

(1st Cir.

2013)). “Another way of putting this is that a case is moot

when the court cannot give any effectual relief to the

potentially prevailing party.”

(quoting Am. Civil Liberties

Union,

).

In support of its argument, defendant points out that

N.P.’s 60-day suspension was complete on October 7, 2019; he is

no longer suspended from any Town parks or programs. Moreover,

N.P. has since turned 21, and has therefore “aged out” of

eligibility for the Town’s camp programs. Thus, defendant says,

20 there is no pending controversy. Plaintiffs seemingly do not

contest the point as they fail to meaningfully respond.

N.P.’s 60-day suspension is over. He is not currently

being excluded from defendant’s programs, services and

activities. Accordingly, ”there is no ongoing conduct to

enjoin,” Town of Portsmouth,

, and plaintiffs are

not entitled to injunctive relief. Nor are plaintiffs entitled

to a declaratory judgment. See Am. Civil Liberties Union,

(“issuance of a declaratory judgment deeming past

conduct illegal is . . . not permissible as it would be merely

advisory. The Supreme Court has admonished that federal courts

‘are not in the business of pronouncing that past actions which

have no demonstrable continuing effect were right or wrong.’”)

(quoting Spencer v. Kemna,

, (1998)) (internal

citations omitted). Any controversy concerning defendant’s

actions is “neither immediate nor real,”

as N.P. is

currently permitted to enjoy the parks and participate in the

Town’s programs and activities (to the extent he is otherwise

eligible).

Defendant’s motion for judgment on plaintiffs’ request for

injunctive and declaratory relief is therefore granted.

21 CONCLUSION

This dispute ought to have been resolved short of

litigation. Plaintiffs’ basic social complaint is not an

unreasonable one: on its face, they describe what could well be

governmental action based not on legitimate safety concerns, but

rather on discriminatory stereotypes rooted in unfounded

assumptions about cognitive disabilities.

The plaintiffs’ case may fall short under applicable law,

but not before a full evidentiary development of the context in

which N.P.’s “six-year-old” words, or “threats,” were expressed,

including how they were understood by those decision-makers

involved and how they should have been understood by a

reasonable person informed of the facts. That may require a

trial or, at a minimum, well-supported summary judgment

briefing.

The facts developed may well support judgment for the Town

as a matter of law. But, it is equally plausible at this point

that words uttered by a person cognitively functioning at a six-

year-old level must be evaluated as such – particularly by those

charged with the responsibility to know and conform their

conduct to the law protecting citizens from unwarranted

discrimination. Mere recitation of maxims like “safety,”

unsupported by informed judgment or fact may well not suffice.

22 It may be that this case is distinguishable from those looking

only to conduct and not cause, in that, here, it seems not so

much that the disability caused sanctionable behavior, but,

rather, that the behavior itself is not sanctionable – because

the known disability precludes a sanctionable construction of a

“six year old’s” words when that six year old is known to those

seeking to impose the sanction, and who have been advised by an

informed police officer that neither the person nor the words

pose a threat.

These are not simple issues. It would behoove the parties,

with the assistance of counsel, to resolve this matter on

rational and reasonable terms acceptable to both sides. The

principles at stake are important ones, and the legal outcome is

far from clear; litigation may prove burdensome, and, in the

end, unsatisfying to all.

For the foregoing reasons, as well as those in defendant’s

memoranda in support of its motion, defendant’s motion for

judgment on the pleadings (document no. 8) is GRANTED in part

and DENIED in part.

SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge October 1, 2020

cc: Counsel of Record

23