Full opinion text
MEMORANDUM AND ORDER KEITH P. ELLISON, District Judge. Pending before the Court is the Motion for Summary Judgment (Doc. No. 32) filed by Defendants City of Stafford (“Stafford”), Jesus Estrada (“Officer Estrada”), and Bonny Krahn (“Chief Krahn”) (collectively, “Defendants”); the Motion to Dismiss Plaintiffs’ First Amended Complaint (Doc. No. 61) filed by Defendants Stafford and Chief Krahn; and the Motions to Quash Deposition Notices and for Protection from Improper Discovery (Doc. Nos. 46-51, 53) filed by non-parties Stafford City Council (the “Council”), various city council members, and Stafford Mayor Leonard Scarcella (collectively, “Movants”). After considering the parties’ arguments and the applicable law, the Court finds that the Motion for Summary Judgment should be granted in part and denied in part, that the Motion to Dismiss should be denied; and that the Motions to Quash Deposition Notices should be denied. I. FACTUAL BACKGROUND This lawsuit arises from the death of Aaron Hobart (“Aaron”), son of Plaintiffs Steve and Pam Hobart (individually, “Mr. Hobart” and “Ms. Hobart”; collectively, “the Hobarts” or “Plaintiffs”). Aaron suffered from a schizoaffective disorder, which resulted in delusions. (Pls.’ Ex. 24, Moreland Decl.) Aaron’s mental health was deteriorating in the days, weeks, and months leading up to February 18, 2009. For example, on August 25, 2007, Aaron was arrested for reckless driving, and the arresting officer believed that Aaron was “experiencing a mental health crisis.” (Defs.’ Ex. 6, Texas Department of Public Safety Offense Report, at 1-2.) When the Hobarts went to visit Aaron in jail, he spoke in an alternate voice — which Mr. Hobart described as “hoarse, whispered,” and “raspy” — and claimed that “he knew all the secrets of the universe,” while other people were “all just ignorant.” (Defs.’ Ex. 18, Pis.’ Ex. 5, Steve Hobart Dep., May 20, 2010, at 24, 29-30, 35-36.) After being transferred temporarily to a mental health facility, Aaron was prescribed medication for his schizoaffective disorder and released on September 13, 2007. (See Defs.’ Ex. 19, Pam Hobart Dep., March 23, 2010, at 235, 237.) Aaron was examined by three doctors during 2008, including two visits with the third, Dr. C. Scott Moreland, a psychiatrist. (Defs.’ Ex. 9, 10, 11, Medical Records.) Aaron did not visit Dr. Moreland after September 11, 2008, and Dr. Moreland’s records indicate that, contrary to Dr. Moreland’s orders, Aaron had stopped taking his Ability medication in November 2008. (Defs.’ Ex. 9, at 178-79.) On February 16, 2009, Mrs. Hobart called Dr. Moreland’s office to request an immediate appointment, and they scheduled an appointment for February 18, the next available slot. (Id.) Mrs. Hobart said at that time that Aaron was not posing a danger to himself or to others. (Id.) Someone from Dr. Moreland’s office instructed Mrs. Hobart to call him if there was any change in Aaron’s mental status for an earlier appointment, and that if Aaron became a danger to himself or others to call 911 or take him to the emergency room. (Id.) The Events at Issue On February 18, 2009, Aaron refused to leave his room to go to his doctor’s appointment. Mr. Hobart came home from work and joined Aaron in Aaron’s room, where he found Aaron speaking “belligerently and abusively” in the same raspy alternate voice. (Steve Hobart Dep., at 20-24.) Mrs. Hobart also called Dr. More-land, who told her not to press Aaron to attend the appointment that day so that Aaron could calm down. (Defs.’ Ex. 9, at 183.) Dr. Moreland also sent a follow-up email to Mrs. Hobart giving her instructions on how to administer Aaron’s medication, and providing information from the Houston Crisis Intervention Team (“CIT”) website regarding how to request emergency help. (Id. at 184-85.) The information stated that the CIT program “educates patrol officers about mental illness and tactics and techniques to help verbally de-escalate situations involving individuals in serious mental health crises,” that one should call for a CIT officer “[w]hen the situation involves a person in a serious mental health crisis,” and that, if the situation is an emergency, one should call 911 and request a CIT officer. (Id.) It also noted that “If the person is mentally ill and poses a substantial risk of imminent harm to self or others, Texas Peace officers have the authority to take the individual to a facility for an emergency mental health evaluation, even if the person is involuntary. The officer may use whatever force he needs to get the individual to the facility for evaluation.” (Id.) Based on the instructions in Dr. More-land’s email, Mrs. Hobart called 911 and requested a “CIT officer.” (Pls.’ Ex. 9, Dispatch Transcript, at 1.) She told the 911 operator, “I have a son that needs to be taken,” that he was “becoming ... very violent,” and that he was “deteriorate” [sic] and “becoming delusional,” but that “he’s not hurting anyone,” and “needs to be in a hospital” and “needs medication.” (Id.) The operator informed her that an officer would come to the Hobarts’ home. (Id.) A few minutes later, a man from the Stafford Police Department (“SPD”) called Mrs. Hobart twice with some questions, and Mrs. Hobart informed him that Aaron was “becoming more and more belligerent” but that he did not have any weapons in his room and that he was not “under the influence.” (Id. at 2-3.) Officers Garcia and Claunch from the SPD were the primary officers dispatched on the call, but Officer Estrada was the first to arrive at the Hobarts’ home. (Pls.’ Ex. 3, Jesus Estrada Dep., June 3, 2010, at 176-78.) Officer Estrada testified that, prior to arriving at the home, he was aware that Aaron was hallucinating, but did not know if Aaron was mentally ill or was simply under the influence of drugs. (Id. at 138.) Officer Estrada also testified that he believed dispatch had informed him that Aaron did not have a weapon. (Id. at 179.) SPD Sergeant Dustin Claborn (“Sgt. Claborn”) testified that Officer Estrada asked dispatch to ask Mrs. Hobart to step outside to talk to him when he arrived. (Pls.’ Ex. 2, Dustin Claborn Dep., June 4, 2010, at 126.) However, it is undisputed that when Officer Estrada arrived, Mrs. Hobart let him into the house. (See id. at 128.) Sgt. Claborn also testified that Officer Estrada did not attempt to learn where Aaron was located or whether he was trying to hurt himself or others. (Id. at 127-30.) The video camera in Officer Estrada’s car was running during the events at issue in this case, and both sides have provided that footage as an exhibit. The video shows Officer Estrada enter the Hobarts’ home by himself at approximately 15:07:59 on the video’s clock. For a period of time only the front yard is visible, with audio from inside the home captured on Officer Estrada’s microphone. Immediately after he enters the home, one can hear Officer Estrada conversing with Mrs. Hobart. At approximately 15:08:15, one can hear noises, and Officer Estrada shouts, “Stop!” and “Get back!” several times. At approximately 15:08:20, one can hear gunshots. Officer Estrada then begins shouting, “Goddamnit!” “Shots fired!” and “Oh my god!” and Mrs. Hobart begins screaming loudly. The video then shows two other SPD officers arriving in the house at approximately 15:08:43. They accompany Officer Estrada onto the lawn, where he kneels down with his head on the ground sobbing, and remains panicked during the next seven minutes of video and audio, repeatedly saying, “Oh my god,” crying, and stating that he cannot catch his breath. According to Officer Estrada’s testimony, the following occurred in the house: When he first entered, he thought that everything seemed quiet and normal, and “perceived ... that either the disturbance was over or there was no disturbance.” (Estrada Dep., at 208-11, 224-25.) Mrs. Hobart let him in, and the two spoke inside the house. (Id. at 209-10.) Officer Estrada then began walking down the hall, at which point Mrs. Hobart pointed town the hall, and Officer Estrada saw Aaron, approximately 30 feet away. (Id. at 224-30, 236.) Aaron was in a bedroom, and at first he was facing away from Officer Estrada, not yelling, screaming, or causing a disturbance. (Id. at 228.) Aaron then turned and saw Officer Estrada for the first time, at which point he loudly “roared,” brought his arms up “from down low to — up to his waist,” and began to charge at Officer Estrada. (Id. at 228-36.) At that point, Officer Estrada, who was approximately five feet away from the front door of the house, “took a step back trying to back away from him” because he believed Aaron was “going to come at” him. (Id. at 233-36.) However, Officer Estrada was unable to get out of Aaron’s way or to back out of the house because Aaron traveled the entire length of the hallway and began “attacking” Officer Estrada. (Id.) Officer Estrada remembers in those moments “hearing and feeling [] thumps on [his] head” that he attributes to “being punched” on the left side of his face and head. (Id. at 252-60.) Officer Estrada attempted to pull out his baton but was unable to because it got stuck in its holster, and was also unable to use his spray or to operate his police radio. (Id. at 237-41.) He testified that Aaron hit him to the point where Officer Estrada became “disoriented,” began “seeing stars” and “darkness” coming into his vision, and thought he was “fixing to be knocked out.” (Id. at 257-64.) He then heard the sound of gunshots, but did not know that he was the one doing the shooting, let alone who he was shooting at. (Id. at 262-63.) He does not know where Aaron was in relation to him when the shooting occurred, and is not sure where Mrs. Hobart was at the time (though he thinks she was to his left). (Id. at 265-68.) A few seconds later, Officer Estrada believed that Aaron was getting back up and felt someone — who he believed to be Aaron — grabbing his vest, so he attempted to shoot his gun again, but could not get his fingers to squeeze the trigger. (Estrada Dep. at 276-77; Pis.’ Ex. 4, Statement of Jesus Estrada, at 76.) However, the person grabbing his vest turned out to be one of his fellow SPD officers, who had just entered the house. (Estrada Dep. at 277.) According to Mrs. Hobart’s testimony, the following occurred in the house: When Officer Estrada arrived she “was under the impression that ... [she] was getting a CIT person that was going to explain that and was going to go through a certain procedure, so [she] was trusting that they knew what was going to happen next.” (Defs.’ Ex. 19, Pls.’ Ex. 6, Pam Hobart Dep., March 23, 2010, at 168.) Aaron ran from out of his bedroom and toward Officer Estrada while “flailing with his arms.” (Id. at 33-35.) When he reached Officer Estrada, “Officer Estrada had his arms up,” and Aaron’s arms hit Officer Estrada’s arms. (Id. at 33-35.) She did not see Aaron’s arms hit Officer Estrada’s head. (Id. at 35.) Although Mrs. Hobart acknowledged that she did not “see every single strike that Aaron made on Officer Estrada, sufficient to tell us where each one landed,” she “watched them the entire time,” and only closed her eyes after Officer Estrada pulled gun from its holster but before he fired it. (Id. at 37-40.) The flailing stopped and “2 or 3 seconds passed” before Officer Estrada began shooting. (Id. at 40.) In the few seconds prior to the shooting there was “a separation of 2 or 3 feet” between Aaron and Officer Estrada, and that she had shifted her weight to go between the two, at which point Officer Estrada pulled out his gun. (Id.) Officer Estrada fired six or seven bullets in the Hobarts’ home, and four struck Aaron: one in the back of the right upper neck, one in the right lower back, one in the back of the right hip, and one in the right middle back. (Pls.’ Ex. 22, Autopsy Report, at 4-6.) Officer Estrada did not have any bruises on his face from the incident, although he did have some redness on his face. (Estrada Dep., at 260; Pls.’ Ex. 16-21, Photos of Estrada’s Injuries.) At the time of his death on February 18, 2009, Aaron was nineteen years old, stood five-foot-nine-inches tall, and weighed 166 pounds. (Pls.’ Ex. 22, Autopsy Report, at 3.). He was barefoot and dressed in shorts and a t-shirt. (Id.) There is no suggestion that he had any type of weapon at that time. Officer Estrada stands six-foot-one-inch tall and weighs 190 pounds. (Estrada Dep., at 53-54.) II. PROCEDURAL HISTORY Defendants filed a Motion to Dismiss (Doc. No. 7) on November 4, 2009. They filed this Motion for Summary Judgment (Doc. No. 32) on August 9, 2010. Also on August 9, Plaintiffs filed a Motion to Compel Depositions of Members of the Stafford City Council (Doc. No. 29). On August 30, 2010, 2010 WL 3419660, the Court issued a Memorandum and Order (Doc. No. 43) granting Plaintiffs’ Motion to Compel Depositions on the grounds that the depositions would be relevant to Plaintiffs’ claims against Stafford under Monell v. Dep’t of Social Services, 436 U.S. 658, 98 5.Ct. 2018, 56 L.Ed.2d 611 (1978), and that any applicable legislative privilege could only be invoked by the individual city council members. In that order, the Court indicated that the council members could invoke any applicable privileges if and when their depositions were noticed, and extended Plaintiffs’ deadline to respond to the Motion for Summary Judgment until ten days after resolution of the disputes relating to those depositions. Various city council members, along with the Stafford mayor and the Council itself, filed Motions to Quash their deposition notices. (Doc. Nos. 46-51, 53.) On September 29, 2010, 2010 WL 3894112, the Court issued a Memorandum and Order (Doc. No. 45) granting in part and denying in part the Motion to Dismiss, and granting Plaintiffs leave to file an amended complaint to cure the deficiencies identified in that order. On October 19, 2010, Plaintiffs filed an Amended Complaint. (Doc. No. 54.) On November 2, 2010, Defendants Stafford and Chief Krahn filed a Motion to Dismiss Plaintiffs’ Claims, and Defendant Estrada moved to dismiss the state-law claims. (Doc. No. 61.) The Court subsequently ordered Plaintiffs to respond to the Motion for Summary Judgment, but delayed their response deadline with respect to the Monell claims against Stafford. Plaintiffs filed their response on February 23, 2011, Defendants filed a reply on March 23, 2011, and Plaintiffs filed a sur-reply on April 7, 2011. III. LEGAL STANDARDS A. MOTION TO DISMISS “To survive a Rule 12(b)(6) motion to dismiss, a complaint ‘does not need detailed factual allegations,’ but must provide the plaintiffs grounds for entitlement to relief — including factual allegations that when assumed to be true ‘raise a right to relief above the speculative level.’ ” Cuvil lier v. Taylor, 503 F.3d 397, 401 (5th Cir.2007) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). That is, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). 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.” Id. (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). The plausibility standard is not akin to a “probability requirement,” but asks for more than a sheer possibility that a defendant has acted unlawfully. Id. A pleading need not contain detailed factual allegations, but must set forth more than “labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (citation omitted). Ultimately, the question for the court to decide is whether the complaint states a valid claim when viewed in the light most favorable to the plaintiff. The court must accept well-pleaded facts as true, but legal conclusions are not entitled to the same assumption of truth. Iqbal, 129 S.Ct. at 1950 (citation omitted). The court should not “ ‘strain to find inferences favorable to the plaintiffs’ ” or “accept ‘conclusory allegations, unwarranted deductions, or legal conclusions.’ ” R2 Investments LDC v. Phillips, 401 F.3d 638, 642 (5th Cir.2005) (quoting Southland Sec. Corp. v. INSpire Ins. Solutions, Inc., 365 F.3d 353, 362 (5th Cir.2004)). Importantly, the court should not evaluate the merits of the allegation, but must satisfy itself only that plaintiff has adequately pled a legally cognizable claim. United States ex rel. Riley v. St. Luke’s Episcopal Hosp., 355 F.3d 370, 376 (5th Cir.2004). “Motions to dismiss under Rule 12(b)(6) are viewed with disfavor and are rarely granted.” Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 231 (5th Cir.2009) (internal citation omitted). B. MOTION FOR SUMMARY JUDGMENT A motion for summary judgment requires the Court to determine whether the moving party is entitled to judgment as a matter of law based on the evidence thus far presented. Fed.R.Civ.P. 56(c). Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Kee v. City of Rowlett, 247 F.3d 206, 210 (5th Cir.2001) (quotations omitted). A genuine issue of material fact exists if a reasonable jury could enter a verdict for the non-moving party. Crawford v. Formosa Plastics Corp., 234 F.3d 899, 902 (5th Cir.2000). The Court views all evidence in the light most favorable to the non-moving party and draws all reasonable inferences in that party’s favor. Id.; see also Harvill v. Westward Communications, L.L.C., 433 F.3d 428, 436 (5th Cir.2005) (court may not make credibility determinations or weigh the evidence at the summary judgment stage). Hearsay, conclusory allegations, unsubstantiated assertions, and unsupported speculation are not competent summary judgment evidence. Fed.R.Civ.P. 56(e)(1); see, e.g., Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir.1996); McIntosh v. Partridge, 540 F.3d 315, 322 (5th Cir.2008); see also Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994) (noting that a non-movant’s burden is “not satisfied with ‘some metaphysical doubt as to the material facts’ ”) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). Defendants move to dismiss and for summary judgment on several grounds; the Court will address each in turn. In the interest of efficiency, for those claims for which Defendants' move both to dismiss and for summary judgment, the Court will address all of Defendants’ arguments as part of the summary judgment motion. With respect to the Monell claims against Stafford, however, Plaintiffs’ have not yet been required to respond to the Motion for Summary Judgment, so the Court will address only the Motion to Dismiss. IV. STANDING Defendants first argue that the Hobarts lack standing to bring claims in their individual capacities. In support of this contention they point to cases holding that “all persons who claim a deprivation of constitutional rights” are “required to prove some violation of their personal rights.” Coon v. Ledbetter, 780 F.2d 1158, 1160 (5th Cir.1986) (citing Dohaish v. Tooley, 670 F.2d 934 (10th Cir.1982)). However, Plaintiffs do claim deprivation of their individual constitutional rights, for injuries suffered as a result of the wrongful death of their son. The Fifth Circuit has clearly held that those “within the class of people entitled to recover under Texas law for the wrongful death of a child” are eligible “to recover under § 1983 for her own injuries resulting from the deprivation of her son’s constitutional rights.” Rhyne v. Henderson County, 973 F.2d 386, 391 (5th Cir.1992). Texas law makes clear that the parents of the deceased are eligible beneficiaries in a wrongful death action. Tex. Civ. Prac. & Rem.Code § 71.004(a) (Vernon 2008); see Valle v. City of Houston, 613 F.3d 536, 541 (5th Cir.2010). Accordingly, the Court finds that the Hobart have standing to bring a wrongful death claim on behalf of themselves under Section 1983. V. CONSTITUTIONAL CLAIMS A. OFFICER ESTRADA Defendants argue that Plaintiffs have not proven a violation of the Fourth Amendment by Officer Estrada, and even if they have, Officer Estrada is entitled to qualified immunity. The Court disagrees, and finds that Officer Estrada is not entitled to summary judgment on this claim. 1. Constitutional Violation “To prevail on a Fourth Amendment excessive-force claim, a plaintiff must establish: (1) an injury; (2) that the injury resulted directly from the use of excessive force; and (3) that the excessiveness of the force was unreasonable.” Carnaby v. City of Houston, 636 F.3d 183, 187 (5th Cir.2011) (quoting Freeman v. Gore, 483 F.3d 404, 416 (5th Cir.2007)). “It is objectively unreasonable to use deadly force ‘unless it is necessary to prevent a suspect’s escape and the' officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.’ ” Flores v. City of Palacios, 381 F.3d 391, 399 (5th Cir.2004) (quoting Tennessee v. Garner, 471 U.S. 1, 3, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985)). Conversely, “[a]n officer’s use of deadly force is presumptively reasonable when the officer has reason to believe that the suspect poses a threat of serious harm to the officer or to others.” Ontiveros v. City of Rosenberg, 564 F.3d 379, 382 (5th Cir.2009) (citing Mace v. City of Palestine, 333 F.3d 621, 623 (5th Cir.2003)). Further, “[t]he ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (citing Terry v. Ohio, 392 U.S. 1, 20-22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). “To determine whether a seizure was objectively reasonable, and thus whether an injury is cognizable, we ask whether the totality of the circumstances justified [that] particular sort of search or seizure” balancing “the amount of force used against the need for force.” Flores, 381 F.3d at 398-99 (citations omitted). “This balancing test requires careful attention to the facts and circumstances of each particular case.” Id. at 399 (citation omitted). First, there is no dispute that there has been an injury — the death of Aaron Hobart. Second, whether Officer Estrada’s conduct was clearly excessive and unreasonable turns on whether Officer Estrada had probable cause to believe that Hobart posed a significant threat of death or serious physical injury to Officer Estrada or to others. Id. There is conflicting evidence on this question, and a reasonable jury could find that Officer Estrada lacked such probable cause. When she called 911, Mrs. Hobart specifically requested that a CIT officer be dispatched. (Doc. No. 72, Ex. 9, at 1.) She told the dispatcher that Aaron was becoming delusional and very violent, but that he was not hurting anyone and needs medication and to be in a hospital. (Doc. No. 72, Ex. 9, at 1.) Therefore, based on the 911 call, there was reason for Officer Estrada or other police officials to believe that Hobart could potentially be violent, but not that he had committed any crime or hurt anyone. After he entered the house, Officer Estrada claims he heard a “roar” from Aaron, but the Hobarts deny that Aaron made such a noise, and .it is (at the very least) not readily apparent from the audio recording of the incident that such a noise occurred. Officer Estrada testified that Aaron punched him in the head, but he did not actually see the punching, and did not know if it was from fists or from something else. (Estrada Dep., at 292-95.) Mrs. Hobart, the only other eyewitness to the events directly prior to the shooting, testified that she did not see Aaron hit Officer Estrada in the head. Rather, she testified that when Aaron came into the room “he was flailing with his arms,” that “Officer Estrada had his arms up,” and that Aaron’s arms hit Officer Estrada’s arms. (Pam Hobart Dep., at 33-35.) Although Mrs. Hobart acknowledged that she did not “see every single strike that Aaron made on Officer Estrada, sufficient to tell us where each one landed,” she did testify that she “watched them the entire time,” and only closed her eyes after Officer Estrada pulled out his gun but before he fired it. (Pam Hobart Dep., at 37-40.) There was no indication afterwards that Officer Estrada had suffered any significant injuries — only minor-looking redness on his cheek. Furthermore, Officer Estrada had become “disoriented” and was “seeing stars” and “darkness” coming into his vision during those moments, to the point where he did not even know that it was him shooting the gun. (Estrada Dep., at 257-64.) Mrs. Hobart testified that the flailing stopped and “2 or 3 seconds passed” before Officer Estrada began shooting. (Id. at 40.) She also testified that in the few seconds prior to the shooting there was “a separation of 2 or 3 feet” between Aaron and Officer Estrada, and that she had shifted her weight to go between the two, at which point Officer Estrada pulled out his gun. (Id.) Accordingly, if a jury were to credit Mrs. Hobart’s testimony, it could reasonably conclude that Officer Estrada faced only minor physical contact from Aaron, and that such contact ended and the two men were separated for multiple seconds prior to Officer Estrada pulling out his gun and shooting Aaron approximately six times. Under that factual scenario, Officer Estrada would lack probable cause to believe that Aaron posed a significant threat of death or serious physical injury to Officer Estrada or to others, and shooting Aaron in the manner that he did would be clearly excessive and unreasonable. Summary judgment is particularly 'inappropriate on the question of whether the use of force was excessive, as the “balancing test requires careful attention to the facts and circumstances of each particular case.” Flores, 381 F.3d at 399 (citation omitted). The facts and circumstances are difficult to discern conclusively in this case, as the only available accounts of the critical events an audio recording and two witnesses, both of whom appear to have been experiencing strong emotional reactions that may have impaired their consciousness and recollection. Viewing the summary judgment facts in the light most favorable to the non-movants, there remain genuine issues of material fact on this question. 2. Qualified Immunity Defendants contend that, even if Officer Estrada’s conduct violated the Fourth Amendment, he is protected by the doctrine of qualified immunity. Officials sued in their individual capacities are protected by qualified immunity unless the act violates a constitutional right clearly established at the time. Sanchez v. Swyden, 139 F.3d 464, 466-467 (5th Cir.1998). “The doctrine of qualified immunity serves to shield a government official from civil liability for damages based upon the performance of discretionary functions.” Cozzo v. Tangipahoa Parish Council, 279 F.3d 273, 284 (5th Cir.2002). To avoid summary judgment, a plaintiff also must present evidence to raise a fact issue “material to the resolution of the questions whether the defendants acted in an objectively reasonable manner in view of the existing law and facts available to them.” Lampkin v. City of Nacogdoches, 7 F.3d 430, 435 (5th Cir.1993). To determine whether the plaintiff has overcome the presumption of qualified immunity, the Court first considers whether the plaintiff has proven a violation of a clearly established constitutional right. Collins v. Ainsworth, 382 F.3d 529, 537 (5th Cir.2004). A right is “clearly established” if its contours are “sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). If that prong is met, the court must consider whether the defendant’s “actions were objectively reasonable” in light of “law which was clearly established at the time of the disputed action.” Collins, 382 F.3d at 537, “The touchstone of this inquiry is whether a reasonable person would have believed that his conduct conformed to the constitutional standard in light of the information available to him and the clearly established law.” Glenn v. City of Tyler, 242 F.3d 307, 312 (5th Cir.2001). “The defendant’s acts are held to be objectively reasonable unless all reasonable officials in the defendant’s circumstances would have then known that the defendant’s conduct violated” the plaintiffs asserted constitutional or federal statutory right. Thompson v. Upshur County, 245 F.3d 447, 457 (5th Cir.2001). In February 2009, when Aaron Hobart’s shooting death occurred, it was clearly established that “ ‘deadly force violates the Fourth Amendment unless the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others.’ ” Bazan v. Hidalgo County, 246 F.3d 481, 488 (5th Cir.2001) (quoting Garner, 471 U.S. at 11, 105 S.Ct. 1694); see Meadows v. Ermel, 2005 WL 1923596, at *9 (S.D.Tex. Aug. 10, 2005) (“the law is clearly established that an officer can use deadly force only when he has probable cause to believe that a suspect poses a threat of death or serious harm to the officer or others”). The threat of physical harm must be immediate. Garner, 471 U.S. at 11, 105 S.Ct. 1694. As discussed above, Mrs. Hobart’s testimony and other evidence (such as the lack of injuries to Officer Estrada) support Plaintiffs’ claim that Officer Estrada did not have probable cause to believe Aaron posed a threat of death of serious physical harm, let alone an immediate threat. Shooting Aaron under that circumstance would violate clearly established law at the time. “[I]n the light of pre-existing law the unlawfulness [would] be apparent.” Anderson, 483 U.S. at 640, 107 S.Ct. 3034. Thus, genuine issues of material fact remain on this question, and Plaintiffs have presented evidence of a violation of a clearly established constitutional right sufficient to defeat summary judgment. Next, viewing the evidence in the light most favorable to Plaintiffs, the Court finds that Officer Estrada’s conduct was not objectively reasonable. That is to say, if the jury credits Plaintiffs’ version of the facts, no reasonable officer in Officer Estrada’s circumstances would have believed his conduct to be lawful. Thompson v. Upshur County, 245 F.3d 447, 457 (5th Cir.2001). Given the clearly established law at the time, no reasonable officer would have believed that it was legal to shoot repeatedly at a young man whom the officer had no reason to believe had a weapon and who merely hit the officer’s arms with his flailing arms before multiple seconds passed with a two- or three-foot gap between the two men. Officer Estrada testified that he was blacking out at the time of the shooting, to the point that he did not even know who was shooting the gun. However, those subjective circumstances are not relevant to this objective prong. See Cozzo v. Tangipahoa Parish Council — President Government, 279 F.3d 273, 284 (5th Cir.2002) (“an individual defendant’s subjective state of mind is irrelevant to the qualified immunity inquiry”). Even if a police officer who uses deadly force believed he is at risk of death or serious injury, he is not entitled to qualified immunity if that belief was objectively unreasonable. For example, if an officer were under the influence of alcohol, or if his mental state caused him to panic such that he unreasonably determine that a threat was present, that would not render his determination reasonable. Plaintiffs provide evidence of a factual scenario under which Officer Estrada’s use of force would constitute a violation of clearly established Fourth Amendment law, and which no reasonable officer could interpret to be otherwise. That is not to say that the jury will credit the competing evidence in that manner, but simply to say that Officer Estrada is not entitled to qualified immunity as a matter of law. B. CITY OF STAFFORD Municipalities are considered “persons” who may be sued directly under Section 1983. Monell v. Department of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)). However, “a municipality cannot be held vicariously liable for the constitutional torts of its employees or agents.” Gros v. City of Grand Prairie, Tex., 181 F.3d 613, 615 (5th Cir.1999) (citing Monell, 436 U.S. at 694, 98 S.Ct. 2018). A local government may be sued under Section 1983 “ ‘if it is alleged to have caused a constitutional tort through a policy statement, ordinance, regulations, or decision officially adopted and promulgated by that body’s officers.’ ” Zarnow v. City of Wichita Falls, 614 F.3d 161, 166 (5th Cir.2010) (quoting City of St. Louis v. Praprotnik, 485 U.S. 112, 121, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988) (plurality opinion)). To establish municipal liability under Section 1983, a plaintiff must prove three elements: 1) a policymaker; 2) an official policy; and 3) a violation of constitutional rights whose moving force is the policy or custom. Id. (quotations omitted). In the September 29 Order, the Court found that Plaintiffs had not stated a claim against Stafford. The Court found that Plaintiffs met the first element by adequately pleading that Chief Krahn is an official policymaker for the City of Stafford. However, the Court found, Plaintiffs failed to meet the second element of proving the existence of an official custom or policy. In their Amended Complaint, Plaintiffs provide additional allegations regarding the claim against Stafford. Stafford again moves to dismiss for failure to state a claim upon which relief may be granted. The Court will address each element of municipal liability in turn. 1. Policymaker With regard to the first prong, “only those municipal officials who have ‘final policymaking authority’ may by their actions subject the government to § 1983 liability.” Praprotnik, 485 U.S. at 123, 108 S.Ct. 915 (plurality opinion) (quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 483, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986) (plurality opinion)). “[T]he identification of those officials whose decisions represent the official policy of the local governmental unit is itself a legal question to be resolved by the trial judge before the case is submitted to the jury.” Jett v. Dallas Independent School Dist., 491 U.S. 701, 737, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989) (emphasis in original). The trial judge is to determine the identity of a municipality’s final policymaker by “[r]e-viewing the relevant legal materials, including state and local positive law, as well as ‘custom or usage’ having the force of law.” Id. at 737, 109 S.Ct. 2702 (quoting Praprotnik, 485 U.S. at 124 n. 1, 108 S.Ct. 915 (plurality opinion)). “A city’s governing body may delegate policymaking authority (1) by express statement or formal action or (2) it may, by its conduct or practice, encourage or acknowledge the agent in a policymaking role.” Zarnow, 614 F.3d at 167. In this case, Plaintiffs allege that Chief Krahn “is an official policymaker.” (Doc. No. 54, ¶ 63.) They also allege: Chief Krahn had policymaking authority both explicitly through the City’s written ordinances and implicitly as a result of the delegation of authority and the customs and practices of the City of Stafford City Council. Chief Krahn had authority to establish binding city policy respecting matters relating to the police department and to adjust that policy for changing circumstances. Such authority is reflected in the City’s ordinances delegating all policymaking authority for the police department to Chief Krahn. Furthermore, it is reflected in the custom and practice of Chief Krahn establishing all practices of the police department, including all relevant General Orders relating to police operations, which are not even reviewed by the Stafford City Council. (Id. at ¶ 64.) These allegations, if proven true, would support a finding that Chief Krahn is a final policymaker for the City of Stafford. Even if Chief Krahn has not been explicitly delegated final policymaking authority, “absent a contrary regulation or ordinance, a city council’s ... continuous refusal to exercise some theoretical authority to review a municipal official’s policy decisions will, at some point, establish the municipal official as the final policymaking authority by custom or usage having the force of state law.” Gros, 181 F.3d at 616 n. 2; see also Worsham v. City of Pasadena, 881 F.2d 1336, 1341 (5th Cir.1989) (“Rule 12(b)(6) dismissal could be improper ... where it is based solely on a theoretical right of review because a plaintiff may be able to demonstrate that such review is ineffective and meaningless.”); Crowder v. Sinyard, 884 F.2d 804, 829 (5th Cir.1989) (notwithstanding “formal subservice of the Chief of Police to city officials,” chief could be considered final policymaker where his uncontradicted testimony “indicate[d] that the city manager delegated all power regarding the city’s law enforcement activities to [him]” and, “except as to the department’s budget, city officials exercise no control over the department’s activities, policies, or procedures”), overruled in part on other grounds by Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990); Bishop v. McCollum, 1994 WL 1890218, at *2 (N.D.Miss. Sept. 27, 1994) (holding that chief of police was policymaker based on, among other things, chief of police’s deposition testimony). Accordingly, Plaintiffs have alleged that Chief Krahn was a “final policymaker” sufficiently to meet the first prong. 2. Policy or Custom With regard to the second prong, a plaintiff may prove the existence of an “official policy” in one of two ways: 1) by pointing “to a policy statement formally announced by an official policymaker”; or 2) by demonstrating “a persistent widespread practice of city officials or employees, which, although not authorized by officially adopted and promulgated policy, is so common and well settled as to constitute a custom that fairly represents municipal policy.” Zarnow, 614 F.3d at 168-69 (citation omitted). The latter type of policy may itself come in one of two forms: 1) “a pattern of unconstitutional conduct may be shown on the part of municipal actors or employees” who “are not policymakers”; or 2) “a final policymaker took a single unconstitutional action.” Id. at 169 (emphases in original). The failure to train municipal employees may also constitute a “policy,” but only when it “reflects a ‘deliberate’ or ‘conscious’ choice by a municipality.” City of Canton v. Harris, 489 U.S. 378, 389, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). Thus, although municipalities are not normally liable for inadequate training of employees, failure to properly train constitutes an actionable “policy” if, “in light of the duties assigned to specific officers or employees the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need.” Id. at 390, 109 S.Ct. 1197. “ ‘Deliberate indifference’ is a stringent standard, requiring proof that a municipal actor disregarded a known or obvious consequence of his action.” Brown v. Bryan County 219 F.3d 450, 457 (5th Cir.2000) (citing Bryan County v. Brown, 520 U.S. 397, 410, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997)). “[A] showing of deliberate indifference is difficult, although not impossible, to base on a single incident.” Sanders-Burns v. City Of Plano, 594 F.3d 366, 382 (5th Cir.2010). “Claims of inadequate training generally require that the plaintiff demonstrate a pattern of conduct.” Id. “The plaintiff must demonstrate ‘at least a pattern of similar incidents in which the citizens were injured ... to establish the official policy requisite to municipal liability under section 1983.’ ” Snyder v. Trepagnier, 142 F.3d 791, 798 (5th Cir.1998) (quoting Rodriguez v. Avita, 871 F.2d 552, 554-55 (5th Cir.1989)); see also Estate of Davis ex rel. McCully v. City of North Richland Hills, 406 F.3d 375, 383 (5th Cir.2005) (same); Valle v. City of Houston, 613 F.3d 536, 547 (5th Cir.2010) (“Usually a plaintiff must show a pattern of similar violations, and in the case of an excessive force claim, as here, the prior act must have involved injury to a third party.”). It is possible, although narrowly so, for a plaintiff to prove municipal liability for failure to train fits under the narrow scope of the “single incident” exception. Roberts v. City of Shreveport, 397 F.3d 287, 295 (5th Cir.2005) (citing Brown, 520 U.S. 397, 117 S.Ct. 1382). In order to prevail under that exception, “a plaintiff must prove that the ‘highly predictable’ consequence of a failure to train would result in the specific injury suffered, and that the failure to train represented the ‘moving force’ behind the constitutional violation.” Id. (citing Brown, 219 F.3d at 461). In their Amended Complaint, Plaintiffs allege the existence of a policy in several ways. First, they allege customs in Stafford police practices that were “so common and well settled as to constitute a custom that fairly represents municipal policy.” Zarnow, 614 F.3d at 168-69. The alleged customs primarily concern the lack of policies regarding how emergency dispatchers and police officers should handle calls and encounters involving mentally ill people. For example, Plaintiffs allege: The police department’s response to the call for help from the Hobarts followed the City’s established policies and practices in terms of failing to obtain appropriate information relating to the circumstances surrounding the need for services, failing to provide thorough information to the officers dispatched, failing to require Officer Estrada to wait for additional officers before entering the residence, failing to require Officer Estrada to implement CIT procedures on this call. (Doc. No. 54, ¶ 66.) However, Plaintiffs also allege a custom, practice, or policy that includes “[ajllowing, encouraging, requiring, and training officers to use deadly weapons in lieu of less harmful techniques, including non-lethal physical restraints or proper detention techniques,” “to use deadly force as a first resort, rather than training them to assess the situation and use only necessary force,” and “to confront mental health detainees in such a way as to lead to the officer’s use of excessive force.” (Id. at ¶ 71(a)(c).) Specifically, Plaintiffs allege, “the City trains officers to assess situations according to an ‘action/reaction’ motive. The City trains officers and expects them to use excessive or deadly force before a person has a chance to act.” (Id. at ¶ 72.) With regard to their allegations based on the lack of policies, Plaintiffs point to no authority that the failure to create policies in a certain area can constitute an unconstitutional custom or practice. With regard to the other allegations, however, Plaintiffs point to a specific type of training they allege that Stafford applies — the “action/reaction motive” — and allege specifically that officers are trained to use deadly force “as a first resort” and “before a person has a chance to act.” If proven true, such a custom or practice would violate the Constitution by instructing officers to use more force than the Fourth Amendment permits. The Court finds that Plaintiffs’ allegations are sufficiently particular and not conclusory. Even if such a custom was not explicit, Plaintiffs could prove that it is “a persistent widespread practice” that “is so common and well settled as to constitute a custom that fairly represents municipal policy.” Zarnow, 614 F.3d at 168-69. The Court finds that these allegations are sufficient to raise a plausible claim of the existence of unconstitutional customs or practices that rose to the level of a city policy. Plaintiffs also allege the existence of a policy on the basis that Stafford was deliberately indifferent in failing to train and/or supervise its police officers and emergency dispatchers regarding how to handle calls and encounters involving mental ill people. Specifically, they argue that Stafford failed to provide training for: — Proper communication of crisis intervention requests for mentally-ill persons; — Proper responses to requests for an unavailable police service, such as requests for a crisis intervention team officer; — Dispatching appropriate personnel to respond to mental health calls; — Appropriate and adequate information for first response officers; •— Proper use of non-lethal weapons, such as batons and chemical spray; — Proper use of a firearm; — Proper use of non-lethal, self-defense measures; — Appropriate management and detention of persons with mental impairments; — Limiting excessive use of force and use of deadly force; — Proper use of crisis intervention techniques; and — Appropriate use of supplemental restraints. (Id. at ¶ 53.) Plaintiffs also now allege that the city “knew and acknowledged that there would be recurring situations involving emergency calls relating to encounters with mentally ill citizens” and “knew and acknowledged the potential for constitutional violations with respect to lack of training in firearms and appropriate use of force,” yet failed to train its officers in those areas. (Id. at ¶ 56, 58.) Plaintiffs allege that the city and Chief Krahn were aware of a “Community Plan” that “was developed that acknowledged the ongoing pattern of conduct that constituted constitutional violations of the mentally ill citizens of Fort Bend County,” yet provided no additional training and supervision in the deficient areas. (Id. at ¶ 57.) They also allege that Stafford “was aware specifically of a pattern of conduct on the part of Officer Estrada of constitutional violations from conduct evidencing lack of judgment, lack of common sense, lack of safe practices,” yet failed to properly train or supervise him. (Id. at ¶ 59.) Plaintiffs acknowledge that they “do not have information reflecting a pattern of injuries from constitutional violations,” but instead contend that the relevant inquiry is “whether there has been a pattern of unconstitutional conduct.” (Doc. No. 62, at 11 (emphases in original).) The Court acknowledges the logic behind a rule allowing failure to train liability based on showing a pattern of actions that greatly risked injury to third parties but did not actually injure anyone until the instant plaintiff. However, such an approach has been foreclosed by binding precedent, which requires a showing that the prior act “involved injury to a third party” to establish a pattern of misconduct for failure to train liability. Valle, 613 F.3d at 547; see also Estate of Davis, 406 F.3d at 383; Snyder, 142 F.3d at 798 (5th Cir.1998); Rodriguez, 871 F.2d at 554-55 (5th Cir.1989). The Court does find, however, that Plaintiffs have stated a claim under the narrow “single incident exception.” In other words, Plaintiffs have alleged facts that, if proven true, would support a finding that Aaron’s death was the “highly predictable consequence” of Stafford’s fail to train its employees. Plaintiffs allege that Chief Krahn and others were aware of the inadequacies in training with regard to mental health issues and use of force in Stafford as a whole, and with regard to Officer Estrada in particular. Moreover, Plaintiffs allege that the inadequacies were so severe that it was known or obvious to Officer Krahn and others that a death such as Aaron’s- — -from excessive force used against a mentally ill person — was the inevitable consequence of those inadequacies. This holding finds support in the Fifth Circuit’s decision in Brown, 219 F.3d 450. After the Supreme Court held that the county in that case was not liable under the single incident exception for hiring a police officer who used excessive force, 520 U.S. 397, 117 S.Ct. 1382, the Fifth Circuit held that the county was liable under that exception for failure to train the officer. The court reasoned that the sheriff “knew that all law enforcement officers, unless expressly restricted, will face situations calling for the application of force,” and that “there was an even greater magnitude of obviousness of the need for training and predictability of the consequences without training” with the officer in particular due to behavior and tendencies he had previously exhibited. 219 F.3d at 463. The court also noted the Supreme Court’s observation that the consequences of “the failure to train a single law enforcement officer as to a specific skill necessary to the discharge of his duties,” are much easier to predict than, for example, “the consequence of a single hiring decision.” Id. at 461 (quoting Brown, 520 U.S. at 410, 117 S.Ct. 1382). Brown involved the complete failure to train an officer, while the Plaintiffs in the instant case acknowledge that Officer Estrada and other Stafford officers received some training. However, Plaintiffs point to specific areas of inadequate training — regarding mentally ill people and use of force — that themselves made the injurious consequences of the failure to train obvious. Indeed, in Brown the problem with the lack of training centered on the lack of training regarding proper use of force. Accordingly, the Court finds that Plaintiffs have adequately alleged a failure to train to state a claim under the single incident exception. Defendants argue that, as a matter of law, they cannot be liable for a failure to train claim because SPD officers were certified under the Texas Commission on Law Enforcement Officer Standards and Education (“TCLEOSE”) training standards. The Court disagrees with that argument for two reasons. First, Plaintiffs allege in a non-conclusory manner that Officer Estrada received inadequate training, and at the motion to dismiss stage all well-pleaded facts must be taken as true. Indeed, the summary judgment briefing with regard to Chief Krahn makes clear that the parties vigorously dispute whether Officer Estrada indeed received the training mandated by TCLEOSE. Second, the Court disagrees that compliance with state-mandated training requirements automatically precludes liability for failure to train. The Court does not read any of the Fifth Circuit cases cited by Defendants (all of which concerned summary judgment, not motions to dismiss) to hold that state requirements provide such per se immunity. See Zarnow, 614 F.3d at 170-71; Roberts, 397 F.3d at 293-95; Baker v. Putnal, 75 F.3d 190, 200 (5th Cir.1996); Benavides v. County of Wilson, 955 F.2d 968, 973 (5th Cir.1992). Those cases treat compliance with state training requirements as a relevant but not dispositive factor. See Zarnow, 614 F.3d at 171 (“We consider compliance with state requirements as a factor counseling against a ‘failure to train’ finding.”) (emphasis added). So, for example, the court in Benavides approached the issue as follows: Benavides has produced no evidence suggesting that the deputies received less than the basic medical training required by Texas law. Benavides must show, therefore, that this legal minimum of training was inadequate to enable the deputies to deal with “usual and recurring situations” faced by jailers and peace officers. 955 F.2d at 973. Thus, even where officers have met state training requirements, the Fifth Circuit permits plaintiffs to prove deliberate indifference from failure to train. Here, Plaintiffs have sufficiently alleged a failure to train. At the summary judgment stage (which will be quite soon, due to the unusual procedural posture of this case), Plaintiffs will face a high burden to prove the existence of a policy, either as a custom or practice or under the single incident exception. However, in considering a motion to dismiss under Rule 12(b)(6), the Court must only determine whether Plaintiffs have plausibly alleged facts that, if proven true, would provide a basis for recovery. Plaintiffs have done so here with respect to the second prong of municipal liability, alleging the existence of a “policy.” 3. Causation With regard to the third prong, a plaintiff must prove that the municipal policy was the “ ‘moving force’ behind the injury alleged.” Brown, 520 U.S. at 404, 117 S.Ct. 1382. That is, the plaintiff “must demonstrate a direct causal link between the municipal action and the deprivation of federal rights.” Id. In this case, Plaintiffs allege that Stafford’s customs and practices, along with its failure to train its employees, were the cause of Aaron’s death. (Doc. No. 54, ¶¶ 52, 56, 60, 66, 67, 69.) The Court finds that, if Plaintiffs’ allegations are proven true, it is plausible that the unconstitutional policies were the “moving force” behind Aaron’s death. See, e.g., Brown, 219 F.3d at 463-65 (finding sufficient evidence that failure to train officer was moving force behind plaintiffs injury). Accordingly, Plaintiffs have made sufficient allegations to meet the third prong of municipal liability. C. CHIEF KRAHN Both the Motion to Dismiss and Motion for Summary Judgment on the claims against Chief Krahn are now fully briefed. However, there is significant factual and legal overlap between these claims and those against Stafford. Accordingly, the Court will defer ruling on these claims until the Motion for Summary Judgment on the claims against Stafford is fully briefed. YI. AMERICANS WITH DISABILITIES ACT/REHABILITATION ACT Defendants also move to dismiss and for summary judgment on Plaintiffs’ claims against Stafford under Title II of the Americans with Disabilities Act (“ADA”) and Section 504 of the Rehabilitation Act. 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. According to the statute, “disability” means, “with respect to an individual — (A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.” Id. at § 12102. “[Qualified individual with a disability” means “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 participation in programs or activities provided by a public entity.” Id. at § 12131(2). “A ‘public entity’ includes ‘any department, agency, special purpose district, or other instrumentality of a State or States or local government.’ ” Hainze v. Richards, 207 F.3d 795, 799 (5th Cir.2000) (quoting 42 U.S.C. § 12131(1)(B)). The language of Title II tracks the language of Section 504 of the Rehabilitation Act of 1973, id. (citations omitted), and “specifically provides that ‘[t]he remedies, procedures and rights’ available under Section 504 shall be the same as those available under Title II.” Id. (quoting 42 U.S.C. § 12133). Accordingly, “Jurisprudence interpreting either section is applicable to both.” Id. “To establish a prima facie case of discrimination under the ADA, a plaintiff must demonstrate: (1) that he is a qualified individual within the meaning of the ADA; (2) that he is being excluded from participation in, or being denied benefits of, services, programs, or activities for which the public entity is responsible, or is otherwise being discriminated against by the public entity; and (3) that such exclusion, denial of benefits, or discrimination is by reason of his disability.” Melton v. Dallas Area Rapid Transit, 391 F.3d 669, 671-72 (5th Cir.2004). In addition, “[a] plaintiff asserting a private cause of action for violations of the ADA or the RA may only recover compensatory damages upon a showing of intentional discrimination.” Delano-Pyle v. Victoria County, 302 F.3d 567, 574 (5th Cir.2002). Plaintiffs allege that Stafford, a public entity, violated the ADA and the Rehabilitation Act in numerous ways, including: failing and refusing to accommodate police department operations for mental health service calls, failing and refusing to adopt a policy to protect persons with mental illnesses, discriminating in the provision of police services and emergency responses, and failing to conduct a self-evaluation plan for programs and services affecting persons with mental illnesses. In the September 29 Order, the Court recognized that Title II of the ADA can apply to arrests. (Doc. No. 45, at 19 (citing Morais v. City of Philadelphia, 2007 WL 853811, at *11 (E.D.Pa. Mar. 19, 2007)).) The Court further held that Plaintiffs had stated a claim under the “reasonable accommodation” theory, “under which the police properly investigate and arrest a person with a disability for a crime unrelated to that disability, but fail to reasonably accommodate the disabled 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 19 (citing Morais, 2007 WL 853811, at *11).) The Court found it plausible that Aaron had been denied the accommodation “for the police ‘to refrain from taking aggressive action against [him] until he presented an immediate threat to human life.” (Id. at 19-20 (citing Morais, 2007 WL 853811, at *11); see also Morais, 2007 WL 853811, at *12 (“the lawful exercise of police power is a benefit of the services, programs, or activities of a public entity”); Schorr v. Borough of Lemoyne, 243 F.Supp.2d 232, 235 (M.D.Pa.2003) (same).) Defendants argue that there is no evidence that 1) Aaron is an “individual with a disability”; 2) Defendants knew that Aaron was an individual with a disability; or 3) Aaron was subjected to intentional discrimination due to a disability. They also argue that this case falls within the exception to ADA coverage for “an officer’s on-the-street responses to reported disturbances or other similar incidents, whether or not those calls involve subjects with mental disabilities, prior to the officer’s securing the scene and ensuring that there is no threat to human life.” Hainze, 207 F.3d at 801. As a preliminary matter, Plaintiffs have not alleged intentional discrimination anywhere in their complaint. Therefore, under Fifth Circuit precedent, they may not recover compensatory damages under the ADA or the Rehabilitation Act. See Delano-Pyle, 302 F.3d at 574. They may, however, still be entitled to declaratory or injunctive relief. See Carter v. Orleans Parish Public Schools, 725 F.2d 261, 263-64 & n. 7 (1984). With regard to the first prong for liability, the Court finds that Plaintiffs have presented evidence that Aaron was “a person with a disability” within the meaning of the ADA. In addition to Aaron’s medical records, Plaintiffs present an affidavit from Dr. Moreland stating, based on his experience treating Aaron: Aaron Hobart was diagnosed with a schizoaffective disorder which resulted in delusions and which substantially limited one or more major life activities for him, in