Opposition Brief — Wayne Torcivia, Petitioner v. Suffolk County, New York, et al.

No. 21-1522

IN THE

Supreme Court of the United States

d

WAYNE TORCIVIA ,

Petitioner,

—v.—

SUFFOLK COUNTY, NEW YORK , et al.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF IN OPPOSITION

SUSAN A. FLYNN

Counsel of Record

ARLENE S. ZWILLING

DENNIS M. COHEN

SUFFOLK COUNTY ATTORNEY’S OFFICE

H. Lee Dennison Building

100 Veterans Memorial Highway

P.O. Box 6100

Hauppauge, New York 11788

(631) 853-4049

susan.flynn@suffolkcountyny.gov

Attorneys for Respondent

Suffolk County

i

TABLE OF CONTENTS

PAGE

TABLE OF AUTHORITIES ........................................ ii

SUMMARY OF ARGUMENT ..................................... 1

STATEMENT OF THE CASE..................................... 1

A.

Legal Background ........................................... 1

B.

Factual Background........................................ 3

C.

Procedural Background .................................. 6

REASONS TO DENY THE PETITION

FOR CERTIORARI .............................................. 12

I.

The Second Circuit’s Decision is Not

Incompatible with Caniglia .......................... 13

II.

The Question as Framed is Not Otherwise

Worthy of Review .......................................... 16

A. There is no conflict of law requiring

resolution by this Court .......................... 16

B. The Court of Appeals did not decide the

issue framed by Petitioner ...................... 21

C. The Second Circuit did not expand the

special needs exception to cover

Petitioner’s home ..................................... 22

III. Review of The First Question Framed by

Petitioner is Unnecessary............................. 24

CONCLUSION .......................................................... 25

ii

TABLE OF AUTHORITIES

PAGE(S)

Cases

Brigham City, Utah v. Stuart,

547 U.S. 398 (2006) .............................................. 14

Cady v. Dombrowski,

413 U.S. 433 (1973) .............................................. 12

Caniglia v. Strom,

141 S.Ct. 1596 (2021) ........................... 1, 11, 12, 14

City of Los Angeles v. Heller,

475 U.S. 796 (1986) .............................................. 24

City of Ontario, Cal. v. Quon,

560 U.S. 746 (2010) .............................................. 16

Dickerson v. Napolitano,

604 F.3d 732 (2d Cir. 2010) .................................. 20

Fla. v. Jardines,

569 U.S. 1 (2013) ............................................ 21, 22

Gates v. Texas Dep’t of Protective & Regul. Servs.

537 F.3d 404 (5th Cir. 2008) ................................ 17

Griffin v. Wisconsin,

483 U.S. 868 (1987) .................................... 1, 11, 22

Henderson v. City of Simi Valley,

305 F.3d 1052 (9th Cir. 2002) ........................ 18, 19

Jones v. Cnty. of Suffolk,

936 F.3d 108 (2d Cir. 2019) .................................. 20

Kentucky v. King,

563 U.S. 452 (2011) .............................................. 14

iii

PAGE(S)

Lange v. California,

141 S.Ct. 2011 (2021) ..................................... 12, 21

Lewis v. United States,

385 U.S. 206 (1966) .............................................. 21

MacWade v. Kelly,

460 F.3d 260 (2d Cir. 2006) ............................ 11, 20

McCabe v. Life-Line Ambulance Serv., Inc.,

77 F.3d 540 (1st Cir. 1996) ................................... 19

Monell v. Department of -Social Services of the

City of New York,

436 U.S. 658 (1978) .......................................... 2, 24

New Jersey v. T.L.O.,

469 U.S. 325 (1985) .............................................. 18

Nicholas v. Goord,

430 F.3d 652 (2d Cir. 2005) .................................. 20

O’Connor v. Ortega,

480 U.S. 709 (1987) .............................................. 16

Payton v. New York,

445 U.S. 573 (1979) .............................................. 22

Polk Cnty. v. Dodson,

454 U.S. 312 (1981) .............................................. 15

Roska ex rel. Roska v. Peterson,

328 F.3d 1230 (10th Cir. 2003) ............................ 17

Samson v. California,

547 U.S. 843 (2006) .............................................. 24

Sanchez v. Cnty. of San Diego,

464 F.3d 916 (9th Cir. 2006) ................................ 19

iv

PAGE(S)

Skinner v. Ry. Lab. Executives’ Ass’n,

489 U.S. 602 (1989) .................................. 11, 16, 23

State v. Hemenway,

239 N.J. 111, 216 A.3d 118 (2019) ....................... 17

Thomas v. Texas Dep’t of Fam. & Protective Servs.,

427 F. App’x 309 (5th Cir. 2011) .......................... 17

United States v. Caya,

956 F.3d 498 (7th Cir. 2020) ................................ 19

United States v. Heckenkamp,

482 F.3d 1142 (9th Cir. 2007) .............................. 19

United States v. Hill,

776 F.3d 243 (4th Cir. 2015) ................................ 18

United States v. Pacheco,

884 F.3d 1031 (10th Cir. 2018) ............................ 18

Vernonia Sch. Dist. 47J v. Acton,

515 U.S. 646 (1995) .............................................. 16

Statutes

42 U.S.C. § 1983.................................................. passim

California Protection Act ........................................... 18

New Jersey Domestic Violence Act ........................... 17

Constitutional Provisions

Fourth Amendment ............................................ passim

Fourteenth Amendment .............................................. 9

1

SUMMARY OF ARGUMENT

Petitioner’s proposed first question seeks review of a

decision of the Court of Appeals for the Second Circuit

affirming the conclusion of the United States District

Court for the Eastern District of New York that

Respondent, the County of Suffolk (“the County”), was

not liable under 42 U.S.C. § 1983 for the seizure of his

firearms by non-party police officers who were present

in his home. The Second Circuit held that the County’s

firearms seizures policy was permissible under the

special needs exception to the Fourth Amendment’s

warrant requirement, but that the seizure was due to

the officers’ departure from County policy. The lower

courts did not pass upon whether the officers’ entry

into the home comported with the Fourth Amendment

since Petitioner did not challenge the entry, only the

removal of his guns.

This Court’s precedents regarding entry of the home

and searches of one’s person, including Caniglia v.

Strom, 141 S.Ct. 1596 (2021) and Griffin v. Wisconsin,

483 U.S. 868 (1987), do not control this case. No split

of authority between the Circuits or with the Supreme

Court of New Jersey was heightened by the decision

below. The Court of Appeals’ application of the special

needs exception did not extend the doctrine.

There is no need for the Court to review the first

question framed by Petitioner.

STATEMENT OF THE CASE

A. Legal Background

In his own words, Petitioner seeks certiorari of

the question “[w]hether a so-called ‘special-needs

exception’ to the Fourth Amendment exists and allows

2

warrantless entry into the home of someone who is not

subject to penal control or supervision?” Certiorari of

this question should be denied because Petitioner did

not sue for the entry of his home. As the Court of

Appeals for the Second Circuit noted, “[t]he only

‘search or seizure’ at issue” in the appeal before it

related to “the seizure of Torcivia’s firearms.” Pet. App.

21a n.22. Until he filed his Petition, Petitioner never

remotely suggested that the entry of his home by the

non-party police officers who removed his weapons

was a violation of his constitutional rights.

Furthermore, the question of whether the special

needs exception correctly applies to the County’s

firearms seizure policy is purely academic. Although

the Second Circuit considered the policy to be covered

by the exception, that consideration was not

dispositive of the appeal before it. Instead, the

determinative factor was the lower court’s conclusion

that the seizure “was caused by County officers’

departure from the County’s policy, not the policy

itself.” Pet. App. 33a-38a. It saw the seizure as not

comporting with County policy in two respects: the

seizure of Petitioner’s longarms was indefinite; and his

guns may have been taken after it was medically

determined that he was not imminently dangerous to

himself or others. Pet. App. 38a-39a. Thus, even if the

Court of Appeals’ assessment of the policy was wrong,

the County would still not be liable under §1983.

Monell v. Department of -Social Services of the City of

New York, 436 U.S. 658, 694 (1978) (employing

municipality is not liable for employee’s constitutional

violations not committed “in execution of government’s

policy or custom”).1

1

As a fallback position, Petitioner suggests that the County could

be liable on the alternative basis that the training of its officers

3

B. Factual Background

In the early morning hours of April 6, 2014, James

Adler, Patrick Halpin and Robert Verdu, officers with

the Suffolk County Police Department, responded to

the home Petitioner shared with his wife (“Mrs.

Torcivia”) and children in Ronkonkoma, New York.

The officers were dispatched to answer a call for

assistance from Petitioner’s teenage daughter

Adrianna to a social services agency, which was

relayed to the Suffolk County Police Department. The

dispatcher’s broadcast to the officers was of a violent

domestic dispute between Petitioner and Adrianna.

Pet. App. 4a, 6a.

On arrival, the officers learned that Petitioner had

been consuming alcohol. After speaking with

Adrianna, it was ascertained that Petitioner had not

committed a crime. He was agitated,“yelling, walking

back and forth, pacing and ranting.” He demanded

that they “taser him so he could die.” Following an

interview with Petitioner, the police officers

determined that they needed to transport him to Stony

Brook

University

Hospital’s

Comprehensive

Psychiatric Emergency Program (“CPEP”) for

emergency psychiatric evaluation, as he appeared

irrational and stated that he wanted to die. Pet. App.

6a-9a.

Petitioner was evaluated at CPEP by a team

consisting of a nurse, a nurse practitioner, one or more

social workers, and an attending doctor psychiatrist,

is deficient. Clearly, it cannot be, for as the Second Circuit

observed, there was “no record evidence suggesting that the

County was ‘aware that its policy may be unconstitutionally

applied by inadequately trained employees but ... consciously

[chose] not to train them.’” Pet. App. 39a-40a.

4

Dr. Yacoub. The professional team determined that

Petitioner did not require an acute psychiatric

admission and was not imminently dangerous. Pet.

App. 9a-10a, 11a-12a.

Before Petitioner could be released from CPEP,

Adrianna contacted Child Protective Services (“CPS”)

and reported that she was unhappy with and

frightened by his impending release. She told CPS that

Petitioner kept guns in the home. CPS informed the

CPEP staff that Adrianna had called them four times

and was concerned that he was going to be released.

CPS further informed CPEP that it had advised

Adrianna to leave the home and stay with a friend

overnight. Pet. App. 12a n.12, 35a-36a

While Petitioner was at CPEP, Officer Adler

conducted a computer check pursuant to Suffolk

County Police Department policy, that in his

understanding, required the removal of all firearms

from homes in which a domestic incident occurs and

someone is taken to CPEP. Pet. App. 57a. He learned

that Petitioner had a New York State pistol license.

Officer Adler informed his supervisor, non-party

Sergeant Lawler, of the results of the computer check.

The sergeant directed him to obtain custody of

Petitioner’s firearms in order to safeguard them.

Officer Adler attempted to do so, but was unsuccessful

as Mrs. Torcivia was unable to provide him the

combination to the gun safe. After Officer Adler tried

but failed to get the gun safe combination from Mrs.

Torcivia, he returned to CPEP to ask Petitioner for the

combination. According to the officer, Petitioner

refused to speak with him. Petitioner admits that he

did not speak with the officer, but claims it was

because “he was non-responsive and possibly asleep.”

Pet. App. 10a-11a.

5

CPEP advised Petitioner that he was being released.

He called his wife to ask her to pick him up. After he

spoke with her, he was informed by the hospital that

he would not be released until his guns had been

surrendered. Pet. App. 11a-12a. After receiving this

additional information, Petitioner again spoke with

his wife by phone and gave her the code to open the

gun safe. He told her, “You have to get into the safe.

You have to open the safe.” Referring to the police, he

also told her “You’ve got to give them the guns. You’ve

got to give them all the guns.”

Mrs. Torcivia then removed the long gun that

Petitioner kept under their bed. She opened the gun

safe. She removed his handguns and another long gun.

She put the four weapons on the floor to await the

arrival of the police. Non-party Suffolk County Police

Sergeant Scott and non-party Suffolk County Police

Officer Andreano arrived at Petitioner’s home. Mrs.

Torcivia directed them toward the guns on the floor.

She handed the guns to the officers. The officers did not

take any weapons out of the safe or go near the safe.

They gave her a receipt for the weapons they removed.

I C.A.App. A142-A155, A169- A170. 2

Petitioner’s firearms had already been removed

from his home by the time Dr. Yacoub determined that

he could be medically discharged,

Citations to the Record before the Court of Appeals for the

Second Circuit are given as [vol] C.A.App. [page]. Citations to the

Second Circuit’s docket are given as C.A. ECF [entry number] at

[page number]. Citations to the District Court docket are given as

D.Ct. ECF [entry number] at [page number].

2

6

C. Procedural Background

Petitioner commenced this action on February 2,

2015 with the filing of his Complaint. The Complaint

did not contain a claim pursuant to 42 U.S.C § 1983 for

the entry of his home by the non-party police officers

who removed his firearms, or a claim for trespass.

Sergeant Scott and Officer Andreano, the police who

removed the weapons, were not named as defendants

in the Complaint. D.Ct. ECF 1.

On February 13, 2017, Petitioner filed his Amended

Complaint. The Amended Complaint set forth the

following claims pursuant to 42 U.S.C § 1983:

a) for violation of Petitioner’s Fourth

Amendment rights by virtue of the seizure

of his person and his confinement at

CPEP.

b) for violation of his First Amendment

rights based on an asserted retaliatory

seizure and confinement of his person.

c) for violation of his Fourth Amendment

rights based on the seizure of his guns.

d) for violation of his Second Amendment

rights due to the seizure of his weapons

and suspension of his pistol license.

e) for violation of his right to due process

under the Fourteenth Amendment based

on the removal of his weapons and

suspension of his pistol license without a

hearing.

f) a Fourteenth Amendment “stigma plus”

claim.

7

g) for violation of his First Amendment right

to family association.

h) claim against the County pursuant to

Monell v. Dep’t. of Social Services of City of

New York, 436 U.S. 658 (1978).

The Amended Complaint also included pendent

claims for unlawful imprisonment, defamation and

negligence. Despite re-pleading the claim for the

seizure of his weapons, Petitioner opted not to add to

the Amended Complaint a claim that the entry of his

home abridged his constitutional rights or amounted

to a trespass. Likewise, he again refrained from adding

as defendants the police personnel who took his

weapons. D.Ct. ECF 66, I C.A.App. A27-A59. 3

In June 6, 2018, Petitioner withdrew a number of

his claims and informed District Court that he wished

to proceed upon only the following claims (D.Ct. ECF

126, I C.A.App. A125-126):

a) § 1983 First and Fourth Amendment claims

for his seizure and confinement at CPEP,

along with a corresponding pendent claim

for unlawful imprisonment.

b) § 1983 “stigma plus”

defamation claims.

and

pendent

c) § 1983 Second, Fourth and Fourteenth

Amendment claims for the seizure of his

weapons and the suspension of his pistol

license without a hearing.

All parties then sought summary judgment. By

Memorandum of Decision and Order issued March 31,

3

Because the officers who took the weapons were never parties

to this case, District Court did not, and could not, grant them

qualified immunity as Petitioner states at page 32 of the Petition.

8

2019, District Judge LaShann DeArcy Hall dismissed

Petitioner’s Monell claim for the seizure of his

weapons. District Court rejected Petitioner’s assertion

that County policy directed the seizure of weapons of

persons transported for psychiatric evaluation for lack

of evidence. The Court instead concluded that a

reasonable juror could find that the policy permitted

weapons seizures from persons who had both been

taken to CPEP and were involved in a domestic

incident. Such a policy the Court said, “indisputably

did not have as its immediate purpose ‘the ordinary

evidence

gathering

associated

with

crime

investigation.’” Rather, the removal of Petitioner’s

guns was “intended to safeguard [the weapons]

following his transport to CPEP following a domestic

incident.” Accordingly, Judge DeArcy Hall reasoned,

the policy qualifies as one of special needs seizures.

Pet. App. 65a-66a.

After the remaining parties consented to the case

being referred to Magistrate (now District) Judge Gary

R. Brown for all further proceedings, the trial

proceeded before a jury on November 6, 7 and 8, 2019.

V C.A.App. A1141-A1142, A1162.

At the conclusion of the evidence, summations, and

charge, the jury was given a Verdict Sheet with the

following interrogatories for them to answer:

1) Has

plaintiff

established

by

a

preponderance of the evidence that he did

not make any suicidal statements in the

presence of defendant police officers?

2) Has

plaintiff

established

by

a

preponderance of the evidence that the

defendant police officers transported

plaintiff to [CPEP] to retaliate in whole or

in part for criticisms plaintiff made?

9

The jury was sent out to deliberate at 1:25 P.M. VI

C.A.App. A1745. Their first and only note was sent out

shortly before 2:40 P.M., stating that a verdict had

been reached. The jury answered “no” to both

questions.VI C.A.App. A1747.

On November 12, 2019, District Court entered a

Stipulation and Order reflecting that the parties had

consented to allow the Magistrate Judge to calculate

the damages to be awarded Petitioner upon his

Fourteenth Amendment due process claim, and

finding $100.00 to be the appropriate amount. D.Ct.

ECF entry after 182.

On November 14, 2019, a Clerk’s Judgment was

entered providing that Petitioner was to recover from

the County the sum of one hundred dollars ($100.00)

for his Fourteenth Amendment due process claim,

pursuant to District Judge DeArcy Hall’s April 2, 2019

Order on Summary Judgment and (then) Magistrate

Judge Brown’s Order dated November 14, 2019; and to

recover nothing on all his other claims. D.Ct. ECF 183;

IV C.A.App. A1817.

Petitioner then appealed from the summary

judgment order and the jury verdict. In his brief, he

raised a single Fourth Amendment issue for review: Did

the district court erroneously analyze the County’s

seizure of firearms policy under the “special needs”

exception to a warrantless search? C.A. ECF 66 at 1,

69. Inconsistently, he also contended that the seizure

of his weapons was conducted at the behest of CPEP

medical personnel and not because of the County

policy. Pet. App. 40a.

The dismissal of the Fourth Amendment Monell

claim was affirmed by the Second Circuit.

Preliminarily, the Court of Appeals defined the Fourth

Amendment task before it as “assess[ing] the merits of

10

[Petitioner’s] challenge to a policy pursuant to which

the County temporarily seizes firearms belonging to

an individual who is transported for emergency

mental health evaluation following a domestic

incident.” Pet. App. 21a. 4 It noted that “the only

‘search or seizure’ at issue…related to Suffolk County’s

Monell liability is the seizure of [Petitioner’s]

firearms.” Pet. App. 22a n.22. 5

The appellate court concluded that District Court

had “correctly determined that the County’s policy

falls within the ‘special needs’ exception” and that “on

the facts presented” actions taken under the policy did

not transgress Petitioner’s Fourth Amendment rights.

Pet. App. 4a. It found that the primary purpose of the

policy was not crime control, but rather “to prevent

self-harm and harm within a family, when there may

be a heightened risk of domestic violence or suicide,

and when firearms are present.” The County’s interest

in preventing suicide and domestic violence, the

Second Circuit observed, is “substantial” and “urgent.”

Its policy “serves an important governmental interest,

and [ ] the seizure of firearms under that policy

represents a reasonable and effective method of

On appeal, Petitioner maintained his factual claim, rejected by

District Court for the absence of evidence, that County policy was to

take the weapons of all persons who were transported to CPEP. C.A.

ECF 69. The Second Circuit also rejected this characterization of the

policy for lack of evidence. Pet. App. 20a-21a.

5

The Court of Appeals also found that there was no evidence to

support alternative theories that the policy was to seize the

weapons of persons transported for emergency psychiatric

evaluations after a domestic incident despite a medical

assessment that the person posed no danger, or to keep the

weapons indefinitely, or that the County was ‘aware that its

policy may be unconstitutionally applied by inadequately trained

employees but ... consciously [chose] not to train them.’” Pet. App.

20a-21a, 39a-40a.

4

11

advancing that interest.” The policy, it reasoned,

causes a “minimal intrusion” into the firearms of a

person taken for mental health evaluation following a

domestic incident. Pet. App. 25a-33a.

In so ruling, the Court of Appeals explained that it

was not relying on any Fourth Amendment exception

other than the special needs exception, and in

particular, not the community caretaking exception.

Further, the Second Circuit stated that it did not

“conceive of the appeal ...involving the community

caretaking exception...” Although extension of the

community caretaking exception to homes was

rejected by this Court in Caniglia v. Strom, 141 S.Ct.

1596 (2021), the panel noted that Caniglia did not

address the “special needs doctrine” or a situation

where officers acted pursuant to a government seizure

policy. Nor did Caniglia “disturb [the Second Circuit’s]

longstanding precedents that allow warrantless

entries in a home in certain circumstances” such as

where an occupant is threatened with injury. Pet. App.

25a-27a, 27a n. 25.

The appellate court acknowledged that unlike the

community caretaking exception, the special needs

exception has been ‘repeatedly recognized’ by this

Court as permitting searches without a warrant,

including the search of a home in Griffin v. Wisconsin,

483 U.S. 868 (1987), and searches of persons not

subject to penal control, in Skinner v. Ry. Lab.

Executives’ Ass’n, 489 U.S. 602, 619–30 (1989). Further

contrasting the two exceptions, the Second Circuit

observed that the special needs exception “involves

[the] well-established four factor balancing test” of

MacWade v. Kelly, 460 F.3d 260, 269 (2d Cir. 2006), as

opposed to an “open-ended license to perform

[community

caretaking

functions

anywhere]”

disapproved in Caniglia.

12

Notwithstanding, the Second Circuit held that the

County was not liable for the seizure as it “was caused

by County officers’ departure from the County’s policy,

not the policy itself.” Pet. App. 33a-38a. The court

below saw the seizure as not comporting with County

policy in two respects: the seizure of Petitioner’s

longarms was indefinite and his guns may have been

taken after it was medically determined that he was

not imminently dangerous to himself or others. Pet.

App. 38a-39a.

REASONS TO DENY

THE PETITION FOR CERTIORARI

In essence, Petitioner’s plea is that certiorari is

warranted by virtue of the Fourth Amendment

limitations erected by Caniglia, and to some extent,

Lange v. California, 141 S.Ct. 2011 (2021). In

Caniglia, the pertinent question was framed as

whether the community caretaking exception of Cady

v. Dombrowski, 413 U.S. 433 (1973) “creates a

standalone doctrine that justifies warrantless

searches and seizures in the home.” Caniglia, at 1598.

Noting the distinction Cady drew between houses and

vehicles, and its historic hesitation “to expand the

scope of…exceptions to the warrant requirement to

permit warrantless entries into the home,” Id. quoting

Collins v. Virginia, 584 U.S. 1, 138 S.Ct.1663, 16701671 (2018), this Court impliedly answered the

question in the negative. Similarly, in Lange v.

California, 141 S.Ct. 2011 (2021), the issue was also

one concerning a law enforcement entry of the home:

“whether the pursuit of a fleeing misdemeanor suspect

always…qualifies as an exigent circumstance.” This

Court concluded that the “flight of a suspected

misdemeanant does not always justify a warrantless

entry into a home.”

13

It cannot be overstated that Petitioner has not made

any claim that the police improperly came into his

home. His decision not to plead such a claim appears

to be a deliberate choice in that he included in both his

Complaint and Amended Complaint a § 1983 claim for

the alleged seizure of his weapons, but none for the

entry of the home. No argument was made at

summary judgment, trial or on appeal that the entry

was illegal and consequently neither District Court

nor the Second Circuit passed upon whether the entry

comported with the Fourth Amendment.

Absent a claim contesting the entry of Petitioner’s

home, Caniglia and Lange do not call for review by this

Court.

I. The Second Circuit’s Decision

Incompatible with Caniglia

is

Not

Because his conduct was less egregious than that of

the domestic abuser plaintiff in Caniglia, Petitioner

argues that summary reversal is warranted. This

conduct comparison is superficial and legally

insignificant. Reversal cannot be justified based on

Caniglia because Caniglia is inapposite.

To begin, the exception to the warrant requirement

interpreted by this Court in Caniglia played no role in

the decision below. Caniglia examined the parameters

of community caretaking doctrine and that doctrine

alone. The appeals court did not analyze whether the

community caretaking exception was applicable.

Rather, it determined that the County’s policy fit the

special needs exception to the Fourth Amendment.

Caniglia did not address the special needs exception

at all. Notwithstanding Petitioner’s effort to minimize

the distinction, the Second Circuit explicitly

differentiated this case from Caniglia as one not

14

involving the community caretaking exception. Pet.

App. 26a-27a. n.25 (“...we do not conceive of the appeal

before us as involving the community caretaking

exception...and do not rely on that doctrine in our

analysis”). Plainly, Petitioner’s argument that the

appellate court merely “rebranded” the community

caretaking exception as a special needs exception is

insupportable.

Next and pivotally, Caniglia’s limitation of the

community caretaking exception is rooted inseparably

in the fact that the seizure at issue therein was made

possible only by an allegedly unconstitutional entry of

the home. That the differentiating factor of a claimed

unlawful entry led to the result in Caniglia is clear

from the Opinion’s several citations to precedents that

turn on the concept of the sanctity of the dwelling.

Caniglia, 141 S.Ct at 1599 citing Collins v. Virginia,

584 U.S. 1, 138 S. Ct. 1663 (2018) (Fourth Amendment

applies to search in partially enclosed driveway);

Kentucky v. King, 563 U.S. 452 (2011) (Fourth

Amendment analysis of marijuana seizure following

questioned entry of home); and Brigham City, Utah v.

Stuart, 547 U.S. 398 (2006) (challenge to evidence

seized after warrantless entry to home). See also Id.

quoting Fla. v. Jardines, 569 U.S. 1, 6 (2013) (The

“very core” of the Fourth Amendment is “the right of a

man to retreat into his own home and there be free

from unreasonable governmental intrusion.”) (internal

quotations omitted). Yet, unlike plaintiff Caniglia,

Petitioner has never challenged the entry to his home.

Indeed, the distinction that Caniglia drew with

Cady by its statement that “what is reasonable for

vehicles is different from what is reasonable for

homes” may be the crux of its holding. In sum,

Caniglia goes no further than to preclude the

extension of the community caretaking exception to

15

home entries that lead to searches. Caniglia does not

bear upon whether police officers who are lawfully

present in a citizen’s home may seize items found

inside without a warrant. It sheds no light upon

whether the non-party officers who, given the lack of

contrary evidence, must be presumed to have lawfully

entered Petitioner’s house, were within Fourth

Amendment bounds in removing his weapons.

In any event, the question of whether the taking of

Petitioner’s guns was constitutionally acceptable is

entirely hypothetical since it cannot affect the correct

outcome of this case. As the Second Circuit concluded,

the seizure was caused by a departure from County

policy. As the seizure was not the result of municipal

policy, but at odds with it, the County cannot be held

liable for the policy under § 1983 even the policy is

flawed. The necessary element of causation is lacking.

Polk Cnty. v. Dodson, 454 U.S. 312 (1981) quoting

Monell v. Department of -Social Services of the City of

New York, 436 U.S. 658, 694 (1978) (“official policy

must be the moving force of the constitutional

violation”).

Last, that Petitioner’s conduct was purportedly less

severe than Caniglia’s is also an incidental distinction

without legal significance. He chose not to sue for the

entry of his home by the non-party police who removed

his weapons. That choice renders the nature of his

conduct toward his family immaterial to the proper

resolution of this case.

16

II. The Question as Framed is Not Otherwise

Worthy of Review.

A. There is no conflict of law requiring

resolution by this Court

The Second Circuit broke no new ground in applying

the special needs exception to a policy that affects

persons not under penal control. Similarly, the

appellate court created no uncertainty or conflict as to

the scope of the exception in ruling that the exception

is broad enough to cover a municipal policy that calls

for weapons to be taken from persons not subject to

penal supervision.

The application of the special needs exception to

persons not under law enforcement supervision is not

new. Over three decades ago, this Court began

applying the special needs doctrine outside of the

realm of parole and probation. See e.g., O’Connor v.

Ortega, 480 U.S. 709, 725–726 (1987) (exception

applied to search and seizure from government

employee’s office); Skinner v. Ry. Lab. Executives’

Ass’n, 489 U.S. 602, 619–30 (1989) (special needs

exception permits breath and urine tests of private

railroad employees); Vernonia Sch. Dist. 47J v. Acton,

515 U.S. 646, 665 (1995) (public school student

athletes from public schools may be urine tested under

special needs doctrine); City of Ontario, Cal. v. Quon,

560 U.S. 746, 760-61 (2010) (exception permits search

of text messages on police officer’s department issued

device).

The Circuit Courts of Appeal and the New Jersey

Supreme Court are not meaningfully divided over the

breadth of the special needs exception. The Fourth,

Fifth and Tenth Circuits have not confined the

application of the exception to probationers and

17

parolees. State v. Hemenway, 239 N.J. 111, 216 A.3d

118 (2019) did not discuss the question of whether the

special needs exception applies to persons not under

law enforcement supervision.

The question passed upon by the Supreme Court of

New Jersey in Hemenway was whether the New

Jersey Domestic Violence Act comported with the

Fourth Amendment insofar as the statutory scheme

authorized the issuance of warrants to enter homes to

search and seize weapons on less than probable cause.

The court did not, as Petitioner posits, categorically

reject the “special needs exception” on the theory that

the exigent circumstances doctrine rendered it

superfluous and unnecessary. Instead, it only held

that the exception could not be invoked to justify the

issuance of warrants on less than probable cause.

Hemenway, 239 N.J. at 117.

In Roska ex rel. Roska v. Peterson, 328 F.3d 1230

(10th Cir. 2003), the Tenth Circuit did not go beyond

explaining that no special need exists that would

render the warrant requirement impracticable “when

social workers enter a home to remove a child, absent

exigent circumstances.” Id. at 1242 (emphasis in

original). The appeals court did not formulate a

blanket prohibition of all warrantless entries to homes

by social workers who look out for the best interests of

children. It clarified that exceptions to the warrant

requirement remained available where a child was “in

imminent danger.” Ibid. Neither Gates v. Texas Dep’t

of Protective & Regul. Servs. 537 F.3d 404 (5th Cir.

2008) nor Thomas v. Texas Dep’t of Fam. & Protective

Servs., 427 F. App’x 309 (5th Cir. 2011) suggest that

the Fifth Circuit has restricted the special needs

exception to persons under penal control by the Fifth

Circuit. Those decisions did not address the

18

exception’s application outside the context of child

welfare investigations.

Relatedly, United States v. Pacheco, 884 F.3d 1031

(10th Cir. 2018) and United States v. Hill, 776 F.3d 243

(4th Cir. 2015) cannot soundly be construed as

cabining the special needs exception to persons under

penal supervision. The Tenth Circuit ruled that the

exception did not apply to parolee Pacheco’s seized

phone because it was taken for use “as evidence at [his]

criminal trial” and not “for any identifiable special

need ‘beyond the normal need for law enforcement.’”

Pacheco, at 1040 quoting Griffin v. Wisconsin, 483 U.S.

868, 873 (1987). This conclusion however aligns with

the general principle that the exception is not

applicable where an item is seized for law enforcement

purposes. See New Jersey v. T.L.O., 469 U.S. 325, 351

(1985) (Blackmun, J., concurring) (“Only in those

exceptional circumstances in which special needs,

beyond the normal need for law enforcement, make the

warrant

and

probable-cause

requirement

impracticable, is a court entitled to substitute its

balancing of interest for that of the Framers.”)

In Hill, the government did not assert that the

“special needs exception” applied and so the Fourth

Circuit did not pass upon its relevance.

Decisions by the First, Second and Ninth Circuits

have actually examined the question of whether the

special needs exception applies outside of the context

of persons subject to penal control and answered it in

the affirmative. As early as 2002, the Ninth Circuit

applied the exception to a warrantless home entry

made by police to assist a child in retrieving her

belongings from her mother’s home pursuant to a

California Protection Act order. Henderson v. City of

Simi Valley, 305 F.3d 1052 (9th Cir. 2002). The

19

exception pertained, the appeals court reasoned,

because “[k]eeping the peace while a minor child

exercises her rights pursuant to a court order is not

akin to typical law enforcement functions. Rather, the

officers were serving as neutral third parties acting to

protect all parties.” Id. at 1057. Subsequently, in

Sanchez v. Cnty. of San Diego, 464 F.3d 916 (9th Cir.

2006), the Ninth Circuit concluded that the special

needs doctrine authorized reasonably conducted

administrative searches of welfare recipients’ homes

“because the underlying purpose of the home visits is

to verify eligibility for welfare benefits, and not for

general law enforcement purposes,” Id. at 926.

Thereafter, the Ninth Circuit took the opportunity to

reaffirm the existence of the exception in United States

v. Heckenkamp, 482 F.3d 1142 (9th Cir. 2007). In

Heckenkamp, the remote search of a state university

student’s computer was upheld as a special needs

search since it was performed by the university’s

systems administrator whose “actions were not

motivated by a need to collect evidence for law

enforcement purposes or at the request of law

enforcement agents” but to secure the school’s mail

server. Id. at 1147. As far back as 1996, the First

Circuit determined that a municipal police policy that

permitted warrantless forcible home entries to enforce

involuntary mental health commitment orders “falls

squarely within a recognized class of systemic ‘special

need’ searches which are conducted without warrants

in furtherance of important administrative purposes.”

McCabe v. Life-Line Ambulance Serv., Inc., 77 F.3d

540, 546 (1st Cir. 1996). Such entries qualify as proper

special needs searches, the appellate court wrote,

despite “the mere fact that law enforcement officials

serve as the agents” who execute the orders. Id. at 553.

20

The Second Circuit has determined that various

types of searches are sanctioned under the special

needs exception, including visits to homes of sex

offenders to verify their addresses in order to reduce

recidivism, Jones v. Cnty. of Suffolk, 936 F.3d 108 (2d

Cir. 2019); searches to protect a federal building by

checking persons entering for fake law enforcement

badges, Dickerson v. Napolitano, 604 F.3d 732 (2d Cir.

2010); random searches of subway passengers’ bags to

prevent terrorist attacks, MacWade v. Kelly, 460 F.3d

260 (2d Cir. 2006); and the taking of DNA from felons

to create a data base to assist in solving crimes,

Nicholas v. Goord, 430 F.3d 652 (2d Cir. 2005). The

Court of Appeals found that law enforcement was not

the immediate purpose of the contested government

actions in all of these cases.

Plainly, the special needs doctrine is well-developed

and longstanding in the First, Second and Ninth

Circuits, as well as in this Court. The contours of the

exception have been repeatedly delineated and were

not exceeded or expanded by the Second Circuit’s

decision in this case. No conflict between the Circuits

was generated by Second Circuit’s decision. Relevant

precedents reaching back over thirty years have

applied the exception to persons not under law

enforcement

supervision.

Nothing

in

the

jurisprudence of the Fourth, Fifth and Tenth Circuits

precludes applying the exception to the removal of

firearms from the home of a person transported for

emergency psychiatric evaluation following a domestic

dispute, let alone limits it to searches of homes of

persons under penal control. Indeed, Roska

affirmatively indicates that the exception is available

to protect a child who is in imminent danger from a

family member. Surely, given the absence of an actual

conflict requiring resolution, review of the Second

21

Circuit’s decision would be a wholly unnecessary

expenditure of this Court’s limited and wisely

conserved resources.

B. The Court of Appeals did not decide the

issue framed by Petitioner

Petitioner urges this Court to accept for

consideration the question of whether the Court of

Appeals improperly expanded the special needs

exception by applying it to the entry of his home. He

cites Lange v. California, 141 S. Ct. 2011, 2016 (2021)

(“question presented...is whether the pursuit of a

fleeing misdemeanor suspect always ...qualifies as an

exigent circumstance” permitting an entry without a

warrant); Fla. v. Jardines, 569 U.S. 1 (2013) (use of

drug-sniffing dog on homeowner’s porch is an entry

under Fourth Amendment); and Lewis v. United States,

385 U.S. 206 (1966) (question is whether the Fourth

Amendment required suppression of marijuana sold by

criminal defendant to undercover agent who gained

entry to home by misrepresenting his identity). His

reliance on authorities that define the boundaries of the

Fourth Amendment’s protection of the home leaves no

doubt that his request for review is grounded upon the

inviolability of the home against unwanted entry.

The foundational and obvious flaw in the question

proffered is that, at the risk of repetition, this case

presents no issue concerning the police officers’ entry

into his home. While District Court applied the special

needs exception to the seizure of his firearms, it did not

examine the entry of Petitioner’s home. In affirming

District Court, the Second Circuit likewise did not

examine the entry.

The question that Petitioner urges this Court to

review has never been raised, much less ruled upon in

22

this litigation. Analysis of the question for the first time

and without a full evidentiary record as to how the

entry came about is not warranted, particularly since

the record that does exist suggests that the officers

came into the home with the consent of Petitioner and

his wife. I C.A. App. A142-A155, A169-A170. See

Payton v. New York, 445 U.S. 573, 583 (1979) (Fourth

Amendment prohibition against warrantless entry of

home does not apply where voluntary consent is given).

See also Fla. v. Jardines, 569 U.S. 1, 8 (2013) (quoting

Kentucky v. King, 563 U.S. 452, 470 (2011) (“police

officer not armed with a warrant may approach a home

and knock, precisely because that is ‘no more than any

private citizen might do’”)

C. The Second Circuit did not expand the

special

needs

exception

to

cover

Petitioner’s home

Petitioner contends that given Caniglia’s holding and

the fact that he is not under penal control, the

application of the special needs exception to the seizure

of his guns cannot be rationalized under Griffin v.

Wisconsin, 483 U.S. 868 (1987). Both Caniglia and

Griffin however, turn on whether law enforcement

violated the Fourth Amendment by entering citizens’

homes. Once again, Petitioner brought no claim for an

unconstitutional entry of his home. Neither District

Court nor the Second Circuit examined the lawfulness

of the entry because it is not an issue in this case.

Assuming arguendo that Caniglia could be analogized

to Griffin as Petitioner proposes, it still would not be

relevant to the litigation at hand.

At any rate, the proffered comparison is untenable.

Granted, Griffin counsels that the exception is not to be

applied without limit to the public at large. Griffin, 483

23

U.S. at 875. However, in concluding that the exception

fit the County’s policy, the Second Circuit did not

recommend its application to a broad community.

Instead, it noted that the policy pertained to a small

and well-defined category of persons in aggravated

situations rife with the possibility of violence and harm:

persons who had been involved in a domestic incident

and then transported for emergency psychiatric

evaluation. Pet. App. 21a-22a. Petitioner’s argument

that no need or exigency warrants seizure of weapons

held by this limited group flies in the face of the realities

of domestic abuse, gun violence and mental illness

acknowledged by District Judge DeArcy Hall, Pet. App.

67a-71a, as well as by the Second Circuit. Pet. App. 24a25a. To the contrary, these are precisely the sort of

infrequent, serious and “limited circumstances, where

the privacy interests implicated by the search are

minimal, and where an important governmental

interest furthered by the intrusion would be placed in

jeopardy by a requirement of individualized suspicion.”

Skinner, 89 U.S at 624. Besides, it is far from clear, to

say the least, that Caniglia’s view of the community

caretaking exception can be appropriately extrapolated

to cover the special needs exception.

Getting down to brass tacks however, there is no

need to determine whether the County’s policy is

permissible under the special needs exception because

even a determination that the policy is

unconstitutional cannot not alter the outcome of this

action. That is because the policy did not lead to the

seizure of Petitioner’s weapons, or the entry of his

home for that matter. As the Second Circuit

determined, the seizure was a departure from the

policy, not in furtherance of it. Pet. App. 33a. As the

policy was not the “moving force” behind the alleged

24

violation of Petitioner’s rights, the County cannot be

held liable under §1983. Monell at 694.

III. Review of The First Question Framed by

Petitioner is Unnecessary

This Court would judiciously refrain from accepting

the first question proposed for consideration.

Petitioner’s plea for certiorari rests on the notion the

principles of Caniglia, Griffin and Samson v.

California, 547 U.S. 843 (2006) require it, but those

principles only govern entries of the home and

searches of one’s person. This case however, does not

involve an entry of a home or the search of one’s

person. It concerns only whether police personnel,

already present in Petitioner’s home, could properly

seize weapons from him. The authorities relied upon

by Petitioner simply do not relate at all to that

scenario, much less dictate its correct analysis.

Moreover, it cannot be presumed that answering the

first question will definitively resolve the Fourth

Amendment claim, as the question of whether the

seizure was permissible under an exception other than

the special needs exception--such as the exigent

circumstances exception—would remain unaddressed.

The Second Circuit did not examine this question,

confining its ruling to merely affirming that District

Court’s application of the special needs exception.

Lastly, whether or not Petitioner’s constitutional

rights were abridged by the non-party officers’ removal

of his firearms is indeed an essential issue in this case.

If the particular seizure did not transgress the Fourth

Amendment, the wisdom of the County’s policy is

inconsequential. Inarguably, the County cannot be

liable under § 1983 absent a constitutional violation by

one of its employees. City of Los Angeles v. Heller, 475

25

U.S. 796 (1986) (municipality not liable where officer

“inflicted no constitutional harm.”).

This case, which concerns only the taking of

weapons by non-party police officers, is not an

appropriate vehicle for reviewing the Fourth

Amendment restrictions on the entries of homes and

searches of one’s person.

CONCLUSION

The Second Circuit did not extend the special needs

exception to permit law enforcement to enter the homes

of persons not on parole or probation without a warrant,

and did not heighten any split of authority as to the

scope of the exception. The lawfulness of the police

entry of Petitioner’s home is not at issue in this case and

accordingly, was not passed upon by the courts below.

Respectfully, this Court should deny the Petition.

Dated October 10, 2022

Respectfully submitted,

SUSAN A. FLYNN,

Counsel of Record

ARLENE S. ZWILLING

DENNIS M. COHEN

SUFFOLK COUNTY ATTORNEY’S OFFICE

H. Lee Dennison Building

100 Veterans Memorial Highway

P.O. Box 6100

Hauppauge, New York 11788

(631) 853-4049

susan.flynn@suffolkcountyny.gov

Attorneys for Respondent

Suffolk County