Petition for Writ of Certiorari — Brewster v. Mount Vernon Hospital

Supreme Court brief1987

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IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1987

GEORGE BREWSTER, Petitioner

MOUNT VERNON HOSPITAL, et al.,

Respondents

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

FOURTH CIRCUIT

GEORGE BREWSTER

3407 Wessynton Way

Alexandria, VA 22309

(703) 360-7092

Petitioner

QUESTIONS PRESENTED

1. Whether Section 1 of the

Fourteenth Amendment of the United States

Constitution is violated by Virginia Code

Section 37.1 on civil commitment,

particularly Sections 37.1-67.1 and

37.1-67.4 on involuntary detention and

treatment, when applied to involuntarily

detain, to put into solitary confinement,

and to drug petitioner, where petitioner

was given no detention hearing and where

there was no claim of petitioner's being

dangerous to another person?

2. Whether the right of trial by

jury of the Seventh Amendment of the

United States Constitution was denied to

petitioner when, prior to trial of a civil

rights action under 42 U.S.C. 1983, the

courts below (a) dismissed respondent

hospital and health care providers for

want of state action, where petitioner

repeatedly presented evidence of state

action and (b) dismissed respondent

police officers for want of

responsibility for damages (or for good

faith immunity), where petitioner

repeatedly presented evidence of their

responsibility?

3. Whether respondent hospital and

health care providers are state actors

under 42 U.S.C. Section 1983, when they

acted to involuntarily detain, to put into

solitary confinement, and to drug

petitioner, where such acts (a) were done

under authority of a detention order

(prima facie evidence of state action, as

a detention order is an exclusive

prerogative of the state and issued by the

state under Virginia statute) and (b) were

done jointly with state officials in a

procedural scheme created by statute

causing deprivation of petitioner's

constitutional rights?

iii

4, Whether respondent police officers

are responsible for damages (or have good

faith immunity) under 42 U.S.C. Section

1983, (a) where they should have known

they violated petitioner's constitutional

rights despite a magistrate's order, (b)

where they took petitioner from his home

and involuntarily detained him for over

three hours under false pretenses, without

charges, and without probable cause, (c)

where they acted jointly with a nurse to

cause a magistrate to issue a written

detention order (which they should have

known was invalid on its face), and with

no satention hearing and no claim

petitioner was dangerous to another

person, involuntarily detained petitioner

for three days, put him into solitary

confinement and caused him to be forcibly

drugged, and (d) where a police officer

without probable cause signed a petition

for such detention and treatment?

LIST OF PARTICS

The parties before the Court are

petitioner, George Brewster and (a) re-

spondents hospital and health care pro-

viders: Mount Vernon Hospital, Donald

Burlington, Robert H. Robertson,

Nooreddin Mirmirani, Ann Fortescue, Jill

inskeep, Bernadette Lester, Millie Wright,

Sarah Fogelson, and Linda Anderson; and

(b) respondents police officers: Robert

W. Gideon and William A. Moore.

The parties before the Court also

were parties to the proceedings below,

with the name of Donald Burlington changed

from Burlington Maguire.

The following persons also were

parties in the proceedings below, but

petitioner believes these persons no

longer have an interest in the proceedings:

John Doe No. 1, John Doe No. 2, David A.

Hetzer, and Jose Aunon.

TABLE OF CONTENTS

QUESTIONS PRESENTED... cccccccccccccceee i

LIST OF PARTIES weccccccecs ep ececccceccs iv

TABLE OF AUTHORITIES ...... covccccee: Viii

OPINION BELOW .........4. a Xiv

JURISDICTION wcccccccecccccccvcccsccces XV

CONSTITUTIONAL PROVISIONS AND STATUTE, .xv

STATEMENT OF THE CASE .essccccccaesas 1

REASONS FOR GRANTING THE WRIT ........ ll

I. Virginia statute (a) authorized

involuntary detention and treatment

for up to three days prior to a

hearing, with no detention hearing

and with no claim petitioner was

dangerous to another person and

(b) conflicts with the Fourteenth

Amendment and with decisions of this

Court and other Circuita cccccscvs 11

A. Civil commitment violates the

Fourteenth Amendment ...c.ceccees ll

B. Detention of a citizen without

a detention hearing is facially

invalid eeeeeseexs+ree#es03roee#ee#e#ee#e#e#e##e## 14

C. Detention of a citizen with no

claim of being dangerous to

another person conflicts with

the Fourteenth Amendment and

with decisions of this Court .. 15

D. Involuntary treatment of

petitioner conflicts with

the Fourteenth Amendment and

with decisions of this Court

end ether CiPeuate. . 645% sa 0a a ©

1. Solitary confinement ....... 17

2. Forced drugeing ..csssesense 18

E. Involuntary detention and forced

treatment denied petitioner

mental health rights ..cccceces 20

F. Forced treatment violates

BUMAN PIBNGS acecstseeveasesess 21

II. Dismissal prior to trial of

petitioner's civil rights action,

where petitioner alleged sufficient

facts and presented documents to

support nis action, conflicts with

the Seventh Amendment and with ~

decisions of this Court and other

CAPCULTS cc cccewesseerebebetesenes 22 7

III. The Fourth Circuit's decision that

respondent hospital and health care

providers are not state actors

conflicts with decisions of this

Court and other Cirowits «.sceces 26

A. A detention order is prima facie

evidence of state action, whether

the order is valid or invalid . 26

B. JOint action with state officials

in a procedural scheme created by

statute causing deprivation of

constitutional rights is state

SGCiON 266 sacveske ‘chesceebekens 29

C. Cases cited by the Fourth Circuit

are distinguished from

petitioner's case: the Fourth

Circuit overlooks petitioner's

IV.

vii

arguments of state action based

chiefly on the detention order. 31

Le ERO BOGRUOr GASO cacvtitiencoes 3A

2o TRO Ball CASE csecvses swenueee 32

3. EMO VCOLVOPE GABE .ccvesccces 33

The Fourth Circuit's decision that

respondent police officers are not

responsible for damages (or have

good faith immunity) conflicts with

decisions of this Court and other

GCAPCULES cceveesanue TUETTCTTE LC TTT 35>

A. Respondent police officers

should have known they

violated petitioner's

constitutional rights despite

& MABLSECFOLe'S OFGOr .ceccscess 35

B. The police are responsible for

the natural consequences of their

actions, and there is a causal

link between Officer Moore's

petition for commitment and the

ensuing involuntary detention

ONG CPORCMONE. cocccceecweas ee ee, f

i?)

The Thompson case cited by the

Fourth Circuit is distinguished

from petitioner's case: chiefly,

respondent police officers should

have known they violated

petitioner's constitutional

rights despite a magistrate's

GPGOP <scsscaesvee Pere TT Tre Te 44

Civil commitment raises important

and unresolved problems .....eeee- 45

CONCLUSION ccccccccccccccvcccccccvcccs 49

viii

APPENDIA ssvsccsocses cece res coccccce A-1l

A. District Court's Order dismissing

defendants, August 23, 1985 ..... A-1

B. District Court's Order dismissing

defendants, August 30, 1985 ..... Bel

C. District Court's Order dismissing

defendants, October 21, 1985 .... C-l

D. District Court's Order dismissing

defendants, November 22, 1985 ... D-l

E. Fourth Circuit's Decision,

March 23, 1987 eoeeree ceoeeeveveeeeeeee E-1

F. Fourth Circuit's Order denying

petition for rehearing,

Revd 27, 2907 -cadede cece vreere F=1

TABLE OF AUTHORITIES

Cases:

Addington v. Texas,

SUE UiGs S1O CATE). cevebee ues is, 27

Adickes v. S. H. Kress and Co.,

S90 Uss«n BOS TA9TC) wae ces taetvane. 30

Ancata v. Prison Health Services, Inc.,

769 F.2d 700 (llth Cir. 1985) .... 28

Application of President and Directors

of Georgetown College, Inc.,

534 Fee B80 LEU. GE. 2968) ... 19

Bee v. Greaves,

744 F.2d 1387 (10th Cir. 1984). 20, 23

BeVier v. Hucal,

SUG F.20 ie5 €Tth Cir. 3966) 22s: 37

EEE

Calvert v. Sharp,

748 F.2d 861 (4th Cir. 1984)

Conley v. Gibson, 355 U.S. 41 (1957)

Dennis v. Warren,

779 F.2d 245 (5th Cir. 1985) ..

Depew v. City of St. Marys, Georgia,

787 F/2d 1496 (llth Cir. 1986)

Hall v. Quillen,

631 F.2d 1154 (4th Cir. 1980)..

Henderson v. Fisher,

631 F.2d 1115 (3d Cir. 1980) ..

Heryford v. Parker,

396 F.2d 393 (10th Cir. 1968)

Hewett v. Jarrard,

786 F.2d 1080 (llth Cir. 1986)

In Re Gault, 387 U.S. 1 (1967)

In Re Mediey, 134 U.S. 160 (1890)

Jenkins v. McKeithern,

Dae Oue SAE LASOS) 6a 06 6 e000

Jennings v. Shuman,

567 F.2d 1213 (3d Cir. 1977) ..

Johnson v. Orr,

750 F.2d 386 (3d Cir. 1986) ...

Lugar v. Edmondson Oil Co., Inc.,

Bt Vass Fle CL9GS) ceccecscece

a3%

Malak v. Associated Physicians, Inc.,

754 F.2d 277 (7th Cir. 19656) ..

Malley v. Briggs,

106 S.Ct. 1092 (1986) .......-.-

Mills v. Rogers, 457 U.S. 291 (1982)..

Milonas v. Williams,

691 F.2d 931 (10th Cir. 1982) .....

Mincey v. Arizona,

Sat as SO ROOTS) cebessveceverves

Modaber v. Culpeper Memorial Hospital,

Eas DTT Fete £0ES LE9Ce? cece Shs

Monroe V. Pape, 365 U.S. 167 (1961)

Morrison v. Washington County, Ala.,

tuo £24 O76 VALE Cif. L963) ssvee

New v. Minneapolis,

192 Feed fes (Sth Cir. 1986) 2...

O'Connor v. Donaldson,

B2e VUede 9035 LL9TD) ovcccees cee Bey

Ort v. Pinchback,

786 F.2d 1105 (lith Cir. 1986) ....

Patzner v. Burkett,

119 F.2G 13035 (Sth Cir. 1985) .....

Polk County v. Dodson,

TP Uses SAE CLPCAT sosroves ets

Putnam v. Gerloff,

S59 F.2e Sao toch Cir. 1961) wcsc0-

Rennie v. Klein,

720 F.2d 266 (3d Cir. 1983),

remanded from 458 U.S. 1119 (1981).

Robb v. City of Philadelphia,

T33 Poe 2OG C50 Gals 2IO8) cocesec

Robinson v. California,

310 Use GOL UL9GC) soccnvevcsceers

Rogers v. Okin,

Tae Vee B 4AOt Cir. 19659) 2. civues 19

Sanders v. Kennedy,

794 F.2d 478 (9th Cir. 1986) ...... 23

Scheuer v. Rhodes,

ae Wes Bee CEOTE) ceceon eens edewe 22

Shelton v. Tucker,

Fae Sie Ee. FEOOO) a nssd-0eeesanube 20

Sprecht v. Patterson,

Fee Vows GOs FA9GT) cescccecvsacune 13

Thompson v. Louisiana,

LUD SeCE. SOF (1909) wnvcvscves 36, 37

Thompson v. Prince William County,

12e@ Fse@ 305 C5tR CLs. L969) wscsve yy

Tower v. Glover, 467 U.S. 914 (1984).. 30

United States v. Classic,

Gh D- Uns BEF NAPTEE Caravesorncaseee 29

United States v. Diebold,

Ce ie eS eee 22

United States v. Gouveia,

105 S.C. 2292 (1959) .ncccces coose 36

United States v. Salerno,

No. 86-87, slip opinion (1987) .... 16

Winters v. Miller,

S50 F.2¢ OS ted Cir. 1971) .ccesece 20

Youngberg v. Romeo,

eT Waa Se CROMER?) “kKs cde eeeee i ey a

Constitutional Amendments:

S ckbv da enters 1, 19, 42

tes ee ln Prey: ee

| ee ee Cy ee Oey ree 1, 36, 42

fb RE ee Rn Sy ee Ree Pee ee xv, 22

EEE Svswn were. vate ake eileen ae

4 ee ee ae, 2, Dh, 28, 49, i

Statutes:

if U.8.C,. Section 3iSZ .-+ 20% a: ae

20 UvS.6. Beetion L259 .scsecss be cacne. UA

2S Ui eee ASNS obec cecev a besese pa

a2 03.0. SOGehee BGes -<sc cance ncesvves ao

a2: U.8.0, BOOtion FSG. 26a wens «cee es re |

Va. Code Section 37.1-1 ..xvi, 11, 12, 14

Va. Code Section 37.1-67.1 .. xvi, 15, 26

Va. Code Section 37.1-67.4 ‘peewee Lg OO

Va. Code Section 54-273 Peer eT eee 40

Treaty:

1975 Helsinki Accords ..scssscsss eka i 21

Books:

American Psychiatric Association,

Diagnostic and Statistical Manual

of Mental Disorders (3d Ed. 1980).4, 7

Care of Institutionalized Mentally

DiSRULGG FRPSOOS CL9IOST waseresvece 45

2ii3

Lee Coleman, M.D., Reign of Error

(1984) eeesecoeest#esetes#seeee#ee#ee#ee#ee#e#e#e#e#e#eee##e##@# ese 13

Constitutional Rights of the

EARN DE EESIUP sovccecccces 14, 45

Constitutional Rights of the

POPEEE Cee CEPOL) aoccecccces 14, 45

Mental Health Directory for 1985

CEE SESS n ers es eee Shhh eee ee aces 46

Quality of Health Care--Human

Experimentation (1975) ...ccecccsees AS

Thomas Szasz, Insanity (1987) .... 12, 13

Thomas S. Szasz, M.D., Law,

Liberty, and Psychiatry (1963) .... 14

Misc»lizneous:

APA Monitor (January 1981) ......ceec0e 21

CBS Television Transcript,

60 Minutes (January 4, 1987) ...... 48

The Washington Post (January 8, 1984). 46

IN THE SUPRE™& COURT OF THE UNITED STATES

October Term, 1987

George Brewster, Petitioner

Mount Vernon Hospital, et al.,

Respondents

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

FOURTH CIRCUIT

The petitioner, George Brewster, respect-

fully prays that a writ of certiorari

issue to review the judgment of the

United States Court of Appeals for the

Fourth Circuit (Richmond) entered on

March 19, 1987.

OPINION BELOW

The opinion of the Court of Appeals

is reprinted and attached at Appendix E.

The Court of Appeals denied

petitioner's petitiion for rehearing on

April 17, 1987. The order is reprinted

and attached as Appendix F.

JURISDICTION

On March 19, 1987 the Court of Appeals

entered judgment affirming the District

Court's order granting respondents! motion

for summary judgment and their motion to

dismiss the action brought pursuant to

42 U.S.C. Section 1983. (App E) On April

17, 1987 the Court of Appeals denied

petitioner's petition for rehearing.

(App F) The Jurisdiction of this Court to

review the judgment of the Court of Appeals

is invoked under 28 U.S.C. Section 1254(1).

CONSTITUTIONAL PROVISIONS AND STATUTE

United States Constitution, Amendment VII:

In Suits at common law ... the right

of trial by jury shall be preserved.

United States Constitution, Amendment XIV:

Section 1. ... No State shall make

or enforce any law which shall abridge

the privileges or immunities of

citizens of the United States; nor

shall any State deprive any person of

life, liberty, or property, without

)

XVi

due process of law; nor deny to any

person within its jurisdiction the

equal protection of the laws.

Virginia Code (1987 Supplement):

section 37-lel. «+» "Mentally iii"

means any person afflicted with

mental disease to such an extent that

for his own welfare or the welfare of

others, he requires care and treat-

MENT wee o

Section 37.1-67.1. ... Any judge ...

or a magistrate upon the advice of a

person skilled in the diagnosis or

treatment of mental. illness, may,

upon the sworm petition of any

responsible person or upon his own

motion based upon probable cause,

issue an order requiring any person

within his jurisdiction alleged or

reliably reported to be mentally ill

and in need of hospitalization to be

brought before the judge. If such

person cannot be conveniently brought

before the judge, the judge or

magistrate may issue an order of

temporary detention.

The officer executing the order of

temporary detention shall place such

person in some convenient and willing

institution or other willing place for

a period not to exceed forty-eight

hours prior to a hearing. ... (I)n

no event may he be detained for a

period Jonger than seventy-two hours., ..

The chief judge of each general district

court shall establish and require

that a judge ... or a magistrate ...

be available seven days a week,

twenty-four hours a day, for the

purpose of performing the duties

established by this section. ...

Section 37.1-67.4. ... Any such

convenient institution Caring for a

person placed with it pui’suant to a

temporary order of detention is

authorized to provide emergency

medical and psychiatric services ... .

STATEMENT OF THE CASE

In 1985 petition brought this damage

action pursuant to 42 U.S.C. Section 1983

under jurisdiction of 28 U.S.C. Section

1343. In the complaint petitioner stated

that during the period from July 23 to 26,

1983 respondents acted to deprive him of

his civil rights secured by the First,

Fourth, Sixth, and Fourteenth Amendments.

On July 23, 1983 petitioner phoned a

magistrate (Presumably named Gardner)

(App 142)- to see if false misdemeanor

charges placed against him six days

earlier could be dropped before trial

(in Fairfax County General District Court)

to end damages as soon as possible. The.

1. Such references are to the page of the

Appendix filed with the Court of Appeals.

iii

magistrate suggested they talk face to

face and that, because petitioner had a

car problem, he (the magistrate) could

send a police car to transport petitioner.

Police arrived at petitioner's home,

found no distress, and took petitioner to

a building where he was told he would see

the magistrate. A woman (Fortescue) began

interviewing petitioner and identified

herself as a nurse at Mount Vernon Hospital.

Petitioner became suspicious and tried to

leave but was prevented by Officer Moore

and by Nurse Fortescue, who told

petitioner that if he answered their

questions they might let him leave.

Petitioner's requests to telephone an

attorney were denied. Petitioner answered

questions in an attempt to leave.

Fortescue asked petitioner why he

called police and threatened to kill him-

self. (Petitioner later discovered

Magistrate Gardner telephoned Magistrate

Hetzer, who called Nurse Fortescue and said

petitioner wanted to end it: referring to

the charges being discussed but apparently

distorted by someone as a suicide threat.)

(App 142-144) Petitioner explained to

Nurse Fortescue he never threatened to kill

himself and that, although he was upset by

the false charges, he was not depressed.

Petitioner further sip idiaiie he was a

psychologist with a Ph.D. degree, was a

Christian Scientist, that he objected to

medicine and drugs, and that he had

allergic and paradoxical reactions to drugs.

Petitioner was questioned at length about

his religious and philosophical beliefs.

Petitioner explained his Christian Science

views that he did not believe in death,

that the material world is an illusion,

and consequently that Earth is not a

material place but a state of being, or a

state of mind. When questioned further,

petitioner mentioned Buchminster Fuller's

concept of "Spaceship Earth", James

Lovelock's "Gaia Hypothesis", and con-

tempoary views of theoretical physics on

black holes and white holes. Fortescue

could not accept or understand petitioner's

views, so petitioner explained to her that

religious and philosophical beliefs which

he shares with other cannot be called

psychosis. * (Petitioner later discovered

his harmless religious and philosophical

beliefs, and the entire interview, were

misunderstood and distorted making him

sound crazy.) (App 54-58)

Despite petitioner's objections,

Nurse Fortescue told him that because he

refused drugs he needed to be ina

2. "Beliefs or experiences of members of

religious or other subcultural groups may be

difficult to distinguish from delusions or

hallucinations. When such experiences are shared

and accepted by a_ subcultural group they should

not be considered evidence of psychosis."

Diagnostic and Statistical Manual of Mental

Disorders, Washington, D.C.: American Psychiatric

Association (3d Ed. 1980) p. 188.

hospital to make sure he took drugs.

(App 58) Petitioner explained that

because of his religious and philosophical

beliefs, no one had any legal right to

force drugs on him. Fortescue disagreed.

Petitioner was interviewed for over

three hours and refused any further conver-

Sation with Nurse Fortescue when she tried

to obtain a false confession from him

concerning the false charges (which sub-

sequently were dropped). Petitioner told

her he had a legal problem, not a

psychiatric one. (App 57)

Petitioner then was admitted by Dr.

Burlington (who found no reason to detain

petitioner other than citing a detention

order). (App 91) Petitioner had no

hearing but was told by Officer Moore,

"We're going to detain you to see if you

need psychiatric care." As petitioner was

taken by police and hospital staff to the

psychiatric ward, a staff member delivered

iit ete aiiemnaniiaaieaieill

a piece of paper (presumably a detention

order) to Officer Moore. (Petitioner

later discovered the order was signed by

Magistrate Hetzer and relied upon the

advice of Nurse Fortescue as "a person

skilled in diagnosis or treatment.")

(App 14) (The order was later signed by

Officer Moore as executed (App 15) and on

a related form he was listed as

petitioner (App 16).)

Despite petitioner's objections he

was taken by Officer Moore and others to

a locked psychiatric ward, and locked in

solitary confinement because psychiatric

counselor Inskeep said, "There's too much

stimulation on the ward for him" (or

because "agitation was noticeable" as she

wrote in the hospital record.) (App 68)

Solitary confinement contained only a

plastic mat to sleep on. There was no

toilet or sink. Petitioner was told by

hospital staff to "Lie down and get some

rest. You're going to be in there a long

time." AS petitioner was falling asleep,

Dr. Robertson entered and, because

petitioner was half asleep and before

petitioner could say anything, Dr.

Robertson said he would come back later,

and left without interviewing petitioner.

Although petitioner was locked in

solitary confinement sleeping, he dl

awakened to have a-ugs forced on him

despite his objections. (App 70) These

mind-altering drugs were ordered by Dr.

Robertson (App 87) without ever inter-

viewing petitioner but apparently by

interviewing Nurse Fortescue. (App 61)

(Petitioner later discovered Dr. Robertson

mistakenly diagnosed him as schizophrenic

(App 61), which is impossible” according

3. A diagnosis of schizophrenia requires

"onset before age 45, and a duration of at least

six months." Diagnostic and Statistical Manual of

Mental Disorders, supra, p. 131. Such diagnosis is

impossible because petitioner was 46 at the time

and never was alleged to have symptoms of at least

to psychiatric standards.

Drugs prevented petitioner from

eating, and caused paradoxical reactions

and drug intoxification which, along with

the negative effect of solitary confine-

ment, staff misinterpreted as mental ill-

ness. (App 80, 81, 92) Drugs also caused

"dystonic reaction" (App 78), and caused

blood pressure to fall from "150" (App 91)

to "74" (App 80). (Petitioner later dis-

covered that his refusal to take drugs and

his complaints about the damages they

caused were misinterpreted as "paranoia".

(App 65) Petitioner was given mind-

altering drugs repeatedly for two days

despite his objections and ailergic

reactions.

After two days petitioner briefly

six months. Such diagnosis also conflicts with the

written report of Dr. Harold Kaufman of Washington,

D.@., a psychiatrist who has known petitioner since

1971 and who has failed to find petitioner mentally

ill at any time. Dr. Kaufman's report was Pretrial™

Exhibit (P-8).

saw Dr. Cooper and an attorney, which pre-

sumably constituted a preliminary hearing.

Officer Moore was present and signed a

petition for commitment, saying he had

already signed one two days earlier.

(App 16) A few hours later petitioner

was taken out of solitary confinement and

forced to talk with Dr. Mirmirani or else

being put back in solitary confinement and

having additional drugs forced on hin,

ordered by Dr. Mirmirani before ever inter-

viewing petitioner. (App 88, 65). The

following day petitioner was released

following a civil commitment hearing,

because Officer Moore could produce no

evidence that petitioner was dangerous.

In his complaint, petitioner

specified permanent damages, which con-

tinue today. (App 12, 13) Attached to the

complaint were the detention order and a

form showing Officer Moore as petitioner.

(App 14-16)

In Federal District Court respondent ~

hospital and health care providers moved

to dismiss for want of state action. Their

motion was granted despite petitioner's

objection that respondents' reliance ona

detention order was prima facie evidence of

State action. Petitioner's motion to

reconsider the dismissals was denied.

Then respondent police officers moved

to dismiss for want of responsibility (or

for good faith immunity), which was granted

despite petitioner's objection that

respondents acted initially "without a

warrant" (App 137), "were in conspiracy

with the magistrate to get him there"

(App 139), there was "no emergency at any

time" (App 145), and "if they threw him in

a mental ward, which they did, they would

be responsible for what happened". (App 146).

The Fourth Circuit affirmed the dis-

missals, despite petitioner's repeated

and additional arguments of state action

and responsibility. The Fourth Circuit

denied petitioner's petition for rehearing,

in which he emphasized the dismissals as

conflicting with Supreme Court decisions.

REASONS FOR GRANTING THE WRIT

Virginia statute (a) authorized

involuntary detention and treatment

for up to three days prior toa

hearing, with no detention hearing

and with no claim petitioner was

dangerous to another person and

(b) conflicts with the Fourteenth

Amendment and with decisions of this

Court and other Circuits

A. Civil commitment violates the

Fourteenth Amendment

Virginia statute deprives any person

of his liberty on an allegation of being

mentally ili. Mentally ill is so broadly

defined that any person may be deprived of

his liberty if alleged to require care and

treatment "for his own welfare or the

welfare of others." Virginia Code Section

37.1-1. Conceivably, according to statute,

petitioner even could be deprived of his

liberty for the welfare of physicians who

ieenneiieennan in aes

benefit financially from his confinement,

as long as he is alleged to require care

and treatment for their benefit.

Virginia statute is unconstitutionally

broad,’ using "mental illness" as legal

fiction to justify commitment.

As Former Chief Justice Burger wrote:

Nor can I accept the theory that a

State may lawfully confine an

individual thought to need treatment

and justify that deprivation of

liberty solely by providing some

treatment. Our concepts of due

process would not tolerate such a

"trade-off." O'Connor v. Donaldson,

422 U.S. 563, 589 (1975).

A person subject to commitment

proceedings is entitled to at least the

same safeguards as criminals. Former

4, Even a person "medically determined to be

in need of ... counseling" because of alcohol or

drug use may be deprived of his freedom, according

to Virginia statute. Section 37.1l-l.

5. Akin to using "personalty" as legal

fiction to justify slavery under the Constitution

prior to the Thirteenth Amendment. See "Mental

illness as legal fiction" (Chap. 11), pp. 319-341,

in Thomas Szasz, Insanity. New York: Wiley (1987).

Justice Fortas wrote:

(C)ommitment is a deprivation of

liberty ... whether it is called

"criminal" or tht ae In Re Gault,

387 U.S. 1, 50 (1967). See Sprecht

v. Patterson, 386 U.S. 605, 608 (1967);

Heryford v. Parker, 396 F.2d 393, 396

(10th Cir. 1968).

Even assuming Virginia statute means

mentally ill and dangerous, an individual

cannot be deprived of his freedom on an

accusation of being dangerous without

using the same standards applied-to accused

criminals, i.e., accused or convicted of a

crime according to standards of criminal

codes.

If the state wanted to arrest

petitioner on a charge of wanting to "end

it", then it had to do so through a

criminal code, not an unconstitutional

civil code.

6. For further discussion of the un-

constitutional nature of civil commitment,

see Thomas Szasz, Insanity, supra, n. 5; Lee

Coleman, M.D., Reign of Error, particularly

"Involuntary psychiatry and the rule of law"

(Chap. 8), pp. 153-176, "Abolishing involuntary

B. Detention of a citizen without a

detention hearing is facially

invalid

Virginia Code Section 37.1-67.1

authorizes detention for up to three days

prior to a hearing, without providing for a

detention hearing and without providing for

an attorney at a detention hearing,

facially invalid under the Fourteenth

Amendment. All person detained under

Section 37.1-67.1 are detained because the

person cannot conveniently be brought

before a judge. This Section requires a

judge or magistrate be available seven

treatment" (Chap. 9), pp. 177-195, and "The crime

of treatment" (Chap. 10), pp. 196-215, Boston:

Beacon (1984); Bruce J. Ennis, "Statement", pp.

261-289, in Constitutional Rights of the Mentally

Ill (1970): Hearings, United States Senate.

Ninety-First Congress, Washington, D.C.: U.S.

Government Printing Office; Thomas S. Szasz, M.D.,

Law, Liberty, and Psychiatry, particularly

"Psychiatry and Constitutional Rights" (Part Four),

including "The Abridgment of the constitutional

rights of the mentally ill" (Chap. 15), pp.

182-190, New York: Macmillan (1963); Richard Arens,

"Statement", pp. 207-217, in Constitutional Rights

of the Mentally I11 (1961): Hearings, United

States Senate, Eighty-seventh Congress, Washington,

D.C.: U.S. Government Printing Office.

days a week, twenty-four hours a day, so it

cannot be inconvenient to deny petitioner a

detention hearing. An alleged incon-

venience is no justification for denying

petitioner Fourteenth Amendment protections.

Also, Section 37.1-67.1 denies

petitioner equal protection of the Bail

Reform Act, chiefly by not providing for a

detention hearing or for counsel at a

detention hearing, as provided under

18 U.S.C. ‘Section 3142(f).

C. Detention of a citizen with no

claim of being dangerous to

another person conflicts with the

Fourteenth Amendment and with

decisions of this Court

Anyone alleged to be mentally ill

may be detained under Section 37.1-67.1

for his own welfare, presumably claimed

for petitioner, as there was no claim

made by anyone that he was dangerous to

another person or to the community.

According to Chief Justice Rehnquist,

detention is warranted for "community

safety'. United States v. Salerno, No.

86-87, slip opinion, at ii (1987). "We

have also held that the government may

detain mentally unstable individuals who

present a danger to the public." Id, at 9,

referring to Addington v. Texas, 441 U.S.

418 (1979). Safeguards under the Bail

Reform Act are enumerated in Salerno at ll.

Petitioner was denied equal protection

of the Bail Reform Act when he was

detained, presumably for his own welfare,

with no claim of being dangerous to

another person or to the community,

contrary to requirements of 18 U.S.C.

Section 3142(f).

In the decision of this Court that

drug addiction is not a crime, Former

Justice Stewart wrote:

Even one day in prison would be a

cruel and unusual punishment for the

"crime" of having a common cold.

Robinson v. California, 370 U.S. 661,

667 (1962).

To paraphrase Former Justice Stewart,

even one day ina "hospital" would be a

cruel and unusual punishment for the "crime"

of having “mental illness." It matters not

whether it is called "punishment" or

"treatment", paraphrasing Former Justice

Fortas. In Re Gault, supra, at 50.

D. Involuntary treatment of

petitioner conflicts with the

Fourteenth Amendment and with

‘decisions of this Court and other

Circuits

Treatment of petitioner included

solitary confinement without toilet or

Sink, and forced drugging. Such treatment

conflicts with the decision of this Court

that the mentally retarded under the

Fourteenth Amendment had a right to

reasonably safe conditions of confinement

and freedom from unreasonable bodily

restraints. Youngberg v. Romeo, 457 U.S.

307 (1982).

1. Solitary confinement, in an

early decision of this Court, imposes more

punishment than reform. Describing

solitary confinement, this Court wrote:

A considerable number of the

prisoners fell, after even a short

confinement, into a semi-fatuous

condition, from which it was next to

impossible to arouse them, and others

became violently insane; others still,

committed suicide; while those who

stood the ordeal better were not

generally reformed, and in most cases

did not recover sufficient mental

activity to be of any subsequent

service to the community. In Re

Medley, 134 U.S. 160, 167-168 (1890!:.

Solitary confinement of petitioner

conflicts with the decision of the

Eleventh Circuit:

(I)mposing isolation upon ... pre-

trial detainee without notice or

hearing ... warranted award of

punitive damages ... in that

reasonable person would have known

that Constitution forbade such

conduct. Hewett v. Jarrard, 786 F.2d

1080, 1082 (llth Cir. 1986).

2. Forced drugging conflicts

with the decision of the D.C. Circuit in

which Former Chief Justice Burger, then

Justice Burger, wrote in a Jehovah's

Witness case in support of his position

that the courts ought not to order

hospital patients to receive blood trans-

fusions against their will:

(Constitutional protections)

include a great many foolish, un-

reasonable and even absurd ideas

which do not conform, such as re-

fusing medical treatment even at

great risk. Application of President

and Directors of Georgetown College,

InGs, 334 Fred FOLU,-40L7 (D.C. Cir.

1964).

Forced drugging conflicts with

decisions of this Court and other Circuits

in allowing mental patients to refuse

drugs (even if incompetent: if they would

have refused if competent). Mills v. Rogers,

457 U.S. 291 (1982), remanded as Rogers v.

Okin, 738 F.2d 1 (lst Cir. 1984). See

Rennie v. Kline, 720 F.2d 266 (3d Cir.

1983), remanded from 458 U.S. 1119 (1981).

Forced drugging conflicts with the

Tenth Circuit's decision that:

(1) individual has a constitutionally

protected interest in making his own

decision whether to accept or reject

the administration of potentially

dangerous drugs; (2) First Amendment

concerns were involved because the

communication of ideas implies the

' \

capacity to produce ideas, (3)

forcible administration of anti-

psychotic drugs to detainee could not

be justified by the duty to treat a

mentally ill detainee ... ; (4)

administration of antipsychotic drugs

could be justified ... only after

less restrictive alternatives were

considered. Bee v. Greaves, 744 F.2d

1387 (10th Cir. 1984).

Forced drugging conflicts with the

Second Circuit's decision that a Christian

Scientist stated a claim for damages

resulting from forced drugging in violation

of the First Amendment. Winters v. Miller,

4H6 F.2d 65 (2d Cir. 1971).

As Former Justice Stewart wrote:

(E)ven though the governmental purpose

be legitimate and substantial, that

purpose cannot be pursued by means that

broadly stifle fundamental personal

liberties when the end can be more

narrowly achieved." Shelton v. Tucker

364 U.S. 479, 488 (1966).

In petitioner's case, forced drugging

was unnecessary, as petitioner was locked

in solitary confinement sleeping.

E. Involuntary detention and forced

treatment denied petitioner mental

health rights

Petitioner was denied equal protection

of the Mental- Health Systems Act, chiefly

by not providing for (1) the least re-

strictive conditions possible, as provided

under 42 U.S.C. Section 9501{1)(A)(ii), (2)

privacy, as provided under Section 9501(1)

(G), (3) confidentiality, as provided under

Section 9501(1)(H), and (4) access to the

telephone, as provided under Section

9501(1)(J).

waa Forced treatment violates human

rights

Forced treatment violates human

rights under the 1975 Helsinki Accords,

Signed by the United States, chiefly by

subjecting petitioner to inhuman treatment.

Many countries do not have civil commitment.

Italy has a national law forbidding civil

commitment:

Acute care can be provided by the

general hospital. But there is no

compulsion. The client can leave

the hospital when he or she chooses.

Ian McNett, "International Psychology",

APA Monitor, Washington, D.C.:

American Psychological Association

(January- 1981) p. 9.

Lower courts need guidance from this

Court on the applicability of laws

governing civil commitment.

Dismissal prior to trial of

petitioner's civil rights action,

where petitioner alleged sufficient

facts and presented documents to

Support his action, conflicts with

the Seventh Amendment and with

decisions of this Court and other

Circuits

This Court decided:

For the purposes of a motion to dis-

miss, the material allegations of the

complaint are taken as admitted. ...

- And the complaint is to be liberally

construed in favor of plaintiff. ...

The complaint should not be dismissed

unless it appears that appellant could

"Drove no set of facts in support of

his claim which would entitle him to

relief." Jenkins v. McKeithern, 395

U.S. 411, 421 (1969), citing Conley v.

Gibson, 355 U.S. 41, 45-46 (1957).

See Scheuer v. Rhodes, 416 U.S. 232,

236-37 (1974); United States v.

Diebold, 369 U.S. 654, 655 (1962).

The Ninth Circuit found that, where

plaintiffs based claim for liability

directly on unconstitutional policies or

customs, it is erroneous for district

court to dismiss individual defendants.

Sanders v. Kennedy, 794 F.2d 478, 482 (9th

Cir. 1986). The Third Circuit found that,

where complaint averred private citizens

acted in concert with city officials, the

complaint stated claim against private

citizens. Robb v. City of Philadelphia,

733 F.2d 286, 292 (3d Cir. 1984). The

Tenth Circuit, ina forced drugging case

of a pretrial detainee, found that summary

judgment could not be granted where there

was doubt from the evidence that (a) an

emergency actually existed, and (b) if an

emergency existed whether forcible

medication for an indefinite period was an

exaggerated response. Bee, supra, at 1396-

97.

In petitioner's case, factual and

legal disputes exist (apart from the issues

of state action and responsibility):

chiefly, whether petitioner threatened to

harm himself, whether he was mentally ill,

whether an emergency existed, whether the

oral or written order of the magistrate was

valid, whether petitioner could be detained,

whether he could be put in solitary confine-

ment, whether drugs could be forcibly ad-

ministered (especially where petitioner

already was locked in solitary confinement

sleeping).

Factual disputes are best settled by a

proceeding on the merits.

The core issue is not whether

petitioner proved state action or re-

sponsibility on the part of respondents,

but whether sufficient facts were alleged

to proceed to trial. Petitioner alleged

sufficient facts in the courts ?low to

proceed to trial, or at least his complaint

should not have been dismissed for failure

adequately to allege state action or re-

7. Some "facts" presented by the Fourth

Circuit clearly are erroneous and never alleged by

anyone: e.g., "charge filed against him in federal

district court" and "stated he was very depressed".

(App E-3) Also, "diagnosed as a chronic é

schizophrenic" (App E-4) is impossible, as

explained at n. 3., Supra.

sponsibility.

Petitioner not only alleged sufficient

facts in his complaint but also attached

supporting documents: (1) the detention

order, showing prima facie evidence of

state action of the hospital and health

care providers and (2) a form showing

Officer Moore as petitioner for commitment,

establishing a causal link between his

petition for commitment and the damages

resulting from the ensuing detention and

treatment. ° Further discussion of these

Supporting arguments and documents is

presented in Reasons III and IV, which

follow.

Lower courts need guidance from this

Court on the question of dismissing a

Civil rights complaint prior to trial

despite allegations and documents

sufficient to support the complaint.

8. Moore's signed petition was Pretrial

Exhibit (P-4).

Til

The Fourth Circuit's decision that

respondent hospital and health care

providers are not state actors

conflicts with decisions of this

Court and other Circuits

A. A detention order is prima facie

evidence of state action, whether

the order is valid or invalid

Respondent hospital and health care

providers imposed involuntary detention and

forced treatment on petitioner under

authority of a detention order, issued by

the state under Virginia Code Sections

37.1-67.1 and 37.1-67.4, prima facie

evidence of state action. The detention

order proves state action, or color of law,

whether the order is valid or invalid, or

whether the statute is constitutional or

unconstitutional. A detention order is

the exclusive prerogative of the state,

proof of state action.

Decisions of this Court suggest it is

the exclusive prerogative of the state to

confine persons involuntarily in a mental

institution. Addington, supra, 426-27;

O'Connor, supra, 575-76. In this context,

the state takes on a custodial function,

owing a duty not only to the institution-

alized person but to the public. Polk

County v. Dodson, 454 U.S. 312, 319 (1981).

Once the state curtails a person's

liberty through the civil commitment pro-

cess, it assumes affirmative obligations,

imposed by the Constitution, for the

person's care and well-being. Youngberg,

supra, 315-19 (1982). If the state

delegates these responsibilities, and a

private hospital willingly assumes them,

then neither can argue that the private

hospital's acts and omissions do not occur

under state action, or color of law. To

hold otherwise would allow the state to

avoid its constitutional obligations

Simply by delegating its responsibilities

to the hospital for the care of persons

the state involuntarily confines.

Johnson v. Orr, 780 F.2d 386 (3d Cir. 1986)

(state action if close nexus between the

state and the challenged action). Malak v.

Associated Physicians, Inc., 784 F.2d 277

(7th Cir. 1956) (state action on part of

hospital and private physicians in dis-

missing physician for criticizing emergency

room conditions). Ort v. Pinchbach, 786

F.2d 1105, 1107 (llth Cir. 1986) (phy-

Sician who contracts with the state to

provide medical care to inmates acts under

color of law, performing a function which

is traditionally the exclusive prerogative

of the state when he took over the state's

responsibility for attending tc inmate

medical needs). Ancata v. Prison Health

Services, Inc., 769 F.2d 700, 703 (llth Cir.

1985) (private health service providing

care in county jail a state actor).

Morrison v. Washington County, Ala., 7900

F.2d 678, 683 (llth Cir. 1983) (material

fact issue existed precluding summary

judgment in favor of hospital, phy-

sician, county, and county commissioners).

Milonas v. Williams, 691 F.2d 931, 939-40

(10th Cir. 1982) (private school in which

students were involuntarily placed by the

state acted under color of law).

This Court held that a person

exercising powers given to him by the

state but not given to the general

citizenry is "clothed with the authority

of state law," and a state actor. United

States v. Classic, 313 U.S. 299, 326

(1941). See Jennings v. Shuman, 567 F.2d

1213, 1220 (3d Cir. 1977) (private citizen

appointed as assistant. special prosecutor

fell within the Classic standard).

B. Joint action with state officials

in a procedural scheme created by

statute causing deprivation of

constitutional rights is state

action

This Court found that a private party's

joint action with state officials ina

procedural scheme created by statute -

causing deprivation of constitutional

rights is state action. Lugar v. Edmondson

Oil Co. Inc., 457 U.S. 972 (1982). A

Similar decision was made by the Third

Circuit. Henderson v. Fisher, 631 F.2d

1115, 1118-19 (3d Cir. 1980) (campus

police were state actors).

This Court made similar decisions in

regard to conspiracy allegations. Tower v.

Glover, 467 U.S. 914 (1984) (complaint

adequately alleged conduct "under color of"

state law in view of the conspiracy

allegations). Adickes v. S.H. Kress and

Company, 398 U.S. 144 (1970) (private

party involved in conspiracy with state

officials may be liable for civil rights

action).

In petitioner's case, the hospital

and health care providers jointly

participated with police officers and

magistrates (state officials) to obtain a

detention order (in a procedural scheme

created by statute, or by conspiracy)

causing deprivation of petitioner's

constitutional rights under the Fourteenth

Amendment.

C. Cases cited by the Fourth Circuit

are distinguished from

petitioner's case: the Fourth

Circuit overlooks petitioner's

arguments of state action based

chiefly on the detention order

The Fourth Circuit overlooks argu-

ments of state action based chiefly on the

fact that respondent hospital and health

care providers involuntarily detained and

treated petitioner against his will on the

basis of a detention order, an exclusive

prerogative of the state and issued by the

state under Virginia statute.

Each case now is discussed separately:

1. The Modaber case is cited by

the Fourth Circuit to establish that federal

funds do not transform a private hospital

into a state actor. Modaber v. Culpeper

Memorial Hospital, Inec., 674 F.2d 1023

— \

(1982). In citing Modaber the Fourth

Circuit overlooks petitioner's argument

of state action based chiefly on the

presence of a detention order, not receipt

of federal funds. Petitioner believes

that a private hospital can be a state

actor, regardless of whether it receives

federal funds, especially if it invol-

untarily detains and treats on the basis

of the detention order.

2. The Hall case is cited by the

Fourth Circuit to establish that partici-

pation in detention proceedings will not

make a health care provider a state actor.

Hall v. Quillen, 631 F.2d 1154 (4th Cir.

1980). Petitioner believes the Fourth

Circuit misapplied or misinterpreted Hall.

Hall states:

(T)here was lack of state action as

to ... physician ... , where phy-

sician examined, under court appoint-

ment, civil rights plaintiff in

connection with involuntary commit-

ment proceeding. Id, at 1154.

In petitioner's case, such examining

physician was Dr. Cooper, who never was a

party to petitioner's suit. The health

care providers in petitioner's case

involuntarily detained and treated, far

different from examining, as in Hall.

Petitioner believes that health care pro-

viders can be state actors, regardless of

whether they participate in detention

proceedings (i.e., examine), especially

if they involuntarily detain and treat on

the basis of a detention order.

3. The Calvert case is cited by

the Fourth Circuit to establish that phy-

Sicians who are compensated by the state

are not state actors even though they earn

the bulk of their compensation from private

practice. Calvert v. Sharp, 748 F.2d 861

“(4th Cir. 1984). Petitioner believes the

Fourth Circuit misapplied or misinterpreted

Calvert. Calvert was a prisoner who wanted

treatment for an orthopedic problem, and

: 34

was referred to a specialist who saw but

did not treat him although Calvert paid

him. In short, Calvert wanted treatment,

paid for it, but did not receive it:

petitioner did not want treatment which

was forced on him and for which the state

paid. Calvert states:

The provision of medical services per-

formed by private physicians and paid

for by the prisoner ... is not within

the exclusive prerogative of the state.

-»- His obligation was not to the

mission of the state but to treat

patients referred to him by other

physicians. He did not act under color

of state law. Id, at 864 (emphasis

added).

In petitioner's case, state action

existed because the hospital and health care

providers by involuntarily detaining and

treating petitioner against his will on the

basis of a detention order (an exclusive

prerogative of the state and issued by the

state under Virginia statute) assumed "an

obligation to the mission that the State,

through the institution, attempts to

achieve." Id, at 864, citing Polk County,

supra, at 450-451. Petitioner believes

that physicians can be state actors, regard-

less of whether they are compensated by the

state, especially when they involuntarily

detain and treat on the basis of a detention

order.

Lower courts need guidance from this

Court on the question of state action, where

a hospital and health care providers

involuntarily detain and treat on the basis

of a detention order.

The Fourth Circuit's decision that

respondent police officers are not

responsible for damages (or have

good faith immunity) conflicts with

decisions of this Court and other

Circuits

A. Respondent police officers should

have known they violated

petitioner's constitutional

rights despite a magistrate's

order

This Court decided:

(A)n officer who seeks an arrest

warrant by submitting a complaint and

supporting affidavit to a judge is not

entitied to immunity unless the

officer has an objectively reasonable

basis for believing that the facts

alleged in his affidavit are sufficient

to establish probable cause. ...

In Leon, we stated that "our good-

faith inquiry is confined to the ob-

jectively ascertainable question

whether a reasonably well-trained

officer would have known that the

search was illegal despite the

magistrate's authorization." 468

UsSes BG = , Rs 23, 108 &.Ct., at

3421, n. 23. The analogous question

in this case is whether a reason-

ably well-trained officer in

petitioner's position would have

known that his affidavit failed to

establish probable cause and that he

should not have applied for the

warrant. If such was the case, the

officer's application for a warrant

was not objectively reasonable,

because it created the unnecessary

danger of an unlawful arrest.

Malley v. Briggs, 106 S.Ct. 1092,

1095, 1098 (1986) (footnote omitted).

The Fourth Circuit's decision conflicts

with other decisions of this Court.

United States v. Gouveia, 104 S.Ct. 2292,

2298 (1984) (speedy trial cases hold that

Sixth Amendment right to attorney may attach

as early as the time of “arrest and

holding"). Thompson v. Louisiana, 105

s.ct. 409 (1984) (warrantless search not

constitutionally permissible). Mincey v.

Arizona, 437 U.S. 385 (1978) (warrantless

search not justified and statements made

in hospital were not voluntary and could

not be used).

The Fourth Circuit also conflicts

with other Circuits. BeVier v. Hucal,

806 F.2d 123 (7th Cir. 1986) (police not

entitled to good faith immunity arresting

parents for child neglect). New v.

Minneapolis, 792 F.2d 724, 725 (8th Cir.

1986) (allegations of fabricated charges

or arrest without probable cause are not

foreclosed by the existence of state tort

remedies). Depew v. City of St. Marys,

Georgia, 787 F.2d 1496 (llth Cir. 1986)

(city liable where it knowingly approved

a pattern of p@qlice conduct). Dennis v.

Warren, 779 F.2d 245 (5th Cir. 1985) (no

probable cause or reasonable suspicion in

nonfelony arrest). Patzner v. Burkett,

779 F.2d 1363 (8th Cir. 1985) (officers

who make warrantless arrest in home for

nonfelony are not entitled to qualified

immunity defense). Putnam v. Gerloff,

639 F.2d 415, 423 (8th Cir. 1981) (im-

munity may not be based solely on the

fact that defendant was following in-

structions).

In petitioner's case, police should

have Known they violated petitioner's

constitutional rights when they took him

from his home on an oral order from a

magistrate with no indication of dis-

tress. They should have Known the magis-

trate had no authority to issue an oral

order on a civil matter under Virginia

Code Section 37.1-67.1, especially with-

out a complaint and without the advice of

a person skilled in diagnosis or treat-

ment.

When petitioner discovered he was

taken to a hospital and tried to leave,

police should have known they violated

petitioner's constitutional rights when

they refused to let him leave, see the

magistrate, call an attorney, or use a

phone, telling petitioner they might let

him leave if he answered Nurse Fortescue's

questions, an interrogation lasting over

three hours. Police should have known

that their encouragement of Nurse

Fortescue's search of petitioner's

religious and philosophical beliefs was

illegal despite a magistrate's oral order.

Petitioner spoke to about six police

officers, none of whom would sign a

petition, except Officer Moore based on

what Nurse Fortescue said, even though he

should have known he lacked probable cause

because: (1) his direct observation of

petitioner showed no cause for alarm, (2)

there was no substantiation by anyone of

the false hearsay that petitioner threaten-

ed to harm himself, and should have

ial aaa ieee eins

known that the magistrate who gave the

written order never spoke to petitioner

and was not the same magistrate petitioner

spoke with on the phone earlier, (3) he

knew Fortescue was a nurse and should have

known she was not skilled in diagnosis or

treatment, according to Virginia Code

Section 54-273, (4) he should have known

only a judge or magistrate, not a police

officer, could rely on the advice of a

person skilled in diagnosis or treatment

for purposes of detention, according to

Virginia Code Section 37.1-67.1, (5) he

should have known Fortescue's advice was

based on her objections to petitioner's

refusal to take drugs and on his harmless

religious and philosophical beliefs, which

is no basis for calling petitioner

mentally ill (psychotic) and depriving him

of his freedom.”

9. Also see n. 2, supra.

Further, police should have known they

violated petitioner's constitutional rights

when they detained him on the basis of a

magistrate's written order, which they

should have known was invalid on its face

because: (1) the magistrate wrote he

relied on the advice of Nurse Fortescue,

who they should have known was not skilled

in diagnosis or treatment, as required by

law, (2) they should have known the magis-

trate who wrote the order never spoke to

petitioner, and that there was no sub-

stantiation by anyone of the false hearsay

that petitioner threatened to harm himself,

and (3) they should have known it was un-

constitutional to involuntarily detain and

treat petitioner for up to three days prior

to a hearing, with no detention hearing, no

attorney, and no claim petitioner was

dangerous to another person.

Police also should have known they

Violated petitioner's constitutional

tina i a

rights when they put him into solitary

confinement without notice or hearing.

Officer Moore persisted, signing

another petition for commitment without

probable cause at a preliminary commit-

ment hearing two days later, and was pre-

sent the following day as petitioner at

the commitment hearing.

These constitutional violations, as

“presented in the complaint, concerned:

(1) the First Amendment (free speech, and

freedom of religious and philosophical

beliefs), (2) the Fourth Amendment

(security against unreasonable searches

and seizures, and no warrants without

probable cause), (3) the Sixth Amendment

(hearings, and counsel), and (4) the

Fourteenth Amendment (freedom from state

laws violating constitutional rights, and

no state deprivation of liberty without

due process and equal protection).

B. The police are responsible for

the natural consequences of their

actions, and there is a causal

link between Officer Moore's

petition for commitment and the

ensuing involuntary detention

and treatment

This Court decided:

As we stated in Monroe v. Pape, 365

Dims BOs LOls Gh. BeGGe 473, 504, 5

L.Ed.2d 492 (1961), Section 1983

"Should be read against the back-

ground of tort liability that makes

a man responsible for the natural

consequences of his actions." Since

the common law recognized the causal

link between the submission of a com-

plaint and an ensuing arrest, we read

Section 1983 as recognizing the same

causal link. Malley, supra, at 1098,

n. 7, (emphasis added).

In petitioner's case, the police are

responsible for damages resulting from

their participation in detaining petitioner

involuntarily for treatment, especially

where Officer Moore signed a petition for

the involuntary detention and treatment,

and should have known he lacked probable

cause.

C. The Thompson case cited by the

Fourth Circuit is distinguished

from petitioner's case: chiefly,

respondent police officers should

have known they violated

petitioner's constitutional

rights despite a magistrate's

order

The Thompson case is cited by the

Fourth Circuit to establish that due process

is not violated by police officers who rely

upon an order in good faith which is sub-

sequently determined to be invalid.

Thompson v. Prince William County, 752

F.2d 363 (4th Cir. 1985).

Thompson concerns the arrest of a

wrong person with the same name, where the

court found probable cause and a valid

warrant. In petitioner's case, no

decision was made on probable cause or

whether the oral or written detention

order was valid.

Petitioner believes the police

violated due process, whether the order

was valid or invalid, because the police

should have known they violated petitioner's

constitutional rights despite a magistrate's

order, and Officer Moore should have known

he lacked probable cause to petition for

commitment.

Lower courts need guidance from this

Court on the question of responsibility of

police officers in causing damages of

persons whom they cause to be involuntarily

detained and treated.

Civil commitment raises important

and unresolved problems

The constitutional rights of the

mentally ill have long been important to

Coneress.? The matter also is important

10. See, Care of Institutionalized Mentally

Disabled Persons (1985), Joint Hearings, United

States Senate, Ninety-ninth Congress, Washington,

D.C., U.S. Government Printing Office; Quality of

Health Care--Human Experimentation (1975),

Hearings, United States Senate, Ninety-third

Congress, Washington, D.C.; U.S. Government

Printing Office; Constitutional Rights of the

Mentally I11 (1970), supra, n. 6.; Constitutional

Rights of the Mentally Ill (1961), supra, n. 6.

to professional and citizen organizations

opposing civil commitment. ++ And the

matter is important to providers and con-

sumers of mental health services through-

out the country .??

The matter is of general public

interest, particularly important to all

persons subjected to civil commitment and

involuntary detention:

A 1982 report by the (Virginia) state

Department of Mental Health and Mental

Retardation found there was insuf-

ficient evidence to justify committing

one of every three people studied.

State officials said the figures re-

flected in part speedy and informal

court hearings. Sandra G. Boodman,

"Against Their Will", in The

Washington Post (January 8, 1984),

Page One, Ale.

Admissions to mental institutions

from July 1, 1982 to June 30, 1983 in

ll. Such as, American Association for the

Abolition of Involuntary Mental Hospitalization,

inc., 301 Sedgwick Drive, Syracuse, N.Y. 13203.

And Citizens Commission on Human Rights, 4317

Fessenden Street, N.W., Washington, D.C. 20016.

12. See, e.g., Mental Health Directory for

1985, Washington, D.C., U.S. Government Printing

Office (1985).

Virginia totaled 10,030 (including persons

admitted more than once), consisting of

6,167 involuntary commitments and 3,849

voluntary admissions, many of whom were

detained involuntarily and then commited

themselves voluntarily under prospect of a

court order. Id.

Psychiatric abuse is of general public

interest. Cf., CBS Television Broadcast

of 60 Minutes (January 4, 1987), ina

report by Mike Wallace on the San Diego

County Mental Health facility at Hillcrest,

where on average one person a month dies

from psychiatric abuse or neglect in

circumstances remarkably similar to those

of petitioner: forced drugging in solitary

confinement despite allergic reactions.

Petitioner himself nearly did not survive

to complain.

Hillcrest is the first hospital in

the United States excluded from partici-

“

pating in Medicare because of quality

deficiences. CBS Television Transcript,

60 Minutes (January 4, 1987) p. 3.

In speaking of Hillcrest, Assistant

(San Diego) County Administrative Officer

David Jensen said:

This probably is the best facility

in the nation. ... We're very proud

of it." I™d., p. 7.

And hospital administrator Karen

Lee Robinson said:

(W)hat's going on in this hospital

is the same as what's going on in

New York, in St. Louis and on the

West Coast. ... This hospital is

probably better than most hospitals

... like it across the nation."

Id., p. &.

In view of the dangers and quality

deficiencies found among the best hospitals

in the country, and in view of the fact

that the state forces such treatment on

persons who have committed no crime, the

public and lower courts need guidance from

this Court in clarifying due process

issues involved in civil commitment

procedures.

CONCLUSION

For these various reasons, this

petition for certiorari should be granted

to review the judgment of the United States

Court of Appeals for the Fourth Circuit that

respondent hospital and health care pro-

viders are not state actors and that respon-

dent police officers are not responsible

for damages (or have good faith immunity):

(1) Virginia statute on involuntary

detention and treatment is unconstitutional,

where there is no provision for a detention

hearing or no claim of being dangerous to

another person, (2) petitioner alleged

sufficient facts (and presented sufficient

documents to support state action and

responsibility for damages on the part of

respondents), so dismissing his civil

rights action violates his right to trial,

(3) a detention order (an exclusive pre-

rogative of the state and issued by the

state under Virginia statute) is prima

facie evidence of state action, where

respondent hospital and health care

providers depended on such order to in-

voluntarily detain and treat petitioner

against his will, (4) respondent police

officers are responsible for damages

resulting from involuntary detention and

treatment, where they should have Known

they violated petitioner's constitutional

rights despite a magistrate's order, and

where such involuntary detention and

treatment resulted from a petition for

commitment signed by a police officer

without probable cause, and (5) important

and unresolved problems exist of due

process in civil commitment procedures.

In view of the conflict of the

decision below with past decisions of

this Court, the Court may wish to

consider summary reversal and remanding

the matter to the district court for

trial or other appropriate disposition.

July 15,

1987

Respectfully submitted,

GEORGE BREWSTER

3407 Wessynton Way

Alexandria, VA 22309

(703) 360-7092

Petitioner

APPENDIX A

UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF VIRGINIA (Alexandria) ;

George Brewster v. The Mount Vernon

Hospital, et al.; No. 85-0847-A;

August 23, 1985.

x4 =)

TAS WES

IN THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF VIRGINIA

Alexandria Division

George Brewster,

Plaintiff, CIVIL ACTION

NO. 85-0847-A

The Mount Vernon Hospital,

et al.

Defendants.

ORDER

For reasons stated in open court, it

is accordingly

ORDERED:

(1) that defendants Mirmirani and

Robertson's Motion to Dismiss is GRANTED

on the grounds of lack of jurisdiction;

(2) that the clerk shall forward

certified copies of this Order to all

counsel of record.

August 23, 1985 (James C. Caceris)

Alexandria,Virginia U.S. District Judge

Lie

APPENDIX B-1l

UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF VIRGINIA (Alexandria) ;

Brewster v. Mount Vernon Hospital, et al.;

August 30, 1985

IN THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF VIRGINIA

Alexandria Division

George Brewster,

Plaintiff, CIVIL ACTION

No. 85-0847-A

The Mount Vernon Hospital,

et al.

ORDER

For reasons stated in open court, it

is accordingly

ORDERED:

(1) that Motion to Dismiss of de-

fendants The Mount Vernon Hospital, Jil

Inskeep, Bernadette Lester, Sarah

Fogelson, Ann Fortescue and Millie Wright

is GRANTED on the grounds of lack of

jurisdiction.

(2) that the Motion to Dismiss filed

by David A. Hetzer, a Magistrate, is

APPENDIX B-2

GRANTED on the grounds of immunity;

(3) that the Clerk shall forward

certified copies of this Order to all

counsel of record.

August 30, 1985 (James C. Cacheris)

Alexandria, Virginia U.S. District Judge

(certified)

APPENDIX C-1

UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF VIRGINIA (Alexandria) ;

Brewster v. Mount Vernon Hospital, et al.;

October 21, 1985.

IN THE UNITED DISTRICT COURT FOR THE

EASTERN DISTRICT OF VIRGINIA

Alexandria Division

George Brewster

P| Plaintiff, Civil Action

No. 85-0847-A

* The Mount Vernon Hospital,

et al.

Defendants.

OR DER

For reasons stated in open court,

October 18, 1985, it is accordingly

ORDERED:

(1) that the Motion to Dismiss of

Donald Burlington, M.D., be, and the same

hereby is, GRANTED on the grounds of lack

of jurisdiction;

(2) that the Clerk shall forward

certified copies of this Order to all

counsel of record.

APPENDIX C-2

October 21, 1985 (James C. Cacheris)

Alexandria, Virginia U.S. District Judge

(certified)

ico lliah ‘isc saiae" Dicladnaic) abate inate apo Aaditsk %.

‘

APPENDIX D-1

UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF VIRGINIA (Alexandria) ;

Brewster v. Mount Vernon Hospital, et al.;

November 22, 1985.

IN THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF VIRGINIA

Alexandria Division

George Brewster

Plaintiff, CIVIL ACTION

NO. 85-0847-A

Ve.

The Mount Vernon Hospital,

et al.

Defendants.

ORDER

For reasons stated in open overt; it

is accordingly

ORDERED:

(1) that the plaintiff's motion for

Reconsideration and Reversal of Orders

Sustaining Motions for Summary Judgment

in favor of Defendant Health Care Providers

and Defendants Aunon and Hetzer be, and the

same hereby is, DENIED;

(2) that the Motion of defendant Jose

APPENDIX D-2

Aunon, pursuant to Rule 11, Federal Rules

of Civil Procedure, is WITHDRAWN:

(3) that the Motion of defendants

Robertson and Mirmirani for a final,

appealable Order pursuant to Rule 54(b),

Federal Rules of Civil Procedure, be, and

the same hereby is, GRANTED;

(4) that the Clerk shall forward

certified copies of this Order to all

counsel of record.

(certified)

November 22, 1985 mes C. Cacheris)

(Ja

Alexandria, Virginia U.S. District Judge

tae ie hee

APPENDIX E-1

UNITED STATES COURT OF APPEALS FOR THE

FOURTH CIRCUIT; George Brewster v. John

Doe, No. 1, et 21.; Nos. 86-2002, 86-2012;

March 19, 1987.

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Nos. 86-2002

86-2012

George Brewster, Appellant,

versus

John Doe, No. 1; John Doe,

No. 2; Linda Anderson; The

Mount Vernon Hospital;

Burlington MaGuire, M.D.;

Robert H. Robertson, M.D.;

Nooreddin Mirmairani, M.D.;

Anne Fortescue; Jill

Inskeep; Bernadette Lester;

Robert W. Gideon; William A.

Moore; David A. Hetzer; Jose

Aunon; Millie Wright; Sarah

Fogelson; and Donald

Burlington, M.D. Appellees.

Appeal from the United States District

Court for the Eastern District of

Virginia, at Alexandria. James C.

Cacheris, District Judge. (C/A 85-847-A)

APPENDIX E-2

Argued: January 6, 1987

Decided: March 19, 1987

Before HALL and WILKINSON, Circuit

Judges, and HAYNSWORTH, Senior Circuit

Judge.

Ralph L.Payne oon brief for appellant;

John J. Brandt (Robert S. Corish; Slenker,

Brandt, Jennings & Jennings) Robert Lyndon

Howell, Senior Assistant County Attorney

(David T. Stitt, County Attorney;Randolph

D. Frostick; Miles & Stockbridge; George

A. McAndrews; Gary A. Godard & Associates

on brief) for appellees.

APPENDIX E-3

PER CURIAM:

George Brewster appeals from the

district court's order granting the

defendants' motion for summary judgment

and their motion to dismiss this action

brough pursuant to 42 U.S.C. Section

1983. We affirm.

Deine Jd hod ts Ses T eStats Bede, “ay aiid sins

On July 23, 1983, Brewster, a 46

: year-old resident of Fairfax County,

) Virginia, telephoned a Fairfax County

magistrate and asked that a pending in-

decent exposure charge filed against him

in the federal district court be dropped.

During the conversation, appellant

threatened to harm himself and stated that

he was very depressed. Moments later, the

magistrate orally directed the Fairfax

County police to pick up Brewster at his

home and transport him to the nearby Mt.

Vernon Community Mental Health Center ("Mt.

Vernon") for a mental evaluation.~ The

1 The magistrate's oral order was followed

several hours later by a written detention order.

APPENDIX E -4

police officers carried out the order.

Brewster was subsequently kept under

observation at Mt. Vernon for three days

and was diagnosed as a chronic schizo*

phrenic. On July 26, 1983, Brewster was

released.

In July, 1985, appellant filed this

civil right action pursuant to 42 U.S.C.

Section 1983, alleging that he was denied

due process of the law by police officers

who detained him by transporting him in-

voluntarily to Mt. Vernon. Brewster also

contends that the health care providers

practicing there, who kept and treated him

the district court granted the police

officers' motion for summary judgment and

dismissed Brewster's claim against Mt.

Vernon and the health care providers

finding no state action. This appeal

followed.

a se Hs ecace, e

APPENDIX E=5

ass

On appeal, Brewster contends that the

district court erred in granting the police

officers' motion for summary judgment based

upon their good faith reliance upon the

magistrate's order. Appellant also argues

that Mt. Vernon and the health care pro-

viders are state actors because (1) Mt.

Vernon receives federal funds, (2) the

health care providers exercised a duty

reserved to the state when it detained

appellant against his will, and (3) the

health care providers were paid by the

state. We disagree with all these

contentions.

Brewster suggests that the police

officers violated his due process rights

by carrying out a judicial order in good

faith which he argues was issued without

proper jurisdiction. Even assuming the

order is invalid, we find no merit in this

contention. We have held that due process

APPENDIX E-6

is not violated by-police officers who

rely upon an order in good faith which is

subsequently determined to be invalid.

Thompson v. PRINCE William County, 753

F.2d 363 (4th Cir. 1985). We have also

held that receipt of federal funds does

not transform a private hospital into a

state actor, Modaber, M.D. v. Culpeper

Memorial Hospital, 672 F.2d 1023 (1982).

Nor will participation in detention

proceedings make a health care provider a

state actor. Hall v. Quillen, 631 F.2d

1154 (4th Cir. 1980). Finally, we reject

appellant's assertion that physicians who

are compensated by the state are state

actors even though they earn the bulk of

their compensation from private practice.

Calvert v. Sharpe, 748 F. 2d 861 (4th Cir.

1984).

iii.

For the-feregoing reasons, we

accordingly affirm. AFFIRMED

APPENDIX F-1

UNITED STATES COURT OF APPEALS FOR THE

FOURTH CIRCUIT: George Brewster v. John

Doe, No. 1, et al.; Nos. 86-2002, 86-2012;

April 17, 1987

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Nos. 86-2002

86-2012

George Brewster, Appellant,

versus

John Doe, No. l, et al, Appellees.

On Petition for Rehearing with Suggestion

For Rehearing In Banc.

ORDER

The appellant's ven for rehearing

and suggestion for rehearing in banc were

submitted to this Court. As no member of

the Court requested a poll on the suggestion

for rehearing in banc, and

As the panel considered the petition

for rehearing and is of the opinion that it

should be denied,

APPENDIX F-2

IT IS ORDERED that the petition for

rehearing and suggestion for rehearing in

bane are denied.

Entered at the direction of Judge

Hall, with the concurrence of Judge

Wilkinson and Judge Haynsworth..

For the Court,

JOHN M. GREACEN

CLERK

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