Petition for Writ of Certiorari — McCabe v. City of Lynn
Supreme Court brief1996
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LY ;
v951929 MAY 2 % 1996,
OFFIGE OF THE CLERK
In The
Supreme Court of the United States
ame a re ou
October Term, 1995
MARY McCABE, as Administratrix of the Estate of Ruchla
“Rose” Zinger,
Petitioner,
VS.
THE CITY OF LYNN,
Respondent.
Petition for Writ of Certiorari to the United States
Court of Appeals for the First Circuit
PETITION FOR WRIT OF CERTIORARI
CHARLES M. CAMPO, JR.
Counsel of Record
FLOYD H. ANDERSON, JR.
STEVEN M. BLOOM
KASSLER & FEUER, P.C.
Attorneys for Petitioner
101 Arch Street
Boston, Massachusetts 02110-1103
(617) 439-3800
8919
Ly liate (800) 3 APPEAL « (800) 5 APPEAL » (800) BRIEF 21
ervices, inc.
QUESTION PRESENT*.«*
Whether the First Circuit erred in creating a new and
unprecedented exception to the longstandi‘ag and consistent
requirement « ’ the Fourth Amendment théi, absent exigent
circumstances, government agents must obtain a warrant to
make a forcible entry into the home of a law-abiding citizen.
il
LIST OF PARTIES TO THE PROCEEDING
The petitioner is Mary McCabe, as administratrix of the
estate of Ruchla “Rose” Zinger. She was the plaintiff in the
proceedings in the District Court for the District of
Massachusetts and was the appellee before the United States
Court of Appeals for the First Circuit.
The respondent is the City of Lynn, Massachusetts, a
municipal corporation duly incorporated under the laws of the
Commonwealth of Massachusetts. The respondent was a
defendant in the district court proceedings below and was an
appellant before the United States Court of Appeals for the First
Circuit.
Life-Line Ambulance Service, Inc. was a defendant in the
district court proceedings below and was also an appellant
before the United States Court of Appeals for the First Circuit,
but its appeal was dismissed pursuant to an agreement of
voluntary dismissal.
There were anumber of other defendants in the district court
proceedings below all of whom were dismissed at various points
prior to the appeal pursuant to stipulations of dismissal.
The only parties to this action are Mary McCabe, as
administratrix of the estate of Ruchla “Rose” Zinger and the City
of Lynn, Massachusetts.
iii
TABLE OF CONTENTS
Page
TE Clu tedbiecw ee dbevrbccecceveees i
List of Partiestothe Proceeding .............-.+++- ii
EE ei ey car evewevvesctoverwerve iii
Ny ccebed vets cetevedieverceeros iv
CE ee ie cbvechcetectcrcveecsevewsesys I
ICT IEEE op vhdnecerwedsccccecosese ]
Constitutional and Statutory Provisions Involved ..... ]
i Slop secegedyuvceseseccccecens l
EE Rie vbeNUe seeds eb teccetavveecedeeses ]
i ck ky 6 yeas dys eriebseee ei +
Reasons for Granting the Writ ................-+--- 5
I. This Case Raises An Issue Of Great Importance 6
II. The Decision Below Is An Unjustified Deviation
From Consistent Precedent ................. 9
III. The Decision Below Conflicts With The Decisions
ee epedderes 10
iv
Contents
Page
IV. The Reasons For Granting Certiorari Are Equally
Or More Compelling In This Case Than In Soldal
v. Cook County .....cccccccccccsecvecccces 12
COMClUsiOR . 6 oc cccccesccvencvcccesuscccestedesee 14
TABLE OF CITATIONS
Cases Cited:
Camara v. Municipal Court, 387 U.S. 523 (1967) ..... 6,10
Glass v. Mayas, 984 F.2d 55 (2d Cir. 1993) .........-- 11
Gooden v. Howard County, Md., 954 F.2d 960 (4th Cir.
SOE vcd vice vucdevcedetdusucvetngescceeuuese 11
Griffin v. Wisconsin, 483 U.S. 868 (1987) .......--+-- 5,6,10
Harris v. Pirch, 677 F.2d 681 (8th Cir. 1982) ......... 11
In Re Barnard, 455 F.2d 1370 (D.C. Cir. 1971) ........ 11
Maag v. Wessler, 960 F.2d 773 (9th Cir. 1991) ........ 1]
New Jersey v. T.L.O., 469 U.S. 325 (1985) ......---- 9,10,11
New York v. Burger, 482 U.S.691 (1987) ......----+- 6
O’Connor v. Ortega, 480 U.S. 709 (1987) ......-. 6,9, 10,11
v
Contents
Page
Payton v. New York, 445 U.S.573 (1980) .....--. 5,10, 13,14
Pino v. Higgs, 75 F.3d 1461 (10th Cir. 1996) ......-... 1]
Silverman y. United States, 365 U.S.505(1961) ...... 5
Soldal v. Cook County, Ill.,506 U.S. 56 (1992) .... 5,12, 13,14
oe OS Pay tere 8 Me 6 ees we a ee eRe ees 12,13
Specht v. Jensen, 832 F.2d 1516 (10th Cir. 1987),
remanded on unrelated grounds, 853 F.2d 805 (10th
Che, E90: og micics Wat ned ¢ Cinta sie Fie dee 13
United States v. United States District Court, 407 U.S. 297
4) 2) err errr rr er ererry eri fat 5. 5
Villinova v. Abrams, 972 F.2d 792 (7th Cir. 1992) ..... 1]
Wyman v. James, 400 U.S. 309 (1971) ....-----+++ +e 9,10
Statutes Cited:
PBU S.CATZSAD) oii dec ccccccccrcccseccccececs ]
Py th Vem &. : See rrr eee Per kee eT 1,4,12
Mass. Gen. L.ch.123,§$1 .........ccccceccccccoees 1
vi
Contents
Page
Miss. Gea. 1. OR: 125, 81S cc iivcivcedeccces elise 1,11
United States Constitution Cited:
FourthAmendment ............--+-+++- i, 1,4,5,7,8, 12, 13
Other Authorities Cited:
Virginia A. Hiday, Civil Commitment: A Review of
Empirical Research, 6 Behav. Sci. & L. 15 (1988)
John Q. LaFond and Mary L. Durham, Cognitive
Dissonance: Have Insanity Defense and Civil
Commitment Reforms Made a Difference ?, 39 Vill. L.
Rev. FE CIGDS). 0k Sevens cereeeser iw eediveent es
Marilyn Rosenstein, et al., U.S. Dept. of Health and
Human Serv., Mental Health Statistical Note No. 178,
Legal Status of Admission to Three Inpatient
Psychiatric Settings 1-4 (1986) .................-
APPENDIX
Appendix A— Judgment and Memorandum of the United
States Court of Appeals for the First Circuit Dated
February 29, 1996 ........cccccccccccceccsevees
Appendix B — Corrected Memorandum and Decision of
the United States District Court for the District of
Massachusetts Dated February 2,1995 ...........
la
vii
Contents
Appendix C — Relevant Constitutional Provision and
Statutes Involved ........ccccccccccccccevceees
Appendix D — Application for Temporary
Hospitalization ...........22eeeececceccccceess
Appendix E — State Civil Commitment Statutes
Authorizing Seizure Pursuant to Certification by
Mental Health Professionals .............--.-+---
Page
58a
64a
|
OPINIONS BELOW
The decision of the Court of Appeals is reported at 77 F.3d
540 (1st Cir. 1996) and is reprinted in the Appendix at 1a-35a.
The decision of the District Court is reported at 875 F. Supp. 53
(D. Mass. 1995) and is reprinted in the Appendix at 36a-57a.
STATEMENT OF JURISDICTION
This Court has jurisdiction pursuant to 28 U.S.C. § 1254(1).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
The Fourth Amendment to the United States Constitution
provides: “The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated, and no Warrants shall issue, but
upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons
or things to be seized.”
42 U.S.C. § 1983 (1994) is reprinted in full in the Appendix
at 58a.
Mass. Gen. L. ch. 123, §§ 1 and 12 (1988) (in effect on
September 6th-7th, 1989) are reprinted in full in the Appendix at
59a-63a.
STATEMENT OF THE CASE
A. Facts
On September 6, 1989, a licensed psychiatrist signed an
application (known in Massachusetts as a “pink paper”) pursuant
to Mass. Gen. L. ch. 123 § 12(a), for a 10-day involuntary
2
commitment of Ruchla “Rose” Zinger, a 64-year-old resident of
Lynn, Massachusetts. The pink paper issued was based
exclusively on third-party information.
Mrs. Zinger spoke and understood limited English; she
suffered from high blood pressure and weighed 350 pounds. In
addition to her physical maladies, Mrs. Zinger was a Holocaust
survivor and suffered from psychological problems that were, in
part, the product of her experiences during World War II.
The next morning, the pink paper was delivered tothe Lynn
Police Department, and Captain Joseph Csuka instructed
Sergeant Richard Donnelly and Officers Gary Twyman and
William Alphen (all of the Lynn Police Department) to serve the
civil commitment order. Captain Csuka, although in possession
of the pink paper throughout the morning, informed Sergeant
Donnelly that the commitment would be carried out at 1:00 p.m.
Captain Csuka advised Sergeant Donnelly that Mrs. Zinger
would not cooperate with them and they would have to force their
way into her house.
In addition to the involuntary commitment, an action had
been brought against Mrs. Zinger resulting in an eviction order.
Captain Csuka ordered the civil commitmentto be carried out at
1:00 p.m. to accommodate a State Constable who would secure
the premises following the eviction.
Atthe scene, the constable informed the officers that based
on his prior attempts to serve eviction notices, he believed Mrs.
Zinger would not answer the door. He directed them to go to the
rear door for the easiest point of entry into the home. The officers
knocked on the door and rang the doorbell. Mrs. Zinger did not
answer. After approximately one minute, Sergeant Donnelly
ordered Officer Alphen to kick down the door.
3
Once through the door, all three officers and the constable
proceeded up the stairs to a second door, which was also locked.
Officer Alphen knocked on the door and said “Hello, Police.”
When no one answered, Serge’ ut Donnelly ordered Officer
Alphen to kick this door down. After Officer Alphen kicked
through one panel, Mrs. Zinger came to the door and opened it
slightly. Sergeant Donnelly showed Mrs. Zinger the
commitment order and told her that she needed to see a doctor.
Mrs. Zinger yelled “why, why, no doctors” and started to close
the door. Sergeant Donnelly forced his foot between the door jam
and the door preventing it from closing all the way. At this point,
the officers pushed their way into Mrs. Zinger’s home and forced
her to the floor, face down.
With Mrs. Zinger forced into a prone position, all three
officers handcuffed the 64-year-old woman behind her back
while she struggled and screamed. "uring the process, Mrs.
Zinger was so distraught she urinated on herself and on one of the
officers who was sitting on her to hold her down.
Shortly after arriving at the scene, the officers called Life-
Line Ambulance to transport Mrs. Zinger to a mental health
facility because they believed she was too big to transport in the
cruiser. When the ambulance crew arrived, they informed the
officers that due to Mrs. Zinger’s weight, they could notcarry her
down the stairs on a stretcher. Upon hearing this, the officers
dragged Mrs. Zinger down the stairs on her buttocks.
After bringing Mrs. Zinger to the bottom of the stairs, the
officers forced her face down on a stretcher, where she was
strapped in, still handcuffed behind her back. At this time, she
stopped moving, and one of the officers noticed that she was blue
and that blood was coming down the side of her mouth. Rose
Zinger was pronounced dead at 2:00 p.m.
B. Decisions Below
The administratrix of Mrs. Zinger’s estate, Mary McCabe,
brought suit agaist the City of Lynn, among others, under 42
U.S.C. § 1983, alleging that the City’s policy permitting police
officers to execute pink papers by means of forcible, warrantless
entries into private residences, absent exigent circumstances,
violated Mrs. Zinger’s Fourth Amendment right to be free from
unreasonable searches and seizures.
The district court granted the administratrix’s cross-motion
for summary judgment against the City on the issue of liability,
875 F. Supp. 53, 63 (D. Mass. 1995). The district court found that
the City’s policy, which did not require police officers to obtain
a warrant before effecting an entry of a private residence to
execute a pink paper, violated the Fourth Amendment. /d. at 58.
Noting the significant delay between the time the pink paper was
signed on September 6, 1989 and the time it was executed on the
afternoon of September 7, 1989, the district court specifically
found on undisputed evidence that no exigent circumstances
were present in this case. Jd. at 58-59. At trial, a jury awarded
Mrs. Zinger’s estate $850,000.00 in damages against the City
and $500,000.00 against Life-Line Ambulance.
The City appealed, and the Court of Appeals for the First
Circuit reversed, 77 F.3d 540 (ist Cir. 1996). The circuit court
ruled that the City’s policy of warrantless home entries for the
purpose of serving involuntary hospitalization orders in civil
commitment proceedings fell within a recognized class of
systemic “special need” searches that may be conducted without
warrants if they further important administrative purposes. Jd. at
546. Balancing the nature and quality of the intrusion on an
individual’s Fourth Amendment interests against the importance
of the governmental interests at issues, the Court of Appeals
concluded that the City’s policy of permitting, forcible
5
warrantless entries by police officers in possession of civil
commitment orders was reasonable under the Fourth
Amendment. /d. at 547.
This petition followed.
REASONS FOR GRANTING THE WRIT
This case concerns an issue that goes to the very heart of the
protection secured by the Fourth Amendment. As this Court
recognized in United States v. United States District Court, 407
U.S. 297, 313 (1972), “physical entry of the home is the chief evil
against which the wording of the Fourth Amendment is
directed.” Indeed, this Court has “emphasized that ‘at the very
core’ of the Fourth Amendment ‘stands the right of a man to
retreat into his own home and there be free from unreasonable
governmental intrusion.’ ” Soldal v. Cook County, II11.,506 U.S.
56,61 (1992) (quoting Silverman v. United States, 365 U.S.505,
511 (1961)).
Accordingly, this Court has recognized that “the Fourth
Amendment has drawn a firm line at the entrance to the house.
Absent exigent circumstances, that threshold may not
reasonably be crossed without a warrant.” Payton v. New York,
445 U.S. 573, 590 (1980). This Court should grant Certiorari
because the decision below crosses that “firm line.”
Prior to the decision below, the law was clear that, absent
exigent circumstances, government agents are required to obtain
a warrant before making a forcible entry into the home of a law-
abiding citizen. In manufacturing a new exception to this
longstanding requirement, the First Circuit relied on two
inapplicable strands of doctrine — one that allows warrantless
entries into the homes of probationers, see Griffin v. Wisconsin,
483 U.S. 868 (1987); and another that permits warrantless
6
searches of some areas, but not homes, incertain administrative
contexts, see e.g., New York v. Burger, 482 U.S. 691 (1987)
(warrantless search of automobile junkyard); O’Connor v.
Ortega, 480 U.S. 709 (1987) (warrantless search of public
employee’s desk).
Reliance on either of these strands of doctrine is wholly
inappropriate. The rights of probationers (or parolees) are not
coextensive with those of law-abiding citizens. Indeed, the
entire predicate of the Griffin decision was that “[p]robation,
like incarceration, is a form of criminal sanction imposed by a
court upon an offender after verdict, finding, or plea of guilty,”
and that therefore the Constitution “permit[s] a degree of
impingement upon privacy that would not be constitutional if
applied to the public at large.” 483 U.S. at 874, 875 (internal
quotations omitted). The First Circuit’s reliance on decisions
from an administrative context is likewise unjustified, because
this Court has unequivocally held that, even in an administrative
context, a warrant is required to make a forcible entry into a
home. See Camara v. Municipal Court, 387 U.S. 523, 540
(1967).
I.
THIS CASE RAISES AN ISSUE OF GREAT
IMPORTANCE.
This case squarely raises an issue of great importance in
Fourth Amendment jurisprudence — whether police officers
must, absent exigent circumstances, obtain a warrant to enter a
private residence to execute a civil commitment order. The
decision below, which carves out a novel and unprecedented
“special needs” exception to the warrant requirement, is a
significant departure from this Court’s settled understanding of
Fourth Amendment law and will have a significant impact on the
7
hundreds of thousands of civil commitment proceedings
instituted in the United States each year.
The decision of the First Circrit, for the first time in the
history of American jurisprudence, authorizes the police, acting
without a warrant, to break down the doors of citizens who have
not committed — or even been alleged to have committed — any
crime. The sole prerequisite for this violation of the privacy and
sanctity of the home is the certificate of a doctor, psychologist or
psychiatric nurse that attests that an individual presents a
substantial risk of dangerousness due to mental illness. Under
the Court of Appeals’ decision, this determination of
dangerousness need not be based upon probable cause, because
such arequirement would unduly burden the state in its systemic
response to the problem of dangerousness in the mentally ill. 77
F.3d at 550-551,550n.11.
Under the decision of the First Circuit, the sole role of the
judiciary in reviewing the lawfulness of a forcible entry into a
citizen’s home is to determine whether the entry was authorized
as part of areasonable State program, as embodied in the State’s
civil commitment statute. Under the First Circuit’s
interpretation of the Fourth Amendment, if those statutes are
reasonably related to legitimate State interests, then the policy
of forcible entry is lawful. 77 F.3d at 550.
Twenty-six states besides Massachusetts have commitment
statutes that authorize an emergency seizure of an individual if
a mental health professional (not even necessarily a doctor)
certifies that the individual is dangerous to himself or to others
due to mental illness.' The decision below could permit police to
1. The state statutes included in the Appendix at 67a-68a allow
emergency seizures of an individual based upon certification of an official
(Cont'd)
8
execute acivil commitment order by a forcible home invasion in
each of those jurisdictions. The most recent statistics compiled
by the National Institute of Mental Health show that
approximately 300,000 involuntary commitment proceedings
are instituted annually.? Other empirical studies show that civil
commitment proceedings overwhelmingly affect a population
that is not only economically disadvantaged, but also mentally
disabled.’ As a result of these factors, the vast majority of the
execution of such orders will not receive judicial scrutiny. This
case therefore presents this Court with a unique opportunity to
address this fundamental issue of Fourth Amendment law that
has practical consequences for thousands of disadvantaged
Americans in dozens of jurisdictions.
(Cont'd)
trained in the field of mental health. There is variety among the statutes
concerning such issues as: (1) whether the risk of dangerousness is required to
be imminent; (2) whether an examination is required prior to certification; (3)
considerations relating to recency of examination and/or promptness of
service of the commitment order; and (4) the identity and qualifications of the
persons authorized to certify the need for a seizure. But under the First
Circuit's permissive approach, orders issued under any of the statutes would
authorize warrantless home entries.
2. See, Marilyn Rosenstein, et al., U.S. Dept. of Health and Human
Serv., Mental Health Statistical Note No. 178, Legal Status of Admission to
Three Inpatient Psychiatric Settings 1-4 (1986), cited in John Q. LaFond and
Mary L. Durham, Cognitive Dissonance: Have Insanity Defense and Civil
Commitment Reforms Made a Difference?, 39 Vill. L. Rev. 71, 105 n.176
(1994).
3. See, Virginia A. Hiday, Civil Commitment: A Review of Empirical
Research, 6 Behav. Sci. & L. 15, 19 (1988); LaFond and Durham, supra, at
105-106.
9
Il.
THE DECISION BELOW IS AN UNJUSTIFIED
DEVIATION FROM CONSISTENT PRECEDENT.
The First Circuit erred in relying on administrative search
cases suchas O’Connorv. Ortega, 480 U.S. 709 (1987), and New
Jersey v. T.L.O., 469 U.S. 325 (1985), to justify its creation of a
new “special needs” exception to the warrant requirement for
home entries. Both O’Connor and T.L.O. involved expectations
of privacy and personal security far removed from those at stake
in forcible home entries — i.e., the expectation of privacy a
governnient worker has in his office desk, (O ’Connor), and that
of a student in her pocketbook on school premises, (7.L.O.). Both
decisions are expressly premised upon the limited nature of the
expectation of privacy outside the home. As this Court stated in
the O’Connorcase: “Public employees’ expectations of privacy
in their office, desks, and file cabinets, like similar expectations
of employees in the private sector, may be reduced by virtue of
actual office practices and procedures, or by legitimate
regulation.” O’Connor, 480 U.S. at 717. The lower expectations
of privacy ina school or workplace setting cannot compare to the
near absolute expectation of privacy present in a home setting.
The First Circuit’s reliance on Wyman v. James, 400 U.S.
309 (1971), is also inapposite as justification for a policy of
forcible entry to the home. This Court in Wyman held that a
welfare visit does not rise to the level of an intrusion subject to
Fourth Amendment protection, because there is no compelled
home entry: “We note, too, that the visitation itself is not forced
or compelled, and that the beneficiary’s denial of permission is
not a criminal act. If consent to the visitation is withheld, no
visitation takes place. The aid then never begins or merely
ceases, as the case may be. There is noentry of the home and there
is no search.” Jd. at 317. Thus, O’Connor, T.LO, Wyman, and
10
Camara all respect the “firm line” established in Payton: While
a number of different factors are considered in cases involving
searches outside a home (O’Connor, TLO), the threshold of a
home cannot be crossed without consent (Wyman ) or a warrant
(Camara).
The First Circuit’s reliance on Griffin v. Wisconsin, supra,
is likewise misplaced. The result in Griffin was expressly
predicated on the fact that those convicted of criminal acts may
be subjected to greater invasions of their privacy than to the
public at large. Griffin, 483 U.S. at 874, 875. The privacy
expectations of law-abiding citizens cannot be equated with
those of convicted criminals.
In short, the decision below fails to recognize this Court's
consistent fundamental precedents that accord the highest level
of protection to the expectation of privacy in the home. Due to the
unique protection afforded to the home, neither the Griffin
decision nor cases involving searches outside the home are
applicable. Instead, in the context of administrative searches this
case is squarely governed by the Camara case, which expressly
held that a warrant is required to compel entry to the home.
Camara, 387 U.S. at 540.
III.
THE DECISION BELOW CONFLICTS WITH THE
DECISIONS OF OTHER COURTS.
In holding that the City’s policy of permitting forcible,
warrantless, entries into private residences to execute civil
commitment orders is not unreasonable, the Court of Appeals
rejected any need for a showing of probable cause before such
orders are issued. “Itis largely irrelevant whether the ‘likelihood
11
of serious harm’ criterion in Mass. Gen. Laws Ann. ch. 123,
§ 12(a), approximates the ‘probable cause’ inquiry appropriate
in the search warrant context. The ‘probable cause’ inquiry often
is jettisoned in civil administrative searches(.]” 77 F.3d at 550
n.11 (citing O’Connor and T.L.O. for the proposition that
probable cause is not mandated). In place of the well-settled
probable cause standard, the First Circuit ruled that involuntary
commitment orders need only meet a standard of
reasonableness. 77 F.3d at551.
That holding stands in stark contrast to the rulings of every
federal appellate court that has considered the question. Each of
the following cases holds that an order authorizing the seizure of
a person in the context of civil commitment proceedings must be
based on probable cause: Pino v. Higgs, 75 F.3d 1461, 1468 (10th
Cir. 1996); Glass v. Mayas, 984 F.2d 55, 58 (2d Cir. 1993);
Villinova v. Abrams, 972 F.2d 792, 795 (7th Cir. 1992); Gooden
v. Howard County, Md., 954 F.2d 960, 967-968 (4th Cir. 1992)
(en banc); Maag v. Wessler, 960 F.2d 773, 775-776 (9th Cir.
1991); Harris v. Pirch, 677 F.2d 681, 686 (8th Cir. 1982); In re
Barnard, 455 F.2d 1370, 1374 (D.C. Cir. 1971). The reasoning
underlying these decisions is exemplified in the Pino case.
There, the Tenth Circuit reasoned that because “a seizure of a
person for an emergency mental health evaluation raises
concerns that are closely analogous to those implicated by a
criminal arrest, and both are equally intrusive,” the probable
cause standard must be applied to the issuance of an order
authorizing seizure pursuant to acivil commitment statute. Pino,
75 F.3d at 1467-1468. It is important for this Court to grant
certiorari to eliminate the conflict engendered by the decision
below and to affirm that probable cause is required for the
issuance of a civil commitment order.
12
IV.
THE REASONS FOR GRANTING CERTIORARI
ARE EQUALLY OR MORE COMPELLING IN THIS
CASE THAN IN SOLDAL vy. COOK COUNTY.
The case for granting certiorari is at least as compelling in
this case as it was in Soldal v. Cook County, 506 U.S. 56 (1992).
Like this case, that case involved a 42 U.S.C. § 1983 claim that
government agents violated the Fourth Amendment in a civil
context. Like this case, Soldal squarely concerned a core
protection of the Fourth Amendment — protection of the home.
Like this case, the Court of Appeals below had created a new
exception to that core protection. This Court granted certiorari
in Soldal and reversed unanimously. It should do the same here.
In Soldal, the petitioners sought review on the issue of
whether the seizure and removal of their trailer home constituted
a “seizure” within the meaning of the Fourth Amendment. 506
U.S. at 60. Even the Court of Appeals below in that case
recognized the issue to be a “novelty,” Soldal v. County of Cook,
942 F.2d 1073, 1075 (7th Cir. 1991). There was nocircuit split in
that case and there was no indication that the unusual fact pattern
(literal seizure of ahome) was likely torecur with any frequency.
Nonetheless, this Court granted certiorari and reversed with a
strong reaffirmation of the principle that “at the very core of the
Fourth Amendment stands the right of a man to be free from
unreasonable governmental intrusion.” 506 U.S. at 61 (internal
quotations omitted).
The issue presented in this case is at least as important as that
in Soldal. Unlike the “novel[ ]” fact pattern in that case,
hundreds of thousands of involuntary civil commitment
proceedings are instituted each year in this country. Prior to the
13
First Circuit decision, orders of civil commitment would not
have authorized forcible, warrantless entries into homes. But
under the First Circuit’s approach, thousands of those orders will
now allow circumvention of what Payton termed the “firm line”
in Fourth Amendment law, that, “[aJbsent exigent
circumstances, th[e] threshold [of a home] may not reasonably
be crossed without a warrant.” 445 U.S. at 590.
Indeed, the decision below departs from established
precedent far more than the lower court decision did in Soldal.
Even the Court of Appeals in Soldal, while attempting to adopt
a “narrow reading of the [Fourth] Amendment” (506 U.S. at 62),
nonetheless acknowledged that, even in the civil context, police
officers could not invade the “privacy of the home.” 942 F.2d at
1076. In particular, that Court of Appeals cited with favor (see
942 F.2d at 1076) the Tenth Circuit decision in Specht v. Jensen,
832 F.2d 1516(10th Cir. 1987), remanded on unrelated grounds,
853 F.2d 805 (10th Cir. 1988) (en banc), which held that agents
could not make a warrantless entry into a home to execute acourt
order of possession against certain personal property. The
decision of the First Circuit allows a whole new category of
invasions to the privacy of the home in a civil context and also
conflicts with Specht.
Specht cannot be reconciled with the decision below unless
the Fourth Amendment provides less security to people than to
things. At least in Specht, the officers making the warrantless
entry into ahome had an order issued by a court. Still, the Specht
court held that the warrantless entry into the home in an attempt
to execute the order of possession against certain personal
property was unconstitutionai because it did not fit into any
recognized exception to the Fourth Amendment warrant
requirement. See 832 F.2d at 1522-23. In this case, the officers
who kicked in the doors of Mrs. Zinger’s home did not have any
court order, but only a “pink paper,” which, according to the First
14
Circuit, can be issued without probable cause by any physician,
psychologist, or psychiatric nurse.
Finally, the interests at stake in this case are at least as great
as those threatened in Soldal. The decision below, like that in
Soldal, is a direct threat to “the overriding respect for the sanctity
of the home that has been embedded in our traditions since the
origin of the Republic.” Payton, 445 U.S. at 601; see also Soldal,
506 U.S. at61 (collecting cases on protection of the home). Here,
it is undisputed that Mrs. Zinger’s home was violently entered.
Although the constitutional violation in Soldal was very serious,
at least the unconstitutional actions of the officers there did not
actually invade the home.
As evidenced by the decision to grant certiorari and the
unanimous reversal in Soldal, this Court has historically
protected the sanctity of the home with vigor. This case warrants
adherence to that tradition.
CONCLUSION
For all the foregoing reasons, the petition for a writ of
certiorari should be granted.
Respectfully submitted,
CHARLES M. CAMPO, JR.
Counsel of Record
FLOYD H. ANDERSON, JR.
STEVEN M. BLOOM
KASSLER & FEUER, P.C.
Attorneys for Petitioner
101 Arch Street
Boston, MA02110-1103
(617) 439-3800
la
APPENDIX A — JUDGMENT AND MEMORANDUM OF
THE UNITED STATES COURT OF APPEALS FOR THE
FIRST CIRCUIT DATED FEBRUARY 239, 1996
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 95-1731
MARY MCCABE, ETC.,
Plaintiff, Appellee,
Vv.
LIFE-LINE AMBULANCE SERVICE, INC.,
Defendants-Appellees,
THE CITY OF LYNN,
Defendant, Appellant.
JUDGMENT
Entered: February 29, 1996
This cause came on to be submitted on the briefs and original
record on appeal from the United States District Court for the
District of Massachusetts.
Upon consideration whereof, it is now here ordered,
adjudged and decreed as follows: The district court judgmentis
reversed and the case is remanded to the district court for further
proceedings consistent with the opinion issued this date.
Costs to appellant.
By The Court:
WILLIAM H. NG, Clerk.
By s/ Mary E.C’Callaghan
Deputy Clerk
2a
Appendix A
United States Court of Appeals
For the First Circuit
No. 95-1731
MARY McCABE, ETC.,
Plaintiff, Appellee,
Vv.
-LIFE-LINE AMBULANCE SERVICE, INC.,
Defendants, Appellees,
THE CITY OF LYNN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
{Hon. Nancy Gertner, U.S. District Judge]
Cyr, Boudin and Stahl,
Circuit Judges.
Charles M. Burnim, with whom Michael J. Barry and
George S. Markopoulos were on brief for appellant.
Charles M. Campo, Jr., with whom Floyd H. Anderson and
Kassler & Feuer, P.C. were on brief for appellee McCabe.
3a
Appendix A
February 29, 1996
CYR, Circuit Judge. In this appeal by the City of Lynn
(“City”), we consider whether an established City policy,
permitting forcible, warrantless entries of private residences to
enforce involuntary civil commitment orders, violates the
Fourth Amendment to the United States Constitution. The
district court granted summary judgment for plaintiff Mary
McCabe, administratrix of the estate of Ruchla Zinger, a
Holocaust survivor who died in her Lynn home during a tragic
attempt by City police to execute an involuntary commitment
order which had been issued against her. For the reasons
discussed in this opinion, we conclude that the challenged City
policy came within an exception to the Fourth Amendment
warrant requirement.
I
BACKGROUND
Ms. Zinger, a 64-year-old Lynn, Massachusetts, resident
with a history of mental illness and psychiatric hospitalization,
as well as severe obesity and high blood pressure, resisted all
attempts at communication and intervention by family members.
She refused to be examined by a doctor after threatening her
former husband with physical harm and upsetting her downstairs
neighbors by causing loud and violent disturbances in her
apartment, thereby prompting her family to initiate eviction
proceedings against her.' Subsequently, on September 6, 1989,
a licensed psychiatrist, Dr. Yakov Barden, signed an application
1. Ms. Zinger’s former husband and their children owned the building in
which Ms. Zinger’s apartment was located.
4a
Appendix A
[hereinafter: “pink paper”) for a ten-day involuntary
commitment of Ms. Zinger pursuant to Mass. Gen. Laws Ann. ch.
123, § 12(a), based exclusively on the reports of family members
and neighbors as to Ms. Zinger’s physical and behavioral
symptoms.
The next morning, Constable Kenneth Jackson, who had
been unsuccessful in previous attempts to serve Ms. Zinger with
an eviction notice, and was scheduled to execute a judgment of
eviction against her at 1:00 p.m. that afternoon, learned that the
pink paper had been issued against Ms. Zinger the night before,
and contacted the Lynn police department. The constable
informed the Lynn police, based on his experience with Ms.
Zinger, that he believed she would resist committal. The
constable and the Lynn police officers arranged to meet at the
Zinger apartment building at 1:00 p.m., toexecute the pink paper
and the eviction order.
Three Lynn police officers and the constable arrived at the
Zinger apartment building at the appointed hour, accompanied
by a crew from the Life-Line Ambulance Service, which had
been engaged to restrain Ms. Zinger as necessary, physically
remove her from the apartment, and transport her to the hospital.
After receiving no response to their knocks, the officers kicked
in the outside apartment-house door and proceeded upstairs to
the Zinger apartment. The officers knocked and announced their
presence, received no response, and began to kick in the Zinger
apartment door. Ms. Zinger began screaming “Why are you
kicking in my door?” then cracked it open. Identifying
themselves as police, the officers told herthat they were going to
bring her under medical care, to which she responded: “No
doctors!” When she began to close the door, the officers shoved
their way inside. Later, while the officers were forcibly
Sa
Appendix A
removing her from the apartment, Ms. Zinger suffered a cardio-
respiratory arrest and died.”
After McCabe, as administratrix, instituted this civil rights
action under 42 U.S.C. § 1983 against the City, amongst others,’
2. The only constitutional violation McCabe attributes to the City is the
forcible warrantless entry. In her cross-motion for summary judgment, McCabe
did not press her “excessive force” claim that a City policy authorized or caused
the police actions utilized to restrain Ms. Zinger. See infra note 4. We now
summarize the allegations against the individual officers in order to provide
additional context.
After the officers pushed their way into her apartment and Ms. Zinger
began screaming, the officers forced her to the floor on her stomach and
handcuffed her hands behind her back. She lost control of her bladder. The
ambulance crew refused to carry her down the stairs, asserting that she was too
heavy. The officers then placed her in a sitting position. With one officer
gripping her ankles and another holding her under her handcuffed arms, she was
carried to the stairs, then dragged down one step at a time while still in a sitting
position. At the bottom, the ambulance crew strapped her onto the stretcher, face
down. By this time she had stopped screaming and the officers noticed that her
hands appeared blue and she was bleeding from her mouth. Ms. Zinger was
pronounced dead on arrival at the hospital.
3. The judgment appealed from is nonetheless “final” as to all parties and
claims. See Fed. R. Civ. P. 54(b); 28 U.S.C. § 1291. The original ten-count
complaint named as defendants, the City, the dispatching police supervisor and
the three individual police officers who executed the pink paper (in their official
and individual capacities), the constable, the ambulance company, the
ambulance crew, Dr. Barden, and the Tri-City Mental Health and Retardation
Center where Dr. Barden worked. In addition to her claims under § 1983,
McCabe alleged common-law assault and battery, and negligence. In June
1993, McCabe settled all claims against the doctor and the hospital. In February
1995, after a jury returned verdicts against the City and Life-Line Ambulance,
the claims against the four police officers, the constable, and the ambulance
crew were dismissed, without prejudice, by stipulation.
6a
Appendix A
in September 1992, an amended complaint alleged an
established City policy permitting police officers toexecute pink
papers by means of forcible, warrantless entries into private
residences absent demonstrable exigent circumstances, and that
this City policy proximately caused an actionable deprivation of
Ms. Zinger’s Fourth Amendment right to be free from
unreasonable searches.‘ After hearing, the district court granted
the McCabe cross-motion for summary judgment against the
City on the issue of liability. McCabe v. City of Lynn, 875 F. Supp.
53, 63 (D. Mass. 1995). In the ensuing trial, the jury awarded
$850,000 in damages against the City and $500,000 against Life-
Line Ambulance. The City thereupon brought this appeal from
the final judgment entered against it.
Il
DISCUSSION
A. District Court Opinion
The district court found that the City policy violated the
Fourth Amendment, for the following reasons. The City’s own
policy expert attested that the City did not require its officers to
obtain a search warrant before effecting a warrantless entry of a
residence to execute a pink paper, leaving it instead to the
discretion of the officers whether and when such a warrantless
entry was necessary. /d. at 58. The district court noted that
warrantless, nonconsensual entries into private residences are
presumptively “unreasonable” under the Fourth Amendment,
absent exigent circumstances. Id. at 58-59. Although imminent
threats to the lives and safety of the police officers, or members
4. By contrast, the initial complaint had alleged a City policy permitting
the use of excessive force, and a failure to train or supervise officers, in
executing involuntary commitment seizures.
7a
Appendix A
of the public, often give rise toexigent circumstances justifying
an immediate warrantless entry, the court found that “the Lynn
police acted with leisure in arranging aconvenient time” to serve
the pink paper upon Ms. Zinger, thereby belying any contention
that “ ‘some real[,] immediate or serious consequences [would
occur] if [the officers] postponed action to get a warrant.’ ” /d. at
59, 62 (citation omitted).
The district court nonetheless recognized that even absent
exigent circumstances the warrant requirement may not be
applicable in certain regulatory contexts wherein warrantless
search procedures serve as invaluable “administrative tool[s]”
and are “far less invasive” than searches directed at discovering
evidence of crime. Jd. at 59-60. The court identified two factors
which weighed against a ruling that the challenged City policy
came within this special regulatory category. First, unlike a
judicial officer, the licensed medical-psychiatric physicians
authorized to issue pink papers under Mass. Gen. Laws Ann. ch.
123, § 12(a), are “not qualified to determine whether probable
cause exists.” Id. at61. Second, “the agents of the doctors in this
case are police officers with guns and batons, not hospital
orderlies and nurses,” so that “[t]here is no therapeutic
relationship which a warrant mechanism would disrupt.” /d.
B. Standard of Review
We review a grant of summary judgment de novo, to
determine whether “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to ajudgment
as a matter of law.” Fed. R. Civ. P. 56(c); see Velez-Gomezv. SMA
Life Assurance Co., 8 F.3d 873, 874-75 (1st Cir. 1993). All
competent evidence and reasonable inferences therefrom are
8a
Appendix A
viewed in the light most favorable to the party resisting summary
judgment. Jd.
C. Applicable Law
A municipal liability claim under § 1983 requires proof that
the municipality maintained a policy or custom which caused, or
was the moving force behind, a deprivation of constitutional
rights. See, e.g., Oklahoma City v. Tuttle, 471 U.S. 808, 819
(1985); Monell v. Department of Social Servs., 436 U.S. 658, 694
(1978); Bordanaro v. McLeod, 871 F.2d 1151, 1156 (1st Cir.),
cert. denied, 493 U.S. 820 (1989).
The Fourth Amendment applies not only to governmental
searches and seizures in criminal investigations, but also in
various civil proceedings. See Soldal v. Cook County, Ill., 506
U.S.56,__, 113 S.Ct. 538, 548 (1992); O’Connor v. Ortega, 480
U.S. 709, 715 (1987) (“[B]ecause the individual’s interest in
privacy and personal security ‘suffers whether the government’s
motivation is to investigate violations of criminal laws or
breaches of other statutory orregulatory standards,’ . . .it would
be ‘anomalous to say that the individual and his private property
are fully protected by the Fourth Amendment only when the
individual is suspected of criminal behavior.’ ”) (quoting New
Jersey v. T.L.O., 469 U.S. 325, 335 (1985)). Included among the
civil proceedings in which the Fourth Amendment applies are
involuntary commitment proceedings for dangerous persons
suffering from mental illness. See Glass v. Mayas, 984 F.2d 55,
58 (2d Cir. 1993); Villanova v. Abrams, 972 F.2d 792, 795-96 (7th
Cir. 1992).
The fundamental inquiry under the Fourth Amendment is
whether a particular search or search procedure is “reasonable”
in the circumstances. See Cady v. Dombrowski, 413 U.S. 433,
9a
Appendix A
439-40 (1973); Wyman v. James, 400 U.S. 309, 318 (1971);
Camara v. Municipal Ct. of San Francisco, 387 U.S. 523, 538
(1967). Nonconsensual entries by government agents into a
residence without a search or arrest warrant’ are presumptively
“unreasonable” under the Fourth Amendment. See Welsh v.
Wisconsin, 466 U.S. 740, 748-49 (1984); Payton v. New York,
445 U.S. 573, 586 (1980); Hegarty v. Somerset County, 53 F.3d
1367, 1373 (1st Cir.), cert. denied, 116 S. Ct. 675 (1995). This
presumption is designed to safeguard the special privacy
expectations traditionally recognized in the American home by
requiring that a “neutral” and detached judicial officer make an
independent assessment as to whether law enforcement agents
have probable cause to effect an intended search or arrest within
the home. See Steagald v. United States, 451 U.S. 204, 212
(1981). The warrant requirement is not absolute, of course, and
the presumption may be overcome in at least two ways.
First, a warrantless entry and search of a residence may be
“reasonable,” in Fourth Amendment terms, if the government
can demonstrate certain exceptional types of exigent
circumstances : (1) “hot pursuit” of a felon into a residence; (2)
imminent destruction of evidence within the residence; (3) a
threatened and potentially successful escape by a suspect from
inside the residence; or (4) an imminent threat to the life or safety
of members of the public, the police officers, or a person located
within the residence. See United States v. Tibolt, 72 F.3d965, __
(1st Cir. 1995) [Nos. 94-1714 & 2221, 1995 WL 757848, at *3
5. “{A] [felony] arrest warrant founded on probable cause implicitly
carries with it the limited authority to enter a dwelling in which the suspect lives
when there is reason to believe the suspect is within.” Payton v. New York, 445
U.S. 573, 603 (1980). But see Steagald v. United States, 451 U.S. 204, 214
(1981) (noting that the “arrest warrant” rule is inapplicable where suspect is
within another person's residence).
10a
Appendix A
(Dec. 29, 1995)]; Hegarty, 53 F.3d at 1374. Normally, “exigent
circumstances” exceptions — by their very nature — turn upon
the objective reasonableness of ad hoc, fact-specific
assessments contemporaneously made by government agents in
light of the developing circumstances at the scene of the search.
See id. at 1378.
Second, a residential search pursuant to an established
warrantless search procedure may be reasonable if conducted in
furtherance of an important administrative or regulatory
purpose, or “special need,” which would be undermined
systemically by an impracticable warrant or probable-cause
requirement. Griffin v. Wisconsin, 483 U.S. 868, 873 (1987)
(“[W]e have permitted excep tions when ‘special needs, beyond
the normal need for law enforcement, make the warrant and
probable-cause requirement impracticable.’”) (citation
omitted). See, e.g., id. (upholding probation officers’
prerogative to conduct warrantless searches of probationers’
homes for evidence of probation infraction); O’Connor, 480
U.S. at 709 (noting that government employer’s warrantless
searches of employees’ work space to recover work-related
materials may be “reasonable” in particular circumstances);
T.L.O., 469 U.S. at 325 (holding that warrantless in-school
searches of students’ personal property by public school officials
did not violate Fourth Amendment); United States v. Cardona,
903 F.2d 60 (1st Cir. 1990) (extending Griffin to parole officers’
warrantless searches of parolees’ residences), cert. denied, 498
U.S. 1049 (1991); cf. Wyman, 400 U.S. at 309 (holding that social
worker’s warrantless visitation to welfare recipient’s home did
not implicate Fourth Amendment). The reasonableness of a
particular “special need” search procedure will depend, of
course, on whether the court’s “careful balancing of
governmental and private interests suggests that the public
interest is best served by a Fourth Amendment standard that
stops short of probable cause.” T.L.O., 469 U.S. at 341.
lla
Appendix A
D. Alleged “Deprivation”
Turning to the initial hurdle confronting McCabe under
§ 1983, see Monell, 436 U.S. at 694, we must determine whether
the undisputed evidence demonstrates that the warrantless,
forcible entry of the Zinger residence by the Lynn police
constituted a deprivation of decedent’s Fourth Amendment
rights. Oddly, none of the cases the City cites as support for the
constitutionality of comparable involuntary commitment
statutes deals straightforwardly with the precise issue before us:
whether a prescribed statutory search procedure (i.e., Mass. Gen.
Laws Ann. ch. 123, § 12(a)) violates the Fourth Amendment
because it routinely allows warrantless entries of a residence,
absent “exigent circumstances,” to effect involuntary
commitments; nor have we found such acase. The cases cited by
the City consider whether a seizure of the person effected
pursuant to an involuntary commitment statute violates the due
process requirements of the Fifth and Fourteenth Amendments,°
or whether the manner in which the government detains a person
violates the Fourth Amendment prohibition against
unreasonable seizures.’ Nonetheless, to the extent the
6. See, e.g., Project Release v. Prevost, 722 F.2d 960, 963 (2d Cir. 1983)
(involving a Fourteenth Amendment “due process” challenge to the New York
involuntary commitment statute).
1. See Moore v. Wyoming Medical Ctr., 825 F. Supp. 1531, 1535, 1537
(D. Wyo. 1993) (focusing on “seizure” of person subjected to involuntary
commitment, and noting only in passing that seizure followed a forcible
warrantless entry of the home); see also Glass, 984 F.2d at 58 (holding that the
committing physicians were entitled to qualified immunity for ordering
“seizure” because they reasonably believed that subject was mentally ill and
“dangerous”); Villanova, 972 F.2d at 797 (discussing Fourth Amendment and
due process implications arising from prolongation of involuntary
commitment, or seizure of the person, without independent judicial
(Cont’d)
12a
Appendix A
technically inapposite “seizure” cases relied on by the City
might be considered appropriate analogs in this unchartered
area, we consult their reasoning for guidance.
Although the parties devote considerable attention to
whether there remains a genuine factual dispute regarding the
substance of the challenged City “policy,” we consider its
essential features clear enough; that is, the policy permits
warrantless residential searches, without requiring “exigent
circumstances,” in order to effect an involuntary commitment
pursuant to a properly issued pink paper. Of course, the City
argues that every entry is perse “exigent” since a pink papercan
only issue upon an expert medical finding that the subject
presently poses a “likelihood of serious harm” to herself or
others, which in turn provides the police with reasonable cause
to believe that an immediate, forcible entry for the purpose of
(Cont'd)
determination of probable cause, where commitment occurred while person was
in jail).
Moreover, the absence of any authority for the McCabe contention — that
the warrantless “forcible entry” phase of an involuntary commitment should be
treated differently than the committal “seizure” itself — arguably indicates that
a constitutional foundation is lacking. See Cardona, 903 F.2d at 64 (rejecting
similar attempt to draw “entirely artificial distinction[s] between ‘search’
jurisprudence and ‘seizure’ jurisprudence”). And since the cases cited by the
City overwhelmingly hold that warrantless, involuntary commitment seizures
generally comport with the strictures of the Fourth Amendment, see Villanova,
972 F.2d at 795 (“There is no requirement of a warrant issued by a judicial
officer [to seize the person subject to acommitment order).”), thus constituting
a valid pink paper the practical equivalent of an arrest warrant, see supra note 5;
cf. Welsh, 466 U.S. at 748-49; Payton, 445 U.S. at 586; Hegarty, 53 F.3d at 1373,
a separate requirement that a search warrant be obtained before entering the
residence to seize the subject could be viewed as supererogatory.
13a
Appendix A
detaining the resistant subject is necessary to avert the “serious
harm’s identified in the pink paper.
On the other hand, McCabe contends that these remote
medical-psychiatric “emergency” determinations do not equate
with constitutionally cognizable “exigent circumstances,”
because they do not turn on the executing officer’s fact-specific,
on-the-scene assessment as to the immediacy of any putative
threat the subject may pose to herself or others. McCabe stresses
that during the several hours which were allowed to elapse
before the pink paper was executed upon Ms. Zinger, the officers
would have had ample time to obtain a search warrant. And
McCace points out that none of the four recognized “exigent
circumstances,” see supra p. 10, was plainly present
immediately before the forcible police entry.
As these claims reflect the legal gloss placed on the record
evidence, rather than a genuine factual dispute concerning the
substance of the City policy, we need not enter the skirmish over
the distinctions between “emergencies” and “exigent
circumstances.” The City policy, as evidenced by the actual
conduct of its police officers,* falls squarely within arecognized
class of systemic “special need” searches which are conducted
without warrants in furtherance of important administrative
purposes. Again, the fundamental concern of Fourth
8. Contrary to McCabe’s contention, we need not decide whether the City
waived the argument that its police officers’ actions were not undertaken
pursuant to City policy, and that it is therefore not liable under Monell, 436 U.S.
at 694. The City merely argues that the actual police conduct in effecting a
warrantless entry often provides the best circumstantial evidence as to the
nature of the challenged municipal policy. See Bordanaro, 871 F.2d at 115657
(observing that the event itself is evidence that police officers acted in
accordance with municipal policy).
l4a
Appendix A
Amendment jurisprudence in general, and in “special need”
search cases as well, is whether an established search procedure
is “reasonable” in light of the actual circumstances in the
particular case. See Cady, 413 U.S. at 439-40; see also
O'Connor, 480 U.S. at 719; T.L.O., 469 U.S. at 337.
“Reasonableness,” in turn, depends on“ ‘balanc[ing] the nature
and quality of the intrusion on the individual’s Fourth
Amendment interests against the importance of the
governmental interests alleged to justify the intrusion.’ ”
O’Connor, 480 U.S. at 719 (citation omitted); see T.L.O., 469
U.S. at 341; Cardona, 903 F.2d at 67; cf. Villanova, 972 F.2d at
796. On balance, we find that the City policy permitting forcible,
warrantless entries by police officers in possession of a pink
paper properly issued pursuant to Mass. Gen. Laws Ann. ch. 123,
§ 12(a), is reasonable under the Fourth Amendment.
1. State’s “Administrative” Interest
(a) Parens Patriae and Police Power
The legitimacy of the State’s parens patriae and “police
power” interests in ensuring that “dangerous” mentally ill
persons not harm themselves or others is beyond dispute. See
Rogers v. Okin, 634 F.2d 650, 654 (1st Cir. 1980), rev’donother
grounds, 457 U.S.291 (1982); Thompson v. Commonwealth, 438
N.E.2d 33, 36 (Mass. 1982). The potential consequences
attending a delayed commitment both to the mentally ill subject
and others — may be extremely serious, sometimes inciuding
death or bodily injury. Thus, we think itis especially significant
to the present analysis that warrantless “special need” searches
have been condoned by the courts in circumstances where the
State interests were far less compelling and urgent. Cf, e.g.,
O’Connor, 480 U.S. at 724 (noting: because “public employees
15a
Appendix A
are entrusted with tremendous responsibility,” “the
consequences of their misconduct or incompetence to both the
agency and the public interest can be severe”); New York v.
Burger, 482 U.S. 702, 708-09 (1987) (noting: where “the
government interests in regulating particular businesses are
concomitantly heightened, a warrantless inspection of
commercial premises may well be reasonable[,]” and that “the
State has a substantial interest in regulating the vehicle-
dismantling and automobile-junkyard industry because motor
vehicle theft has increased in the State and because the problem
of theft is associated with this industry”); 7.L.O., 469 U.S. at 339
(“Against the child’s interest in privacy must be set the
substantial interest of teachers and administrators in
maintaining discipline in the classroom and on school
grounds.”).
We therefore inquire whether these residential search
procedures are appropriately tailored to the legitimate and
important interests at stake; in other words, whether the
procedures are reasonably designed to ensure accurate
identification and prompt detention of recalcitrant and
“dangerous” mentally ill persons who require immediate
temporary commitment. See id. at 341 (noting two-part inquiry
whether the search procedure was (i) “ ‘justified at its
inception’ ” and (ii) “ ‘reasonably related in scope to the
circumstances which justified the interference in the first
place’ ”) (citations omitted).? We think that Mass. Gen. Laws
Ann. ch. 123, § 12(a), in general, and the commitment order
issued by Dr. Barden, in particular, were appropriately suited to
these legitimate purposes.
9. Thus, a “mental illness” determination alone is insufficient to support
an involuntary commitment order; the State must also show that the person
subjected to involuntary commitment is “dangerous.” See O'Connor v.
Donaldson, 422 U.S. 563, 575-76 (1975).
16a
Appendix A
The application for temporary hospitalization, signed by Dr.
Barden, expressly referenced Mass. Gen. Laws Ann. ch. 123,
§ 12(a), which authorizes four categories of involuntary
commitment procedures:
(1) a qualified physician, psychologist, or
psychiatric nurse who has personally
examined a person, and who has reason to
believe that the person would create a
“likelihood of serious harm,” may signa
“pink paper” authorizing law
enforcement officials to restrain that
person to permit hospitalization for up to
a ten-day period;
(2) inan “emergency situation,” a qualified
physician, psychologist, or psychiatric
nurse may sign a pink paper, even when
the alleged mentally ill person refuses to
submit to a medical examination, if the
“facts and circumstances” suggest that
the person would create a “likelihood of
serious harm”;
(3) in an “emergency situation,” a police
officer may restrain a person he believes
creates a “likelihood of serious harm,)’ if
no qualified physician, psychologist, or
psychiatric nurse is available to sign a
pink paper; or
(4) at any time, any person may apply to the
district or juvenile courts for a
17a
Appendix A
commitment order, and after a hearing,
the court may issue a warrant for the
apprehension and appearance of the
person who creates a “likelihood of
serious harm.”
Mass. Gen. Laws Ann. ch. 123, § 12(a); see infra Appendix, for
text; see generally Rockwell v. Cape Cod Hosp., 26 F.3d 254,
258-60 (ist Cir. 1994) (tracing history of Massachusetts
emergency involuntary commitment procedure from colonial
times through enactment of chapter 123). As only the category 4
commitment procedure expressly incorporates a warrant
requirement, we think it clear that the statute implicitly
authorizes warrantless searches and seizures in the three
remaining contexts. Since Ms. Zinger repeatedly rejected family
pleas that she submit to examination by a physician, and because
Dr. Barden based his expert medical-psychiatric opinion
exciusively on reports from family members and neighbors, we
conclude also that the pink paper in this case did issue under
category 2. The only question before us, therefore, concerns the
constitutionality of the “category 2” warrantless search
procedure.
The pink paper was based on Dr. Barden’s expert opinion
that Ms. Zinger “require[d] hospitalization so as to avoid the
likelihood of serious harm by reason of mental illness.” Dr.
Barden described the particular grounds for concluding that
immediate hospitalization was required:
[Patient] has a [history] of mental illness and
she was hospitalized at Danvers [State]
Hospital couple of years ago. [Patient] is very
angry and hostile; she is very impulsive and
18a
Appendix A
explosive. She made threats to harm her
axhusband. [Patient] is dangerous to others.
The involuntary commitment application, and _ the
Massachusetts statute, define “likelihood of serious harm” —
the governing criterion for commitment — as:
(1) asubstantial risk of physical harm to the
person [her]self as manifested by evidence
of, threats of, or attempts at, suicide or
serious bodily harm; (2) a substantial risk of
physical harm to other persons as manifested
by evidence of homicidal or other violent
behavior or evidence that others are placed in
reasonable fear of violent behavior and
serious physical harm to them; or (3) a very
substantial risk of physical impairment or
injury to the person [her]self as manifested
by evidence that such person’s judgment is so
affected that [sJhe is unable to protect
{herJself in the community and that
reasonable provision for h[er] protection is
not available in the community.
Mass. Gen. Laws Ann. ch. 123, § 1; see Rogers, 634 F.2d at 658.
The relevant medical history, including Ms. Zinger’s history of
mental illness and prior hospitalization at Danvers State
Hospital, and the behavioral symptoms reported to Dr. Barden by
family members, plainly satisfied the second clause in the
statutory definition of “likelihood of serious harm.”
The statutory definition of “likelihood of serious harm,”
particularly its requirement that there be objective medical
19a
Appendix A
indicia of “dangerousness,”’ effectively “constitutes a codified
set of ‘exigent circumstances’ which are constitutional under the
Fourth Amendment.” Moore v. Wyoming Medical Ctr., 825 F.
Supp. 1531, 1538n.4, 1546 (D. Wyo. 1993). Given the notorious
difficulties in predicting individual human behavior based
solely on symptomatology, id. at 1539, we conclude that Mass.
Gen. Laws Ann. ch. 123, § 1, prescribes a sufficiently clear and
reasonably reliable administrative standard for ensuring that
involuntary commitments are limited to imminently
“dangerous” mentally ill persons in emergent circumstances.
Finally, the specific focus and overall context of the
Massachusetts statute implicitly circumscribe the category 2
search procedure within narrow bounds. A police officer is
permitted to enter a residence without a warrant for the exclusive
purpose of detaining a recalcitrant and dangerous mentally ill
person pursuant toa duly issued pink paper, but may not engage
in a generalized search. As the officers in the instant case did not
exceed these bounds, we conclude that Mass. Gen. Laws Ann. ch.
123, § 12(a), and consequently the City policy in pursuance of
the statutory design, see supra pps. 12-14, are appropriately
tailored to serve the legitimate and important State and
municipal interest in ensuring that dangerous mentally ill
persons not cause physical harin to themselves or others.
(b) Practicality of Warrant Requirement
The determination that there exists a legitimate and
substantial governmental interest in conducting a warrantless
search in certain circumstances satisfies only the threshold
inquiry under the reasonableness test. For an administrative
search procedure to survive constitutional challenge under the
“special need” exception, it must also appear that the burdens of
20a
Appendix A
complying with a warrant requirement are likely to defeat the
important governmental purposes the warrantless search
procedure was designed to serve.
In assessing whether the public interest
demands creation of a general exception to
the Fourth Amendment’s’ warrant
requirement, the question is not whether the
public interest justifies the type of search in
question, but whether the authority to search
should be evidenced by a warrant, which in
turn depends in part upon whether the burden
of obtaining a warrant is likely to frustrate the
governmental purpose behind the search.
Camara, 387 U.S. at 533.
Compliance with a warrant requirement in the context of
these temporary, involuntary commitments for medical-
psychiatric examination would entail critical delays in
safeguarding the mentally ill person, and others, without
affording commensurate privacy protections to the subject.
Category 2 searches foster important governmental interests
largely because the inherent imprecision in predicting the timing
of any outbreak of “dangerousness” on the part of the
recalcitrant, mentally ill person, see Moore, 825 F. Supp. at 1539,
inevitably means that the time spent securing judicial approval
of a pink paper represents a potentially dangerous delay of
incalculable proportion.
In this particular case, of course, McCabe points to the
undisputed evidence that the police officers waited several hours
before executing the pink paper, thus demonstrating little
concern that Ms. Zinger might exhibit the sort of sudden onset of
2la
Appendix A
“dangerousness” alluded to in the assessment made by Dr.
Barden. Although this argument might hold sway were the
constitutionality of the warrantless entry dependent on an ad
hoc, on-the-scene “exigent circumstances” determination made
by the police, it is no rejoinder to the claimed “reasonableness”
of a “special need” search procedure policy, which must focus
not on the particular case but on the essential systemic attributes
of the search procedure itself:
The dissent argues that in this case the police
had ample time to secure an arrest warrant,
rendering invalid any claim that complying
with traditional fourth amendment
requirements was impracticable. That
viewpoint distorts Griffin's “impractica-
bility” prong. In Griffin, the Court inquired
into the systemic impracticability of
compelling those involved in
implementation of a probation regime to
obtain warrants. The impracticability of
obtaining a warrant in the particular case did
not enter into the equation; indeed, Justice
Blackmun argued unsuccessfully for much
the same sort of particularized inquiry ....
Whether it was feasible for the police to
obtain a warrant in this particular case is
irrelevant for the purpose at hand.
Cardona, 903 F.2d at 68 n.7 (emphasis added; citations
omitted).'° Although the Fourth Amendment warrant
10. There is no record evidence that the challenged City policy required
officers to execute pink papers within a specified time. In all events, however,
(Cont'd)
22a
Appendix A
requirement imposes a minimal burden on governmental
authorities in normal circumstances, we think there can be little
doubt that it would delay the execution of involuntary
commitment orders to some degree in all cases, thereby
appreciably increasing the systemic risk that the vital protective
purposes served by the State’s parens patriae and “police
power” responsibilities would be frustrated in individual cases
not identifiable in advance. See supra Section II.D.1(a).
More importantly by far, however, the additional burdens
imposed on the City and State by a universal warrant requirement
in category 2 searches seem to us “undue” and “unreasonable”
when viewed in relation to the minimal additional protection
afforded by a requirement that a pink paper be screened by a
magistrate before it is executed. The district court ruled that the
Fourth Amendment warrant requirement was violated
notwithstanding compliance with the “pink paper” procedure
under Mass. Gen. Laws Ann. ch. 123, § 12(a), because the issuing
physician “is not qualified to determine whether probable cause
exists.” McCabe, 875 F. Supp. at 61. On the other hand, the
Supreme Court has noted that rigid adherence to a warrant
requirement reaches its most suspect extreme where a judicial
(Cont'd)
we do not think the several hours that elapsed between the issuance and
execution of this pink paper, which enabled the constable and police to
coordinate their actions, can be considered so inordinate as to call into question
the emergent nature of Ms. Zinger’s mental-health-related dangerousness.
Whereas delay might belie “exigent circumstances,” were that the warrant
exception primarily relied upon by the City, no such rigid time constraints can
be imposed in a particular “special need” case as a precondition to the validity of
the systemic search procedure itself. Nonetheless, we express no opinion as to
whether, in another case, inordinate delay in issuing and executing a pink paper
might tend to undermine a predicate finding that the subject posed a real
“likelihood of serious harm” at the time the finding was made.
23a
Appendix A
officer lacks the innate expertise to assess the soundness of the
basic ground upon which the warrant request is predicated. See,
e.g., Griffin, 483 U.S. at 879 n. 6 (observing that “[oJur
discussion pertains to the reasons generally supporting the
proposition that the search decision should be left to the
expertise of probation authorities rather than a magistrate”); cf.
Rogers, 634 F.2d at 660 (“While judicial determinations are
certainly preferable in general, room must be left for responsible
state officials to respond to exigencies that render totally
impractical recourse to traditional forms of judicial process.
‘The judicial model of fact finding for all constitutionally
protected interests, regardless of their nature, can turn rational
decision-making into an unmanageable enterprise.’ ”) (quoting
Parham v. J. R., 442 U.S. 584, 608 n. 16 (1979)).
A pink paper is issued or withheld principally on the strength
of expert medical-psychiatric assessments (i.e., diagnoses and
prognoses founded on the available evidence), whereas judicial
officers normally are called upon to make judgments as to
whether there is “probable cause” for an arrest or search. As the
Second Circuit has pointed out:
“[T]he initial inquiry in a civil commitment
proceeding is very different from the central
issue in either a delinquency proceeding ora
criminal prosecution. In the latter cases the
basic issue is a straightforward factual
question — did the accused commit the act
alleged? There may be factual issues to
resolve inacommitment proceeding, but the
factual aspects represent only the beginning
of the inquiry. Whether the individual is
mentally ill and dangerous to either himself
or others and is in need of confined therapy
24a
Appendix A
turns on the meaning of the facts which must
be interpreted by expert psychiatrists and
psychologists.”
Project Release v. Prevost, 722 F.2d 960, 972-73 (2d Cir. 1983)
(quoting Addington v. Texas, 441 U.S. 418,425 (1979)); see also
O’Connor, 480 U.S. at 723 (“Indeed, it is difficult to give the
concept of probable cause, rooted as it is in the criminal
investigatory context, much meaning when the purpose of a
search is to retrieve a file for workrelated reasons.”); Wyman,
400 U.S. at 324 (in the home-visitation setting, “the warrant
argument is out of place” since, as a practical matter, “probable
cause” is more than an agency seeks or needs to know)."
11. It is largely irrelevant whether ‘he “likelihood of serious harm”
criterion in Mass. Gen. Laws Ann. ch. 123, § 12(a), approximates the “probable
cause” inquiry appropriate in the search warrant context. The “probable cause”
inquiry often is jettisoned in civil administrative searches:
“[W]here a careful balancing of governmental and
private interests suggests that the public interest is best
served by a Fourth Amendment standard of
reasonableness that stops short of probable cause, we
have not hesitated to adopt such a standard.” We have
concluded, for example, that the appropriate standard
for administrative searches is not probable cause in its
traditional meaning. Instead, an administrative
warrant can be obtained if there is a showing that
reasonable legislative or administrative standards for
conducting an inspection are satisfied.
O'Connor, 480 U.S. at 722-23 (citations omitted); see also T.L.O., 469 U.S. at
340-41 (“ ‘[P]robable cause’ is not an irreducible requirement of a valid search.
The fundamental command of the Fourth Amendment is that searches and
seizures be reasonable, and although ‘both the concept of probable cause and the
requirement of a warrant bear on the reasonableness of a search, . . . in certain
limited circumstances neither is required.’ ”) (citations omitted).
25a
Appendix A
To be sure, judicial oversight might provide some
preliminary insulation against obvious abuse; for example, by
screening out patently unreliable information utilized by a
physician in formulating a diagnosis or prognosis, which can be
a matter of particular concern in category 2 cases where the
physician has not examined the patient and must rely on
secondhand reports as to the subject’s physical, emotional and
behavioral symptoms. On the other hand, the statutory
mechanism itself affords reasonable safeguards against such
concerns: a pink paper can be authorized only by a licensed
psychiatric physician, see Mass. Gen. Laws Ann. ch. 123, §§ 1,
12(a), whose extensive education and specialized experience
and training should enable the psychiatric physician more
reliably to parse such lay reports, especially those provided by
family members, with the requisite professional skepticism.”
Though this safeguard is by no means foolproof, we think it
would be the exceptional case in which an expert evaluation was
based on patently insufficient or unreliable information. Further,
to the degree that judicial factfinding were thought to be
necessary as a general rule, in order to ferret out Jatent
unreliability in the foundational evidence (e.g., possible ulterior
family motives or antipathy toward the patient) upon which
12. The other statutory safeguards would not forestall improper
warrantless entries of a subject's residence. See Cardona, 903 F.2d at 66
(“While the actual invasion of privacy does not occur until the search or seizure
occurs, the constitutional protection is viable only to the extent that it restricts
the authority responsible for making the search or seizure decision, prior to the
time the decision crystallizes.”). Nonetheless, the other safeguards do mitigate
any resulting injury to the subject. For example, in order to detain a dangerous
mentally ill person for more than ten days, the State must petition the district
court, and prove beyond reasonable doubt that the patient poses a “likelihood of
serious harm.” See Mass. Gen. Laws Ann. ch. 123, §§ 7, 8 (requiring ongoing,
periodic judicial review of commitment decision), 12(d); Commonwealth v.
Nassar 406 N.E.2d 1286, 1290-91 (Mass. 1980).
26a
Appendix A
expert psychiatric evaluations are based, the resulting delays in
implementing involuntary commitment orders could have far
more serious consequences for the mentally ill, their families,
and members of the public. Finally, such a detailed factfinding
mission would greatly exceed any “screening” function
normally undertaken by judicial officers in reviewing search
warrant applications.
We discern no sufficient justification for superimposing
such a judicial factfinding mechanism upon the evaluation made
by the licensed psychiatric physician in the involuntary
commitment context, especially since it promises no
corresponding systemic benefit to offset the systemic delays in
executing pink papers in emergent circumstances. See Griffin,
483 U.S. at 876 (“A warrant requirement would interfere to an
appreciable degree with the probation system, setting up a
magistrate rather than the probation officer as the judge of how
close a supervision the probationer requires.”).
2. The Interests of the Mental Ill
Next, we consider the extent to which the category 2 search
procedure infringes legitimate Fourth Amendment interests of
the mentally ill. See T.L.0., 469 U.S. at 341; cf. also, Rockwell,
26 F.3d at 256 (“Involuntary confinement for compulsory
psychiatric treatment is a ‘massive curtailment of liberty.” ”)
(quoting Humphrey v. Cady, 405 U.S. 504,509 (1972)) (citation
omitted). We point out again, however, that McCabe presently
challenges only the alleged infringement of Ms. Zinger’s Fourth
Amendment right to be free from unreasonable governmental
entries to her residence, see supra note 2, and does not allege an
infringement of her liberty interest to be free from any
unreasonable governmental restraint attending the subsequent
seizure of her person.
27a
Appendix A
(a) Civil Context
Although the Fourth Amendment is implicated in a variety
of civil proceedings, Soldal, 113 S.Ct. at 548, the Supreme Court
has made it clear that the civil nature of certain search procedures
may call for a narrowed application of the warrant and probable
cause requirements. Where a search procedure is not designed to
gather information in a criminal investigation, its relative
unintrusiveness may militate in favor of relaxing the warrant
requirement. See O'Connor, 480 U.S. at 721 (“While police, and
even [some] administrative enforcement personnel, conduct
searches for the primary purpose of obtaining evidence for use in
criminal or other enforcement proceedings, employers most
frequently need to enter the offices and desks of their employees
for legitimate workrelated reasons wholly unrelated to illegal
conduct.”); Wyman, 400 U.S. at 323 (home visitation program
“does not deal with crime or with the actual or suspected
perpetrators of crime,” and “(t]he caseworker is not a sleuth but
rather, we trust, . . . a friend to one in need”); see also Project
Release, 722 F.2d at 972-73 (“[T)he difference between civil and
criminal confinement may nonetheless be reflected in different
standards and procedures applicable in the context of each of the
two systems — so long as due process is satisfied.”) (citing
Addington, 441 U.S. at 425). In the instant case, McCabe has not
suggested that the challenged entry of the Zinger residence was
effected fir any criminal law purpose, or any regulatory purpose
other than to enable her temporary hospitalization and the
psychiatric examination she adamantly refused.
(b) Impartiality of Decisionmaker
Finally, it is most significant in the present context that the
official decision to initiate an involuntary “category 2”
28a
Appendix A
commitment rests with a licensed psychiatric physician, not with
law enforcement officials. See Steagald, 451 U.S. at212 (noting
that the Fourth Amendment warrant requirement interposes
“neutral” and detached judicial officer between police and
“probable cause” determination). The Supreme Court
consistently premises “special need” warrant exceptions on the
presence of a search authorization by an impartial, or at least a
relatively impartial person. See Cardona, 903 F.2d at 64-65
(“The [Griffin] Court’s focus was on the degree of security
inherent in allowing a particular decisionmaker, i.e., a probation
officer, to make a particular decision, i.e., whether a
probationer’s home should be searched, based on a particular
(relatively modest) level of proof, i.e., ‘reasonable grounds.’ ”).
Unlike the characteristic relationship between law enforcement
personnel and criminal suspects, a committing physician’s
relati. aship with a patient, or even a nonpatient, is in no sense
adversarial.
The role of the licensed physician under Massachusetts law
is to provide a neutral, objective assessment of the
“dangerousness” and “likelihood of serious risk” criteria upon
which the involuntary commitment decision depends. A
physician’s ethical responsibilities likewise require that
appropriate medical-psychiatric criteria be utilized in assessing
the condition of the subject person. Cf, e.g., Griffin, 483 U.S. at
876 (“Although a probation officer is not an impartial
magistrate, neither is he the police officer who normally
conducts searches against the ordinary citizen. He is an
employee of the State Department of Health and Social Services
who, while assuredly charged with protecting the public interest,
is also supposed to have in mind the welfare of the probationer.”).
Nor is there any allegation or evidence that the Lynn police
possessed or exercised any influence, direct ori indirect, over the
29a
Appendix A
medical-psychiatric decision to issue the pink paper. Cf. 7.L.O.,
469 U.S. at 337 n.5 (“Nor do we express any opinion on the
standards (if any) governing searches of such areas by school
. Officials or by other public authorities acting at the request of
school officials.”).
The district court nonetheless struck down the City policy
because “the agents of the doctors in this case are police officers
with guns and batons, not hospital orderlies and nurses,” so that
“(t}here is no therapeutic relationship which a warrant
mechanism would disrupt.” McCabe, 875 F. Supp. at 61."
Whether an administrative search procedure leaves too much
discretion to law enforcement officers in the field is a recurring
Fourth Amendment concern. See, e.g., Camara, 387 U.S. at532-
33 (“The practical effect of this system is to leave the occupant
subject to the discretion of the official in the field. This is
precisely the discretion to invade private property which we
have consistently circumscribed by a requirement that a
disinterested party warrant the need to search.”). Under Mass.
Gen. Laws Ann. ch. 123, § 12(a), however, the decision to
conduct a category 2 “search” is never left to the executing
officers. Moreover, the mere fact that law enforcement officials
13. Although there is no evidence that Dr. Barden had been Ms. Zinger’s
regular physician, the challenged City policy is to be evaluated in light of its
systemic traits and purposes. Cf. Cardona, 903 F.2d at 67; supra pp. 22-23. No
doubt many, if not most, category 2 searches are executed pursuant to pink
papers issued by the subject-patient’s current or former psychiatric physician.
Unlike law enforcement officers, who rarely interact with a search target on
more than one occasion, as a rule physicians possess reliable personal
knowledge of their patients, based on an ongoing doctor-patient relationship.
Cf. Griffin, 483 U.S. at 879 (“As was true, then, in{O’Connor]. . .and[T.L.O.],
we deal with a situaticn in which there is an ongoing supervisory relationship —
and one that is not, or at least not entirely, adversarial — between the object of
the search and the decisionmaker.”).
30a
Appendix A
serve as the agents who implement the authorizing physician’;
decision to approve a category 2 search does not necessarily
mean that the procedure is not within the “special need”
category:
[Wle fail to see any constitutional
significance in the fact that police officers,
rather than “administrative” agents, are
permitted to conduct the § 415-a5 inspection.
The significance respondent alleges lies in
the role of police officers as enforcers of the
penal laws and in the officers’ power to arrest
for offenses other than violations of the
administrative scheme. It is, however,
important to note that state police officers,
like those in New York, have numerous duties
in addition to those associated with
traditional police work. .. . As a practical
matter, many States do not have the resources
to assign the enforcement of a particular
administrative scheme to a specialized
agency. So long as a regulatory scheme is
properly administrative, it is not rendered
illegal by the fact that the inspecting officer
has the power to arrest individuals for
violations other than those created by the
scheme itself. In sum, we decline to impose
upon the States the burden of requiring the
enforcement of their regulatory statutes to be
carried out by specialized agents.
Burger, 482 U.S. at 717-18; Cardona, 903 F.2d at 65 (“The
[Griffin] Court did not lend any special salience to the identity of
3la
Appendix A
the person(s) executing the search”; “[w]hether the decision,
once reached [by the probation officer], is realized through
police officers, parole officers, or a tag team representing both
camps, is peripheral to the Court’s holding.”).
We conclude that these considerations, on balance, favor a
limited “special need” exception to the warrant requirement in
the particular setting presented in this case. Accordingly, we
hold that the Fourth Amendment is not infringed by the
challenged City policy, which authorizes warrantless entries of
residences by the police for the sole purpose of executing a
properly issued category 2 pink paper within a reasonable time
after its issuance.
iil
CONCLUSION
We retrace the bounds of our ruling. We do not suggest that
the factors we have discussed, see Section II.D, alone or in
combination invariably provide adequate support for a “special
need” exception to the warrant requirement. The balancing test
for determining whether an administrative procedure comes
within the “special need” exception is designedly fact-specific,
and must be calibrated anew in assessing the reasonableness of
each administrative search procedure to which it is applied. Nor,
of course, do we suggest that all comparable state involuntary
commitment statutes, or any other provision of Mass. Gen. Laws
Ann. ch. 123, or other categories of searches authorized under
chapter 123, section 12(a), necessarily satisfy the Fourth
Amendment. See, e.g., Wyman, 400 U.S. at 326 (“Our holding
today does not mean ... that a termination of benefits upon
refusal of a home visit is to be upheld against constitutional
challenge under all conceivable circumstances. The early
32a
Appendix A
morning mass raid upon homes of welfare recipients is not
unknown.”). We hold only that law enforcement officers in
possession of a pink paper, duly issued pursuant to category 2,
Mass. Gen. Laws Ann. ch. 123, § 12(a), may effect a warrantless
entry of the subject’s residence within a reasonable time after the
pink paper issues.
Since the challenged City policy comports with the “special
need” exception to the Fourth Amendment warrant requirement,
the City is entitled to summary judgment. We intimate no
viewpoint concerning any other aspect of these proceedings,
including the McCabe claims against the individual police
officers, the constable, and the ambulance crew, which claims
were dismissed, without prejudice. See supra note 3.
The district court judgment is reversed and the case is
remanded to the district court for further proceedings
consistent with this opinion; costs to appellant.
33a
Appendix A
APPENDIX
Chapter 123, Section 12:
(a) Any physician who is licensed
pursuant to section two of chapter one
hundred and twelve or qualified psychiatric
nurse mental health clinical specialist
authorized to practice as such under
regulations promulgated pursuant to the
provisions of section eighty B of said chapter
one hundred and twelve or a qualified
psychologist licensed pursuant to sections
one hundred and eighteen to one hundred and
} twenty-nine, inclusive of said chapter one
hundred and twelve, who after examining a
person has reason to believe that failure to
hospitalize such person would create a
likelihood of serious harm by reason of
mental illness may restrain or authorize the
restraint of such person and apply for the
hospitalization of such person for a ten day
period at a public facility or at a private
facility authorized for such purposes by the
department.
If an examination is not possible because of
the emergency nature of the case and because
of the refusal of the person to consent to such
examination, the physician, qualified
psychologist or qualified psychiatric nurse
mental health clinical specialist on the basis
of the facts and circumstances may determine
34a
Appendix A
that hospitalization is necessary and may
apply therefore.
In an emergency situation, if a physician,
qualified psychologist or qualified
psychiatric nurse mental health clinical
specialist is not available, a police officer,
who believes that failure to hospitalize a
person would create a likelihood of serious
harm by reason of mental illness may restrain
such person and apply for the hospitalization
of such person for a ten day period at a public
facility or a private facility authorized for
such purpose by the department. An
application for hospitalization shall state the
reasons for the restraint of such person and
any other relevant information which may
assist the admitting physician or physicians. -
Whenever practicable, prior to transporting
such person, the applicant shall telephone or
otherwise communicate with a facility to
describe the circumstances and known
clinical history and to determine whether the
facility is the proper facility to receive such
person and also to give notice of any restraint
to be used and to determine whether such
restraint is necessary.
(e) Any person may make application toa
district court justice or a justice of the
juvenile court department for a ten day
35a
Appendix A
commitment to a facility of a mentally ill
person whom the failure to confine would
cause a likelihood of serious harm. After
hearing such evidence as he may consider
sufficient, a district court justice or ajustice
of the juvenile court department may issue a
warrant for the apprehension and appearance
before him of the alleged mentally ill person,
if in his judgment the condition or conduct of
such person makes such action necessary or
proper. Following apprehension, the court
shall have the person examined by a
physician designated to have the authority to
admit to a facility or examined by a qualified
psychologist in accordance with the
regulations of the department. If said
physician or qualified psychologist reports
that the failure to hospitalize the person
would create a likelihood of serious harm by
reason of mental illness, the court may order
the person committed to a facility for a period
not to exceed ten days, but the superintendent
may discharge him at any time within the ten
day period.
36a
APPENDIX B — CORRECTED MEMORANDUM AND
DECISION OF THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS DATED
FEBRUARY 2, 1995
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
C.A. No. 92-12179-NG
MARY MCCABE, as Administratrix of the Estate of Ruchla
“Rose” Zinger,
Plaintiff,
Vv.
THE CITY OF LYNN, SERGEANT RICHARD
DONNELLY, a Sergeant in the Lynn Police Department,
Individually, OFFICER GARY TWYMAN, an officer in the
Lynn Police Department, OFFICER WILLIAM ALPHEN,
an officer in the Lynn Police Department, Individually,
CAPTAIN CSUKA, a Captain in the Lynn Police
Department, Individually, and in his Official Capacity,
YAKOV BARDEN, M.D., TRI-CITY MENTAL HEALTH
HOSPITAL, JOHN DOE, Superintendent, Tri-City Mental
Health Hospital, DAVID RANDO, EDWARD MARTICIO,
LIFE-LINE AMBULANCE SERVICE, INC., and
KENNETH JACKSON,
Defendants.
GERTNER, D.J.
The following is a corrected version of the Memorandum
and Decision issued on January 26, 1995. This version differs
from the original only insofar as typographical and sentence
structure errors have been corrected.
Dated: February 2, 1995
NIUE BEF Os BOOP ON OP, BE NE a
es EAE EON Sa Vie SE io OTS RMSE NT I Ne
ee ES a.) ee oe ee
37a
Appendix B
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
C.A. No. 92-12179-NG
MARY MCCABE, as Administratrix of the Estate of Ruchla
“Rose” Zinger,
Plaintiff,
v.
THE CITY OF LYNN, SERGEANT RICHARD
DONNELLY, a Sergeant in the Lynn Police Department,
Individually, OFFICER GARY TWYMAN, an officer in the
Lynn Police Department, OFFICER WILLIAM ALPHEN,
an officer in the Lynn Police Department, Individually,
CAPTAIN CSUKA, a Captain in the Lynn Police
Department, Individually, and in his Official Capacity,
YAKOV BARDEN, M.D., TRI-CITY MENTAL HEALTH
HOSPITAL, JOHN DOE, Superintendent, Tri-City Mental
Health Hospital, DAVID RANDO, EDWARD MARTICIO,
LIFE-LINE AMBULANCE SERVICE, INC., and
KENNETH JACKSON,
Defendants.
CORRECTED MEMORANDUM AND DECISION
GERTNER, D.J.
38a
Appendix B
CORRECTED MEMORANDUM AND DECISION
FEBRUARY 2, 1995
I. INTRODUCTION
This case involves Rose Zinger who survived the Holocaust
only to die at the hands of the Lynn Police. At issue is the policy
of the Lynn Police to forcibly enter individuals’ homes to serve
involuntary commitment! orders, without a warrant, and solely
on the authority of the officers on the scene. I find that this policy
violates the Fourth Amendment’s plain prohibition against the
warrantless searches of homes, and seizures of persons.
After obtaining an order of involuntary commitment for Ms.
Rose Zinger (a resident of Lynn), the Lynn Police served the
order by breaking down her door and forcing her down a flight of
stairs. Tragically, during this incident Ms. Zinger suffered a heart
attack and died.
On September 4, 1992, the Administratrix of Ms. Zinger’s
estate (plaintiff Mary McCabe) filed acomplaint seeking relief
under 42 U.S.C. § 1983 and certain common law claims against
the defendants City of Lynn and various individual officers for
the death of Ruchla “Rose”’ Zinger (hereafter “Zinger”). In
addition, plaintiff sued Life-Line Ambulance Service, Inc.
(hereinafter “Life-Line Ambulance”), two of its emergency
medical technicians (hereinafter “EMTs”) and anumber of other
defendants on common law negligence, assault and battery
1. use the phrases “involuntary commitment” and “civil commitment”
interchangeably to deal with proceedings under M.G.L. ch. 123 § 12.
Pa ee aE orate Bare Sees y "abn awl apirme Tre
2
.
39a
Appendix B
theories.” The motions for summary judgment concern only the
civil rights claims against the City of Lynn and the negligence
claims against the two EMTs of Life-Line Ambulance.’
2. The complaint alleged that: (1) Lynn Police Sergeant Donnelly and
Officers Twyman and Alphen deprived Ms. Zinger of her constitutional rights in
violation of 42 U.S.C. § 1983 (Count I); (2) Captain John Csuka deprived Zinger
of her constitutional rights in violation of 42 U.S.C. § 1983 by failing to
supervise the officers under his direction (Count II); (3) the City of Lynn
maintained a policy which deprived Zinger of her constitutional rights (Count
ITI); (4) the City of Lynn breached a duty it owed to Zinger which proximately
caused her death (Count IV); (5) Dr. Yakov Barden was negligent in failing to
follow appropriate procedures in Zinger’s involuntary commitment (Count V);
(6) Tri-City Mental Health Hospital was negligent in failing to follow the
appropriate procedures in Zinger’s involuntary commitment (Count VI); (7)
defendants David Rando, Edward Marticio and Life-Line Ambulance Services,
Inc. were negligent in failing to provide adequate care to Zinger (Count VII); (8)
defendants Donnelly, Twyman and Alphen assaulted and battered Zinger
causing her death (Count VIII); (9) defendants Rando and Marticio assaulted
and battered Zinger causing her death (Count IX); and (10) defendant Jackson
breached a duty he owed Zinger by failing to intervene on behalf of Zinger when
the Lynn Police Officers deprived the Zinger of her civil rights (Count X).
In a letter to the Court dated June 14, 1993, counsel for defendant Tri-City
informed the Court that the claims against Tri-City and Dr. Barden had been
settled. At a settlement conference held on January 3,1995, plaintiff's counsel
informed the Court that they had reached a settlement with defendant Jackson.
After this Court made its preliminary ruling on the instant motions for summary
judgment — that the City of Lynn’s policy violated the Fourth Amendment —
plaintiff's counsel informed the Court that they had reached a settlement
agreement with the individual police officers named in the complaint.
3. On May 4, 1994, the City of Lynn filed a motion for summary
judgment. On June 15, 1994 defendants Rando and Marticio filed motions for
summary judgment. The Court heard oral argument on the summary judgment
(Cont'd)
40a
Appendix B
For the-reasons described below, the defendants’ motion for
summary judgmentis hereby DENIED and the plaintiff's cross
motion for summary judgment against the City of Lynnis hereby
GRANTED.
Il. SUMMARY OF THE FACTS
Rose Zinger was a 64 year old woman living on 11 Nichols
Avenue in Lynn, Massachusetts. Zinger spoke and understood
limited English; she suffered from high blood pressure and was
extremely overweight. In addition to her physical maladies,
Zinger suffered from psychological problems, which according
to the Complaint, were the product of, among other things, her
experiences during World War II.‘
On September 6, 1989, Dr. Yakov Barden of the Tri-City
Mental Health and Retardation Center, signed an application for
Zinger’s involuntary commitment pursuant to M.G.L. ch. 123
§ 12(a). The next day, Captain Joseph Csuka of the Lynn Police
Department instructed Sergeant Richard Donnelly, and Officers
Gary Twyman and William Alphen (all of the Lynn Police
Department) to serve the civil commitment order. Csuka,
although in possession of the order since the morning of
September 7th, informed Sergeant Donnelly that the
(Cont'd)
motions on September 16, 1994. The City of Lynn filed a second motion for
summary judgment on December 6, 1994 addressing the constitutionality of its
policy of allowing forcible entries to serve civil commitment papers. Finally, on
December 14, 1994, the plaintiff filed a joint memorandum in opposition to the
City of Lynn’s second motion for summary judgment and a cross motion for
partial summary judgment on the same issue.
4. According to the Complaint, Zinger was a survivor of the Holocaust
who lost many friends and family “at the hands of Nazis.”
PE Tn MO Eger AE ae on
4la
Appendix B
commitment would be carried out at 1:00 p.m. According to the
affidavit of Sergeant Donnelly, Captain Csuka advised him that
Zinger would not cooperate with them and they would have to
force their way into her house.
In addition to the involuntary commitment, proceedings had
been brought against Zinger resulting in an eviction order.
Indeed, the police officers concede that the civil commitment
was delayed until 1:00 p.m. in order to accommodate defendant
Kenneth Jackson (a State Constable) who would secure the
premises following the eviction and commitment.
At the scene, Constable Jackson informed the officers that
based on his prior attempts to serve eviction notices, he believed
Zinger would not answer the door. He instructed them to goto the
rear door for the easiest point of entry into the home. The officers
knocked on the door and rang the doorbell. Zinger did not
answer. After approximately one minute, Donnelly ordered
Alphen to kick down the door. Once through the door all three
officers and Constable Jackson proceeded up the stairs to a
second door which was also locked. Officer Alphen knocked on
this door and said “Hello, Police.” When no one answered the
knocking, Donnelly ordered Alphen to kick this door down.
After kicking through one panel, Zinger came to the door and
opened it slightly. Donnelly showed Zinger the commitment
order and told her that she needed to see a doctor. Zinger, who
spoke and understood little English, yelled “why, why, no
doctors” and started to close the door. Donnelly forced his foot
between the door preventing it from closing all the way.
At this point, the officers claim that Zinger reached for a
small knife on the kitchen table. Upon seeing the knife Officer
42a
Appendix B
Alphen pushed Zinger through the door and to the floor.’ Zinger
lay face down on the ground, confused and screaming.
With Zinger forced into a prone position, all three officers
handcuffed the 64 year old woman who struggled and screamed.
During the process, Zinger was so distraught she urinated on
herself and one of the officers.
Shortly after arriving at the scene, the officers called
defendant Life-Line Ambulance to transport Zinger to the
mental health facility. While waiting for the ambulance, the
officers claim that they made repeated attempts to calm Zinger
down. When defendants Marticio and Rando (the Life-Line
emergency medical technicians) arrived, they informed the
officers that due to Zinger’s obesity and disposition, they could
not carry her down the stairs in achair or stretcher. Upon hearing
this, the officers forced Ms. Zinger down the stairs on her
buttocks one step at a time.
After bringing her to the bottom of the stairs, the officers
placed her face down on a stretcher, where she was strapped in,
still handcuffed behind her back. Shortly thereafter, one of the
defendants noticed blood coming down the side of Zinger’s
mouth.
The officers then removed the handcuffs and Marticio
examined her. Finding no pulse, Marticio and one of the officers
began performing CPR. Zinger was pronounced dead at 2:00
p.m.
5. According to Constable Jackson’s deposition, Zinger never actually
reached the knife on the table, nor held the knife in her hand.
43a
Appendix B
Ill. THE SUMMARY JUDGMENT STANDARD
Summary judgment should be granted where all of the
relevant pleadings, viewed in the light most favorable to the non
moving party, present no genuine issue of material fact such that
the moving party is entitled to judgment as a matter of law. Fed.
R. Civ. P. 56(c); Alan Corp. v. International Surplus Lines
Insurance Co., 22 F.3d 339, 342 (1st Cir. 1994); Aponte-
Santiago v. Lopez Rivera, 957 F.2d 40, 41 (1st Cir. 1992);
Medina-Munozv. R.J. Reynolds Tobacco Co., 896 F.2d 5,8 (1st
Cir. 1990); Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir.
1990).
IV. THE CITY OF LYNN
A. Liability under 42 U.S.C. § 1983
42 U.S.C. § 1983 provides a private cause of action for
individuals who are subject to a deprivation of their
constitutional rights by persons acting under color of state law.
In Monell v. Department of Social Services, 436 U.S. 658 (1978)
the Court determined that municipalities and other local
government units were to be included among those “persons” to
whom § 1983 applies so long as certain preconditions were met.
As Justice Brennan stated:
We conclude, therefore, that a local
government may not be sued under § 1983 for
an injury inflicted solely by its employees or
agents. Instead, it is when execution of a
government’s policy or custom, whether
made by its lawmakers or by those whose
edicts or acts may fairly be said to represent
44a
Appendix B
official policy, inflicts the injury that the
governmentas an entity is responsible under
§ 1983.
Monell, 436 U.S. at 694 (emphasis added).
To establish liability against a municipality under § 1983
after Monell, a plaintiff must prove that: (1) the municipality
maintained a policy or custom; and (2) the same custom or policy
was the cause of and the moving force behind the deprivation of
the plaintiff’s constitutional rights. Bordanaro v. Mcleod, 871
F.2d 1151, 1156 (1st Cir. 1989) (citations omitted); Oklahoma
City v. Tuttle, 471 U.S. 808, 819 (1984).
The plaintiff contends that the City of Lynn’s policy of
making warrantless entries into private residences to serve civil
commitment process constituted a deprivation of Rose Zinger’s
right to be free from unreasonable searches and seizures. It was
that policy, plaintiff contends, that led to Ms. Zinger’s injury and
ultimately her death.
B. The Policy of Serving Involuntary Commitment
Orders
To support its claim that a municipal policy existed, the
plaintiff points to the deposition of John W. Suslak, the City of
Lynn’s Rule 30(b)(6) witness who was designated the most
“knowledgeable regarding the rules, regulations, and policies of
the Lynn Police Department regarding the serving of involuntary
commitment papers.” Plaintiff's Memorandum in Opposition to
the City of Lynn’s Motion for Summary J udgmentat p. 10. Athis
deposition, Suslak stated:
45a
Appendix B
I think that the officers at the scene would be
obligated to take all reasonable efforts to
make a peaceable entry if, in fact, under the
circumstances, they were confronting, that
would be safer to do. And then if they were, in
fact, were advised that someone inside the
apartment where we had a pink paper,°
escalate the degree of force to effect
necessary to make an entry to effect the pink
paper.
Id at p. 9. In other words, the City of Lynn’s policy was to try to
effect a peaceful execution of a civil commitment order in the
first instance. But, should there be resistance, the police were
authorized to “escalate the degree of force”’ necessary to effect
the hospitalization. There was no requirement that a neutral
magistrate intercede, or that a warrant be sought prior to the
seizure of ahuman being orto the entry of ahome. The officer on
the line, armed only with a ten day commitment authorization,
could decide when and whether to break down the door to
someone’s home’ and seize them.
It is uncontested that the officers at 11 Nichols Avenue,
acting pursuant to an official municipal policy, broke into Rose
Zinger’s apartment, and that this municipal policy could be
found to have triggered the set of circumstances leading to her
injury and death. The only question for summary judgment is
whether the City’s policy violated the Fourth Amendment.
6. “Pink paper” is the colloquial name for a § 12 commitment order.
7. Indeed the policy apparently allowed the officers to break into a third
party home if the subject of the commitment order was present.
46a
Appendix B
C. Warrantlese Searches of a Dwelling are Presumptively
Unreasonable.
The Fourth Amendment is unequivocal:
The right of the people to be secure in their
persons, houses, papers, and effects against
unreasonable searches and seizures, shall not
be violated, and no Warrants shall issue, but
upon probable cause, supported by Oath or
affirmation, and particularly describing the
place to be searched, and the persons or
things to be seized.
The Amendment's goal is the protection of personal privacy,
and the fundamental dignity of citizens. The method of choice
for protecting that goal is the warrant mechanism which requires
a neutral magistrate to evaluate the facts and determine whether
and when government officials may search.
The specter of police officials breaking down the door ofa
private home has been, from the drafting of the Fourth
Amendment to the present, a singularly frightening one.
Traditionally, acitizen’s home has been singled out for special
protection. United States v. United States District Court, 407
U.S. 297, 313 (1972) (“[P]hysical entry of the home is the chief
evil against which the wording of the Fourth Amendment is
directed.”); Silverman v. United States, 365 U.S. 505,511 (1961)
(“at the very core” of the Fourth Amendment “stands the right of
aman toretreat into his own home.”)
Of equal, if not greater, significance is the seizure of the
human being herself, the deprivation of her liberty. Henry v.
Pas
ti Hap FRM DARD
47a
Appendix B
United States, 361 U.S. 98, 100 (1959) (“For it is the command
of the Fourth Amendment that no warrants for either searches or
arrests shall issue except ‘upon probable cause, supported by
Oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.’ ”) (emphasis
added.)
So important is the protection of personal privacy and the
fundamental dignity of individuals against the unwarranted
intrusion of governmental officials that the Supreme Court has
held that all warrantless searches and seizures are presumptively
unreasonable. INS v. Delgado, 466 U.S. 210, 215 (1984);
Camara v. Municipal Court of the City & County of San
Francisco, 387 U.S. 523, 528 (1967); Payton v. New York, 445
U.S. 573, 586 (1980).
The exceptions to the warrant requirement are limited in
number and strictly construed. Katz v. United States, 389 U.S.
347 (1967). Those situations include: fear of imminent
destruction of evidence; the “hot” pursuit of a fleeing suspect,
immediate threats to the public safety; and fires or other
emergencies. Welsh v. Wisconsin, 466 U.S. 740, 749 (1984).
These “exigencies” suspend the Fourth Amendment's
requirements only because pre-search compliance would be
impossible if not dangerous to the surrounding community.
United States v. Irizarry, 673 F.2d 554, 557 (ist Cir. 1982)
(“ ‘Exigent circumstances’ have traditionally been found in
those crisis situations when there is compelling need for official
action and no time to secure a warrant.”) (citing Michigan v.
Tyler, 436 U.S. 499, 509 (1978) (warrantless entry into a burning
building to put out a blaze). See also Chimel v. California, 395
U.S. 752, reh’g. denied, 396 U.S. 809 (1969) (search “incident to
arrest”); Warden v. Hayden, 387 U.S. 294 (1967) (warrantless
48a
Appendix B
entry in “hot” pursuit of an armed robber); Kerv. California, 374
U.S. 23, 40-43 (1963) (warrantless entry to prevent destruction
of evidence where such destruction is reasonably thought
imminent); United States v. Zurosky, 614 F.2d 779 (1st Cir. 1979)
(warrantless entry into warehouse at 4:25 a.m. when activity
inside reasonably suggests that a breaking and entering is taking
place); United States v. Edwards, 602 F.2d 458, 468 (1st Cir.
1979) (warrantless entry to prevent destruction of heroin
reasonably thought imminent); United States v. Miller, 589 F.2d
1117, 1126 (ist Cir. 1978), cert. denied, 440 U.S. 958, (1979)
(warrantless entry and reentry of a boat where drowning
suspected and tidal flow created need for swift action).
To be sure, in certain non-criminal, regulatory or
administrative situations, the Court has held that the Fourth
Amendment did not apply at all, or that the high level of
protection offered by a warrant was unnecessary so long as the
search was otherwise “reasonable.” For the most part, these
involve instances where the Court has characterized the
intrusion as far less invasive than traditional searches and
seizures.* In Wyman v. James, 400 U.S. 309, 326 (1971), for
example, the Supreme Court upheld a New York statute which
made receipt of welfare benefits contingent upon the
8. For example, Griffin v. Wisconsin, 483 U.S. 868, 873 (1987) (finding
warrantless search of a parolee’s home by probation officials reasonable);
O'Connor v. Ortega, 480 U.S. 709 (1987) (allowing warrantless, work-related
searches of employee's desks and offices without probable cause); New Jersey
v. T.L.O., 469 U.S. 325 (1985) (school officials may conduct warrantless
searches of some student property without probable cause); New York v. Burger,
482 U.S. 691 (1987) (permitting warrantless search of automobile junkyards as
business “closely regulated” by the state); United States v. Cardona, 903 F.2d
60. 69 (1st Cir. 1990) (finding warrantless arrest of parole violator in his home
valid as a “special needs” exception to the warrant requiremept).
49a
Appendix B
beneficiary's assent to a home visit by a state social worker. In
upholding the statute, the Wyman Court stated that “the home
visitation as structured by the New York statutes is areasonable
administrative tool; that it serves a valid and proper
administrative purpose for the dispensation of the AFDC
program; that it is not an unwarranted invasion of personal
privacy; and that it violates no right guaranteed by the Fourth
Amendment.” Wyman, 400 U.S. at 326. The Court rested its
decision on a determination that the purpose of the home visit
requirement was “both rehabilitative and investigative,” and
thus, not the functional equivalent of a search in the traditional
criminal law context. Wyman, 400 U.S. at 317.
Although warrantless social worker “visitations” may be
minimally invasive and fail to trigger the warrant protections of
the Fourth Amendment, the warrantless entry into a private
dwelling for the sole purpose of seizing and forcibly
hospitalizing the resident is surely another matter.’
9. In Soldal v. Cook County, Illinois, U.S. __, 113 S.Ct. 538 (1992) for
instance, the Court determined that police officers that conspire with private
individuals to execute an illegal self help eviction are liable for violations of the
Fourth Amendment. The seizure and removal of the plaintiff’ s home fit within
the Amendment's protections no matter how the action was labelled. The Court
noted:
In our view, the reason why an officer might enter a
house or effectuate a seizure is wholly irrelevant to the
threshold question of whether the [Fourth]
Amendment applies. What matters is the intrusion on
the people’s security from governmental interference.
Therefore, the right against unreasonable seizures
would be no less transgressed if the seizure of the house
(Cont'd)
50a
Appendix B
When liberty is involved, as well as the privacy of one’s
home, the highest protection of the Fourth Amendment, namely
the warrant mechanism is required. When referring to the
warrantless entry of a home to execute an arrest warrant, the
Court in Payton v. New York, 445 U.S. 573, 588 (1980), cited to
the following language, with approval:
To be arrested in the home involves not only
the invasion attendant to all arrests but also
an invasion of the sanctity of the home. This
is simply too substantial an invasion to allow
without a warrant, at least in the absence of
exigent circumstances, even when it is
accomplished under statutory authority and
when probable cause is clearly present.
citing United States v. Reed, 572 F. 2d 412, 423 (1978), cert.
denied sub. nom. Goldsmith v. United States, 439 U.S. 913.
D. The Requirements of the Fourth Amendment Apply
to Entries Under M.G.L. ch. 123 § 12
The function of M.G.L. ch. 123 § 12 is to provide the
(Cont'd)
was undertaken to collect evidence, verify compliance
with a housing regulation, effect an eviction by the
police, or on a whim, for no reason at all. As we have
observed on more than one occasion, it would be
“anomalous to say that the individual and his private
property are fully protected by the Fourth Amendment
only when the individual is suspected of criminal
behavior.”
Soldal, 113 S.Ct. at 548 (quoting Camara, 387 U.S. at 530).
5la
Appendix B
Commonwealth with the ability to place an individual in the
custody of a hospital facility in order to prevent serious harm as
a result of the individual's mental illness. It provides a method
for exercising control over the individual, to deprive him or her
of liberty and necessarily, privacy, even if only on a temporary
basis. While the label may be beneficent — for the patient’s own
good or the good of the society — the fact remains that it is a
seizure of the person, effected in this case by a forcible entry into
acitizen’s home.
The City of Lynn argues that an application for an order of
involuntary commitment — completed by a physician — by
statute obviates the need for a warrant. While the statute provides
for a warrant proceeding, Lynn claims that it only applies when
an individual other than a physician or a police officer seeks a
ten-day commitment. M.G.L. ch. 123 § 12(a) permits a licensed
physician or psychologist to “restrain or authorize the restraint
of [a] person and apply for hospitalization of such person for aten
day period” based on a finding of “a likelihood of serious harm
by reason of mental illness,” apparently on that physician's own
authority. In fact, the statute does not require the doctor to
personally examine the patient, but may make the diagnosis
based upon “facts or circumstances” represented to him. Section
12(e) permits “any person” to apply for a ten-day commitment
but specifies that the application must be made to “a district court
justice.” The District Court must hold a hearing and, if it
determines that the evidence is sufficient, it “may issue a warrant
for the apprehension and appearance before him of the alleged
mentally ill person, if in his judgment the condition or conduct of
such person makes such action necessary or proper.”
It might be suggested that this is a valid procedure because
civil commitment processes are medical, or therapeutic, and as
a result, less invasive than a traditional criminal search (as in
52a
Appendix B
Wyman v. James, supra). Indeed, one might argue that the fact
that a physician is apparently in charge, and that thisis “only” a
ten-day institutionalization subject to a court review makes ita
“reasonable” civil entry, without requiring the formal protection
of a warrant. Seee.g. Note, Rehabilitation, Investigation, and the
Welfare Home Visit, 79 Yale L.J. 746 (March 1971).
I disagree. Although a certified physician or psychologist
might be uniquely qualified to evaluate the emotional condition
of a patient, he or she is not qualified to determine whether
probable cause exists to support an unconsented entry of an
individual's home or seizure of an individual. The Constitution
specifically imparts that responsibility to the judiciary.
Thompson v. Louisiana, 469 U.S. 17, 19-20 (1984) (per curiam)
(quoting Katz v. United States, 389 U.S. 347, 357 (1967)
(footnotes omitted)); Mincey v. Arizona, 437 U.S. 385, 390
(1978); see also United States v. Place, 462 U.S. 696, 701 (1983).
Moreover, the agents of the doctors in this case are police
officers with guns and batons, not hospital orderlies and nurses.
There is no therapeutic relationship which a warrant mechanism
might disrupt. That disruption has already occurred once the
police — unaccompanied by physicians or health personnel —
seek a forcible entry and seizure. In fact, the parties constantly
referred to the service of the commitment order as a “police
matter.” In any case, to the person whose home is broken into, to
the neighbors who watch her dragged from her home screaming
and struggling, the words “medical” or “therapeutic” would
seem to be a misnomer.”
10. In fact, substantial privacy issues would arise if a civil commitment
order were served when the subject was at the home of another, who does not
consent to entry. See Steagald v. United States, 451 U.S. 204 (1981) (requiring a
search warrant for a third person's home to effect an arrest of a suspect located
therein).
53a
Appendix B
In effect, Lynn suggests that a physician’s blessing
somehow strips a putative mental patient of the safeguards of the
Fourth Amendment, a result that would be untenable. As the
experience of the former Soviet Union suggests, coerced
hospitalization, ostensibly because of mental illness, is uniquely
susceptible to abuse. Indeed, Massachusetts was one of the
innovators in identifying the risks to individual liberty and
dignity in the civil commitment process. The legislature
achieved this by hedging the statute with strict safeguards — that
the order of commitment be temporary unless certain standards
are met, that the order be subject to periodic judicial review —
and that a warrant be required under certain circumstances. I
believe that this case is one of them."
E. There Were no Exigent Circumstances Justifying
Dispensing with the Warrant Requirement
There were no exigent circumstances in this case, justifying
the suspension of the warrant requirement. The test for
determining the presence of exigent circumstances which would
suspend the warrant requirement “is whether there is such a
compelling necessity for immediate action as will not brook the
delay of obtaining a warrant.” United States v. Adams, 621 F.2d
41,44 (1st Cir. 1980). The burden of proving the necessity for a
warrantless search is on the Government, and that burden is a
substantial one. Welsh v. Wisconsin, 466 U.S. 740, 750 (1983).
The determination of exigent circumstances rests on “the
11. The statute does not mandate a different interpretation. Indeed, a
saving constitutional interpretation is entirely consistent with the statutory
framework. A warrant would be required whenever it is clear that the “pink
paper” will not be voluntarily complied with, that police officers will be
involved, and force is threatened.
54a
Appendix B
gravity of the underlying offense; whether delay poses a threat to
police or the public safety; whether there is a great likelihood that
evidence will be destroyed if there is delay until a warrant can be
obtained.” United States v. Curzi, 867 F.2d 36, 41-42 (1st Cir.
1989) (quoting United States v. Veillette, 778 F.2d 899, 902 (ist
Cir. 1985)). See also United States v. Wilson, 36 F.3d 205, 209-
210 (1st Cir. 1994) (finding exigent circumstances to enter an
apartment in housing development and seize contraband).
The only exigent circumstances that the City points to are
those underlying the civil commitment order itself: (1) that the
statute requires that an order may only be issued “so as to avoid
the likelihood of serious harm by reason of mental illness” ; and
(2) that Dr. Barden’s application specifically notes that Ms.
Zinger is dangerous to others.
According to the depositions submitted, the application for
an involuntary order of commitment for Ms. Zinger was
completed by Dr. Barden on September 6, 1989. Constable
Jackson arranged for the application to be taken from Dr.
Barden’s office to the Lynn Police station on the next day.
Jackson discussed the situation with Captain Csuka, informing
the officer that he would be conducting the eviction proceeding
at 1:00 p.m. Csuka agreed to that hour and informed Jackson that
he would have Lynn Police Officers meet Jackson at 11 Nichols
Avenue to serve the commitment order. At 10:30 a.m., Csuka,
true to his word, ordered Sergeant Donnelly to meet Jackson at
the premises at 1:00 p.m. to serve the order. Csuka further
informed Donnelly that the officers serving the order might have
to force their way into Zinger’s home.
The presence of Dr. Barden’s application for the order of
involuntary commitment did not amount to exigent
55a
Appendix B
circumstances justifying the forced warrantless entry into
Zinger’s home. To the contrary, the Lynn Police acted with
leisure in arranging aconvenient time to effectuate the service of
the involuntary commitment order. The determinative issue was
convenience, dovetailing the service of the commitment order
with the service of the eviction papers. As Justice Jackson stated
in McDonald v. United States:
When an officer undertakes to act as his own
magistrate, he ought to be in a position to
justify it by pointing to some real immediate
and serious consequences if he postponed
action to get a warrant.
335 U.S. 451, 459-460 (1948). No such consequences were
present here.
Based upon Constable Jackson's prior attempts to serve the
eviction process the officers had no indication that waiting a few
hours would present an immediate threat to either Ms. Zinger or
the community. Moreover, since the officers already had
information that Ms. Zinger would not let them into her home,
they could have presented that information and the involuntary
commitment order to a magistrate prior to their attempt to serve
the order at 1:00 p.m. Instead, the officers (following City
policy) chose to break into Zinger’s home to serve the civil
commitment order. Therefore, no emergency situation existed
which would justify the officers’ entry into Zinger’s home
without a warrant. See, Suss v.A.S.P.C.A.,823 F.Supp. 181, 187-
188(S.D.NY 1993) (finding no exigent circumstances to justify
ASPCA breaking into a business to rescue a cat trapped in
adjoining alley). Accordingly, the plaintiff's cross motion for
summary judgment against the City of Lyanis GRANTED .
56a
Appendix B
Vv. DEFENDANTS MARTICIO AND RANDO
Defendants Marticio and Rando argue that M.G.L. ch. 111C
§ 14 grants emergency medical technicians immunity from
liability and therefore they are entitled to judgment as a matter of
law. M.G.L. ch. 111C § 14 states in relevant part:
No emergency medical technician certified
under the provisions of this Chapter’? and no
police officer or fire fighter, who in the
performance of his duties and in good faith
renders emergency first aid or transportation
to an injured person or to a person
incapacitated by illness shall be personally in
any way liable as a result of rendering such
aid or as a result of transporting such person
to a hospital or other safe place.
(emphasis added). The issue here is whether Rando and Marticio
acted in good faith when they “treated” Zinger.
The defendants are entitled to a presumption in favor of
good faith. Spiegal v. Beacon Participations, Inc., 297 Mass.
398, 416-417 (1937); Ramos v. Board of Selectmen of Nantucket,
16 Mass.App.Ct. 308, 314 (1983). In Ramos, the court described
bad faith as:
[A] general and somewhat indefinite term. It
has no constricted meaning. It cannot be
defined with exactness. It is not simply bad
judgment. It is not merely negligence. It
imports a dishonest purpose or some moral
obliquity. It implies conscious doing of
wrong. It means a breach of a known duty
12. Both Rando and Marticio were certified emergency medical
technicians at the time of the incident.
57a
Appendix B
through some motive of interest or ill will. It
partakes of the nature of fraud.
Ramos, 16 Mass. App.Ct. at 314.
Here, the plaintiff offered testimony that Ms. Zinger was left
unattended, lying face down on a stretcher handcuffed behind
her back, that the EMTs never interceded concerning the way in
which she was being restrained by the police and never
monitored her medical condition. Under these circumstances,
the plaintiff satisfied its burden and overcame the presumption
of good faith sufficient to create a material issue of fact as to
whether defendants Rando and Marticio acted in good faith and
are therefore entitled to the protection of M.G.L. ch. 111C § 14."
Accordingly, defendants Rando and Marticio’s motion for
summary judgment is hereby DENIED.
VI. CONCLUSION
For the foregoing reasons, the defendants’ motion for
summary judgment is hereby DENIED and the plaintiff's cross
motion for summary judgment against the City of Lynn is hereby
GRANTED.
SO ORDERED.
Dated: February 2, 1995 s/ Nancy Gertner
NANCY GERTNER, U.S.D.J.
13. In other jurisdictions which have a “good samaritan” statute similar to
M.G.L. ch. 111C § 14, the issue of whether the EMTs acted in good faith was a
matter of fact reserved for the jury. Wright v. City of Los Angeles, 219
Cal.App.3d 318, 346-347 (2d. Dist., 1990) (affirming jury's award of damages
against paramedics for gross negligence).
58a
APPENDIX C — RELEVANT CONSTITUTIONAL
PROVISION AND STATUTES INVOLVED
CONSTITUTION OF
THE UNITED STATES OF AMERICA-1787
ARTICLE [IV.]
The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons
or things to be seized.
42 U.S.C. § 1983
§ 1983. Civil action for deprivation of rights
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges,
or immunities secured by the Constitution and laws, shall be
liable to the party injured in an action at law, suit in equity, or
other proper proceeding for redress. For the purposes of this
section, any Act of Congress applicable exclusively to the
District of Columbia shall be considered to be a statute of the
District of Columbia.
59a
Appendix C
MASS. GEN. L. CH. 123
123:1. Definitions.
Section 1. The following words as used in this section and
sections two to thirty-seven, inclusive, shall, unless the context
otherwise requires, have the following meanings:
“Commissioner”, the commissioner of mental health.
“Department”, the department of mental health.
“Dependent funds”, those funds which a resident is unable
to manage or spend himself as determined by the periodic
review.
“District court”, the district court within the jurisdiction of
which a facility is located.
“Facility”, a public or private facility for the care and
treatment of mentally ill persons, except for the Bridgewater
State Hospital.
“Fiduciary”, any guardian, conservator, trustee,
representative payee as appointed by a federal agency, or other
person who receives or maintains funds on behalf of another.
“Funds”, all cash, checks, negotiable instruments or other
income or liquid personal property, and governmental and
private pensions and payments, including payments pursuant to
a Social Security Administration program.
“Independent funds”, those funds which aresident is able to
manage or spend himself as determined by the periodic review.
60a
Appendix C
“Likelihood of serious harm”, (1) a substantial risk of
physical harm to the person himself as manifested by evidence
of, threats of, or attempts at, suicide or serious bodily harm, (2)
a substantial risk of physical harm to other persons as manifested
by evidence of homicidal or other violent behavior or evidence
that others are placed in reasonable fear of violent behavior and
serious physical harm to them; or (3) a very substantial risk of
physical impairment or injury to the person himself as
manifested by evidence that such person’s judgment is so
affected that he is unable to protect himself in the community and
that reasonable provision for his protection is not available in the
community.
“Qualified physician”, a physician whois licensed pursuant
to section two of chapter one hundred and twelve who is
designated by and who meets qualifications required by the
regulations of the department, provided that different
qualifications may be established for different purposes of this
chapter. A qualified physician need not be an employee of the
department or of any facility of the department.
“Qualified psychologist”, a psychologist who is licensed
pursuant to sections one hundred and ei ghteen to one hundred
and twenty-nine, inclusive, of chapter one hundred and twelve
who is designated by and who meets qualifications required by
the regulations of the department, provided that different
qualifications may be established for different purposes of this
chapter. A qualified psychologist need not be an employee of the
department or of any facility of the department.
“Restraint”, bodily physical force, mechanical devices,
chemicals, confinement in a place of seclusion other than the
placement of an inpatient or resident in his room for the night, or
6la
Appendix C
any other means which unreasonably limit freedom of
movement.
“Superintendent”, the superintendent or other head of a
public or private facility.
123.12. Emergency restraint of dangerous persons;
application for hospitalization examination.
Section 12. (a) Any physician who is licensed pursuant to
section two of chapter one hundred and twelve or a qualified
psychologist licensed pursuant to sections one hundred and
eighteen to one hundred and twenty-nine, inclusive of said
chapter one hundred and twelve, who after examining a person
has reason to believe that failure to hospitalize such person
would create a likelihood of serious harm by reason of mental
illness may restrain or authorize the restraint of such person and
apply for the hospitalization of such person for a ten day period
at a public facility or at a private facility authorized for such
purposes by the department. If an examination is not possible
because of the emergency nature of the case and because of the
refusal of the person to consent to such examination, the
physician or qualified psychologist on the basis of the facts and
circumstances may determine that hospitalization is necessary
and may apply therefore. In an emergency situation, if a
physician or qualified psychologist is not available, a police
officer, who believes that failure to hospitalize a person would
create a likelihood of serious harm by reason of mental illness
may restrain such person and apply for the hospitalization of
such person for a ten day period at a public facility or a private
facility authorized for such purpose by the department. An
application for hospitalization shall state the reasons for the
restraint of such person and any other relevant information
el
62a
Appendix C
which may assist the admitting physician or physicians.
Whenever practicable, prior to transporting such person, the
applicant shall telephone or otherwise communicate with a
facility to describe the circumstances and known clinical history
and to determine whether the facility is the proper facility to
receive such person and also to give notice of any restraint to be
used and to determine whether such restraint is necessary.
(b) Only if the application for hospitalization under the
provisions of this section is made by a physician specifically
designated to have the authority to admit to a facility in
accordance with the regulations of the department, shall such
person be admitted to the facility immediately after his
reception. If the application is made by someone other than a
designated physician, such person shall be given a psychiatric
examination by a designated physician immediately after his
reception at such facility. If the physician determines that failure
to hospitalize such person would create a likelihood of serious
harm by reason of mental illness he may admit such person to the
facility for care and treatment.
(c) No person shall be admitted to facility under the
provision of this section unless he, or his parent or le gal guardian
in his behalf, is given an opportunity to apply for voluntary
admission under the provisions of paragraph (a) of section ten
and unless he, or such parent or legal guardian has been informed
(1) that he has aright to such voluntary admission, and (2) that the
period of hospitalization under the provisions of this section
cannot exceed ten days. At any time during such period of
hospitalization, the superintendent may discharge such person
if he determines that such person is not in need of care and
treatment.
63a
Appendix C
(d) Aperson shall be discharged at the end of the ten-day
period unless the superintendent applies for acommitment under
the provisions of sections seven and eight of this chapter or the
person remains on a voluntary status.
(e) Any person may make application to a district court
justice for a ten day commitment to a facility of a mentally ill
person whom the failure to confine would cause a likelihood of
serious harm. After hearing such evidence as he may consider
sufficient, a district court justice may issue a warrant for the
apprehension and appearance before him of the alleged mentally
ill person, if in his judgement the condition or conduct of such
person makes such action necessary or proper. Following
apprehension, the court shall have the person examined by a
physician designated to have the authority to admit to a facility
or examined by a qualified psychologist in accordance with the
regulations of the department. If said physician or qualified
psychologist reports that the failure to hospitalize the person
would create a likelihood of serious harm by reason of mental
iliness, the court may order the person committed toa facility for
a period not to exceed ten days, but the superintendent may
discharge him at any time within the ten day period.
64a
APPENDIX D — APPLICATION FOR TEMPORARY
HOSPITALIZATION
Department of Mental Health
Provisional Form 5A, July 1, 1971
Effective November 1, 1971
COMMONWEALTH OF MASSACHUSETTS
APPLICATION FOR TEMPORARY HOSPITALIZATION
(Ref. Section 12, Chapter 123, General Laws)
To the Superintendent of the Tri-City Mental Health Hospital.
[hereby apply for care in the above hospital for a period not
exceeding ten days of Ruhlya [sic] Zinger who, in my opinion
requires hospitalization so as to avoid the likelihood of serious
harm* by reason of mental illness, *..... I have/have not
personally examined said person. Evidence supporting my
opinion includes:
[Patient] has a [history] of mental illness and she was
hospitalized at Danvers [State] Hospital couple of years ago.
[Patient] is very angry and hostile; she is very impulsive and
explosive. She made threats to harm her ex-husband. [Patient]
is dangerous to others.
The following additional information is submitted:
1. Personal data regarding patient
a. Sex female
b. Address (street, town, state) 1] Nichols Ave. Lynn, MA
65a
Appendix D
c. Birthdate (month, day, year)
d. Birthplace Lynn [sic]
e. Occupation Retired
f. Soc.Sec.No. Unknown
g. Marital state (underline): Never married, married,
remarried, separated, divorced, widowed.
h. Place andtime of most recent psychiatric or retardation
care (if none, so state): None
i. Priorcare at this hospital (underline): yes. no.
j. Name, address, and telephone number of husband,
wife, nearest relative, or friend:
2. Other relevant data which may assist the admitting
physician, including medical, medication administered and
reasons for restraint:
May restrain PRN
Signed s/ Yakov Barden Applicant
Print or type name of applicant:
s/ Yakov Barden,
Address: Tri-City Crisis
Lynn
66a
Appendix D
Capacity of Applicant (underline):
Licensed Physician, Police Officer,
Qualified Physician.
Date 9/06/89 19__
* The Definition of “likehood of serious harm” which in association with
mental illness justifies involuntary retention in a mental health or retardation
facility is as follows (G.L. 123 Sect. 1):
(1) “Substantial risk of physical harm to the person
himself as manifested by evidence of threats of, or
attempts at, suicide or serious bodily harm,
(2) asubstantial risk of physical harm to other persons
as manifested by evidence of homicidal or other
violent behavior or evidence that others are placed in
reasonable fear of violent behavior and serious
physical harm to them; or
(3) avery substantial risk of physical impairment or
injury to the person himself as manifested by evidence
that such person's judgement is so affected that he is
unable to protect himself in the community and that
reasonable provision for his protection is not available
in the community.”
67a
APPENDIX E — STATE CIVIL COMMITMENT STATUTES
AUTHORIZING SEIZURE PURSUANTTOCERTIFICATION
BY MENTALHEALTH PROFESSIONALS
ALASKA STAT. § 47.30.705 (1995);
ARIZ. REV. STAT. ANN. § 36-524 (1993);
CAL. WELFARE AND INSTITUTIONS CODE § 5150 (West
1984);
COLO. REV. STAT. ANN. § 27-10-105 (West 1990);
CONN. GEN. STAT. ANN. § 17a-502 (West 1992);
FLA. STAT. ANN. § 394.463 (West 1993);
GA. CODE ANN. § 37-3-41 (1995);
ILL. ANN. STAT. ch. 405, paras. 5/3-601, 5/3-602, 5/3-605
(Smith-Hurd 1993);
LA. REV. STAT. ANN. § 28:53 (West 1989);
MD. CODE ANN., HEALTH-GENERAL § 10-622 (1994);
MICH. COMP. LAWS ANN. §§ 330.1423, .1425, .1427 (West
1992);
NEB. REV. STAT. §§ 83-1024, 1026, 1028 (1995);
NEV. REV. STAT. §§ 433A.150, .160 (1991);
N.M. STAT. ANN. § 43-1-10 (Michie 1993);
1
68a
Appendix E
N.Y. MENTAL HYGIENE LAW § 9.27 (McKinney 1996);
N.D. CENT. CODE § 25-03.1-25 (1995);
OR. REV. STAT. ANN. § 426.233 (1993);
PA. STAT. ANN. tit. 50, § 7302 (Cum. Supp. 1995);
R.I. GEN. LAWS § 40.1-5-7 (1990);
S.C. CODE ANN. § 44-17-410 (Law Co-op. 1985 & Supp.
1995); S.D. CODIFIED LAWS ANN. § 27A-10-1, 10-2 (1992);
UTAH CODE ANN. § 62A-12-232 (1993);
VT. STAT. ANN. tit. 18, § 7504 (1987);
WASH. REV. CODE ANN. § 71.05.160 (West 1992);
W. VA. CODE § 27-5-2 (1992).
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.