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.

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