USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 95-1731
MARY McCABE, ETC.,
Plaintiff, Appellee,
v.
LIFE-LINE AMBULANCE SERVICE, INC.,
Defendants, Appellees,
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THE CITY OF LYNN,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nancy Gertner, U.S. District Judge]
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Cyr, Boudin and Stahl,
Circuit Judges.
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Charles M. Burnim, with whom Michael J. Barry and George S.
_________________ ________________ _________
Markopoulos were on brief for appellant.
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Charles M. Campo, Jr., with whom Floyd H. Anderson and Kassler &
_____________________ _________________ _________
Feuer, P.C. were on brief for appellee McCabe.
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February 29, 1996
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CYR, Circuit Judge. In this appeal by the City of Lynn
CYR, Circuit Judge.
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("City"), we consider whether an established City policy, permit-
ting 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, administra-
trix 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
I
BACKGROUND
BACKGROUND
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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 apart-
ment, thereby prompting her family to initiate eviction proceed-
ings against her.1 Subsequently, on September 6, 1989, a li-
censed psychiatrist, Dr. Jakov Barden, signed an application
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1Ms. Zinger's former husband and their children owned the
building in which Ms. Zinger's apartment was located.
2
[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 consta-
ble and the Lynn police officers arranged to meet at the Zinger
apartment building at 1:00 p.m., to execute 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,
3
the officers told her that 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 removing her from the
apartment, Ms. Zinger suffered a cardio-respiratory arrest and
died.2
After McCabe, as administratrix, instituted this civil
rights action under 42 U.S.C. 1983 against the City, amongst
others,3 in September 1992, an amended complaint alleged an
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2The 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.
3The 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,
4
established City policy permitting police officers to execute
pink papers by means of forcible, warrantless entries into
private residences absent demonstrable exigent circumstances, and
that this City policy proximately caused an actionable depriva-
tion of Ms. Zinger's Fourth Amendment right to be free from
unreasonable searches.4 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.
II
II
DISCUSSION
DISCUSSION
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A. District Court Opinion
A. District Court Opinion
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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
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the claims against the four police officers, the constable, and
the ambulance crew were dismissed, without prejudice, by stipula-
tion.
4By 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.
5
entry was necessary. Id. 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
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to the lives and safety of the police officers, or members of the
public, often give rise to exigent circumstances justifying an
immediate warrantless entry, the court found that "the Lynn
police acted with leisure in arranging a convenient time" to
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serve the pink paper upon Ms. Zinger, thereby belying any conten-
tion that "'some real[,] immediate or serious consequences [would
occur] if [the officers] postponed action to get a warrant.'"
Id. 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. Id. 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. at 61. Second, "the agents of the
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doctors in this case are police officers with guns and batons,
not hospital orderlies and nurses," so that "[t]here is no
6
therapeutic relationship which a warrant mechanism would dis-
rupt." Id.
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B. Standard of Review
B. Standard of Review
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We review a grant of summary judgment de novo, to
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determine whether "the pleadings, depositions, answers to inter-
rogatories, 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 a judgment as a
matter of law." Fed. R. Civ. P. 56(c); see Velez-Gomez v. SMA
___ ___________ ___
Life Assurance Co., 8 F.3d 873, 874-75 (1st Cir. 1993). All
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competent evidence and reasonable inferences therefrom are viewed
in the light most favorable to the party resisting summary
judgment. Id.
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C. Applicable Law
C. Applicable Law
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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).
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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
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U.S. 709, 715 (1987) ("[B]ecause the individual's interest in
7
privacy and personal security `suffers whether the government's
motivation is to investigate violations of criminal laws or
breaches of other statutory or regulatory 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
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civil proceedings in which the Fourth Amendment applies are
involuntary commitment proceedings for dangerous persons suffer-
ing 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.
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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, 439-
___ ____ __________
40 (1973); Wyman v. James, 400 U.S. 309, 318 (1971); Camara v.
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Municipal Ct. of San Francisco, 387 U.S. 523, 538 (1967).
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Nonconsensual entries by government agents into a residence
without a search or arrest warrant5 are presumptively "unreason-
able" under the Fourth Amendment. See Welsh v. Wisconsin, 466
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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
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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.
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573, 603 (1980). But see Steagald v. United States, 451 U.S. 204,
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214 (1981) (noting that the "arrest warrant" rule is inapplicable
where suspect is within another person's residence).
8
Cir.), cert. denied, 116 S. Ct. 675 (1995). This presumption is
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designed to safeguard the special privacy expectations tradition-
ally recognized in the American home by requiring that a "neu-
tral" and detached judicial officer make an independent assess-
ment as to whether law enforcement agents have probable cause to
effect an intended search or arrest within the home. See Stea-
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gald 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 circum-
stances": (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.3d 965, ___ (1st Cir. 1995) [Nos. 94-1714 & 2221, 1995 WL
757848, at *3 (Dec. 29, 1995)]; Hegarty, 53 F.3d at 1374.
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Normally, "exigent circumstances" exceptions by their very
nature turn upon the objective reasonableness of ad hoc, fact-
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specific assessments contemporaneously made by government agents
in light of the developing circumstances at the scene of the
search. See id. at 1378.
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Second, a residential search pursuant to an established
9
warrantless search procedure may be reasonable if conducted in
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furtherance of an important administrative or regulatory purpose,
or "special need," which would be undermined systemically by an
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impracticable warrant or probable-cause requirement. Griffin v.
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Wisconsin, 483 U.S. 868, 873 (1987) ("[W]e have permitted excep-
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tions when `special needs, beyond the normal need for law en-
forcement, make the warrant and probable-cause requirement
impracticable.'") (citation omitted). See, e.g., id. (upholding
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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
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warrantless searches of employees' work space to recover work-
related materials may be "reasonable" in particular circumstanc-
es); T.L.O., 469 U.S. at 325 (holding that warrantless in-school
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searches of students' personal property by public school offi-
cials did not violate Fourth Amendment); United States v. Car-
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dona, 903 F.2d 60 (1st Cir. 1990) (extending Griffin to parole
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officers' warrantless searches of parolees' residences), cert.
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denied, 498 U.S. 1049 (1991); cf. Wyman, 400 U.S. at 309 (holding
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that social worker's warrantless visitation to welfare recip-
ient's home did not implicate Fourth Amendment). The reasonable-
ness of a particular "special need" search procedure will depend,
of course, on whether the court's "careful balancing of govern-
mental 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.
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10
D. Alleged "Deprivation"
D. Alleged "Deprivation"
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Turning to the initial hurdle confronting McCabe under
1983, see Monell, 436 U.S. at 694, we must determine whether
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the undisputed evidence demonstrates that the warrantless,
forcible entry of the Zinger residence by the Lynn police consti-
tuted 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 a case. The cases cited by the City consider
whether a seizure of the person effected pursuant to an involun-
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tary commitment statute violates the due process requirements of
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the Fifth and Fourteenth Amendments,6 or whether the manner in
which the government detains a person violates the Fourth Amend-
ment prohibition against unreasonable seizures.7 Nonetheless,
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6See, 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).
7See Moore v. Wyoming Medical Ctr., 825 F. Supp. 1531, 1535,
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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
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Glass, 984 F.2d at 58 (holding that the committing physicians
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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
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Amendment and due process implications arising from prolongation
11
to the extent the 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 per se "exigent" since a pink paper
___ __
can 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
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of involuntary commitment, or seizure of the person, without
independent judicial 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 constitu-
tional foundation is lacking. See Cardona, 903 F.2d at 64
___ _______
(rejecting similar attempt to draw "entirely artificial distinc-
tion[s] between `search' jurisprudence and `seizure' jurispru-
dence"). 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 Vil-
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lanova, 972 F.2d at 795 ("There is no requirement of a warrant
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issued by a judicial officer [to seize the person subject to a
commitment order]."), thus constituting a valid pink paper the
practical equivalent of an arrest warrant, see supra note 5; cf.
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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.
12
detaining the resistant subject is necessary to avert the "seri-
ous harm" 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 McCabe points out
that none of the four recognized "exigent circumstances," see
___
supra p. 10, was plainly present immediately before the forcible
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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,8 falls squarely
within a recognized class of systemic "special need" searches
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8Contrary 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
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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 Bor-
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danaro, 871 F.2d at 1156-57 (observing that the event itself is
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evidence that police officers acted in accordance with municipal
policy).
13
which are conducted without warrants in furtherance of important
administrative purposes. Again, the fundamental concern of
Fourth 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'Con-
___ ____ ___ ____ ______
nor, 480 U.S. at 719; T.L.O., 469 U.S. at 337. "Reasonableness,"
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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. Vil-
___ ______ _______ ___ ____
lanova, 972 F.2d at 796. On balance, we find that the City
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policy permitting forcible, warrantless entries by police offi-
cers 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
1. State's "Administrative" Interest
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(a) Parens Patriae and Police Power
(a) Parens Patriae and Police Power
_______________________________
The legitimacy of the State's parens patriae and
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"police power" interests in ensuring that "dangerous" mentally
ill persons not harm themselves or others is beyond dispute. See
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Rogers v. Okin, 634 F.2d 650, 654 (1st Cir. 1980), rev'd on other
______ ____ _____ __ _____
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
14
others may be extremely serious, sometimes including death or
bodily injury. Thus, we think it is 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.,
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O'Connor, 480 U.S. at 724 (noting: because "public employees 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 reason-
able[,]" 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 indus-
try"); T.L.O., 469 U.S. at 339 ("Against the child's interest in
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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 proce-
dures 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
___ ___
15
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).9 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.
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 commit-
ment 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 sign a
"pink paper" authorizing law enforcement
officials to restrain that person to
permit hospitalization for up to a ten-
day period;
(2) in an "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 "likeli-
hood of serious harm";
(3) in an "emergency situation," a police
officer may restrain a person he be-
lieves creates a "likelihood of serious
harm," if no qualified physician, psy-
____________________
9Thus, a "mental illness" determination alone is insuffi-
cient 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).
16
chologist, or psychiatric nurse is a-
vailable to sign a pink paper; or
(4) at any time, any person may apply to the
district or juvenile courts for a com-
mitment order, and after a hearing, the
court may issue a warrant for the appre-
hension and appearance of the person who
creates a "likelihood of serious harm."
Mass. Gen. Laws Ann. ch. 123, 12(a); see infra Appendix, for
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text; see generally Rockwell v. Cape Cod Hosp., 26 F.3d 254, 258-
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60 (1st 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 exclusively 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]
17
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 oth-
ers.
The involuntary commitment application, and the Massachusetts
statute, define "likelihood of serious harm" the governing
criterion for commitment as:
(1) a substantial risk of physical harm to
the person [her]self as manifested by evi-
dence 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 mani-
fested by evidence that such person's judg-
ment is so affected that [s]he is unable to
protect [her]self 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 Hospi-
tal, 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 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, 1538 n.4, 1546 (D. Wyo. 1993). Given the notori-
18
ous 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 exclu-
sive purpose of detaining a recalcitrant and dangerous mentally
ill person pursuant to a 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 harm to themselves or others.
(b) Practicality of Warrant Requirement
(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
19
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 inter-
est 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 govern-
mental 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 "danger-
ousness" 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
"dangerousness" alluded to in the assessment made by Dr. Barden.
Although this argument might hold sway were the constitutionality
20
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 view-
point distorts Griffin's "impracticability"
_______
prong. In Griffin, the Court inquired into
_______
the systemic impracticability of compelling
________ ________________
those involved in implementation of a proba-
tion regime to obtain warrants. The imprac-
ticability of obtaining a warrant in the
particular case did not enter into the equa-
__________ ____
tion; indeed, Justice Blackmun argued unsuc-
cessfully for much the same sort of particu-
larized inquiry . . . . Whether it was feasi-
ble 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 omit-
_______
ted).10 Although the Fourth Amendment warrant requirement
____________________
10There is no record evidence that the challenged City
policy required officers to execute pink papers within a speci-
fied time. In all events, however, 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 under-
mine a predicate finding that the subject posed a real "likeli-
hood of serious harm" at the time the finding was made.
21
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 "unrea-
sonable" 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" proce-
dure 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
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 "[o]ur
____ _______
discussion pertains to the reasons generally supporting the
proposition that the search decision should be left to the
22
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 responsi-
ble 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 ratio-
nal decisionmaking 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., diagno-
ses 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 or a
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 in a commitment 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
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
________
23
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 work-related reasons."); Wyman, 400
_____
U.S. at 324 (in the home-visitation setting, "the warrant argu-
ment is out of place" since, as a practical matter, "probable
cause" is more than an agency seeks or needs to know).11
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
____________________
11It is largely irrelevant whether the "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 pub-
lic interest is best served by a Fourth A-
mendment 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 reason-
able 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 irre-
______
ducible requirement of a valid search. The fundamental command
of the Fourth Amendment is that searches and seizures be reason-
able, 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).
24
physician has not examined the patient and must rely on second-
hand reports as to the subject's physical, emotional and behav-
ioral 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.12 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 latent unreliability in
______
the foundational evidence (e.g., possible ulterior family motives
or antipathy toward the patient) upon which expert psychiatric
evaluations are based, the resulting delays in implementing
____________________
12The other statutory safeguards would not forestall improp-
er 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 commit-
ment decision), 12(d); Commonwealth v. Nassar 406 N.E.2d 1286,
____________ ______
1290-91 (Mass. 1980).
25
involuntary commitment orders could have far more serious conse-
quences 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 superimpos-
ing 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 Mentally Ill
2. The Interests of the Mentally 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.O., 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
___ _____
26
infringement of her liberty interest to be free from any unrea-
sonable governmental restraint attending the subsequent seizure
of her person.
(a) Civil Context
(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 proce-
dure is not designed to gather information in a criminal investi-
gation, 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 work-related 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 re-
flected 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
_________
27
case, McCabe has not suggested that the challenged entry of the
Zinger residence was effected for any criminal law purpose, or
any regulatory purpose other than to enable her temporary hospi-
talization and the psychiatric examination she adamantly refused.
(b) Impartiality of Decisionmaker
(b) Impartiality of Decisionmaker
_____________________________
Finally, it is most significant in the present context
that the official decision to initiate an involuntary "category
2" commitment rests with a licensed psychiatric physician, not
with law enforcement officials. See Steagald, 451 U.S. at 212
___ ________
(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 relationship 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 "danger-
28
ousness" 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 ("Al-
__ ____ _______
though 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 exer-
cised any influence, direct or indirect, over the medical-psychi-
atric decision to issue the pink paper. Cf. T.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 nurs-
es," so that "[t]here is no therapeutic relationship which a
warrant mechanism would disrupt." McCabe, 875 F. Supp. at
______
61.13 Whether an administrative search procedure leaves too
____________________
13Although 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
29
much discretion to law enforcement officers in the field is a
recurring Fourth Amendment concern. See, e.g., Camara, 387 U.S.
___ ____ ______
at 532-33 ("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 serve as
the agents who implement the authorizing physician's decision to
approve a category 2 search does not necessarily mean that the
procedure is not within the "special need" category:
[W]e fail to see any constitutional signifi-
cance in the fact that police officers, rath-
er than "administrative" agents, are permit-
ted 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 tradi-
tional police work. . . . As a practical
matter, many States do not have the resources
____________________
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 physi-
cians 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 situation 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.").
30
to assign the enforcement of a particular
administrative scheme to a specialized agen-
cy. So long as a regulatory scheme is prop-
erly administrative, it is not rendered ille-
gal by the fact that the inspecting officer
has the power to arrest individuals for vio-
lations 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 [Grif-
______ _______ _____
fin] Court did not lend any special salience to the identity of
___
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 require-
ment in the particular setting presented in this case. Accord-
ingly, 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.
III
III
CONCLUSION
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
31
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 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.
32
Since the challenged City policy comports with the
"special need" exception to the Fourth Amendment warrant require-
ment, 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 offi-
cers, 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
The district court judgment is reversed and the case is
_______________________________________________________
remanded to the district court for further proceedings consistent
remanded to the district court for further proceedings consistent
_________________________________________________________________
with this opinion; costs to appellant.
with this opinion; costs to appellant.
_____________________________________
33
APPENDIX
APPENDIX
Chapter 123, Section 12:
(a) Any physician who is licensed pursuant to
section two of chapter one hundred and twelve or quali-
fied psychiatric nurse mental health clinical special-
ist 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 twen-
ty-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 emer-
gency nature of the case and because of the refusal of
the person to consent to such examination, the physi-
cian, qualified psychologist or qualified psychiatric
nurse mental health clinical specialist on the basis of
the facts and circumstances may determine that hospi-
talization 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 transport-
ing such person, the applicant shall telephone or
otherwise communicate with a facility to describe the
circumstances and known clinical history and to deter-
mine 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.
....
34
(e) Any person may make application to a district
court justice or a justice of the juvenile court de-
partment 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 or a justice of the juvenile court de-
partment 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 authori-
ty to admit to a facility or examined by a qualified
psychologist in accordance with the regulations of the
department. If said physician or qualified psycholo-
gist 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 commit-
ted 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.
35
