USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 95-1731

MARY McCABE, ETC.,

Plaintiff, Appellee,

v.

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.
___________

____________________

February 29, 1996

____________________

CYR, Circuit Judge.

CYR, Circuit Judge.
_____________

In this appeal by the City of Lynn

("City"), we consider whether an established City policy, permit-

ting

forcible,

warrantless

entries

of private

residences

enforce involuntary civil commitment orders, violates

Amendment to the United States Constitution.

granted summary judgment

trix of the

estate of

died in her Lynn home

Ruchla Zinger, a

an involuntary

against

her.

McCabe, administra-

Holocaust survivor

commitment order

the reasons

the Fourth

The district court

during a tragic attempt by City

execute

For

for plaintiff Mary

to

who

police to

which had

been issued

in this

opinion, we

discussed

conclude that the challenged City policy came within an exception

to the Fourth Amendment warrant requirement.

BACKGROUND
BACKGROUND
__________

Ms. Zinger, a 64-year-old Lynn, Massachusetts, resident

with a history of mental illness and psychiatric hospitalization,

as well as severe

attempts

She

obesity and high blood pressure,

at communication

refused to

former husband

neighbors

be examined

by a

with physical

by family

doctor after

members.

threatening her

harm and upsetting

her downstairs

by causing loud and violent disturbances in her apart-

ment, thereby prompting her

ings against her.1

censed

and intervention

resisted all

psychiatrist,

family to initiate eviction proceed-

Subsequently,

Dr.

on September 6,

Jakov Barden,

signed

1989, a

li-

an application

____________________

1Ms. Zinger's former husband and their children owned the

building in which Ms. Zinger's apartment was located.

[hereinafter:

of Ms.

"pink paper"] for a ten-day involuntary commitment

Zinger pursuant to Mass. Gen. Laws Ann. ch. 123,

based exclusively on the reports of family members

12(a),

and neighbors

as to Ms. Zinger's physical and behavioral symptoms.

The next

morning, Constable Kenneth

been unsuccessful in previous

Jackson, who

attempts to serve Ms. Zinger

had

with

an

eviction notice, and was

eviction

the

pink

against her at

paper had

scheduled to execute

1:00 p.m. that

been issued

afternoon, learned that

against

Ms. Zinger

before, and contacted the Lynn police department.

informed

the

Lynn police,

based

on

a judgment of

The

his experience

Zinger, that he believed she would resist committal.

ble

and the Lynn police officers arranged

apartment

building at 1:00 p.m.,

the night

constable

with

Ms.

The consta-

to meet at the Zinger

to execute the

pink paper and

the eviction order.

Three Lynn police officers and the constable arrived at

the Zinger apartment building

by

a crew from the

engaged to

at the appointed hour, accompanied

Life-Line Ambulance Service,

restrain Ms.

Zinger as necessary,

which had been

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

received no response, and

door.

Ms. Zinger

door?" then cracked

knocked and announced

their presence,

began to kick in the

Zinger apartment

began screaming

it open.

"Why are

you kicking

Identifying themselves

in my

as police,

the

officers told her

that they were

going to bring

her under

medical care, to which

she responded:

"No

When

began

to close the door,

Later, while

the officers

apartment, Ms.

doctors!"

the officers shoved

were forcibly

Zinger suffered a

she

their way inside.

removing her from

the

cardio-respiratory arrest

and

died.2

After

rights

McCabe, as administratrix, instituted this civil

action under 42 U.S.C.

others,3

in

September 1992,

1983 against

an

amended

the City, amongst

complaint alleged

an

____________________

2The only
City

is the forcible warrantless entry.

summary
claim

constitutional violation McCabe attributes to the

judgment, McCabe

did

not press

In her cross-motion for

her "excessive

force"

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
Ms.

and

Zinger began screaming, the officers forced her to the floor

on her

stomach and handcuffed

lost control of her bladder.

her

way into her apartment

down the

her hands behind

She

The ambulance crew refused to carry

stairs, asserting

that she

was too

officers then placed her in a sitting position.

gripping

her back.

heavy.

The

With one officer

her ankles and another holding her under her handcuffed

arms, she was

carried to the stairs, then

at a time while still

ambulance

dragged down one step

in a sitting position.

crew strapped her onto

At the bottom, the

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.
The original

See Fed. R. Civ. P. 54(b); 28 U.S.C.

___

ten-count complaint named as

1291.

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

Retardation Center where Dr.

claims

under

1983,

battery, and negligence.

the Tri-City Mental

Barden worked.

McCabe alleged

Health and

In addition

common-law

to her

assault

and

In June 1993, McCabe settled all claims

against the doctor and

the hospital.

jury returned verdicts against

In February

1995, after a

the City and Life-Line Ambulance,

established

pink

City policy

papers

by

means

permitting police

of forcible,

officers to

warrantless

execute

entries

into

private residences absent demonstrable exigent circumstances, and

that this

tion

of

City policy proximately caused

Ms. Zinger's

Fourth Amendment

an actionable depriva-

right

to be

free from

unreasonable

searches.4

After

granted the McCabe cross-motion

hearing,

63 (D. Mass.

1995).

district

court

for summary judgment against the

City on the issue of liability.

Supp. 53,

the

McCabe v. City of Lynn,

______
____________

In

the ensuing trial,

875 F.

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
__________

A.
A.

District Court Opinion

District Court Opinion
______________________

The district court found

the

that the City policy violated

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

____________________

the claims against the four

police officers, the constable,

and

the ambulance crew were dismissed, without prejudice, by stipulation.

4By
policy

contrast,

the initial

permitting the use of

complaint

had

alleged a

excessive force, and

train or supervise officers, in executing involuntary

seizures.

City

a failure to

commitment

entry

was necessary.

warrantless,

Id. at 58.
__

nonconsensual entries

presumptively "unreasonable"

exigent circumstances.

The district court noted that

into private

under the Fourth

Id. at 58-59.
___

residences are

Amendment, absent

Although imminent threats

to the lives and safety of the police officers, or members of the

public, often

immediate

police

give rise

warrantless

acted with

to exigent circumstances

entry, the

leisure in
_______

court

arranging

found

justifying an

that "the

a convenient

Lynn

time" to

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

absent exigent

applicable

search

district

court nonetheless

recognized

circumstances the warrant requirement

in certain

regulatory

procedures serve

contexts wherein

as invaluable

that even

may not be

warrantless

"administrative tool[s]"

and are "far less invasive" than searches directed at discovering

evidence

of crime.

factors which

Id.
___

at 59-60.

weighed against a ruling that

policy

came within

this

unlike

officer,

judicial

physicians authorized to

Ann.

ch. 123,

The court

12(a),

special regulatory

the

licensed

identified two

the challenged City

category.

First,

medical-psychiatric

issue pink papers under Mass. Gen. Laws

are "not qualified

to determine whether

probable cause exists."

doctors

not

in this case are

hospital

Id. at 61.
___

Second,

"the agents of the

police officers with

orderlies and

nurses,"

so

that

guns and batons,

"[t]here is

no

therapeutic

rupt."

Id.
___

relationship which

a warrant

mechanism would

dis-

B.
B.

Standard of Review
Standard of Review
__________________

We

review

a grant

of

summary judgment

de
__

novo, to
____

determine whether "the pleadings, depositions, answers to

inter-

rogatories, and admissions on file, together with the affidavits,

if any,

fact

show that there is

and that the

matter of

law."

no genuine issue as

moving party is

Fed. R.

Life Assurance Co.,

___________________

entitled to a

Civ. P. 56(c); see

___

8 F.3d

873, 874-75

to any material

judgment as a

Velez-Gomez v. SMA
___________
___

(1st Cir. 1993).

All

competent evidence and reasonable inferences therefrom are viewed

in the

light

judgment.

C.
C.

most

Id.
___

Applicable Law
Applicable Law
______________

favorable

to the

party

resisting

summary

A municipal liability claim under

1983 requires proof

that the municipality maintained a policy or custom which caused,

or was the

rights.

moving force behind, a deprivation

See, e.g., Oklahoma City

___ ____ _____________

of constitutional

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

searches

and seizures

Amendment applies not only

in criminal

various civil proceedings. See

_____
___

investigations, but

709, 715

also in

Soldal v. Cook County, Ill.,

______
_________________

U.S. 56, __, 113 S. Ct. 538, 548 (1992); O'Connor

________

U.S.

to governmental

(1987) ("[B]ecause

506

v. Ortega, 480
______

the individual's

interest in

privacy and

motivation

breaches

would

personal security `suffers whether

is

to investigate

of other statutory or

be `anomalous to say

property

are fully protected

violations

of

the government's

criminal laws

regulatory standards,' .

that the individual

by the Fourth

or

. . it

and his private

Amendment only when

the individual is suspected of criminal behavior.'") (quoting New

___

Jersey v.
______

civil

T.L.O., 469 U.S. 325, 335 (1985)).

______

proceedings

in which

the

Fourth

involuntary commitment proceedings

Included among the

Amendment applies

are

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.

1992).

The fundamental inquiry

whether a

particular search or search

in the circumstances.

40 (1973);

under the Fourth

U.S. 309, 318 (1971);

Municipal Ct. of San Francisco,

_________________________________

entries

procedure is "reasonable"

See Cady v. Dombrowski, 413 U.S. 433, 439___ ____

__________

Wyman v. James, 400

_____
_____

Nonconsensual

Amendment is

by

387

government

U.S.

agents

523,

538

into a

Camara v.
______

(1967).

residence

without a search or

able"

arrest warrant5 are presumptively "unreason-

under the Fourth Amendment.

See Welsh
___ _____

v. Wisconsin, 466
_________

U.S. 740, 748-49

(1984); Payton v. New York, 445 U.S.

______
_________

(1980);

v. Somerset County,
________________

Hegarty
_______

53 F.3d

1367,

573, 586

1373 (1st

____________________

5"[A]

[felony]

implicitly
dwelling
believe

arrest warrant

carries with
in

which the

the suspect is

it

founded

the limited

suspect lives
within."

authority

when

Payton
______

on probable

there is

cause

to enter

reason to

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).

Cir.), cert. denied, 116 S. Ct. 675 (1995).

_____ ______

This presumption

is

designed to safeguard the special privacy expectations tradition-

ally

recognized in the American

tral" and

ment

effect

gald
____

home by requiring

detached judicial officer make

that a "neu-

an independent assess-

as to whether law enforcement agents have probable cause to

an intended search or arrest

v. United States, 451 U.S.

______________

requirement is not

within the home.

204, 212 (1981).

absolute, of course, and the

be overcome in at least two ways.

See Stea___ _____

The warrant

presumption may

First, a

warrantless entry

and search of

a residence

may be "reasonable," in Fourth Amendment terms, if the government

can

demonstrate certain

stances":

(1)

imminent

"hot pursuit"

destruction of

threatened and

inside the

exceptional

types of

of a felon

evidence

residence; or (4) an

into a residence;

within the

potentially successful

"exigent circum-

(2)

residence; (3)

escape by a

suspect from

imminent threat to the

life or

safety of members of the public, the police officers, or a person

located

F.3d

965, ___

757848,

Normally,

nature

within the residence.

at

*3

(1st Cir.

(Dec. 29,

See United States

___ _____________

1995) [Nos.

1995)];

"exigent circumstances"

94-1714 &

Hegarty,
_______

exceptions

53

v. Tibolt, 72
______

2221, 1995

F.3d at

by

WL

1374.

their very

turn upon the objective reasonableness of ad hoc, fact__ ___

specific assessments contemporaneously made by

government agents

in

the scene

light of

search.

the developing

circumstances at

of the

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.

Wisconsin, 483 U.S. 868, 873 (1987) ("[W]e

_________

tions when `special

forcement,

make

impracticable.'")

needs, beyond

the

probationers'

O'Connor,
________

the normal need

for law

probable-cause

en-

requirement

e.g., id. (upholding

____ ___

prerogative to conduct

warrantless searches

homes for

480 U.S.

warrantless searches

related

and

have permitted excep-

(citation omitted). See,

___

probation officers'

of

warrant

Griffin v.
_______

at

evidence of

709 (noting

of employees'

probation infraction);

that government

work space to

employer's

recover work-

materials may be "reasonable" in particular circumstanc-

es); T.L.O., 469 U.S. at 325 (holding

______

searches of

students' personal

cials did not

dona,
____

property by public

violate Fourth Amendment);

903 F.2d 60 (1st

officers'

that warrantless in-school

United States v.
_____________

Cir. 1990) (extending

warrantless searches

school offi-

of parolees'

Car____

Griffin to parole
_______

residences), cert.
_____

denied, 498 U.S. 1049 (1991); cf. Wyman, 400 U.S. at 309 (holding
______
___ _____

that social

worker's warrantless

visitation

to welfare

ient's home did not implicate Fourth Amendment).

recip-

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

probable cause."

Amendment standard that

T.L.O., 469 U.S. at 341.

stops short of

______

10

D.
D.

Alleged "Deprivation"
Alleged "Deprivation"
_____________________

Turning to the initial

1983, see Monell,

___ ______

the

undisputed

hurdle confronting McCabe under

436 U.S. at 694,

evidence

demonstrates

we must determine whether

that

the

warrantless,

forcible entry of the Zinger residence by the Lynn police consti-

tuted

deprivation

Oddly, none

of the

of

decedent's

cases

the City

constitutionality of comparable

deals

straightforwardly

with

Fourth

cites

Amendment

as support

involuntary commitment

the

precise

issue

rights.

for

the

statutes

before

us:

whether a prescribed statutory search procedure (i.e., Mass. Gen.

Laws Ann. ch. 123,

it routinely

12(a)) violates the Fourth Amendment because

allows warrantless

entries of a

residence, absent

"exigent circumstances," to

effect involuntary commitments;

have we found such

The cases cited by the City consider

whether

a case.

a seizure of the person effected pursuant to an involun______

tary commitment statute violates

the

nor

Fifth and Fourteenth

the due process requirements of

___ _______

Amendments,6 or whether

which the government detains a

the manner in

person violates the Fourth Amend-

ment

prohibition against

unreasonable seizures.7

Nonetheless,

____________________

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,

___ _____
____________________

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

Glass, 984
_____

F.2d at

that the

committing physicians

were

entitled

because they

to

58 (holding
qualified

immunity

reasonably believed

and "dangerous");

ordering

that subject was

Villanova, 972 F.2d at

_________

Amendment and due process

for

home); see
___

also
____

"seizure"

mentally ill

797 (discussing Fourth

implications arising from prolongation

11

to the

on

extent the technically inapposite

by the City might

"seizure" cases relied

be considered appropriate

analogs in this

unchartered area, we consult their reasoning for guidance.

Although the parties

whether

there remains

a genuine

essential

features clear

enough;

that is,

the policy

permits

residential

searches,

without

requiring

"exigent

pursuant to a

in order

to

City "policy,"

effect

we

regarding the

of

circumstances,"

challenged

factual dispute

to

substance

warrantless

the

devote considerable attention

consider

an involuntary

properly issued pink paper.

Of course,

its

commitment

the City

argues that every

can

entry is per se
___ __

only issue upon an

presently

poses a

expert medical finding

"likelihood of

others, which in turn provides

to believe that an

"exigent" since a pink

paper

that the subject

serious harm"

to

herself or

the police with reasonable

immediate, forcible entry for the

cause

purpose of

____________________

of

involuntary commitment,

independent

judicial

or

seizure of

determination

of

the person,

probable

without

cause,

where

the

McCabe

commitment occurred while person was in jail).

____
Moreover,
contention

the

absence

any authority

that the warrantless

involuntary

commitment should

committal "seizure" itself

tional

of

foundation is

"forcible entry" phase of

be

treated differently

See
___

(rejecting similar attempt to draw

between `search'

dence").

And since the

hold

an

than the

arguably indicates that a constitu-

lacking.

tion[s]

for

Cardona,
_______

903 F.2d

at

64

"entirely artificial distinc-

jurisprudence and
cases cited by

`seizure' jurispru-

the City overwhelmingly

that warrantless, involuntary commitment seizures generally

comport with

the strictures

of the

Fourth Amendment,

see Vil-

___ ____
lanova, 972 F.2d at
______
issued by

a judicial officer [to

commitment order]."),
practical

795 ("There is

no requirement of a
seize the person

thus constituting

warrant

subject to a

a valid pink

paper the

equivalent of an arrest warrant, see supra note 5; cf.

___ _____
___

Welsh, 466 U.S. at 748-49;

_____
F.3d at 1373,

a separate

Payton, 445 U.S. at 586; Hegarty,

______
_______
requirement that a

search warrant

53

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

scene assessment as to

subject

during

pink

may pose

fact-specific, on-the-

the immediacy of any putative

to herself

or others.

stresses that

the several hours which were allowed to elapse before the

paper was executed upon Ms. Zinger, the officers would have

had ample time to obtain a search warrant.

that

McCabe

threat the

none of

supra p. 10,
_____

police entry.

the four

recognized "exigent

And McCabe points out

circumstances," see
___

was plainly present immediately before the forcible

As these claims reflect the

legal gloss

placed on

dispute

the record

and "exigent

actual

within

than

a genuine

factual

concerning the substance of the City policy, we need not

enter the skirmish

the

evidence, rather

over the

circumstances."

conduct

a recognized

of

distinctions between

The

its police

class of

"emergencies"

City policy, as

officers,8

evidenced by

falls

systemic "special
________

squarely

need" searches

____________________

8Contrary to McCabe's contention, we need not decide whether

the City
were

waived the argument

not

therefore
merely

undertaken pursuant
not liable

argues that

that its police

to City

under Monell, 436

______
the

actual police

policy,

officers' actions
and that

U.S. at 694.
conduct

it is

The City

in effecting

warrantless entry often provides the best circumstantial evidence

as

to the nature

danaro, 871 F.2d at

______

of the challenged municipal

1156-57 (observing that the event

evidence that police officers

policy).

policy.

See Bor___ ____

itself is

acted in accordance with municipal

13

which are conducted without

warrants in furtherance of important

administrative

Again, the

purposes.

Fourth Amendment jurisprudence in

fundamental

concern

of

general, and in "special need"

search cases as

well, is whether an established search procedure

is "reasonable"

in

particular

case.

light of

the

See Cady, 413

___ ____

actual circumstances

in

the

U.S. at 439-40; see also O'Con___ ____ ______

nor, 480 U.S. at 719; T.L.O., 469 U.S. at 337.

___
______

in turn, depends on

"'balanc[ing] the nature and quality

intrusion on the individual's

the importance

see T.L.O.,
___ ______

lanova,
______

O'Connor, 480 U.S. at

________

469 U.S. at 341;

972 F.2d

at 796.

in possession of a

Mass. Gen.

719 (citation omitted);

On

balance, we

pink paper properly

Laws Ann. ch. 123,

67; cf. Vil___ ____

find that

the City

entries by police

State's "Administrative" Interest

State's "Administrative" Interest
_________________________________

offi-

issued pursuant to

12(a), is reasonable

Fourth Amendment.

1.
1.

alleged to justify

Cardona, 903 F.2d at

_______

policy permitting forcible, warrantless

cers

of the

Fourth Amendment interests against

of the governmental interests

the intrusion.'"

"Reasonableness,"

under the

(a)
(a)

Parens Patriae and Police Power

Parens Patriae and Police Power
_______________________________

The

legitimacy

"police power"

of

the

interests in

State's

parens
______

patriae
_______

ensuring that "dangerous"

and

mentally

ill persons not harm themselves or others is beyond dispute.

See
___

Rogers v. Okin, 634 F.2d 650, 654 (1st Cir. 1980), rev'd on other
______
____
_____ __ _____

grounds,
_______

457

U.S. 291

(1982);

N.E.2d 33, 36 (Mass. 1982).

delayed commitment

Thompson
________

v. Commonwealth,
____________

438

The potential consequences attending

both

to the

14

mentally ill

subject and

others

bodily

the

may be extremely serious, sometimes including death

injury.

present

Thus, we

analysis that

think it is

or

especially significant to

warrantless "special

need" searches

have been condoned by the courts in circumstances where the State

interests

were

far

less

compelling and

O'Connor, 480 U.S. at 724 (noting:

________

entrusted with tremendous

their misconduct

or

public interest can

urgent.

Cf., e.g.,
___ ____

because "public employees are

responsibility," "the consequences

incompetence to

be severe");

both

the agency

New York v.
________

and

Burger, 482
______

of

the

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

regulating

that

the

"the

State has

vehicle-dismantling

industry because motor vehicle

and because the problem

try");

privacy

substantial

and

interest

in

automobile-junkyard

theft has increased in the

of theft is associated with

State

this indus-

T.L.O., 469 U.S. at 339 ("Against the child's interest in

______

must be

set the

substantial interest

administrators in maintaining discipline

of teachers

and

in the classroom and on

school grounds.").

We therefore

procedures

are

inquire whether these

appropriately

tailored to

important interests at stake; in other words,

residential search

the

legitimate

and

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 first

the circumstances

place'") (citations

Gen. Laws Ann.

order

which justified the

ch. 123,

issued by

omitted).9

We think that

12(a), in general,

Dr. Barden,

interference in

Mass.

and the commitment

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

permit hospitalization for up to

day period;

to

a ten-

(2)

in an "emergency situation," a qualified

physician, psychologist, or
nurse

may sign a

pink paper, even when

the alleged mentally ill

to submit to
the

"facts

psychiatric

person refuses

a medical examination,
and circumstances"

that the person would create

if

suggest

a "likeli-

hood of serious harm";

(3)

in

an

officer

"emergency situation,"
may

restrain a

person

lieves creates a "likelihood

harm," if no

a police
he be-

of serious

qualified physician,

psy-

____________________

9Thus, a

"mental illness"

determination alone is

cient to support an involuntary commitment

order; the State must

also show that the person subjected to involuntary

"dangerous."

See O'Connor
___ ________

v. Donaldson, 422
_________

(1975).

16

insuffi-

commitment is

U.S. 563,

575-76

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

mitment order, and after a

a com-

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 (1st

Cir. 1994)

(tracing history of

Massachusetts emergency

involuntary

commitment

enactment of chapter

procedure

123).

from colonial

As only the

times

category 4

through

commitment

procedure expressly incorporates a warrant requirement,

it

clear

that

the

statute

implicitly

authorizes warrantless

searches and seizures in the three remaining contexts.

Zinger

repeatedly

examination by

rejected

a physician,

family

pleas that

and because

expert

medical-psychiatric opinion

family

members and

neighbors, we

Dr.

us,

therefore,

concerns

she

exclusively on

conclude

the

Since Ms.

submit

Barden based

to

his

reports from

also that

paper in this case did issue under category 2.

before

we think

the pink

The only question

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

Barden

described

harm by

the

reason of mental

particular

grounds for

illness."

Dr.

concluding

that

immediate hospitalization was required:

[Patient]
and she was

has a [history]

of mental illness

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

statute,

commitment application,

define "likelihood

criterion for commitment

(1) a
the

of serious

and

the Massachusetts

harm"

the governing

as:

substantial risk
person [her]self

of physical harm
as manifested

to

by evi-

dence of, threats of, or attempts at, suicide

or serious
risk

bodily harm;

of physical

(2) a

harm to

substantial

other persons

manifested by evidence of homicidal

violent

as

or other

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

[her]self as

fested
ment is

to the person

by evidence that

such person's judg-

so affected that [s]he

protect [her]self

mani-

is unable to

in the community

reasonable provision for h[er]

and that

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.

mental illness and prior

Zinger's history of

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

harm,"

particularly

medical

indicia of

codified set

under

its

definition

requirement

of

"likelihood

that

there

"dangerousness," effectively

of serious

be objective

"constitutes a

of `exigent circumstances' which are constitutional

the Fourth Amendment."

Moore v. Wyoming Medical Ctr., 825

_____
____________________

F. Supp. 1531, 1538 n.4, 1546 (D. Wyo. 1993).

18

Given the notori-

ous difficulties

solely on

in predicting

symptomatology, id.
___

Gen. Laws Ann. ch. 123,

reasonably

reliable

individual human

at 1539,

1, prescribes

we conclude

are

that Mass.

a sufficiently clear and

administrative standard

involuntary commitments

behavior based

limited to

for

ensuring that

imminently

"dangerous"

mentally ill persons in emergent circumstances.

Finally, the specific focus

Massachusetts

statute

implicitly

and overall context of the

circumscribe

the

category 2

search

procedure within

permitted to enter a

sive purpose

ill person

engage

narrow

of detaining a recalcitrant

pursuant to

case did not

a duly issued

exceed these

Laws Ann. ch. 123,

of

appropriately

police officer

residence without a warrant for

in a generalized search.

pursuance

bounds.

As

tailored

pink paper,

State and municipal interest

but may

not

the officers in the instant

bounds, we conclude

design, see
___

to serve

the exclu-

and dangerous mentally

that Mass.

12(a), and consequently the

the statutory

is

the

City policy in

supra pps.
_____

legitimate

Gen.

12-14, are

and important

in ensuring that dangerous mentally

ill persons not cause physical harm to themselves or others.

(b)
(b)

Practicality of Warrant Requirement

Practicality of Warrant Requirement
___________________________________

The determination

that there

exists a legitimate

and

substantial

governmental

search

in certain

inquiry

under the

search

interest in

circumstances

conducting

satisfies

reasonableness test.

procedure to survive

a warrantless

only the

For

threshold

an administrative

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

demands
the

whether

creation of

the

public

a general

Fourth Amendment's

interest

exception to

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
a warrant is likely

of obtaining

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

examination

would entail

mentally ill person,

privacy protections

critical

for medical-psychiatric

delays

in safeguarding

and others, without affording

to the subject.

Category

the

commensurate

2 searches foster

important governmental

interests

largely because

the

imprecision in predicting the timing of any outbreak

ousness" on the

see
___

spent

part of the

securing judicial

of "danger-

recalcitrant, mentally ill

Moore, 825 F. Supp. at 1539,

_____

inherent

person,

inevitably means that the time

approval of

a pink paper

represents a

potentially dangerous delay of incalculable proportion.

____________

In this

the undisputed

particular case,

of course, McCabe

evidence that the police

hours before executing the

points to

officers waited several

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

"exigent circumstances"

an ad
__

hoc, on-the-scene
___

determination made by the

no rejoinder to the claimed "reasonableness" of a

search

case but

procedure policy, which must

on

the essential

police, it is

"special need"

focus not on the particular

systemic

attributes of

the

procedure itself:

The

dissent

argues

that in

this

case the

search

police had
warrant,

ample

time to

rendering

complying

secure an

invalid

with traditional

any claim

distorts Griffin's
_______

prong.
the

In

That

"impracticability"

systemic impracticability
________ ________________

ticability

of

warrants.

obtaining

particular case did not

__________ ____

into

of compelling

those involved in implementation of

tion;

view-

Griffin, the Court inquired

_______

tion regime to obtain

that

fourth amendment

requirements was impracticable.

point

arrest

a proba-

The imprac-

a warrant

in

the

enter into the equa-

indeed, Justice Blackmun argued unsuc-

cessfully for much the same

sort of particu-

larized inquiry . . . . Whether it was feasible

for the

this

police to

particular case

obtain a

warrant in

is irrelevant

for the

purpose at hand.

Cardona,
_______

ted).10

903 F.2d

at

Although

the

68 n.7

Fourth

(emphasis added;

Amendment

citations omit-

warrant

requirement

____________________

10There

is

no record

evidence

that

the challenged

City

policy required officers to

fied time.

In all

execute pink papers within a

events, however, we do not think

hours that elapsed

between the

issuance and

actions, can be considered

question
related

the

emergent

nature of

dangerousness.

Whereas

circumstances," were that the

upon by the City, no
in

a particular

validity of
we

the several

execution of

pink paper, which enabled the constable and police

their

Zinger's

delay

might

this

to coordinate

so inordinate as
Ms.

speci-

to call into

mental-healthbelie

"exigent

warrant exception primarily relied

such rigid time constraints can

"special need"

case as

the systemic search procedure

be imposed

a precondition
itself.

to the

Nonetheless,

express no opinion as to whether, in another case, inordinate

delay in issuing and executing a pink paper might tend

mine a predicate finding

that the subject posed a

real "likeli-

hood of serious harm" at the time the finding was made.

21

to under-

imposes a

minimal burden

on governmental authorities

circumstances, we think there

delay

the execution

of

in normal

can be little doubt that

involuntary commitment

it would

orders to

some
____

degree in all cases,

___

thereby appreciably increasing the systemic

risk

protective purposes

that the vital

parens patriae
______ _______

and

"police

power"

served by

responsibilities

frustrated in individual cases not identifiable

the State's

would

in advance.

be

See
___

supra Section II.D.1(a).

_____

More

burdens

importantly

imposed on

the City

by

far,

however,

and State

by a

the

additional

universal warrant

requirement in category 2 searches seem to us "undue" and "unrea-

sonable"

when

protection

afforded

screened by a

court

viewed

in

relation to

the

by a

requirement

that

magistrate before

ruled that

the Fourth

Mass. Gen. Laws

Amendment warrant

additional

pink

it is executed.

violated notwithstanding compliance with

dure under

minimal

paper

The

be

district

requirement was

the "pink paper" proce-

Ann. ch. 123,

12(a),

because the

issuing physician "is not qualified to determine whether probable

cause exists."

McCabe, 875 F. Supp. at 61.

______

the Supreme Court

requirement

has noted

reaches its

On the other hand,

that rigid adherence

most suspect

to a

extreme where

warrant

a judicial

officer lacks the innate expertise to assess the soundness of the

basic

ground upon which the warrant request is predicated.

e.g.,
____

Griffin, 483
_______

U.S. at

879 n.

(observing

See,
___

that "[o]ur

discussion

proposition

pertains

that

to

the

the search

reasons

generally supporting

decision

should

be

left to

the

the

22

expertise of

probation authorities

cf. Rogers, 634

___ ______

F.2d at 660 ("While

rather than

judicial determinations are

certainly preferable in general, room must be left

ble state officials

a magistrate");

for responsi-

to respond to exigencies that render totally

impractical recourse

to traditional forms

`The

of

judicial model

fact finding

protected interests, regardless of

nal

decisionmaking into an

of judicial

for all

process.

constitutionally

their nature, can turn ratio-

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

judicial

founded on

the available

officers normally are called

evidence), whereas

upon to make judgments as

to whether there is "probable cause" for an arrest or search.

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

As

criminal

prosecution.

the basic issue

question--did
alleged?
resolve in

In the

latter cases

is a straightforward factual
the

There

accused
may

commit

be factual

the

act

issues

to

a commitment proceeding,

factual aspects represent only

but the

the beginning

of the inquiry.

Whether

mentally ill and

dangerous to either himself

or others and is

in need of confined therapy

turns on the meaning

_______
be

interpreted

the individual

is

of the facts which must

by expert

psychiatrists and

psychologists."

Project Release v. Prevost,

_______ _______
_______

(quoting

722 F.2d 960, 972-73 (2d

Cir. 1983)

Addington v. Texas, 441 U.S. 418, 425 (1979)); see also

_________
_____
___ ____

O'Connor, 480 U.S. at

________

723 ("Indeed, it is difficult

23

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

reasons."); Wyman,
_____

U.S.

retrieve a file

at 324 (in the

ment is out

for work-related

400

home-visitation setting, "the warrant argu-

of place"

since, as a

practical matter,

"probable

cause" is more than an agency seeks or needs to know).11

To

preliminary

screening

be sure,

judicial

insulation against

out

patently

oversight

might

obvious abuse;

unreliable information

provide

some

for example,

utilized

by

by

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

in the

the

"probable

search warrant context.

cause" inquiry

The "probable

appropriate

cause" inquiry often

jettisoned in civil administrative searches:

"[W]here a careful balancing

of governmental

and private interests

suggests that the pub-

lic interest

served by a

mendment
stops

is best

standard

of

short of probable

reasonableness
cause, we

hesitated to adopt such a standard."

concluded, for example, that
standard for administrative
probable

cause

Instead,

an

in its

able legislative

that

have not
We have

the appropriate
searches is

not

traditional meaning.

administrative

obtained if there is

Fourth A-

warrant can

a showing that

be

reason-

or administrative standards

for conducting an inspection are satisfied.

is

O'Connor,
________

480

U.S.

T.L.O., 469 U.S. at

______

at

see
___

valid search.

also
____

an irre-

The fundamental

command

the Fourth Amendment is that searches and seizures be reason-

able,

and although 'both the

requirement
...

omitted);

340-41 ("'[P]robable cause' is not

ducible requirement of a
of

722-23 (citations

concept of probable

cause and the

of a warrant bear on the reasonableness of a search,

in certain

limited

circumstances neither

is

required.'")

(citations omitted).

24

physician has not examined

hand reports as

the patient and must rely

to the subject's physical,

on second-

emotional and behav-

ioral

symptoms.

itself affords

On

the other

hand,

reasonable safeguards

pink paper

can

physician,

see Mass. Gen. Laws Ann.

___

extensive

education

should enable

such lay

with

be authorized

and

the psychiatric

requisite

safeguard is by

exceptional

case in

which

by a

licensed

ch. 123,

experience

psychiatric

1, 12(a), whose

and

training

physician more reliably

to parse

those provided by

professional

no means

mechanism

against such concerns:

specialized

reports, especially

the

only

the statutory

skepticism.12

foolproof, we

an expert

think it

evaluation

family members,

Though

this

would be

the

was based

on

patently insufficient or unreliable information.

________

Further, to the

degree that judicial factfinding were thought to

be necessary as

general rule, in order

to ferret out

latent unreliability in
______

the foundational evidence (e.g., possible ulterior family motives

or antipathy

evaluations

toward the

are

based,

patient) upon which

the

resulting

expert psychiatric

delays in

implementing

____________________

12The other statutory safeguards would not forestall improper warrantless

903

entries of a

F.2d at 66 ("While

occur

until the

the actual invasion

search

protection is viable

subject's residence.

or seizure

only to

of privacy does not

occurs, the

the extent that

authority responsible for making

See Cardona,
___ _______

constitutional

it restricts

the

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
for

more than

to detain a dangerous mentally

ten days,

the State

must petition

ill person

the district

court, and prove beyond reasonable doubt that the patient poses a
"likelihood of serious harm."

See Mass. Gen.

___

7, 8 (requiring ongoing, periodic

ment decision),

12(d); Commonwealth
____________

1290-91 (Mass. 1980).

25

Laws Ann. ch. 123,

judicial review of commitv. Nassar 406

______

N.E.2d 1286,

involuntary commitment orders could

quences

for the mentally ill, their families, and members of the

public.

greatly

have far more serious conse-

Finally, such

detailed

exceed any "screening"

factfinding mission

function normally

would

undertaken by

judicial officers in reviewing search warrant applications.

We discern no

ing

such a

sufficient justification for superimpos-

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

papers in emergent circumstances.

("A warrant requirement would

with the probation

See Griffin, 483 U.S.

___ _______

pink

at 876

interfere to an appreciable degree

system, setting up

a magistrate rather

than

the probation officer as the judge of how close a supervision the

probationer requires.").

2.
2.

The Interests of the Mentally Ill

The Interests of the Mentally Ill
_________________________________

Next,

we consider the

search procedure infringes

of

the mentally

ill.

See
___

extent to which

the category 2

legitimate Fourth Amendment interests

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

(quoting Humphrey v.
________

Cady, 405 U.S.

____

omitted).

out again,

We point

challenges only

504, 509 (1972))

however, that

the alleged infringement of

liberty.'")

(citation

McCabe presently

Ms. Zinger's Fourth

Amendment right to be free from unreasonable governmental entries

to

her residence,

see
___

supra note
_____

26

2,

and does

not

allege an

infringement of her liberty

sonable

interest to be free from

governmental restraint attending

any unrea-

the subsequent seizure

of her person.

(a)
(a)

Civil Context
Civil Context
_____________

Although

variety of

Fourth

Amendment

civil proceedings, Soldal,

______

Supreme Court

search

the

is

implicated

113 S. Ct.

at

in

548, the

has made it clear that the civil nature of certain

procedures may

warrant and probable

call for

narrowed application

cause requirements.

Where

of the

a search proce-

dure is not designed to gather information in a criminal investi-

gation,

relaxing

its relative

unintrusiveness may

militate in

the warrant requirement. See O'Connor,

favor of

480 U.S. at 721

___ ________

("While

police,

and

even

[some]

personnel, conduct searches for

evidence for

employers

their

use in

administrative

enforcement

the primary purpose of obtaining

criminal or other

enforcement proceedings,

most frequently need to enter the offices and desks of

employees

unrelated to

for

legitimate

illegal conduct.");

visitation program "does not

work-related

Wyman, 400
_____

reasons

U.S. at

deal with crime or with

wholly

323 (home

the actual

or suspected perpetrators of crime," and "[t]he caseworker is not

a sleuth

see
___

but rather, we trust, . . .

also Project Release, 722

____ _______________

between

civil and

flected in

a friend to one in need");

F.2d at 972-73 ("[T]he difference

criminal confinement

may nonetheless

different standards and procedures

be re-

applicable in the

context of each of the two systems

so long as due process

satisfied.") (citing Addington, 441 U.S. at 425).

_________

is

In the instant

27

case, McCabe has not

Zinger residence

suggested that the challenged entry

was effected for

any criminal law

any regulatory purpose other than to enable her

of the

purpose, or

temporary hospi-

talization and the psychiatric examination she adamantly refused.

(b)
(b)

Impartiality of Decisionmaker
Impartiality of Decisionmaker
_____________________________

Finally, it is most

that the

official decision to initiate

2" commitment

with

significant in the present context

rests with

an involuntary "category

a licensed psychiatric

law enforcement officials.

See Steagald, 451

___ ________

(noting that the Fourth Amendment warrant

"neutral"

and

detached

judicial

"probable

cause" determination).

officer

impartial person.

U.S. at 212

requirement interposes

between

police

and

The Supreme Court consistently

premises "special need" warrant exceptions

search authorization

physician, not

by an impartial,

on the presence of

or at least

a relatively

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

particular (relatively

proof, i.e.,

`reasonable grounds.'").

relationship

between

suspects, a

law

enforcement

modest) level

of

Unlike the characteristic

personnel

and

committing physician's relationship with

criminal

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

responsibilities

decision depends.

likewise

require

psychiatric criteria

be utilized

the subject

Cf., e.g.,
__
____

though

person.

probation

neither is he the

against the

Department

officer

that

physician's ethical

appropriate

in assessing the

an

impartial

police officer who normally

ordinary citizen.

of Health

and Social

condition of

Griffin, 483 U.S. at

_______

is not

He is

876 ("Al-

magistrate,

conducts searches

an employee of

Services who,

medical-

the State

while assuredly

charged with protecting the public interest, is also supposed

to

have in mind the welfare of the probationer.").

allegation or

evidence that the

Nor is there any

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

es,"

so that

"[t]here

warrant mechanism

61.13

Whether

and batons, not hospital

would

an

is no

orderlies and nurs-

therapeutic relationship

disrupt."

McCabe,
______

administrative search

875

F.

which a

Supp.

procedure leaves

at

too

____________________

13Although there is no evidence that Dr. Barden had been Ms.

Zinger's regular physician, the
evaluated

in light

of its

challenged City policy is

systemic traits

Cardona, 903 F.2d at 67; supra pp.

_______
_____
most, category 2

22-23.

searches are executed

to be

and purposes.

Cf.
___

No doubt many, if not

pursuant to pink

papers

29

much discretion to

law enforcement

recurring Fourth Amendment concern.

officers in the

field is

See, e.g., Camara, 387 U.S.

___ ____ ______

at 532-33 ("The practical effect

occupant

of this system is to leave

the

subject to the discretion of the official in the field.

This is precisely the discretion to invade private property which

we

have

consistently

circumscribed

disinterested party warrant the

Gen. Laws Ann. ch. 123,

category 2 "search" is

Moreover, the

requirement

need to search.").

that

Under Mass.

12(a), however, the decision to conduct

never left to

the executing officers.

mere fact that law enforcement

the agents who implement

approve

by a

officials serve as

the authorizing physician's decision to

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, rather than "administrative" agents,

are permit-

ted to conduct the

415-a5 inspection.

significance respondent alleges

role of police
penal

laws

arrest

lies in

officers as enforcers

and in

the

officers'

The
the

of the
power to

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
in addition
tional

to those associated

police work.

. .

duties

with tradi-

As a

practical

matter, many States do not have the resources

____________________

issued

by the

physician.
with a
cians

subject-patient's current

Unlike law

or former

psychiatric

enforcement officers, who rarely interact

search target on more than one occasion, as a rule physipossess

reliable personal

based on

an ongoing

483 U.S.

at 879 ("As

knowledge

of their

doctor-patient relationship.
was true, then,

patients,

Cf. Griffin,
___ _______

in [O'Connor]
________

. . .

[T.L.O.], we deal with a

______

situation in which there is an

supervisory relationship

and one that is not, or at

entirely, adversarial

and

ongoing

least not

between the object of the search and the

decisionmaker.").

30

to

assign

the enforcement

administrative scheme to a
cy.

So long as

of

a particular

specialized agen-

a regulatory scheme is prop-

erly administrative, it is not rendered illegal by the

fact that the inspecting

officer

has the

power to arrest individuals for vio-

lations

other

scheme itself.
upon the

than
In

those

by

the

sum, we decline to impose

States the burden

enforcement of their

created

of requiring the

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

___

the

once

not lend any special salience to

person(s) executing

reached [by

the

the search";

the identity of

"[w]hether the

probation officer],

decision,

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,

favor a limited "special need" exception to

ment in the particular

residences

by the

after its issuance.

Accord-

Amendment is not infringed by the

which authorizes warrantless entries

police for

properly issued category

balance,

the warrant require-

setting presented in this case.

ingly, we hold that the Fourth

challenged City policy,

on

the sole

2 pink paper

purpose of

of

executing a

within a reasonable

time

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

need"

provide adequate

exception to the warrant

support for

requirement.

31

a "special

The balancing test

for determining whether an

the

must

"special need"

administrative procedure comes within

exception is

be calibrated anew in assessing

administrative

course,

do

we suggest

that

all

or any other

Ann. ch. 123,

or other categories

chapter

section

123,

Amendment.

of

12(a),

and

the reasonableness of each

search procedure to which it is applied.

commitment statutes,

does

designedly fact-specific,

comparable state

provision of Mass.

Nor, of

involuntary

Gen. Laws

of searches authorized

necessarily

satisfy

the

under

Fourth

See, e.g., Wyman, 400 U.S. at 326 ("Our holding today

___ ____ _____

not mean . . . that

a termination of benefits upon refusal

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

12(a), may effect a warrantless entry

Ann. ch. 123,

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.

viewpoint

other

concerning

including the

cers, the

any

aspect

McCabe claims against the

constable, and the

We intimate

of these

no

proceedings,

individual police offi-

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 qualified

psychiatric nurse mental health clinical special-

ist authorized
promulgated
eighty

pursuant

psychologist

hundred

ty-nine,
twelve,

to

who after

believe that

of

under regulations

provisions

of

section

one hundred and

twelve or a

licensed pursuant

to sections

and eighteen

inclusive

as such
the

B of said chapter

qualified
one

to practice

to

one

hundred and

said chapter

examining

one

a person

failure to hospitalize such

twen-

hundred and

has reason

to

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

private facility
department.

period at

a public

authorized for

facility

or at

such purposes by

a
the

If an examination is not possible because of

gency

the emer-

nature of the case and because of the refusal of

the person

to consent to such

cian, qualified psychologist

examination, the physior 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,

psychologist

or

qualified

health clinical specialist

officer,
person

who believes
would create

reason of

if a

physician, qualified

psychiatric

nurse

mental

is not available, a

police

that failure
a likelihood

to

hospitalize a

of serious

mental illness may restrain

harm by

such person and

apply for the hospitalization of such person for a

day period at a
authorized

public facility or a private

for such

purpose

by the

ten

facility

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.
ing

such

Whenever practicable, prior to transportperson,

the

otherwise communicate
circumstances
mine

shall

telephone or

with a facility to

describe the

and known clinical history and to deter-

whether the

receive

applicant

facility is

such person

and also

the proper
to give

facility to

notice of

any

restraint

to be

used

and to

determine whether

such

restraint is necessary.

....

34

(e) Any person may

court justice
partment

or a justice

for a ten day

mentally ill

make application to a district

of the juvenile

commitment to a

person whom the failure

cause a likelihood of serious harm.

evidence

as

court de-

facility of a

to confine would
After hearing such

he

may consider

sufficient,

court justice or

a justice of

the juvenile court

partment may

issue a warrant for

a district
de-

the apprehension and

appearance

before

him

of

the

alleged

mentally ill

person, if in his judgment the condition or conduct

such

person

makes such

action

necessary or

of

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.

or qualified psycholo-

If said physician

gist reports that the failure to hospitalize the person

would create a likelihood of serious harm
mental illness, the court
ted to a facility for a
but the

by reason of

may order the person commitperiod not to exceed ten days,

superintendent may

within the ten day period.

discharge him at

any time

35