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USCA1 Opinion

United States Court of Appeals


For the First Circuit
For the First Circuit
_________________

No. 96-1528

JEREMIAH P. AHERN,

Plaintiff, Appellant,

v.

PHILIP O'DONNELL, PATRICIA McBRIDE, TONIE MORAN, DAVID CELLA,


INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES,
and THE UNIVERSITY OF MASSACHUSETTS,

Defendants, Appellees.

_________________

ERRATA SHEET

The opinion of this Court issued on March 31, 1997, is


amended as follows:

Cover sheet:

Delete "1977" and insert in its place "1997."

United States Court of Appeals


For the First Circuit
____________________

No. 96-1528

JEREMIAH P. AHERN,

Plaintiff, Appellant,

v.

PHILIP O'DONNELL, PATRICIA McBRIDE, TONIE MORAN, DAVID CELLA,


INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES,
and THE UNIVERSITY OF MASSACHUSETTS,

Defendants, Appellees.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Douglas P. Woodlock, U.S. District Judge]


___________________
____________________

Before

Boudin, Circuit Judge,


_____________

Bownes, Senior Circuit Judge,

____________________

and Skinner,* Senior District Judge.


_____________________
____________________

Thomas Gilbert Massimo for appellant.


______________________
Terence P. O'Malley with
____________________
appellees

Philip

O'Donnell,

whom Joyce A. Kirby was


_______________
Patricia

McBride,

David

on brief
Cella,

University of Massachusetts.
Janet Nally Barnes with
___________________

whom William J. Dailey, Jr., Robert


________________________ ______

Eaton, and Sloane and Walsh were on brief for appellee Tonie Moran.
_____
________________

____________________

March 31, 1997


____________________

____________________

*Of the District of Massachusetts, sitting by designation.

Per Curiam.
Per Curiam.
___________

brought suit

in federal

Plaintiff-appellant Jeremiah P. Ahern

court against five

three entities, seeking declaratory

individuals and

relief and damages for a

variety of civil rights violations and common-law torts.

The

complaint alleged that the defendants violated Ahern's rights

under the

Fourth

and

Fourteenth

Amendments

and

asserted

pendent state-law claims for, inter alia, false arrest, false


_____ ____

imprisonment,

claims

and infliction

were

involuntary

based

upon

admission

the

to

University

emotional

events that

subsequent termination of his

with

of

of

distress.

resulted

in

psychiatric facility

The

Ahern's

and

the

employment as a police officer

Massachusetts

at

Boston

("UMB")

Department of Public Safety ("DPS").

The complaint

named as

defendants, in both

their

individual and official capacities, Captain Philip O'Donnell,

acting

director

involuntary

David

of

the UMB

admission

Cella, director

employment was

to

the

of the

DPS

at

Arbour

UMB DPS

the

time of

Ahern's

Hospital ("Arbour");

at the

terminated; Sergeant Patricia

time Ahern's

McBride of the

UMB police force; Dr. Tonie Moran, consulting psychologist to

the UMB

DPS;

and

Dr.

Michael Malick,

the

physician

who

evaluated Ahern

admission to

defendants

at Arbour

that

were

and who effected

facility.

UMB, Arbour,

The three

and

his involuntary

entities named

Ahern's

union, the

as

UMB

Patrolmen's Association ("the Union").

Following dismissal of the counts against the Union

and Dr. Malick, the remaining parties filed cross motions for

summary

judgment.

The

district

court

entered

summary

judgment for the defendants on all counts.

from

that portion

summary

judgment

defendants.

of

the district

in

favor

of

Ahern now appeals

court's order

Dr.

Moran

and

entering

the

UMB

We affirm.

I.
I.

We

view

the record

evidence

in

favorable to

Ahern, the party against

has entered,

drawing all reasonable competing

his favor.

Cir. 1996).

whom summary judgment

Most of the

in dispute, although Ahern

significance of some of the facts.

follows.

most

inferences in

See Wightman v. Springfield Terminal Ry. Co., 100


___ ________
____________________________

F.3d 228, 230 (1st

are not

the light

predicate facts

strenuously disputes the

The salient events are as

In the early morning of September 19, 1991, shortly

after

midnight, Deborah

Cate's telephone

recorded the following message:

care

of that

splattered

gone.

That

crybaby

old

"Hey.

fuck

his face all over

of

Guess what?

yours.

Dorchester.

fucking crybaby's all

answering machine

gone."

We took

The

niggers

He's

gone.

He's

Ms.

Cate, a

UMB

student and employee, was not at home at the time of the call

and did not

evening.

former

Ahern

hear the message

Cate recognized

boyfriend, and

had

caused

until approximately 6:15

the voice

understood the

James

Igoe,

boyfriends, to be killed.

-3-

as

that of

message to

another

of

that

Ahern, a

mean that

Cate's

former

-3-

At the

had been a member

four

during

years.

time of

the September 19th

of the UMB police force

Cate had

dated and become

the spring and summer

after that same period,

married and

of 1990.

message, Ahern

for approximately

intimate with Ahern

Before, during, and

Cate also dated James Igoe,

had children.

At the time

who was

these relationships

were going on concurrently, Ahern knew of Cate's relationship

with Igoe.

Ahern also knew where Igoe worked.

Cate dated Ahern through the Fourth of July weekend

of 1990,

their

at which time she

relationship.

told him that she

Ahern was

upset by

wanted to end

this and

for the

remainder of the summer of 1990 he attempted to convince Cate

to resume the relationship.

According to Cate, he constantly

stopped by uninvited to her workplace, interrupting her work,

giving

her

unwanted

gifts,

and

repeatedly told Cate that he hated

upsetting

her.

Ahern

Igoe; that if it were not

for Igoe, Cate would love Ahern; and that he would "take care

of" Igoe.

Ahern began

in which

a campaign of telephone

he threatened, among

other things, to

calls to Cate

tell Igoe's

wife and children of the relationship between Cate

and Igoe,

and

and

to

send

together.

Igoe's

wife

photographs

In mid-August 1990,

of

Cate

Ahern told Cate

Igoe

that he had

obtained Igoe's home address from the UMB police computer and

that he

was

going to

children about Igoe's

go

there

to tell

affair with Cate.

-4-4-

Igoe's

Ahern

wife

and

also stalked

Cate

and

called her

following her.

to

let

the

know that

he

had

been

On one occasion, Ahern called Cate while Igoe

was visiting at her apartment.

Ahern

her

When Cate answered the phone,

said, "He's there, isn't he?" and told her to look out

window.

across

the

When

she did, she

street from

saw Ahern in

her house,

looking

displaying what appeared to her to be a gun.

a phone booth

up at

her and

Ahern does not

dispute these allegations but states that by the fall of 1990

he had

ceased his efforts to convince

Cate to return to him

and had begun dating another woman.

Beginning in

her

relationship

the summer

with Ahern,

obscene and threatening

of 1990, after

Cate

phone calls.

also

began to

she ended

receive

In late September

or

October 1990, Igoe began to receive harassing and threatening

calls at work.

to an

In the

calls to Igoe, a male caller referred

unnamed woman with whom

the caller and Igoe

both had

relationships.

The

sexually

explicit

continued through March 1991.

calls

to

Cate

and

Igoe

Ahern denied making the calls,

though he admitted that he had been "a little crazy" over his

break-up

was

that

with Cate.

still receiving

he was

nervous

In mid-March, Cate told Ahern that Igoe

harassing calls

the caller.

According

and suggested that the

his who was

upset with Cate

treated Ahern.

and that

she believed

to Cate,

Ahern became

caller might be

and Igoe for

a friend of

the way they

had

In April 1991, Cate received another sexually

-5-

-5-

explicit

message, the

content of

which was

the same

as a

message left in January.

In

early

July 1991,

ended their relationship.

call, in the

what you

July,

course of

wanted.

Cate

wishes, Cate

In mid-July, Igoe received another

which he exclaimed,

You split Debi

received

against Igoe's

more

and I up."

threatening,

"Look, you

got

At the end of

sexually

explicit

messages.

She was certain that the caller was Ahern.

In

August

1991,

threatening phone calls to

did not

She

supply any

also contacted

"trap" on her phone

then advised

Cate

Cate reported

the

and

the Boston Police Department, but

information about the

the

obscene

suspected caller.

telephone company,

for three weeks.

that the

The

calls she

which placed

telephone company

reported during

the

three-week period were made from local telephone booths, some

from

the MBTA station near

UMB.

Cate

continued to receive

hang-up calls after the trap was removed.

After listening to the September 19th message, Cate

became frightened and concerned for Igoe's safety because she

thought

that the

message could

be "the

real thing."

She

called Igoe at work, at home, and at his wife's home, but was

unable

to reach him.

Department.

She told a detective about the message and asked

if any serious

detective

Panicked, she called the Boston Police

incidents had

been reported that

ultimately recommended

that

Cate

McBride, a sergeant on the UMB police force.

-6-6-

call

day.

The

Patricia

At approximately 6:30 p.m.,

report the

threatening and

offered to

interview Cate at

the

DPS station,

because

officer.

At Cate's

listen to

the disturbing

for a short time,

Ahern.

Cate

Ahern was

caller's

harassing phone calls.

the complaint

as

After listening

his

she was

three reasons: she

Ahern's;

the caller

calls to

Cate

and

fellow

that McBride

McBride was convinced that the

McBride that

than at

involved a

message herself.

the caller for

McBride

her apartment, rather

apartment, Cate suggested

then told

voice

Cate called McBride to

caller was

certain that

recognized the

related

to

the

Igoe; and

same

information

in

the

information

related by the caller was known only to Cate and

Ahern.

While

at

Cate's

apartment,

McBride

listened to

other recorded messages and

to a tape of calls

to Igoe that

Igoe had recorded beginning

in February 1991.

McBride also

collected information from Cate

past eighteen months.

one contained

been left

19th

Cate then made two tapes for McBride -

obscene and

threatening messages

on her answering machine,

message and

second

concerning the events of the

tape was

other

threats to

a copy of

featuring graphic accounts of

a tape

that had

including the September

have

Igoe killed;

of phone

the

calls to Igoe,

the caller's sexual interludes

with Cate and various threats, including threats to have Igoe

killed.

-7-

-7-

Cate spoke to Igoe

with her, and learned

that evening, while McBride was

that he was fine.

McBride then called

Captain Philip O'Donnell, acting director of the UMB DPS, and

told

him

recordings.

home.

the

that

she

McBride

needed

brought the

After listening

caller

was

him

Ahern.

to

listen

two tapes

to

some

to O'Donnell's

to both tapes, O'Donnell agreed

McBride

and

tape

O'Donnell were

that

very

familiar

with

Ahern's voice,

telephone, from having

basis.

There is no

both

in

person

worked closely with him

suggestion that either

and on

the

on a regular

officer, or any

other defendant, bore any animosity toward Ahern.

Concerned about Ahern's potential dangerousness and

the

safety

of Cate

consulting

expert

psychologist Dr. Tonie

Cate and Igoe, and

made no attempt to

19th.

Igoe, O'Donnell

opinion as to whether

threat to

any

and

did,

precautions taken by

to contact

Moran in order

or not the

to ask her advice.

department on

however,

the night

question

to get an

caller presented a

O'Donnell

contact Cate, Igoe, Ahern, the

municipal police

He

tried

McBride

Cate for the remainder

Union, or

of September

about

the

of the evening,

and

discussed with her the likelihood

that Ahern might pose

an immediate danger.

On September

at 7:00

a.m., the

McBride

to

time Ahern

report for

closely Ahern's

20, 1991, O'Donnell reported

came on duty.

work early

as

well and

whereabouts and activities.

-8-8-

He

to work

had asked

to monitor

O'Donnell

was

not

concerned that

there was any

because he knew that

in Waltham.

would

immediate danger

to Igoe

Igoe lived in New Hampshire

and worked

O'Donnell thought it highly unlikely

that Ahern

drive

off campus

certainly have

to

find Igoe,

because

resulted in disciplinary

the loss of Ahern's job.

that would

action and possibly

As for Cate's safety, O'Donnell had

instructed McBride to tell her to stay off campus entirely if

she

could, and in

any case to

stay away from

the UMB boat

dock where Cate worked.

Dr.

7:15 a.m.,

Moran

at which time

describing the contents

possible.

advised

called

Based

at

approximately

O'Donnell explained the situation,

of the

upon what

him that the

O'Donnell

tapes in as

O'Donnell told

caller might be

much detail

her,

as

Dr. Moran

homicidal or suicidal

and

therefore

professional,

determine

She

events

evaluated

whether he posed

a danger to

not necessarily

it

that

was

by

psychiatrist,

O'Donnell that

described;

treatment,

be

preferably

cautioned

officer was

should

Ahern's

over

with

possible

mental

in

health

order

to

himself or others.1

career

as a

police

consequence of

intervention

that things

as a

and

could

the

proper

return

to

normal, with no further problems.


____________________

1The record
Moran told

contains contrary

O'Donnell to do

accounts as to

about the situation.

recalled in his deposition and

what Dr.
O'Donnell

elsewhere that Dr. Moran said

that Ahern should be taken for evaluation against his will if


necessary.
this

Dr. Moran, however, contends that she

never made

recommendation and that she played no part in the later

decision to admit Ahern to Arbour.

-9-9-

Dr. Moran

examine

Ahern

another

doctor

evaluator.

It

stated that

herself

that

medical

would not

day, but

with extensive

be able

offered

experience as

to

to

contact

a psychiatric

took several hours to make final arrangements

for an evaluation at Arbour,

determining

she

which

insurance

largely due to difficulties

facilities would

carrier.

be

During

covered by

the

same

in

Ahern's

morning,

September

20, O'Donnell

Lieutenant

James Wise,

played

portions of

without giving

the tapes

him any

information

about them, and asked if he could identify the caller.

who had

been Ahern's

directly with him

on a

training officer,

and who

daily basis for

for

Wise,

had worked

two years,

replied

that the voice was Ahern's.

Ahern reported for work at

a.m. and

his usual time of

was assigned an armed and uniformed post patrolling

the UMB campus in a marked police cruiser.

1:30 p.m.,

7:00

O'Donnell

instructed him to

called him

back

At

to the

change into plain clothes,

about 1:00 or

station

and

put his weapon

away, and meet O'Donnell in the DPS director's office.

When Ahern arrived, O'Donnell, McBride, and another

female

Cate had

officer were

present.

O'Donnell informed

made allegations against him

threatening phone calls to her and Igoe;

him that

regarding obscene and

O'Donnell said that

Ahern was sick and needed help, and that O'Donnell wanted him

to

undergo

psychiatric

evaluation.

allegations.

-10-10-

Ahern

denied

the

According to

he did

not agree to be

going one way

Ahern, he asked what

evaluated and was told

or the other."

Ahern says

nervous and frightened; however,

he agreed

to go.

"like

he concedes that

Ahern allegedly asked to speak to a lawyer

union representative, but O'Donnell

a buddy" and "carted" him out.

deposition,

that he "was

that at this point

he became

or a

would happen if

however, that Ahern

simply grabbed him

O'Donnell testified in

was "extremely cooperative"

and never gave any indication that he did not want to go with

the officers.

When

they arrived

at Arbour,

O'Donnell explained

the situation to a staff member and, at some point, gave

tapes to a staff member.

the

The officers stayed at the hospital

until about 4:30 p.m., when they were informed that Ahern had

refused the

was

option of

being admitted

hospital

applying for voluntary

involuntarily.

for 12 days.

Ahern

Cate received

remained in

the

several hang-up calls

during the time that Ahern was hospitalized.

an Arbour staff member

admission and

She was told by

who had contacted her that

Ahern had

access to a pay phone.

Ahern was released from

His

discharge summary

expiration

of

the

the reason

ten-day period

After his release, Cate

of

listed

Arbour on October 2, 1991.

for discharge

authorized

by

as

statute.

continued to get "countless numbers"

harassing phone calls each day.

She continued to receive

-11-11-

such calls until she moved in the spring of 1992.

The calls

to Igoe also continued, at least through the winter of 1991.

Ahern was placed on paid administrative leave as of

September 20, 1991, and was instructed in October 1991 to set

up an appointment with

his fitness

Moran

for duty.

twice consulted

Dr. Moran so that she

They met in

with the

could evaluate

November 1991,

attending

and Dr.

psychiatrist who

treated Ahern

report in

at Arbour.

Dr. Moran

January 1992, in

subsequently issued

which she expressed

her opinion

that Ahern could return to full duty on the condition that he

engage in a one-year course of psychotherapy.

In

February 1992,

informed Ahern that the

warrant

calls to

a finding

Cella, director

of DPS,

DPS possessed evidence sufficient to

that Ahern

Cate and Igoe.

David

had placed

Cella stated

threatening phone

that, at a

minimum,

Ahern's actions constituted conduct unbecoming an officer and

very

likely

offered

violated other

to permit

Ahern

department regulations.

to return

conditions, including the inclusion

in Ahern's file.

to

duty under

Cella

various

of a letter of reprimand

Ahern refused, on the ground that

it would

constitute an admission that he had made the calls.

After Ahern was provided extensive advice about his

rights,

a hearing was held

continued fitness

for duty.

in September 1992

Ahern apparently did not submit

a rebuttal case, and was terminated

UMB

as to Ahern's

from his employment with

on October 2, 1992, for "conduct unbecoming an officer."

-12-12-

Union grievance

resulted

arbitrator

at which

evidence.

In January 1994,

evidence

in lengthy

the Union

"clearly and

had made the calls to

hearings before

and UMB

an

presented extensive

the arbitrator

found that

convincingly" established

Cate and Igoe and that there

the

that Ahern

was just

cause for termination.

Ahern subsequently

its order

district

granting summary

filed the

present action.

judgment to the

In

defendants, the

court first found that Ahern had not been seized so

as to implicate the Fourth Amendment because he had agreed to

go to Arbour for

psychiatric evaluation.

Alternatively, the

district court found that the officers had reasonably treated

the

situation

as

an

emergency creating

likelihood

of

serious

harm

by

reason

of

mental

illness,

and

acted

consistently with Massachusetts law, Mass. Gen. Laws ch. 123,

12(a), and with

the Due Process

Clause of the

Fourteenth

Amendment.

The

defendants were

the state-law

protected

for

court also

ruled that

claims, Dr.

Moran and

from

civil

rights

from the

UMB

and that, on

officers were

22.

suits

This provides

for,

inter
_____

alia,
____

officers who act pursuant

the provisions of Mass. Gen. Laws

claims arising

the UMB

ch. 123,

qualified psychologists and police

to

case, the

entitled to qualified immunity

by Mass. Gen. Laws

immunity

in any

ch. 123. As to Ahern's

termination of his

employment, the

-13-13-

district court held

that UMB had

satisfied the due

process

requirements of notice and opportunity to be heard.

II.
II.

A.
A.

On appeal,

erred

in its

rulings

Ahern contends that

on three

issues:

the district court

(i) Ahern's

claim

brought under 42 U.S.C.

admission

to Arbour

Process Clause

the

1983, alleging that his involuntary

violated his

Fourth Amendment

rights; (ii) Ahern's section

and Due

1983 claim that

defendants deprived him of his right to due process with

respect to

ruling

his termination;

that the

and (iii) the

defendants were

district court's

entitled to

qualified and

statutory immunity.

Our review of the district court's grant of summary

judgment is de novo.
__ ____

See Wightman, 100 F.3d at 230.


___ ________

judgment is proper if

is no

genuine issue as

the record materials "show

to any

moving party is entitled to

Fed. R. Civ. P. 56(c).

material fact

Summary

that there

and that

a judgment as a matter

the

of law."

After a thorough review of the record

and

careful

consideration of

the

arguments presented,

we

conclude that the district court's rulings were proper.

B.
B.

We

begin

with

Ahern's

concerning his involuntary admission

asserting

section

1983

to Arbour.

a cause of action under 42 U.S.C.

claims

A plaintiff

1983 must show

that the challenged conduct is attributable to a "person" who

-14-14-

acted

"under color

of state

law," and

that it

caused the

plaintiff to be deprived of rights, privileges, or immunities

secured by the United States Constitution or by

See Soto
___ ____

federal law.

v. Flores, 103 F.3d 1056, 1061 (1st Cir. 1997).


______

By

the terms of the statute itself, a section 1983 claim must be

based

upon a federal right.


_______

See Baker v. McCollan, 443 U.S.


___ _____
________

137, 144 n.3 (1979).

On appeal, Ahern argues

to

comply

with

the

Massachusetts

statute, Mass. Gen. Laws ch. 123,

a section 1983

statute,

cause of

that the defendants failed

involuntary

12.2

Ahern cannot assert

action for violation

see McKinney v. George, 726

admission

of the

state

F.2d 1183, 1188, 1190

___ ________

______

(7th Cir. 1984); nor does Ahern claim that the statute itself

is

unconstitutional

procedures

for

facility.

Still,

in

its

involuntary

the

claim

against

admission

standards

to

statutory provisions

analysis of Ahern's Fourth

We also note

prescribed

psychiatric

may bear

upon

Amendment and due process rights.

at the outset

Dr. Moran

and

is doubtful.

that any section

She was

1983

a private

psychologist who occasionally consulted with the UMB DPS.

It

is unclear that she was a state actor or acted under color of

____________________

2Mass.
involuntary

Gen.

Laws

ch.

"admission,"

123,

rather

12(a)
than

refers

"commitment,"

to

the
of an

individual for a period of ten days.

-15-15-

state law,3 and

even more

doubtful that she

responsible for the admission.

the

underlying

these issues.

can be

deemed

But given our disposition of

constitutional claims,

we

need

not decide

We examine in turn Ahern's Fourth Amendment and due

process

arguments

involuntary

with

admission.

respect

We

focus

to

our

his

detention

resolution of

and

this

appeal on the constitutional questions presented, rather than

on the

qualified immunity defense,

requirements of the Fourth

in order to

clarify the

Amendment in this unique context.

1.
1.

It

is now well-settled that the Fourth Amendment's

protections against unreasonable searches and

seizures apply

to the involuntary hospitalization of persons for psychiatric

reasons.

See McCabe v. Life-Line Ambulance Serv., Inc., 77


___ ______
________________________________

F.3d 540, 544 (1st Cir.), cert. denied, --- U.S.


____________

---, 117 S.

Ct. 275 (1996).

The district court

rejected Ahern's Fourth

Amendment argument,

based on its finding that

been

this

seized.

On

threshold

question,

Ahern had not

we

adopt

different approach.

The Supreme Court has

explained that "a person has

been 'seized' within the meaning of the Fourth Amendment only

if,

in view

of

all of

the

circumstances surrounding

the

____________________

3See,
___

e.g., Rockwell, 26 F.3d at 260; Pino v. Higgs, 75


____ ________
____
_____

F.3d 1461, 1465-66 (10th Cir. 1996).

-16-16-

incident, a reasonable person would have believed that he was

not

544,

free to leave."

554

United States v.
_____________

(1980) (footnote

omitted).

Mendenhall, 446 U.S.


__________

Ahern admits

that,

during the confrontation at the UMB DPS station, he agreed to

go

for an

evaluation.

O'Donnell and

McBride took him

thereby

seizing

support

of

him

for

this claim,

McBride told him

and that he

Nevertheless,

Ahern contends

to Arbour against

Fourth Amendment

Ahern

that he was

asserts

his will,

purposes.

that O'Donnell

"going one way or

that

In

and

the other,"

understood that to mean that if he did not go to

the hospital voluntarily, he would be taken by force.

The district

court ruled

that Ahern had

not been

seized, based upon, inter alia, its conclusions that "Ahern's


_____ ____

own evidence demonstrates that

innocence, he

gave all

despite his protestations

external indications

agreeing to submit

to an evaluation,"

"communicated that

he

question

seems

argument's

favorable

had

relatively close,

sake that

to

changed

Ahern

the

facts

establish

and

mind."

we

taken

that

of voluntarily

and that Ahern

his

he

of

never

But

the

will assume

for

in the

was

light

most

seized.

We

therefore ask whether the assumed seizure violated the Fourth

Amendment.

To

determine

the

Fourth

Amendment

standard

of

reasonableness that applies to the

background

explanation

is

in

defendants' actions, some

order.

The

Massachusetts

statute provides four different categories of procedures

for

-17-17-

seeking the involuntary hospitalization

a ten-day

period.

two categories

of an individual for

Mass. Gen. Laws ch. 123,

permit a "qualified

12.

The first

physician, psychologist,

or

psychiatric nurse"

restraint of

the

to

sign a

person, if

person would create a

of mental illness."

McCabe,
______

reason

procedures for obtaining a

warrant for

who are potentially dangerous by

See
___

id. at 548.
___

and transported to Arbour

which does not

warrant or pink paper.

an

Ahern,

however,

under the "category-

require the

signing of

This procedure provides:

emergency

situation,

if

physician,

qualified psychologist or qualified pediatric nurse


.

. .

is

not

available, a

police officer,

who

believes that failure to hospitalize a person would


create a

the

The fourth

reason of mental illness.

three" procedure,

believes that

77 F.3d at 547-48.

the apprehension of persons

In

the signor

authorizing

"likelihood of serious harm by

category establishes

was detained

"pink paper"

likelihood of

serious harm by

reason of

mental illness
for the

may restrain such person

hospitalization of

and apply

such person for

a ten

day period at [an authorized facility]. . . .

Mass. Gen. Laws ch. 123,

12(a).4

____________________

4The statute does not define "emergency," but does


defines "likelihood of serious harm" to mean:

(1) a substantial risk of physical harm to the


person himself as manifested by evidence of,
threats of, or attempts at, suicide or serious
bodily harm; (2) a substantial risk of physical
harm to other persons as manifested by evidence of
homicidal or other violent behavior or evidence
that others are placed in reasonable fear of
violent behavior and serious physical harm to them;
or (3) a very substantial risk of physical
impairment or injury to the person himself as
manifested by evidence that such person's judgment

-18-18-

A nonconsensual search or seizure is unreasonable in the

absence

of a

judicial warrant

issued upon

probable cause.

See Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602,


___ _______
_______________________________

619

(1989).

But "[t]he

ultimate standard set

forth in the

Fourth Amendment is reasonableness," Cady v. Dombrowski,


____
__________

U.S.

433,

439 (1973),

United States
______________

(1985).

under

"all

of the

v. Montoya de Hernandez,
_____________________

"[A]lthough

413

circumstances,"

473 U.S.

both the concept of probable

531, 537

cause and

the

requirement of a warrant bear on the reasonableness of a

search,

. .

. in certain

required."

limited circumstances

New Jersey v.
__________

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


______

neither is

325, 340 (1985)

(citation and internal quotation marks omitted).

The

Supreme

Court

exception to the warrant

cases involving

(citation

applied

warrantless

to

omitted).

In

particular

municipal

entries into

77

to a

in

need for

483 U.S. 868,

McCabe,
______

needs exception

executing pink papers.

beyond the normal

Griffin v. Wisconsin,
_______
_________

the special

challenge

recognized

and probable-cause requirements

"special needs,

law enforcement."

(1987)

has

F.3d 540,

873

we

Fourth Amendment

policy

permitting

forcible,

private homes

for the

purpose of

In that

case, a pink paper had

been

issued

pursuant

to

the

category-two

procedure

of

Massachusetts statute.
____________________

is so affected that he is unable to protect himself


in the community and that reasonable provision for
his protection is not available in the community.

Mass. Gen. Laws ch. 123,

1.

-19-19-

the

McCabe did not directly resolve the question before


______

us here.

Under the category-two

act

a determination

upon

procedure, police officers

made

by

a qualified

physician,

psychologist, or psychiatric nurse, albeit without benefit of

an

examination, and

search

authorization

McCabe
______

by

emphasized "the

an

relatively impartial person."

category-three

decision

impartial,

77

"seize" the

or

at

F.3d at 552.

procedure, however, police

whether to

presence of

least

Under

the

officers make the

person themselves

without

necessarily securing expert advice.

Where,

police

as here,

officer's own

impartial expert -- we

we

decision

are arguably

-- rather

dealing with

than

that of

an

think that Fourth Amendment standards

require a

showing of probable cause;

warranting a reasonable belief

does

(as

condition

outlined

in the

threatening

that is, circumstances

that the person to be

statute)

serious harm

have

to

seized

a mental

himself

health

or others.

Other circuits have so held,5 and involuntary hospitalization

is no less a loss

of liberty than an arrest.

We

agree with

the Tenth Circuit that:

The state has a

legitimate interest in

the

from

community

the

mentally

protecting
ill

and

in

____________________

5See, e.g., Pino v. Higgs,


___ ____ ____
_____

75 F.3d 1461, 1467-68

Cir. 1996); Sherman v. Four County Counseling Ctr., 987


_______
___________________________

(10th
F.2d

397, 401 (7th Cir. 1993); Glass v. Mayas, 984 F.2d 55, 58 (2d
_____
_____
Cir. 1993); Maag v.
____

Wessler, 960 F.2d 773, 775-76


_______

(9th Cir.

1991); Gooden v. Howard County, Md., 917 F.2d 1355, 1362 (4th
______
__________________
Cir.

1990), rev'd on other

grounds, 954 F.2d

960, 968 (4th

_____ __ _____
Cir.

1992)

(en banc);
_______

_______

McKinney, 726
________

F.2d

at 1187;

In re
_____

Barnard, 455 F.2d 1370, 1373-74 (D.C. Cir. 1971).


_______

-20-20-

protecting a mentally ill person from self-harm.

person

right

suspected
to

of

liberty

and

unfounded charges of
seizure of a person
evaluation

mental illness

raises

a right

to

possesses
freedom

mental infirmity.

from

Because a

for an emergency mental health


concerns

that

are

closely

analogous to those implicated by a criminal arrest,


and both

are equally

intrusive, we

conclude that

the "probable cause" standard applies here . . . .

Pino, 75 F.3d at 1468.


____

The

proper

inquiry

is

whether

probable

cause

existed at the moment the arrest was made, based on the facts

and

circumstances within

the arresting

officer's knowledge

and of which he had reasonably trustworthy information.

v. Ohio, 379 U.S. 89, 91 (1964).


____

Here, then, probable cause

existed if, at the moment Ahern was "seized"

the facts

and circumstances

officers indicated

serious

illness.

1989).

harm to

that Ahern

himself

See Chathas v.
___ _______

or

Beck
____

for evaluation,

reasonably believed by

presented a likely

others

by

reason

Smith, 884 F.2d 980, 987


_____

the UMB

threat of

of

mental

(7th Cir.

Applying this standard, we find that the undisputed

evidence demonstrates that the officers had probable cause to

believe that Ahern made the calls to Cate and Igoe, and that,

in

view of

the

behavior, Ahern

professional

whether he

as

content

needed to

soon

as

of

the

tapes

be evaluated

possible in

might be dangerous

and

Ahern's

by a mental

order

by reason of

to

past

health

determine

mental illness.

Moreover, the belief that Ahern might be dangerous was shared

by Dr.

Moran, a qualified psychologist,

-21-21-

and corroborated by

Dr.

Malick,

licensed

physician,

conducting his own examination

who

concluded

after

that Ahern should be admitted

to Arbour.

In response, Ahern

and was

claims that the UMB DPS knew of

investigating Cate's allegations

the September

19th call.

against him before

The record contains

some support

for

this claim, in the form of deposition testimony of other

UMB

officers.

court's

Nevertheless,

conclusion that

investigation, the

"even

we

agree

if there

complaint by Cate on

with the

district

were some

earlier

September 19, 1991,

was

adequate

to

trigger

department" because

an 'emergency'

the September 19th

response

by

call "represented

the

change from threats to do harm, to a representation that harm

had been done."

Ahern

next

says

that the

acting upon the September 19th call

an

emergency

warranting a

between

Ahern places

his

September 20th and

of

to

in

without more

Cf. McCabe, 77 F.3d at 550


___ ______

great emphasis on the time

return

delay

negates the existence of

unilateral seizure

elaborate procedural safeguards.

n.10.

defendants'

the station

on

both (i) the recording

the

that elapsed

afternoon

of

by Cate's machine

the September 19th message (about 37 hours), and (ii) the

time that the UMB

officers formed the belief that

Ahern was

the

caller (about 18 hours).

Indeed, during the morning and

early afternoon of September 20th, O'Donnell

permitted Ahern

-22-22-

to patrol the UMB campus armed with a gun in

a marked patrol

car.

This argument is

not without force; in

hindsight,

some of O'Donnell's actions

objective facts

are equivocal.

known to the

Nonetheless, the

defendants clearly demonstrate

that a reasonable person would have believed that Ahern posed

a "likelihood of

and to

serious harm by

believe that

community constituted

an emergent

reason of mental

Ahern's continued presence

an "emergency."

problem is resolved is

The

in the

UMB

speed with which

not itself determinative

of the existence vel non of an emergency.


___ ___

We agree with the

district court that the undisputed facts show that

"resulted largely

illness"

from an effort to

the delay

take appropriate action

in a safe and measured manner."

Ahern

further suggests

not reasonably have

viewed him as

that the

defendants could

dangerous because he

did

not engage in

dangerous behavior between the phone

his seizure, and

of

mental

also because he displayed

illness

Probable cause

while

in this

in

his

sufficed

history

to show

no visible signs

defendants'

context, however, requires

likelihood of dangerous activity


__________

with

the

call and

presence.

only the

-- Ahern's threat,

of

harassment,

that

failure to

threats,

and

coupled

stalking,

hospitalize Ahern

would

create some danger of serious physical harm.

Finally,

the summary judgment materials contain no

support for Ahern's allegation that the defendants gave false

-23-23-

or misleading

Ahern might

remarks,

information to Dr. Malick

be suicidal.

"apparently

Dr. Malick's notes

suicidal

psychiatrist he planned to

he

is simply

too

threats

and

Ahern

to Dr. Malick.

insubstantial to

contained the

today"

kill self too."

never made such comments

however,

that suggested that

"told

says that

This evidence,

create a

genuine

dispute of material fact.

Our

conclusion is

Ahern denied making

not

altered by

the phone calls

the fact

or by the fact

that

that he

was ultimately released from Arbour without a finding that he

continued to pose a

is

threat to himself or others.

probable cause, it is irrelevant if the suspect turns out

to be noncommitable.

884

F.2d at

Similarly, it

an

"If there

987; see Baker


___ _____

v. McCollan,
________

is irrelevant whether the

ideal manner.

issue

The arrest is still legal."

We

443 U.S.

Chathas,
_______

at 145.

defendants acted in

conclude that there

is no trialworthy

as to the Fourth Amendment claim; the seizure, if such

there was, was lawful under the Fourth Amendment.

2.
2.

The

district court dealt

extensively with Ahern's

various theories of due process violations in connection with

his involuntary admission

to Arbour.

On appeal, Ahern

has

not attempted to articulate

him to

relief, but

any due process theory entitling

has simply

argued

that the

defendants

lacked authority to use the category-three

procedure because

no emergency

should have

existed, and

that a warrant

been

-24-24-

obtained under the "category-four" procedure, Mass. Gen. Laws

ch. 123,

12(e).

We therefore treat his

other allegations

of

due process violations, raised in

the district court, as

waived.

In

against

this context,

unreasonable seizures

the complained-of

and thus

conduct than does the

conduct

alleged

constitutional rights.

Gerstein v.
________

McKinney,
________

discussing

to

applies to

Due Process Clause,

due in the context

have

violated

of the

Ahern's

Albright v. Oliver, 510 U.S. 266, 273


________
______

Pugh, 420
____

726 F.2d at 1187.

the

Amendment protection

more specifically

defines what process is

specific

(1994);

the Fourth

U.S. 103,

We have

Fourth Amendment

125 n.27

(1975);

already explained, in

point,

that the

evidence

warranted the police in believing that an "emergency" existed

by

virtue of the real possibility that Ahern might harm Igoe

or Cate.

C.
C.

Ahern also

arguing that

leading to

that

Educ.
_____

a separate

he was deprived due process

enjoyed

constitutional

district

made several

court

adequacy of the

correctly

in the proceedings

protections

rejected

his

In the district

this

his

effect, but

the

challenges to

the

notice and opportunity to be

-25-

in

See Cleveland Bd. of


___ ________________

532 (1985).

arguments to

claim,

There is no dispute

employment with the UMB DPS.

v. Loudermill, 470 U.S.


__________

court, he

due process

the termination of his job.

Ahern

continued

raises

heard afforded

-25-

him prior to

his termination.

On appeal

Ahern has

waived

these arguments.

Ahern's

this due process

and

only

argument on

recording

respect to

claim is that the UMB defendants "destroyed

manipulated evidence in

claims that

appeal with

bad faith."

In particular, he

the UMB defendants concealed or destroyed a tape

of an

interview with

Igoe conducted

by McBride;

this

would

argues,

people

by

have

proved

showing that

relevant

Igoe

had made the threatening

and

thought

that two

phone calls to

also claims that the defendants used a

to

exculpatory,

Ahern

different

him.

Ahern

log of the calls made

Igoe that was prepared by McBride, rather than Igoe's own

actual

log of calls.

According to Ahern, McBride's version

was incomplete and Ahern was

thus prejudiced in his

ability

to show that some of the calls were not made by him.

We readily

reject Ahern's

evidence that witnesses

Ahern prior

have

Igoe

the

and

There

is no

were unavailable for examination

to his termination hearing;

adduced

questioning

argument.

Ahern could readily

allegedly-concealed

McBride.

by

Likewise,

information

he

could

by

have

discovered

UMB's

alleged

evidence by examining Igoe,

destruction and

who would have had no

lie at the pretermination hearing, and who

deposition that

he believed

the threatening phone calls.

most, the

manipulation

of

reason to

later admitted in

that two different

people made

Furthermore, it appears that at

destroyed evidence would have

-26-26-

shown the existence

of

a second

caller;

Ahern

additional evidence he would

never

suggests that

have been able to show

never made the harassing and threatening calls.

Ahern was afforded a

arbitrator, who

evidence"

calls

concluded after reviewing

by

both

parties

convincingly" established

to Cate and Igoe.

say that Ahern was

the

that he

We note that

three-day hearing before an independent

presented

"clearly and

with

In these

the "plethora

that

the

of

evidence

that Ahern made

the

circumstances, we cannot

denied a fair opportunity to

contest his

termination.

III.
III.

We need only

qualified immunity.

add a

brief word on

the subject

of

The district court found that the law at

the time of Ahern's involuntary admission to

clearly identify

violate

U.S.

Arbour "did not

that O'Donnell and McBride's

the Constitution."

800, 818 (1982).

this issue is that the

See
___

Harlow v.
______

On appeal, Ahern's

actions might

Fitzgerald, 457
__________

sole argument on

disposition of the qualified immunity

question before the resolution of alleged factual disputes is

premature.

We disagree.

on

qualified

immunity

Holloway,
________

510 U.S. 510, 516 (1994); Wood v. Clemons, 89 F.3d


____
_______

immunity
________

is

set of

Cir. 1996).

facts,

a defendant is

entitled,

922, 927 (1st

a given

The question whether

question of

Because the

to the

protection of

law.

See Elder v.
___ _____

entitlement is

"an

from suit rather than a mere defense to liability,"


____ ____

-27-27-

Mitchell v. Forsyth,
________
_______

Court has

immunity

472 U.S. 511,

repeatedly "stressed

questions

litigation,"

Hunter
______

(citations omitted).

at

the

526 (1985), the

the importance

earliest

v. Bryant,
______

502

possible

U.S.

Supreme

of resolving

stage

224, 227

in

(1991)

Finally,

claims,

the

defendants

Gen.

Ahern

district

are entitled

Laws ch. 123,

civil

suits for

police

officers

chapter 123.

officers

claims.

statute,

that,

erred

in

to statutory

22.

on

his

state-law

ruling

that

immunity under

physicians,

who act

qualified

"pursuant

to

have already

conformance with

Mass.

psychologists,

and

the provisions"

of

determined that

the statute,

this provision on

that

she was

the state-law

responsible

decision to detain and transport Ahern to Arbour.

error.

IV.

the

they were

similarly acted within the bounds

the extent

the

This section creates immunity from

immunity under

Dr. Moran

to

court

Because we

acted in

entitled to

argues

of the

for the

We find no

IV.

For

district

the

court is

foregoing reasons,

AFFIRMED.
AFFIRMED.
________

the

judgment of

the

Costs on appeal awarded to


Costs on appeal awarded to
_____________________________

Defendants-appellees.
Defendants-appellees.
____________________

-28-28-