PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ANTHONY MARC MORA,
Plaintiff-Appellant,
v.
THE CITY OF GAITHERSBURG,
MARYLAND; MARY ANN VIVERETTE,
Chief, Gaithersburg City Police;
CHRIS BONVILLAIN, Lieutenant,
Gaithersburg City Police; R. N.
ELLIOTT, Lieutenant, Gaithersburg
City Police; PATRICK A. WORD,
Detective, ID #7762, Gaithersburg
City Police; RAYMOND K. CAMPBELL,
Officer, Gaithersburg City Police; P.
VOIT, Officer, Montgomery County
Police Department; JAMES STADTLER, No. 06-2158
PO I, ID #9442, Montgomery
County Police Department; KEN
ELSTON, PO III, Montgomery
County Police Department; ROBERT
UTTER, Corporal, Montgomery
County Police Department; EATON,
Officer, Montgomery County Police
Department; S. SCARFF, Sergeant,
Montgomery County Police
Department; JOHN DOE-I, Officer,
Montgomery County Police
Department; JOHN DOE-II, Officer,
Montgomery County Police
Department; JOHN DOE-III, Officer,
Gaithersburg City Police;
2 MORA v. CITY OF GAITHERSBURG
JOHN DOE-IV, Officer, Gaithersburg
City Police; JOHN DOE-V, Deputy,
Montgomery County Sheriff’s
Department; JOHN DOE-VI, Deputy,
Montgomery County Sheriff’s
Department,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Peter J. Messitte, District Judge.
(8:05-cv-01993-PJM)
Argued: December 6, 2007
Decided: March 4, 2008
Before WILKINSON and SHEDD, Circuit Judges, and
James P. JONES, Chief United States District Judge for the
Western District of Virginia, sitting by designation.
Affirmed as modified by published opinion. Judge Wilkinson wrote
the opinion, in which Judge Shedd and Judge Jones joined.
COUNSEL
ARGUED: Howard J. Fezell, Frederick, Maryland, for Appellant.
Victoria Marie Shearer, KARPINSKI, COLARESI & KARP, P.A.,
Baltimore, Maryland; Sharon Veronica Burrell, COUNTY ATTOR-
NEY’S OFFICE, Rockville, Maryland, for Appellees. ON BRIEF:
Richard T. Colaresi, KARPINSKI, COLARESI & KARP, P.A., Balti-
more, Maryland, for City of Gaithersburg Appellees; Marc P. Hansen,
Acting County Attorney, Patricia P. Via, Chief, Division of Litiga-
MORA v. CITY OF GAITHERSBURG 3
tion, COUNTY ATTORNEY’S OFFICE, Rockville, Maryland, for
Appellee Officer James Stadtler.
OPINION
WILKINSON, Circuit Judge:
At Columbine High School in Littleton, in Blacksburg, Omaha, and
Oklahoma City, America has had to learn how many victims the vio-
lence of just one or two outcasts can claim. These new predators are
not terrorists in the ordinary sense; they are not linked to foreign pow-
ers or international organizations hostile to the United States. They
are often isolated but heavily armed, filled to the brim with rage and
anguish, and bent not just on murder, but on indiscriminate slaughter
followed, frequently, by suicide. Violent derangement is nothing new,
of course, but the atrocities seem to be growing at once more shock-
ing and more commonplace.
This case presents the question of what emergency preventive
action police may take, consistent with the Fourth and Fourteenth
Amendments, when they learn of an individual who may well intend
a similar slaughter, but who has neither committed nor attempted any
crime. The legal issues are somewhat novel, and so we proceed with
two values in mind: the need to prevent massacres whose human costs
are beyond comprehension, and the need to preserve civil liberty for
those who may be angry and depressed but not ultimately violent, and
who cannot under our constitutional traditions be treated like crimi-
nals when they have committed no crime.
I.
At 1:02 P.M. on July 23, 2002, Maryland police received a call
from a healthcare hotline operator. The operator said that she had just
spoken to Anthony Mora, a local firefighter, who told her he was sui-
cidal, had weapons in his apartment, could understand shooting peo-
ple at work, and said, "I might as well die at work." By 1:03, multiple
units were en route to Mora’s apartment. By 1:04, police had called
one of Mora’s co-workers, who confirmed that Mora’s threats should
4 MORA v. CITY OF GAITHERSBURG
be taken seriously; at some point, police also learned that Mora’s girl-
friend had recently ended her relationship with him. Police arrived to
find Mora in the parking lot loading suitcases and gym bags into a
van, and they approached with guns drawn. By 1:13, Mora was hand-
cuffed and on the ground. No warrant had been sought.
At that point, police and Mora began talking, and police began
searching — whether with consent or without is disputed. Police first
searched Mora’s luggage and van, finding one .32-caliber handgun
round in a suitcase. Next, taking Mora’s keys, they entered his apart-
ment, where they found a large gun safe in the kitchen and every inte-
rior door (including bathroom and closets) locked. Mora relinquished
the combination under pressure, and inside police discovered twelve
handguns, eight rifles, one shotgun, and keys to a second safe. Open-
ing the interior doors, the second safe, and a locked file cabinet,
police found guns, ammunition, gun accessories, and what police cal-
led "survival literature" in every room but the bathroom.
At that point, two officers drove Mora to a hospital to see a psychi-
atrist. See Md. Code Ann., Health-General § 10-622(a) (LexisNexis
2005) (authorizing involuntary emergency psychiatric evaluation if an
individual has a mental disorder and presents a threat to his own
safety or that of others). The other officers re-entered the apartment
to seize Mora’s weapons. All told, they removed forty-one firearms
— some apparently automatic, semi-automatic, or assault-style, and
some loaded — as well as five-thousand rounds of ammunition, vari-
ous accessories, and survivalist publications. The Gaithersburg police
department took that property into custody. Again, no warrant had
been sought.
We do not precisely know what the psychiatrist who saw Mora that
day concluded, but Mora was not involuntarily committed, though he
voluntarily admitted himself and stayed at the hospital for several
days. There were also no criminal charges brought against him based
on the day’s events, then or at any other time. After his stay in the
hospital, Mora returned home, where he discovered that his firearms
and associated property were missing. Over the next few months, he
moved to Pennsylvania. Meantime, the Gaithersburg police com-
pleted their investigation (which showed that Mora was a licensed
gun collector and did not have a disqualifying criminal conviction)
MORA v. CITY OF GAITHERSBURG 5
and closed the case administratively, storing the seized property in
their evidence room.
In 2003, through counsel, Mora inquired about getting his property
returned, and Gaithersburg police did eventually return the accesso-
ries and survival literature — but not the guns and ammunition.
Before getting those back, police told Mora, he would need to fill out
their "Application for the Return of Firearms," which states: "The
purpose of this Application is to determine if the Gaithersburg Police
Department can lawfully return the firearm(s) to the Applicant, and
if the Applicant can lawfully possess the firearm(s) . . . ." Mora,
apparently taking exception to the form’s questions about mental
health (e.g., "Do you suffer from any mental illness?") and alcohol
use (e.g., "How often do you consume alcoholic beverages?"), refused
to fill it out. The police in turn refused to return the weapons.
Two more years went by. Then in 2005, Mora again contacted the
Gaithersburg police through counsel, this time demanding the return
of his property. He still refused to fill out the Gaithersburg firearms
application, but he submitted all of the information required for Mary-
land state’s firearms application, arguing that the state’s preemption
rules barred the city from insisting on questions additional to those
imposed by state law. See Md. Code Ann., Criminal Law § 4-209(a)
(LexisNexis 2002) ("[T]he State preempts the right of a . . . municipal
corporation . . . to regulate the purchase, sale, taxation, transfer, man-
ufacture, repair, ownership, possession, and transportation of a hand-
gun, rifle, or shotgun . . . ."); Md. Code Ann., Public Safety §§ 5-104,
-133(a), -134(a) (LexisNexis 2003) (same). The differences between
the Gaithersburg and Maryland questions are subtle ones, but were
enough to become a bone of contention: Gaithersburg asked, for
example, whether an applicant has "any mental illness" or "currently
attend[s] Alcoholics Anonymous," while the state asked whether one
has spent "more than 30 consecutive days in a medical institution for
treatment of a mental disorder," or qualifies as a (statutorily defined)
"habitual drunkard." See Md. Code Ann., Public Safety § 5-118(b)
(LexisNexis 2003). The Gaithersburg police continued to insist on an
investigation based on answers to the questions in their form.
In July 2005, Mora filed suit in Maryland federal court, naming as
defendants the city of Gaithersburg, the Gaithersburg Chief of Police,
6 MORA v. CITY OF GAITHERSBURG
and various other individual officers. Notably, the complaint did not
challenge the seizure of Mora’s person. Instead, invoking 42 U.S.C.
§ 1983, it alleged that the searches of Mora’s luggage, van, and apart-
ment violated the Fourth Amendment; that the initial seizures of his
property violated the Fourth Amendment; and that the continued
retention of his weapons violated the Due Process Clause of the Four-
teenth Amendment. The complaint also included state law claims for
trespass to chattels and trover and conversion. It closed by demand-
ing, along with damages, an injunction ordering the weapons
returned. Defendants moved for summary judgment.
The district court ruled in two stages. First, at a hearing in January
2006, the court took up Mora’s Fourth Amendment claims. The court
emphasized at the outset that the police presence at the scene and sei-
zure of Mora’s person was indisputably proper — a point that
deserved stress, in the court’s view, "because much of what follows
flows from that salient, primary fact." The court then held the
searches of Mora’s luggage and van to be incident to a lawful arrest
or seizure, and the search of his home to be justified by exigent cir-
cumstances (chiefly the possibility of a bomb in the apartment). Thus
the searches — and, the court mentioned in passing, the initial seizure
of property too — were constitutionally reasonable, and even if they
were not "it hardly needs to be said that . . . there would be qualified
immunity."
The court then addressed the City of Gaithersburg’s authority to
retain the weapons. See Mora v. City of Gaithersburg, 462 F. Supp.
2d 675 (D. Md. 2006). First, it took up Mora’s argument that the
firearms-related questions he found so objectionable on Gaithers-
burg’s form were improperly asked because preempted by state law
— holding, after examining state law at length, that the questions
were indeed preempted. But even so, a "violation of state law, without
more, does not amount to a due process violation." Id. at 693. To the
extent Mora’s claim sounded in procedural due process, the court rea-
soned, the availability of Maryland’s state courts (of which Mora had
never availed himself) barred a federal § 1983 suit for denial of pro-
cess. And on the substantive side, the retention of Mora’s firearms,
even if erroneous, was not so arbitrary as to violate the substantive
dimensions of due process — especially, again, with the state courts
available to correct the error. Finally, the court held that Gaithersburg
MORA v. CITY OF GAITHERSBURG 7
and its Chief of Police had immunity under Maryland state law from
Mora’s claims for trespass to chattels and trover and conversion.
Mora timely appealed.
II.
The officers who seized Mora and his weapons were engaged in a
preventive action aimed at incapacitating an individual they had rea-
son to believe intended a crime. Preventive actions raise somewhat
different constitutional questions than the typical backwards-looking
criminal investigation or immediate police response to a crime
already in motion. When the crime is as extreme and the need to pre-
vent it as great as with potential mass murder, the constitutional ques-
tions take on special urgency and a certain novelty. We therefore
pause to consider general principles of law in this area.
A.
The Fourth Amendment and Due Process Clause are citizens’ chief
constitutional protections against police excess. But the Amendments
are not rigid; they protect by insisting on judicial oversight, not by
pressing inflexible rules. Thus, although the Due Process Clause typi-
cally requires a criminal conviction before a person may be deprived
of liberty, the requirement is not a "categorical imperative." United
States v. Salerno, 481 U.S. 739, 748 (1987). In certain circumstances,
a pragmatic concern for public safety permits detaining, without crim-
inal conviction, the mentally ill, Addington v. Texas, 441 U.S. 418
(1979); dangerous suspects awaiting trial, Schall v. Martin, 467 U.S.
253 (1984) (juveniles), Salerno, 481 U.S. 739 (adults); recidivist sex
offenders, Kansas v. Hendricks, 521 U.S. 346 (1997); and enemy
combatants, Hamdi v. Rumsfeld, 542 U.S. 507 (2004).
Likewise, the Fourth Amendment favors a warrant based on proba-
ble cause, but "because the ultimate touchstone of the Fourth Amend-
ment is ‘reasonableness,’ the warrant requirement is subject to certain
exceptions," Brigham City v. Stuart, 126 S. Ct. 1943, 1947 (2006) —
as when exigent circumstances justify the warrantless search of a
home, Mincey v. Arizona, 437 U.S. 385, 393-94 (1978), or when the
need for on-the-spot response justifies a search and seizure based on
reasonable suspicion, Terry v. Ohio, 392 U.S. 1 (1968). The lesson of
8 MORA v. CITY OF GAITHERSBURG
these cases is clear: We are to approach the Fourth Amendment and
the Due Process Clause with at least some measure of pragmatism. If
there is a grave public need for the police to take preventive action,
the Constitution may impose limits, but it will not bar the way.
Our task, then, is to develop a framework for analyzing the consti-
tutionality of preventive action. We need not start from square one;
leading Fourth and Fourteenth Amendment precedents suggest a way.
Indeed, the Court has addressed the issue of preventive action itself
in Terry, where a policeman stopped and frisked several men without
a warrant after watching them repeatedly pace in front of and peer
into a store. To the officer’s eye, the men seemed to be casing the
store for a robbery, but at that point they had neither committed nor
attempted any crime; the question before the Court was whether a
stop-and-frisk was permissible to head off the crime. In answering,
the Court applied "the Fourth Amendment’s general proscription
against unreasonable searches and seizures" and stressed that "there
is no ready test for determining reasonableness other than by balanc-
ing the need to search or seize against the invasion which the search
or seizure entails." Id. at 20-21 (quotation omitted). Thus the Court
focused first on "the governmental interest which allegedly justifies
official intrusion" (the interest in "effective crime prevention and
detection") and second on "the nature and quality of the intrusion on
individual rights," both evaluated "in light of the particular circum-
stances." Id. at 21-22, 24 (quotation omitted). The Court ultimately
approved the search and seizure, of course, preventive though it was.
This approach — identifying the individual and governmental
interests at stake and balancing them for reasonableness in light of the
circumstances — has become part of the landscape in Fourth and
Fourteenth Amendment cases, and indeed in constitutional adjudica-
tion generally. See, e.g., Hudson v. Michigan, 126 S. Ct. 2159, 2165-
68 (2006) (taking a balancing approach under the Fourth Amendment
to the application of the exclusionary rule); Vernonia Sch. Dist. 47J
v. Acton, 515 U.S. 646, 652-53 (1995) (same for school sports urinal-
ysis tests); Salerno, 481 U.S. at 748-51 (1987) (taking a balancing
approach under the Due Process Clause to liberty from civil confine-
ment); Mathews v. Eldridge, 424 U.S. 319, 334-35 (1976) (same for
property interests in disability cases).
MORA v. CITY OF GAITHERSBURG 9
B.
As in Terry, we turn first to the government’s interest. Protecting
the physical security of its people is the first job of any government,
and the threat of mass murder implicates that interest in the most
compelling way. Police, then, simply must be entitled to take effec-
tive preventive action when evidence surfaces of an individual who
intends slaughter. This is the lesson of a variety of recent school cases
in which students have made Columbine-style threats, been sus-
pended or expelled, and then sued — cases which have almost uni-
formly been decided in defendants’ favor. See, e.g., Ponce v. Socorro
Indep. Sch. Dist., 508 F.3d 765 (5th Cir. 2007); Boim v. Fulton
County Sch. Dist., 494 F.3d 978 (11th Cir. 2007); Porter v. Ascension
Parish Sch. Bd., 393 F.3d 608 (5th Cir. 2004); Williams v. Cambridge
Bd. of Educ., 370 F.3d 630 (6th Cir. 2004); Doe v. Pulaski County
Special Sch. Dist., 306 F.3d 616 (8th Cir. 2002) (en banc); LaVine v.
Blaine Sch. Dist., 257 F.3d 981 (9th Cir. 2001). Concerns about vio-
lence and other threats to public safety have also motivated many of
the Supreme Court’s cases permitting confinement without conviction
under the Due Process Clause, see, e.g., Hamdi, 542 U.S. at 531, 580
(enemy combatants); Hendricks, 521 U.S. at 357-58 (sex offenders);
Salerno, 481 U.S. at 748-49 (dangerous adults held without bail);
Schall, 467 U.S. at 264-65 (dangerous juveniles held without bail);
Addington, 441 U.S. at 426 (the mentally unstable), and searches or
seizures without a warrant or probable cause under the Fourth
Amendment, see, e.g., Maryland v. Buie, 494 U.S. 325, 333 (1990)
(protective sweeps of a home); Michigan v. Long, 463 U.S. 1032,
1049-50 (1983) (protective automobile searches); Terry, 392 U.S. at
24 (protective personal searches); Warden, Md. Penitentiary v. Hay-
den, 387 U.S. 294, 298-99 (1967) (exigent circumstances). Respect-
ing the rights of individuals has never required running a risk of mass
death.
And yet the Constitution does not permit a gloves-off approach to
the individual interests on which preventive action encroaches — typ-
ically liberty and privacy, and sometimes property — particularly
because the conduct targeted in preventive action is necessarily non-
criminal. There must be principles of constraint. Terry is again
instructive: It insists, first, that preventive searches and seizures be
objectively reasonable, 392 U.S. at 21-22; second, that the intrusion
10 MORA v. CITY OF GAITHERSBURG
be based on "specific and articulable facts which, taken together with
rational inferences from those facts, reasonably warrant that intru-
sion," id. at 21; and, third, that the scope of the intrusion be "strictly
tied to and justified by the circumstances which rendered its initiation
permissible," id. at 19 (quotation omitted). To be sure, Terry involved
a somewhat different type of preventive action ("predicated upon the
on-the-spot observations of the officer on the beat," id. at 20) than the
one at issue here. But these three principles apply in both contexts.
And similar principles of constraint are present in even relatively per-
missive rulings governing police action. See, e.g., Buie, 494 U.S. at
334-36 (requiring that protective sweeps of homes be brief, limited in
scope, and based on "articulable facts" indicating that a dangerous
third party might be present); Salerno, 481 U.S. at 751 (requiring
"clear and convincing evidence" of future dangerousness to justify
pretrial detention). These principles are a part of our constitutional
tradition.
Given the recurring tension between governmental and individual
interests in the preventive action context, the question becomes what
tips the balance in a particular case. The relevant "specific and articul-
able" facts in Terry were those that tended to show the likelihood that
a crime would come to pass — namely the suspicious pacing about
and peering into the target store. The likelihood or probability that a
crime will come to pass plays a role in other prevention-oriented
cases as well. See, e.g., Hendricks, 521 U.S. at 360 ("Hendricks even
admitted that, when he becomes ‘stressed out,’ he cannot ‘control the
urge’ to molest children."). But so do two other factors. The first is
how quickly the threatened crime might take place — for as the doc-
trine of exigent circumstances has long held, "a plausible claim of
specially pressing or urgent law enforcement need" can justify a war-
rantless search or seizure. Illinois v. McArthur, 531 U.S. 326, 331
(2001). The second is the gravity of the potential crime; even in limit-
ing the police power to set up roadblocks, for example, the Supreme
Court has recognized that "the Fourth Amendment would almost cer-
tainly permit an appropriately tailored roadblock set up to thwart an
imminent terrorist attack." City of Indianapolis v. Edmond, 531 U.S.
32, 44 (2000). The principle, then, is this: As the likelihood, urgency,
and magnitude of a threat increase, so does the justification for and
scope of police preventive action. In circumstances that suggest a
MORA v. CITY OF GAITHERSBURG 11
grave threat and true emergency, law enforcement is entitled to take
whatever preventive action is needed to defuse it.
Thus the proper application of a balancing test in preventive action
cases respects the room for judgment that law enforcement must
enjoy in any emergency where lives are on the line. The balance is
struck with due deference for the difference in perspective between
an officer who must make snap judgments in minutes or seconds, and
a judge who has "the 20/20 vision of hindsight." Graham v. Connor,
490 U.S. 386, 396 (1989). And whether the officers’ actions are later
reviewed as a matter of the Fourth Amendment merits or on a defense
of qualified immunity, we ask only for objective reasonableness —
"objective" because we do not try to read an officer’s mind, and "rea-
sonableness" because the term itself implies, above all, real respect
for those charged with the front-line protection of human life.
The chief strength of balancing tests is that they are attuned to indi-
vidual circumstances. Their chief weakness is uncertainty of guid-
ance. The inevitable imprecision in any balancing equation, however,
should not lead to a regime in which officers necessarily face no lia-
bility for failing to act, DeShaney v. Winnebago County Dept. of Soc.
Servs., 489 U.S. 189 (1989), but who, upon acting, are subjected to
the most exacting scrutiny (potentially for damages under 42 U.S.C.
§ 1983) — a regime of inverted incentives that would "inhibit offi-
cials in the discharge of their duties," Anderson v. Creighton, 483
U.S. 635, 638 (1987). For the public interest is "not served by a police
force intent on escaping liability to the cumulative detriment of those
duties which communities depend upon such officers to perform."
Gooden v. Howard County, 954 F.2d 960, 967 (4th Cir. 1992) (en
banc). Inaction, no less than action, has its costs — a failure of
response where one is called for permits the blasts of the gunman to
shatter those connections that human beings hold most dear.
III.
We now apply these principles to Mora’s three major arguments:
that the police searches of his luggage, van, and apartment violated
his Fourth Amendment rights; that the initial seizures of his guns,
ammunition, firearms accessories, and survival literature violated his
Fourth Amendment rights; and that the retention of his guns and
12 MORA v. CITY OF GAITHERSBURG
ammunition violates his Fourteenth Amendment due process rights.
In the background are qualified immunity questions, but we do not
address them here — for the first step in any qualified immunity
inquiry is to examine whether the plaintiff’s rights were violated. Sau-
cier v. Katz, 533 U.S. 194, 201 (2001).
A.
Mora argues that the officers, having handcuffed him and laid him
face down on the ground, had accomplished the purpose for which
they had come — subduing him — and had no business going on to
search his luggage, van, and apartment without a warrant. The district
court upheld the searches under two traditional exceptions to the war-
rant requirement, one for searches incident to a lawful arrest or sei-
zure (which the court applied to the search of Mora’s luggage and
van), and the other for exigent circumstances (which the court applied
to the more constitutionally sensitive search of Mora’s home). But the
first exception, Mora argues, is based on the risk that a suspect might
reach into his car or bag for a weapon. Chimel v. California, 395 U.S.
752, 762-63 (1969). The second exists for emergencies in which
speed is essential to prevent escape or harm to police or others.
Mincey v. Arizona, 437 U.S. 385, 394 (1978). Neither applies, Mora
argues, when he was so thoroughly under police control prior to the
searches.
Our analysis begins with what the district court called the "salient,
primary fact" in this case: the overwhelming justification police had
for rushing immediately to Mora’s home and taking him into custody.
Mora’s phone call to the hotline operator, as she reported it to the
police, showed a man on the edge, a man who was armed, suicidal,
and inclined to kill his co-workers on the way out. His last, chilling
remark, "I might as well die at work," was ambiguous to be sure, but
it intimates a massacre, and his co-worker confirmed that the threat
was serious. The very concept of an emergency was made for this sit-
uation, and police responded in emergency mode, dispatching to
Mora’s home within one minute of the hotline operator’s call and
apprehending him the moment they arrived with guns drawn. Mora
does not dispute the legality of this response, nor could he.
These facts implicate exactly the interests we discuss above, pitting
the individual interest in privacy against an overwhelming govern-
MORA v. CITY OF GAITHERSBURG 13
mental need to respond to a credible and urgent threat of mass homi-
cide. Balancing these interests, we noted earlier that officers in such
situations may take those steps that are needed to defuse the threat.
See supra Part II. Implicit in Mora’s argument, however, is the
assumption that the emergency he created came immediately to an
end when he was handcuffed.
We do not agree. The authority to defuse a threat in an emergency
necessarily includes the authority to conduct searches aimed at uncov-
ering the threat’s scope. When police arrived at Mora’s apartment and
handcuffed him, they did not and could not fully know the dimensions
of the threat they faced. They knew only that they faced an emer-
gency of the kind that has traditionally justified warrantless searches,
even into a home. See Mincey, 437 U.S. at 392-94 (recognizing that
warrantless entry into a home is permitted in exigent circumstances).
As the district court emphasized, Mora might have had a bomb — not
an unprecedented thing for men in his state of mind. Or as the com-
manding officer at the scene pointed out in his report, Mora might
have taken hostage the girlfriend who, police knew, had recently bro-
ken up with him. Or Mora might have had a confederate. Even in the
context of an ordinary criminal arrest, handcuffing a suspect outside
his car does not eliminate officers’ authority to search the passenger
compartment for weapons or evidence. Thornton v. United States, 541
U.S. 615 (2004). As the Supreme Court has held, "[a] custodial arrest
is fluid and the danger to the police officer flows from the fact of the
arrest, and its attendant proximity, stress, and uncertainty." Id. at 621
(emphasis in original, quotation omitted). In an emergency situation
presenting even greater "proximity, stress, and uncertainty," officers
are entitled to find out what they are up against, and they often cannot
find it out without conducting searches.
Searching Mora’s bags, car, and home was thus part and parcel of
defusing the threat he presented, and just as police had the authority
to seize him without a warrant in the course of defusing that threat,
so too could they conduct a warrantless search of his surroundings.
B.
Mora next challenges the seizure of his guns, ammunition, firearms
14 MORA v. CITY OF GAITHERSBURG
1
accessories, and survival literature. First, he questions whether there
was any basis under the Fourth Amendment for taking property that
was not contraband or evidence of a crime and that presented no
immediate danger to the officers. Second, he argues that the Fourth
Amendment’s warrant requirement had surely taken hold by the time
police took his property, for at that point he was already in a police
cruiser en route to the hospital.
Again, we begin with the facts. The warning of a credible, life-and-
death threat that led police to rush to Mora’s home and search his
apartment was corroborated by what they found: a home locked up
from the inside like a fortress, with a gun safe in the kitchen holding
twenty-one handguns, rifles, and shotguns. Unlocking the interior
doors, the officers found weapons everywhere, including another
twenty guns of the most deadly varieties (some loaded and ready for
use), more than five-thousand rounds of ammunition, and various
firearms accessories along with an assortment of magazines and vid-
eos described as "survival literature." An affidavit from the com-
manding officer at the scene states that "because of Mora’s
statements, the condition of the apartment, Mora’s history of mental
health issues, the presence of various survival literature, and the fact
that Mora lived in a garden apartment and bullets could penetrate his
neighbors’ apartments, we believed that Mora possessed weapons that
would render him capable of causing great harm to himself and the
community" once he returned from the hospital, and thus "we decided
to secure all weapons and ammunition for safekeeping to protect Mr.
Mora and the public."
This public safety rationale was a sound basis for seizing Mora’s
weapons, whether or not they were contraband or evidence, for the
authority to defuse the threat Mora presented comprehended the
authority to take the weapons that made him so threatening. There are
no shortage of precedents approving preventive seizures for the sake
1
Mora’s literature was returned, but he nonetheless argues on appeal
that its seizure violated the First Amendment as well as the Fourth. The
point was never argued before the district court or addressed by the dis-
trict court, and we decline to address it here. See Singleton v. Wulff, 428
U.S. 106, 121 (1976); Wheatley v. Wicomico County, Md., 390 F.3d 328,
334 (4th Cir. 2004).
MORA v. CITY OF GAITHERSBURG 15
of public safety. See, e.g., Scott v. Harris, 127 S. Ct. 1769 (2007)
(permitting officers to protect bystanders by ramming into a fleeing
driver’s car); South Dakota v. Opperman, 428 U.S. 364, 368-69
(1976) (permitting officers to protect drivers by towing vehicles that
block roads); Terry v. Ohio, 392 U.S. 1 (1968) (permitting officers to
protect potential victims of crime by seizing the potential criminal).
And the commanding officer’s decision to remove the weapons, made
in the face of a situation rife with the potential for tragic conse-
quences both to the public and to Mora himself, is not one that judges
acting "with due respect for the perspective of police officers on the
scene and not with the greater leisure and acquired wisdom of judicial
hindsight" should overturn. Gooden v. Howard County, 954 F.2d 960,
964-65 (4th Cir. 1992) (en banc); see also Graham v. Connor, 490
U.S. 386, 396 (1989).
Mora argues that the public safety rationale cannot be accepted
because he was a registered firearms collector with a lawful firearms
collection. But lawful though the collection might have been, police
were under no obligation to give it an innocent interpretation in light
of the circumstances that led them to be at Mora’s home in the first
place. No more would they be required to overlook the chemistry
equipment and extremist paraphernalia of someone who had threat-
ened to make bombs.
Mora argues, however, that the whole public safety rationale is a
"pretext" because Maryland’s involuntary admission statute "did not
permit a doctor to release him if he presented a danger to the life or
safety of himself or others." Brief of Appellant at 12; see also Md.
Code Ann., Health-General § 10-625 (LexisNexis 2005) (requiring
involuntary admission if a patient has a mental disorder, is dangerous
to himself or others, needs inpatient treatment, and refuses voluntary
admission). This argument implies that once police transferred Mora
to a psychiatrist, the responsibility for ensuring public safety passed
to the psychiatrist as well; the officers could wash their hands of the
situation, their job done. But protecting public safety is why police
exist, and nothing in Maryland’s involuntary admission statute sup-
ports the remarkable suggestion that, by handing Mora over to doc-
tors, the officers relinquished authority over the thing for which they
are under law chiefly responsible. A psychological evaluation would
not change what the officers already knew: that Mora was unstable
16 MORA v. CITY OF GAITHERSBURG
and heavily armed, and a risk to himself and others. Indeed, had they
not taken the weapons, and had Mora used those weapons to cause
harm, the officers would have been subject to endless second-
guessing and doubtless litigation as well, just as the officers and
teachers at Columbine were challenged for red flags they had over-
looked before that tragedy. See Castaldo v. Stone, 192 F. Supp. 2d
1124 (D. Colo. 2001).
The remaining question is whether, with Mora en route to the hos-
pital, the officers should have gotten a warrant before seizing his
property. While the dissipation of an emergency, even one as dire as
this one, would dissolve the justification for preceding in the absence
of a warrant, we are unwilling to say the emergency that brought on
the seizure disappeared as quickly as Mora would have us think. The
officers were entitled to take into account the nature of the threat that
led to their presence at the scene, and the corroborating fact of a veri-
table fortress of weapons and ammunition they found when they
arrived. Moreover, in the rapidly unfolding series of events, the offi-
cers could not be sure of exactly what it was they confronted. They
had no way of knowing whether confederates might possess access to
Mora’s considerable store of firearms, or whether Mora himself might
return to the apartment more quickly than expected and carry out
some desperate plan. Further, it was unclear whether the weapons
themselves might become evidence in a forthcoming prosecution,
making the need to guard against their disappearance great.
Given these circumstances, to say the emergency vanished when
Mora was heading to the hospital is to slice the situation too finely
and employ hindsight too readily to actions aimed — as we cannot
overemphasize — at heading off a human tragedy that, once visited,
could not be redeemed or taken back.
C.
Finally, Mora argues that the police’s continued retention of his
guns and ammunition violates his Fourteenth Amendment right not to
be deprived of property without due process of law. He stresses that
the weapons are not contraband or evidence; there is no question of
his rightful ownership; and the police allege no crime that would for-
feit his right to possess what he owns. Police can advance, Mora
MORA v. CITY OF GAITHERSBURG 17
argues, only one basis for their authority to retain the weapons:
Mora’s refusal to answer the questions on the Gaithersburg applica-
tion for the return of firearms. The objectionable questions on that
form, Mora insists, are not authorized by Maryland state law, which
preempts local law on matters of firearms regulation. Mora has
answered all the questions required under state law. Thus, he claims,
the sole basis for retaining his property collapses, and he is entitled
to an injunction ordering it returned.
We do not address the merits of this preemption argument — or
any other argument concerning the Gaithersburg police department’s
authority to retain Mora’s weapons. The premise that depriving some-
one of property without any legal authority to do so violates the Due
Process Clause is unexceptionable. But it would be ill-advised if not
impossible for us to decide whether the Gaithersburg police are with-
out authority to retain Mora’s weapons, because nestled in Mora’s
due process claim are two state law questions that we should not or
cannot answer.
The first is whether Maryland firearms law really does preempt the
questions on Gaithersburg’s form. This issue is difficult not only
because it tasks us with interpreting Maryland’s preemption provi-
sions (the sole focus for the district court), but also because it is not
clear whether the questions to which Mora objects in fact conflict
with Maryland law. Mora claims, for example, that Gaithersburg’s
question — "Do you suffer from any mental illness?" — goes beyond
the closest equivalent question on Maryland’s firearms application
form, which asks if the applicant has spent "more than 30 consecutive
days in a medical institution for treatment of a mental disorder." Md.
Code Ann., Public Safety § 5-118(b)(vii) (LexisNexis 2003). The
Gaithersburg question may be more demanding, but whether Mary-
land courts would regard it as preempted is for them to ascertain —
particularly in light of Maryland’s other legal provisions governing
firearms and mental disability. See id. at § 5-122(a)(3) (requiring that
a firearms application be rejected if the Secretary of State Police
learns from a physician that the applicant "suffers from a mental dis-
order and is a danger"); §§ 5-133(b)(6), -134(b)(8) (requiring a physi-
cian’s approval before anyone may transfer firearms to a person with
"a mental disorder" and "a history of violent behavior," or before such
a person may possess them).
18 MORA v. CITY OF GAITHERSBURG
The second state law question is still more important, and still more
beyond our capacity to answer: When and if the disputed Gaithers-
burg questions are set aside, is Mora otherwise entitled to possess
firearms under Maryland law? As noted, under Maryland’s adminis-
trative regime governing firearms, someone interested in "purchas-
[ing], rent[ing], or transfer[ring]" a firearm (which presumably
applies to someone seeking the return of seized firearms) must fill out
a form answering a number of factual questions — such as whether
the person has been "convicted of a disqualifying crime," is "addicted
to a controlled dangerous substance," or has "spent more than 30 days
in a medical institution for treatment of a mental disorder." Id. at
§§ 5-117, -118(b). But filling out the form is only the beginning. The
form goes to the Secretary of State Police, who is permitted to
approve it only after verifying the factual accuracy of the applicant’s
responses (say by checking police records). See id. at §§ 5-121, -122.
The Secretary has other investigative responsibilities as well, and
Maryland, as already discussed, has other legal requirements. See id.
at §§ 5-133, -134.
Mora submitted answers to the form in the course of requesting
that the Gaithersburg police return his weapons, but no entity — not
the Secretary of State Police or a state court — has made factual find-
ings as to whether his answers were truthful, and none has determined
his overall compliance with Maryland law. Needless to say, as a fed-
eral appellate court, we cannot find the facts and, lacking them,
should not make the legal judgments involved in resolving this issue.
It is unthinkable that we would issue an injunction ordering Mora’s
firearms returned on due process grounds, as he requests, when we
have no idea whether under Maryland law he is entitled to them.
The difficulty we would have in answering these two state law
questions and addressing Mora’s claim to his property on the merits
points the way toward the core problem — a procedural problem —
with his federal due process claim: Mora has not availed himself of
Maryland’s procedures for securing the return of his property. It is not
clear whether Mora’s claim sounds in procedural or substantive due
process. But whichever way we take it, the availability of state proce-
dures is fatal.
MORA v. CITY OF GAITHERSBURG 19
On the procedural side, the Supreme Court has held that "the exis-
tence of state remedies is relevant" for a § 1983 action based on pro-
cedural due process, for "[t]he constitutional violation actionable
under § 1983 is not complete when the deprivation occurs; it is not
complete unless and until the State fails to provide due process."
Zinermon v. Burch, 494 U.S. 113, 125-26 (1990) (emphasis in origi-
nal). This should come as no surprise. Procedural due process is sim-
ply a guarantee of fair procedures, id. at 125 — typically notice and
an opportunity to be heard, Goss v. Lopez, 419 U.S. 565, 579 (1975).
Mora has had, and continues to have, notice and an opportunity to be
heard in Maryland, and he cannot plausibly claim that Maryland’s
procedures are unfair when he has not tried to avail himself of them.
The state courts are open to him.2 We have been given no reason to
think the state process for redeeming his property rights, if those
rights were violated, is constitutionally inadequate. Mora simply
"found it unnecessary even to enter upon, let alone travel the entire
length of, that road." Amsden v. Moran, 904 F.2d 748, 755 (1st Cir.
1990).
On the substantive due process side, Mora must show that the Gai-
thersburg police department’s refusal to return his firearms is arbi-
trary, for "the touchstone of [substantive] due process is protection of
the individual against arbitrary action of government." County of Sac-
ramento v. Lewis, 523 U.S. 833, 845 (1998) (quotation omitted). We
have held that substantive due process violations "run only to state
action so arbitrary and irrational, so unjustified by any circumstance
or governmental interest, as to be literally incapable of avoidance by
any pre-deprivation procedural protections or of adequate rectification
by any post-deprivation state remedies." Rucker v. Harford County,
Md., 946 F.2d 278, 281 (4th Cir. 1991). And therein lies the problem
2
Besides his tort claims for trespass to chattels and conversion, Mora
might invoke Maryland’s statutory right to the return of property "right-
fully taken under a search warrant" but "wrongfully withheld after there
is no further need for retention of the property." Md. Code Ann., Crimi-
nal Procedure § 1-203(d)(1) (LexisNexis 2001). Although this provision
technically applies only where property was taken under a warrant, it
seems unlikely that a court would refuse to apply it to property rightfully
taken and wrongfully withheld under an exception to the warrant require-
ment.
20 MORA v. CITY OF GAITHERSBURG
for Mora. Even setting aside the dubious claim that it is arbitrary to
require someone like Mora to answer probing questions before return-
ing forty-one guns and five-thousand rounds of ammunition, the fact
is that any property deprivation he has faced is amenable to "rectifica-
tion by . . . post-deprivation state remedies." Id. Thus Mora’s substan-
tive due process claim fails for much the same reason his procedural
one did: Maryland’s treatment of him is hardly arbitrary when the
state has given him the means to correct the errors he alleges.
At the end of the day, Mora’s due process argument sounds like a
state law claim dressed up in due process clothing — like a wrongful
death action brought to federal court as a § 1983 claim for deprivation
of life without due process of law. Such suits are rarely favored, for
the Fourteenth Amendment is not meant to be "a font of tort law."
Lewis, 523 U.S. at 848 (quotation omitted). In our view, Mora’s claim
is basically one of conversion, trespass to chattels, or violation of
Maryland’s code of criminal procedure. Thus taking his claim as one
of state law, we decline to exercise supplemental jurisdiction. See 28
U.S.C. § 1367(c) (2000) (permitting federal courts to decline supple-
mental jurisdiction when a state claim "raises a novel or complex
issue of State law" or "substantially predominates" over federal
claims); United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726
(1966) ("[Supplemental] jurisdiction is a doctrine of discretion, not of
plaintiff’s right.").
IV.
We have reviewed Mora’s other federal claims and conclude they
are without merit. As to all of Mora’s federal claims, then, we affirm
the dismissal with prejudice. To hold otherwise would be to cross the
line between vindicating personal rights and punishing public officials
for nothing more than doing their jobs. As to Mora’s state claims, we
modify the district court’s judgment, dismissing without prejudice to
Mora’s ability to raise those state law claims in state court.
AFFIRMED AS MODIFIED