McCabe v. Life-Line Ambulance Service, Inc.

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. In this appeal by the City of Lynn
CYR, Circuit Judge.

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

ting forcible, warrantless entries of private residences to

enforce involuntary civil commitment orders, violates the Fourth

Amendment to the United States Constitution. The district court

granted summary judgment for plaintiff Mary McCabe, administra-

trix of the estate of Ruchla Zinger, a Holocaust survivor who

died in her Lynn home during a tragic attempt by City police to

execute an involuntary commitment order which had been issued

against her. For the reasons discussed in this opinion, we

conclude that the challenged City policy came within an exception

to the Fourth Amendment warrant requirement.

I
I

BACKGROUND
BACKGROUND

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

with a history of mental illness and psychiatric hospitalization,

as well as severe obesity and high blood pressure, resisted all

attempts at communication and intervention by family members.

She refused to be examined by a doctor after threatening her

former husband with physical harm and upsetting her downstairs

neighbors by causing loud and violent disturbances in her apart-

ment, thereby prompting her family to initiate eviction proceed-

ings against her.1 Subsequently, on September 6, 1989, a li-

censed psychiatrist, Dr. Jakov Barden, signed an application

1Ms. Zinger's former husband and their children owned the
building in which Ms. Zinger's apartment was located.

2

[hereinafter: "pink paper"] for a ten-day involuntary commitment

of Ms. Zinger pursuant to Mass. Gen. Laws Ann. ch. 123, 12(a),

based exclusively on the reports of family members and neighbors

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

The next morning, Constable Kenneth Jackson, who had

been unsuccessful in previous attempts to serve Ms. Zinger with

an eviction notice, and was scheduled to execute a judgment of

eviction against her at 1:00 p.m. that afternoon, learned that

the pink paper had been issued against Ms. Zinger the night

before, and contacted the Lynn police department. The constable

informed the Lynn police, based on his experience with Ms.

Zinger, that he believed she would resist committal. The consta-

ble and the Lynn police officers arranged to meet at the Zinger

apartment building at 1:00 p.m., to execute the pink paper and

the eviction order.

Three Lynn police officers and the constable arrived at

the Zinger apartment building at the appointed hour, accompanied

by a crew from the Life-Line Ambulance Service, which had been

engaged to restrain Ms. Zinger as necessary, physically remove

her from the apartment, and transport her to the hospital. After

receiving no response to their knocks, the officers kicked in the

outside apartment-house door and proceeded upstairs to the Zinger

apartment. The officers knocked and announced their presence,

received no response, and began to kick in the Zinger apartment

door. Ms. Zinger began screaming "Why are you kicking in my

door?" then cracked it open. Identifying themselves as police,

3

the officers told her that they were going to bring her under

medical care, to which she responded: "No doctors!" When she

began to close the door, the officers shoved their way inside.

Later, while the officers were forcibly removing her from the

apartment, Ms. Zinger suffered a cardio-respiratory arrest and

died.2

After McCabe, as administratrix, instituted this civil

rights action under 42 U.S.C. 1983 against the City, amongst

others,3 in September 1992, an amended complaint alleged an

2The only constitutional violation McCabe attributes to the
City is the forcible warrantless entry. In her cross-motion for
summary judgment, McCabe did not press her "excessive force"
claim that a City policy authorized or caused the police actions
utilized to restrain Ms. Zinger. See infra note 4. We now

summarize the allegations against the individual officers in
order to provide additional context.
After the officers pushed their way into her apartment and
Ms. Zinger began screaming, the officers forced her to the floor
on her stomach and handcuffed her hands behind her back. She
lost control of her bladder. The ambulance crew refused to carry
her down the stairs, asserting that she was too heavy. The
officers then placed her in a sitting position. With one officer
gripping her ankles and another holding her under her handcuffed
arms, she was carried to the stairs, then dragged down one step
at a time while still in a sitting position. At the bottom, the
ambulance crew strapped her onto the stretcher, face down. By
this time she had stopped screaming and the officers noticed that
her hands appeared blue and she was bleeding from her mouth. Ms.
Zinger was pronounced dead on arrival at the hospital.

3The judgment appealed from is nonetheless "final" as to all
parties and claims. See Fed. R. Civ. P. 54(b); 28 U.S.C. 1291.

The original ten-count complaint named as defendants, the City,
the dispatching police supervisor and the three individual police
officers who executed the pink paper (in their official and
individual capacities), the constable, the ambulance company, the
ambulance crew, Dr. Barden, and the Tri-City Mental Health and
Retardation Center where Dr. Barden worked. In addition to her
claims under 1983, McCabe alleged common-law assault and
battery, and negligence. In June 1993, McCabe settled all claims
against the doctor and the hospital. In February 1995, after a
jury returned verdicts against the City and Life-Line Ambulance,

4

established City policy permitting police officers to execute

pink papers by means of forcible, warrantless entries into

private residences absent demonstrable exigent circumstances, and

that this City policy proximately caused an actionable depriva-

tion of Ms. Zinger's Fourth Amendment right to be free from

unreasonable searches.4 After hearing, the district court

granted the McCabe cross-motion for summary judgment against the

City on the issue of liability. McCabe v. City of Lynn, 875 F.

Supp. 53, 63 (D. Mass. 1995). In the ensuing trial, the jury

awarded $850,000 in damages against the City and $500,000 against

Life-Line Ambulance. The City thereupon brought this appeal from

the final judgment entered against it.

II
II

DISCUSSION
DISCUSSION

A. District Court Opinion
A. District Court Opinion

The district court found that the City policy violated

the Fourth Amendment, for the following reasons. The City's own

policy expert attested that the City did not require its officers

to obtain a search warrant before effecting a warrantless entry

of a residence to execute a pink paper, leaving it instead to the

discretion of the officers whether and when such a warrantless

the claims against the four police officers, the constable, and
the ambulance crew were dismissed, without prejudice, by stipula-
tion.

4By contrast, the initial complaint had alleged a City
policy permitting the use of excessive force, and a failure to
train or supervise officers, in executing involuntary commitment
seizures.

5

entry was necessary. Id. at 58. The district court noted that

warrantless, nonconsensual entries into private residences are

presumptively "unreasonable" under the Fourth Amendment, absent

exigent circumstances. Id. at 58-59. Although imminent threats

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

public, often give rise to exigent circumstances justifying an

immediate warrantless entry, the court found that "the Lynn

police acted with leisure in arranging a convenient time" to

serve the pink paper upon Ms. Zinger, thereby belying any conten-

tion that "'some real[,] immediate or serious consequences [would

occur] if [the officers] postponed action to get a warrant.'"

Id. at 59, 62 (citation omitted).

The district court nonetheless recognized that even

absent exigent circumstances the warrant requirement may not be

applicable in certain regulatory contexts wherein warrantless

search procedures serve as invaluable "administrative tool[s]"

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

evidence of crime. Id. at 59-60. The court identified two

factors which weighed against a ruling that the challenged City

policy came within this special regulatory category. First,

unlike a judicial officer, the licensed medical-psychiatric

physicians authorized to issue pink papers under Mass. Gen. Laws

Ann. ch. 123, 12(a), are "not qualified to determine whether

probable cause exists." Id. at 61. Second, "the agents of the

doctors in this case are police officers with guns and batons,

not hospital orderlies and nurses," so that "[t]here is no

6

therapeutic relationship which a warrant mechanism would dis-

rupt." Id.

B. Standard of Review
B. 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, show that there is no genuine issue as to any material

fact and that the moving party is entitled to a judgment as a

matter of law." Fed. R. Civ. P. 56(c); see Velez-Gomez v. SMA

Life Assurance Co., 8 F.3d 873, 874-75 (1st Cir. 1993). All

competent evidence and reasonable inferences therefrom are viewed

in the light most favorable to the party resisting summary

judgment. Id.

C. Applicable Law
C. Applicable Law

A municipal liability claim under 1983 requires proof

that the municipality maintained a policy or custom which caused,

or was the moving force behind, a deprivation of constitutional

rights. See, e.g., Oklahoma City v. Tuttle, 471 U.S. 808, 819

(1985); Monell v. Department of Social Servs., 436 U.S. 658, 694

(1978); Bordanaro v. McLeod, 871 F.2d 1151, 1156 (1st Cir.),

cert. denied, 493 U.S. 820 (1989).

The Fourth Amendment applies not only to governmental

searches and seizures in criminal investigations, but also in

various civil proceedings. See Soldal v. Cook County, Ill., 506

U.S. 56, , 113 S. Ct. 538, 548 (1992); O'Connor v. Ortega, 480

U.S. 709, 715 (1987) ("[B]ecause the individual's interest in

7

privacy and personal security `suffers whether the government's

motivation is to investigate violations of criminal laws or

breaches of other statutory or regulatory standards,' . . . it

would be `anomalous to say that the individual and his private

property are fully protected by the Fourth Amendment only when

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

Jersey v. T.L.O., 469 U.S. 325, 335 (1985)). Included among the

civil proceedings in which the Fourth Amendment applies are

involuntary commitment proceedings for dangerous persons suffer-

ing from mental illness. See Glass v. Mayas, 984 F.2d 55, 58 (2d

Cir. 1993); Villanova v. Abrams, 972 F.2d 792, 795-96 (7th Cir.

1992).

The fundamental inquiry under the Fourth Amendment is

whether a particular search or search procedure is "reasonable"

in the circumstances. See Cady v. Dombrowski, 413 U.S. 433, 439-

40 (1973); Wyman v. James, 400 U.S. 309, 318 (1971); Camara v.

Municipal Ct. of San Francisco, 387 U.S. 523, 538 (1967).

Nonconsensual entries by government agents into a residence

without a search or arrest warrant5 are presumptively "unreason-

able" under the Fourth Amendment. See Welsh v. Wisconsin, 466

U.S. 740, 748-49 (1984); Payton v. New York, 445 U.S. 573, 586

(1980); Hegarty v. Somerset County, 53 F.3d 1367, 1373 (1st

5"[A] [felony] arrest warrant founded on probable cause
implicitly carries with it the limited authority to enter a
dwelling in which the suspect lives when there is reason to
believe the suspect is within." Payton v. New York, 445 U.S.

573, 603 (1980). But see Steagald v. United States, 451 U.S. 204,

214 (1981) (noting that the "arrest warrant" rule is inapplicable
where suspect is within another person's residence).

8

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

designed to safeguard the special privacy expectations tradition-

ally recognized in the American home by requiring that a "neu-

tral" and detached judicial officer make an independent assess-

ment as to whether law enforcement agents have probable cause to

effect an intended search or arrest within the home. See Stea-

gald v. United States, 451 U.S. 204, 212 (1981). The warrant

requirement is not absolute, of course, and the presumption may

be overcome in at least two ways.

First, a warrantless entry and search of a residence

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

can demonstrate certain exceptional types of "exigent circum-

stances": (1) "hot pursuit" of a felon into a residence; (2)

imminent destruction of evidence within the residence; (3) a

threatened and potentially successful escape by a suspect from

inside the residence; or (4) an imminent threat to the life or

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

located within the residence. See United States v. Tibolt, 72

F.3d 965, (1st Cir. 1995) [Nos. 94-1714 & 2221, 1995 WL

757848, at *3 (Dec. 29, 1995)]; Hegarty, 53 F.3d at 1374.

Normally, "exigent circumstances" exceptions by their very

nature turn upon the objective reasonableness of ad hoc, fact-

specific assessments contemporaneously made by government agents

in light of the developing circumstances at the scene of the

search. See id. at 1378.

Second, a residential search pursuant to an established

9

warrantless search procedure may be reasonable if conducted in

furtherance of an important administrative or regulatory purpose,

or "special need," which would be undermined systemically by an

impracticable warrant or probable-cause requirement. Griffin v.

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

tions when `special needs, beyond the normal need for law en-

forcement, make the warrant and probable-cause requirement

impracticable.'") (citation omitted). See, e.g., id. (upholding

probation officers' prerogative to conduct warrantless searches

of probationers' homes for evidence of probation infraction);

O'Connor, 480 U.S. at 709 (noting that government employer's

warrantless searches of employees' work space to recover work-

related materials may be "reasonable" in particular circumstanc-

es); T.L.O., 469 U.S. at 325 (holding that warrantless in-school

searches of students' personal property by public school offi-

cials did not violate Fourth Amendment); United States v. Car-

dona, 903 F.2d 60 (1st Cir. 1990) (extending Griffin to parole

officers' warrantless searches of parolees' residences), cert.

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

that social worker's warrantless visitation to welfare recip-

ient's home did not implicate Fourth Amendment). The reasonable-

ness of a particular "special need" search procedure will depend,

of course, on whether the court's "careful balancing of govern-

mental and private interests suggests that the public interest is

best served by a Fourth Amendment standard that stops short of

probable cause." T.L.O., 469 U.S. at 341.

10

D. Alleged "Deprivation"
D. Alleged "Deprivation"

Turning to the initial hurdle confronting McCabe under

1983, see Monell, 436 U.S. at 694, we must determine whether

the undisputed evidence demonstrates that the warrantless,

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

tuted a deprivation of decedent's Fourth Amendment rights.

Oddly, none of the cases the City cites as support for the

constitutionality of comparable involuntary commitment statutes

deals straightforwardly with the precise issue before us:

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

Laws Ann. ch. 123, 12(a)) violates the Fourth Amendment because

it routinely allows warrantless entries of a residence, absent

"exigent circumstances," to effect involuntary commitments; nor

have we found such a case. The cases cited by the City consider

whether a seizure of the person effected pursuant to an involun-

tary commitment statute violates the due process requirements of

the Fifth and Fourteenth Amendments,6 or whether the manner in

which the government detains a person violates the Fourth Amend-

ment prohibition against unreasonable seizures.7 Nonetheless,

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 home); see also

Glass, 984 F.2d at 58 (holding that the committing physicians

were entitled to qualified immunity for ordering "seizure"
because they reasonably believed that subject was mentally ill
and "dangerous"); Villanova, 972 F.2d at 797 (discussing Fourth

Amendment and due process implications arising from prolongation

11

to the extent the technically inapposite "seizure" cases relied

on by the City might be considered appropriate analogs in this

unchartered area, we consult their reasoning for guidance.

Although the parties devote considerable attention to

whether there remains a genuine factual dispute regarding the

substance of the challenged City "policy," we consider its

essential features clear enough; that is, the policy permits

warrantless residential searches, without requiring "exigent

circumstances," in order to effect an involuntary commitment

pursuant to a properly issued pink paper. Of course, the City

argues that every entry is per se "exigent" since a pink paper

can only issue upon an expert medical finding that the subject

presently poses a "likelihood of serious harm" to herself or

others, which in turn provides the police with reasonable cause

to believe that an immediate, forcible entry for the purpose of

of involuntary commitment, or seizure of the person, without
independent judicial determination of probable cause, where
commitment occurred while person was in jail).

Moreover, the absence of any authority for the McCabe
contention that the warrantless "forcible entry" phase of an
involuntary commitment should be treated differently than the
committal "seizure" itself arguably indicates that a constitu-
tional foundation is lacking. See Cardona, 903 F.2d at 64

(rejecting similar attempt to draw "entirely artificial distinc-
tion[s] between `search' jurisprudence and `seizure' jurispru-
dence"). And since the cases cited by the City overwhelmingly
hold that warrantless, involuntary commitment seizures generally
comport with the strictures of the Fourth Amendment, see Vil-

lanova, 972 F.2d at 795 ("There is no requirement of a warrant

issued by a judicial officer [to seize the person subject to a
commitment order]."), thus constituting a valid pink paper the
practical equivalent of an arrest warrant, see supra note 5; cf.

Welsh, 466 U.S. at 748-49; Payton, 445 U.S. at 586; Hegarty, 53

F.3d at 1373, a separate requirement that a search warrant be
obtained before entering the residence to seize the subject could
be viewed as supererogatory.

12

detaining the resistant subject is necessary to avert the "seri-

ous harm" identified in the pink paper.

On the other hand, McCabe contends that these remote

medical-psychiatric "emergency" determinations do not equate with

constitutionally cognizable "exigent circumstances," because they

do not turn on the executing officer's fact-specific, on-the-

scene assessment as to the immediacy of any putative threat the

subject may pose to herself or others. McCabe stresses that

during the several hours which were allowed to elapse before the

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

had ample time to obtain a search warrant. And McCabe points out

that none of the four recognized "exigent circumstances," see

supra p. 10, was plainly present immediately before the forcible

police entry. As these claims reflect the legal gloss

placed on the record evidence, rather than a genuine factual

dispute concerning the substance of the City policy, we need not

enter the skirmish over the distinctions between "emergencies"

and "exigent circumstances." The City policy, as evidenced by

the actual conduct of its police officers,8 falls squarely

within a recognized class of systemic "special need" searches

8Contrary to McCabe's contention, we need not decide whether
the City waived the argument that its police officers' actions
were not undertaken pursuant to City policy, and that it is
therefore not liable under Monell, 436 U.S. at 694. The City

merely argues that the actual police conduct in effecting a
warrantless entry often provides the best circumstantial evidence
as to the nature of the challenged municipal policy. See Bor-

danaro, 871 F.2d at 1156-57 (observing that the event itself is

evidence that police officers acted in accordance with municipal
policy).

13

which are conducted without warrants in furtherance of important

administrative purposes. Again, the fundamental concern of

Fourth Amendment jurisprudence in general, and in "special need"

search cases as well, is whether an established search procedure

is "reasonable" in light of the actual circumstances in the

particular case. See Cady, 413 U.S. at 439-40; see also O'Con-

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

in turn, depends on "'balanc[ing] the nature and quality of the

intrusion on the individual's Fourth Amendment interests against

the importance of the governmental interests alleged to justify

the intrusion.'" O'Connor, 480 U.S. at 719 (citation omitted);

see T.L.O., 469 U.S. at 341; Cardona, 903 F.2d at 67; cf. Vil-

lanova, 972 F.2d at 796. On balance, we find that the City

policy permitting forcible, warrantless entries by police offi-

cers in possession of a pink paper properly issued pursuant to

Mass. Gen. Laws Ann. ch. 123, 12(a), is reasonable under the

Fourth Amendment.

1. State's "Administrative" Interest
1. State's "Administrative" Interest

(a) Parens Patriae and Police Power
(a) Parens Patriae and Police Power

The legitimacy of the State's parens patriae and

"police power" interests in ensuring that "dangerous" mentally

ill persons not harm themselves or others is beyond dispute. See

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

grounds, 457 U.S. 291 (1982); Thompson v. Commonwealth, 438

N.E.2d 33, 36 (Mass. 1982). The potential consequences attending

a delayed commitment both to the mentally ill subject and

14

others may be extremely serious, sometimes including death or

bodily injury. Thus, we think it is especially significant to

the present analysis that warrantless "special need" searches

have been condoned by the courts in circumstances where the State

interests were far less compelling and urgent. Cf., e.g.,

O'Connor, 480 U.S. at 724 (noting: because "public employees are

entrusted with tremendous responsibility," "the consequences of

their misconduct or incompetence to both the agency and the

public interest can be severe"); New York v. Burger, 482 U.S.

702, 708-09 (1987) (noting: where "the government interests in

regulating particular businesses are concomitantly heightened, a

warrantless inspection of commercial premises may well be reason-

able[,]" and that "the State has a substantial interest in

regulating the vehicle-dismantling and automobile-junkyard

industry because motor vehicle theft has increased in the State

and because the problem of theft is associated with this indus-

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

privacy must be set the substantial interest of teachers and

administrators in maintaining discipline in the classroom and on

school grounds.").

We therefore inquire whether these residential search

procedures are appropriately tailored to the legitimate and

important interests at stake; in other words, whether the proce-

dures are reasonably designed to ensure accurate identification

and prompt detention of recalcitrant and "dangerous" mentally ill

persons who require immediate temporary commitment. See id. at

15

341 (noting two-part inquiry whether the search procedure was (i)

"'justified at its inception'" and (ii) "'reasonably related in

scope to the circumstances which justified the interference in

the first place'") (citations omitted).9 We think that Mass.

Gen. Laws Ann. ch. 123, 12(a), in general, and the commitment

order issued by Dr. Barden, in particular, were appropriately

suited to these legitimate purposes.

The application for temporary hospitalization, signed

by Dr. Barden, expressly referenced Mass. Gen. Laws Ann. ch. 123,

12(a), which authorizes four categories of involuntary commit-

ment procedures:

(1) a qualified physician, psychologist, or
psychiatric nurse who has personally
examined a person, and who has reason to
believe that the person would create a
"likelihood of serious harm," may sign a
"pink paper" authorizing law enforcement
officials to restrain that person to
permit hospitalization for up to a ten-
day period;

(2) in an "emergency situation," a qualified
physician, psychologist, or psychiatric
nurse may sign a pink paper, even when
the alleged mentally ill person refuses
to submit to a medical examination, if
the "facts and circumstances" suggest
that the person would create a "likeli-
hood of serious harm";

(3) in an "emergency situation," a police
officer may restrain a person he be-
lieves creates a "likelihood of serious
harm," if no qualified physician, psy-

9Thus, a "mental illness" determination alone is insuffi-
cient to support an involuntary commitment order; the State must
also show that the person subjected to involuntary commitment is
"dangerous." See O'Connor v. Donaldson, 422 U.S. 563, 575-76

(1975).

16

chologist, or psychiatric nurse is a-
vailable to sign a pink paper; or

(4) at any time, any person may apply to the
district or juvenile courts for a com-
mitment order, and after a hearing, the
court may issue a warrant for the appre-
hension and appearance of the person who
creates a "likelihood of serious harm."

Mass. Gen. Laws Ann. ch. 123, 12(a); see infra Appendix, for

text; see generally Rockwell v. Cape Cod Hosp., 26 F.3d 254, 258-

60 (1st Cir. 1994) (tracing history of Massachusetts emergency

involuntary commitment procedure from colonial times through

enactment of chapter 123). As only the category 4 commitment

procedure expressly incorporates a warrant requirement, we think

it clear that the statute implicitly authorizes warrantless

searches and seizures in the three remaining contexts. Since Ms.

Zinger repeatedly rejected family pleas that she submit to

examination by a physician, and because Dr. Barden based his

expert medical-psychiatric opinion exclusively on reports from

family members and neighbors, we conclude also that the pink

paper in this case did issue under category 2. The only question

before us, therefore, concerns the constitutionality of the

"category 2" warrantless search procedure.

The pink paper was based on Dr. Barden's expert opinion

that Ms. Zinger "require[d] hospitalization so as to avoid the

likelihood of serious harm by reason of mental illness." Dr.

Barden described the particular grounds for concluding that

immediate hospitalization was required:

[Patient] has a [history] of mental illness
and she was hospitalized at Danvers [State]

17

Hospital couple of years ago. [Patient] is
very angry and hostile; she is very impulsive
and explosive. She made threats to harm her
ex-husband. [Patient] is dangerous to oth-
ers.

The involuntary commitment application, and the Massachusetts

statute, define "likelihood of serious harm" the governing

criterion for commitment as:

(1) a substantial risk of physical harm to
the person [her]self as manifested by evi-
dence of, threats of, or attempts at, suicide
or serious bodily harm; (2) a substantial
risk of physical harm to other persons as
manifested by evidence of homicidal or other
violent behavior or evidence that others are
placed in reasonable fear of violent behavior
and serious physical harm to them; or (3) a
very substantial risk of physical impairment
or injury to the person [her]self as mani-
fested by evidence that such person's judg-
ment is so affected that [s]he is unable to
protect [her]self in the community and that
reasonable provision for h[er] protection is
not available in the community.

Mass. Gen. Laws Ann. ch. 123, 1; see Rogers, 634 F.2d at 658.

The relevant medical history, including Ms. Zinger's history of

mental illness and prior hospitalization at Danvers State Hospi-

tal, and the behavioral symptoms reported to Dr. Barden by family

members, plainly satisfied the second clause in the statutory

definition of "likelihood of serious harm."

The statutory definition of "likelihood of serious

harm," particularly its requirement that there be objective

medical indicia of "dangerousness," effectively "constitutes a

codified set of `exigent circumstances' which are constitutional

under the Fourth Amendment." Moore v. Wyoming Medical Ctr., 825

F. Supp. 1531, 1538 n.4, 1546 (D. Wyo. 1993). Given the notori-

18

ous difficulties in predicting individual human behavior based

solely on symptomatology, id. at 1539, we conclude that Mass.

Gen. Laws Ann. ch. 123, 1, prescribes a sufficiently clear and

reasonably reliable administrative standard for ensuring that

involuntary commitments are limited to imminently "dangerous"

mentally ill persons in emergent circumstances.

Finally, the specific focus and overall context of the

Massachusetts statute implicitly circumscribe the category 2

search procedure within narrow bounds. A police officer is

permitted to enter a residence without a warrant for the exclu-

sive purpose of detaining a recalcitrant and dangerous mentally

ill person pursuant to a duly issued pink paper, but may not

engage in a generalized search. As the officers in the instant

case did not exceed these bounds, we conclude that Mass. Gen.

Laws Ann. ch. 123, 12(a), and consequently the City policy in

pursuance of the statutory design, see supra pps. 12-14, are

appropriately tailored to serve the legitimate and important

State and municipal interest in ensuring that dangerous mentally

ill persons not cause physical harm to themselves or others.

(b) Practicality of Warrant Requirement
(b) Practicality of Warrant Requirement

The determination that there exists a legitimate and

substantial governmental interest in conducting a warrantless

search in certain circumstances satisfies only the threshold

inquiry under the reasonableness test. For an administrative

search procedure to survive constitutional challenge under the

"special need" exception, it must also appear that the burdens of

19

complying with a warrant requirement are likely to defeat the

important governmental purposes the warrantless search procedure

was designed to serve.

In assessing whether the public interest
demands creation of a general exception to
the Fourth Amendment's warrant requirement,
the question is not whether the public inter-
est justifies the type of search in question,
but whether the authority to search should be
evidenced by a warrant, which in turn depends
in part upon whether the burden of obtaining
a warrant is likely to frustrate the govern-
mental purpose behind the search.

Camara, 387 U.S. at 533.

Compliance with a warrant requirement in the context of

these temporary, involuntary commitments for medical-psychiatric

examination would entail critical delays in safeguarding the

mentally ill person, and others, without affording commensurate

privacy protections to the subject. Category 2 searches foster

important governmental interests largely because the inherent

imprecision in predicting the timing of any outbreak of "danger-

ousness" on the part of the recalcitrant, mentally ill person,

see Moore, 825 F. Supp. at 1539, inevitably means that the time

spent securing judicial approval of a pink paper represents a

potentially dangerous delay of incalculable proportion.

In this particular case, of course, McCabe points to

the undisputed evidence that the police officers waited several

hours before executing the pink paper, thus demonstrating little

concern that Ms. Zinger might exhibit the sort of sudden onset of

"dangerousness" alluded to in the assessment made by Dr. Barden.

Although this argument might hold sway were the constitutionality

20

of the warrantless entry dependent on an ad hoc, on-the-scene

"exigent circumstances" determination made by the police, it is

no rejoinder to the claimed "reasonableness" of a "special need"

search procedure policy, which must focus not on the particular

case but on the essential systemic attributes of the search

procedure itself:

The dissent argues that in this case the
police had ample time to secure an arrest
warrant, rendering invalid any claim that
complying with traditional fourth amendment
requirements was impracticable. That view-
point distorts Griffin's "impracticability"

prong. In Griffin, the Court inquired into

the systemic impracticability of compelling

those involved in implementation of a proba-
tion regime to obtain warrants. The imprac-
ticability of obtaining a warrant in the
particular case did not enter into the equa-

tion; indeed, Justice Blackmun argued unsuc-
cessfully for much the same sort of particu-
larized inquiry . . . . Whether it was feasi-
ble for the police to obtain a warrant in
this particular case is irrelevant for the
purpose at hand.

Cardona, 903 F.2d at 68 n.7 (emphasis added; citations omit-

ted).10 Although the Fourth Amendment warrant requirement

10There is no record evidence that the challenged City
policy required officers to execute pink papers within a speci-
fied time. In all events, however, we do not think the several
hours that elapsed between the issuance and execution of this
pink paper, which enabled the constable and police to coordinate
their actions, can be considered so inordinate as to call into
question the emergent nature of Ms. Zinger's mental-health-
related dangerousness. Whereas delay might belie "exigent
circumstances," were that the warrant exception primarily relied
upon by the City, no such rigid time constraints can be imposed
in a particular "special need" case as a precondition to the
validity of the systemic search procedure itself. Nonetheless,
we express no opinion as to whether, in another case, inordinate
delay in issuing and executing a pink paper might tend to under-
mine a predicate finding that the subject posed a real "likeli-
hood of serious harm" at the time the finding was made.

21

imposes a minimal burden on governmental authorities in normal

circumstances, we think there can be little doubt that it would

delay the execution of involuntary commitment orders to some

degree in all cases, thereby appreciably increasing the systemic

risk that the vital protective purposes served by the State's

parens patriae and "police power" responsibilities would be

frustrated in individual cases not identifiable in advance. See

supra Section II.D.1(a).

More importantly by far, however, the additional

burdens imposed on the City and State by a universal warrant

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

sonable" when viewed in relation to the minimal additional

protection afforded by a requirement that a pink paper be

screened by a magistrate before it is executed. The district

court ruled that the Fourth Amendment warrant requirement was

violated notwithstanding compliance with the "pink paper" proce-

dure under Mass. Gen. Laws Ann. ch. 123, 12(a), because the

issuing physician "is not qualified to determine whether probable

cause exists." McCabe, 875 F. Supp. at 61. On the other hand,

the Supreme Court has noted that rigid adherence to a warrant

requirement reaches its most suspect extreme where a judicial

officer lacks the innate expertise to assess the soundness of the

basic ground upon which the warrant request is predicated. See,

e.g., Griffin, 483 U.S. at 879 n. 6 (observing that "[o]ur

discussion pertains to the reasons generally supporting the

proposition that the search decision should be left to the

22

expertise of probation authorities rather than a magistrate");

cf. Rogers, 634 F.2d at 660 ("While judicial determinations are

certainly preferable in general, room must be left for responsi-

ble state officials to respond to exigencies that render totally

impractical recourse to traditional forms of judicial process.

`The judicial model of fact finding for all constitutionally

protected interests, regardless of their nature, can turn ratio-

nal decisionmaking into an unmanageable enterprise.'") (quoting

Parham v. J. R., 442 U.S. 584, 608 n. 16 (1979)).

A pink paper is issued or withheld principally on the

strength of expert medical-psychiatric assessments (i.e., diagno-

ses and prognoses founded on the available evidence), whereas

judicial officers normally are called upon to make judgments as

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

the Second Circuit has pointed out:

"[T]he initial inquiry in a civil commitment
proceeding is very different from the central
issue in either a delinquency proceeding or a
criminal prosecution. In the latter cases
the basic issue is a straightforward factual
question--did the accused commit the act
alleged? There may be factual issues to
resolve in a commitment proceeding, but the
factual aspects represent only the beginning
of the inquiry. Whether the individual is
mentally ill and dangerous to either himself
or others and is in need of confined therapy
turns on the meaning of the facts which must

be interpreted by expert psychiatrists and
psychologists."

Project Release v. Prevost, 722 F.2d 960, 972-73 (2d Cir. 1983)

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

O'Connor, 480 U.S. at 723 ("Indeed, it is difficult to give the

23

concept of probable cause, rooted as it is in the criminal

investigatory context, much meaning when the purpose of a search

is to retrieve a file for work-related reasons."); Wyman, 400

U.S. at 324 (in the home-visitation setting, "the warrant argu-

ment is out of place" since, as a practical matter, "probable

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

To be sure, judicial oversight might provide some

preliminary insulation against obvious abuse; for example, by

screening out patently unreliable information utilized by a

physician in formulating a diagnosis or prognosis, which can be a

matter of particular concern in category 2 cases where the

11It is largely irrelevant whether the "likelihood of
serious harm" criterion in Mass. Gen. Laws Ann. ch. 123, 12(a),
approximates the "probable cause" inquiry appropriate in the
search warrant context. The "probable cause" inquiry often is
jettisoned in civil administrative searches:

"[W]here a careful balancing of governmental
and private interests suggests that the pub-
lic interest is best served by a Fourth A-
mendment standard of reasonableness that
stops short of probable cause, we have not
hesitated to adopt such a standard." We have
concluded, for example, that the appropriate
standard for administrative searches is not
probable cause in its traditional meaning.
Instead, an administrative warrant can be
obtained if there is a showing that reason-
able legislative or administrative standards
for conducting an inspection are satisfied.

O'Connor, 480 U.S. at 722-23 (citations omitted); see also

T.L.O., 469 U.S. at 340-41 ("'[P]robable cause' is not an irre-

ducible requirement of a valid search. The fundamental command
of the Fourth Amendment is that searches and seizures be reason-
able, and although 'both the concept of probable cause and the
requirement of a warrant bear on the reasonableness of a search,
... in certain limited circumstances neither is required.'")
(citations omitted).

24

physician has not examined the patient and must rely on second-

hand reports as to the subject's physical, emotional and behav-

ioral symptoms. On the other hand, the statutory mechanism

itself affords reasonable safeguards against such concerns: a

pink paper can be authorized only by a licensed psychiatric

physician, see Mass. Gen. Laws Ann. ch. 123, 1, 12(a), whose

extensive education and specialized experience and training

should enable the psychiatric physician more reliably to parse

such lay reports, especially those provided by family members,

with the requisite professional skepticism.12 Though this

safeguard is by no means foolproof, we think it would be the

exceptional case in which an expert evaluation was based on

patently insufficient or unreliable information. Further, to the

degree that judicial factfinding were thought to be necessary as

a general rule, in order to ferret out latent unreliability in

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

or antipathy toward the patient) upon which expert psychiatric

evaluations are based, the resulting delays in implementing

12The other statutory safeguards would not forestall improp-
er warrantless entries of a subject's residence. See Cardona,

903 F.2d at 66 ("While the actual invasion of privacy does not
occur until the search or seizure occurs, the constitutional
protection is viable only to the extent that it restricts the
authority responsible for making the search or seizure decision,
prior to the time the decision crystallizes."). Nonetheless, the
other safeguards do mitigate any resulting injury to the subject.
For example, in order to detain a dangerous mentally ill person
for more than ten days, the State must petition the district
court, and prove beyond reasonable doubt that the patient poses a
"likelihood of serious harm." See Mass. Gen. Laws Ann. ch. 123,

7, 8 (requiring ongoing, periodic judicial review of commit-
ment decision), 12(d); Commonwealth v. Nassar 406 N.E.2d 1286,

1290-91 (Mass. 1980).

25

involuntary commitment orders could have far more serious conse-

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

public. Finally, such a detailed factfinding mission would

greatly exceed any "screening" function normally undertaken by

judicial officers in reviewing search warrant applications.

We discern no sufficient justification for superimpos-

ing such a judicial factfinding mechanism upon the evaluation

made by the licensed psychiatric physician in the involuntary

commitment context, especially since it promises no corresponding

systemic benefit to offset the systemic delays in executing pink

papers in emergent circumstances. See Griffin, 483 U.S. at 876

("A warrant requirement would interfere to an appreciable degree

with the probation system, setting up a magistrate rather than

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

probationer requires.").

2. The Interests of the Mentally Ill
2. The Interests of the Mentally Ill

Next, we consider the extent to which the category 2

search procedure infringes legitimate Fourth Amendment interests

of the mentally ill. See T.L.O., 469 U.S. at 341; cf. also,

Rockwell, 26 F.3d at 256 ("Involuntary confinement for compulsory

psychiatric treatment is a `massive curtailment of liberty.'")

(quoting Humphrey v. Cady, 405 U.S. 504, 509 (1972)) (citation

omitted). We point out again, however, that McCabe presently

challenges only the alleged infringement of Ms. Zinger's Fourth

Amendment right to be free from unreasonable governmental entries

to her residence, see supra note 2, and does not allege an

26

infringement of her liberty interest to be free from any unrea-

sonable governmental restraint attending the subsequent seizure

of her person.

(a) Civil Context
(a) Civil Context

Although the Fourth Amendment is implicated in a

variety of civil proceedings, Soldal, 113 S. Ct. at 548, the

Supreme Court has made it clear that the civil nature of certain

search procedures may call for a narrowed application of the

warrant and probable cause requirements. Where a search proce-

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

gation, its relative unintrusiveness may militate in favor of

relaxing the warrant requirement. See O'Connor, 480 U.S. at 721

("While police, and even [some] administrative enforcement

personnel, conduct searches for the primary purpose of obtaining

evidence for use in criminal or other enforcement proceedings,

employers most frequently need to enter the offices and desks of

their employees for legitimate work-related reasons wholly

unrelated to illegal conduct."); Wyman, 400 U.S. at 323 (home

visitation program "does not deal with crime or with the actual

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

a sleuth but rather, we trust, . . . a friend to one in need");

see also Project Release, 722 F.2d at 972-73 ("[T]he difference

between civil and criminal confinement may nonetheless be re-

flected in different standards and procedures applicable in the

context of each of the two systems so long as due process is

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

27

case, McCabe has not suggested that the challenged entry of the

Zinger residence was effected for any criminal law purpose, or

any regulatory purpose other than to enable her temporary hospi-

talization and the psychiatric examination she adamantly refused.

(b) Impartiality of Decisionmaker
(b) Impartiality of Decisionmaker

Finally, it is most significant in the present context

that the official decision to initiate an involuntary "category

2" commitment rests with a licensed psychiatric physician, not

with law enforcement officials. See Steagald, 451 U.S. at 212

(noting that the Fourth Amendment warrant requirement interposes

"neutral" and detached judicial officer between police and

"probable cause" determination). The Supreme Court consistently

premises "special need" warrant exceptions on the presence of a

search authorization by an impartial, or at least a relatively

impartial person. See Cardona, 903 F.2d at 64-65 ("The [Griffin]

Court's focus was on the degree of security inherent in allowing

a particular decisionmaker, i.e., a probation officer, to make a

particular decision, i.e., whether a probationer's home should be

searched, based on a particular (relatively modest) level of

proof, i.e., `reasonable grounds.'"). Unlike the characteristic

relationship between law enforcement personnel and criminal

suspects, a committing physician's relationship with a patient,

or even a nonpatient, is in no sense adversarial.

The role of the licensed physician under Massachusetts

law is to provide a neutral, objective assessment of the "danger-

28

ousness" and "likelihood of serious risk" criteria upon which the

involuntary commitment decision depends. A physician's ethical

responsibilities likewise require that appropriate medical-

psychiatric criteria be utilized in assessing the condition of

the subject person. Cf., e.g., Griffin, 483 U.S. at 876 ("Al-

though a probation officer is not an impartial magistrate,

neither is he the police officer who normally conducts searches

against the ordinary citizen. He is an employee of the State

Department of Health and Social Services who, while assuredly

charged with protecting the public interest, is also supposed to

have in mind the welfare of the probationer."). Nor is there any

allegation or evidence that the Lynn police possessed or exer-

cised any influence, direct or indirect, over the medical-psychi-

atric decision to issue the pink paper. Cf. T.L.O., 469 U.S. at

337 n.5 ("Nor do we express any opinion on the standards (if any)

governing searches of such areas by school officials or by other

public authorities acting at the request of school officials.").

The district court nonetheless struck down the City

policy because "the agents of the doctors in this case are police

officers with guns and batons, not hospital orderlies and nurs-

es," so that "[t]here is no therapeutic relationship which a

warrant mechanism would disrupt." McCabe, 875 F. Supp. at

61.13 Whether an administrative search procedure leaves too

13Although there is no evidence that Dr. Barden had been Ms.
Zinger's regular physician, the challenged City policy is to be
evaluated in light of its systemic traits and purposes. Cf.

Cardona, 903 F.2d at 67; supra pp. 22-23. No doubt many, if not

most, category 2 searches are executed pursuant to pink papers

29

much discretion to law enforcement officers in the field is a

recurring Fourth Amendment concern. See, e.g., Camara, 387 U.S.

at 532-33 ("The practical effect of this system is to leave the

occupant subject to the discretion of the official in the field.

This is precisely the discretion to invade private property which

we have consistently circumscribed by a requirement that a

disinterested party warrant the need to search."). Under Mass.

Gen. Laws Ann. ch. 123, 12(a), however, the decision to conduct

a category 2 "search" is never left to the executing officers.

Moreover, the mere fact that law enforcement officials serve as

the agents who implement the authorizing physician's decision to

approve a category 2 search does not necessarily mean that the

procedure is not within the "special need" category:

[W]e fail to see any constitutional signifi-
cance in the fact that police officers, rath-
er than "administrative" agents, are permit-
ted to conduct the 415-a5 inspection. The
significance respondent alleges lies in the
role of police officers as enforcers of the
penal laws and in the officers' power to
arrest for offenses other than violations of
the administrative scheme. It is, however,
important to note that state police officers,
like those in New York, have numerous duties
in addition to those associated with tradi-
tional police work. . . . As a practical
matter, many States do not have the resources

issued by the subject-patient's current or former psychiatric
physician. Unlike law enforcement officers, who rarely interact
with a search target on more than one occasion, as a rule physi-
cians possess reliable personal knowledge of their patients,
based on an ongoing doctor-patient relationship. Cf. Griffin,

483 U.S. at 879 ("As was true, then, in [O'Connor] . . . and

[T.L.O.], we deal with a situation in which there is an ongoing

supervisory relationship and one that is not, or at least not
entirely, adversarial between the object of the search and the
decisionmaker.").

30

to assign the enforcement of a particular
administrative scheme to a specialized agen-
cy. So long as a regulatory scheme is prop-
erly administrative, it is not rendered ille-
gal by the fact that the inspecting officer
has the power to arrest individuals for vio-
lations other than those created by the
scheme itself. In sum, we decline to impose

upon the States the burden of requiring the
enforcement of their regulatory statutes to
be carried out by specialized agents.

Burger, 482 U.S. at 717-18; Cardona, 903 F.2d at 65 ("The [Grif-

fin] Court did not lend any special salience to the identity of

the person(s) executing the search"; "[w]hether the decision,

once reached [by the probation officer], is realized through

police officers, parole officers, or a tag team representing both

camps, is peripheral to the Court's holding.").

We conclude that these considerations, on balance,

favor a limited "special need" exception to the warrant require-

ment in the particular setting presented in this case. Accord-

ingly, we hold that the Fourth Amendment is not infringed by the

challenged City policy, which authorizes warrantless entries of

residences by the police for the sole purpose of executing a

properly issued category 2 pink paper within a reasonable time

after its issuance.

III
III

CONCLUSION
CONCLUSION

We retrace the bounds of our ruling. We do not suggest

that the factors we have discussed, see Section II.D, alone or in

combination invariably provide adequate support for a "special

need" exception to the warrant requirement. The balancing test

31

for determining whether an administrative procedure comes within

the "special need" exception is designedly fact-specific, and

must be calibrated anew in assessing the reasonableness of each

administrative search procedure to which it is applied. Nor, of

course, do we suggest that all comparable state involuntary

commitment statutes, or any other provision of Mass. Gen. Laws

Ann. ch. 123, or other categories of searches authorized under

chapter 123, section 12(a), necessarily satisfy the Fourth

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

does not mean . . . that a termination of benefits upon refusal

of a home visit is to be upheld against constitutional challenge

under all conceivable circumstances. The early morning mass raid

upon homes of welfare recipients is not unknown."). We hold only

that law enforcement officers in possession of a pink paper, duly

issued pursuant to category 2, Mass. Gen. Laws Ann. ch. 123,

12(a), may effect a warrantless entry of the subject's residence

within a reasonable time after the pink paper issues.

32

Since the challenged City policy comports with the

"special need" exception to the Fourth Amendment warrant require-

ment, the City is entitled to summary judgment. We intimate no

viewpoint concerning any other aspect of these proceedings,

including the McCabe claims against the individual police offi-

cers, the constable, and the ambulance crew, which claims were

dismissed, without prejudice. See supra note 3.

The district court judgment is reversed and the case is
The district court judgment is reversed and the case is

remanded to the district court for further proceedings consistent
remanded to the district court for further proceedings consistent

with this opinion; costs to appellant.
with this opinion; costs to appellant.

33

APPENDIX
APPENDIX

Chapter 123, Section 12:

(a) Any physician who is licensed pursuant to
section two of chapter one hundred and twelve or quali-
fied psychiatric nurse mental health clinical special-
ist authorized to practice as such under regulations
promulgated pursuant to the provisions of section
eighty B of said chapter one hundred and twelve or a
qualified psychologist licensed pursuant to sections
one hundred and eighteen to one hundred and twen-
ty-nine, inclusive of said chapter one hundred and
twelve, who after examining a person has reason to
believe that failure to hospitalize such person would
create a likelihood of serious harm by reason of mental
illness may restrain or authorize the restraint of such
person and apply for the hospitalization of such person
for a ten day period at a public facility or at a
private facility authorized for such purposes by the
department.

If an examination is not possible because of the emer-
gency nature of the case and because of the refusal of
the person to consent to such examination, the physi-
cian, qualified psychologist or qualified psychiatric
nurse mental health clinical specialist on the basis of
the facts and circumstances may determine that hospi-
talization is necessary and may apply therefore.

In an emergency situation, if a physician, qualified
psychologist or qualified psychiatric nurse mental
health clinical specialist is not available, a police
officer, who believes that failure to hospitalize a
person would create a likelihood of serious harm by
reason of mental illness may restrain such person and
apply for the hospitalization of such person for a ten
day period at a public facility or a private facility
authorized for such purpose by the department. An
application for hospitalization shall state the reasons
for the restraint of such person and any other relevant
information which may assist the admitting physician or
physicians. Whenever practicable, prior to transport-
ing such person, the applicant shall telephone or
otherwise communicate with a facility to describe the
circumstances and known clinical history and to deter-
mine whether the facility is the proper facility to
receive such person and also to give notice of any
restraint to be used and to determine whether such
restraint is necessary.

....

34

(e) Any person may make application to a district
court justice or a justice of the juvenile court de-
partment for a ten day commitment to a facility of a
mentally ill person whom the failure to confine would
cause a likelihood of serious harm. After hearing such
evidence as he may consider sufficient, a district
court justice or a justice of the juvenile court de-
partment may issue a warrant for the apprehension and
appearance before him of the alleged mentally ill
person, if in his judgment the condition or conduct of
such person makes such action necessary or proper.
Following apprehension, the court shall have the person
examined by a physician designated to have the authori-
ty to admit to a facility or examined by a qualified
psychologist in accordance with the regulations of the
department. If said physician or qualified psycholo-
gist reports that the failure to hospitalize the person
would create a likelihood of serious harm by reason of
mental illness, the court may order the person commit-
ted to a facility for a period not to exceed ten days,
but the superintendent may discharge him at any time
within the ten day period.

35