United States Court of Appeals
For the First Circuit
For the First Circuit
No. 96-1528
JEREMIAH P. AHERN,
Plaintiff, Appellant,
v.
PHILIP O'DONNELL, PATRICIA McBRIDE, TONIE MORAN, DAVID CELLA,
INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES,
and THE UNIVERSITY OF MASSACHUSETTS,
Defendants, Appellees.
ERRATA SHEET
The opinion of this Court issued on March 31, 1997, is
amended as follows:
Cover sheet: Delete "1977" and insert in its place "1997."
United States Court of Appeals
For the First Circuit
No. 96-1528
JEREMIAH P. AHERN,
Plaintiff, Appellant,
v.
PHILIP O'DONNELL, PATRICIA McBRIDE, TONIE MORAN, DAVID CELLA,
INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES,
and THE UNIVERSITY OF MASSACHUSETTS,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
Before
Boudin, Circuit Judge,
Bownes, Senior Circuit Judge,
and Skinner,* Senior District Judge.
Thomas Gilbert Massimo for appellant.
Terence P. O'Malley with whom Joyce A. Kirby was on brief for
appellees Philip O'Donnell, Patricia McBride, David Cella, and
University of Massachusetts.
Janet Nally Barnes with whom William J. Dailey, Jr., Robert G.
Eaton, and Sloane and Walsh were on brief for appellee Tonie Moran.
March 31, 1997
*Of the District of Massachusetts, sitting by designation.
Per Curiam. Plaintiff-appellant Jeremiah P. Ahern
Per Curiam.
brought suit in federal court against five individuals and
three entities, seeking declaratory relief and damages for a
variety of civil rights violations and common-law torts. The
complaint alleged that the defendants violated Ahern's rights
under the Fourth and Fourteenth Amendments and asserted
pendent state-law claims for, inter alia, false arrest, false
imprisonment, and infliction of emotional distress. The
claims were based upon events that resulted in Ahern's
involuntary admission to a psychiatric facility and the
subsequent termination of his employment as a police officer
with the University of Massachusetts at Boston ("UMB")
Department of Public Safety ("DPS").
The complaint named as defendants, in both their
individual and official capacities, Captain Philip O'Donnell,
acting director of the UMB DPS at the time of Ahern's
involuntary admission to the Arbour Hospital ("Arbour");
David Cella, director of the UMB DPS at the time Ahern's
employment was terminated; Sergeant Patricia McBride of the
UMB police force; Dr. Tonie Moran, consulting psychologist to
the UMB DPS; and Dr. Michael Malick, the physician who
evaluated Ahern at Arbour and who effected his involuntary
admission to that facility. The three entities named as
defendants were UMB, Arbour, and Ahern's union, the UMB
Patrolmen's Association ("the Union").
Following dismissal of the counts against the Union
and Dr. Malick, the remaining parties filed cross motions for
summary judgment. The district court entered summary
judgment for the defendants on all counts. Ahern now appeals
from that portion of the district court's order entering
summary judgment in favor of Dr. Moran and the UMB
defendants. We affirm.
I.
I.
We view the record evidence in the light most
favorable to Ahern, the party against whom summary judgment
has entered, drawing all reasonable competing inferences in
his favor. See Wightman v. Springfield Terminal Ry. Co., 100
F.3d 228, 230 (1st Cir. 1996). Most of the predicate facts
are not in dispute, although Ahern strenuously disputes the
significance of some of the facts. The salient events are as
follows.
In the early morning of September 19, 1991, shortly
after midnight, Deborah Cate's telephone answering machine
recorded the following message: "Hey. Guess what? We took
care of that crybaby old fuck of yours. The niggers
splattered his face all over Dorchester. He's gone. He's
gone. That fucking crybaby's all gone." Ms. Cate, a UMB
student and employee, was not at home at the time of the call
and did not hear the message until approximately 6:15 that
evening. Cate recognized the voice as that of Ahern, a
former boyfriend, and understood the message to mean that
Ahern had caused James Igoe, another of Cate's former
boyfriends, to be killed.
-3-
-3-
At the time of the September 19th message, Ahern
had been a member of the UMB police force for approximately
four years. Cate had dated and become intimate with Ahern
during the spring and summer of 1990. Before, during, and
after that same period, Cate also dated James Igoe, who was
married and had children. At the time these relationships
were going on concurrently, Ahern knew of Cate's relationship
with Igoe. Ahern also knew where Igoe worked.
Cate dated Ahern through the Fourth of July weekend
of 1990, at which time she told him that she wanted to end
their relationship. Ahern was upset by this and for the
remainder of the summer of 1990 he attempted to convince Cate
to resume the relationship. According to Cate, he constantly
stopped by uninvited to her workplace, interrupting her work,
giving her unwanted gifts, and upsetting her. Ahern
repeatedly told Cate that he hated Igoe; that if it were not
for Igoe, Cate would love Ahern; and that he would "take care
of" Igoe.
Ahern began a campaign of telephone calls to Cate
in which he threatened, among other things, to tell Igoe's
wife and children of the relationship between Cate and Igoe,
and to send Igoe's wife photographs of Cate and Igoe
together. In mid-August 1990, Ahern told Cate that he had
obtained Igoe's home address from the UMB police computer and
that he was going to go there to tell Igoe's wife and
children about Igoe's affair with Cate. Ahern also stalked
-4-
-4-
Cate and called her to let her know that he had been
following her. On one occasion, Ahern called Cate while Igoe
was visiting at her apartment. When Cate answered the phone,
Ahern said, "He's there, isn't he?" and told her to look out
the window. When she did, she saw Ahern in a phone booth
across the street from her house, looking up at her and
displaying what appeared to her to be a gun. Ahern does not
dispute these allegations but states that by the fall of 1990
he had ceased his efforts to convince Cate to return to him
and had begun dating another woman.
Beginning in the summer of 1990, after she ended
her relationship with Ahern, Cate also began to receive
obscene and threatening phone calls. In late September or
October 1990, Igoe began to receive harassing and threatening
calls at work. In the calls to Igoe, a male caller referred
to an unnamed woman with whom the caller and Igoe both had
relationships.
The sexually explicit calls to Cate and Igoe
continued through March 1991. Ahern denied making the calls,
though he admitted that he had been "a little crazy" over his
break-up with Cate. In mid-March, Cate told Ahern that Igoe
was still receiving harassing calls and that she believed
that he was the caller. According to Cate, Ahern became
nervous and suggested that the caller might be a friend of
his who was upset with Cate and Igoe for the way they had
treated Ahern. In April 1991, Cate received another sexually
-5-
-5-
explicit message, the content of which was the same as a
message left in January.
In early July 1991, against Igoe's wishes, Cate
ended their relationship. In mid-July, Igoe received another
call, in the course of which he exclaimed, "Look, you got
what you wanted. You split Debi and I up." At the end of
July, Cate received more threatening, sexually explicit
messages. She was certain that the caller was Ahern.
In August 1991, Cate reported the obscene and
threatening phone calls to the Boston Police Department, but
did not supply any information about the suspected caller.
She also contacted the telephone company, which placed a
"trap" on her phone for three weeks. The telephone company
then advised Cate that the calls she reported during the
three-week period were made from local telephone booths, some
from the MBTA station near UMB. Cate continued to receive
hang-up calls after the trap was removed.
After listening to the September 19th message, Cate
became frightened and concerned for Igoe's safety because she
thought that the message could be "the real thing." She
called Igoe at work, at home, and at his wife's home, but was
unable to reach him. Panicked, she called the Boston Police
Department. She told a detective about the message and asked
if any serious incidents had been reported that day. The
detective ultimately recommended that Cate call Patricia
McBride, a sergeant on the UMB police force.
-6-
-6-
At approximately 6:30 p.m., Cate called McBride to
report the threatening and harassing phone calls. McBride
offered to interview Cate at her apartment, rather than at
the DPS station, because the complaint involved a fellow
officer. At Cate's apartment, Cate suggested that McBride
listen to the disturbing message herself. After listening
for a short time, McBride was convinced that the caller was
Ahern. Cate then told McBride that she was certain that
Ahern was the caller for three reasons: she recognized the
caller's voice as Ahern's; the caller related the same
information in his calls to Cate and to Igoe; and the
information related by the caller was known only to Cate and
Ahern.
While at Cate's apartment, McBride listened to
other recorded messages and to a tape of calls to Igoe that
Igoe had recorded beginning in February 1991. McBride also
collected information from Cate concerning the events of the
past eighteen months. Cate then made two tapes for McBride -
- one contained obscene and threatening messages that had
been left on her answering machine, including the September
19th message and other threats to have Igoe killed; the
second tape was a copy of a tape of phone calls to Igoe,
featuring graphic accounts of the caller's sexual interludes
with Cate and various threats, including threats to have Igoe
killed.
-7-
-7-
Cate spoke to Igoe that evening, while McBride was
with her, and learned that he was fine. McBride then called
Captain Philip O'Donnell, acting director of the UMB DPS, and
told him that she needed him to listen to some tape
recordings. McBride brought the two tapes to O'Donnell's
home. After listening to both tapes, O'Donnell agreed that
the caller was Ahern. McBride and O'Donnell were very
familiar with Ahern's voice, both in person and on the
telephone, from having worked closely with him on a regular
basis. There is no suggestion that either officer, or any
other defendant, bore any animosity toward Ahern.
Concerned about Ahern's potential dangerousness and
the safety of Cate and Igoe, O'Donnell tried to contact
consulting psychologist Dr. Tonie Moran in order to get an
expert opinion as to whether or not the caller presented a
threat to Cate and Igoe, and to ask her advice. O'Donnell
made no attempt to contact Cate, Igoe, Ahern, the Union, or
any municipal police department on the night of September
19th. He did, however, question McBride about the
precautions taken by Cate for the remainder of the evening,
and discussed with her the likelihood that Ahern might pose
an immediate danger.
On September 20, 1991, O'Donnell reported to work
at 7:00 a.m., the time Ahern came on duty. He had asked
McBride to report for work early as well and to monitor
closely Ahern's whereabouts and activities. O'Donnell was
-8-
-8-
not concerned that there was any immediate danger to Igoe
because he knew that Igoe lived in New Hampshire and worked
in Waltham. O'Donnell thought it highly unlikely that Ahern
would drive off campus to find Igoe, because that would
certainly have resulted in disciplinary action and possibly
the loss of Ahern's job. As for Cate's safety, O'Donnell had
instructed McBride to tell her to stay off campus entirely if
she could, and in any case to stay away from the UMB boat
dock where Cate worked.
Dr. Moran called O'Donnell at approximately
7:15 a.m., at which time O'Donnell explained the situation,
describing the contents of the tapes in as much detail as
possible. Based upon what O'Donnell told her, Dr. Moran
advised him that the caller might be homicidal or suicidal
and therefore should be evaluated by a mental health
professional, preferably a psychiatrist, in order to
determine whether he posed a danger to himself or others.1
She cautioned O'Donnell that Ahern's career as a police
officer was not necessarily over as a consequence of the
events described; that with intervention and proper
treatment, it was possible that things could return to
normal, with no further problems.
1The record contains contrary accounts as to what Dr.
Moran told O'Donnell to do about the situation. O'Donnell
recalled in his deposition and elsewhere that Dr. Moran said
that Ahern should be taken for evaluation against his will if
necessary. Dr. Moran, however, contends that she never made
this recommendation and that she played no part in the later
decision to admit Ahern to Arbour.
-9-
-9-
Dr. Moran stated that she would not be able to
examine Ahern herself that day, but offered to contact
another doctor with extensive experience as a psychiatric
evaluator. It took several hours to make final arrangements
for an evaluation at Arbour, largely due to difficulties in
determining which facilities would be covered by Ahern's
medical insurance carrier. During the same morning,
September 20, O'Donnell played portions of the tapes for
Lieutenant James Wise, without giving him any information
about them, and asked if he could identify the caller. Wise,
who had been Ahern's training officer, and who had worked
directly with him on a daily basis for two years, replied
that the voice was Ahern's.
Ahern reported for work at his usual time of 7:00
a.m. and was assigned an armed and uniformed post patrolling
the UMB campus in a marked police cruiser. At about 1:00 or
1:30 p.m., O'Donnell called him back to the station and
instructed him to change into plain clothes, put his weapon
away, and meet O'Donnell in the DPS director's office.
When Ahern arrived, O'Donnell, McBride, and another
female officer were present. O'Donnell informed him that
Cate had made allegations against him regarding obscene and
threatening phone calls to her and Igoe; O'Donnell said that
Ahern was sick and needed help, and that O'Donnell wanted him
to undergo a psychiatric evaluation. Ahern denied the
allegations.
-10-
-10-
According to Ahern, he asked what would happen if
he did not agree to be evaluated and was told that he "was
going one way or the other." Ahern says that at this point
he became nervous and frightened; however, he concedes that
he agreed to go. Ahern allegedly asked to speak to a lawyer
or a union representative, but O'Donnell simply grabbed him
"like a buddy" and "carted" him out. O'Donnell testified in
deposition, however, that Ahern was "extremely cooperative"
and never gave any indication that he did not want to go with
the officers.
When they arrived at Arbour, O'Donnell explained
the situation to a staff member and, at some point, gave the
tapes to a staff member. The officers stayed at the hospital
until about 4:30 p.m., when they were informed that Ahern had
refused the option of applying for voluntary admission and
was being admitted involuntarily. Ahern remained in the
hospital for 12 days. Cate received several hang-up calls
during the time that Ahern was hospitalized. She was told by
an Arbour staff member who had contacted her that Ahern had
access to a pay phone.
Ahern was released from Arbour on October 2, 1991.
His discharge summary listed the reason for discharge as
expiration of the ten-day period authorized by statute.
After his release, Cate continued to get "countless numbers"
of harassing phone calls each day. She continued to receive
-11-
-11-
such calls until she moved in the spring of 1992. The calls
to Igoe also continued, at least through the winter of 1991.
Ahern was placed on paid administrative leave as of
September 20, 1991, and was instructed in October 1991 to set
up an appointment with Dr. Moran so that she could evaluate
his fitness for duty. They met in November 1991, and Dr.
Moran twice consulted with the attending psychiatrist who
treated Ahern at Arbour. Dr. Moran subsequently issued a
report in January 1992, in which she expressed her opinion
that Ahern could return to full duty on the condition that he
engage in a one-year course of psychotherapy.
In February 1992, David Cella, director of DPS,
informed Ahern that the DPS possessed evidence sufficient to
warrant a finding that Ahern had placed threatening phone
calls to Cate and Igoe. Cella stated that, at a minimum,
Ahern's actions constituted conduct unbecoming an officer and
very likely violated other department regulations. Cella
offered to permit Ahern to return to duty under various
conditions, including the inclusion of a letter of reprimand
in Ahern's file. Ahern refused, on the ground that it would
constitute an admission that he had made the calls.
After Ahern was provided extensive advice about his
rights, a hearing was held in September 1992 as to Ahern's
continued fitness for duty. Ahern apparently did not submit
a rebuttal case, and was terminated from his employment with
UMB on October 2, 1992, for "conduct unbecoming an officer."
-12-
-12-
A Union grievance resulted in lengthy hearings before an
arbitrator at which the Union and UMB presented extensive
evidence. In January 1994, the arbitrator found that the
evidence "clearly and convincingly" established that Ahern
had made the calls to Cate and Igoe and that there was just
cause for termination.
Ahern subsequently filed the present action. In
its order granting summary judgment to the defendants, the
district court first found that Ahern had not been seized so
as to implicate the Fourth Amendment because he had agreed to
go to Arbour for psychiatric evaluation. Alternatively, the
district court found that the officers had reasonably treated
the situation as an emergency creating a likelihood of
serious harm by reason of mental illness, and acted
consistently with Massachusetts law, Mass. Gen. Laws ch. 123,
12(a), and with the Due Process Clause of the Fourteenth
Amendment.
The court also ruled that in any case, the UMB
defendants were entitled to qualified immunity and that, on
the state-law claims, Dr. Moran and the UMB officers were
protected by Mass. Gen. Laws ch. 123, 22. This provides
for immunity from civil rights suits for, inter alia,
qualified psychologists and police officers who act pursuant
to the provisions of Mass. Gen. Laws ch. 123. As to Ahern's
claims arising from the termination of his employment, the
-13-
-13-
district court held that UMB had satisfied the due process
requirements of notice and opportunity to be heard.
II.
II.
A.
A.
On appeal, Ahern contends that the district court
erred in its rulings on three issues: (i) Ahern's claim
brought under 42 U.S.C. 1983, alleging that his involuntary
admission to Arbour violated his Fourth Amendment and Due
Process Clause rights; (ii) Ahern's section 1983 claim that
the defendants deprived him of his right to due process with
respect to his termination; and (iii) the district court's
ruling that the defendants were entitled to qualified and
statutory immunity.
Our review of the district court's grant of summary
judgment is de novo. See Wightman, 100 F.3d at 230. Summary
judgment is proper if the record materials "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). After a thorough review of the record
and careful consideration of the arguments presented, we
conclude that the district court's rulings were proper.
B.
B.
We begin with Ahern's section 1983 claims
concerning his involuntary admission to Arbour. A plaintiff
asserting a cause of action under 42 U.S.C. 1983 must show
that the challenged conduct is attributable to a "person" who
-14-
-14-
acted "under color of state law," and that it caused the
plaintiff to be deprived of rights, privileges, or immunities
secured by the United States Constitution or by federal law.
See Soto v. Flores, 103 F.3d 1056, 1061 (1st Cir. 1997). By
the terms of the statute itself, a section 1983 claim must be
based upon a federal right. See Baker v. McCollan, 443 U.S.
137, 144 n.3 (1979).
On appeal, Ahern argues that the defendants failed
to comply with the Massachusetts involuntary admission
statute, Mass. Gen. Laws ch. 123, 12.2 Ahern cannot assert
a section 1983 cause of action for violation of the state
statute, see McKinney v. George, 726 F.2d 1183, 1188, 1190
(7th Cir. 1984); nor does Ahern claim that the statute itself
is unconstitutional in its prescribed standards and
procedures for involuntary admission to a psychiatric
facility. Still, the statutory provisions may bear upon
analysis of Ahern's Fourth Amendment and due process rights.
We also note at the outset that any section 1983
claim against Dr. Moran is doubtful. She was a private
psychologist who occasionally consulted with the UMB DPS. It
is unclear that she was a state actor or acted under color of
2Mass. Gen. Laws ch. 123, 12(a) refers to the
involuntary "admission," rather than "commitment," of an
individual for a period of ten days.
-15-
-15-
state law,3 and even more doubtful that she can be deemed
responsible for the admission. But given our disposition of
the underlying constitutional claims, we need not decide
these issues.
We examine in turn Ahern's Fourth Amendment and due
process arguments with respect to his detention and
involuntary admission. We focus our resolution of this
appeal on the constitutional questions presented, rather than
on the qualified immunity defense, in order to clarify the
requirements of the Fourth Amendment in this unique context.
1.
1.
It is now well-settled that the Fourth Amendment's
protections against unreasonable searches and seizures apply
to the involuntary hospitalization of persons for psychiatric
reasons. See McCabe v. Life-Line Ambulance Serv., Inc., 77
F.3d 540, 544 (1st Cir.), cert. denied, --- U.S. ---, 117 S.
Ct. 275 (1996). The district court rejected Ahern's Fourth
Amendment argument, based on its finding that Ahern had not
been seized. On this threshold question, we adopt a
different approach.
The Supreme Court has explained that "a person has
been 'seized' within the meaning of the Fourth Amendment only
if, in view of all of the circumstances surrounding the
3See, e.g., Rockwell, 26 F.3d at 260; Pino v. Higgs, 75
F.3d 1461, 1465-66 (10th Cir. 1996).
-16-
-16-
incident, a reasonable person would have believed that he was
not free to leave." United States v. Mendenhall, 446 U.S.
544, 554 (1980) (footnote omitted). Ahern admits that,
during the confrontation at the UMB DPS station, he agreed to
go for an evaluation. Nevertheless, Ahern contends that
O'Donnell and McBride took him to Arbour against his will,
thereby seizing him for Fourth Amendment purposes. In
support of this claim, Ahern asserts that O'Donnell and
McBride told him that he was "going one way or the other,"
and that he understood that to mean that if he did not go to
the hospital voluntarily, he would be taken by force.
The district court ruled that Ahern had not been
seized, based upon, inter alia, its conclusions that "Ahern's
own evidence demonstrates that despite his protestations of
innocence, he gave all external indications of voluntarily
agreeing to submit to an evaluation," and that Ahern never
"communicated that he had changed his mind." But the
question seems relatively close, and we will assume for
argument's sake that the facts taken in the light most
favorable to Ahern establish that he was seized. We
therefore ask whether the assumed seizure violated the Fourth
Amendment.
To determine the Fourth Amendment standard of
reasonableness that applies to the defendants' actions, some
background explanation is in order. The Massachusetts
statute provides four different categories of procedures for
-17-
-17-
seeking the involuntary hospitalization of an individual for
a ten-day period. Mass. Gen. Laws ch. 123, 12. The first
two categories permit a "qualified physician, psychologist,
or psychiatric nurse" to sign a "pink paper" authorizing
restraint of the person, if the signor believes that the
person would create a "likelihood of serious harm by reason
of mental illness." McCabe, 77 F.3d at 547-48. The fourth
category establishes procedures for obtaining a warrant for
the apprehension of persons who are potentially dangerous by
reason of mental illness. See id. at 548. Ahern, however,
was detained and transported to Arbour under the "category-
three" procedure, which does not require the signing of a
warrant or pink paper. This procedure provides:
In an emergency situation, if a physician,
qualified psychologist or qualified pediatric nurse
. . . 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 [an authorized facility]. . . .
Mass. Gen. Laws ch. 123, 12(a).4
4The statute does not define "emergency," but does
defines "likelihood of serious harm" to mean:
(1) a substantial risk of physical harm to the
person himself as manifested by evidence of,
threats of, or attempts at, suicide or serious
bodily harm; (2) a substantial risk of physical
harm to other persons as manifested by evidence of
homicidal or other violent behavior or evidence
that others are placed in reasonable fear of
violent behavior and serious physical harm to them;
or (3) a very substantial risk of physical
impairment or injury to the person himself as
manifested by evidence that such person's judgment
-18-
-18-
A nonconsensual search or seizure is unreasonable in the
absence of a judicial warrant issued upon probable cause.
See Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602,
619 (1989). But "[t]he ultimate standard set forth in the
Fourth Amendment is reasonableness," Cady v. Dombrowski, 413
U.S. 433, 439 (1973), under "all of the circumstances,"
United States v. Montoya de Hernandez, 473 U.S. 531, 537
(1985). "[A]lthough 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." New Jersey v. T.L.O., 469 U.S. 325, 340 (1985)
(citation and internal quotation marks omitted).
The Supreme Court has recognized a particular
exception to the warrant and probable-cause requirements in
cases involving "special needs, beyond the normal need for
law enforcement." Griffin v. Wisconsin, 483 U.S. 868, 873
(1987) (citation omitted). In McCabe, 77 F.3d 540, we
applied the special needs exception to a Fourth Amendment
challenge to a municipal policy permitting forcible,
warrantless entries into private homes for the purpose of
executing pink papers. In that case, a pink paper had been
issued pursuant to the category-two procedure of the
Massachusetts statute.
is so affected that he is unable to protect himself
in the community and that reasonable provision for
his protection is not available in the community.
Mass. Gen. Laws ch. 123, 1.
-19-
-19-
McCabe did not directly resolve the question before
us here. Under the category-two procedure, police officers
act upon a determination made by a qualified physician,
psychologist, or psychiatric nurse, albeit without benefit of
an examination, and McCabe emphasized "the presence of a
search authorization by an impartial, or at least a
relatively impartial person." 77 F.3d at 552. Under the
category-three procedure, however, police officers make the
decision whether to "seize" the person themselves without
necessarily securing expert advice.
Where, as here, we are arguably dealing with a
police officer's own decision -- rather than that of an
impartial expert -- we think that Fourth Amendment standards
require a showing of probable cause; that is, circumstances
warranting a reasonable belief that the person to be seized
does (as outlined in the statute) have a mental health
condition threatening serious harm to himself or others.
Other circuits have so held,5 and involuntary hospitalization
is no less a loss of liberty than an arrest. We agree with
the Tenth Circuit that:
The state has a legitimate interest in protecting
the community from the mentally ill and in
5See, e.g., Pino v. Higgs, 75 F.3d 1461, 1467-68 (10th
Cir. 1996); Sherman v. Four County Counseling Ctr., 987 F.2d
397, 401 (7th Cir. 1993); Glass v. Mayas, 984 F.2d 55, 58 (2d
Cir. 1993); Maag v. Wessler, 960 F.2d 773, 775-76 (9th Cir.
1991); Gooden v. Howard County, Md., 917 F.2d 1355, 1362 (4th
Cir. 1990), rev'd on other grounds, 954 F.2d 960, 968 (4th
Cir. 1992) (en banc); McKinney, 726 F.2d at 1187; In re
Barnard, 455 F.2d 1370, 1373-74 (D.C. Cir. 1971).
-20-
-20-
protecting a mentally ill person from self-harm. A
person suspected of mental illness possesses a
right to liberty and a right to freedom from
unfounded charges of mental infirmity. Because a
seizure of a person for an emergency mental health
evaluation raises concerns that are closely
analogous to those implicated by a criminal arrest,
and both are equally intrusive, we conclude that
the "probable cause" standard applies here . . . .
Pino, 75 F.3d at 1468.
The proper inquiry is whether probable cause
existed at the moment the arrest was made, based on the facts
and circumstances within the arresting officer's knowledge
and of which he had reasonably trustworthy information. Beck
v. Ohio, 379 U.S. 89, 91 (1964). Here, then, probable cause
existed if, at the moment Ahern was "seized" for evaluation,
the facts and circumstances reasonably believed by the UMB
officers indicated that Ahern presented a likely threat of
serious harm to himself or others by reason of mental
illness. See Chathas v. Smith, 884 F.2d 980, 987 (7th Cir.
1989).
Applying this standard, we find that the undisputed
evidence demonstrates that the officers had probable cause to
believe that Ahern made the calls to Cate and Igoe, and that,
in view of the content of the tapes and Ahern's past
behavior, Ahern needed to be evaluated by a mental health
professional as soon as possible in order to determine
whether he might be dangerous by reason of mental illness.
Moreover, the belief that Ahern might be dangerous was shared
by Dr. Moran, a qualified psychologist, and corroborated by
-21-
-21-
Dr. Malick, a licensed physician, who concluded after
conducting his own examination that Ahern should be admitted
to Arbour.
In response, Ahern claims that the UMB DPS knew of
and was investigating Cate's allegations against him before
the September 19th call. The record contains some support
for this claim, in the form of deposition testimony of other
UMB officers. Nevertheless, we agree with the district
court's conclusion that "even if there were some earlier
investigation, the complaint by Cate on September 19, 1991,
was adequate to trigger an 'emergency' response by the
department" because the September 19th call "represented a
change from threats to do harm, to a representation that harm
had been done."
Ahern next says that the defendants' delay in
acting upon the September 19th call negates the existence of
an emergency warranting a unilateral seizure without more
elaborate procedural safeguards. Cf. McCabe, 77 F.3d at 550
n.10. Ahern places great emphasis on the time that elapsed
between his return to the station on the afternoon of
September 20th and both (i) the recording by Cate's machine
of the September 19th message (about 37 hours), and (ii) the
time that the UMB officers formed the belief that Ahern was
the caller (about 18 hours). Indeed, during the morning and
early afternoon of September 20th, O'Donnell permitted Ahern
-22-
-22-
to patrol the UMB campus armed with a gun in a marked patrol
car.
This argument is not without force; in hindsight,
some of O'Donnell's actions are equivocal. Nonetheless, the
objective facts known to the defendants clearly demonstrate
that a reasonable person would have believed that Ahern posed
a "likelihood of serious harm by reason of mental illness"
and to believe that Ahern's continued presence in the UMB
community constituted an "emergency." The speed with which
an emergent problem is resolved is not itself determinative
of the existence vel non of an emergency. We agree with the
district court that the undisputed facts show that the delay
"resulted largely from an effort to take appropriate action
in a safe and measured manner."
Ahern further suggests that the defendants could
not reasonably have viewed him as dangerous because he did
not engage in dangerous behavior between the phone call and
his seizure, and also because he displayed no visible signs
of mental illness while in the defendants' presence.
Probable cause in this context, however, requires only the
likelihood of dangerous activity -- Ahern's threat, coupled
with his history of harassment, threats, and stalking,
sufficed to show that failure to hospitalize Ahern would
create some danger of serious physical harm.
Finally, the summary judgment materials contain no
support for Ahern's allegation that the defendants gave false
-23-
-23-
or misleading information to Dr. Malick that suggested that
Ahern might be suicidal. Dr. Malick's notes contained the
remarks, "apparently suicidal threats today" and "told
psychiatrist he planned to kill self too." Ahern says that
he never made such comments to Dr. Malick. This evidence,
however, is simply too insubstantial to create a genuine
dispute of material fact.
Our conclusion is not altered by the fact that
Ahern denied making the phone calls or by the fact that he
was ultimately released from Arbour without a finding that he
continued to pose a threat to himself or others. "If there
is probable cause, it is irrelevant if the suspect turns out
to be noncommitable. The arrest is still legal." Chathas,
884 F.2d at 987; see Baker v. McCollan, 443 U.S. at 145.
Similarly, it is irrelevant whether the defendants acted in
an ideal manner. We conclude that there is no trialworthy
issue as to the Fourth Amendment claim; the seizure, if such
there was, was lawful under the Fourth Amendment.
2.
2.
The district court dealt extensively with Ahern's
various theories of due process violations in connection with
his involuntary admission to Arbour. On appeal, Ahern has
not attempted to articulate any due process theory entitling
him to relief, but has simply argued that the defendants
lacked authority to use the category-three procedure because
no emergency existed, and that a warrant should have been
-24-
-24-
obtained under the "category-four" procedure, Mass. Gen. Laws
ch. 123, 12(e). We therefore treat his other allegations
of due process violations, raised in the district court, as
waived.
In this context, the Fourth Amendment protection
against unreasonable seizures more specifically applies to
the complained-of conduct than does the Due Process Clause,
and thus defines what process is due in the context of the
specific conduct alleged to have violated Ahern's
constitutional rights. Albright v. Oliver, 510 U.S. 266, 273
(1994); Gerstein v. Pugh, 420 U.S. 103, 125 n.27 (1975);
McKinney, 726 F.2d at 1187. We have already explained, in
discussing the Fourth Amendment point, that the evidence
warranted the police in believing that an "emergency" existed
by virtue of the real possibility that Ahern might harm Igoe
or Cate.
C.
C.
Ahern also raises a separate due process claim,
arguing that he was deprived due process in the proceedings
leading to the termination of his job. There is no dispute
that Ahern enjoyed constitutional protections in his
continued employment with the UMB DPS. See Cleveland Bd. of
Educ. v. Loudermill, 470 U.S. 532 (1985). In the district
court, he made several arguments to this effect, but the
district court correctly rejected his challenges to the
adequacy of the notice and opportunity to be heard afforded
-25-
-25-
him prior to his termination. On appeal Ahern has waived
these arguments.
Ahern's only argument on appeal with respect to
this due process claim is that the UMB defendants "destroyed
and manipulated evidence in bad faith." In particular, he
claims that the UMB defendants concealed or destroyed a tape
recording of an interview with Igoe conducted by McBride;
this would have proved relevant and exculpatory, Ahern
argues, by showing that Igoe thought that two different
people had made the threatening phone calls to him. Ahern
also claims that the defendants used a log of the calls made
to Igoe that was prepared by McBride, rather than Igoe's own
actual log of calls. According to Ahern, McBride's version
was incomplete and Ahern was thus prejudiced in his ability
to show that some of the calls were not made by him.
We readily reject Ahern's argument. There is no
evidence that witnesses were unavailable for examination by
Ahern prior to his termination hearing; Ahern could readily
have adduced the allegedly-concealed information by
questioning Igoe and McBride. Likewise, he could have
discovered UMB's alleged destruction and manipulation of
evidence by examining Igoe, who would have had no reason to
lie at the pretermination hearing, and who later admitted in
deposition that he believed that two different people made
the threatening phone calls. Furthermore, it appears that at
most, the destroyed evidence would have shown the existence
-26-
-26-
of a second caller; Ahern never suggests that with the
additional evidence he would have been able to show that he
never made the harassing and threatening calls. We note that
Ahern was afforded a three-day hearing before an independent
arbitrator, who concluded after reviewing the "plethora of
evidence" presented by both parties that the evidence
"clearly and convincingly" established that Ahern made the
calls to Cate and Igoe. In these circumstances, we cannot
say that Ahern was denied a fair opportunity to contest his
termination.
III.
III.
We need only add a brief word on the subject of
qualified immunity. The district court found that the law at
the time of Ahern's involuntary admission to Arbour "did not
clearly identify that O'Donnell and McBride's actions might
violate the Constitution." See Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982). On appeal, Ahern's sole argument on
this issue is that the disposition of the qualified immunity
question before the resolution of alleged factual disputes is
premature.
We disagree. The question whether a defendant is
entitled, on a given set of facts, to the protection of
qualified immunity is a question of law. See Elder v.
Holloway, 510 U.S. 510, 516 (1994); Wood v. Clemons, 89 F.3d
922, 927 (1st Cir. 1996). Because the entitlement is "an
immunity from suit rather than a mere defense to liability,"
-27-
-27-
Mitchell v. Forsyth, 472 U.S. 511, 526 (1985), the Supreme
Court has repeatedly "stressed the importance of resolving
immunity questions at the earliest possible stage in
litigation," Hunter v. Bryant, 502 U.S. 224, 227 (1991)
(citations omitted).
Finally, Ahern argues that, on his state-law
claims, the district court erred in ruling that the
defendants are entitled to statutory immunity under Mass.
Gen. Laws ch. 123, 22. This section creates immunity from
civil suits for physicians, qualified psychologists, and
police officers who act "pursuant to the provisions" of
chapter 123. Because we have already determined that the
officers acted in conformance with the statute, they were
entitled to immunity under this provision on the state-law
claims. Dr. Moran similarly acted within the bounds of the
statute, to the extent that she was responsible for the
decision to detain and transport Ahern to Arbour. We find no
error.
IV.
IV.
For the foregoing reasons, the judgment of the
district court is AFFIRMED. Costs on appeal awarded to
AFFIRMED. Costs on appeal awarded to
Defendants-appellees.
Defendants-appellees.
-28-
-28-