          United States Court of Appeals
                     For the First Circuit

No. 17-1669

                 ROLAND G. HILL; MARY R. HILL,

                    Plaintiffs, Appellants,

                               v.

EDWARD WALSH, individually and in his official capacity as Chief
 of the City of Taunton Police Department; CITY OF TAUNTON, MA;
   DEBORAH LAVOIE; WILLIAM HENAULT; TROY ENOS; JOSEPH MARQUES,

                     Defendants, Appellees.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. Richard G. Stearns, U.S. District Judge]


                             Before

                      Howard, Chief Judge,
              Lynch and Thompson, Circuit Judges.


     Paul W. Patten for appellants.
     Daniel F. de Abreau, First Assistant City Solicitor, for
appellee.



                       February 27, 2018
            LYNCH, Circuit Judge.      In this opinion, we bring our

circuit law into conformity with the Supreme Court's precedent on

the emergency aid exception to the Fourth Amendment requirement

that a warrant be obtained before police entry into homes.              We

explain below.

            On March 3, 2015, Matthew Hill, age 28, overdosed and

was taken to Morton Hospital in Taunton, Massachusetts.         The next

day, several Taunton police officers arrived at his parents' home

to escort Matthew to a state court civil-commitment hearing.            On

Matthew's   sister's   application,   a   Taunton   district   judge    had

issued a warrant earlier that day to apprehend Matthew pursuant to

Mass. Gen. Laws ch. 123, § 35.        The warrant indicated both that

Matthew was currently at the hospital and that his home address

was 3 Eldridge Street.    The officers went to that address.           When

two officers thought that they saw movement inside the home, but

no one came to the door, the police entered, believing Matthew to

be in danger of overdosing inside.        Damage was done to the home

as the officers subdued the Hills' dogs upon entry.

            Matthew's parents, who owned the home at 3 Eldridge

Street, brought suit against the officers and the City of Taunton

under 42 U.S.C. § 1983, alleging that the police's entry had

violated their Fourth Amendment rights.         They also raised two

related state law claims.    The district court entered judgment in

favor of the officers and the City on all counts on the grounds


                                - 2 -
that there was no Fourth Amendment violation.      We affirm on a

different basis.

          Because the law on the emergency aid exception to the

warrant requirement was not clearly established at the time of the

incident, we uphold the district court's entry of judgment based

on qualified immunity.   We also take this opportunity to clarify

our circuit's emergency aid doctrine: officers seeking to justify

their warrantless entry need only demonstrate "'an objectively

reasonable basis for believing' that 'a person within [the house]

is in need of immediate aid.'"    Michigan v. Fisher, 558 U.S. 45,

47 (2009) (alteration in original) (internal quotations omitted).

They do not need to establish that their belief approximated

probable cause that such an emergency existed.   We thus modify our

previous pronouncements in United States v. Martins, 413 F.3d 139

(1st Cir. 2005), and its progeny.

                                 I.

          The plaintiffs, Roland and Mary Hill, have lived at 3

Eldridge Street in Taunton, Massachusetts for over twenty years.

Their adult son, Matthew Hill, grew up there.       Over the last

decade, Matthew has struggled with opioid addiction and substance

abuse.   At the time of the incident giving rise to this case,

Matthew was staying at 44 Weir Street, an apartment building owned

by his father, and had done so for approximately six years.




                              - 3 -
A.   March 3, 2015 Incident

           On the evening of March 3, 2015, Matthew's sister, Amanda

Hill, called 911 upon discovering Matthew behind his building at

44 Weir Street, on the verge of an overdose.       Matthew was barely

able to stand, with "eyes . . . rolling to the back of his head."

Amanda told the emergency responder that "Matthew . . . was going

to kill himself if he didn't get help."       An ambulance and police

officers   from   the   Taunton    Police   Department   ("TPD")   were

immediately dispatched to 44 Weir Street.

           After a violent struggle, the police subdued Matthew and

transported him to Morton Hospital in Taunton.     In response to the

incident, the dispatcher on duty placed an entry in the police

blotter indicating that Matthew had been taken to Morton Hospital.

Matthew remained there as a patient until he was discharged into

the TPD's custody on March 5, 2015.

B.   Application for a Section 35 Warrant

           The next day, March 4, 2015, Amanda filed a petition in

Taunton district court to civilly commit Matthew as a substance

abuser pursuant to Mass. Gen. Laws. ch. 123, § 35.          Section 35

permits the court to issue a warrant "for the apprehension and

appearance" of an individual if "there are reasonable grounds to

believe that [he] will not appear [at his civil commitment hearing]

and that any further delay in the proceedings would present an

immediate danger to [his] physical well-being . . . ."       Id.


                                  - 4 -
           This was the second time Amanda had filed a section 35

petition as to Matthew.   Her first attempt to have him committed,

a few months before, was unsuccessful because the police had been

unable to locate Matthew before the warrant for apprehension

expired.

           On March 4, 2015, the state district judge determined

that a warrant for apprehension under Mass. Gen. Laws ch. 125,

§ 35, was necessary in Matthew's case, and issued one at 2:20 PM.

The section 35 warrant had in its subject line, "Matthew Hill, 3

Eldridge Street."    Directly below, in boldfaced text, it read:

"CURRENTLY AT MORTON HOSPITAL."   This information was taken from

Amanda's petition, which listed "3 Eldridge Street" as Matthew's

address, and indicated that he was currently at Morton Hospital.

The section 35 warrant also stated that unless the subject of the

warrant could be "brought before a judge prior to 4:30 PM on the

same day that it is executed," it would expire.

C.   Execution of the Section 35 Warrant

           The section 35 warrant was faxed to the TPD at 2:58 PM.

The shift commander, Officer Joseph Marques, received the faxed

warrant and initiated an incident report.      Marques entered "3

Eldridge Street" -- not Morton Hospital -- into the TPD's dispatch

system and gave the warrant to the dispatcher, Officer Deborah

Lavoie.    At approximately 3:18 PM, Lavoie handed the warrant to

the patrol supervisor, Officer William Henault, and radioed for


                               - 5 -
another officer to help Henault execute the warrant at 3 Eldridge

Street.1

            After receiving the warrant, Henault immediately went to

3 Eldridge Street.    Upon arriving, he shook the chain-link fence

surrounding the property because he knew that the Hills kept

several large dogs on their property.   Shortly thereafter, Officer

Troy Enos responded to Lavoie's dispatch and joined Henault.

Having ascertained that the dogs were not in the yard, both

officers went to the front door.

              Henault knocked, but received no response.    He then

peered into the home through a glass pane on the side of the door.

Henault was startled to see one of the dogs lunge against the

glass.     When he looked again, he said he saw a curtain move and

"a silhouette of something there, a figure of some sort, that



     1    All three officers testified during their depositions
that they did not see the reference to Morton Hospital on the face
of the section 35 warrant. In fact, according to Henault, "five
or six people [had] looked at [the warrant]," and not a single
person noticed the language.
          Marques and Henault both attributed this to the fact
that past versions of the section 35 warrant used a different
"form, format and font," which caused the words "CURRENTLY AT
MORTON HOSPITAL" to "blend[] in." They said that the notation at
issue used to be handwritten or typed into the subject line itself
-- not included elsewhere on the page. Initially, though, Henault
admitted that he did not notice the text because "any type of print
below [the subject line] isn't something that [the police] would
typically review on . . . every warrant."
          Lavoie testified that she did not recall whether she had
read the warrant before issuing the radio dispatch.


                                - 6 -
disappeared out of sight" in a rear room.            Enos also testified

that when he looked into the house, he "saw a curtain move" and

thought that a person was inside.

               Henault and Enos then walked around the house, calling

out Matthew's name.          They discovered that the side door was

unlocked, but they were reluctant to enter the home because the

dogs "were trying to get [them]" when they pulled the door ajar.

Unsure of what to do, Henault and Enos returned to their cruisers

to call dispatch.       It was at this moment that the Police Chief,

Edward Walsh, arrived.

               Henault explained to Walsh that they were attempting to

serve a section 35 warrant of apprehension for Matthew.               Henault

mentioned that although this was Matthew's parents' home, and

Matthew lived at 44 Weir Street, he thought he had seen a shadow

of a person inside, and was unable to verify if it was Matthew.

After    the    briefing,   Walsh   instructed   Henault   to   see   if   the

dispatchers had any additional information about Matthew or the

section 35 warrant.          When Henault reached out to Lavoie and

Marques, they said that they did not.

               At this point, Walsh made the decision to go inside the

house.    He instructed Enos to retrieve the fire extinguisher from

his cruiser.      The three officers then entered through the unlocked

side door, sprayed the fire extinguisher three times to keep the




                                    - 7 -
dogs back, and conducted a sweep of the premises.           They found no

one at home.

            Due to the damage caused by the fire extinguisher, the

Hills vacated their home for five days and engaged in extensive

cleaning to make it habitable.

D.    U.S. District Court Proceedings

            On February 10, 2016, the Hills filed suit against

Officers Marques, Lavoie, Henault, and Enos in their individual

capacities; against Chief Walsh in his individual and official

capacity; and against the City of Taunton.            The Hills brought a

claim under 42 U.S.C. § 1983, alleging that the officers had

violated their Fourth Amendment rights, and also raised two state

law claims: intentional infliction of emotional distress ("IIED")

and trespass.       After discovery, the defendants filed a motion for

summary judgment on all counts.

            The district court entered summary judgment for the

defendants on June 29, 2017.         Hill v. Walsh, No. 16-10225, 2017

WL 2818987 (D. Mass. June 29, 2017).          It found that the officers

did not commit a Fourth Amendment violation because their conduct

fell within the emergency aid exception to the warrant requirement.

Id. at *3-5.        The district court also noted that even if the

officers had violated the Fourth Amendment, they had a "strong

case" that they were entitled to qualified immunity because "there

is   no   clearly    established   Supreme   Court   precedent"   governing


                                    - 8 -
whether a section 35 warrant is sufficient to establish exigent

circumstances to enter a third party's home.                   Id. at *5 n.6.

Lastly, the district court dismissed the plaintiffs’ municipal

liability and state law claims.        Id. at *5-6.

             The Hills timely filed this appeal on June 30, 2017.

                                      II.

             We review de novo the district court's entry of summary

judgment against Roland and Mary Hill on all of their claims.               See

Sheinkopf v. Stone, 927 F.2d 1259, 1262 (1st Cir. 1991).               Summary

judgment is appropriate here because no "reasonable fact-finder,

examining    the   evidence   and   drawing    all   reasonable      inferences

helpful   to   the   [plaintiffs],"     Cortés-Irizarry        v.   Corporación

Insular de Seguros, 111 F.3d 184, 187 (1st Cir. 1997), could

resolve the dispute in the plaintiffs' favor.

             The district court granted the defendants' motion for

summary judgment on the ground that they did not violate the Fourth

Amendment.

             We affirm on the basis that the officers are entitled to

qualified immunity and no claim is stated against the City.

A.   Section 1983 Claim

             The standard for qualified immunity is familiar: as the

Supreme Court stated this year, officers are immune from suit under

§ 1983    unless     "(1)   they    violated   a     federal    statutory    or

constitutional right, and (2) the unlawfulness of their conduct


                                     - 9 -
was 'clearly established at the time.'"           District of Columbia v.

Wesby, No. 15-1485, slip op. at 13 (U.S. Jan. 22, 2018) (quoting

Reichle v. Howards, 566 U.S. 658, 664 (2012)).

           Because qualified immunity is intended to protect "all

but the plainly incompetent or those who knowingly violate the

law," Malley v. Briggs, 475 U.S. 335, 341 (1986), the existing

precedent at the time of the officers' conduct "must be clear

enough that every reasonable official would interpret it" to bar

the conduct at issue, Wesby, slip op. at 14 (emphasis added).

Although   plaintiffs    are   not    required   to   identify   controlling

precedent with "identical[]" facts, we have held that "clearly

established law" must be sufficiently "particularized" to serve

"as a fair and clear warning" that the officers' conduct is

unconstitutional.       Alfano v. Lynch, 847 F.3d 71, 76 (1st Cir.

2017) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).

           The Hills argue that Brigham City v. Stuart, 547 U.S.

398 (2006), and its progeny, constitute clearly established law

and dictate that the officers' entry was objectively unreasonable.

We disagree.    The "contours," Wesby, slip op. at 14, of the

emergency aid doctrine laid out in Brigham City would not have

given a fair and clear warning to the officers here.

           In Brigham City, the Supreme Court excused the officers'

warrantless entry into the home where they had witnessed an

"altercation" in the kitchen between four adults and a juvenile,


                                     - 10 -
who punched one of the adults, causing the adult to "spit[] blood."

547 U.S. at 400-01.           The Court reasoned that in light of the

"ongoing violence occurring within the home," id. at 405, the

police had "an objectively reasonable basis for believing that an

occupant [was] seriously injured or imminently threatened with

such injury," id. at 400.

             Here, the officers allege that they entered 3 Eldridge

Street   because      (1)    they    received     a    section    35       warrant    of

apprehension    for    Matthew,       which     was    issued    by    a    judge    who

determined    that    "there       [were]   reasonable      grounds"       to    believe

Matthew would not appear for his civil commitment hearing, and,

importantly, that "any further delay in the proceedings would

present an immediate danger to [his] physical well-being," Mass.

Gen. Laws ch. 123, § 35; (2) the warrant stated "3 Eldridge

Street," in its subject line; (3) Officers Henault and Enos thought

that they saw a person inside 3 Eldridge Street, whom they believed

-- but could not confirm without entry -- was Matthew; and (4) a

door to the home was unlocked, and the officers assumed the door

would have been secured if the house was unoccupied.

             There is no clearly established law on point.                           The

Supreme Court has never addressed whether a section 35 warrant --

or any warrant to compel attendance at a civil commitment hearing,

for   that   matter     --    is    sufficient        to   justify    the       police's

warrantless entry into the home pursuant to the emergency aid


                                       - 11 -
exception.    We have also never had the occasion to consider section

35 warrants in this context.2

          The   district   court    also     aptly   pointed      to    a   second

wrinkle: this court's language and the test adopted by the Supreme

Judicial Court of Massachusetts disagree as to the government’s

burden of proof under the emergency aid exception.             Compare United

States v. Infante, 701 F.3d 386, 392 (1st Cir. 2012) ("The burden

is on the government to show a reasonable basis, approximating

probable cause . . . ." (emphasis added)), with Commonwealth v.

Duncan, 7 N.E.3d 469, 473 (Mass. 2014) ("Although the broader

'exigent circumstances' exception generally requires a showing of

probable cause, such a showing is not necessary in emergency aid

situations,   because   the   purpose       of   police   entry    is       not   to

investigate criminal activity.").

          We take this opportunity to clarify our circuit law.                    In

light of the Supreme Court's most recent decision on the emergency

aid exception, Michigan v. Fisher, we hold that the government

need not show probable cause, only "an objectively reasonable



     2    Defendants urge us to extend McCabe v. Life-Line
Ambulance Service, Inc., 77 F.3d 540 (1st Cir. 1996), to section
35 cases.   There, we held that the police did not violate the
Fourth Amendment when they entered a residence without a warrant
to "execute a pink paper" -- a civil commitment order issued by a
medical professional pursuant to Mass. Gen. Laws ch. 123, § 12(a).
Id. at 542-43, 548. We decline to do so. We need not -- and do
not -- decide whether a section 35 warrant is sufficient per se to
justify warrantless entry into the home.


                                   - 12 -
basis" for believing that a person inside the home is need of

immediate aid, 558 U.S. at 47 (quoting Brigham City, 547 U.S. at

406), in order to effectuate a warrantless entry.    This basis need

not "approximate probable cause."

          Infante attributes the language, "approximating probable

cause," to this court's decision in United States v. Beaudoin, 362

F.3d 60, 80 (1st Cir. 2004), vacated sub nom. Champagne v. United

States, 543 U.S. 1102 (2005).      See Infante, 701 F.3d at 392-93.

But the Beaudoin court never imposed this standard.    Instead, the

language was first adopted by Martins, 413 F.3d 139.    Martins has

since been superseded by Michigan v. Fisher, which makes no mention

of probable cause -- only an "objectively reasonable basis."    558

U.S. at 47.

          We offer this clarification to bring our case law in

line with Supreme Court precedent.    The Court's choice of language

is instructive.   It used "objectively reasonable basis" for the

officers' belief; it did not use the familiar tests of "reasonable

suspicion" or "probable cause."        At least two of our sister

circuits have also so concluded.     See United States v. Toussaint,

838 F.3d 503, 508-09 (5th Cir. 2016) (adopting the "objectively

reasonable basis" standard); Schreiber v. Moe, 596 F.3d 323, 330

(6th Cir. 2010) (same).

          The Hills' only rejoinder is that regardless of the

contours of the emergency aid exception, it was not "objectively


                              - 13 -
reasonable" for the officers to believe that Matthew was inside 3

Eldridge Street.      They argue that the face of the section 35

warrant clearly indicated that Matthew was "CURRENTLY AT MORTON

HOSPITAL," a fact the officers would have "reasonably known" or

"discover[ed]," United States v. Tibolt, 72 F.3d 965, 969 (1st

Cir. 1995), had any of them read the warrant carefully, or had

Officer Henault reviewed the police blotter, or had Officers

Marques or Lavoie verified Matthew's location when radioed.

             But hindsight is twenty-twenty.   The officers' actions

do not establish that the decision to enter the home was not

objectively reasonable at that time.      Given Matthew's history of

overdosing and resisting the police, the subject line of the

warrant (3 Eldridge Street), and the appearance of a person inside

the home, a reasonable officer could have reasonably concluded

that her entry was lawful pursuant to the emergency aid exception.

We cannot say no reasonable officer would have thought the entry

constitutional.     And where there is reasonable debate about the

constitutionality of the officers' actions, there is qualified

immunity.

B.   Municipal Liability

             Summary judgment was also correctly entered for the City

on each of the Hills' two claimed theories regarding municipal

liability.




                                - 14 -
            First, the Hills allege that the "pervasive practice of

not reading warrants" in the TPD raises a genuine issue as to

whether the City of Taunton is liable for the officers' conduct

because of its failure to train and supervise its officers.                       See

Connick v. Thompson, 563 U.S. 51, 60 (2011).                  But this is a gross

mischaracterization of the record.               Aside from Officer Henault's

off-the-cuff remark that "any type of print below [the subject

line]     isn't      something      that    we        would    typically        review

on . . . every       warrant,"     there   is    no    evidence    in     the   record

supporting the Hills' conjecture that TPD officers -- as a matter

of course -- do not read warrants.                 Plaintiffs cannot rest on

"'conclusory allegations, improbable inferences, [or] unsupported

speculation' to defeat a motion for summary judgment."                      Saunders

v. Town of Hull, 874 F.3d 324, 331 (1st Cir. 2017) (alteration in

original) (quoting Welch v. Ciampa, 542 F.3d 927, 935 (1st Cir.

2008)).

            Further, the claim based on the City's alleged failure

to train officers to read warrants does not rise to the level of

"deliberate indifference."           Connick, 563 U.S. at 62.           The Supreme

Court     has   held    that   a    "pattern      of    similar    constitutional

violations"     is     "ordinarily    necessary"        to    establish    municipal

liability, id. (quoting Bd. of Cty. Comm'rs of Bryant Cty. v.

Brown, 520 U.S. 397, 409 (1997)), unless "the need for more or

different training is so obvious and the inadequacy [is] so likely


                                      - 15 -
to result in the violation of constitutional rights," City of

Canton v. Harris, 489 U.S. 378, 390 (1989).                  Here, there is no

evidence of past violations, and what happened to the Hills is not

"so obviously" the consequence of a systemic lack of training, as

opposed to the decisions of individual officers.

             The Hills' second theory is the contention (in two

cursory sentences) that Walsh's decision to go into their home

gives rise to municipal liability because he was the Police Chief.

However, they fail to allege -- let alone substantiate -- that

Walsh was the final policymaker in this case under Massachusetts

law.     See Pembaur v. City of Cincinnati, 475 U.S. 469, 481-83

(1986) (holding that municipal liability only arises in cases where

the municipal actor was the final policymaker, as defined by state

law).    This claim has been waived.           United States v. Zannino, 895

F.2d 1, 17 (1st Cir. 1990).

C.      State Law Claims

             Finally, the district court correctly entered summary

judgment    against    the   Hills'    two     state   law   claims:   IIED   and

trespass.

             Under Massachusetts law, IIED requires proof of "extreme

and outrageous conduct."        Agis v. Howard Johnson Co., 355 N.E.2d

315, 318 (Mass. 1976).          The parties do not dispute that the

officers here entered 3 Eldridge Street for the sole purpose of

saving Matthew.       That is neither extreme nor outrageous.           And the


                                      - 16 -
trespass claim is also without merit because the police clearly

had license to enter to render aid.          See Rossi v. DelDuca, 181

N.E.2d 591, 593 (Mass. 1962) ("[O]ne is privileged to enter land

in the possession of another if it is, or reasonably appears to

be,   necessary    to   prevent   serious   harm   to   the   actor   or   his

property.").      That ends the matter.

                                    III.

           Because the district court correctly entered judgment

against the Hills on all counts, we affirm.         No costs are awarded.




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