
USCA1 Opinion

	




                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                  _________________          No. 96-1528                                  JEREMIAH P. AHERN,                                Plaintiff, Appellant,                                          v.            PHILIP O'DONNELL, PATRICIA McBRIDE, TONIE MORAN, DAVID CELLA,                    INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES,                         and THE UNIVERSITY OF MASSACHUSETTS,                                Defendants, Appellees.                                  _________________                                     ERRATA SHEET               The opinion of this Court issued on March 31, 1997, is          amended as follows:               Cover sheet:  Delete "1977" and insert in its place "1997."                                       United States Court of Appeals                                For the First Circuit                                 ____________________        No. 96-1528                                  JEREMIAH P. AHERN,                                Plaintiff, Appellant,                                          v.            PHILIP O'DONNELL, PATRICIA McBRIDE, TONIE MORAN, DAVID CELLA,                    INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES,                         and THE UNIVERSITY OF MASSACHUSETTS,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Douglas P. Woodlock, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                Boudin, Circuit Judge,                                        _____________                            Bownes, Senior Circuit Judge,                                    ____________________                         and Skinner,* Senior District Judge.                                       _____________________                                 ____________________            Thomas Gilbert Massimo for appellant.            ______________________            Terence P.  O'Malley with  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-
