
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                                                      ____________________        No. 95-1731                                  MARY McCABE, ETC.,                                 Plaintiff, Appellee,                                          v.                          LIFE-LINE AMBULANCE SERVICE, INC.,                                Defendants, Appellees,                                                                                      ________                                  THE CITY OF LYNN,                                Defendant, Appellant.                                                                                      ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                      [Hon. Nancy Gertner, U.S. District Judge]                                           ___________________                                                                                      ____________________                                Cyr, Boudin and Stahl,                                   Circuit Judges.                                   ______________                                                                                      ____________________             Charles M. Burnim, with whom Michael J. Barry and George S.             _________________            ________________     _________        Markopoulos were on brief for appellant.        ___________             Charles M. Campo, Jr., with whom Floyd H. Anderson and Kassler &             _____________________            _________________     _________        Feuer, P.C. were on brief for appellee McCabe.        ___________                                                                                      ____________________                                  February 29, 1996                                                                                      ____________________                    CYR, Circuit Judge.  In this appeal by the City of Lynn                    CYR, Circuit Judge.                         _____________          ("City"), we consider whether an established City policy, permit-          ting  forcible,  warrantless  entries  of private  residences  to          enforce involuntary civil commitment orders, violates  the Fourth          Amendment to the United States Constitution.   The district court          granted summary judgment  for plaintiff Mary  McCabe, administra-          trix of the  estate of  Ruchla Zinger, a  Holocaust survivor  who          died in her Lynn home  during a tragic attempt by City  police to          execute  an involuntary  commitment order  which had  been issued          against  her.   For  the reasons  discussed  in this  opinion, we          conclude that the challenged City policy came within an exception          to the Fourth Amendment warrant requirement.                                           I                                          I                                      BACKGROUND                                      BACKGROUND                                      __________                    Ms. Zinger, a 64-year-old Lynn, Massachusetts, resident          with a history of mental illness and psychiatric hospitalization,          as well as severe  obesity and high blood pressure,  resisted all          attempts  at communication  and intervention  by family  members.          She  refused to  be examined  by a  doctor after  threatening her          former husband  with physical  harm and upsetting  her downstairs          neighbors  by causing loud and violent disturbances in her apart-          ment, thereby prompting her  family to initiate eviction proceed-          ings against her.1   Subsequently,  on September 6,  1989, a  li-          censed  psychiatrist,  Dr.  Jakov Barden,  signed  an application                                        ____________________               1Ms. Zinger's former husband and their children owned the           building in which Ms. Zinger's apartment was located.                                          2          [hereinafter:  "pink paper"] for a ten-day involuntary commitment          of Ms.  Zinger pursuant to Mass. Gen. Laws Ann. ch. 123,   12(a),          based exclusively on the reports of family members  and neighbors          as to Ms. Zinger's physical and behavioral symptoms.                      The next  morning, Constable Kenneth  Jackson, who  had          been unsuccessful in previous  attempts to serve Ms. Zinger  with          an  eviction notice, and was  scheduled to execute  a judgment of          eviction  against her at  1:00 p.m. that  afternoon, learned that          the  pink  paper had  been issued  against  Ms. Zinger  the night          before, and contacted the Lynn police department.  The  constable          informed  the  Lynn police,  based  on  his experience  with  Ms.          Zinger, that he believed she would resist committal.  The consta-          ble  and the Lynn police officers arranged  to meet at the Zinger          apartment  building at 1:00 p.m.,  to execute the  pink paper and          the eviction order.                      Three Lynn police officers and the constable arrived at          the Zinger apartment building  at the appointed hour, accompanied          by  a crew from the  Life-Line Ambulance Service,  which had been          engaged to  restrain Ms.  Zinger as necessary,  physically remove          her from the apartment, and transport her to the hospital.  After          receiving no response to their knocks, the officers kicked in the          outside apartment-house door and proceeded upstairs to the Zinger          apartment.   The officers  knocked and announced  their presence,          received no response, and  began to kick in the  Zinger apartment          door.   Ms. Zinger  began screaming  "Why are  you kicking  in my          door?" then cracked  it open.  Identifying themselves  as police,                                          3          the  officers told her  that they were  going to bring  her under          medical care, to which  she responded:  "No  doctors!"  When  she          began  to close the door,  the officers shoved  their way inside.          Later, while  the officers  were forcibly  removing her from  the          apartment, Ms.  Zinger suffered a  cardio-respiratory arrest  and          died.2                     After  McCabe, as administratrix, instituted this civil          rights  action under 42 U.S.C.    1983 against  the City, amongst          others,3  in  September 1992,  an  amended  complaint alleged  an                                        ____________________               2The only  constitutional violation McCabe attributes to the          City  is the forcible warrantless entry.  In her cross-motion for          summary  judgment, McCabe  did  not press  her "excessive  force"          claim  that a City policy authorized or caused the police actions          utilized  to restrain  Ms. Zinger.   See  infra note  4.   We now                                               ___  _____          summarize  the  allegations against  the  individual officers  in          order to provide additional context.                 After the officers pushed their  way into her apartment  and          Ms.  Zinger began screaming, the officers forced her to the floor          on her  stomach and handcuffed  her hands behind  her back.   She          lost control of her bladder.  The ambulance crew refused to carry          her  down the  stairs, asserting  that she  was too  heavy.   The          officers then placed her in a sitting position.  With one officer          gripping  her ankles and another holding her under her handcuffed          arms, she was  carried to the stairs, then  dragged down one step          at a time while still  in a sitting position.  At the bottom, the          ambulance  crew strapped her onto  the stretcher, face  down.  By          this time she had stopped screaming and the officers noticed that          her hands appeared blue and she was bleeding from her mouth.  Ms.          Zinger was pronounced dead on arrival at the hospital.               3The judgment appealed from is nonetheless "final" as to all          parties and claims.  See Fed. R. Civ. P. 54(b); 28 U.S.C.   1291.                               ___          The original  ten-count complaint named as  defendants, the City,          the dispatching police supervisor and the three individual police          officers who  executed  the pink  paper  (in their  official  and          individual capacities), the constable, the ambulance company, the          ambulance crew,  Dr. Barden, and  the Tri-City Mental  Health and          Retardation Center where Dr.  Barden worked.  In addition  to her          claims  under     1983,  McCabe alleged  common-law  assault  and          battery, and negligence.  In June 1993, McCabe settled all claims          against the doctor and  the hospital.  In February  1995, after a          jury returned verdicts against  the City and Life-Line Ambulance,                                          4          established  City policy  permitting police  officers to  execute          pink  papers  by  means  of forcible,  warrantless  entries  into          private residences absent demonstrable exigent circumstances, and          that this  City policy proximately caused  an actionable depriva-          tion  of  Ms. Zinger's  Fourth Amendment  right  to be  free from          unreasonable  searches.4    After  hearing,  the  district  court          granted the McCabe cross-motion  for summary judgment against the          City on the issue of liability.   McCabe v. City of Lynn,  875 F.                                            ______    ____________          Supp. 53,  63 (D. Mass.  1995).  In  the ensuing trial,  the jury          awarded $850,000 in damages against the City and $500,000 against          Life-Line Ambulance.  The City thereupon brought this appeal from          the final judgment entered against it.                                            II                                          II                                      DISCUSSION                                      DISCUSSION                                      __________          A.   District Court Opinion          A.   District Court Opinion               ______________________                    The district court found  that the City policy violated          the  Fourth Amendment, for the following reasons.  The City's own          policy expert attested that the City did not require its officers          to obtain a search  warrant before effecting a warrantless  entry          of a residence to execute a pink paper, leaving it instead to the          discretion  of the officers  whether and when  such a warrantless                                        ____________________          the claims against the four  police officers, the constable,  and          the ambulance crew were dismissed, without prejudice, by stipula-          tion.                4By  contrast,  the initial  complaint  had  alleged a  City          policy  permitting the use of  excessive force, and  a failure to          train or supervise officers, in executing involuntary  commitment          seizures.                                          5          entry  was necessary.  Id. at 58.   The district court noted that                                 __          warrantless,  nonconsensual entries  into private  residences are          presumptively "unreasonable"  under the Fourth  Amendment, absent          exigent circumstances.   Id. at 58-59.  Although imminent threats                                   ___          to the lives and safety of the police officers, or members of the          public, often  give rise  to exigent circumstances  justifying an          immediate  warrantless  entry, the  court  found  that "the  Lynn          police  acted with  leisure in  arranging  a convenient  time" to                              _______          serve the pink paper upon Ms. Zinger, thereby belying any conten-          tion that "'some real[,] immediate or serious consequences [would          occur] if  [the officers]  postponed action  to get  a warrant.'"          Id. at 59, 62 (citation omitted).            ___                    The  district  court nonetheless  recognized  that even          absent exigent  circumstances the warrant requirement  may not be          applicable  in certain  regulatory  contexts wherein  warrantless          search  procedures serve  as invaluable  "administrative tool[s]"          and are "far less invasive" than searches directed at discovering          evidence  of crime.   Id.  at 59-60.    The court  identified two                                ___          factors which  weighed against a ruling that  the challenged City          policy  came within  this  special regulatory  category.   First,          unlike  a  judicial  officer,  the  licensed  medical-psychiatric          physicians authorized to  issue pink papers under Mass. Gen. Laws          Ann.  ch. 123,   12(a),  are "not qualified  to determine whether          probable cause exists."   Id. at 61.  Second,  "the agents of the                                    ___          doctors  in this case are  police officers with  guns and batons,          not  hospital  orderlies and  nurses,"  so  that  "[t]here is  no                                          6          therapeutic  relationship which  a warrant  mechanism would  dis-          rupt."  Id.                  ___          B.   Standard of Review          B.   Standard of Review               __________________                    We  review  a grant  of  summary judgment  de  novo, to                                                               __  ____          determine whether "the pleadings, depositions, answers to  inter-          rogatories, and admissions on file, together with the affidavits,          if any,  show that there is  no genuine issue as  to any material          fact  and that the  moving party is  entitled to a  judgment as a          matter of  law."  Fed. R.  Civ. P. 56(c); see  Velez-Gomez v. SMA                                                    ___  ___________    ___          Life  Assurance Co.,  8 F.3d  873, 874-75  (1st Cir. 1993).   All          ___________________          competent evidence and reasonable inferences therefrom are viewed          in the  light  most  favorable  to the  party  resisting  summary          judgment.  Id.                      ___          C.   Applicable Law          C.   Applicable Law               ______________                    A municipal liability claim under   1983 requires proof          that the municipality maintained a policy or custom which caused,          or was the  moving force behind, a deprivation  of constitutional          rights.   See, e.g., Oklahoma City  v. Tuttle, 471  U.S. 808, 819                    ___  ____  _____________     ______          (1985);  Monell v. Department of Social Servs., 436 U.S. 658, 694                   ______    ___________________________          (1978);  Bordanaro v.  McLeod, 871  F.2d 1151,  1156 (1st  Cir.),                   _________     ______          cert. denied, 493 U.S. 820 (1989).           _____ ______                    The Fourth  Amendment applies not only  to governmental          searches  and seizures  in criminal  investigations, but  also in          various civil proceedings. See  Soldal v. Cook County, Ill.,  506                  _____              ___  ______    _________________          U.S. 56, __, 113 S. Ct. 538, 548 (1992); O'Connor  v. Ortega, 480                                                   ________     ______          U.S.  709, 715  (1987) ("[B]ecause  the individual's  interest in                                          7          privacy and  personal security `suffers whether  the government's          motivation  is  to investigate  violations  of  criminal laws  or          breaches  of other statutory or  regulatory standards,' .  . . it          would  be `anomalous to say  that the individual  and his private          property  are fully protected  by the Fourth  Amendment only when          the individual is suspected of criminal behavior.'") (quoting New                                                                        ___          Jersey v.  T.L.O., 469 U.S. 325, 335 (1985)).  Included among the          ______     ______          civil  proceedings  in which  the  Fourth  Amendment applies  are          involuntary commitment proceedings  for dangerous persons suffer-          ing from mental illness.  See Glass v. Mayas, 984 F.2d 55, 58 (2d                                    ___ _____    _____          Cir. 1993); Villanova v.  Abrams, 972 F.2d 792, 795-96  (7th Cir.                      _________     ______          1992).                    The fundamental inquiry  under the Fourth  Amendment is          whether a  particular search or search  procedure is "reasonable"          in the circumstances.  See Cady v. Dombrowski, 413 U.S. 433, 439-                                 ___ ____    __________          40 (1973);  Wyman v. James, 400  U.S. 309, 318 (1971);  Camara v.                      _____    _____                              ______          Municipal Ct.  of  San  Francisco,  387  U.S.  523,  538  (1967).          _________________________________          Nonconsensual  entries  by  government  agents  into a  residence          without a search or  arrest warrant5 are presumptively "unreason-          able"  under the Fourth Amendment.   See Welsh  v. Wisconsin, 466                                               ___ _____     _________          U.S. 740, 748-49  (1984); Payton v. New  York, 445 U.S.  573, 586                                    ______    _________          (1980);  Hegarty  v. Somerset  County,  53 F.3d  1367,  1373 (1st                   _______     ________________                                        ____________________               5"[A]  [felony]  arrest warrant  founded  on probable  cause          implicitly  carries with  it  the limited  authority  to enter  a          dwelling  in  which the  suspect lives  when  there is  reason to          believe  the suspect is  within."  Payton  v. New  York, 445 U.S.                                             ______     _________          573, 603 (1980). But see Steagald v. United States, 451 U.S. 204,                           ___ ___ ________    _____________          214 (1981) (noting that the "arrest warrant" rule is inapplicable          where suspect is within another person's residence).                                          8          Cir.), cert. denied, 116 S. Ct. 675 (1995).  This presumption  is                 _____ ______          designed to safeguard the special privacy expectations tradition-          ally  recognized in the American  home by requiring  that a "neu-          tral" and  detached judicial officer make  an independent assess-          ment  as to whether law enforcement agents have probable cause to          effect  an intended search or arrest  within the home.  See Stea-                                                                  ___ _____          gald  v. United  States, 451 U.S.  204, 212 (1981).   The warrant          ____     ______________          requirement is not  absolute, of course, and the  presumption may          be overcome in at least two ways.                    First, a  warrantless entry  and search of  a residence          may be "reasonable," in Fourth Amendment terms, if the government          can  demonstrate certain  exceptional  types of  "exigent circum-          stances":  (1)  "hot pursuit"  of a felon  into a residence;  (2)          imminent  destruction of  evidence  within the  residence; (3)  a          threatened and  potentially successful  escape by a  suspect from          inside the  residence; or (4) an  imminent threat to the  life or          safety of members of the public, the police officers, or a person          located  within the residence.   See United States  v. Tibolt, 72                                           ___ _____________     ______          F.3d  965, ___  (1st Cir.  1995) [Nos.  94-1714 &  2221, 1995  WL          757848,  at  *3  (Dec. 29,  1995)];  Hegarty,  53  F.3d at  1374.                                               _______          Normally,  "exigent circumstances"  exceptions     by  their very          nature    turn upon the objective reasonableness of ad hoc, fact-                                                              __ ___          specific assessments contemporaneously made by  government agents          in  light of  the developing  circumstances at  the scene  of the          search.  See id. at 1378.                   ___ ___                    Second, a residential search pursuant to an established                                          9          warrantless search  procedure may  be reasonable if  conducted in                              _________          furtherance of an important administrative or regulatory purpose,          or  "special need," which would be  undermined systemically by an                                                         ____________          impracticable warrant or probable-cause requirement.   Griffin v.                                                                 _______          Wisconsin, 483 U.S. 868, 873 (1987) ("[W]e  have permitted excep-          _________          tions when `special  needs, beyond  the normal need  for law  en-          forcement,   make  the  warrant  and  probable-cause  requirement          impracticable.'")  (citation omitted). See,  e.g., id. (upholding                                                 ___   ____  ___          probation officers'  prerogative to conduct  warrantless searches          of  probationers'  homes for  evidence of  probation infraction);          O'Connor,  480 U.S.  at  709 (noting  that government  employer's          ________          warrantless searches  of employees'  work space to  recover work-          related  materials may be "reasonable" in particular circumstanc-          es); T.L.O., 469 U.S. at 325 (holding  that warrantless in-school               ______          searches of  students' personal  property by public  school offi-          cials did not  violate Fourth Amendment);  United States v.  Car-                                                     _____________     ____          dona,  903 F.2d 60 (1st  Cir. 1990) (extending  Griffin to parole          ____                                            _______          officers'  warrantless searches  of parolees'  residences), cert.                                                                      _____          denied, 498 U.S. 1049 (1991); cf. Wyman, 400 U.S. at 309 (holding          ______                        ___ _____          that social  worker's warrantless  visitation  to welfare  recip-          ient's home did not implicate Fourth Amendment).  The reasonable-          ness of a particular "special need" search procedure will depend,          of course, on whether the  court's "careful balancing of  govern-          mental and private interests suggests that the public interest is          best  served by a Fourth  Amendment standard that  stops short of          probable cause."  T.L.O., 469 U.S. at 341.                             ______                                          10          D.   Alleged "Deprivation"          D.   Alleged "Deprivation"               _____________________                    Turning to the initial  hurdle confronting McCabe under             1983, see Monell,  436 U.S. at 694,  we must determine whether                   ___ ______          the   undisputed  evidence  demonstrates  that  the  warrantless,          forcible entry of the Zinger residence by the Lynn police consti-          tuted  a  deprivation  of  decedent's  Fourth  Amendment  rights.          Oddly, none  of the  cases  the City  cites  as support  for  the          constitutionality of comparable  involuntary commitment  statutes          deals  straightforwardly  with  the   precise  issue  before  us:          whether a prescribed statutory search procedure (i.e., Mass. Gen.          Laws Ann. ch. 123,   12(a)) violates the Fourth Amendment because          it routinely  allows warrantless  entries of a  residence, absent          "exigent circumstances," to  effect involuntary commitments;  nor          have we found such  a case.  The cases cited by the City consider          whether  a seizure of the person effected pursuant to an involun-                                    ______          tary commitment statute violates  the due process requirements of                                                ___ _______          the  Fifth and Fourteenth  Amendments,6 or whether  the manner in          which the government detains a  person violates the Fourth Amend-          ment  prohibition against  unreasonable seizures.7   Nonetheless,                                        ____________________               6See, e.g., Project Release v. Prevost, 722 F.2d 960, 963                ___  ____  _______________    _______          (2d Cir. 1983) (involving a Fourteenth Amendment "due process"          challenge to the New York involuntary commitment statute).               7See Moore v. Wyoming Medical Ctr., 825 F. Supp. 1531, 1535,                ___ _____    ____________________          1537 (D. Wyo. 1993) (focusing on "seizure" of person subjected to          involuntary commitment,  and noting only in  passing that seizure          followed a  forcible warrantless  entry of  the  home); see  also                                                                  ___  ____          Glass, 984  F.2d at  58 (holding  that the  committing physicians          _____          were  entitled  to  qualified  immunity  for  ordering  "seizure"          because they  reasonably believed  that subject was  mentally ill          and "dangerous");  Villanova, 972 F.2d at  797 (discussing Fourth                             _________          Amendment and due process  implications arising from prolongation                                          11          to the  extent the technically inapposite  "seizure" cases relied          on  by the City might  be considered appropriate  analogs in this          unchartered area, we consult their reasoning for guidance.                     Although the parties  devote considerable attention  to          whether  there remains  a genuine  factual dispute  regarding the          substance  of  the  challenged  City "policy,"  we  consider  its          essential  features clear  enough;  that is,  the policy  permits          warrantless  residential  searches,  without  requiring  "exigent          circumstances,"  in order  to  effect  an involuntary  commitment          pursuant to a  properly issued pink paper.   Of course,  the City          argues that every  entry is per se  "exigent" since a pink  paper                                      ___ __          can  only issue upon an  expert medical finding  that the subject          presently  poses a  "likelihood of  serious harm"  to  herself or          others, which in turn provides  the police with reasonable  cause          to believe that an  immediate, forcible entry for the  purpose of                                        ____________________          of  involuntary commitment,  or  seizure of  the person,  without          independent  judicial  determination  of  probable  cause,  where          commitment occurred while person was in jail).                                                  ____               Moreover,  the  absence  of  any authority  for  the  McCabe          contention    that the warrantless  "forcible entry" phase of  an          involuntary  commitment should  be  treated differently  than the          committal "seizure" itself    arguably indicates that a constitu-          tional  foundation is  lacking.   See  Cardona,  903 F.2d  at  64                                            ___  _______          (rejecting similar attempt to draw  "entirely artificial distinc-          tion[s]  between `search'  jurisprudence and  `seizure' jurispru-          dence").   And since the  cases cited by  the City overwhelmingly          hold  that warrantless, involuntary commitment seizures generally          comport with  the strictures  of the  Fourth Amendment,  see Vil-                                                                   ___ ____          lanova, 972 F.2d at  795 ("There is  no requirement of a  warrant          ______          issued by  a judicial officer [to  seize the person  subject to a          commitment order]."),  thus constituting  a valid pink  paper the          practical  equivalent of an arrest warrant, see supra note 5; cf.                                                      ___ _____         ___          Welsh, 466 U.S. at 748-49;  Payton, 445 U.S. at 586; Hegarty,  53          _____                       ______                   _______          F.3d at 1373,  a separate  requirement that a  search warrant  be          obtained before entering the residence to seize the subject could          be viewed as supererogatory.                                          12          detaining the resistant subject is necessary to avert the  "seri-          ous harm" identified in the pink paper.                      On the  other hand,  McCabe contends that  these remote          medical-psychiatric "emergency" determinations do not equate with          constitutionally cognizable "exigent circumstances," because they          do  not turn  on the  executing officer's  fact-specific, on-the-          scene assessment as to  the immediacy of any putative  threat the          subject  may pose  to herself  or others.   McCabe  stresses that          during  the several hours which were allowed to elapse before the          pink  paper was executed upon Ms. Zinger, the officers would have          had ample time to obtain a search warrant.  And McCabe points out          that  none of  the four  recognized "exigent  circumstances," see                                                                        ___          supra p. 10,  was plainly present immediately before the forcible          _____          police entry.            As these claims reflect the  legal gloss          placed on  the record  evidence, rather  than  a genuine  factual          dispute  concerning the substance of the City policy, we need not          enter the skirmish  over the  distinctions between  "emergencies"          and "exigent  circumstances."  The  City policy, as  evidenced by          the  actual  conduct  of  its police  officers,8  falls  squarely          within  a recognized  class of  systemic "special  need" searches                                          ________                                        ____________________               8Contrary to McCabe's contention, we need not decide whether          the City  waived the argument  that its police  officers' actions          were  not  undertaken pursuant  to City  policy,  and that  it is          therefore  not liable  under Monell, 436  U.S. at 694.   The City                                       ______          merely  argues that  the  actual police  conduct  in effecting  a          warrantless entry often provides the best circumstantial evidence          as  to the nature  of the challenged municipal  policy.  See Bor-                                                                   ___ ____          danaro, 871 F.2d at  1156-57 (observing that the event  itself is          ______          evidence that police officers  acted in accordance with municipal          policy).                                           13          which are conducted without  warrants in furtherance of important          administrative  purposes.    Again, the  fundamental  concern  of          Fourth Amendment jurisprudence in  general, and in "special need"          search cases as  well, is whether an established search procedure          is "reasonable"  in  light of  the  actual circumstances  in  the          particular  case.  See Cady, 413  U.S. at 439-40; see also O'Con-                             ___ ____                       ___ ____ ______          nor, 480 U.S. at 719; T.L.O., 469 U.S. at 337.  "Reasonableness,"          ___                   ______          in turn, depends on  "'balanc[ing] the nature and quality  of the          intrusion on the individual's  Fourth Amendment interests against          the importance  of the governmental interests  alleged to justify          the intrusion.'"   O'Connor, 480 U.S. at  719 (citation omitted);                             ________          see T.L.O.,  469 U.S. at 341;  Cardona, 903 F.2d at  67; cf. Vil-          ___ ______                     _______                   ___ ____          lanova,  972 F.2d  at 796.   On  balance, we  find that  the City          ______          policy permitting forcible, warrantless  entries by police  offi-          cers  in possession of a  pink paper properly  issued pursuant to          Mass. Gen.  Laws Ann. ch. 123,    12(a), is reasonable  under the          Fourth Amendment.                 1.   State's "Administrative" Interest               1.   State's "Administrative" Interest                    _________________________________                    (a)  Parens Patriae and Police Power                    (a)  Parens Patriae and Police Power                         _______________________________                    The  legitimacy  of  the  State's  parens  patriae  and                                                       ______  _______          "police power"  interests in  ensuring that "dangerous"  mentally          ill persons not harm themselves or others is beyond dispute.  See                                                                        ___          Rogers v. Okin, 634 F.2d 650, 654 (1st Cir. 1980), rev'd on other          ______    ____                                     _____ __ _____          grounds,  457  U.S. 291  (1982);  Thompson  v. Commonwealth,  438          _______                           ________     ____________          N.E.2d 33, 36 (Mass. 1982).  The potential consequences attending          a  delayed commitment     both  to the  mentally ill  subject and                                          14          others    may be extremely serious, sometimes including death  or          bodily  injury.  Thus, we  think it is  especially significant to          the  present  analysis that  warrantless "special  need" searches          have been condoned by the courts in circumstances where the State          interests  were  far  less  compelling and  urgent.    Cf., e.g.,                                                                 ___  ____          O'Connor, 480 U.S. at 724 (noting:  because "public employees are          ________          entrusted with tremendous  responsibility," "the consequences  of          their misconduct  or  incompetence to  both  the agency  and  the          public interest can  be severe");  New York v.  Burger, 482  U.S.                                             ________     ______          702, 708-09  (1987) (noting:  where "the  government interests in          regulating particular businesses are concomitantly  heightened, a          warrantless inspection of commercial premises may well be reason-          able[,]" and  that  "the  State has  a  substantial  interest  in          regulating   the   vehicle-dismantling  and   automobile-junkyard          industry because motor vehicle  theft has increased in the  State          and because the problem  of theft is associated with  this indus-          try");  T.L.O., 469 U.S. at 339 ("Against the child's interest in                  ______          privacy  must be  set the  substantial interest  of teachers  and          administrators in maintaining discipline  in the classroom and on          school grounds.").                      We therefore  inquire whether these  residential search          procedures  are  appropriately  tailored to  the  legitimate  and          important interests at stake; in other words,  whether the proce-          dures are reasonably  designed to ensure accurate  identification          and prompt detention of recalcitrant and "dangerous" mentally ill          persons who require  immediate temporary commitment.  See  id. at                                                                ___  ___                                          15          341 (noting two-part inquiry whether the search procedure was (i)          "'justified at  its inception'" and (ii)  "'reasonably related in          scope to  the circumstances  which justified the  interference in          the first  place'") (citations  omitted).9   We think that  Mass.          Gen. Laws Ann.  ch. 123,   12(a), in general,  and the commitment          order  issued by  Dr. Barden,  in particular,  were appropriately          suited to these legitimate purposes.                      The application for  temporary hospitalization,  signed          by Dr. Barden, expressly referenced Mass. Gen. Laws Ann. ch. 123,            12(a), which authorizes  four categories of involuntary commit-          ment procedures:                        (1)  a qualified  physician, psychologist, or                         psychiatric  nurse  who  has  personally                         examined a person, and who has reason to                         believe that  the person would  create a                         "likelihood of serious harm," may sign a                         "pink paper" authorizing law enforcement                         officials  to  restrain  that person  to                         permit hospitalization for up to  a ten-                         day period;                    (2)  in an "emergency situation," a qualified                         physician, psychologist, or  psychiatric                         nurse  may sign a  pink paper, even when                         the alleged mentally ill  person refuses                         to submit to  a medical examination,  if                         the  "facts  and circumstances"  suggest                         that the person would create  a "likeli-                         hood of serious harm";                    (3)  in  an  "emergency situation,"  a police                         officer  may  restrain a  person  he be-                         lieves creates a "likelihood  of serious                         harm," if no  qualified physician,  psy-                                        ____________________               9Thus, a  "mental illness"  determination alone is  insuffi-          cient to support an involuntary commitment  order; the State must          also show that the person subjected to involuntary  commitment is          "dangerous."   See O'Connor  v. Donaldson, 422  U.S. 563,  575-76                         ___ ________     _________          (1975).                                            16                         chologist,  or  psychiatric nurse  is a-                         vailable to sign a pink paper; or                    (4)  at any time, any person may apply to the                         district or  juvenile courts for  a com-                         mitment order, and after a  hearing, the                         court may issue a warrant for the appre-                         hension and appearance of the person who                         creates a "likelihood of serious harm."          Mass. Gen.  Laws Ann. ch.  123,   12(a); see  infra Appendix, for                                                   ___  _____          text; see generally Rockwell v. Cape Cod Hosp., 26 F.3d 254, 258-                ___ _________ ________    ______________          60 (1st  Cir. 1994)  (tracing history of  Massachusetts emergency          involuntary  commitment  procedure  from colonial  times  through          enactment of chapter  123).   As only the  category 4  commitment          procedure expressly incorporates a warrant requirement,  we think          it  clear  that  the  statute  implicitly  authorizes warrantless          searches and seizures in the three remaining contexts.  Since Ms.          Zinger  repeatedly  rejected  family  pleas that  she  submit  to          examination by  a physician,  and because  Dr.  Barden based  his          expert  medical-psychiatric opinion  exclusively on  reports from          family  members and  neighbors, we  conclude  also that  the pink          paper in this case did issue under category 2.  The only question          before  us,  therefore,  concerns  the  constitutionality  of the          "category 2" warrantless search procedure.                     The pink paper was based on Dr. Barden's expert opinion          that Ms. Zinger  "require[d] hospitalization so  as to avoid  the          likelihood of serious  harm by  reason of mental  illness."   Dr.          Barden  described  the  particular  grounds for  concluding  that          immediate hospitalization was required:                    [Patient]  has a [history]  of mental illness                    and she was  hospitalized at Danvers  [State]                                          17                    Hospital couple  of years ago.   [Patient] is                    very angry and hostile; she is very impulsive                    and explosive.  She  made threats to harm her                    ex-husband.  [Patient]  is dangerous to  oth-                    ers.          The  involuntary  commitment application,  and  the Massachusetts          statute,  define "likelihood  of serious  harm"     the governing          criterion for commitment    as:                     (1) a  substantial risk  of physical harm  to                    the  person [her]self  as manifested  by evi-                    dence of, threats of, or attempts at, suicide                    or serious  bodily harm;   (2) a  substantial                    risk  of physical  harm to  other persons  as                    manifested by evidence of homicidal  or other                    violent  behavior or evidence that others are                    placed in reasonable fear of violent behavior                    and serious physical harm to  them;  or (3) a                    very substantial risk of  physical impairment                    or injury  to the person  [her]self as  mani-                    fested  by evidence that  such person's judg-                    ment is  so affected that [s]he  is unable to                    protect [her]self  in the community  and that                    reasonable provision for h[er]  protection is                    not available in the community.          Mass. Gen. Laws Ann.  ch. 123,   1; see Rogers,  634 F.2d at 658.                                              ___ ______          The relevant  medical history, including Ms.  Zinger's history of          mental illness and prior  hospitalization at Danvers State Hospi-          tal, and the behavioral symptoms reported to Dr. Barden by family          members,  plainly satisfied  the second  clause in  the statutory          definition of "likelihood of serious harm."                     The  statutory  definition  of  "likelihood  of serious          harm,"  particularly  its  requirement  that  there  be objective          medical  indicia of  "dangerousness," effectively  "constitutes a          codified set  of `exigent circumstances' which are constitutional          under  the Fourth Amendment."  Moore v. Wyoming Medical Ctr., 825                                         _____    ____________________          F. Supp. 1531, 1538 n.4, 1546 (D. Wyo. 1993).   Given the notori-                                          18          ous difficulties  in predicting  individual human  behavior based          solely on  symptomatology, id.  at 1539,  we conclude  that Mass.                                     ___          Gen. Laws Ann. ch. 123,   1, prescribes  a sufficiently clear and          reasonably  reliable  administrative standard  for  ensuring that          involuntary commitments  are  limited to  imminently  "dangerous"          mentally ill persons in emergent circumstances.                     Finally, the specific focus  and overall context of the          Massachusetts  statute  implicitly  circumscribe  the  category 2          search  procedure within  narrow  bounds.   A  police officer  is          permitted to enter a  residence without a warrant for  the exclu-          sive purpose  of detaining a recalcitrant  and dangerous mentally          ill person  pursuant to  a duly issued  pink paper,  but may  not          engage  in a generalized search.  As  the officers in the instant          case did not  exceed these  bounds, we conclude  that Mass.  Gen.          Laws Ann. ch. 123,    12(a), and consequently the  City policy in          pursuance  of  the statutory  design, see  supra pps.  12-14, are                                                ___  _____          appropriately  tailored  to serve  the  legitimate  and important          State and municipal interest  in ensuring that dangerous mentally          ill persons not cause physical harm to themselves or others.                    (b)  Practicality of Warrant Requirement                    (b)  Practicality of Warrant Requirement                         ___________________________________                    The determination  that there  exists a legitimate  and          substantial  governmental  interest in  conducting  a warrantless          search  in certain  circumstances  satisfies  only the  threshold          inquiry  under the  reasonableness test.   For  an administrative          search  procedure to survive  constitutional challenge  under the          "special need" exception, it must also appear that the burdens of                                          19          complying  with a  warrant requirement are  likely to  defeat the          important governmental purposes the warrantless  search procedure          was designed to serve.                        In  assessing  whether  the  public  interest                    demands  creation of  a general  exception to                    the  Fourth Amendment's  warrant requirement,                    the question is not whether the public inter-                    est justifies the type of search in question,                    but whether the authority to search should be                    evidenced by a warrant, which in turn depends                    in part upon whether the burden  of obtaining                    a warrant is likely  to frustrate the govern-                    mental purpose behind the search.            Camara, 387 U.S. at 533.          ______                    Compliance with a warrant requirement in the context of          these temporary, involuntary commitments  for medical-psychiatric          examination  would entail  critical  delays  in safeguarding  the          mentally ill person,  and others, without affording  commensurate          privacy protections  to the subject.  Category  2 searches foster          important governmental  interests  largely because  the  inherent          imprecision in predicting the timing of any outbreak  of "danger-          ousness" on the  part of the  recalcitrant, mentally ill  person,          see  Moore, 825 F. Supp. at 1539,  inevitably means that the time          ___  _____          spent  securing judicial  approval of  a pink paper  represents a          potentially dangerous delay of incalculable proportion.                                             ____________                    In this  particular case,  of course, McCabe  points to          the undisputed  evidence that the police  officers waited several          hours before executing the  pink paper, thus demonstrating little          concern that Ms. Zinger might exhibit the sort of sudden onset of          "dangerousness" alluded to in the assessment made by  Dr. Barden.          Although this argument might hold sway were the constitutionality                                          20          of  the warrantless  entry dependent on  an ad  hoc, on-the-scene                                                      __  ___          "exigent circumstances"  determination made by the  police, it is          no rejoinder to the claimed "reasonableness" of a  "special need"          search  procedure policy, which must  focus not on the particular          case but  on  the essential  systemic  attributes of  the  search          procedure itself:                     The  dissent  argues  that in  this  case the                    police had  ample  time to  secure an  arrest                    warrant,  rendering  invalid  any claim  that                    complying  with traditional  fourth amendment                    requirements was impracticable.   That  view-                    point  distorts Griffin's  "impracticability"                                    _______                    prong.  In  Griffin, the Court inquired  into                                _______                    the  systemic impracticability  of compelling                         ________ ________________                    those involved in implementation of  a proba-                    tion regime to obtain  warrants.  The imprac-                    ticability  of  obtaining  a warrant  in  the                    particular case did not  enter into the equa-                    __________ ____                    tion;  indeed, Justice Blackmun argued unsuc-                    cessfully for much the same  sort of particu-                    larized inquiry . . . . Whether it was feasi-                    ble  for the  police to  obtain a  warrant in                    this  particular case  is irrelevant  for the                    purpose at hand.          Cardona,  903 F.2d  at  68 n.7  (emphasis added;  citations omit-          _______          ted).10    Although  the  Fourth  Amendment  warrant  requirement                                        ____________________               10There  is  no record  evidence  that  the challenged  City          policy required officers to  execute pink papers within a  speci-          fied time.  In all  events, however, we do not think  the several          hours that elapsed  between the  issuance and  execution of  this          pink paper, which enabled the constable and police  to coordinate          their  actions, can be considered  so inordinate as  to call into          question  the  emergent  nature of  Ms.  Zinger's  mental-health-          related  dangerousness.    Whereas  delay  might  belie  "exigent          circumstances," were that the  warrant exception primarily relied          upon by the City, no  such rigid time constraints can  be imposed          in  a particular  "special need"  case as  a precondition  to the          validity of  the systemic search procedure  itself.  Nonetheless,          we  express no opinion as to whether, in another case, inordinate          delay in issuing and executing a pink paper might tend  to under-          mine a predicate finding  that the subject posed a  real "likeli-          hood of serious harm" at the time the finding was made.                                           21          imposes a  minimal burden  on governmental authorities  in normal          circumstances, we think there  can be little doubt that  it would          delay  the execution  of  involuntary commitment  orders to  some                                                                       ____          degree in all cases,  thereby appreciably increasing the systemic                    ___          risk  that the vital  protective purposes  served by  the State's          parens patriae  and  "police  power"  responsibilities  would  be          ______ _______          frustrated in individual cases not identifiable  in advance.  See                                                                        ___          supra Section II.D.1(a).          _____                    More  importantly  by   far,  however,  the  additional          burdens  imposed on  the City  and State  by a  universal warrant          requirement in category 2 searches seem to us "undue" and "unrea-          sonable"  when  viewed  in  relation to  the  minimal  additional          protection  afforded  by a  requirement  that  a  pink  paper  be          screened by a  magistrate before  it is executed.   The  district          court  ruled that  the Fourth  Amendment warrant  requirement was          violated notwithstanding compliance with  the "pink paper" proce-          dure under  Mass. Gen. Laws  Ann. ch. 123,    12(a),  because the          issuing physician "is not qualified to determine whether probable          cause exists."   McCabe, 875 F. Supp. at 61.   On the other hand,                           ______          the Supreme Court  has noted  that rigid adherence  to a  warrant          requirement  reaches its  most suspect  extreme where  a judicial          officer lacks the innate expertise to assess the soundness of the          basic  ground upon which the warrant request is predicated.  See,                                                                       ___          e.g.,  Griffin, 483  U.S. at  879 n.  6   (observing  that "[o]ur          ____   _______          discussion  pertains  to  the  reasons  generally supporting  the          proposition  that  the search  decision  should  be  left to  the                                          22          expertise of  probation authorities  rather than  a magistrate");          cf. Rogers, 634  F.2d at 660 ("While  judicial determinations are          ___ ______          certainly preferable in general, room must be left  for responsi-          ble state officials  to respond to exigencies that render totally          impractical recourse  to traditional forms  of judicial  process.          `The  judicial model  of  fact finding  for all  constitutionally          protected interests, regardless of  their nature, can turn ratio-          nal  decisionmaking into an  unmanageable enterprise.'") (quoting          Parham v. J. R., 442 U.S. 584, 608 n. 16 (1979)).            ______    __ __                    A pink  paper is issued or withheld  principally on the          strength of expert medical-psychiatric assessments (i.e., diagno-          ses  and prognoses  founded on  the available  evidence), whereas          judicial  officers normally are called  upon to make judgments as          to whether there is "probable cause" for an arrest or search.  As          the Second Circuit has pointed out:                    "[T]he  initial inquiry in a civil commitment                    proceeding is very different from the central                    issue in either a delinquency proceeding or a                    criminal  prosecution.   In the  latter cases                    the basic issue  is a straightforward factual                    question--did  the  accused  commit  the  act                    alleged?   There  may  be factual  issues  to                    resolve in  a commitment proceeding,  but the                    factual aspects represent only  the beginning                    of the inquiry.   Whether  the individual  is                    mentally ill and  dangerous to either himself                    or others and is  in need of confined therapy                    turns on the meaning  of the facts which must                                 _______                    be  interpreted  by expert  psychiatrists and                    psychologists."           Project Release v. Prevost,  722 F.2d 960, 972-73 (2d  Cir. 1983)          _______ _______    _______          (quoting  Addington v. Texas, 441 U.S. 418, 425 (1979)); see also                    _________    _____                             ___ ____          O'Connor, 480 U.S. at  723 ("Indeed, it is difficult  to give the          ________                                          23          concept  of probable  cause,  rooted as  it  is in  the  criminal          investigatory context, much meaning when  the purpose of a search          is to  retrieve a file  for work-related  reasons."); Wyman,  400                                                                _____          U.S.  at 324 (in the  home-visitation setting, "the warrant argu-          ment is out  of place"  since, as a  practical matter,  "probable          cause" is more than an agency seeks or needs to know).11                      To  be sure,  judicial  oversight  might  provide  some          preliminary  insulation against  obvious abuse;  for example,  by          screening  out  patently  unreliable information  utilized  by  a          physician in formulating a diagnosis or prognosis, which can be a          matter  of  particular concern  in  category  2 cases  where  the                                        ____________________               11It  is  largely  irrelevant  whether  the  "likelihood  of          serious harm" criterion in Mass. Gen. Laws Ann. ch. 123,   12(a),          approximates  the  "probable  cause" inquiry  appropriate  in the          search warrant context.   The "probable  cause" inquiry often  is          jettisoned in civil administrative searches:                    "[W]here a careful balancing  of governmental                    and private interests  suggests that the pub-                    lic interest  is best  served by a  Fourth A-                    mendment  standard   of  reasonableness  that                    stops  short of probable  cause, we  have not                    hesitated to adopt such a standard."  We have                    concluded, for example, that  the appropriate                    standard for administrative  searches is  not                    probable  cause  in its  traditional meaning.                    Instead,  an  administrative  warrant can  be                    obtained if there is  a showing that  reason-                    able legislative  or administrative standards                    for conducting an inspection are satisfied.          O'Connor,  480  U.S.  at  722-23 (citations  omitted);  see  also          ________                                                ___  ____          T.L.O., 469 U.S. at  340-41 ("'[P]robable cause' is not  an irre-          ______          ducible requirement of a  valid search.  The fundamental  command          of  the Fourth Amendment is that searches and seizures be reason-          able,  and although 'both the  concept of probable  cause and the          requirement  of a warrant bear on the reasonableness of a search,          ...  in certain  limited  circumstances neither  is  required.'")          (citations omitted).                                           24          physician has not examined  the patient and must rely  on second-          hand reports as  to the subject's physical,  emotional and behav-          ioral  symptoms.   On  the other  hand,  the statutory  mechanism          itself affords  reasonable safeguards  against such concerns:   a          pink paper  can  be authorized  only  by a  licensed  psychiatric          physician,  see Mass. Gen. Laws Ann.  ch. 123,    1, 12(a), whose                      ___          extensive  education  and  specialized  experience  and  training          should enable  the psychiatric  physician more reliably  to parse          such lay  reports, especially  those provided by  family members,          with  the  requisite  professional  skepticism.12    Though  this          safeguard is by  no means  foolproof, we  think it  would be  the          exceptional  case in  which  an expert  evaluation  was based  on          patently insufficient or unreliable information.  Further, to the          ________          degree that judicial factfinding were thought to  be necessary as          a  general rule, in order  to ferret out  latent unreliability in                                                    ______          the foundational evidence (e.g., possible ulterior family motives          or antipathy  toward the  patient) upon which  expert psychiatric          evaluations  are  based,  the  resulting  delays in  implementing                                        ____________________               12The other statutory safeguards would not forestall improp-          er warrantless  entries of a  subject's residence.   See Cardona,                                                               ___ _______          903  F.2d at 66 ("While  the actual invasion  of privacy does not          occur  until the  search  or seizure  occurs, the  constitutional          protection is viable  only to  the extent that  it restricts  the          authority responsible for making  the search or seizure decision,          prior to the time the decision crystallizes.").  Nonetheless, the          other safeguards do mitigate any resulting injury to the subject.          For example, in order  to detain a dangerous mentally  ill person          for  more than  ten days,  the State  must petition  the district          court, and prove beyond reasonable doubt that the patient poses a          "likelihood of serious harm."  See Mass. Gen.  Laws Ann. ch. 123,                                         ___              7, 8 (requiring ongoing, periodic  judicial review of commit-          ment decision),  12(d); Commonwealth  v. Nassar 406  N.E.2d 1286,                                  ____________     ______          1290-91 (Mass. 1980).                                          25          involuntary commitment orders could  have far more serious conse-          quences  for the mentally ill, their families, and members of the          public.    Finally, such  a  detailed  factfinding mission  would          greatly  exceed any "screening"  function normally  undertaken by          judicial officers in reviewing search warrant applications.                      We discern no  sufficient justification for superimpos-          ing  such a  judicial factfinding  mechanism upon  the evaluation          made  by the  licensed psychiatric  physician in  the involuntary          commitment context, especially since it promises no corresponding          systemic benefit to offset the systemic delays in executing  pink          papers in emergent circumstances.   See Griffin, 483 U.S.  at 876                                              ___ _______          ("A warrant requirement would  interfere to an appreciable degree          with the probation  system, setting up  a magistrate rather  than          the probation officer as the judge of how close a supervision the          probationer requires.").                 2.   The Interests of the Mentally Ill               2.   The Interests of the Mentally Ill                    _________________________________                    Next,  we consider the  extent to which  the category 2          search procedure infringes  legitimate Fourth Amendment interests          of  the mentally  ill.  See  T.L.O., 469  U.S. at  341; cf. also,                                  ___  ______                     __  ____          Rockwell, 26 F.3d at 256 ("Involuntary confinement for compulsory          ________          psychiatric treatment  is a  `massive curtailment of  liberty.'")          (quoting Humphrey v.  Cady, 405 U.S.  504, 509 (1972))  (citation                   ________     ____          omitted).   We point  out again,  however, that  McCabe presently          challenges only  the alleged infringement of  Ms. Zinger's Fourth          Amendment right to be free from unreasonable governmental entries          to  her residence,  see  supra note  2,  and does  not  allege an                              ___  _____                                          26          infringement of her liberty  interest to be free from  any unrea-          sonable  governmental restraint attending  the subsequent seizure          of her person.                      (a)  Civil Context                    (a)  Civil Context                         _____________                    Although  the  Fourth  Amendment  is  implicated  in  a          variety of  civil proceedings, Soldal,  113 S. Ct.  at   548, the                                         ______          Supreme Court  has made it clear that the civil nature of certain          search  procedures may  call for  a  narrowed application  of the          warrant and probable  cause requirements.  Where  a search proce-          dure is not designed to gather information in a criminal investi-          gation,  its relative  unintrusiveness may  militate in  favor of          relaxing  the warrant requirement. See O'Connor,  480 U.S. at 721                                             ___ ________          ("While   police,  and  even  [some]  administrative  enforcement          personnel, conduct searches for  the primary purpose of obtaining          evidence for  use in  criminal or other  enforcement proceedings,                             employers  most frequently need to enter the offices and desks of          their  employees  for  legitimate  work-related   reasons  wholly          unrelated to  illegal conduct.");  Wyman, 400  U.S. at  323 (home                                             _____          visitation program "does not  deal with crime or with  the actual          or suspected perpetrators of crime," and "[t]he caseworker is not          a sleuth  but rather, we trust, . . .  a friend to one in need");          see  also Project Release, 722  F.2d at 972-73 ("[T]he difference          ___  ____ _______________          between  civil and  criminal confinement  may nonetheless  be re-          flected in  different standards and procedures  applicable in the          context of each of the two systems     so long as due process  is          satisfied.") (citing Addington, 441 U.S. at 425).  In the instant                               _________                                          27          case, McCabe has not  suggested that the challenged entry  of the          Zinger residence  was effected for  any criminal law  purpose, or          any regulatory purpose other than to enable her  temporary hospi-          talization and the psychiatric examination she adamantly refused.                    (b)  Impartiality of Decisionmaker                    (b)  Impartiality of Decisionmaker                         _____________________________                    Finally, it is most  significant in the present context          that the  official decision to initiate  an involuntary "category          2" commitment  rests with  a licensed psychiatric  physician, not          with  law enforcement officials.   See Steagald, 451  U.S. at 212                                             ___ ________          (noting that the Fourth Amendment warrant  requirement interposes          "neutral"  and  detached  judicial  officer  between  police  and          "probable  cause" determination).  The Supreme Court consistently          premises "special need" warrant exceptions  on the presence of  a          search authorization  by an impartial,  or at least  a relatively          impartial person.  See Cardona, 903 F.2d at 64-65 ("The [Griffin]                             ___ _______                           _______          Court's  focus was on the degree of security inherent in allowing          a particular decisionmaker, i.e., a  probation officer, to make a          particular decision, i.e., whether a probationer's home should be          searched,  based on  a  particular (relatively  modest) level  of          proof, i.e.,  `reasonable grounds.'").  Unlike the characteristic          relationship  between  law  enforcement  personnel  and  criminal          suspects, a  committing physician's relationship with  a patient,          or even a nonpatient, is in no sense adversarial.                      The role of the licensed physician  under Massachusetts          law is to provide a neutral, objective assessment of the "danger-                                          28          ousness" and "likelihood of serious risk" criteria upon which the          involuntary commitment  decision depends.  A  physician's ethical          responsibilities  likewise  require  that   appropriate  medical-          psychiatric criteria  be utilized  in assessing the  condition of          the subject  person.  Cf., e.g.,  Griffin, 483 U.S. at  876 ("Al-                                __   ____   _______          though  a  probation  officer  is not  an  impartial  magistrate,          neither is he the  police officer who normally  conducts searches          against the  ordinary citizen.   He is  an employee of  the State          Department  of Health  and Social  Services who,  while assuredly          charged with protecting the public interest, is also supposed  to          have in mind the welfare of the probationer.").  Nor is there any          allegation or  evidence that the  Lynn police possessed  or exer-          cised any influence, direct or indirect, over the medical-psychi-          atric decision  to issue the pink paper.  Cf. T.L.O., 469 U.S. at                                                    ___ ______          337 n.5 ("Nor do we express any opinion on the standards (if any)          governing  searches of such areas by school officials or by other          public authorities acting at the request of school officials.").                    The district  court  nonetheless struck  down the  City          policy because "the agents of the doctors in this case are police          officers with guns  and batons, not hospital  orderlies and nurs-          es,"  so that  "[t]here  is no  therapeutic relationship  which a          warrant mechanism  would  disrupt."   McCabe,  875  F.  Supp.  at                                                ______          61.13   Whether  an  administrative search  procedure leaves  too                                        ____________________               13Although there is no evidence that Dr. Barden had been Ms.          Zinger's regular physician, the  challenged City policy is  to be          evaluated  in light  of its  systemic traits  and purposes.   Cf.                                                                        ___          Cardona, 903 F.2d at 67; supra pp.  22-23.  No doubt many, if not          _______                  _____          most, category 2  searches are executed  pursuant to pink  papers                                          29          much discretion to  law enforcement  officers in the  field is  a          recurring Fourth Amendment concern.   See, e.g., Camara, 387 U.S.                                                ___  ____  ______          at 532-33 ("The practical effect  of this system is to leave  the          occupant  subject to the discretion of the official in the field.          This is precisely the discretion to invade private property which          we  have  consistently  circumscribed  by a  requirement  that  a          disinterested party warrant the  need to search.").   Under Mass.                                                             Gen. Laws Ann. ch. 123,   12(a), however, the decision to conduct          a  category 2 "search" is  never left to  the executing officers.          Moreover, the  mere fact that law enforcement  officials serve as          the agents who implement  the authorizing physician's decision to          approve  a category 2 search  does not necessarily  mean that the          procedure is not within the "special need" category:                     [W]e fail to see any  constitutional signifi-                    cance in the fact that police officers, rath-                    er than "administrative" agents,  are permit-                    ted to conduct the    415-a5 inspection.  The                    significance respondent alleges  lies in  the                    role of police  officers as enforcers  of the                    penal  laws  and in  the  officers'  power to                    arrest  for offenses other than violations of                    the administrative  scheme.  It  is, however,                    important to note that state police officers,                    like those in New York, have numerous  duties                    in addition  to those associated  with tradi-                    tional  police work.  .  . .  As a  practical                    matter, many States do not have the resources                                        ____________________          issued  by the  subject-patient's current  or former  psychiatric          physician.  Unlike law  enforcement officers, who rarely interact          with a  search target on more than one occasion, as a rule physi-          cians  possess  reliable personal  knowledge  of their  patients,          based on  an ongoing  doctor-patient relationship.   Cf. Griffin,                                                               ___ _______          483 U.S.  at 879 ("As  was true, then,  in [O'Connor]  . . .  and                                                      ________          [T.L.O.], we deal with a  situation in which there is an  ongoing           ______          supervisory relationship    and one that is not, or at  least not          entirely, adversarial    between the object of the search and the          decisionmaker.").                                            30                    to  assign  the enforcement  of  a particular                    administrative scheme to a  specialized agen-                    cy.  So long as  a regulatory scheme is prop-                    erly administrative, it is not rendered ille-                    gal by the  fact that the inspecting  officer                    has the  power to arrest individuals for vio-                    lations  other  than  those  created  by  the                    scheme itself.  In  sum, we decline to impose                                                            upon the  States the burden  of requiring the                    enforcement of their  regulatory statutes  to                    be carried out by specialized agents.          Burger, 482  U.S. at 717-18; Cardona, 903 F.2d at 65 ("The [Grif-          ______                       _______                        _____          fin] Court did  not lend any special salience to  the identity of          ___          the  person(s) executing  the search";  "[w]hether the  decision,          once  reached [by  the  probation officer],  is realized  through          police officers, parole officers, or a tag team representing both          camps, is peripheral to the Court's holding.").                     We  conclude that  these  considerations,  on  balance,          favor a limited "special need" exception to  the warrant require-          ment in the particular  setting presented in this case.   Accord-          ingly, we hold that the Fourth  Amendment is not infringed by the          challenged City policy,  which authorizes warrantless entries  of          residences  by the  police for  the sole  purpose of  executing a          properly issued category  2 pink paper  within a reasonable  time          after its issuance.                                          III                                         III                                      CONCLUSION                                      CONCLUSION                                      __________                    We retrace the bounds of our ruling.  We do not suggest          that the factors we have discussed, see Section II.D, alone or in                                              ___          combination invariably  provide adequate  support for  a "special          need"  exception to the warrant  requirement.  The balancing test                                          31          for determining whether an  administrative procedure comes within          the  "special need"  exception is  designedly fact-specific,  and          must  be calibrated anew in assessing  the reasonableness of each          administrative  search procedure to which it is applied.  Nor, of          course,  do  we suggest  that  all  comparable state  involuntary          commitment statutes,  or any other  provision of Mass.  Gen. Laws          Ann. ch. 123,  or other categories  of searches authorized  under          chapter  123,  section  12(a),  necessarily  satisfy  the  Fourth          Amendment.  See, e.g., Wyman, 400 U.S. at 326 ("Our holding today                      ___  ____  _____          does  not mean . . . that  a termination of benefits upon refusal          of  a home visit is to be upheld against constitutional challenge          under all conceivable circumstances.  The early morning mass raid          upon homes of welfare recipients is not unknown.").  We hold only          that law enforcement officers in possession of a pink paper, duly          issued  pursuant to category 2,  Mass. Gen. Laws  Ann. ch. 123,            12(a), may effect a warrantless entry  of the subject's residence          within a reasonable time after the pink paper issues.                                            32                    Since  the challenged  City  policy  comports with  the          "special need" exception to the Fourth Amendment warrant require-          ment, the City is entitled  to summary judgment.  We intimate  no          viewpoint  concerning  any  other  aspect  of these  proceedings,          including the  McCabe claims against the  individual police offi-          cers, the  constable, and the  ambulance crew, which  claims were          dismissed, without prejudice.  See supra note 3.                                         ___ _____                    The district court judgment is reversed and the case is                    The district court judgment is reversed and the case is                    _______________________________________________________          remanded to the district court for further proceedings consistent          remanded to the district court for further proceedings consistent          _________________________________________________________________          with this opinion; costs to appellant.          with this opinion; costs to appellant.          _____________________________________                                          33                                       APPENDIX                                       APPENDIX          Chapter 123, Section 12:                    (a)  Any  physician who  is  licensed  pursuant to               section two of chapter one hundred and twelve or quali-               fied  psychiatric nurse mental health clinical special-               ist authorized  to practice  as such  under regulations               promulgated  pursuant  to  the  provisions  of  section               eighty  B of said chapter  one hundred and  twelve or a               qualified  psychologist  licensed pursuant  to sections               one  hundred  and eighteen  to  one  hundred and  twen-               ty-nine,  inclusive  of  said chapter  one  hundred and               twelve,  who after  examining  a person  has reason  to               believe that  failure to hospitalize such  person would               create a likelihood of serious harm by reason of mental               illness may restrain or authorize the restraint of such               person and apply for the hospitalization of such person               for a  ten day  period at  a public  facility  or at  a               private facility  authorized for  such purposes by  the               department.                           If an examination is not possible because of  the emer-               gency  nature of the case and because of the refusal of               the person  to consent to such  examination, the physi-               cian, qualified psychologist  or qualified  psychiatric               nurse mental health clinical specialist on the basis of               the  facts and circumstances  may determine that hospi-               talization is necessary and may apply therefore.                 In an  emergency situation,  if a  physician, qualified               psychologist  or  qualified  psychiatric  nurse  mental               health clinical specialist  is not available, a  police               officer,  who believes  that failure  to  hospitalize a               person  would create  a likelihood  of serious  harm by               reason of  mental illness may restrain  such person and               apply for the hospitalization of such person for a  ten               day period at a  public facility or a private  facility               authorized  for such  purpose  by the  department.   An               application for hospitalization shall state the reasons               for the restraint of such person and any other relevant               information which may assist the admitting physician or               physicians.   Whenever practicable, prior to transport-               ing  such  person,  the  applicant  shall  telephone or               otherwise communicate  with a facility to  describe the               circumstances  and known clinical history and to deter-               mine  whether the  facility is  the proper  facility to               receive  such person  and also  to give  notice of  any               restraint  to be  used  and to  determine whether  such               restraint is necessary.                    ....                                          34                    (e) Any person may  make application to a district               court justice  or a justice  of the juvenile  court de-               partment  for a ten day  commitment to a  facility of a               mentally ill  person whom the failure  to confine would               cause a likelihood of serious harm.  After hearing such               evidence  as  he  may consider  sufficient,  a district               court justice or  a justice of  the juvenile court  de-               partment may  issue a warrant for  the apprehension and               appearance  before  him  of  the  alleged  mentally ill               person, if in his judgment the condition or conduct  of               such  person  makes such  action  necessary or  proper.               Following apprehension, the court shall have the person               examined by a physician designated to have the authori-               ty  to admit to a  facility or examined  by a qualified               psychologist in accordance with  the regulations of the               department.   If said physician  or qualified psycholo-               gist reports that the failure to hospitalize the person               would create a likelihood of serious harm  by reason of               mental illness, the court  may order the person commit-               ted to a facility for a  period not to exceed ten days,               but the  superintendent may  discharge him at  any time               within the ten day period.                                          35
