Introduction
One night, Edward Caniglia and his wife, Kim, had a heated argument.
During the disagreement, Edward retrieved a handgun, placed it on the dining table, and told Kim to “shoot [him] now and get it over with.”
Kim ignored the comment and decided instead to leave their home and spend the night in a hotel.
The next morning, Kim tried to reach Edward by phone but could not get a hold of him.
She called the police to request that they go to the couple’s home to perform a welfare check.
When the police arrived, they found Edward on the porch.
Edward spoke with the officers and denied that he was suicidal.
Nevertheless, police officers assessed that he posed a risk to himself and others.
The officers called an ambulance based on this assessment.
Edward agreed to go to the hospital for a psychiatric evaluation on the condition that the officers not confiscate his firearms.
Despite agreeing to his request, after he left, the officers found and seized his firearms.
Edward filed suit arguing that the warrantless entry into his home and seizure of his firearms violated his Fourth Amendment rights. The district court granted summary judgment to the police,
and the First Circuit affirmed on the ground that the community caretaking exception to the warrant requirement provided a constitutional basis for removing Edward and his firearms from his home.
In its opinion, the First Circuit stated that police functions can be “totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.”
The Supreme Court held that community caretaking did not “create[] a standalone doctrine that justifies warrantless searches and seizures in the home.”
In the majority opinion by Justice Clarence Thomas, the Court reasoned that “[n]either the holding nor logic” of a prior case called Cady
introduced that broad exception to the warrant requirement.
Though Cady “also involved a warrantless search for a firearm[,] . . . the location of that search was an impounded vehicle—not a home—[which made] ‘a constitutional difference.’”
Recognizing that the Fourth Amendment only prohibits unwelcome intrusions on private property that are “unreasonable,” the Court ruled that the search at issue extended beyond a reasonable exception to the warrant requirement under existing precedent.
Despite the narrow holding, three concurring opinions expressly declined to rule out possible caretaking functions performed by police officers that might constitute exigent circumstances (and, therefore, constitutionally reasonable intrusions) justifying warrantless entries into homes. Specifically, concurrences written by Chief Justice John Roberts, Justice Samuel Alito, and Justice Brett Kavanaugh, each emphasized a set of exigent circumstances where police may enter the premises without a warrant.
Chief Justice Roberts wrote a short concurrence to note that Brigham City v. Stuart
and Michigan v. Fisher
allow police to enter a home without a warrant “when there is a ‘need to assist persons who are seriously injured or threatened with such injury,’”
and where “there was an objectively reasonable basis for believing that medical assistance was needed, or persons were in danger.”
Justice Alito elaborated on his interpretation of the “broad category of cases involving ‘community caretaking.’”
Acknowledging the breadth of these categories of police functions, Justice Alito emphasized that the Fourth Amendment’s reasonableness command does not presumptively apply to all police functions that might conceivably be covered under the community caretaking exception.
He also questioned whether the Fourth Amendment rules in criminal cases necessarily applied to “non-law-enforcement purposes.”
Finally, he acknowledged that existing precedent did not address what the Fourth Amendment commands in emergency situations requiring police involvement. While noting that, under existing precedent, police may enter a home without a warrant when exigent circumstances are present, Justice Alito stressed that such circumstances could be classified as exigent “only when there is not enough time to get a warrant . . . and warrants are not typically granted for the purpose of checking on a person’s medical condition.”
Describing how Fourth Amendment doctrine would apply to “some heartland emergency-aid situations,”
Justice Kavanaugh’s concurring opinion referred to a litany of cases in which police were permitted to enter homes without a warrant when they had “an objectively reasonable basis to believe that there [was] a current, ongoing crisis for which it [was] reasonable to act now.”
These cases included, among other things, calls about missing persons, sick neighbors, premises left open at night, wellness checks for elderly persons, unattended young children, and, most relevant here, individuals who were experiencing (or labeled as experiencing) mental crises.
Drawing on the well-known proposition that the “ultimate touchstone of the Fourth Amendment is reasonableness,”
Justice Kavanaugh referred back to several cases when the Court found a warrant was not required after a reasonableness analysis and noted that under the exigent circumstances exception, exigencies included the “need to assist persons who are seriously injured or threatened with such injury.”
Taken together, the four concurring Justices made profound statements about law enforcement’s role in crisis situations—statements that have huge implications for the rights of people experiencing mental crises. Despite extensively discussing emergency care functions that police officers might lawfully perform, the concurring Justices in Caniglia did not elaborate on what specific standards should govern emergency searches and seizures for the purposes of mental health evaluation, which was the purpose of the specific seizure at issue in Caniglia.
With little to no empirical evidence as to whether police are efficacious crisis responders, the four Justices lumped together various categories of emergencies and framed their hypotheticals to suggest the reasonableness of certain searches and seizures under the exigent circumstances exception.
Despite the breadth of the Justices’ speculation, and the potential legal and physical injuries that their arguments might lead to in the real world, Caniglia slipped by without much legal commentary. Indeed, leading scholars and commentators maintained that Caniglia was far from a significant decision as far as Fourth Amendment doctrine was concerned.
This oversight was likely due to the narrow legal issue addressed by the Court. Yet, within a larger context, Caniglia’s discussions pose deeper questions than may appear at first glance. Missing from the commentary was scrutiny of the basis for the welfare-check-turned-warrantless-search-and-seizure that led to the legal issue in the first place. Yet the narrow legal issues should not distract from important questions raised by the case (and others like it) relating to the constitutional scope of police authority to perform a warrantless entry when there is an allegation of mental distress or suicidality.
This Article casts Caniglia in a different light.
It reframes and situates Caniglia in a broader historical and social context, as a case that reveals important constitutional questions implicating the rights to privacy and security of people experiencing, or labeled as experiencing, crises—including people with mental disabilities. Emergency holds, or brief involuntary detention of an individual to determine whether the criteria for individual civil commitment are met,
implicate the privacy and security interests of a group long ignored within Fourth Amendment jurisprudence: disabled people.
Using a critical disability lens, it reconsiders key doctrines (exigent circumstances, emergency aid, and special needs) and legal standards (probable cause and reasonableness) most relevant to people experiencing, or labeled as experiencing, mental crises. With these doctrinal interventions, this Article proposes that courts scrutinize the reasonableness of the government’s conduct by assessing both whether it was reasonable to dispatch law enforcement to the scene in the first place and whether the manner of performing the search or seizure was reasonable according to professional guidelines and practices relating to prevailing behavioral health standards. This Article argues that Fourth Amendment doctrine should align with disabled people’s unique history of group-based subordination—specifically, the histories of criminalization, segregation, and exclusion that characterized the height of eugenics and institutionalization.
This Article make three doctrinal interventions. First, it argues that police are not reasonable first responders as a constitutional matter and that, when possible, mental health providers should contribute to assessments of exigency.
In destabilizing existing doctrinal rules and standards that defer to nonexpert police as though they were mental health experts, this Article proposes that when evaluating emergency searches and seizures for the purpose of mental health evaluation, courts should not apply the same legal rules and standards derived from cases involving criminal law enforcement—including exigent circumstances, emergency aid, and probable cause, among others. To advance this argument, section II.C explains how mental health exigencies are different from other exigencies in the criminal law enforcement context. Unlike other emergencies, mental health emergencies are harder to diagnose as actual emergencies and are often misinterpreted as emergency situations.
Importantly, these exigencies do not always implicate “traditional” criminal law enforcement functions and, moreover, do not always necessitate a police response. Dispatching law enforcement to the scene increases the likelihood of injury or even death.
Indeed, for a significant portion of mental health exigencies, the presence of police might actually hasten (or lead to, rather than prevent) harm to the individual.
Even with their oft-lauded crisis intervention training, police are often not equipped to provide necessary emergency aid—namely, therapeutic support necessary for de-escalation—without causing physical injuries (including death) or resorting to unnecessary criminal arrests.
With more careful analysis and fine-tuned legal rules, it becomes easier to notice whether individual intrusions to one’s privacy—intrusions posed by law enforcement’s crisis response—likely outweigh the stated government interest justifying the police intervention in the first place.
Second, this Article argues against importing probable cause standards from the criminal seizures context into the mental health seizures context. Psychiatric holds are authorized under state civil commitment laws. To be detained for emergency evaluation, these laws require law enforcement to have probable cause that individuals (1) pose a danger to themselves or others, (2) have a disability that prevents them from meeting their basic needs, or (3) are refusing treatment.
Section II.E traces the origin of probable cause definitions in these situations to cases involving criminal investigations. Definitions of probable cause vary widely across court opinions, and there is little guidance as to exactly what counts as probable cause in the context of mental health seizures. In opposing this practice, this Article argues that, rather than defer to law enforcement’s “know-it-when-I-see-it” approach, probable cause should be more structured in incidents involving mental health seizures. This Article proposes guidelines to cabin police discretion with respect to probable cause. First, probable cause for alleged criminal conduct should be distinguishable from probable cause assessments for emergency holds; and second, when available, the reasonable officer’s belief as to the sufficiency of probable cause must be based in part on information obtained from the individual in crisis and a credible medical professional.
Searches lacking in probable cause should not be classified as special needs searches. Under existing doctrine, warrantless searches conducted without probable cause are permissible when classified as special needs searches that extend “beyond the normal need for law enforcement” and “make the warrant and probable-cause requirement impracticable.”
These special needs searches conducted without a warrant have been upheld as reasonable when they further important regulatory or administrative purposes.
In cases where there is no evidence of exigent circumstances, courts have found that local policies governing emergency holds fall within the category of searches known as special needs searches.
Section II.F argues against classifying emergency searches and seizures for the purpose of mental health evaluation as special needs searches. This Article notes the drawbacks of assessing the reasonableness of a particular mental health crisis response under the special needs exception to the warrant requirement. Specifically, because the Supreme Court has weakened Fourth Amendment protections governing administrative searches,
classifying policies governing psychiatric holds as special needs searches would seriously undermine the privacy and security interests of people in crisis—a group that includes disabled people.
Finally, this Article calls for more rights-protective legal standards governing emergency searches and seizures for the purpose of mental health evaluations. Specifically, given the documented risks of police involvement in mental health crisis response, the Fourth Amendment balancing of interests (as between the individual and the state) leans in favor of individual rights and away from the government’s interest in conducting these searches and seizures without a warrant in certain cases.
This Article looks to develop guidelines to constrain police discretion in mental health crisis response and to offer a set of arguments that question the appropriateness of police involvement in crisis response as an initial matter. Though the risk of suicide is a real concern, courts should also avoid developing constitutional rules and standards that expose classes of people—here, people in crisis and disabled people—to diminished Fourth Amendment protections.
Exigencies may seem patently reasonable for constitutional purposes only to the extent that competing values and considerations are excluded from the analysis. That is to say, it might seem reasonable to have police enter the residences of people in crisis without warrants, seize them, and take them to hospitals for evaluation or stabilization if this reasonableness assessment does not factor in the risks of harm police pose when they participate in mental health crisis response. Police should rarely be involved in mental health crisis response, and Fourth Amendment doctrine should not make legally reasonable what is practically unreasonable. The analysis that follows incorporates into the range of doctrinal tests these risks and concerns to prevent this aspect of Fourth Amendment doctrine from continuing to serve as a vehicle for undermining protections for people in crisis and disabled people.
In Part I, this Article provides an overview of mental health crisis response and the police role in mental health crisis response. Part II examines Fourth Amendment doctrine as it relates to psychiatric holds and outlines the shortcomings of existing legal rules and standards governing emergency seizures for the purposes of mental health evaluation and treatment. Part III sets forth new standards and rules for assessing the constitutionality for emergency seizures for mental health evaluations. This Article concludes on that note.