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Date: 02-27-2018

Case Style:

Roland G. Hill and Mary R. Hill v. Edward Walsh

District of Massachusetts Federal Courthouse - Boston, Massachusetts

Case Number: 17-1669

Judge: Lynch

Court: United States Court of Appeals for the First Circuit on appeal from the District of Massachusetts

Plaintiff's Attorney: Paul W. Patten

Defendant's Attorney: Daniel F. de Abreau

Description: In this opinion, we bring our
circuit law into conformity with the Supreme Court's precedent on
the emergency aid exception to the Fourth Amendment requirement
that a warrant be obtained before police entry into homes. We
explain below.
On March 3, 2015, Matthew Hill, age 28, overdosed and
was taken to Morton Hospital in Taunton, Massachusetts. The next
day, several Taunton police officers arrived at his parents' home
to escort Matthew to a state court civil-commitment hearing. On
Matthew's sister's application, a Taunton district judge had
issued a warrant earlier that day to apprehend Matthew pursuant to
Mass. Gen. Laws ch. 123, § 35. The warrant indicated both that
Matthew was currently at the hospital and that his home address
was 3 Eldridge Street. The officers went to that address. When
two officers thought that they saw movement inside the home, but
no one came to the door, the police entered, believing Matthew to
be in danger of overdosing inside. Damage was done to the home
as the officers subdued the Hills' dogs upon entry.
Matthew's parents, who owned the home at 3 Eldridge
Street, brought suit against the officers and the City of Taunton
under 42 U.S.C. § 1983, alleging that the police's entry had
violated their Fourth Amendment rights. They also raised two
related state law claims. The district court entered judgment in
favor of the officers and the City on all counts on the grounds
- 3 -
that there was no Fourth Amendment violation. We affirm on a
different basis.
Because the law on the emergency aid exception to the
warrant requirement was not clearly established at the time of the
incident, we uphold the district court's entry of judgment based
on qualified immunity. We also take this opportunity to clarify
our circuit's emergency aid doctrine: officers seeking to justify
their warrantless entry need only demonstrate "'an objectively
reasonable basis for believing' that 'a person within [the house]
is in need of immediate aid.'" Michigan v. Fisher, 558 U.S. 45,
47 (2009) (alteration in original) (internal quotations omitted).
They do not need to establish that their belief approximated
probable cause that such an emergency existed. We thus modify our
previous pronouncements in United States v. Martins, 413 F.3d 139
(1st Cir. 2005), and its progeny.
The plaintiffs, Roland and Mary Hill, have lived at 3
Eldridge Street in Taunton, Massachusetts for over twenty years.
Their adult son, Matthew Hill, grew up there. Over the last
decade, Matthew has struggled with opioid addiction and substance
abuse. At the time of the incident giving rise to this case,
Matthew was staying at 44 Weir Street, an apartment building owned
by his father, and had done so for approximately six years.
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A. March 3, 2015 Incident
On the evening of March 3, 2015, Matthew's sister, Amanda
Hill, called 911 upon discovering Matthew behind his building at
44 Weir Street, on the verge of an overdose. Matthew was barely
able to stand, with "eyes . . . rolling to the back of his head."
Amanda told the emergency responder that "Matthew . . . was going
to kill himself if he didn't get help." An ambulance and police
officers from the Taunton Police Department ("TPD") were
immediately dispatched to 44 Weir Street.
After a violent struggle, the police subdued Matthew and
transported him to Morton Hospital in Taunton. In response to the
incident, the dispatcher on duty placed an entry in the police
blotter indicating that Matthew had been taken to Morton Hospital.
Matthew remained there as a patient until he was discharged into
the TPD's custody on March 5, 2015.
B. Application for a Section 35 Warrant
The next day, March 4, 2015, Amanda filed a petition in
Taunton district court to civilly commit Matthew as a substance
abuser pursuant to Mass. Gen. Laws. ch. 123, § 35. Section 35
permits the court to issue a warrant "for the apprehension and
appearance" of an individual if "there are reasonable grounds to
believe that [he] will not appear [at his civil commitment hearing]
and that any further delay in the proceedings would present an
immediate danger to [his] physical well-being . . . ." Id.
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This was the second time Amanda had filed a section 35
petition as to Matthew. Her first attempt to have him committed,
a few months before, was unsuccessful because the police had been
unable to locate Matthew before the warrant for apprehension
On March 4, 2015, the state district judge determined
that a warrant for apprehension under Mass. Gen. Laws ch. 125,
§ 35, was necessary in Matthew's case, and issued one at 2:20 PM.
The section 35 warrant had in its subject line, "Matthew Hill, 3
Eldridge Street." Directly below, in boldfaced text, it read:
"CURRENTLY AT MORTON HOSPITAL." This information was taken from
Amanda's petition, which listed "3 Eldridge Street" as Matthew's
address, and indicated that he was currently at Morton Hospital.
The section 35 warrant also stated that unless the subject of the
warrant could be "brought before a judge prior to 4:30 PM on the
same day that it is executed," it would expire.
C. Execution of the Section 35 Warrant
The section 35 warrant was faxed to the TPD at 2:58 PM.
The shift commander, Officer Joseph Marques, received the faxed
warrant and initiated an incident report. Marques entered "3
Eldridge Street" -- not Morton Hospital -- into the TPD's dispatch
system and gave the warrant to the dispatcher, Officer Deborah
Lavoie. At approximately 3:18 PM, Lavoie handed the warrant to
the patrol supervisor, Officer William Henault, and radioed for
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another officer to help Henault execute the warrant at 3 Eldridge
After receiving the warrant, Henault immediately went to
3 Eldridge Street. Upon arriving, he shook the chain-link fence
surrounding the property because he knew that the Hills kept
several large dogs on their property. Shortly thereafter, Officer
Troy Enos responded to Lavoie's dispatch and joined Henault.
Having ascertained that the dogs were not in the yard, both
officers went to the front door.
Henault knocked, but received no response. He then
peered into the home through a glass pane on the side of the door.
Henault was startled to see one of the dogs lunge against the
glass. When he looked again, he said he saw a curtain move and
"a silhouette of something there, a figure of some sort, that
1 All three officers testified during their depositions
that they did not see the reference to Morton Hospital on the face
of the section 35 warrant. In fact, according to Henault, "five
or six people [had] looked at [the warrant]," and not a single
person noticed the language.
Marques and Henault both attributed this to the fact
that past versions of the section 35 warrant used a different
"form, format and font," which caused the words "CURRENTLY AT
MORTON HOSPITAL" to "blend[] in." They said that the notation at
issue used to be handwritten or typed into the subject line itself
-- not included elsewhere on the page. Initially, though, Henault
admitted that he did not notice the text because "any type of print
below [the subject line] isn't something that [the police] would
typically review on . . . every warrant."
Lavoie testified that she did not recall whether she had
read the warrant before issuing the radio dispatch.
- 7 -
disappeared out of sight" in a rear room. Enos also testified
that when he looked into the house, he "saw a curtain move" and
thought that a person was inside.
Henault and Enos then walked around the house, calling
out Matthew's name. They discovered that the side door was
unlocked, but they were reluctant to enter the home because the
dogs "were trying to get [them]" when they pulled the door ajar.
Unsure of what to do, Henault and Enos returned to their cruisers
to call dispatch. It was at this moment that the Police Chief,
Edward Walsh, arrived.
Henault explained to Walsh that they were attempting to
serve a section 35 warrant of apprehension for Matthew. Henault
mentioned that although this was Matthew's parents' home, and
Matthew lived at 44 Weir Street, he thought he had seen a shadow
of a person inside, and was unable to verify if it was Matthew.
After the briefing, Walsh instructed Henault to see if the
dispatchers had any additional information about Matthew or the
section 35 warrant. When Henault reached out to Lavoie and
Marques, they said that they did not.
At this point, Walsh made the decision to go inside the
house. He instructed Enos to retrieve the fire extinguisher from
his cruiser. The three officers then entered through the unlocked
side door, sprayed the fire extinguisher three times to keep the
- 8 -
dogs back, and conducted a sweep of the premises. They found no
one at home.
Due to the damage caused by the fire extinguisher, the
Hills vacated their home for five days and engaged in extensive
cleaning to make it habitable.
D. U.S. District Court Proceedings
On February 10, 2016, the Hills filed suit against
Officers Marques, Lavoie, Henault, and Enos in their individual
capacities; against Chief Walsh in his individual and official
capacity; and against the City of Taunton. The Hills brought a
claim under 42 U.S.C. § 1983, alleging that the officers had
violated their Fourth Amendment rights, and also raised two state
law claims: intentional infliction of emotional distress ("IIED")
and trespass. After discovery, the defendants filed a motion for
summary judgment on all counts.
The district court entered summary judgment for the
defendants on June 29, 2017. Hill v. Walsh, No. 16-10225, 2017
WL 2818987 (D. Mass. June 29, 2017). It found that the officers
did not commit a Fourth Amendment violation because their conduct
fell within the emergency aid exception to the warrant requirement.
Id. at *3-5. The district court also noted that even if the
officers had violated the Fourth Amendment, they had a "strong
case" that they were entitled to qualified immunity because "there
is no clearly established Supreme Court precedent" governing
- 9 -
whether a section 35 warrant is sufficient to establish exigent
circumstances to enter a third party's home. Id. at *5 n.6.
Lastly, the district court dismissed the plaintiffs’ municipal
liability and state law claims. Id. at *5-6.
The Hills timely filed this appeal on June 30, 2017.
We review de novo the district court's entry of summary
judgment against Roland and Mary Hill on all of their claims. See
Sheinkopf v. Stone, 927 F.2d 1259, 1262 (1st Cir. 1991). Summary
judgment is appropriate here because no "reasonable fact-finder,
examining the evidence and drawing all reasonable inferences
helpful to the [plaintiffs]," Cortés-Irizarry v. Corporación
Insular de Seguros, 111 F.3d 184, 187 (1st Cir. 1997), could
resolve the dispute in the plaintiffs' favor.
The district court granted the defendants' motion for
summary judgment on the ground that they did not violate the Fourth
We affirm on the basis that the officers are entitled to
qualified immunity and no claim is stated against the City.
A. Section 1983 Claim
The standard for qualified immunity is familiar: as the
Supreme Court stated this year, officers are immune from suit under
§ 1983 unless "(1) they violated a federal statutory or
constitutional right, and (2) the unlawfulness of their conduct
- 10 -
was 'clearly established at the time.'" District of Columbia v.
Wesby, No. 15-1485, slip op. at 13 (U.S. Jan. 22, 2018) (quoting
Reichle v. Howards, 566 U.S. 658, 664 (2012)).
Because qualified immunity is intended to protect "all
but the plainly incompetent or those who knowingly violate the
law," Malley v. Briggs, 475 U.S. 335, 341 (1986), the existing
precedent at the time of the officers' conduct "must be clear
enough that every reasonable official would interpret it" to bar
the conduct at issue, Wesby, slip op. at 14 (emphasis added).
Although plaintiffs are not required to identify controlling
precedent with "identical[]" facts, we have held that "clearly
established law" must be sufficiently "particularized" to serve
"as a fair and clear warning" that the officers' conduct is
unconstitutional. Alfano v. Lynch, 847 F.3d 71, 76 (1st Cir.
2017) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).
The Hills argue that Brigham City v. Stuart, 547 U.S.
398 (2006), and its progeny, constitute clearly established law
and dictate that the officers' entry was objectively unreasonable.
We disagree. The "contours," Wesby, slip op. at 14, of the
emergency aid doctrine laid out in Brigham City would not have
given a fair and clear warning to the officers here.
In Brigham City, the Supreme Court excused the officers'
warrantless entry into the home where they had witnessed an
"altercation" in the kitchen between four adults and a juvenile,
- 11 -
who punched one of the adults, causing the adult to "spit[] blood."
547 U.S. at 400-01. The Court reasoned that in light of the
"ongoing violence occurring within the home," id. at 405, the
police had "an objectively reasonable basis for believing that an
occupant [was] seriously injured or imminently threatened with
such injury," id. at 400.
Here, the officers allege that they entered 3 Eldridge
Street because (1) they received a section 35 warrant of
apprehension for Matthew, which was issued by a judge who
determined that "there [were] reasonable grounds" to believe
Matthew would not appear for his civil commitment hearing, and,
importantly, that "any further delay in the proceedings would
present an immediate danger to [his] physical well-being," Mass.
Gen. Laws ch. 123, § 35; (2) the warrant stated "3 Eldridge
Street," in its subject line; (3) Officers Henault and Enos thought
that they saw a person inside 3 Eldridge Street, whom they believed
-- but could not confirm without entry -- was Matthew; and (4) a
door to the home was unlocked, and the officers assumed the door
would have been secured if the house was unoccupied.
There is no clearly established law on point. The
Supreme Court has never addressed whether a section 35 warrant --
or any warrant to compel attendance at a civil commitment hearing,
for that matter -- is sufficient to justify the police's
warrantless entry into the home pursuant to the emergency aid
- 12 -
exception. We have also never had the occasion to consider section
35 warrants in this context.2
The district court also aptly pointed to a second
wrinkle: this court's language and the test adopted by the Supreme
Judicial Court of Massachusetts disagree as to the government’s
burden of proof under the emergency aid exception. Compare United
States v. Infante, 701 F.3d 386, 392 (1st Cir. 2012) ("The burden
is on the government to show a reasonable basis, approximating
probable cause . . . ." (emphasis added)), with Commonwealth v.
Duncan, 7 N.E.3d 469, 473 (Mass. 2014) ("Although the broader
'exigent circumstances' exception generally requires a showing of
probable cause, such a showing is not necessary in emergency aid
situations, because the purpose of police entry is not to
investigate criminal activity.").
We take this opportunity to clarify our circuit law. In
light of the Supreme Court's most recent decision on the emergency
aid exception, Michigan v. Fisher, we hold that the government
need not show probable cause, only "an objectively reasonable
2 Defendants urge us to extend McCabe v. Life-Line
Ambulance Service, Inc., 77 F.3d 540 (1st Cir. 1996), to section
35 cases. There, we held that the police did not violate the
Fourth Amendment when they entered a residence without a warrant
to "execute a pink paper" -- a civil commitment order issued by a
medical professional pursuant to Mass. Gen. Laws ch. 123, § 12(a).
Id. at 542-43, 548. We decline to do so. We need not -- and do
not -- decide whether a section 35 warrant is sufficient per se to
justify warrantless entry into the home.
- 13 -
basis" for believing that a person inside the home is need of
immediate aid, 558 U.S. at 47 (quoting Brigham City, 547 U.S. at
406), in order to effectuate a warrantless entry. This basis need
not "approximate probable cause."
Infante attributes the language, "approximating probable
cause," to this court's decision in United States v. Beaudoin, 362
F.3d 60, 80 (1st Cir. 2004), vacated sub nom. Champagne v. United
States, 543 U.S. 1102 (2005). See Infante, 701 F.3d at 392-93.
But the Beaudoin court never imposed this standard. Instead, the
language was first adopted by Martins, 413 F.3d 139. Martins has
since been superseded by Michigan v. Fisher, which makes no mention
of probable cause -- only an "objectively reasonable basis." 558
U.S. at 47.
We offer this clarification to bring our case law in
line with Supreme Court precedent. The Court's choice of language
is instructive. It used "objectively reasonable basis" for the
officers' belief; it did not use the familiar tests of "reasonable
suspicion" or "probable cause." At least two of our sister
circuits have also so concluded. See United States v. Toussaint,
838 F.3d 503, 508-09 (5th Cir. 2016) (adopting the "objectively
reasonable basis" standard); Schreiber v. Moe, 596 F.3d 323, 330
(6th Cir. 2010) (same).
The Hills' only rejoinder is that regardless of the
contours of the emergency aid exception, it was not "objectively
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reasonable" for the officers to believe that Matthew was inside 3
Eldridge Street. They argue that the face of the section 35
warrant clearly indicated that Matthew was "CURRENTLY AT MORTON
HOSPITAL," a fact the officers would have "reasonably known" or
"discover[ed]," United States v. Tibolt, 72 F.3d 965, 969 (1st
Cir. 1995), had any of them read the warrant carefully, or had
Officer Henault reviewed the police blotter, or had Officers
Marques or Lavoie verified Matthew's location when radioed.
But hindsight is twenty-twenty. The officers' actions
do not establish that the decision to enter the home was not
objectively reasonable at that time. Given Matthew's history of
overdosing and resisting the police, the subject line of the
warrant (3 Eldridge Street), and the appearance of a person inside
the home, a reasonable officer could have reasonably concluded
that her entry was lawful pursuant to the emergency aid exception.
We cannot say no reasonable officer would have thought the entry
constitutional. And where there is reasonable debate about the
constitutionality of the officers' actions, there is qualified
B. Municipal Liability
Summary judgment was also correctly entered for the City
on each of the Hills' two claimed theories regarding municipal
- 15 -
First, the Hills allege that the "pervasive practice of
not reading warrants" in the TPD raises a genuine issue as to
whether the City of Taunton is liable for the officers' conduct
because of its failure to train and supervise its officers. See
Connick v. Thompson, 563 U.S. 51, 60 (2011). But this is a gross
mischaracterization of the record. Aside from Officer Henault's
off-the-cuff remark that "any type of print below [the subject
line] isn't something that we would typically review
on . . . every warrant," there is no evidence in the record
supporting the Hills' conjecture that TPD officers -- as a matter
of course -- do not read warrants. Plaintiffs cannot rest on
"'conclusory allegations, improbable inferences, [or] unsupported
speculation' to defeat a motion for summary judgment." Saunders
v. Town of Hull, 874 F.3d 324, 331 (1st Cir. 2017) (alteration in
original) (quoting Welch v. Ciampa, 542 F.3d 927, 935 (1st Cir.
Further, the claim based on the City's alleged failure
to train officers to read warrants does not rise to the level of
"deliberate indifference." Connick, 563 U.S. at 62. The Supreme
Court has held that a "pattern of similar constitutional
violations" is "ordinarily necessary" to establish municipal
liability, id. (quoting Bd. of Cty. Comm'rs of Bryant Cty. v.
Brown, 520 U.S. 397, 409 (1997)), unless "the need for more or
different training is so obvious and the inadequacy [is] so likely
- 16 -
to result in the violation of constitutional rights," City of
Canton v. Harris, 489 U.S. 378, 390 (1989). Here, there is no
evidence of past violations, and what happened to the Hills is not
"so obviously" the consequence of a systemic lack of training, as
opposed to the decisions of individual officers.
The Hills' second theory is the contention (in two
cursory sentences) that Walsh's decision to go into their home
gives rise to municipal liability because he was the Police Chief.
However, they fail to allege -- let alone substantiate -- that
Walsh was the final policymaker in this case under Massachusetts
law. See Pembaur v. City of Cincinnati, 475 U.S. 469, 481-83
(1986) (holding that municipal liability only arises in cases where
the municipal actor was the final policymaker, as defined by state
law). This claim has been waived. United States v. Zannino, 895
F.2d 1, 17 (1st Cir. 1990).
C. State Law Claims
Finally, the district court correctly entered summary
judgment against the Hills' two state law claims: IIED and
Under Massachusetts law, IIED requires proof of "extreme
and outrageous conduct." Agis v. Howard Johnson Co., 355 N.E.2d
315, 318 (Mass. 1976). The parties do not dispute that the
officers here entered 3 Eldridge Street for the sole purpose of
saving Matthew. That is neither extreme nor outrageous. And the
- 17 -
trespass claim is also without merit because the police clearly
had license to enter to render aid. See Rossi v. DelDuca, 181
N.E.2d 591, 593 (Mass. 1962) ("[O]ne is privileged to enter land
in the possession of another if it is, or reasonably appears to
be, necessary to prevent serious harm to the actor or his
property."). That ends the matter.

Outcome: Because the district court correctly entered judgment
against the Hills on all counts, we affirm. No costs are awarded.

Plaintiff's Experts:

Defendant's Experts:


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