The Supreme Court last year unanimously ruled that police could not rely on a "community caretaking exception" to justify their warrantless seizure of firearms from the home of a man who had consented to a psychiatric evaluation after a dispute with his wife. Yet six months later, the U.S. Court of Appeals for the 2nd Circuit approved a warrantless seizure of firearms in strikingly similar circumstances.
Instead of "community caretaking," the appeals court cited "special needs," an even more commodious exception to the presumption that the Fourth Amendment requires police to obtain a warrant before entering someone's home and seizing his property. In a brief asking the Supreme Court to hear an appeal of that decision, the Institute for Justice urges the justices to renounce that seemingly all-purpose excuse for dispensing with warrants, warning that it threatens to nullify the general rule.
The brief goes to the heart of the main question raised by the appeal: "whether a so-called 'special-needs exception' to the Fourth Amendment exists and allows warrantless entry into the home of someone who is not subject to penal control or supervision." In separate briefs, the Firearms Policy Coalition, Gun Owners of America, and the New Civil Liberties Alliance join the Institute for Justice in asking the Court to hear the case and reconsider that alarming loophole.
The 2021 Supreme Court case, Caniglia v. Strom, started with an argument between Edward Caniglia and his wife at their home in Cranston, Rhode Island. During that argument, Caniglia "retrieved a handgun from the bedroom, put it on the dining room table, and asked his wife to 'shoot me now and get it over with.'" After spending the night at a hotel, Caniglia's wife unsuccessfully tried to contact him and then called local police to request a "welfare check." The responding officers accompanied her to the couple's home, where Caniglia denied that he was suicidal but agreed to a psychiatric examination on the condition that they not confiscate his guns.
After Caniglia left in an ambulance the police had called, however, they "located and seized his weapons." Caniglia was evaluated at Kent Hospital but did not meet the criteria for admission, meaning the staff agreed that he was not a danger to himself or others. The police did not return the guns until four months after the incident.
In rejecting the idea that the gun seizure was justified by a "community caretaking" exception to the warrant requirement, the Supreme Court mentioned other possibly relevant exceptions that the lower court had declined to apply, including consent, "exigent circumstances," and actions "akin to what a private citizen might have had authority to do if petitioner's wife had approached a neighbor for assistance instead of the police." But Caniglia said nothing about "special needs," the justification that the 2nd Circuit ratified six months later in Torcivia v. Suffolk County.
The 2nd Circuit case started with an argument between Wayne Torcivia and his 17-year-old daughter at their home in Ronkonkoma, New York. The 2nd Circuit says the dispute was "related to her guinea pig." According to Torcivia's Supreme Court petition, his daughter "called social services complaining that her father was yelling at her and acting weird." She did not "claim that she had been assaulted, or that a firearm had been displayed or used in any way during the altercation."
Exactly what happened when Suffolk County police responded to that call is a matter of dispute. Although he had "a few cocktails" that evening, Torcivia later testified, he was "in control of himself." The cops portrayed him as angry and belligerent. Torcivia said that when he tried to reattach curtains that one of the officers had knocked off the front door, the officer ordered him to step back and threatened to tase him. According to Torcivia, he warned the officer not to tase him because he had "a heart condition" and "could die." According to the cops, Torcivia asked to be tased so that he would die, which they interpreted to mean that he was suicidal.
The officers handcuffed Torcivia and took him to Stony Brook University Hospital's Comprehensive Psychiatric Evaluation Program, where he remained for "roughly 16 hours." Twelve hours into his stay, a psychiatric nurse concluded that Torcivia did not pose a danger to himself or others and recommended that he be discharged. A psychiatrist concurred. Those judgments were "unsurprising," the petition says, because Torcivia had "no record of violence and no history of suicide attempts, depression, or mental health treatment." But Torcivia says he was kept at the hospital for several more hours to facilitate confiscation of his firearms.
As the 2nd Circuit read the record, the Suffolk County Police Department had a policy of temporarily seizing guns from anyone who is involved in a domestic dispute and as a result is required to undergo a psychiatric evaluation. But in this case, Torcivia alleges, the police took his guns after he had been cleared for release. He says they repeatedly pressured him for the combination to his gun safe, which he ultimately divulged to his wife because he thought he otherwise would not be released from the hospital. Because Torcivia's state pistol license was later revoked, he never got his handguns back, and his long guns were not returned until two years after the guinea-pig argument.
The 2nd Circuit rejected Torcivia's attempt to pursue claims against individual officers, concluding that the evidentiary issues he raised did not justify a new trial. It also rejected his claims against the state employees at the hospital who allegedly extended his stay without a legal basis. The appeals court said they were protected by qualified immunity, because it was not "clearly established" at the time that such unjustified confinement was unconstitutional. Torcivia is appealing that aspect of the decision, asking the Supreme Court to "overrule the judge-made qualified immunity doctrine" as applied to "non-police state actors."
Torcivia is also challenging the 2nd Circuit's rejection of his claims against Suffolk County. The appeals court conceded that taking his guns after the ostensible justification for doing so had evaporated might raise a Fourth Amendment issue, which it described as "a close call." But assuming that happened, the court said, it would have been a deviation from the police department's policy, so it was not the county's fault.
As the 2nd Circuit saw it, the policy itself, even though it entailed warrantless home invasions, was justified by "public safety issues at the intersection of mental health and domestic violence"—concerns that qualified as "special needs." That exception, it explained, "applies when 'special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.'"
In this case, there is no evidence that the warrant requirement was in fact "impracticable." The cops had at least 12 hours (16, as it turned out) to seek a warrant, which they did not bother to do because they assumed they did not need one.
"Under the lower court's logic," the Institute for Justice notes, "the government can skip the warrant requirement so long as it (or even a court) conjures up a loose health or safety purpose for the intrusion. The result is that officers have a blank check to conduct discretionary, warrantless invasions in countless new contexts….What does the government do that cannot somehow be framed in terms of health or safety?…If a loose interest in 'health or safety' can authorize officers to enter and seize property within the home—without a warrant, exigent circumstances, or consent—then the Fourth Amendment 'leave[s] the people's homes secure only in the discretion of police officers.'"
The very concept of "special needs" invites this sort of reasoning, the Institute for Justice argues. The Supreme Court's precedents in this area, beginning with the 1967 case Camara v. Municipal Court, "treat warrantless civil searches as categorically less intrusive than warrantless criminal searches" and deem them "justified by the need to enforce non-criminal health and safety laws." But that distinction makes no sense, since the intrusiveness of a search does not hinge on its motivation, and enforcement of criminal laws is at least as compelling a reason to dispense with the inconvenience of a warrant as enforcement of civil laws aimed at protecting health or safety.
"By gutting the warrant requirement," the Institute for Justice says, "the Court's special needs decisions opened the door to a case-by-case weighing of competing interests" like the analysis that the 2nd Circuit applied in this case. "The special needs exception does serious harm to the people's right to be secure in their homes," the brief argues, because, unlike other exceptions recognized by the Court (such as exigent circumstances), it is not "narrow and historically rooted." Rather, it "stems from this Court's innovations in Fourth Amendment law, employing a relativistic balancing test that privileges government interests, belittles serious intrusions, and thereby leaves the people's right to be secure to 'judges' assessments of its usefulness.'"
In short, the brief concludes, "this Court's special needs decisions introduced an
unprincipled, atextual, and ahistorical exception to the Fourth Amendment's warrant requirement." The 2nd Circuit's decision, it says, "merely confirms the exception's innate danger—one that will continue to grow unless this Court intervenes."