Involuntary Commitment; Use of Force in Effecting Custody of Mental Patient

Subject:

Requested By: Mr. Kurt C. Stakeman Police Attorney Raleigh, North Carolina

Questions: In taking and retaining custody of a person named in an involuntary mental commitment order issued under G.S. 122-58.4:

(1)

What right does a law enforcement officer have to nonconsentually enter, break into, and search a place where the person named in the order may be located?

(2)

What amount of force may an officer use to take custody and retain custody of the person named in the order?

Conclusions: In taking and retaining custody of a person named in an involuntary mental commitment order:

(1)

A law enforcement officer has the right to take these actions as to a place where he reasonably believes the person to be present:

(a)

after he has given or made reasonable effort to give notice of his authority and purpose to the occupant thereof and reasonably believes that admission is being denied or unreasonably delayed, he may forcibly enter private premises for the purpose of taking the individual into custody.

(b)

he may forcibly enter private premises for this same purpose without such notice or effort to give notice when there is reasonable cause to believe that the giving of such notice would present a clear danger to human life.

(c)

he may search the person of the individual being taken into custody for the purpose of ascertaining if that individual is in possession of a weapon or other object which might be dangerous to himself or to others. The officer would not be authorized to search the premises based solely upon the custody order.

(2)

The amount of force that an officer may use in taking or retaining custody pursuant to an involuntary commitment custody order is such as he reasonably believes to be necessary to effect the taking into custody, prevent escape therefrom, or to defend himself or others during such custodial undertakings. However, the use of deadly physical force will be authorized only when it appears reasonably necessary to do so in order to defend himself or a third person from what he

reasonably believes to be the use or imminent use of deadly physical force by the person being taken into custody.

G.S. 122-58.3 provides that a clerk or magistrate who finds that there are reasonable grounds to believe that a respondent is probably mentally ill or inebriate and imminently dangerous to himself or others shall issue an order to law enforcement officer to take the respondent into custody for examination by a qualified physician. G.S. 122-58.4 prescribes the subsequent functions of the law enforcement officer. Where appropriate, the statute requires the officer to take the respondent to an appropriate facility for temporary custody, observation, and treatment of mentally ill or inebriate persons pending a district court hearing.

No further elaboration is found in specifying the amount of force or type of entry permitted in order to enable the officer to fulfill his statutory responsibilities.

As to the question of forcible entry, the nature of the order is the key to the extent of the authority of the law enforcement officer. Traditionally, under the common law, an officer serving a civil writ had no authority to forcibly enter the outer door of a dwelling, although this rule did not apply to the inner doors of a dwelling. Conversely, at common law, even as to such outer doors, forcible entry necessary to execute an arrest warrant was authorized. While involuntary commitment actions are not criminal in nature, still it is significant that the custody order is only issued after a finding by a judicial officer of a probability that the respondent is imminently dangerous to himself or others. Thus, it would seem that for purposes of the questions presented here, the actions of the law enforcement officer would be more akin to those involved in execution of an arrest warrant than to the service of a civil writ. Interestingly enough, for comparison purposes, the North Carolina Supreme Court has apparently experienced no difficulty in equating a custody order for a juvenile to an order to arrest. See State v. Sparrow, 276 N.C. 499 (1970). It would further seem that forcible entry would be permitted only within the limitations, as appropriate, of G.S. 15A-401(e). As to the right of the officer to conduct a search, since no crime is suspected, it would not appear that the officer has any authorization to search for evidence of a crime. However, the manifest necessity for the officer to protect himself and the individual being taken into custody surely would justify search of the person of the individual for dangerous weapons or other similar dangerous materials.

With regard to the degree of force permitted in taking an individual into custody for involuntary commitment proceedings, G.S. 15A-401(d)(1) would appear to afford satisfactory guidelines. That section provides as follows:

"(d) use of Force in Arrest. –

(1)

Subject to the provisions of subdivision (2), a law-enforcement officer is justified in using force upon another person when and to the extent that he reasonably believes it necessary:

(a)

To prevent the escape from custody or to effect an arrest of a person who he reasonably believes has committed a criminal offense, unless he knows that the arrest is unauthorized; or

(b)

To defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force while effecting or attempting to effect an arrest or while preventing or attempting to prevent an escape."

Here again, though this type of situation is somewhat akin to an arrest for a crime, nonetheless it is sufficiently different therefrom as to preclude carte blanche application of the language of that statute which deals with the use by the officer of deadly physical force. In order to be shielded from future criminal or civil legal actions, it would appear that a law enforcement officer executing a custody order would only be authorized to use deadly physical force when such appears reasonably necessary for self defense or defense of a third person from what the officer reasonably believes to be the use or imminent use of deadly physical force. Compare Sossamon v. Cruse, 133 N.C. 470 (1903).

Rufus L. Edmisten Attorney General

William F. O’Connell Special Deputy Attorney General