No Liability for Seizing Weapons of Man Taken for Mental Evaluation

Torcivia v. Suffolk County, 2021 WL 5183543 (2nd Cir. 2021)

Wayne Torcivia’s juvenile daughter called an emergency child protection hotline after a conflict with Torcivia about her pet guinea pig. The child protection worker called 911 and reported a violent domestic incident. Several officers responded to Torcivia’s home. While one officer spoke with the daughter, two others spoke with Torcivia.

Torcivia later claimed he was calm, though he had been drinking, and only raised his voice when an officer used a swear word. The officers testified Torcivia was in a highly agitated state and was “immediately aggressive” toward them. They reported he would “jump up, yell, and scream,” calm down, and then “explode again and start ranting and raving and screaming and flailing his arms.” Torcivia told the officers: “All right. That’s it. I want you guys to tase me. I have a heart condition. If you ase me, it will kill me. Please ase me and kill me.” An officer called the child protection worker who explained she had heard Torcivia in the background of the phone call from his daughter and that he was “threatening and belligerent” toward the daughter.

Once Torcivia was taken to a mental health facility for evaluation, the officers seized his firearms for safety reasons. Torcivia sued the officers, their agency and the mental health workers. Torcivia lodged a “Monell” claim, arguing the agency should be liable because the officers allegedly acted pursuant to an official county policy or custom that violated the Fourth Amendment. The trial court dismissed Torcivia’s claims; Torcivia appealed and the court of appeals affirmed.

The appellate court held a reasonable jury could find it was “standard procedure” for the officers to temporarily seize Torcivia’s guns to “safeguard weapons until whatever investigation is done” in circumstances where a domestic violence incident occurs and the suspect is taken to a mental health facility. The court held that the agency policy fell within the “special needs” exception of the Fourth Amendment’s warrant requirement.

Warrantless seizure of property is nearly always subject to Fourth Amendment challenges.

The special needs doctrine applies when government needs beyond the normal need for law enforcement make the Fourth Amendment’s warrant and probable cause requirement impracticable (Griffin v. Wisconsin, 483 U.S. 868 (1987)). The special needs analysis uses “a balancing test that weighs the intrusion of the individual’s interest in privacy against the special needs” of the government (Ferguson v. City of Charleston, 532 U.S. 67 (2001)). Determining the reasonableness of seizures under the special needs exception requires courts to balance four factors: “(1) the weight and immediacy of the government interest, (2) the nature of the privacy interest allegedly compromised by the , (3) the character of the intrusion imposed by the , and (4) the efficacy of the in advancing the government interest.”

The court had no trouble seeing a substantial governmental interest in preventing suicide and domestic violence. However, the second factor (privacy interest), was in Torcivia’s favor. The third factor, assessed in this case as the length of the deprivation of Torcivia’s guns, was neutral.

About a third of states have “red flag” laws, also known as “extreme risk protection orders.” These laws allow police and (in some states) family members to ask for a court order to temporarily seize and prevent gun purchases. Warrantless seizure of property is nearly always subject to Fourth Amendment challenges. Though Torcivia failed in his claims, the agency and officers still bore the cost and time of litigation. Seizing the guns was lawful. Nonetheless, there likely never would have been a lawsuit if the family obtained an extreme risk protection order. If your state has one, ensure your agency trains officers in the provisions of red flag laws.

This blog was featured in our Xiphos newsletter, a monthly legal-focused law enforcement newsletter authored by Ken Wallentine. Subscriptions are free for public safety officers, educators and public attorneys.

Ken Wallentine

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over four decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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