Hull v. Newtown

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ANDREW HULL ET AL. v. TOWN OF NEWTOWN
(SC 19656)
Rogers, C. J., and Palmer, Eveleigh, McDonald,
Robinson, Vertefeuille and Espinosa, Js.*
Syllabus
The plaintiffs, A and his wife, sought to recover damages for personal injuries
that A sustained when he was shot by L, a patient at the hospital where
A was employed as a nurse. An officer with the Newtown Police Depart-
ment had arranged for L to be transported to the hospital after L
approached the officer and complained that he was experiencing audi-
tory hallucinations and shortness of breath. Without searching L, the
officer took him into involuntary custody and arranged for him to be
transported to the hospital pursuant to a civil mental health commitment
statute (§ 17a-503 [a]). The plaintiffs alleged that the officer had a minis-
terial, nondiscretionary duty to search L pursuant to the police depart-
ment’s arrest policy, which provided that officers must conduct a search
of any person arrested, and defined ‘‘arrest’’ as the taking of a person
into custody. The defendant, the town of Newtown, moved for summary
judgment, claiming, inter alia, that it was immune from liability pursuant
to statute (§ 52-557n) because any duty to search L was discretionary,
and, because L was not in custody pursuant to the arrest policy, there
was no duty to search him. The trial court denied the town’s motion.
Thereafter, in response to the plaintiffs’ motion for a ruling as to whether
‘‘custody’’ under § 17a-503 (a) equated to arrest under the arrest policy,
the trial court concluded that taking a person into custody pursuant to
§ 17a-503 (a) was not an arrest and that L was not arrested under the
arrest policy. The town filed a second motion for summary judgment,
contending that the police had no duty to search L because he had not
been arrested under the arrest policy or under § 17a-503 (a). The plain-
tiffs then moved to amend their complaint to include the alternative
theory that the police had a duty to search L pursuant to the police
department’s prisoner transportation policy, which provided that, prior
to transport, all prisoners were required to be searched for any weapons
or contraband. The trial court denied the plaintiffs’ motion to amend,
granted the town’s second motion for summary judgment, and rendered
judgment for the town, from which the plaintiffs appealed. Held:
1. This court concluded that, because the police department’s arrest policy
applies solely in the criminal context and because the term ‘‘custody’’
in § 17a-503 (a), the statute pursuant to which L was taken into custody,
did not denote criminal custody or arrest but, rather, custody to facilitate
an emergency evaluation of a person for whom the police have reason-
able cause to believe has psychiatric disabilities and is a danger to
himself or others, or is gravely disabled and in need of immediate care
and treatment, L was not taken into custody under the arrest policy,
and, thus, L was not subject to the search requirement in that policy;
accordingly, the arrest policy did not impose a ministerial, nondiscretion-
ary duty on the police to search L when they took him into custody
pursuant to § 17a-503 (a).
2. The plaintiffs could not prevail on their claim that L was a prisoner under
the police department’s prison transportation policy and, therefore, that
the police had a ministerial, nondiscretionary duty to search him under
that policy when he was taken into custody pursuant to § 17a-503 (a):
the text of the transportation policy having indicated that its purview
was criminal and did not implicate mental health custody, L was not in
custody or arrested within the meaning of that policy and it was therefore
inapplicable; accordingly, the trial court properly granted the town’s
motion for summary judgment.
(One justice dissenting)
Argued September 12—officially released December 26, 2017
Procedural History
Action to recover damages for personal injuries sus-
tained by the named plaintiff as a result of the alleged
negligence of the defendant’s employees, brought to
the Superior Court in the judicial district of Danbury,
where the court, Ozalis, J., granted the defendant’s
motion for summary judgment and rendered judgment
thereon, from which the plaintiffs appealed. Affirmed.
David N. Rosen, for the appellants (plaintiffs).
Aaron S. Bayer, with whom was Tadhg Dooley, for
the appellee (defendant).
Kathleen M. Flaherty and Kirk W. Lowry filed a brief
for the Connecticut Legal Rights Project et al. as
amici curiae.
Opinion
ESPINOSA, J. This appeal requires us to determine
whether certain policy and procedures of the Newtown
Police Department (department) imposed a ministerial
duty on its officers to search Stanley Lupienski, an
individual suffering from auditory hallucinations and
shortness of breath, when they took him into custody
pursuant to General Statutes § 17a-503 (a).1 The plain-
tiffs, Andrew Hull and Erica Hull,2 appeal3 from the
judgment of the trial court granting summary judgment
in favor of the defendant, the town of Newtown. The
plaintiffs contend that the arrest section of the depart-
ment’s policy (arrest policy) imposes a ministerial, non-
discretionary duty on the police to search anyone taken
into custody, including those taken into custody pursu-
ant to § 17a-503 (a). See Newtown Board of Police Com-
missioners, Newtown Police Policy and Procedure 3.00
(revised February 1, 2005) (Police Policy). Alterna-
tively, the plaintiffs argue that Lupienski was a prisoner
and, therefore, subject to mandatory search under the
department’s prisoner transportation section of the pol-
icy (transportation policy). See id., 3.07 (revised May
5, 2009). The defendant counters that the arrest policy
applies only in the context of criminal arrest and does
not apply in the context of civil mental health custody,
which is governed by § 17a-503 (a). The defendant also
argues that the transportation policy does not apply to
those under custody pursuant to § 17a-503 (a). We agree
with the defendant and, therefore, affirm the judgment
of the trial court.
The following undisputed facts are relevant to this
appeal. The plaintiffs’ claims arise from an incident at
Danbury Hospital on March 2, 2010. While a patient at
the hospital, Lupienski shot Andrew Hull, an assistant
nurse manager. Lupienski had been transported to the
hospital approximately thirty-eight hours earlier, after
he went to the department complaining of auditory
hallucinations and shortness of breath. Without search-
ing Lupienski, Officer Steven Borges took him into
involuntary custody and arranged for him to be trans-
ported to the hospital by Newtown Emergency Manage-
ment Services, as provided by § 17a-503 (a).
The plaintiffs subsequently brought this action, seek-
ing damages for, inter alia, the injuries sustained by
Andrew Hull, and alleging that the police had a ministe-
rial, nondiscretionary duty to search Lupienski pursu-
ant to the arrest policy. The defendant moved for
summary judgment, arguing that (1) it was immune
from liability because any duty to search was discretion-
ary rather than ministerial, (2) any requirement to
search would have been a public duty resulting in a
public injury rather than an individual injury, (3) there
was no custody pursuant to the arrest policy and there-
fore no duty to search Lupienski, and (4) the plaintiffs
had submitted no proof that a search would have
revealed a weapon. The trial court denied the motion.
The plaintiffs subsequently filed a motion seeking a
legal ruling from the trial court as to whether ‘‘custody’’
under § 17a-503 (a) equates to ‘‘arrest’’ under the arrest
policy. In its memorandum of decision, the court con-
cluded that ‘‘as a matter of law . . . taking a person
into custody pursuant to § 17a-503 (a) is not an ‘arrest’
and that Lupienski was not ‘arrested’ under the [Police
Policy].’’ As a result of the trial court’s decision, the
defendant filed a second motion for summary judgment,
contending that the police had no duty to search Lupien-
ski because he was not arrested under the arrest policy
or under § 17a-503 (a). Several weeks later, the plaintiffs
moved to amend the complaint to include their alterna-
tive theory that alleged that the police had a duty to
search Lupienski pursuant to the transportation policy.
The trial court denied the plaintiffs’ motion to amend
and granted the defendant’s motion for summary judg-
ment. The court also denied the plaintiffs’ subsequent
motion for reconsideration, which argued that the trial
court improperly declined to consider the transporta-
tion policy as an alternative legal basis for the duty to
search. This appeal followed.
The plaintiffs’ primary argument implicates govern-
mental immunity. Their theory of liability is that the
police had a ministerial or mandatory, nondiscretionary
duty to search Lupienski. The plaintiffs rest this conclu-
sion on two premises. First, the plaintiffs contend that
the arrest policy requires officers to search arrestees,
and that individuals, like Lupienski, who are taken into
custody pursuant to § 17a-503 (a), have been ‘‘arrested’’
for the purposes of the arrest policy. Second, the plain-
tiffs offer as an alternative argument that the transporta-
tion policy imposed a ministerial, nondiscretionary duty
to search Lupienski. The defendant counters that nei-
ther § 17a-503 (a) nor the arrest or transportation poli-
cies imposed such a duty and that, as a result, the
defendant is shielded from liability due to governmen-
tal immunity.
We begin by setting forth the applicable standard of
review. ‘‘Summary judgment shall be rendered forth-
with if the pleadings, affidavits and other proof submit-
ted show that there is no genuine issue as to any
material fact and that the moving party is entitled to
judgment as a matter of law. . . . The scope of our
appellate review depends upon the proper characteriza-
tion of the rulings made by the trial court. . . . When
. . . the trial court draws conclusions of law, our
review is plenary and we must decide whether its con-
clusions are legally and logically correct and find sup-
port in the facts that appear in the record.’’ (Internal
quotation marks omitted.) Marchesi v. Board of Select-
men, 309 Conn. 608, 620, 72 A.3d 394 (2013).
With respect to governmental immunity, under Gen-
eral Statutes § 52-557n, a municipality may be liable for
the ‘‘negligent act or omission of a municipal officer
acting within the scope of his or her employment or
official duties.’’ (Internal quotation marks omitted.)
Coley v. Hartford, 312 Conn. 150, 161, 95 A.3d 480(2014). The determining factor is whether the act or
omission was ministerial or discretionary. See id.,161–62 (contrasting extent of municipal liability for min-
isterial versus discretionary acts). ‘‘[Section] 52-557n
(a) (2) (B) . . . explicitly shields a municipality from
liability for damages to person or property caused by
the negligent acts or omissions which require the exer-
cise of judgment or discretion as an official function
of the authority expressly or impliedly granted by law.’’
(Internal quotation marks omitted.) Id., 161. In contrast,
‘‘municipal officers are not immune from liability for
negligence arising out of their ministerial acts, defined
as acts to be performed in a prescribed manner without
the exercise of judgment or discretion.’’ (Internal quota-
tion marks omitted.) Id., 162.
Discretionary acts are treated differently from minis-
terial acts ‘‘in part because of the danger that a more
expansive exposure to liability would cramp the exer-
cise of official discretion beyond the limits desirable
in our society. . . . [D]iscretionary act immunity
reflects a value judgment that—despite injury to a mem-
ber of the public—the broader interest in having govern-
ment officials and employees free to exercise judgment
and discretion in their official functions, unhampered
by fear of second-guessing and retaliatory lawsuits, out-
weighs the benefits to be had from imposing liability
for that injury.’’ (Citation omitted; footnote omitted;
internal quotation marks omitted.) Id., 161.
These concerns are particularly appropriate in the
present case, in light of the ‘‘broad scope of governmen-
tal immunity that is traditionally afforded to the actions
of municipal police departments.’’ Id., 164. ‘‘[I]t is firmly
established that the operation of a police department
is a governmental function, and that acts or omissions
in connection therewith ordinarily do not give rise to
liability on the part of the municipality. . . . [Accord-
ingly] [t]he failure to provide, or the inadequacy of,
police protection usually does not give rise to a cause of
action in tort against a city.’’ (Internal quotation marks
omitted.) Id. For example, in Coley, we held that govern-
mental immunity shielded the city of Hartford in a
wrongful death action stemming from alleged police
negligence where two officers failed to stay on the scene
of a domestic violence call that later turned fatal. Id.,
152, 155–56. The plaintiff in Coley claimed that the Gen-
eral Statutes and a Hartford police departmental policy
that set forth procedures for police response to domes-
tic violence imposed a nondiscretionary duty to ‘‘remain
at the scene for a reasonable amount of time until the
likelihood of imminent violence had been eliminated
. . . .’’ Id., 152. This court held that ‘‘the police officers’
allegedly negligent acts . . . required the exercise of
discretion, and, accordingly, the [city of Hartford] [was]
immune from liability for its discretionary acts.’’ Id., 172.
In the present case, the police would have been
required to search Lupienski only if the arrest policy
in conjunction with § 17a-503 (a), or the transportation
policy, imposed a ministerial duty to do so. We address
each possibility in turn.
I
The plaintiffs’ first argument in support of their claim
that the police had a ministerial duty operates in three
parts: (1) the arrest policy expressly requires officers
to search arrestees; (2) the arrest policy defines arrest
as taking a person into custody; and (3) custody under
the arrest policy encompasses custody as it is used in
§ 17a-503 (a). As a result, we must examine the meaning
of custody in each context, interpreting the arrest policy
first and then § 17a-503 (a). Although we agree that the
policy requires that arrestees be searched, we conclude
that the arrest policy applies solely to the criminal con-
text and therefore does not apply when the police take
a person into custody pursuant to § 17a-503 (a).
The department’s arrest policy mandates that ‘‘[o]ffi-
cers shall conduct a thorough search of the person
arrested’’; Police Policy, supra, 3.00, pt. IV H, p. 4; and
defines arrest as ‘‘[t]aking a person into custody.’’ Id.,
pt. III, p. 1. Assuming, without deciding, that the arrest
policy imposes a ministerial duty to search those
arrested, the question is what the policy means by ‘‘cus-
tody.’’ Looking to the text of the arrest policy, custody
applies in the criminal context alone. Despite the lack
of a definition of custody4 in the arrest policy, our con-
clusion finds support in that policy’s provisions.
First, under the arrest policy, arrest requires either
an arrest warrant or probable cause. Id., pt. IV, p. 4.
The arrest policy defines probable cause for an arrest
as ‘‘[t]he existence of facts and circumstances that
would lead a reasonably prudent officer to believe that
a person had committed a criminal offense.’’ (Emphasis
added.) Id., pt. III, p. 1. This requirement of probable
cause of a criminal offense corresponds closely with
the state and federal understanding of probable cause.
See, e.g., State v. Johnson, 286 Conn. 427, 435–36, 944
A.2d 297 (‘‘In order for a warrantless felony arrest to
be valid, it must be supported by probable cause. . . .
Probable cause exists when the facts and circumstances
within the knowledge of the officer and of which he
has reasonably trustworthy information are sufficient
in themselves to warrant a man of reasonable caution
to believe that a felony has been committed.’’ [Citations
omitted; internal quotation marks omitted.]), cert.
denied, 555 U.S. 883, 129 S. Ct. 236, 172 L. Ed. 2d 144(2008); see also Devenpeck v. Alford, 543 U.S. 146, 152,
125 S. Ct. 588, 160 L. Ed. 2d 537 (2004) (‘‘a warrantless
arrest by a law officer is reasonable under the [f]ourth
[a]mendment where there is probable cause to believe
that a criminal offense has been or is being commit-
ted’’). Thus, in the absence of an arrest warrant, the
arrest policy allows arrests only where there is probable
cause to believe that the arrestee committed a criminal
offense. The reverse is also informative; under the arrest
policy, any arrest not grounded in probable cause
requires an arrest warrant. That option requires an offi-
cer to obtain an arrest warrant from a ‘‘judge, magis-
trate, or other legal authority empowered to issue such
warrants . . . .’’ Police Policy, supra, 3.00, pt. IV C, p.
2. Thus, under the arrest policy, there is no arrest unless
there is such a warrant, or there is probable cause for
a criminal offense.
Second, the arrest policy imposes procedural require-
ments that further clarify that the policy applies solely
to the criminal context. For example, ‘‘arresting officers
shall identify themselves, inform the suspect of his or
her arrest, and specify the charges for which the arrest
is being made.’’ (Emphasis added.) Id., pt. IV D, p. 3.
This requirement would be irrational and impossible
beyond the criminal context. The same is true of the
arrest policy mandate that ‘‘[a]ll arrested persons shall
be handcuffed after being taken into custody, except
as otherwise provided by departmental policy . . . .’’
Id., pt. IV F, p. 3. Relatedly, the arrest policy also directs
that ‘‘[a]rrestees shall be advised of their Miranda5
rights before any questioning,’’ inherently indicating
criminal arrest. (Footnote added.) Id., pt. IV I, p. 4.
These procedures underpin a scheme that would be
absurd and troubling outside of the criminal context.6
Having established that custody under the arrest pol-
icy applies in the criminal context, it is useful to summa-
rize what the resulting meaning of custody is, as doing
so further illustrates the criminal purview of the arrest
policy. Custody in this court’s criminal law jurispru-
dence is closely linked to the parameters of custodial
interrogation set forth by the United States Supreme
Court in Miranda v. Arizona, 384 U.S. 436, 444, 86 S.
Ct. 1602, 16 L. Ed. 2d 694 (1966), and its progeny. See,
e.g., State v. Arias, 322 Conn. 170, 177, 140 A.3d 200(2016) (listing factors for determining existence of cus-
tody for purposes of Miranda). As a result, the constitu-
tional concerns underpinning custody are related to the
danger of coercion in police interrogation, and they are
generally discussed in conjunction with Miranda. See
State v. Mangual, 311 Conn. 182, 193, 85 A.3d 627 (2014)
(‘‘[as] used in . . . Miranda [and its progeny], custody
is a term of art that specifies circumstances that are
thought generally to present a serious danger of coer-
cion’’ [internal quotation marks omitted]).
Determining whether custody exists under Miranda
is circumstance dependent, but ‘‘the ultimate inquiry is
simply whether there is a formal arrest or restraint on
freedom of movement of the degree associated with a
formal arrest. . . . Further, the United States Supreme
Court has adopted an objective, reasonable person test
for determining whether a defendant is in custody. . . .
Thus, in determining whether Miranda rights are
required, the only relevant inquiry is whether a reason-
able person in the defendant’s position would believe
that he or she was in police custody of the degree
associated with a formal arrest.’’ (Internal quotation
marks omitted.) State v. Jackson, 304 Conn. 383, 416,
40 A.3d 290 (2012). Nonexclusive factors to consider
in determining ‘‘whether a suspect was in custody for
purposes of Miranda [include]: (1) the nature, extent
and duration of the questioning; (2) whether the suspect
was handcuffed or otherwise physically restrained; (3)
whether officers explained that the suspect was free
to leave or not under arrest; (4) who initiated the
encounter; (5) the location of the interview; (6) the
length of the detention; (7) the number of officers in
the immediate vicinity of the questioning; (8) whether
the officers were armed; (9) whether the officers dis-
played their weapons or used force of any other kind
before or during questioning; and (10) the degree to
which the suspect was isolated from friends, family and
the public.’’ (Internal quotation marks omitted.) State
v. Arias, supra, 322 Conn. 177.
Therefore, custody, as it is used in the criminal con-
text and under the arrest policy, is a close relative of
formal arrest. Indeed, many of the factors that suggest
custody—such as handcuffing—would also suggest a
formal arrest. See State v. Mangual, supra, 311 Conn.
208 (‘‘[h]andcuffs are generally recognized as a hallmark
of a formal arrest’’ [internal quotation marks omitted]).
Relatedly, custody often presents itself in the context of
police interrogations in criminal investigations, where
there is a risk of coercing testimony in violation of
Miranda.
We next turn to the state statute. Determining
whether custody has the same meaning pursuant to
§ 17a-503 (a) and pursuant to the arrest policy presents
a question of statutory interpretation, over which we
exercise plenary review, guided by well established
principles regarding legislative intent. See, e.g., Kasica
v. Columbia, 309 Conn. 85, 93, 70 A.3d 1 (2013)
(explaining plain meaning rule under General Statutes
§ 1-2z and setting forth process for ascertaining legisla-
tive intent). ‘‘When construing a statute, [o]ur funda-
mental objective is to ascertain and give effect to the
apparent intent of the legislature. . . . In seeking to
determine that meaning . . . § 1-2z directs us first to
consider the text of the statute itself and its relationship
to other statutes. If, after examining such text and con-
sidering such relationship, the meaning of such text is
plain and unambiguous and does not yield absurd or
unworkable results, extratextual evidence of the mean-
ing of the statute shall not be considered. . . . The test
to determine ambiguity is whether the statute, when
read in context, is susceptible to more than one reason-
able interpretation.’’ (Internal quotation marks omit-
ted.) State v. Agron, 323 Conn. 629, 633–34, 148 A.3d
1052 (2016).
Applying these principles as directed by § 1-2z, we
begin with the text of § 17a-503 (a). Section 17a-503 (a)
provides that ‘‘[a]ny police officer who has reasonable
cause to believe that a person has psychiatric disabili-
ties and is dangerous to himself or herself or others or
gravely disabled, and in need of immediate care and
treatment, may take such person into custody and take
or cause such person to be taken to a general hospital
for emergency examination under this section. The offi-
cer shall execute a written request for emergency exam-
ination detailing the circumstances under which the
person was taken into custody, and such request shall
be left with the facility. The person shall be examined
within twenty-four hours and shall not be held for more
than seventy-two hours unless committed under section
17a-502.’’
The text of section § 17a-503 (a) uses the term cus-
tody in a manner inconsistent with criminal custody or
arrest. In § 17a-503 (a), custody is justified by a reason-
able cause belief that a person is suffering from a psychi-
atric disability and may pose a danger to himself or
others, or that a person is ‘‘[g]ravely disabled, and in
need of immediate care and treatment . . . .’’ This
stands in contrast to the criminal arrest requirement
that there be either a warrant or a probable cause belief
of a criminal offense. See, e.g., Devenpeck v. Alford,
supra, 543 U.S. 152 (‘‘a warrantless arrest by a law
officer is reasonable under the [f]ourth [a]mendment
where there is probable cause to believe that a criminal
offense has been or is being committed’’). Thus, it does
not matter whether reasonable cause for custody under
§ 17a-503 (a) is the same standard as probable cause
for arrest, because they are clearly standards for two
distinct purposes.
Other language in § 17a-503 (a) illustrates that cus-
tody is not used in the criminal context. Specifically,
§ 17a-503 (a) allows the police to take a psychiatrically
or gravely disabled ‘‘person into custody and take or
cause such person to be taken to a general hospital for
emergency examination under this section.’’ (Empha-
sis added.) As a result, the scope of custody is narrow
under the statute—its purpose is to facilitate emergency
evaluation, not to serve as the initial volley in an interro-
gation or a criminal investigation. This conclusion com-
ports with this court’s previous interpretation of § 17a-
503. See Hopkins v. O’Connor, 282 Conn. 821, 824, 848
n.12, 925 A.2d 1030 (2007) (explaining that officer who
took individual into ‘‘involuntary custody and caused
him to be transported’’ to hospital for psychiatric evalu-
ation pursuant to § 17a-503 [a] was ‘‘serving less in a
law enforcement capacity than in a health and safety
capacity’’).
The other subsections of § 17a-503 further confirm
the scope of subsection (a). They outline alternative
procedures for obtaining emergency treatment for indi-
viduals dangerous to themselves or others due to psy-
chiatric disability, or with a grave disability. For
example, pursuant to § 17a-503 (b),7 probate courts may
issue warrants ‘‘for the apprehension [of] and bringing
before it’’ a person in need, and may order that such
person ‘‘be taken to a general hospital for examina-
tion.’’8 Alternatively, licensed psychologists or licensed
clinical social workers can obtain immediate care or
treatment for a person in need under § 17a-503 (c)9 and
(d),10 respectively. Thus, the focus of § 17a-503 is on
providing emergency medical care to the psychiatrically
or gravely disabled. Police custody under § 17a-503 (a)
is just one route by which medical attention may be
obtained, and the role of the police under the statute
is roughly equivalent to probate courts in § 17a-503 (b),
psychologists in § 17a-503 (c), or social workers pursu-
ant to § 17a-503 (d). Thus, custody, as it is employed
in § 17a-503 (a), is merely a tool in affording the medical
relief embodied in the other provisions of § 17a-503—
not a Trojan horse to import criminal procedure juris-
prudence into an unrelated statute.
The relationship between § 17a-503 (a) and other stat-
utes further illustrates that its use of the term custody
does not denote criminal custody.11 Section 17a-503 (a)
is located in chapter 319i of the General Statutes, which
governs ‘‘Persons with Psychiatric Disabilities.’’ Specifi-
cally, § 17a-503 (a) is in part II of that chapter, which
sets forth general provisions for civil commitment.
Other statutes in part II cover subjects such as the
procedures for commitment hearings, confidentiality in
cases involving persons with psychiatric disabilities,
and commitment under an emergency certificate. See
General Statutes §§ 17a-498, 17a-500 and 17a-502. Sec-
tion 17a-503, then, is part of a broader legislative scheme
focused on psychiatric disability, mental health, and
commitment, not criminal procedure.
Although we recognize that there is an aspect of
involuntariness to custody under § 17a-503 (a), it is not
enough to transform the act of taking into custody into
criminal arrest. Section 17a-503 (a) is distinguishable:
its aim is psychiatric treatment, rather than criminal
justice; it requires reasonable cause to believe a person
has a psychiatric or grave disability rather than probable
cause for a criminal offense; and it prescribes an
entirely different procedure grounded in its mental
health purpose. As a result, under § 17a-503 (a), the
police are not required to follow the same procedures
that they would have been bound by in a criminal arrest.
Thus, the term custody is used differently in § 17a-
503 (a) and in the arrest policy. The arrest policy plainly
and unambiguously uses the term custody in the context
of criminal arrest. In contrast, § 17a-503 (a) uses the
term in the context of providing emergency medical
treatment. In the present case, the police did not have
a ministerial duty to search Lupienski under the arrest
policy. Lupienski was taken into custody pursuant to
§ 17a-503 (a), but not into ‘‘custody’’ as understood in
the arrest policy. Therefore, any duty to search arrest-
ees under the arrest policy was not triggered, and no
search of Lupienski was required.
The plaintiffs’ other arguments in favor of this theory
of liability are not persuasive. The plaintiffs caution
that relegating the arrest policy to the criminal context
would result in unfettered police discretion and deprive
those taken into custody under § 17a-503 (a) of the
procedural protections for arrestees under the policy.
In the context of § 17a-503 (a), however, the only statute
at issue in the present case, police discretion is limited
by the narrowly cabined justification and procedures
outlined in its text. See Hopkins v. O’Connor, supra,
282 Conn. 848 n.12 (observing that § 17a-503 [a] con-
tains ‘‘other safeguards against any abuse of power by
the officer, which are provided by the unique statutory
scheme at play in this case—such as immediate psychi-
atric evaluation’’). For example, in addition to the rea-
sonable cause requirement, custody is qualified in § 17a-
503 (a) by a requirement that a person be ‘‘examined
within twenty-four hours and . . . not be held for more
than seventy-two hours unless committed under section
17a-502.’’ Should custody evolve beyond these narrow
limitations, it very well may give rise to other legal and
constitutional protections.
Additionally, it is well established that this court has a
duty ‘‘to construe statutes, whenever possible, to avoid
constitutional infirmities . . . .’’ Dernado v. Bergamo,
272 Conn. 500, 506 n.6, 863 A.2d 686 (2005). The plain-
tiffs’ interpretation of § 17a-503 (a) appears to raise
constitutional infirmities because it would allow the
police to conduct arrests without probable cause or
a warrant. See, e.g., Devenpeck v. Alford, supra, 543
U.S. 152.
The plaintiffs also argue that there are similarities
between criminal arrest and custody of the sort envi-
sioned by § 17a-503 (a), because mental health related
seizures under New York’s civil commitment statute;
N.Y. Mental Hyg. Law § 9.41 (McKinney 2011); have
been described as arrests by the United States Court
of Appeals for the Second Circuit. See Payne v. Jones,
711 F.3d 85, 88 (2d Cir. 2013) (characterizing that statute
as ‘‘authoriz[ing] the arrest of a person who appears to
be mentally ill and acts in a manner likely to result
in serious harm to himself or others’’). None of the
authorities cited by the plaintiffs provides support for
the argument that taking a person into custody pursuant
to a civil statute can constitute a criminal arrest.
In support of this claim, the plaintiffs rely on Disabil-
ity Advocates, Inc. v. McMahon, 279 F. Supp. 2d 158,
164 (N.D.N.Y. 2003), aff’d, 124 Fed. Appx. 674 (2d Cir.
2005), which held that ‘‘while [N.Y. Mental Hyg. Law §]
9.41 may not use the term ‘arrest,’ the authority it grants
to the police is, in fact, the legal authority to arrest.’’
The court made clear however, that arrests under that
statute are not criminal arrests. See id., 165 (noting
that, ‘‘by its plain terms, New York’s Criminal Procedure
Law is inapplicable to custodial detentions under the
Mental Hygiene Law . . . [and] courts have noted that
conduct equivalent to mental illness which can result
in custody under the Mental Hygiene Law cannot be
considered an offense’’ [citation omitted; internal quota-
tion marks omitted]). Further evidence that arrest
under § 9.41 is not a criminal arrest is apparent in the
fact that ‘‘the procedures employed by the police for
[m]ental [h]ygiene pickups [under that statute] are sig-
nificantly different [from] those employed in criminal
matters.’’ Id. The same is true with § 17a-503 (a); taking
someone into custody under the statute does not trigger
the same procedures that the police would be bound
by during a criminal arrest. Therefore, even though
mental health seizures have been described as ‘‘arrests,’’
they are not criminal arrests.
Finally, we reject the plaintiffs’ argument that those
in custody under § 17a-503 (a) are subject to search
incident to arrest because civil arrestees are subject to
search incident to arrest in other contexts, such as
civil immigration arrests or under the New York civil
commitment statute. Those issues are not before the
court. Even if a search may be possible in such contexts,
it does not mean that it is mandatory. That is the relevant
question in the present case.
Thus, we hold that the arrest policy does not impose
a ministerial duty on officers to search those taken into
custody pursuant to § 17a-503 (a). Lupienski was not
taken into custody under the policy, and, therefore,
he was not arrested and he was not subject to the
search requirement.
II
The plaintiffs’ second claim is that the police had a
ministerial, nondiscretionary duty to search Lupienski
under the transportation policy. See Police Policy,
supra, 3.07. We disagree.12
The transportation policy states that, ‘‘[p]rior to trans-
port, all prisoners shall be thoroughly searched for any
weapons or contraband.’’ Id., pt. IV, p. 1. According
to the transportation policy statement of purpose, the
policy is in place to ‘‘provide guidelines for transporting
persons in the custody [of the] . . . officers.’’ Id., pt.
I, p. 1. The text of the prisoner transportation policy
indicates that its purview is criminal and does not impli-
cate mental health custody. For example, the policy
requires officers to ‘‘handcuff (double-locked) all pris-
oners with their hands behind their back with palms
facing outward.’’ Id., pt. IV B, p. 1. There is an exception
to this requirement for the ‘‘medically ill,’’ but not for
the psychiatrically disabled. Id., p. 2.
In the present case, Lupienski was not in custody or
arrested within the meaning of the policy for the reasons
discussed in the preceding section, and, therefore, the
transportation policy is inapposite. There was no pris-
oner to search. Furthermore, the focus of the transpor-
tation policy on criminal arrest procedures, like
handcuffing, illustrates that the policy is not intended
to govern transport to the hospital pursuant to § 17a-
503 (a).
According to the plaintiffs, the transportation policy
has a broad definition of prisoner because it applies
not only to those prisoners in custody, but also to those
‘‘awaiting interrogation, arrest processing, transfer to
court, or other administrative procedures . . . .’’
Police Policy, supra, 2.01, pt. II, p. 1 (revised July 1,
2008). The plaintiffs’ reliance on this language is mis-
placed because it comes not from the transportation
policy, but rather from a separate chapter of the policy
focused on prisoner holding facilities. Id. The full sen-
tence states that ‘‘[i]t is the policy of this agency to
provide secure temporary holding cells for prisoners
awaiting interrogation, arrest processing, transfer to
court, or other administrative procedures, and to main-
tain these facilities in a sanitary and safe manner.’’ Id.
This statement does not expand the definition of pris-
oner, or list reasons someone may be in custody, but
merely details situations in which holding cells should
be available to someone who is already a prisoner.
We therefore reject the plaintiffs’ argument that
Lupienski was a prisoner under the transportation pol-
icy and that, as a result, the officers were required to
search him before sending him to the hospital. Accord-
ingly, the trial court properly concluded that the defen-
dant did not have a ministerial duty to search Lupienski
under the policy when he was taken into custody pursu-
ant to § 17a-503 (a) and properly granted the defen-
dant’s motion for summary judgment.
The judgment is affirmed.
In this opinion ROGERS, C. J., and PALMER, McDON-
ALD, ROBINSON, and VERTEFEUILLE, Js., concurred.
* The listing of justices reflects their seniority status on this court as of
the date of oral argument.
1
General Statutes § 17a-503 (a) provides: ‘‘Any police officer who has
reasonable cause to believe that a person has psychiatric disabilities and
is dangerous to himself or herself or others or gravely disabled, and in need
of immediate care and treatment, may take such person into custody and
take or cause such person to be taken to a general hospital for emergency
examination under this section. The officer shall execute a written request
for emergency examination detailing the circumstances under which the
person was taken into custody, and such request shall be left with the
facility. The person shall be examined within twenty-four hours and shall
not be held for more than seventy-two hours unless committed under section
17a-502.’’
2
Erica Hull, Andrew Hull’s wife, alleged loss of care, companionship, and
consortium. She is also a party to this appeal. We refer to the plaintiffs
individually by name when appropriate.
3
The plaintiffs appealed from the judgment of the trial court to the Appel-
late Court, and we transferred the appeal to this court pursuant to General
Statutes § 51-199 (c) and Practice Book § 65-1.
4
A different section of the policy, entitled ‘‘Interrogations and Confes-
sions,’’ defines custody as existing when ‘‘an officer tells a suspect that he
is under arrest.’’ Police Policy, supra, 5.14, pt. III, p. 1 (revised May 6, 2008).
In the present case, the plaintiffs’ argument would fail under this definition
unless Lupienski was explicitly told he was under arrest.
5
Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
6
The plaintiffs warn that reading the arrest policy as limited to the criminal
context would lead to absurd, illogical, and unworkable results. In particular,
the plaintiffs list a range of custodial situations outside of the criminal
context that would not be covered by the arrest policy, including failure to
respond to a subpoena and debtors prison under the common law. Although
we conclude that custody pursuant to § 17a-503 (a) is beyond the scope of
the policy, it is irrelevant to this holding whether other civil forms of custody
are within the scope of the arrest policy.
7
General Statutes § 17a-503 (b) provides: ‘‘Upon application by any person
to the court of probate having jurisdiction in accordance with section 17a-
497, alleging that any respondent has psychiatric disabilities and is dangerous
to himself or herself or others or gravely disabled, and in need of immediate
care and treatment in a hospital for psychiatric disabilities, such court
may issue a warrant for the apprehension and bringing before it of such
respondent and examine such respondent. If the court determines that there
is probable cause to believe that such person has psychiatric disabilities
and is dangerous to himself or herself or others or gravely disabled, the
court shall order that such respondent be taken to a general hospital for
examination. The person shall be examined within twenty-four hours and
shall not be held for more than seventy-two hours unless committed under
section 17a-502.’’
8
It is telling that probate courts may issue warrants under § 17a-503 (b),
because they do not have the power to issue criminal arrest warrants. See,
e.g., General Statutes § 45a-98 (enumerating powers of probate court, none
of which includes power to issue criminal arrest warrants); In re Bachand,
306 Conn. 37, 41–42, 49 A.3d 166 (2012) (probate courts ‘‘ ‘can exercise only
such powers as are conferred on them by statute’ ’’).
9
General Statutes § 17a-503 (c) provides: ‘‘Any psychologist licensed under
chapter 383 who has reasonable cause to believe that a person has psychiat-
ric disabilities and is dangerous to himself or herself or others or gravely
disabled, and in need of immediate care and treatment, may issue an emer-
gency certificate in writing that authorizes and directs that such person be
taken to a general hospital for purposes of a medical examination. The
person shall be examined within twenty-four hours and shall not be held
for more than seventy-two hours unless committed under section 17a-502.’’
10
General Statutes § 17a-503 (d) provides: ‘‘Any clinical social worker
licensed under chapter 383b or advanced practice registered nurse licensed
under chapter 378 who (1) has received a minimum of eight hours of special-
ized training in the conduct of direct evaluations as a member of (A) any
mobile crisis team, jail diversion program, crisis intervention team, advanced
supervision and intervention support team, or assertive case management
program operated by or under contract with the Department of Mental
Health and Addiction Services, or (B) a community support program certified
by the Department of Mental Health and Addiction Services, and (2) based
upon the direct evaluation of a person, has reasonable cause to believe that
such person has psychiatric disabilities and is dangerous to himself or herself
or others or gravely disabled, and in need of immediate care and treatment,
may issue an emergency certificate in writing that authorizes and directs
that such person be taken to a general hospital for purposes of a medical
examination. The person shall be examined within twenty-four hours and
shall not be held for more than seventy-two hours unless committed under
section 17a-502. The Commissioner of Mental Health and Addiction Services
shall collect and maintain statistical and demographic information pertaining
to emergency certificates issued under this subsection.’’
11
In the General Statutes, the term ‘‘custody’’ has a variety of different
uses, many of which are not criminal custody or criminal arrests. See, e.g.,
General Statutes §§ 15-140c (f) (4), 22-329a and 46b-1.
12
Because we conclude that this claim is meritless, we need not discuss
the parties’ arguments regarding whether the trial court improperly declined
to consider it, as the plaintiffs contend. The defendant argues that the
trial court was not required to consider the transportation policy argument
because it was not raised in a timely manner or briefed adequately.