Halvorsen
Halvorsen v. Baird
Opinion
Concurrence in Part
Rymer, J.
concurring in part and dissenting in part:
I, too, do not like the idea of a person being held without a telephone call, and there *691 are many reasons (as the majority suggests) why it’s a good idea to allow prompt communication. But I do not believe Halvorsen was denied due process just because he couldn’t call his wife for six hours, at least not under the circumstances of this case.
Halvorsen’s wife knew where he was, but Halvorsen wanted to call her so that she could testify that he had not been drinking that evening. 1 However, involuntary civil confinement does not require an adversarial, pre-deprivation hearing, Doe v. Gallinot, 657 F.2d 1017, 1024 (9th Cir.1981), so Halvorsen could not have suffered injury of constitutional dimension on this account. Nor did he have a Sixth Amendment right to counsel to protect by a phone call. And he did not at trial (and does not on appeal) assert a First Amendment violation.
Nevertheless the majority locates a right to telephone access in the due process clause based on cases that have found it unconstitutional to hold incommunicado a criminal defendant — which Halvorsen wasn’t — or an involuntarily committed mental patient — which…
Lead Opinion
Kleinfeld, J.
Opinion by Judge KLEINFELD; Partial Concurrence and Partial Dissent by Judge RYMER.
This case involves several issues relating to brief civil confinement of intoxicated persons.
FACTS
An intruder had been in Mr. Halvorsen’s neighbor’s home, and had fled. The neighbor, Mr. Slack, had called the police. While awaiting their arrival, he and Mr. Halvorsen went outside to look for the intruder. Mr. Slack carried a shotgun in case they encountered him. It was around 11 P.M. on a summer evening.
When the first policeman came, he treated Halvorsen and Slack as the suspects, and did not pursue the intruder. He saw the two men, one (Slack) with a shotgun, and ordered them to drop the gun and get on the ground. The police officer probably drew his gun and pointed it. Slack told the police officer that his wife was the person who had called the police, and the intruder was black (Slack and Halvorsen were white). The officer wanted the weapon down before listening to the argument. Slack did not want his shotgun on the ground, so he walked behind some *683 bushes, left the gun on the hood of his truck, and came back.