Jesse: On November 29th, 2022, NYC Mayor Eric Adams made an announcement. He declared, “...an immediate shift in how we interpret our obligation to those in need…”. And this immediate shift involves encouraging police officers to target a wider range of people for involuntary hospitalizations, or as the mayor's administration has labeled them, “Mental Health Involuntary Removals”.
It has been over 20 years since the last time I was committed and I am still struggling to understand how to navigate society without being overwhelmed by the crippling fear that I might be committed again. But with routine, with familiarity, I become accustomed to the environment around me. I feel safer when I know how the system that I am surrounded by works. But I was not prepared to have all of that disrupted and ripped apart by a press conference.
I don't know how to adjust to this, I don't know how to feel safe in this city anymore, but I have discovered that there are people who are pushing back, people who have been fighting these sorts of policies for a long time. Pushing back with cases like Baerga v. City of New York, a lawsuit that challenges the entire framework of a system that uses police officers as the primary first response to a person believed to be experiencing a mental health crisis. And to learn more about this case, and the ongoing struggle to protect the rights of all people forced into the commitment process, I spoke with Marinda Van Dalen.
Marinda Van Dalen: Hi, I'm Marinda Van Dalen, I'm a staff attorney with New York Lawyers for the Public Interest, I work on disability justice and health justice issues. New York lawyers and a coalition of other law firms and disability rights organizations, and other advocates for people with mental disabilities, we brought litigation last year against the city of New York and the police department because the city's policy of police driven response to people experiencing mental health crises violates the Americans with Disabilities Act and other civil rights statutes. As well as the New York State and the United States Constitution.
Jesse: I think for some people the idea that these types of forced interventions involving police, the idea that that might be unconstitutional, might be shocking. Because as a culture we have become just…we've inherited this idea for a long time. People have become very accustomed to it. What rights is this sort of process violating?
Marinda Van Dalen: People with disabilities, including people with mental disabilities, have constitutional rights. They have the right to be safe in their home. They have the right to bodily integrity. They have the right to be free of excessive force. They have the right to protections from civil rights laws, including Americans with Disabilities Act. Just as a person who has a physical disability is protected by the Americans with Disabilities Act, and should be able to access city services and receive city services like other New Yorkers and other people living in communities across the country, so should people with mental disabilities.
Jesse: And why is it important to be focusing on interactions between police officers and people perceived to have a serious mental illness?
Marinda Van Dalen: Police officers should not be first responders when someone's experiencing a mental health crisis. When the police arrive, they escalate the situation.
And what people need in those circumstances is someone who can help de-escalate the situation. When the police arrive it's frequently with a fleet of cars, with the sirens blaring and the lights flashing. They make demands, they scream at people, they tell them what to do, and that is not an effective way to help somebody who's in crisis.
Tragically, we've seen all too frequently that in fact, the police in those circumstances use excessive force and tragically it results in fatalities and police killings of people experiencing mental health crises. And the mayor's new policy, the standard that they have is that the officer determines somebody is mentally ill and that they're unable to care for their basic needs. But really those two, supposed two standards, they collapse into one, right? Because if an officer determines someone's unable to take care of their basic needs, well what explanation is that officer gonna have other than that person has mental illness? And if there's a determination the person has mental illness, well then by definition, aren't they unable to take care of their basic human needs?
Really a gross oversimplification of a complex problem.
Jesse: They specifically identify an apparent inability to meet basic needs for clothing, food, shelter, or healthcare. That's just describing poverty essentially. And if by witnessing those, any of those signs, an officer believes that it must be connected to some, I guess, emotional disturbance. What is it, emotional…
Marinda Van Dalen: Well, the New York City Patrol Guide, Police Department Patrol guide, designates people as EDPs, emotionally disturbed persons. Which of course the community finds horribly offensive.
Jesse: The following are excerpts from an NYPD patrol guide:
EMOTIONALLY DISTURBED PERSON (EDP) - A person who appears to be mentally ill or temporarily deranged and is conducting himself in a manner which a police officer reasonably believes is likely to result in serious injury to himself or others.
Upon arrival at scene, assess situation as to threat of immediate serious physical injury to EDP, other persons present, or members of the service. Take cover, utilize protective shield if available and request additional personnel, if necessary.
a. If emotionally disturbed person’s actions constitute immediate threat of serious physical injury or death to himself or others: (1) Take reasonable measures to terminate or prevent such behavior. Deadly physical force will be used only as a last resort to protect the life of persons or officers present.
These are the policies brought into a situation when police arrive, and police presence is essentially woven into the structure of mental health laws. Because, generally speaking, mental health laws can be broken into three different sections:
Apprehension for evaluation.
Evaluation.
And prolonged detention in a psychiatric facility…
Beth Haroules: If I could make a friendly amendment to your consideration of commitments, I would also include outpatient commitment.
Jesse: This is Beth Haroules.
Beth Haroules: So I'm Beth Haroules, I'm a senior staff attorney at the New York Civil Liberties Union, and we're the New York State affiliate of the American Civil Liberties Union. My external title is Director of Disability Justice Litigation. My docket is probably largely comprised of disability adjacent work. So it runs the gamut from acting as lead counsel in the Willowbrook case, which has been in our office since before I was born, but I'm the most recent attorney on that case. And we litigated Kendra's law in New York State when it was first enacted back in the late nineties.
And we have at the NYCLU a new podcast, and it's Rights This Way. We have a lot of very interesting staff folks who have been engaging in discussions that are really well worth the time.
Jesse: So, generally speaking, mental health laws can be divided into four different sections.
Apprehension for evaluation.
Evaluation.
Prolonged detention in a psychiatric facility.
And outpatient commitments, which in New York State were created by Kendra's Law.
There are proposals from the Adams’ administration that touch on, at least to some degree, all four of those different sections. But the area that has seemed to receive the most focus is that first section, the apprehension for evaluation, which in the proposals is at times referred to as a 9.41. So I asked Beth, what is a 9.41?
Beth Haroules: 9.41 is just shorthand for a mental hygiene arrest under the New York State Article IX Mental Hygiene Law. So it is the statutory hook that the NYPD will use when they interact with a person and take them off the street, or when they respond to a crisis call to 911, or now 988. For Kendra's Law it's a 9.60 order. They have a little bit less ability to make any decisions under 9.60 because you already have a court order, as opposed to the 9.41, which allows them to make an independent assessment. Because you're asking law enforcement, who are on the street, whose fundamental role is basically command and control and dealing with public disturbances and public safety issues, to make what is really a public health determination. That a person is presenting as if they have a mental illness, which oftentimes could be a substance issue that's manifesting or could be a health issue. Somebody who's in a diabetic coma, or in diabetic shock, insulin shock, could be presenting as if they are not fully capacitated. You also have developmental disabilities that will manifest as a potential mental illness issue. And then you have a secondary characteristic that needs to be met and evaluated by a law enforcement person, which is that the person presents a danger to self or others.
But you're asking law enforcement already to make this determination that the person is mentally ill and that they're a danger. Someone else will make that decision about what happens next. But a mental hygiene arrest, which is what happens here, you are equating the ability of law enforcement to arrest a person, detain them, and forcibly transport them to a psychiatric facility or to a hospital, is effectively equating a disability with a crime. Because you're asking law enforcement to make those determinations and carry out that particular role. I mean, you know, we could get into probable cause for, you know, arrests and the like. The whole concept of probable cause and arrest when you're talking about a public health issue, a medical issue, is just so fundamentally foreign, but it's where we've gone in terms of a system that perverts and stigmatizes people with mental health issues.
Jesse: If someone is being apprehended under a mental health arrest, would that police officer have the right to search their car? Search their bag? Search their belongin…
Beth Haroules: Yeah.
Jesse: So usually you couldn't be searched without some sort of, something, uh…
Beth Haroules: Probable cause, right? There's something about here that's happening. It also, um, police have qualified immunity when they sweep a person up that way. So if they in fact engage in some sort of use of force, qualified immunity law is really bad, right? You know, what you do to folks that they have decided aren't entitled to dignity and humanity is, is really pretty much an obscenity.
Jesse: Interpreting the rights of people being pushed into an involuntary hospitalization is like a game of telephone. There is a federal constitution, there is a state constitution, there is a state office of mental health, and then you have the mayor of New York City and a press conference. Every step in this process involves one level interpreting something said by another, and those interpretations, and reinterpretations, can get murky. And then you have a press conference where in connection to mental health arrests, the mayor provides some examples. One example is, “The shadow boxer on the street corner in Midtown, mumbling to himself as he jabs at an invisible adversary.” And, “The man standing all day on the street across from the building he was evicted from 25 years ago, waiting to be let in.”
And I don't understand why either of those situations would be connected to a mental health arrest, because there is nothing in either of those examples that suggests to me that there's a substantial threat of harm.
Beth Haroules: Yeah, exactly, and where's the risk? It makes somebody uncomfortable, maybe. You know, the shadow boxer, how many people have you seen doing, you know, like whatever that movie Rocky was, or they're running and they're shadow boxing? You know, is that Tai Chi? You know, is somebody doing Tai Chi in Chinatown at risk of being swept up because it looks like…what are the ingredients? Right? That lead to this determination, and I think you're exactly right with telephone. You have the constitution, you have a federal constitution that guarantees freedom from unlawful detention, deprivation of liberty. You have a New York state constitution that provides very similarly, then you have case law that determines all of that and sets out sort of, well, what are the ingredients. What's the constellation of presentation that a person needs to demonstrate that gets them into the lottery of rights deprivation, right? And then you have guidance from the New York State Office of Mental Health, which is supposed to provide assistance to the field when it comes to state law, constitutional law, federal case law, and other guidance and directives from New York State. And then you have a press conference, a press release. So, you know, the ultimate telephone breakage in the line comes with the fact that you're creating and following alleged policy directive by way of a press conference without any involvement of impacted folks.
You know, there's a saying in the disability community, right? Nothing about us without us. There has been no involvement of people who are impacted, people with mental health issues, people who are unhoused, people with substance issues, you know, all the people who are going to be caught up in this trauma and potential use of force. That's ultimately the concern that most people with mental illness, when they have a policing engagement, do not end up in a good place, right? You're leaving out all of the fundamental stakeholders and you're sort of moving away from the humanity of the folks who are impacted to this command and control model, this policing model.
And I heard at the press conference, Traditional NYPD lack of concern and derogatory statements about EDPs, which is what they call people with mental health issues, an emotionally disturbed person. But when they call them an EDP they've dehumanized these folks, you know, from the get-go. It's not well-informed, it doesn't comply with Olmstead, right? Which is least restrictive intervention that's appropriate to the circumstances. And it doesn't do anything to actually, if a person does have a mental illness and a person is unable to take care of self, it doesn't engender the level of trust that you need to set that person on the road to recovery.
Jesse: Can you briefly explain what Olmsted is?
Beth Haroules: So, Olmsted is a Supreme Court case from the late nineties where the Supreme Court said for the very first time that a person has a fundamental right to live free of institutional settings, right? You have the right to live in the least restrictive setting that's most appropriate to your needs. It contemplates a very person-centered kind of approach, right? So a person with some supports and services can live in the community, safely for themselves, safely for others, all the way up to a person who might require some sort of intensive inpatient kind of stabilization for a short period. Because the default is away from long-term institutionalization.
It's before Kendra Law, obviously, soI think there are questions about how that ties into it. But Olmsted, when you look at a policing response to a person in mental health crisis, actual or perceived, danger to self for others, actual or perceived, you are still obligated to engage in the least restrictive response for that person. So that might in fact be a peer who comes to talk to the person, not police taking a person, sticking them in a patrol car or ambulance and off to a psych setting where somebody clinically can make a decision. You know, meeting with people, who's their support? What's the circle of support? Do they have religious providers? Are they part of any communities? And the like.
Jesse: When viewed individually these proposals can be concerning, and dangerous. But if we take a step back and view this not as a series of isolated statements and proposals, but as the scaffolding for a system, it can become horrific. The Office of Mental Health releases new guidance suggesting that substantial threat of harm encompasses:
(i) the person's refusal or inability to meet his or her essential need for food, shelter, clothing or health care, or (ii) the person's history of dangerous conduct associated with noncompliance with mental health treatment programs.
The mayor then publicly advises the NYPD to have complete confidence that they should be initiating more mental health arrests based on these revised standards. And when a person is apprehended by law enforcement, and involuntarily detained for evaluation, one of the mayor's policy proposals requires clinicians to not simply evaluate that person in that moment, but to also consider what police and first responders say about this person. And one of the justifications given for this proposal is,
“A patient’s symptoms may be tenuously controlled by the medication provided in the hospital such that they are no longer exhibiting the alarming behavior that led to their removal and do not appear at risk of causing or suffering harm imminently. But this does not mean the person is ready for discharge.”
These proposals are essentially the weaponization of stigma and bias that will condemn people to be perceived not as who they are now, but as whoever, or whatever, someone else may have believed them to be at any other point in their life. And once a person is forced into a psychiatric facility, there is a proposal requiring that all people who are detained inpatient be automatically evaluated for an involuntary outpatient commitment through Kendra's Law. Which connects to another proposal suggesting that city health officials should be given access to people's personal medical information so that those officials can more effectively put that person on an involuntary outpatient commitment. So if we look beyond these individual statements, if we look at the scaffolding of this proposed system. There are broadened standards which will lead to more mental health arrests and more involuntary hospitalizations, which may result in currently protected medical records being shared with city officials. And a person's history of being involuntarily hospitalized, even once, makes them forever eligible to be pulled back into that broadened net of mental health arrests, starting the process all over again.
Beth Haroules: Yes, what we see coming for years from the Supreme Court is past behavior becomes the prediction of future dangerousness. So anything in your record that anyone can find that you might self admit, right? Because part of treatment, right? Okay, I have been involuntarily committed, I have had X number of trauma inducing events that need to be taken into consideration when I'm trying to work through my life. All of that self-reporting, you don't have a Fifth Amendment right to non non-incrimination, part of your medical record.
And right now in New York City, when a 911 call comes in, NYPD has sort of coded addresses. They know if there's an EDP that they've responded to previously. When you have congregate care facilities, low barrier housing, supportive housing, that's coded already as a potential EDP. So they already come in locked and loaded to expect that there's gonna be some sort of interaction.So, you just sort of sit there and you think, your past history, it follows you everywhere because we now have electronic health records and you know, there's this sort of law enforcement ability to breach and then make determination based on people's medical information and past. It is very scaring because you know, you want people to be able to address their past in order to understand where their psyche comes from and how to move forward.
At the end of the day too, don't forget, the other piece of this is that the person who's gonna be picked up under this initiative, if they cannot be connected to services, even if they get a Kendra’s order, they cannot be discharged. Because what the directive has said is that there has to be a safe discharge plan, and if you cannot connect this person to services, because we know they don't exist, they cannot be released. And then the question is, where does the person go? We litigated that down in Kings County, gross overcrowding, people dying in the emergency room, awful things happening in the inpatient settings. People being held beyond the time that they were legally permitted to be held and not given anything. And all of the dedication of resources go to maintaining that structure of control and confinement, without even getting into a community based service delivery system. You may need to have some acute inpatient psychiatric beds, right? Somebody at some point might require some sort of involuntary treatment, maybe, I don't know, but maybe, but you know, let's assume that that's the case. But that is such a vanishingly small number, right? So the resources that are dedicated to maintaining that apparatus are just so disproportionate to the needs of everyone who are out in the community. So you have, you know, again, a concentration of resources to confine and control a very small proportion of people that at the end of the day, a law enforcement person has made that original determination, that this is the trajectory of their life. And they're bringing somebody into a system that traps them in that, but also takes away resources from a system that is already totally underfunded. And it also perpetuates this sort of cycle of, you know, involuntary medication. You fall off the meds, we bring you back, we confine you, we involuntarily treat you, we send you out, and now you're back. Because involuntary medication just doesn't work, you know, it really does not work. There are side effects, there are really bad outcomes. There are so many other ways to address a person's situation other than the magic bullet, right? That's what everyone wants because it makes it easy. We're losing a lot here because the protocols that are in place, even if you comply with due process protections, really are putting you into a system that doesn't really work and doesn't address people's needs, or society's needs, right?
Jesse: As we brought the interview to a close, I asked Beth if there was anything else about these proposals, or about these systems, that is important to know?
Beth Haroules: You know, it is just so disturbing, you know, for everyone. I mean, I see families, I see kids, I see the people, you know? We were doing a lot of outreach to folks during the homeless sweeps and the terror…it’s just dehumanization. The fact that they are human beings, they're our neighbors, and there's an entire apparatus in this city and in this country that really wants people like this to disappear. And it's just, very disturbing, you know, that people don't even pretend anymore that there's a social contract, right? That we have an obligation to everyone. And to hear, you know, at the press conference, sort of the trappings of concern and social contract. You can't just leave a person like this, give them options that respect their individuality, their self-direction, their autonomy, their dignity. Don't pretend to know best for them and cloak it in this verbiage.
Jesse: On November 29th, 2022, NYC Mayor Eric Adams made an announcement and I have not felt safe in this city since. That statement, those policies, have reopened old wounds. Wounds that I have spent decades trying to avoid and I thought if I stayed outside of the system, if I avoided being noticed by it, then I might be safe. But as the rights of people being targeted for commitments continue to be eroded, and as the net that drags people into those systems is cast wider, I realize that I was never really safe. Because no matter what else I do, no matter who I might become, the only thing that this system really sees is someone who is committable.
I don't know what to do about these proposals.
I don't know how to adjust to this.
But for all of those who are about to be caught in this net, to all of those who have been committed before, and to everyone who is about to be committed again.
You are not alone.
You deserve to be seen.
You deserve to be heard.
And no matter what this system says about us we are more than just committable.
Jesse: Committable is produced by Jim McQuaid, Michelle Stockman and me, Jesse Mangan. All music is from the Song Reasonable by Christopher G. Brown.