New York plan for forced 'removal' of mentally ill tests limits of the law

New York Police Department officers ask a homeless to leave the subway station in New York, U.S., February 19, 2022. REUTERS/Eduardo Munoz

(Reuters) - New York City Mayor Eric Adams’ plan to give law enforcement more power to forcibly hospitalize people struggling with mental illness and homelessness has been widely criticized for its reliance on government coercion and its susceptibility to police abuse.

Adams announced on Nov. 29 that he ordered several agencies to update their policies and undertake training to begin the “removal” of people who appear mentally ill and display “an inability to meet basic living needs, even when no recent dangerous act has been observed.” The effort includes the New York Police Department and Metropolitan Transit Authority police.

The program is an effort to fulfill the tough-on-crime mayor’s promises to address “subway crimes,” which Adams said in October were “driven by people with mental health issues.”

But the plan relies on a dubious legal strategy nearly identical to the one in the city 35 years ago, and it seems destined to spur legal action. What's more, existing studies suggest the plan is unlikely to achieve its stated goals.

The mayor's Nov. 29 announcement of the policy garnered much publicity, and he later commented that he was leading the city into “uncharted waters where others were afraid to go," the New York Times reported Dec. 2. But the order actually implements guidance first issued in February by the state Office of Mental Health.

Kate Smart, a spokeswoman for the mayor, told me the program complements proposals to boost investment in housing and mental health. She said Adams' directive simply builds on existing policy and doesn’t actually expand police power.

James Plastiras, a spokesperson for the Office of Mental Health, told me the memo is interpretive guidance on existing law rather than a new policy or program.

Regardless of whether the new policy is described as "uncharted" or one that builds on existing policy, Adams and the state's interpretation of New York’s mental hygiene laws gives police unprecedented power, without the necessary training. On balance, the policy is novel in that police now can unilaterally identify mental illness and detain people who don't present a threat – the aspect most heavily criticized by mental health and other advocates.

The New York City Police Department did not immediately respond to a request for comment.

Harvey Rosenthal, CEO of the New York Association of Psychiatric Rehabilitation Services, said his organization believes the policy is unconstitutional.

“Coercion is a failed, traumatizing strategy,” Rosenthal said. “We know what works, and we’ve known for a while what it takes to engage even the most distressed individuals, but we haven’t put that on the street.”

Rosenthal's group has called for more voluntary outreach and community-based programs, like crisis respite centers, for example.

New York’s mental hygiene law, as it's written, allows police to take someone into custody for psychiatric evaluation if the person “appears" mentally ill and is “conducting himself" in a manner likely to "result in serious harm to the person or others.”

That’s generally been interpreted as a requirement that people present an imminent and overt physical risk to themselves or others. Adams' announcement last week says that “an inability to meet basic living needs," on its own, is equivalent to conduct likely to result in serious harm.

The state and Adams' interpretation relies on a legal argument that (seemingly) mentally unwell persons' apparent inability to meet their own basic needs, which may be due to extreme poverty, much of the time, is likely to result in harm to themselves. That’s a broad standard that includes dressing improperly for cold weather, for example.

The Office of Mental Health’s February memo framed the imminent risk requirement – which one might otherwise describe as prevailing law or statutory text – as a “misconception.”

Adams’ directive concurs with that interpretation, and his administration has similarly described the imminent danger legal standard as a “persistent myth."

The statute, however, includes an explicit definition of what's considered conduct – behavior – likely to cause harm, including threats of self-harm, and “other conduct” demonstrating the person is dangerous to himself. It doesn't clearly contemplate simple carelessness, or lack of access.

New York City mayors over the years have intermittently announced programs to forcibly remove mentally ill people from the streets for at least the past four decades. (Advocates and experts in mental health and civil rights now largely reject efforts at compelled treatment, even when limited to trained healthcare professionals.)

Mayor Ed Koch’s 1987 strategy extended the interpretation of self-harm to an inability to provide for oneself – what that administration creatively termed “passive self-neglect,” according to reports by New York magazine in May 1988 and the ABA Journal in Jan. 2017.

The first case in Koch’s program produced a lawsuit against the city by Joyce Brown, better known as Billie Boggs, the American Bar Association Journal reported. The city won a narrow, partial victory, but Boggs won the right not to be forcibly medicated, and officials released her.

Her release was later invoked by President Ronald Reagan as an example of the strength of American civil rights, in contrast to the Soviet Union, the ABA Journal reported.

The city's plan is susceptible to other legal attacks, as well.

In 2016, a state judge ordered release of a man involuntarily committed as part of former Mayor Bill de Blasio’s “NYC Safe” program, which targeted the same population. The judge held that the man’s constitutional due process rights were violated and that involuntary commitment requires establishing mental illness and dangerousness.

The city also hasn't addressed obvious arguments that the policy might violate the Americans with Disabilities Act.

Joe Rappaport, executive director of the Brooklyn Center for Independence of the Disabled, told me disability rights groups believe the policies amount to illegal discrimination. The U.S. Supreme Court held in a landmark 1999 decision that denying mentally ill people the right to live in the community rather than in institutions –- unjustified isolation -- can constitute unlawful disability discrimination.

New York's new approach is "not what you would do to solve a systemic problem," Rappaport said. "This is the kind of response you come up with if your goal is to appear like a tough guy."

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Hassan Kanu writes about access to justice, race, and equality under law. Kanu, who was born in Sierra Leone and grew up in Silver Spring, Maryland, worked in public interest law after graduating from Duke University School of Law. After that, he spent five years reporting on mostly employment law. He lives in Washington, D.C. Reach Kanu at hassan.kanu@thomsonreuters.com