By Eleanor Khirallah

Under the guise of addressing homelessness and mental illness in New York City, on Tuesday, November 28, 2022, Mayor Eric Adams announced a new directive that allows the involuntary hospitalization of people suspected to be mentally ill on the street or subway. The city directive authorizes peace officers and police officers to take “people who appear[] to be mentally ill” and who are “conducting themselves in a manner likely to result in serious harm to [themselves] or others” into custody “for the purpose of a psychiatric evaluation.” 

The implications are  not entirely clear, though the directive specifies that “serious untreated physical injury, unawareness or delusional misapprehension of surroundings, or delusional misapprehension of physical condition or health” are grounds for forcible hospitalization. Furthermore, no dangerous act must be observed for officers to have the authority to hospitalize people. 

The directive describes the process as the “removal of a person who appears to be mentally ill and displays an inability to meet basic living needs,” and aims to give the city’s law enforcement, mobile crisis teams, and emergency responders guidance on evaluating and taking individuals who appear to be exhibiting mental health symptoms to hospitals for further evaluations. These workers will apparently be trained on assisting people in a mental health crisis. 

Adams himself admitted that the legality of the directive is questionable, stating that “case law does not provide extensive guidance regarding removals for mental health evaluations based on short interactions in the field.”  However, in the directive, Adams relies on an expanded interpretation of Kendra’s Law, a NY State Law that “allows court-ordered outpatient mental health treatment for people deemed dangerous to themselves or others.” He says that New York law “explicitly states that it is appropriate to use this process if a person does not seem to be addressing their own basic needs.” His examples of people who may “removed” included, “[t]he man standing all day on the street across from the building he was evicted from 25 years ago waiting to be let in; the shadow boxer on the street corner in Midtown, mumbling to himself as he jabs at an invisible adversary; [and] the unresponsive man unable to get off the train at the end of the line without assistance from our mobile crisis team.” 

Once taken to the hospital, individuals would undergo a psychiatric evaluation “for the purpose of admission,” and then may be forced to take medicine, undergo inpatient supervised psychiatric treatment, or begin outpatient treatment, though it’s not clear if this is an avenue for long-term care and supportive services. The directive is silent as to how long someone may be hospitalized, or any recourse to challenge the hospitalization. New York case law on the underlying mental health laws around involuntary hospitalizations do prescribe a process for requesting a hearing to challenge the hospitalization, and do not allow indefinite confinement, though it is not entirely clear on its face if the directive follows this authority.  

The policy likely will face a wave of litigation – on top of already significant pushback – though it’s not clear how successful these efforts will be. In O’Connor v. Donaldson (1978), the Supreme Court held that “a finding of ‘mental illness’ alone cannot justify a State’s locking a person up against his will and keeping him indefinitely in simple custodial confinement.” . In that same case, the court said that a State cannot confine a “nondangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends.”  Because this directive allows the involuntary hospitalization of people who haven’t committed any dangerous act, it is inconsistent with this ruling. However, Elyn Saks, a law, psychology, and psychiatry professor at the University of Southern California, told the Washington Post that the directive may be constitutional, stating, “homelessness is used as the standard for danger posed to the person.” Ultimately, it’s not clear where courts will land, though often state hospitalization laws are “elastic enough to permit involuntary holds that could legally stretch into weeks.”

Forced hospitalization and the increase in the state’s ability to police, remove, and involuntarily detain individuals believed to be suffering from mental illness – and often unhoused and/or in extreme poverty – may reinforce inequities and alienate the most marginalized individuals from care. The process often looks like an arrest, with people being accosted by the police and handcuffed; however, the due process rights thereafter are significantly different.For example, one individual was hospitalized for a month and never had the opportunity to see or speak to a lawyer for her release. Once individuals are forcibly taken to the hospital, it’s not even clear that there will be enough hospital beds to meet the need, begging the question of where these individuals will end up. 

It is also likely that this directive will not be enforced equally. As of November 30, 2022, 1,641 individuals in New York City alone were under an active court order under Kendra’s Law. About 44% of these people are Black, and about 32% are Hispanic. A report in 2005, about six years after the law’s passage, demonstrated that Black people were “nearly five times as likely as white[] [people] to be the subject of orders of treatment stemming from Kendra’s law.” Because Adams’ directive allows law enforcement to approach and detain people, it’s likely that it will follow Kendra’s Law’s trend of disproportionately targeting people of color. 

Notably, Eric Adams has aggressively evicted unhoused people from encampments, failed to substantively increase access to affordable housing, proposed a $615 million dollar cut to the Department of Homeless Services, and increased the budget of the NYPD to target unhoused people on subways and to perform sweeps of encampments. Despite all of these actions that demonstrate a lack of regard for the unhoused and/or mentally ill population of New York City, Eric Adams now claims that his directive is a response to a “moral obligation” to help these people. As NYCLU Executive Director Donna Lieberman described it, “With no real plan for housing, services, or supports, the administration is choosing handcuffs and coercion.” 

**Eleanor Khirallah is the Managing and Research Editor for the Minnesota Journal of Law and Inequality.