Do Arkansas police officers have authority to take someone into custody for mental health screening when their county has no crisis stabilization unit?

Plain-English summary

Representative Dwight Tosh asked whether Arkansas police could take someone into custody for mental-health screening under the Behavioral Health Crisis Intervention Protocol Act of 2017, known as Act 423, where no designated crisis stabilization unit existed. He also asked about holding a person in jail while awaiting screening and about taking into custody a person who had committed no crime but was disorderly, suicidal, self-harming, or refusing to leave a business.

The Attorney General answered the Act 423 question. That law permits a participating crisis-intervention-team officer to transport an eligible person to a designated crisis stabilization unit under a collaborative protocol. Without such a unit, the Act's protocol supplies no custody authority. The Attorney General added that separate emergency laws may still authorize transport. As one example, she cited Ark. Code Ann. § 20-47-210, which addresses transport when a person is dangerous to self or others because of mental illness, immediate confinement appears necessary, and no other transportation is available.

The Attorney General declined to decide the jail and particular-person questions in the abstract. Whether any given custody or detention is lawful depends on its facts and circumstances. The example of § 20-47-210 was not a ruling that an officer could take the person described in Question 3 into custody.

Currency note

This opinion was issued in 2019 and applied the statutes then in force. Verify current Arkansas law and local protocols before using it for a present incident.

Common questions

Does the 2017 protocol authorize transport when there is no designated crisis stabilization unit? No. The Attorney General said the Act's custody authority depends on a crisis intervention protocol that includes a designated unit. Without one, there can be no custodial detention under that Act.

Does the absence of a unit settle every question about police transport? No. The opinion says separate emergency procedures may apply and gives § 20-47-210 as an example. That statute addresses an immediate confinement situation involving danger from mental illness and no other available transport.

Did the Attorney General decide what officers may do with the suicidal person in Question 3? No. She expressly declined to answer that hypothetical. The opinion does not determine whether the conditions of § 20-47-210, or another law, were met for that person.

May officers hold someone in jail while a mental-health facility screens them? The Attorney General did not answer in the abstract. She said the legality of custody or detention depends on the surrounding facts and circumstances.

Who could use Act 423's protocol where a unit was designated? The opinion quotes the Act's authority for a crisis-intervention-team officer employed by an agency participating in the collaborative agreement. It concerns transport to the designated crisis stabilization unit when the officer determines that an individual with a behavioral health impairment demonstrates a substantial likelihood of bodily harm to self or others.

Background and statutory framework

Act 423, codified at Ark. Code Ann. § 20-47-801 et seq., provides a collaborative crisis intervention protocol with a designated unit. Ark. Code Ann. § 20-47-201 et seq. contains separate emergency procedures. The opinion cited § 20-47-210 under those separate procedures to illustrate why the absence of an Act 423 unit does not necessarily end the transport inquiry. It did not decide the request's fact-dependent jail or noncriminal-custody scenarios.

Citations

• Ark. Code Ann. § 20-47-801 et seq.
• Ark. Code Ann. § 20-47-808(a)(1)
• Ark. Code Ann. § 20-47-201 et seq.
• Ark. Code Ann. § 20-47-210(a)(1)
• Act 423 of 2017

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE

Opinion No. 2018-077

January 3, 2019

The Honorable Dwight Tosh
State Representative
4513 Butler Road
Jonesboro, AR 72404-8829

Dear Representative Tosh:

This is in response to your request for an opinion on the following questions:

1) Do police officers have the legal authority to take someone into custody and transport them for a mental health screening pursuant to Ark. Code Ann. [§ 20-47-801 et seq.], if there is no mental health crisis unit, as defined by the statutes, in place to take them for assessment? 1

2) If so, and only the mental health facilities require a screening before acceptance, may they be held at a jail or detention center until such screening occurs by the mental health facility?

3) If not, what authority does a police officer have to take a citizen, who has committed no crime, but is disorderly, expressing thoughts of suicide, doing self-harm or refusing to leave a business, into custody for a mental health evaluation?

1
Your question as drafted cited Ark. Code Ann. § 20-47-811, an immunity provision that is not directly on point with respect to your question.

32'3 CE NTER ST REET, SUITE 200 · LI TTL E Ro ' K, ARKANSAS 72201 TEL EPH ONE (501) 682-2007 · FAX (501) 682-8084 ARKAN SASAG.GOV

The Honorable Dwight Tosh
State Representative
Opinion No. 2018-077
Page 2

RESPONSE

The statute cited in your first question is part of the Behavioral Health Crisis Intervention Protocol Act of 2017, and I gather the term "mental health crisis unit" refers to a "crisis stabilization unit" as defined by that Act. If there is no such unit in place, this 2017 law would not provide authority for a police officer to take someone into custody. However, there is other statutory authority for the transportation of persons in crisis by law enforcement. And this authority does not depend upon a crisis stabilization unit being in place. Your second and third questions cannot be satisfactorily addressed in the hypothetical. Whether an individual has been lawfully taken into custody depends on all the surrounding facts and circumstances in a given instance.

DISCUSSION

Question 1: Do police officers have the legal authority to take someone into custody and transport them for a mental health screening pursuant to Ark. Code Ann.[§ 20-47-801 et. seq.], if there is no mental health crisis unit, as defined by the statutes, in place to take them for assessment?

I gather your use of the term "mental health crisis unit" here refers to a "crisis stabilization unit" as defined by the Behavioral Health Crisis Intervention Protocol Act of 2017. 2 This body of law-which I will refer to as "Act 423" 3-creates a particular protocol to address individuals with behavioral health or mental impairments. 4 The protocol provides for the designation of a crisis stabilization unit under "collaborative agreements." 5 When the protocol is initiated, a law-

2
Ark. Code Ann. § 20-47-801 et seq. (Supp. 2017). Section 20-47-803(8) defines a "crisis stabilization unit" as "a public or private facility operated or used by a behavioral health crisis team in the administration of a behavioral health crisis intervention protocol."

3
This law was enacted by Act 423 of 2017.

4
See Ark. Code Ann. § 20-47-802(a) (stating that Act 423 is intended "to create an established protocol for crisis intervention ... to address the methods and procedures to be used by law enforcement agencies and jail personnel, the court system, hospitals, healthcare providers, and mental health professionals in engaging with an individual who demonstrates substantial likelihood of committing bodily harm against himself or herself, or against another person, and who is an individual with a ... behavioral health or mental impairment.").

5
Ark. Code Ann. § 20-47-806(a) ("A proposed crisis intervention protocol and crisis intervention team shall include necessary collaborative agreements among the participating hospitals,

The Honorable Dwight Tosh
State Representative
Opinion No. 2018-077
Page 3

enforcement officer who is employed by an agency that participates in the agreement "may take [an] individual into custody for the purpose of transporting the individual to the designated crisis stabilization unit":

If a crisis intervention team officer determines that an individual with a behavioral health impairment demonstrates a substantial likelihood of committing bodily harm to himself or herself or to another person, the crisis intervention team officer may take the individual into custody for the purpose of transporting the individual to the designated crisis stabilization unit serving the crisis stabilization unit catchment area in which the officer has jurisdiction. 6

I take your question to be asking about police officers who serve a law- enforcement agency that does not participate in a collaborative agreement designating a crisis stabilization unit pursuant to Act 423. With this understanding of your question, I believe it is clear that Act 423 would provide no authority for the officers to take someone into custody. Act 423 provides for "custodial detention or treatment" as part of a "crisis intervention protocol" initiated under that Act. 7 The protocol by definition includes "the establishment of a crisis stabilization unit. " 8 If there is no crisis stabilization unit in place, there plainly can be no "custodial detention" pursuant to Act 423.

community health centers, mental health service providers, participating law enforcement agencies, and the facility that is designated as the crisis stabilization unit for the crisis stabilization unit catchment area.").

6
Ark. Code Ann. § 20-47-808(a)(l) (emphasis added). See also Ark. Code Ann. § 20-47-805(b) (regarding services provided by a crisis stabilization unit for "individuals in the custody of a crisis intervention team officer .... "). 7 Ark. Code Ann. § 20-4 7-804(b ).

8
Ark. Code Ann. § 20-47-803(5) (defining "crisis intervention protocol" as "the implementation of established methods and procedures, including the creation of a behavioral health crisis intervention team and establishment of a crisis stabilization unit, to address a criminal or otherwise dangerous act by a member of the public who is an individual with a behavioral health impairment in a manner that results in the management of the individual's behavioral health impairment to the point that the individual is substantially less likely to commit a criminal or otherwise dangerous act.") (emphasis added).

The Honorable Dwight Tosh
State Representative
Opinion No. 2018-077
Page 4

But the absence of a designated cns1s stabilization unit is not necessarily determinative of a police officer's authority to transport someone to a mental health facility. There are procedures separate from Act 423 for immediate confinement and evaluation of persons in crisis in emergency situations. 9 And under certain circumstances, law-enforcement agencies are responsible for transportation. For instance, pursuant to Ark. Code Ann. § 20-47-210, whenever a person "is a danger to himself or others" as a result of a mental illness, and "immediate confinement appears necessary," a law-enforcement officer may take the person to a hospital or receiving facility "[i]f no other means of transporting the individual is available. " 10 Indeed, it is the "responsibility" of the law- enforcement agency under those circumstances to transport the individual to a 11 mental health facility.

Question 2: If so, and only the mental !tea/tit facilities require a screening before acceptance, may they be held at a jail or detention center until such screening occurs by the mental !tea/tit facility?

Question 3: If not, what authority does a police officer have to take a citizen, who has committed no crime, but is disorderly, expressing tltougltts of suicide, doing self-harm or refusing to leave a business, into custody for a mental !tea/tit evaluation?

These questions cannot be satisfactorily addressed in the hypothetical. They call for speculation, and they are consequently outside the scope of an opinion from this office. Whether an individual has been lawfully taken into custody or detained by law enforcement depends on all of the surrounding facts and circumstances in a given instance.

Sincerely,

~~
LESLIE RUTLEDGE
Attorney General

9
See Ark. Code Ann.§ 20-47-201 et seq. (Repl. 2014 and Supp. 2017).

10
Ark . Code Ann . § 20-47-210(a)(I) (Repl. 2014).

II Id.