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 the Attorney General about police authority to detain someone for mental health screening in counties without a crisis stabilization unit. He framed three questions: did Act 423 of 2017 (the Behavioral Health Crisis Intervention Protocol Act, codified at Ark. Code Ann. § 20-47-801 et seq.) provide that authority where no unit existed; if so, could the person be held at a jail until the screening; and if not, what authority covered a person who has not committed a crime but is disorderly, expressing suicidal thoughts, or refusing to leave a business.

Attorney General Leslie Rutledge answered Question 1 directly: Act 423 does not provide authority to take someone into custody where no crisis stabilization unit has been established under a collaborative agreement. The Act builds its custody authority around a designated unit, and without one, the protocol cannot be initiated. But the AG flagged a separate body of statutory authority, Ark. Code Ann. § 20-47-201 et seq., for immediate confinement and evaluation in emergency situations. In particular, § 20-47-210 obligates a law enforcement officer to transport a person who is a danger to himself or others (because of mental illness) where no other transportation is available. That authority operates independently of Act 423.

Questions 2 and 3 the AG declined as too hypothetical. Whether a particular custody is lawful depends on all the surrounding facts, and the AG cannot opine on hypothetical scenarios.

Currency note

This opinion was issued in 2019. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Arkansas has two parallel statutory regimes for mental-health-related law enforcement custody:

The Behavioral Health Crisis Intervention Protocol Act of 2017 (Act 423): Enacted by Act 423 of 2017 and codified at Ark. Code Ann. § 20-47-801 et seq. The Act establishes a "crisis intervention protocol" that depends on three pieces working together:

• A "crisis stabilization unit" (defined at § 20-47-803(8)): a public or private facility operated or used by a behavioral health crisis team.
• A "crisis intervention team" of trained officers from participating agencies.
• A "collaborative agreement" among hospitals, community health centers, mental health providers, participating law enforcement agencies, and the designated unit (§ 20-47-806(a)).

When the protocol is in place, a "crisis intervention team officer" who determines that an individual demonstrates a substantial likelihood of bodily harm to himself or others "may take the individual into custody for the purpose of transporting the individual to the designated crisis stabilization unit" (§ 20-47-808(a)(1)). Without a designated unit, none of this is available.

The pre-existing emergency commitment statutes: Codified at Ark. Code Ann. § 20-47-201 et seq. These are the older statutes that have long governed immediate confinement of persons in mental health crisis. Section 20-47-210 specifically addresses transport: when a person "is a danger to himself or others" because of mental illness and "immediate confinement appears necessary," a law enforcement officer may, and indeed has the responsibility to, transport the person to a hospital or receiving facility "[i]f no other means of transporting the individual is available."

The two regimes are not redundant. Act 423 creates an organized, multi-agency protocol with a specific destination (the crisis stabilization unit) and trained team officers. Section 20-47-210 is a fallback designed for emergency situations where the more elaborate protocol is unavailable. The Act 423 framework supplements but does not replace the older emergency commitment authority.

Why the AG declined the hypothetical questions

Questions 2 and 3 asked whether someone could be held at a jail pending screening, and what authority allowed custody of a non-criminal who is disorderly or expressing suicidal thoughts. The AG declined to answer in the abstract. The reason is institutional: the lawfulness of any particular custody is fact-driven. It depends on the officer's observations, the person's actual condition, the available facilities, the consent of any third party (such as a business operator who wants the person removed), and the manner of detention. AG opinions cannot meaningfully resolve those fact-bound issues without a specific record. In effect, the AG flagged the existence of § 20-47-210 as the relevant authority and left the application to courts and agencies.

Common questions

What is a "crisis stabilization unit"?

A facility designated under a collaborative agreement among local hospitals, mental health providers, and law enforcement to receive persons in behavioral health crisis. It is not the same as a hospital emergency department, although in practice many regions use existing facilities to satisfy the designation.

What can police do if someone is suicidal but their county has no crisis stabilization unit?

The opinion identifies Ark. Code Ann. § 20-47-210 as the operative authority. Under that section, when a person is a danger to himself or others because of mental illness and immediate confinement appears necessary, a law enforcement officer may transport the person to a hospital or receiving facility if no other means of transportation is available.

Does Act 423 prevent officers from acting under § 20-47-210?

No. The Act 423 framework supplements rather than replaces the existing emergency commitment authority. The opinion was clear that the absence of a crisis stabilization unit "is not necessarily determinative of a police officer's authority to transport someone to a mental health facility."

Can a person be held at a jail pending mental health screening?

The opinion declined to address this in the abstract. As a general matter, jail is not a mental health facility, and prolonged detention in a jail of a person not charged with a crime raises constitutional concerns. The lawfulness depends on the duration, the conditions, and the alternatives.

What is a "crisis intervention team officer"?

Under Act 423, an officer employed by an agency that participates in a collaborative agreement and is part of a designated crisis intervention team. Without a collaborative agreement, no officer in the county can hold this designation under Act 423.

Citations

Ark. Code Ann. §§ 20-47-201 et seq., 20-47-210, 20-47-801 et seq., 20-47-802(a), 20-47-803(5), 20-47-803(8), 20-47-804(b), 20-47-805(b), 20-47-806(a), 20-47-808(a)(1), 20-47-811; 2017 Ark. Acts No. 423.

Source

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

Original opinion text

Opinion No. 2018-077
January 3, 2019
The Honorable Dwight Tosh
State Representative
4513 Butler Road
Jonesboro, AR 72404-8829
Dear Representative Tosh:
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE

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?

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?

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. This body of law, which I will refer to as "Act 423," creates a particular protocol to address individuals with behavioral health or mental impairments. The protocol provides for the designation of a crisis stabilization unit under "collaborative agreements." When the protocol is initiated, a law-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.

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. The protocol by definition includes "the establishment of a crisis stabilization unit." If there is no crisis stabilization unit in place, there plainly can be no "custodial detention" pursuant to Act 423.

But the absence of a designated crisis 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. 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." Indeed, it is the "responsibility" of the law-enforcement agency under those circumstances to transport the individual to a mental health facility.

Question 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?

Question 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?

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