When a Virginia officer is holding someone under a temporary detention order and the person has calmed down, can a family member take over the transport to the mental health facility?

Subject

Whether a law enforcement officer who has taken custody of a person under a Virginia temporary detention order (TDO) must continue to maintain custody until a hospital bed becomes available, or whether transportation responsibility can be transferred to a family member who is willing and able to do so.

Plain-English summary

When a magistrate issues a TDO under Va. Code § 37.2-809, the order names a law enforcement agency to execute it and designates who will transport the person to the temporary detention facility. The default is law enforcement, but § 37.2-810(B) lets the magistrate designate an "alternative transportation provider," which can be a family member, a friend, a community services board representative, a Department of Behavioral Health and Developmental Services contractor, or another trained transportation provider.

Dickenson County Sheriff Fleming wrote with a real-world problem: his deputies often take custody of a person under a TDO when the person is agitated or aggressive, but after several hours the person calms down and no longer needs law-enforcement custody for public safety. Meanwhile, the deputy is tied up waiting for a hospital bed, sometimes for many hours. The sheriff asked: can transportation be transferred at that point to a family member who is willing to stay with the person and take him to the facility when a bed opens up?

AG Miyares concluded yes, but the mechanism is specific. The officer cannot just hand off custody to the family member. The officer must contact the magistrate and request that the TDO's transportation provider be changed. Section 37.2-810(E) authorizes the magistrate to change the transportation provider "at any time prior to the initiation of transportation." If the magistrate finds, based on information from the officer and others, that the proposed alternative provider is available, willing, and able to transport safely, the magistrate should make the change. Then the officer transfers custody to the alternative provider, who maintains custody until the facility takes over.

The AG also addressed a hidden definitional issue. Section 37.2-810(E) says the change can happen before "initiation of transportation," but the statute does not define that phrase. Many TDOs require a medical clearance evaluation at a hospital before the person goes to the temporary detention facility. The AG read "initiation of transportation" to mean the start of transport directly to the temporary detention facility, not the start of transport to an intervening medical clearance hospital. That reading matters because most TDO holds in waiting-for-a-bed scenarios happen at the hospital after medical clearance, and a contrary reading would have foreclosed the family-handoff option in exactly those situations.

What this means for you

Virginia sheriffs and deputies executing a TDO

The opinion holds that an officer who believes custody and transportation can be accomplished safely by an identified alternative provider (including a family member or friend) may contact the magistrate and request that the TDO's transportation provider be changed. It also holds that, until the facility accepts custody or the magistrate changes the provider, the person remains in law-enforcement custody, so the officer cannot informally hand the person off before the magistrate acts. The change is available only "prior to the initiation of transportation," which the opinion reads as transport directly to the temporary detention facility.

Virginia magistrates

The opinion holds that the magistrate must consider an officer's request to change the transportation provider, and "should" make the change upon finding the alternative provider is available, willing, and able to transport safely, based on information from the officer "or certain others." It reads "initiation of transportation" in § 37.2-810(E) to mean transport directly to the temporary detention facility, so a change can still be made while the person waits at an intervening hospital for medical clearance or a bed.

Family members of someone under a TDO

The opinion holds that if the magistrate changes the provider, the law-enforcement agency transfers custody to the alternative provider, who must then maintain custody from that transfer until the temporary detention facility accepts the person. The person remains subject to the TDO throughout. The opinion does not address what a family member should do if circumstances change during the wait.

Hospital and community services board clinicians

The opinion describes the family-handoff path but speaks to the officer-and-magistrate mechanism, not to clinical practice. It lists a representative of the community services board, a Department-contracted provider, and other trained providers among the eligible alternative transportation providers under § 37.2-810(B), and notes the magistrate may rely on information from the officer "or certain others" in making the safety finding.

Mental health advocates and policymakers

The opinion addresses one narrow procedural question: how to switch a TDO's transportation provider mid-stream to an alternative provider such as a family member. It does not address the broader structural issues around mental health transport, bed availability, or local practice, and it proposes no policy changes.

Common questions

Q: Can the officer just leave the person with the family member without going through the magistrate?
A: No. The opinion explains that when law enforcement is the designated provider, current law directs that the person "shall remain in the custody of law enforcement" until the facility accepts custody or the magistrate changes the transportation provider. An informal handoff is not authorized.

Q: What if the magistrate does not change the provider?
A: The opinion holds that the magistrate must consider the request and "should" make the change only upon finding the alternative provider is available, willing, and able to transport safely. If that finding is not made, the officer continues to maintain custody. The opinion does not address magistrate availability.

Q: Can the alternative transportation provider be a friend rather than a family member?
A: Yes. Section 37.2-810(B) lists "a family member or friend of the person who is the subject of the temporary detention order" as eligible alternative providers, along with CSB representatives, Department-contracted providers, and other trained providers.

Q: What does "initiation of transportation" mean exactly?
A: The AG read it to mean the start of transport directly to the temporary detention facility, not the start of transport to an intervening medical clearance hospital. So a person waiting in an emergency room for medical clearance can still have transportation changed; the change has to happen before transport from the ER to the temporary detention facility begins.

Q: What does the opinion say happens after the family member takes custody?
A: It holds that the alternative provider must maintain custody of the person from the time custody is transferred until custody is transferred to the temporary detention facility, and that the person remains subject to the TDO. The opinion does not address what to do if the person's condition changes during the wait.

Q: Does the alternative provider have legal authority to use force if needed?
A: The opinion does not address the use of force by an alternative transportation provider. It speaks only to the requirement that the provider be "able to provide transportation in a safe manner" and maintain custody until the facility takes over.

Q: What happens if no bed is available for a long time?
A: The opinion holds that the alternative provider maintains custody until the facility accepts the person. It does not address how long that wait may be or what happens if the alternative provider cannot continue.

Background and statutory framework

Virginia's TDO process is the front end of the involuntary commitment system. A magistrate issues a TDO under § 37.2-809 upon finding probable cause that the person has a mental illness, presents a substantial likelihood of harm in the near future, needs hospitalization or treatment, and is unwilling or incapable of volunteering. The TDO authorizes detention for up to 72 hours pending a commitment hearing.

Transportation is one of the chronic problems with the system. The default has historically been law enforcement, which is expensive (deputies tied up for hours), stigmatizing (the person is transported in a marked cruiser, sometimes in restraints), and not always optimal for the person's mental state (a frightened person may be more stable in a family vehicle than in police custody).

Section 37.2-810 allows the magistrate to designate an alternative transportation provider, including a family member or friend, a community services board representative, a Department-contracted provider, or another trained provider, when the magistrate finds the provider available, willing, and able to transport safely. The 2022 Sheriff Fleming opinion addresses the procedure for switching providers mid-stream and reads "initiation of transportation" in § 37.2-810(E) to mean transport directly to the temporary detention facility, so the change remains available while a person waits at an intervening hospital.

Citations and references

Statutes:
- Va. Code Ann. § 37.2-809 (TDO issuance)
- Va. Code Ann. § 37.2-810 (transportation provider designation and change)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2022/22-047-Fleming-issued.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

COMMONWEALTH of VIRGINIA

Office of the Attorney General

Jason S. Miyares
Attorney General
202 North Ninth Street
Richmond, Virginia 23219
804-786-2071
Fax 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

September 7, 2022

The Honorable Jeremy D. Fleming
Sheriff, Dickenson County
293 Clintwood Main Street
Clintwood, Virginia 24228

Dear Sheriff Fleming:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You ask whether a law enforcement officer who has taken custody of a person pursuant to a temporary detention order ("TDO") must continue to maintain custody of the person until accepted by an appropriate facility when the person is not presenting any public safety risk and a family member has agreed to stay with the person and transport him to the temporary detention facility when a bed becomes available.

Response

In my opinion, if a law enforcement officer maintaining custody of a person under a TDO believes that custody and transportation of the person can be accomplished safely by an alternative transportation provider, including a family member, and such an alternative provider has been identified, the officer may contact the magistrate and request that the transportation provider specified in the TDO be changed. The magistrate should change the transportation provider to the identified alternative transportation provider upon finding that the alternative provider is available, willing, and able to provide transportation in a safe manner.

Background

You state that magistrates often specify your law enforcement agency to execute TDOs and provide transportation. At the time TDOs are issued, persons subject to such orders are often aggressive or violent. You relate, however, that individuals frequently become less agitated such that custody by law enforcement is no longer needed to ensure public safety. In those situations, you believe it would be better for the person if the responsibility for custody and transportation to the facility of temporary detention could be transferred to another entity, which would enable your officers to return to their community policing duties.

Applicable Law and Discussion

The primary purpose of the civil commitment process is to protect a person suffering from a mental illness, as well as the public, from harm resulting from the mental illness. When a TDO is issued, the magistrate must specify the law enforcement agency to execute the order and designate a transportation provider. In determining the transportation provider, the magistrate shall consider any request to authorize transportation by an alternative transportation provider when such an alternative provider is identified to him. An alternative transportation provider may be

a person, facility, or agency, including a family member or friend of the person who is the subject of the temporary detention order, a representative of the community services board, an employee of or person providing services pursuant to a contract with the Department [of Behavioral Health and Developmental Services], or other transportation provider with personnel trained to provide transportation in a safe manner.

If the magistrate finds that an alternative transportation provider is available to provide transportation, willing to provide transportation, and able to provide transportation in a safe manner, the magistrate shall designate such alternative transportation provider to provide transportation of the person.

In the scenario you present, the magistrate initially determined that law enforcement should execute the TDO and provide transportation. When a magistrate specifies a law enforcement agency to execute a TDO and provide transportation, current law directs that the person shall remain in the custody of law enforcement until custody has been accepted by the temporary detention facility. Code § 37.2-810(E) nevertheless further provides that the magistrate may change the transportation provider specified in a TDO "at any time prior to the initiation of transportation of a person who is the subject of a temporary detention order . . . ." Consequently, a law enforcement officer maintaining custody of a person under a TDO may contact the magistrate and request that the transportation provider specified in the TDO be changed when the officer believes that custody and transportation of the person can be accomplished safely by an alternative transportation provider and such an alternative provider who has agreed to maintain custody and provide transportation, including a family member or friend of the person, has been identified.

If a law enforcement officer makes such a request, the magistrate must consider it. If the magistrate finds, based on information provided by the law enforcement officer or certain others, that the alternative transportation provider is available to provide transportation, willing to provide transportation, and able to provide transportation in a safe manner, the magistrate should change the transportation provider from the law enforcement agency to the alternative transportation provider. If the magistrate changes the transportation provider, the law enforcement agency shall transfer custody of the person to the alternative transportation provider subsequently specified to provide the transportation. The alternative transportation provider must then maintain custody of the person from the time custody is transferred to it until such time as custody is transferred to the temporary detention facility.

The phrase "initiation of transportation" is undefined. Often, a TDO authorizes the transportation provider to take custody of the person where the person is located and, prior to placement at the facility of temporary detention, take the person to a hospital or medical center for a medical clearance evaluation. Although transportation to the hospital or medical center for a medical clearance evaluation could be seen as the "initiation of transportation," it is unlikely that the General Assembly intended to foreclose a change in transportation providers under § 37.2-810(E) during the period a person must wait in the hospital or medical center for a bed to become available at the facility of temporary detention. Thus, for the purposes of § 37.2-810(E), the better interpretation is that "initiation of transportation" begins when the transportation provider commences transport of the individual directly to the facility of temporary detention rather than to an intervening hospital.

Conclusion

For the reasons stated above, it is my opinion that if a law enforcement officer maintaining custody of a person under a TDO believes that custody and transportation of the person can be accomplished safely by an alternative transportation provider and such an alternative provider has been identified, the officer may contact the magistrate and request that the transportation provider specified in the TDO be changed. In considering the request, the magistrate should change the transportation provider to the identified alternative transportation provider upon finding that the alternative provider is available, willing, and able to provide transportation in a safe manner.

With kindest regards, I am,

Very truly yours,

Jason S. Miyares
Attorney General