NYAPRS Note: Governor Cuomo’s executive order requiring local governments to bring homeless people off the streets, using mental hygiene law if they resist, has brought about a number of policy issues.
The order direct all local social service districts, working with police agencies including the New York State Police, and state agencies, to take all necessary steps to
- identify individuals reasonably believed to be homeless and unwilling or unable to find the shelter necessary for safety and health in inclement winter weather, and
- move such individuals to the appropriate sheltered facilities;
- extend shelter hours to allow individuals who are homeless to remain indoors
- instruct homeless service outreach workers to work with other relevant personnel and to work with local police in relation to the involuntarily transport of at-risk individuals who refuse to go inside and who appear to be at-risk for cold related injuries to appropriate facilities for assessment consistent with the provisions of section 9.41 of the Mental Hygiene Law,
- ensure that all facilities used for temporary housing assistance placements are safe, clean, well maintained and supervised and fully compliant with existing state and local laws, regulations, administrative directives, and guidelines.
- to comply with their obligation to ensure that all facilities used for temporary housing assistance placements are safe, clean, well maintained and supervised and fully compliant with existing state and local laws, regulations, administrative directives, and guidelines
- establish comprehensive regional housing and supportive service networks designed to meet the diverse needs of each subgroup within the homeless population
The order also charges the state with
- assist local social services districts if they are lacking facilities, resources or expertise
The Governor is to be highly commended for taking bold action to protect street homeless individuals from health and life threatening frigid conditions. But several details require clarification:
- since resisting coming into a shelter is not in and of itself tied to a MI diagnosis, how will authorities separately identify those individuals who resist as doing so out of symptoms that justify emergency room visit for a psychiatric assessment to see if they are at risk for harming themselves due to diagnosable mental illnesses?
- will emergency rooms have the capacity and capability to temporarily house and/or treat homeless individuals with serious mental health needs, especially if shelters are too full to take them?
- how can we immediately enhance outreach and engagement efforts that are specifically designed for those with behavioral health conditions to minimize the need for such involuntary measures?
- how prepared will shelters be to address the increased mental health needs of those being brought there?
- resistance and avoidable ER assessments or stays?
- some individuals resist shelters because they have found them to present them with others’ threatening or violent behaviors. how will this order and the coming Executive budget proposal address those conditions?
- how much money and other resources is the state proposing to offer and will they be adequate?
Stay tuned for details.
Cuomo Orders That Homeless Be Taken to Shelter in Freezing Weather
By Annie Correal January 3, 2016
As an arctic front barreled toward the New York City region, Gov. Andrew M. Cuomo signed an executive order on Sunday requiring local governments across the state to take homeless people off the streets to shelters in freezing temperatures.
The order, which goes into effect early Tuesday, requires local governments to remove homeless people by force, if necessary, once the temperature drops to 32 degrees Fahrenheit or below. The governor’s order says that to protect public safety, “the state can take appropriate steps, including involuntary placement.”
“It’s about love. It’s about compassion. It’s about helping one another and basic human decency,” Mr. Cuomo, a Democrat, told NY1.
News of the measure rippled across the state, eliciting a variety of responses from advocates even as it raised questions about how the order would be carried out. In New York City, the mayor’s office said the order appeared to duplicate what the city was already doing to protect homeless people during cold weather and questioned the legality of forcible removal, signaling yet another rift in the tense relationship between Mr. Cuomo and Mayor Bill de Blasio, a fellow Democrat. “We support the intent of the executive order,” the mayor’s press secretary, Karen Hinton, said in a statement, “but to forcibly remove all homeless individuals in freezing weather, as the governor has ordered, will require him to pass state law.”
Zachary W. Carter, Mr. de Blasio’s corporation counsel, said in an internal city document that there were three ways to remove people from the street: voluntary entrance into shelter; arrest if a crime was being committed; and involuntary transfer for psychiatric evaluation or treatment if they posed a danger to themselves or others.
“Factors that do not support involuntary treatment include homelessness or mental illness alone; idiosyncratic behavior; conclusory assertions that person poses danger; mere fact that person would benefit from treatment,” the document said.
A similar effort by Mayor Edward I. Koch in the mid-1980s met significant legal obstacles.
Norman Siegel, the veteran civil rights lawyer who fought Mr. Koch’s actions at the time, said he and other advocates would be closely monitoring the implementation of Mr. Cuomo’s order. “The fact that it is below 32 degrees does not give the government permission to take someone off the street,” he said, noting that such action — under the state’s Mental Hygiene Law — requires the police to interview and determine mental capacity before taking a person in custody. “The bottom line if they do the training, and they do the individual assessments, I’ve got no problem with that. But if they do a dragnet, then we’ll have serious legal and policy problems.”
The Cuomo administration said the governor’s executive order would force cities to abide by the state’s Mental Hygiene Law and do the assessments. Alphonso B. David, the governor’s chief counsel, said that police agencies “must comply regardless of what the local district’s policy may or may not be or how well it is or is not managed by the locality.”
It initially seemed the governor was pushing for forcible removal, but Mr. David later clarified that while state law allowed authorities to involuntarily detain individuals deemed to be mentally unstable, “obviously, the order does not mandate involuntary commitment for competent individuals,” he said.
Mr. David suggested that the perceived homelessness crisis in New York City — and Mr. Cuomo’s assertions that Mr. de Blasio has been slow to act — was a major impetus for the executive order.
“There are more than 4,000 homeless individuals living on the streets, with the majority in New York City,” Mr. David said. “State law mandates that safe and clean shelters are provided to both families and individuals.”
New York City’s current policy when temperatures drop to freezing, known as Code Blue, is to increase the number of vans checking for homeless people on the streets and to allow them to forgo the usual intake procedure at shelters and other facilities. In compliance with the Mental Hygiene Law, the city also takes people to hospitals for mental health evaluation if they appear to be in imminent danger.
Temperatures are expected to plummet on Monday, dropping to 15 degrees overnight with wind chills around zero, Patrick Maloit, a meteorologist with the National Weather Service, said. Highs will be around 30 degrees on Tuesday, the day the measure goes into effect.
Mr. Cuomo’s order follows significant actions by Mr. de Blasio to reduce homelessness by announcing an aggressive plan to move people off the street and into shelter.
Though there are discrepancies over the numbers, a few thousand people are estimated to live on the street, significantly less than the nearly 58,000 staying in shelters overseen by the Department of Homeless Services. But visible homelessness has been the most politically damaging issue to Mr. de Blasio as a mix of homeless people and sheltered panhandlers have filled the sidewalks and subways.
On Sunday, the governor’s staff once again seemed to cast Mr. Cuomo’s action as a forceful response to an unanswered challenge. “This order is only a part of the state’s response to the homeless crisis,” Mr. David said, noting that the state would soon “announce our full plan.”
The Doe Fund, a New York City-based homeless services organization, said it supported the governor’s move, noting its founder had created the fund after two homeless people he knew were denied lifesaving services or unable to gain access to them during the winter. “The governor’s executive order will finally make stories like theirs lessons in history instead of continual, repeating tragedies,” a spokesman for the fund said.
Thomas J. Main, a professor at the School of Public Affairs at Baruch College who studies homelessness, said the order raised administrative challenges. “We’re talking about scooping people up who might be resistant,” he said. “And then what are you going to do? Restrain them at the shelter?”
“This has to be very carefully implemented,” Professor Main added. “It has to be thought through.”
Jesse McKinley, Nikita Stewart and Vivian Yee contributed reporting.
Former NYCLU head: Gov. Cuomo's Order Lacks Authority To Force Homeless Off Streets In Cold Weather
BY Erin Durkin New York Daily News January 3, 2016
A top civil liberties lawyer said clearing all homeless people off the street when the mercury dips below freezing won’t pass legal muster.
The key to the legality of Gov. Cuomo’s order would be in its implementation and whether individual assessments are done on people picked up, said Norman Siegel, former head of the New York Civil Liberties Union.
“If the person is coherent and seems to make a rational decision to be on the street, the government has no authority under the mental hygiene law to deprive someone of their liberty,” Siegel said. “You can’t do, in effect, a dragnet arrest.”
He said that with individual assessments – which Gov. Cuomo’s counsel assured him would happen – certain mentally ill homeless people could be removed from the street if they’re in imminent danger, but that would fall well short of the sweeping policy Cuomo announced.
“As a practical matter, it never worked and it won’t work,” said Siegel, who fought a similar policy by then-Mayor Ed Koch to force the homeless off the streets and into hospitals in the 1980s. He said homeless people faded into the shadows to avoid detection.
While standing by the intent of the order to clear frigid streets, Cuomo aides say they don’t plan involuntary commitment on individuals deemed competent. But those who refuse shelter will be required to undergo assessments. “All police agencies must comply regardless of what the local districts policy may or may not be or how well it is or is not managed by the locality,” said the governor’s counsel, Alphonso David
Homeless New Yorkers Reject Cuomo's Order To Vacate Streets In Freezing Temperatures
By Rikki Reyna, Edgar Sandoval, Kenneth Lovett, Erin Durkin New York Daily News January 4, 2016,
Homeless New Yorkers gave the cold shoulder Sunday to Gov. Cuomo’s order that could force them off the streets when the temperature dips below freezing.
“Hell no, I won’t go to a shelter! How’s that even lawful? You can’t force people off a public street,” said Luis Diaz, 31, who was shivering with his girlfriend on a Midtown streetcorner as temps hovered in the mid-40s.
“It’s going to be crazy. They don’t have enough room. They don’t have the infrastructure to do this. Where are they going to put us? If they’re shoving us in shelters with crazies and people who can’t handle being in there, there is going to be a lot of fights. We’re safer out here.”
“I feel violated by this,” added William Sanders, 45, who said he considered it “cruel and unusual punishment” to be forced into a shelter, where he said he has faced hostility from other residents because of sores on his legs but has been unable to get medical services.
Cuomo inked an order to move homeless people from the streets and into shelters when the temperature is 32 degrees or below.
Donna Lieberman, executive director of the New York Civil Liberties Union, said the validity of the order would depend on how it is carried out.
“There is going to be anger and violence in the shelters if we go against our will. They are putting us in a really bad situation,” he said.
Cuomo inked the order on Sunday to remove homeless people from the streets and move them to shelters when the temperature is 32 degrees or lower. The mandate goes into effect Tuesday, when temperatures are expected to fall into the low 30s.
As homeless New Yorkers rebelled against the order and others questioned the legality of yanking people off the streets, Cuomo administration officials elaborated on the process, saying people would not be forced to leave the sidewalks.
“The executive order directs localities to conduct an assessment when necessary,” said the governor’s counsel, Alphonso David. The process involves outreach to let people know shelter beds are available and competency assessments in certain cases.
A handful of homeless people welcomed the new policy. “Some nights are really cold. You try to stay warm, but you can’t,” said Jose Flores, 47, who typically sleeps outside a Harlem subway station. “If I’m out here freezing, I’d welcome any van taking me to a warm place. People can die out here."
But most rejected the idea.
“That’s not right,” fumed Steve Jones, 63. “The governor can’t force people into shelters. We should have an option. People have rights.”
Cuomo, appearing on WCBS 880 radio Sunday, dismissed arguments from “so-called liberals” who contend that the homeless have a civil right to sleep on the streets.
“I’m not going to argue an individual’s right to freeze to death,” Cuomo said. “I want to argue an individual’s human right to housing and services and shelter. The days when we’re going to argue civil rights for people to sleep on the street, we learned that lesson the hard way, and let’s not go backward. Let’s go forward.”
He acknowledged there could be a constitutional challenge to his executive order, butsaid he expected to prevail.
“If I get sued for keeping people safe and getting people in from the cold because they were endangering themselves, so be it,” he said.
Citing the risk of hypothermia and possible death, Cuomo said the state’s “New Year’s resolution” is in keeping with the holiday spirit.
“It’s about love, compassion. It’s about helping one another and basic human decency,” he said on NY1. “We’re saying everybody deserves a decent place to stay, especially when it’s freezing. ... And we’re going to help people get back on their feet.”
But civil rights attorney Norman Siegel said the governor is wading into a legal minefield.
“The overwhelming percentage of homeless in my experience out on the street, they’re there because they’ve rejected the shelter and they’ve made a rational, conscious decision,” said Siegel. He argued that only those who are found to be mentally ill and pose an imminent danger to themselves could be rightfully moved.
Cuomo’s plan won praise from George McDonald, founder and president of the Doe Fund, which provides services to the homeless.
“It’s a humanitarian thing that certainly needs to be done,” McDonald said. “It’s a danger to the people’s lives to be out on the street when it’s freezing.”
He said the city has a “Code Blue” program that reaches out to the homeless in freezing temperatures but does not require they be sheltered. He also said the city hasn’t enforced the program.
McDonald dismissed questions of whether forcing the homeless inside against their will violates their civil rights. “They have a right to die on the streets, and we get to watch them?” he said. “I don’t think so.”
Cuomo’s office said it’s a sorry choice some homeless people have to make.
Alan (no last name given) with his dog Nitro on Broadway near West 74 St. said the order to go to a shelter is a violation of his rights.
“Sad and damning commentary when people say they’d rather sleep in the cold than go into a city shelter,” said Dani Lever, a spokeswoman for the governor.
Donna Lieberman, executive director of the New York Civil Liberties Union, said the validity of the order would depend on how it is carried out.
“The government should not be forcing people into shelters except in extreme circumstances when it poses a serious risk to their lives,” she said.
“The presumption is that people who are on the street are making an irrational choice to be out in the cold, and I don’t think you can presume that,” said William Burnett, a board member of Picture the Homeless, who said many people encounter mistreatment at shelters.
“They’re choosing dignity over comfort, and I don’t think a third party, even the state, has the right to step in and force them to make a different choice.”
Cuomo says state law also requires safe and clean shelters.
“This order is only a part of the state’s response to the homeless crisis. Within the next few weeks, the state will announce our full plan, including addressing ... deficient shelter systems,” governor’s counsel David said.