Letter Re: Dealing With Mentally Unbalanced Trespassers

In Hearthkeeper’s account of the man arrested for trespassing while attacking a chicken run, she mentions that they had decided to “press charges” as it seemed the cops were aware of the guy, but nobody else had wanted to press charges.  Her rationale was that now he would get some kind of evaluation in jail.
Well, he probably won’t.
I don’t work in a jail environment anymore, but when I did it wasn’t that long ago.   What they did was well-intentioned and the right thing to do, but let’s point something out…
Under every state law I’ve ever seen, a person who appears to be unable to care for themselves can be taken into custody for their own safety if the arresting officer witnesses the person acting in a manner that would lead the officer to believe so.
Let’s examine the facts as we know them.
1.  The man acted out in front of the cops
2.  The homeowner wanted charges pressed
3.  The cops indicated that they had had prior contacts with the guy but nobody wanted to press charges.
So, it begs the question, why didn’t the cops simply use their power of detention for the man’s safety?  I’ll tell you why.  They would have gotten counseled for wasting taxpayer’s money and leaving their beat unnecessarily.   Depending on your jurisdiction and accessibility, the average time a cop will spend just processing someone “for their own good” is from 1.5 to 3 hours.  Why?  Because he needs to be medically cleared first.  That means the cops have to take him somewhere where a doctor can evaluate his medical condition, the guy might actually need intervention medically and the “crazy behavior” might not just be mental illness.   So, I take him into custody – and then I call the jail to ask them if they have a room for the guy (since I’m arresting him for a purported mental state, he cannot (by most state law) be housed with other inmates until he’s evaluated.  This means solitary confinement in most cases, and it means he has to be under observation 24/7 some jails set up for this by putting the person in a cell with a big window that jailers can look through, some use video cameras – but in all cases this means special treatment and you have to call the jail to see if them have the right facility.   Next step – you think he’s whacko?  Are you a doctor?  You can’t know, so, again – before involuntarily committing someone you have to have a doctor sign off on it, the jail nurse doesn’t count.  Remember your reason for arresting him was for his mental state not that he trespassed (nobody pressed charges, remember?)  In most jurisdictions this is a policy issue not a legal one, policy is set to help deal with legal issues in a fair and proper manner.  Mentally ill people are not “prisoners” in the legal sense of the word, they will have no judicial review of their case unless they are held longer than the state mandate.  Anywhere they are held, they will be held alone – and that’s resource intensive – you will have to get permission from someone to do this.  So, that’s the purported reason for why a cop might not arrest someone “for their own good”.  The biggest reason is cost.  Once you’ve undertaken to seek treatment for this person, guess who foots the bill?  The Sheriff or city that employs you.  So, there’s the Emergency Room (ER) visit for evaluation… The bill will come to your department, since once the guy is in your custody you are responsible for any medical care he may need, your status as a peace officer makes this seem easy.  Your employer, however, may not see eye to eye with you on the matter.  In many cases it will be impossible for you to do what’s right because you will need to watch commander’s specific permission,  many times you’ll summon the paramedics to let them “evaluate” the guy, and they will ask the guy if he wants to be treated – if he says yes, you’re off the hook – because once he’s in their care your hands are clean.   
While you’ve been doing the right thing by this crazed citizen, your entire beat has been doing without you, officers who work alongside you have been doing dangerous things alone because they have no backup, in some cases calls may not be answered because policy may dictate two officers responding (like with a domestic violence case) so it’s entirely possible that some wife out there is getting whacked around for a lot longer than she should be, all because you had to do the “right thing” and tie yourself up for three hours.   Let’s also hope you’re not pushed beyond your end of shift, because overtime isn’t something your supervisors like – you might need approval for that. 
But let’s assume we follow this guy’s course after he gets a ride to the jail.
He gets booked, just cursorily medically evaluated (if he’s cooperative), and since it’s simple trespass (a very low quality misdemeanor) after processing he’ll be given a summons and released, usually within the first eight hours.  Then he’s back on the street.  It can be quicker if the jail staff decides he’s no real danger and they’re overpopulated (a constant problem) and he could get released without four hours.  Now he’s back on the street, and he’s received no medical intervention – because he’s no longer under your control, the jail staff now makes the decision and remember, you didn’t bring him in for mental evaluation, right?  They absolutely will not try to create a bigger thing out of it, they’ll process the trespass and release him if no bail is called for – and even IF bail is set, it’s almost always a release upon personal recognizance (so you become your own bondsman).   I would estimate that there’s less than a ten percent chance that the jail staff will go out of their way to find this guy treatment, commonly in a setting like a jail a mentally ill person will become quiescent and not exhibit any of the behaviors that you found crazy, they’re sorta in a “happy place” and don’t feel very stressed – which in many cases will just make them quiet and non-threatening. 
How an arrest is conducted and the reasons for it are many and complex, it all boils down to dollars and cents, you’d like to think a cop is a caretaker for your community – but he’s not and there are probably policies in place to keep him/her from becoming one, because it creates liability and big medical bills for the jurisdiction in question.  
Let’s not forget that now they’re witnesses/victims and they’ll have to go to court to testify – unless he takes a plea bargain.  But guess how many times that happens to someone who’s mentally ill?  It’s actually about 50/50, compared to the 95 percent plus of normal people who just take whatever is offered in way of punishment for a minor crime like trespassing.    True story.  Local hotel did a local homeless shelter a favor by taking in one of their “overflow” people for a night for free.  Well, the guy orders a couple hundred dollars worth of room service, and when he leaves refuses to pay.  Arrest (defrauding an innkeeper) and it’s revealed he’s a heavily addicted bipolar heroin addict.   Hotel staff gets subpoena’d.  Hotel staff shows to court.  Defendant is supposed to get his meds in the morning, but since he’s getting transported to court he misses his morning pill and the judge continues the case because the guy isn’t in the right mental state.  This happens five times over a period of three months.  Each time the judge sends a note to the sheriff about getting this guy his pill before ending him to court.  The reason?  You must be able to understand the judicial proceedings and participate in your own defense – this is not a competency hearing, you have no court assigned guardian.  Finally seven months later the guys gets his pill, says, “yes I understand” takes a plea deal and it’s over.  But in the meantime five staff from the hotel have taken six half-days off to appear in court because they are subpoena’d to do so.  You should be ready for this if you’re going to “press charges” it can happen.  It will happen. 
But let’s get another thing clear, I can’t speak for other states, but here’s what I’d need to arrest someone in my state.  The person would have have to enter into a property without permission and then refuse to leave when asked to do so.  If they jumped a six foot fence to do so, and the fence was locked, then they don’t get the “leave or else” thing, they can be arrested without being given the opportunity to leave.  What do I mean?   I mean that the cops showed up at another place under the same conditions, they should have been able to arrest him without the other parties “pressing charges” they witnessed his uninvited presence in someone’s back yard – they didn’t need to – but used a convenient out to stay in service “citizen declines complaint” and they move on hoping the guy wanders into someone else’s jurisdiction.
Liability for prisoners is becoming a very big headache for most communities.  Putting someone in jail and keeping them there can create liabilities that get a city sued, most cities that have jails routinely pay out a couple million a year for petty complaints for mistreatment or bad conditions as the cost of doing business, we don’t hear about it because there is no access to the information within a court system, and all settlements become confidential.   Sheriff’s have a different problem, they’re elected and responsible for their own budget, reducing costs is a big thing – and if you don’t have the $5,000 per patient for a 3 day mental evaluation, you’re going to put a stopper in the possibility that your deputies do this. 
There is no good way to deal with mentally ill people who become violent, in many cases they don’t even know they’re breaking the law – having to shoot one would be something too horrible to contemplate.  My advice for anybody investigating an intruder outside of your home (but still on your property) would be to not do it alone, ever.   If you do decide to do it you need to do it from a far enough distance that you can retreat behind a locked barrier – bad guys can move fast, for most people this should just be their doorway with the screen closed and a loud voice.   

It’s not a matter of you having the right to defend yourself or your property, it’s a matter of never knowing if you’re willing to be killed or kill someone in an unknown situation like that described.  I’m pretty certain they’re glad they didn’t have to hurt the guy, and that the husband didn’t get hurt – I’ve committed so many stupid-brave acts in my lifetime I know exactly how it happens, and never judge someone for doing it – but if you can plan for it better, it’s always best to never do it alone and never get within running and grabbing distance of someone like that.  What the police have is civil immunity for their official acts and even if it does lose them their jobs, individual cops generally don’t have to pay money for what they do – we do not have civil liability, any act we commit against someone may get us sued, because as you all know – lawyers need to eat too, and sometimes it’s just not convenient to put on the roller skates and snag the bumper on a speeding ambulance.