by Richard Rifkin, Legal Director, Government Law Center
New York is about to engage in a new and untried procedure in creating legislative and congressional districts following the 2020 census. It could make a big difference in the 2022 elections as well as in elections that follow for the next ten years and beyond.
Ever since the early days of this country, state legislatures, which have the authority to draw both state legislative and congressional districts, have used this authority to gain political advantage for the majority party and its candidates. This is known as “gerrymandering” because in 1812 Massachusetts Governor Elbridge Gerry signed into law a bill that created districts that gave a significant advantage to his political party. A local newspaper noted that one of the districts looked like a salamander, giving us the term that remains common today.1 The practice of gerrymandering remains similarly common.
New York’s Independent Redistricting
In 2014, New York took a significant step in trying to at least limit this practice. In that year, the voters approved an amendment to the state constitution creating an independent redistricting commission. This
amendment left the power to finally approve district maps with the legislature, but it gave the new commission the authority to draft the initial maps. This procedure will be implemented for the first time in the upcoming 2021-2022 legislative and congressional redistricting following the 2020 census.
The constitutional amendment that created the new commission defines in detail its structure and sets forth its authority.2 It consists of ten members. The four party leaders in the legislature each appoint two members. The eight members so appointed must then choose two additional members, neither of whom shall have been enrolled in the preceding five years in either of the two major political parties. Each member must be a registered voter, but he or she may not for the last three years have been a state officer or employee, member of Congress, registered lobbyist or political party chair.
The spouse of a statewide elected official, member of Congress or member of the legislature within this three-year time period is also precluded from being named as a commissioner.
The 2014 amendment creating the commission includes within the constitution many details usually left to the legislature,
which ordinarily adopts an implementing statute or statutes.3 For example, this amendment places in the constitution the commission’s quorum requirements as well as its voting requirements, which vary depending upon whether the political parties of the Assembly Speaker and Temporary President of the Senate (who is also the majority leader) differ or are the same. It also is specific as to how two co- executive directors are to be appointed, again with variances depending on the parties of the legislative leaders. It even describes what happens if there is an inability to agree on the executive directors. Finally, it describes the procedure to be followed if there are not a sufficient number of votes to adopt any specific mapping plan.
The amendment similarly spells out the details of the procedures to be followed with regard to developing and approving the maps. This was formerly the exclusive province of the legislature. With the recent amendment, the process is now divided between the commission and the legislature.
Procedures for Drawing Maps4
The initial maps are to be prepared by the commission. The commission is required to make public by September 15 its “draft redistricting plans, relevant data, and related information”. After this information is publicized, the commission is required to hold public hearings in each of the five counties in New York City as well as in Nassau and Suffolk Counties. It also must hold hearings in Albany, Buffalo, Syracuse, Rochester and White Plains. This is going to be a difficult timetable since the 2020 census data from the federal government has been delayed and may not be available
until the end of July. The commission is required to report to the legislature when it submits its maps “the findings of all such hearings”.
The Commission’s maps must meet several requirements. The districts should not abridge “racial or language minority voting rights”. They should consist of “contiguous territory” and be as compact “as practicable.” In addition, they may not be drawn to favor or disfavor incumbents, candidates or parties. Finally, the one person, one vote requirement and the rules for senate districts with respect to the inability to split towns and counties remain in effect.
The Commission is obligated to draft its plans for the congressional, senate and assembly districts and submit those plans, along with the implementing legislation, to the legislature by January 15, 2022.
Following this submission, there is to be a vote in both houses on this legislation, which may not be amended. If approved by both houses, the bills are submitted to the Governor for his consideration. Should the proposed legislation fail, either because of the vote in either house or a veto by the Governor, the matter is sent back to the commission. Within 15 days, but no later than February 28, the commission is required to submit a second plan and implementing legislation. Again, the legislature must vote on the bills without amendment and, if adopted by both houses, sent to the Governor for his approval or disapproval. If this fails, the legislature is then free to amend the bill and the matter proceeds through the legislative process.
Thus, despite all the new procedures, the legislature continues to have final authority.
One important factor in the votes taken by the legislature on the bills submitted by the commission is the number of votes required in each house to adopt the bill. Under the constitutional amendment, it depends upon whether the two houses are controlled by the same party or different parties. Since both houses are controlled by the same party in the 2021-2022 legislature, a two-thirds vote in each house is required to approve any plan submitted by the commission.
Beyond the new commission and the process set forth in the constitution, the landscape for litigation will be significantly different in the upcoming redistricting. Every recent redistricting proposal has led to extensive litigation, and there is no reason to believe that the upcoming process will be any different in this respect. However, litigants may need to look to different courts this year.
The extensive detail set forth in the state constitution is likely to serve as the basis for challenges to whatever is done. Any violation of any of the detailed procedures raises the prospects for litigation, with the plaintiffs claiming that there has been a failure to comply with the constitution.
However, such an action could be brought only in the state courts, as it would involve a failure to comply with the state constitution.
Much of the litigation in previous years has taken place in the federal courts. However, in 2019, the United State Supreme Court decided Rucho v. Common Cause,5 where it held that any claim that the approved
districts are in violation of the federal constitution because of partisanship raises a political question rather than a legal question. This means that any partisanship claim cannot give rise to a federal action.
While some claims, such as racial discrimination, can still be brought in the federal courts, any claim based on partisanship, of which there have been many throughout the country, will not survive.
The federal courts no longer have the authority to hear such cases, thereby making the gerrymandering of districts likely to continue throughout the country. However, the restrictions now found in New York’s constitution may well limit this practice, as it allows for challenges on this basis to brought in the state’s courts.
We are entering a new era in New York with respect to redistricting. How this will play out is, at this point, quite uncertain.
1 See podcast of Jennifer Davis, February 10, 2017, Library of Congress.
2 New York State Constitution, Article III, Section 5-b.
3 The legislature earlier this year gave second passage to a proposed constitutional amendment that would modify certain details regarding the commission and some of its procedures and operations (S. 515; A. 1916). This amendment will be presented to the voters at this year’s general election in November. Because it may be rejected by the voters and some of the changes would appear to be too late to be applied in 2022, this explainer is based on constitutional provisions as of April, 2021.
4 New York State Constitution, Article III, Section 4(b).
The term “sanctuary cities” is commonly used in the field of immigration to refer to communities that decline to cooperate with federal immigration enforcement. But recently, other movements have used the term “sanctuary cities” to refer to other causes unrelated to immigration. In particular, Second Amendment activists and anti-abortion activists have urged local governments to adopt ordinances that protect gun ownership and restrict abortion. This explainer examines the legal and policy issues surrounding these movements.
The Second Amendment and anti-abortion activists who urge local defiance of laws with which they disagree are part of a larger trend in which local officials assert the power to defy federal or state laws, including rulings of the U.S. Supreme Court. Thus, for example, so-called “constitutional sheriffs”—a right-wing anti-immigrant movement—assert that within a sheriff’s county, “the power of the sheriff even supersedes the powers of the President.”[i] (To say this assertion is legally incorrect would be an understatement.)
These movements differ fundamentally from the localities and states that identify themselves as immigration sanctuaries. Immigration sanctuaries fundamentally aim to comply with federal obligations, not defy them. As explained in an earlier Government Law Center explainer on “sanctuary” jurisdictions, immigration sanctuaries principally identify areas in which the law does not require them to cooperate with federal immigration enforcement, and—in those areas of lawful discretion—choose not to support immigration enforcement. Their right to do so is protected by basic principles of federal constitutional law under which localities cannot prevent the federal government from enforcing its own laws but need not assist it in doing so.
Immigration sanctuaries exercise their right not to commit their resources to federal enforcement activities, but gun and anti-abortion sanctuaries have a different goal: preventing the enforcement of state gun laws, and preventing people from exercising their right to choose abortion under the U.S. Constitution.
I. Background: The SAFE ACT and the Right to Bear Arms
Governor Cuomo signed the SAFE Act, a complex law with multiple provisions, into law in January of 2013. It was partly a response to the shootings in December 2012 at Sandy Hook Elementary School in Newtown, Connecticut.[ii] Despite online rumors to the contrary, the weapons used in the Sandy Hook shooting included an AR-15 style assault weapon with high-capacity (30-round) clips.[iii] Many other mass shootings have also used AR-15s or similar rifles.[iv] The SAFE Act bans weapons and magazines like those, and includes numerous other provisions as well. They are summarized in the following sections.
Banned weapons and ammunition
The assault-weapon ban. The SAFE Act restricts the ownership of “assault weapons” and large-capacity magazines. The provision on assault weapons strengthens New York’s ban on assault weapons by expanding the definition of “assault weapon” to encompass any semi-automatic guns with detachable magazines that possess at least one feature commonly associated with military weapons. (Before the SAFE Act, a weapon fell under the assault-weapon ban if it had two features.) Listed features included telescoping stocks, conspicuously protruding pistol grips, bayonet mounts, flash suppressors, and grenade launchers.[v]There is a grandfather clause under which people who lawfully own assault weapons before the SAFE Act may continue to possess them if they register the weapons with the State Police.10
The Second Circuit (the federal appellate court with jurisdiction over New York State) in 2015 held that the SAFE Act’s expanded ban on assault weapons did not violate the Second Amendment.[vi]
Limits on large-capacity magazines. The Act also bans all large-capacity magazines that have the capacity to hold more than ten rounds of ammunition.[vii] Originally, the SAFE Act prohibited magazines that held more than seven rounds; but the Legislature recognized that seven-round magazines are difficult to buy, and so it amended the Act. The amended Act limits capacity to ten rounds with a new seven-round load limit, meaning that a ten-round magazine cannot be loaded with more than seven rounds outside of a firing range or official shooting competition.13
The Second Circuit upheld the ten-round capacity limit.[viii] But it struck down the seven-round load limit, saying that it would not reduce the number of ten-round magazines in circulation, and therefore was “entirely untethered from the stated rationale of reducing the number of assault weapons and large capacity magazines in circulation.”[ix]
Registration and background checks
The Act also strengthens systems for registration and background checks. It:
Establishes a statewide gun license and record database, which contains records of all licensed handgun owners;[x]
Requires background checks for all gun sales, except those between family members;
Requires that sellers of ammunition register with the State Police, perform background checks on buyers, and make their sales electronically accessible to the State.
The Act also makes clear that certain groups won’t pass background checks because the Act makes them ineligible for licenses:
criminal defendants found to lack capacity, or found not guilty by “reason of mental disease or defect”;
those who are “mentally ill and dangerous”; and
people against whom an order of protection has been issued.
Members of the Libertarian Party of New York filed a lawsuit to challenge New York’s licensing and background-check requirements, but the Second Circuit rejected this challenge in 2020, finding that the requirements do not violate the Second Amendment.[xi] The court also found that language in the statute that required a showing of “good moral character, integrity and the absence of good cause to deny a license” was not unconstitutionally vague.[xii]
The SAFE Act’s other provisions have not featured as prominently in litigation. These include a provision that creates safe-storage requirements, and other provisions that create new and enhanced penalties for illegal gun use in multiple criminal statutes.
After the SAFE Act became law, gun-rights advocates mobilized to undermine it in whatever ways they could.[xiii]
II. “Second Amendment Sanctuaries” in New York
Gun-rights advocates in New York State and elsewhere have recently begun advocating so-called “gun sanctuary” policies. The gun-sanctuary movement wants local law enforcement, including sheriffs, local legislators, and district attorneys, to not enforce the SAFE Act.[xiv] These gun-rights advocates make appeals to their county legislators, district attorneys, and sheriffs, asking them to essentially ignore the SAFE Act.[xv]
A group called “2ANYS” (formerly known as “2AWNY”) is the major gun-sanctuary advocate organization in New York State.[xvi] 2ANYS refer to gun control laws as “Albany’s unconstitutional civilian disarmament industrial complex,”[xvii] and calls itself “New York State’s premier civilian rearmament enterprise.”[xviii] National groups, like the gun lobby group Gun Owners of America, have also supported “Second Amendment sanctuaries.”[xix]
What’s in a “Second Amendment Sanctuary” Law?
Along with other claims about the unconstitutionality of gun-control laws, 2ANYS asserts that “Local governments have the legal authority to refuse to cooperate with state and federal firearm laws that violate [Second Amendment] rights and to proclaim a Second Amendment Sanctuary for law-abiding citizens in their cities and counties.”[xx]
2ANYS proposes a “Second Amendment Sanctuary” ordinance that bars local officials from “[k]nowingly and willingly participat[ing] in any way in the enforcement of any Unlawful Act.” Their draft ordinance defines “Unlawful Act” to include any federal or state law that “bans or effectively bans, registers or effectively registers, or limits the lawful use of firearms, firearm accessories or ammunition (other than a fully automatic firearm which is made unlawful by federal law).”[xxi]
The proposed sanctuary ordinance then lists the kinds of laws that 2ANYS deems unconstitutional. It’s a very broad list. It includes any tax or fee on firearms or ammunition, any registration or tracking of firearms, any restrictions on ownership, and indeed “[a]ny prohibition, regulation, and/or use restriction related to ownership.”[xxii] There are exceptions for gun ownership by people who have been convicted of felonies, and people “who are prohibited from possessing firearms under federal law.”[xxiii]
All laws that fall into these broad groups would be “considered null, void and of no effect” in a jurisdiction that adopts 2ANYS’s model ordinance. The ordinance goes on to say that anyone who violates it may be sued, and that “[n]either sovereign nor official or qualified immunity shall be an affirmative defense in cases pursuant to this section.”[xxiv] It also proposes fines for people who violate its terms.[xxv]
Finally, the proposed ordinance says, “Any peace officer may enforce this ordinance.”[xxvi] It’s not clear what “enforcing” the ordinance would entail.
Current “Gun Sanctuaries” in New York
As of this writing, four jurisdictions in the State of New York have adopted “gun sanctuary” resolutions. Two are towns, Broadalbin in Fulton County[xxvii] and Grand Island in Erie County,[xxviii] and two are counties, Jefferson[xxix] and Wyoming.[xxx] These resolutions don’t go as far as 2ANYS’s model ordinance. Instead, they express support for the Second Amendment and opposition to any laws interfering with that right. They are “non-binding, largely ceremonial resolutions speaking out against state gun-control measures under consideration at the time” and are a way for those opposing the SAFE Act and other strict gun regulations to openly disagree with enforcement of those laws.[xxxi]
Officials in the Towns of Solon,[xxxii] Truxton, and Cincinnatus (all located in Cortland County)[xxxiii] have taken the further step of adopting ordinances that prohibit local municipal employees from enforcing future gun control legislation.[xxxiv] They do not implicate any existing gun control regulation, like the SAFE Act. Known as the “Second Amendment Preservation Act,” it defines “unlawful acts” as those laws that affect a person’s right to possess a firearm, firearm accessories, or ammunition.[xxxv] The fact that none of these towns has a police department means these laws are no more than an expression of support for the Second Amendment. Nevertheless, they can cause confusion about what type of activity is legal within that municipality.
What Do Advocates Argue?
Second Amendment Sanctuary advocates often cite the U.S. Constitution.[xxxvi] As recently as February 2020, Lewis County in Western New York held an open forum to hear from constituents about a possible sanctuary policy that would protect gun owners from enforcement of the SAFE Act. A gun-rights advocate at the meeting argued the SAFE Act attacked his personal rights and the “inalienable right to security” protected by the Second Amendment.[xxxvii] Those opposed to the gun-sanctuary resolution argued the SAFE Act helped prevent gun violence in New York State, and one woman used an example of suicide for why New York State needs stricter gun laws.[xxxviii]
The gun-rights advocate then argued that suicide should not be considered when making Lewis County a Second Amendment Sanctuary County, saying suicide “was not a malicious use of firearms towards another individual and hardly can be categorized as a violent crime.”[xxxix]
County legislators in Lewis County said they must discuss a possible resolution based on the effort of the gun-rights advocates, and one legislator stated that “the people gave a very passionate presentation, and I support them fully,” which may indicate a possible trend in the future of gun sanctuary resolutions passing if advocacy work continues to grow.[xl]
Law Enforcement Officers’ Rejection of “Second Amendment Sanctuaries”
Gun-sanctuary advocates encourage sheriffs to ignore the SAFE Act and to not arrest those in violation of the SAFE Act.[xli] However, if officers do not comply with this state law, they are subject to removal by the governor,[xlii] or at a minimum, pressure to resign.[xliii]
Some sheriffs who may disagree with the SAFE Act personally are nonetheless not ignoring the SAFE Act when performing their jobs. [xliv] One sheriff (identified as “conservative” by local media) stated that if they did not enforce the law on the books on the job, “[it] would make [themselves] or any other sheriff derelict in their duties and subject to removal.”[xlv]
A different sheriff said that even though he personally did not like the law, he took an oath to enforce all of the laws, even the ones he personally opposes and will continue to enforce the SAFE Act.[xlvi] And in response to the passage of these ordinances in Cortland County, the county sheriff there has stated that he is not bound by them and will continue to follow New York state law.[xlvii]
IV. Anti-Abortion Sanctuaries
In the context of abortion, an increasing number of local jurisdictions have adopted provisions called “sanctuaries for the unborn,[xlviii] “safe cities and counties,”[xlix] or “safe havens for the unborn.”[l] The purpose of these sanctuary provisions is to essentially “outlaw” abortion in the jurisdictions they cover, even though Roe v. Wade,[li] the Supreme Court decision legalizing abortion, is established law.[lii] The 1973 decision ruled that abortion constituted a personal liberty protected by the Due Process Clause of the Fourteenth Amendment of the U.S. Constitution, and therefore protected the right to have an abortion to varying degrees depending on the trimester during which the abortion is performed.[liii] In Planned Parenthood v. Casey, a plurality of the Court affirmed Roe but changed the standard, upholding abortion-related laws that do not “unduly burden” the fundamental right to abortion and are rationally related to legitimate state purpose.[liv] The Supreme Court has repeatedly affirmed that laws are unconstitutional if they have “the effect of placing a substantial obstacle in the path of a woman’s choice.”[lv]
The groups behind the “sanctuary for the unborn” movement are frustrated with what they perceive to be the lack of sufficient action at the federal and state level to prohibit abortion, so they have instead turned their focus on local governments as a means to effectively eliminate the locations where abortions can be performed. Mark Lee Dickson, the director of Right to Life of East Texas, explains, “We’re really trying to protect the culture and the atmosphere that these cities already have.”[lvi]
While they recognize that these laws may have no legal effect, supporters encourage local governments to adopt these ordinances with the intent that the laws will become effective immediately, if the Supreme Court overrules Roe v. Wade. This outcome, however, is unlikely given the fact that the Roe court specifically found that the Texas abortion laws were unconstitutional and Texas courts have ruled that statues that have been declared unconstitutional are null and void. [lvii]
The supporters also know that these local resolutions and ordinances will limit the numbers of abortions being performed by creating confusion for women choosing whether to exercise this right.[lviii] They also support their adoption as a means to create opportunities for legal challenges that might result in the Supreme Court ultimately overturning Roe v. Wade.
The first local jurisdiction to pass a resolution declaring its county to be a “Sanctuary for the Unborn” was Effingham County, Illinois, in 2018.[lix] As of May 1, 2021, twenty-two cities and counties in Texas have adopted ordinances and resolutions prohibiting abortions within their city limits.[lx] Dozens more have been proposed in other jurisdictions throughout the state. The movement has also expanded to other states where local jurisdictions in Utah (5),[lxi] North Carolina (2),[lxii] Mississippi (1),[lxiii] New Mexico (3),[lxiv] and Nebraska (2)[lxv] have adopted similar resolutions and ordinances. And in November 2020, voters in Santa Rosa County, Florida, passed a referendum declaring Santa Rosa County a “sanctuary for life.”[lxvi]
The Provisions of Abortion Sanctuary Resolutions and Ordinances
The specific language of the resolutions and ordinances vary from jurisdiction to jurisdiction, but there are some similarities. In general, they provide a statement that all life should be protected and that life starts at conception, classify abortion as “an act of murder with malice aforethought,” and criminalize abortion except to save a mother’s life. Some of the ordinances also create civil causes of action against health care providers and organizations that help women seeking abortions.[lxvii]
For example, in Texas, the ordinances allowfamily members to sue an abortion provider if a provider has performed an abortion on their family member within city limits.[lxviii] Further, the Texas ordinances, as originally passed, named as “criminal organizations,” among others, the Texas Equal Access Fund and the Lilith Fund for Reproductive Equity, organizations that provide funding “to low-income people who can’t afford an abortion” and advocate for pro-choice legislation and reproductive rights.[lxix] The Texas ordinances limited their ability to purchase property or establish a physical presence within city limits.[lxx]
Another group, called the Personhood Alliance, promotes a “tiered approach,” encouraging local governments to first adopt resolutions before ordinances as a means to avoid lawsuits challenging their efforts by establishing strong local support for their efforts.[lxxi]
As their President, Les Riley, explained, “[t]he most effective pro-life ministry is local and relational. We’re seeing several sanctuary efforts being pursued by different groups now, but too often, they’re plagued with the same compromises and exceptions that have hurt the core mission of the pro-life movement for the last 50 years. These efforts intend to defy Roe—a goal we share. But at the same time, they wait for the unjust decision to be overturned. We must engage in these local efforts to take back our towns, by applying consistent moral principles and rejecting judicial tyranny. And we must involve Christians in protecting children and families in their own backyards, while also making sure principled local leaders have a strong community support system for the battle ahead.”[lxxii]
Their work has led to the adoption of “Safe Counties” resolutions in Davie County[lxxiii] and Yadkin County,[lxxiv] North Carolina, and in Pearl County, Mississippi,[lxxv] and the establishment of affiliate organizations in many states. They provide resources, such as templates for petitions and resolutions, for their supporters to use to expand the movement.[lxxvi]
VI. Challenges to Anti-Abortion Sanctuaries
Critics of the Movement
The most vocal critics of these sanctuary cities in Texas are the Texas Equal Access Fund and the Lilith Fund, who argue that the ordinances, while knowingly contrary to federal abortion law, spread misinformation about what is actually legal and confuse people about what their rights actually are.[lxxvii] The Texas American Civil Liberties Union (ACLU of Texas) stated they have “receiv[ed] calls from individuals asking whether they are still allowed to get abortions.”[lxxviii]
Like local district attorneys in New York, attorneys general and district attorneys in multiple states where these ordinances and resolutions have been passed, including in Texas, North Carolina, Illinois, New Mexico, and Utah, have spoken out against enforcing legislation criminalizing abortion.[lxxix] A group released a joint statement in June 2019 providing that they would use their discretionary powers to not prosecute women who seek abortions and the health care providers who care for them.[lxxx] They explained, “[l]egal precedent, as established by the highest court in the land, has held for nearly 50 years that women have a right to make decisions about their own medical care including, but not limited to, seeking an abortion. Enforcement of laws that criminalize healthcare decisions would shatter that precedent, impose untenable choices on victims and healthcare providers, and erode trust in the integrity of our justice system. To fulfill our obligations as prosecutors and ministers of justice to preserve the integrity of the system and keep our communities safe and healthy, it is imperative that we use our discretion to decline to prosecute personal healthcare choices criminalized under such laws.”[lxxxi]
In response to the ordinances passed in multiple municipalities in Texas and frustration over the confusion created by their adoption, the ACLU of Texas filed a lawsuit in federal court on behalf of the TEA, or Texas Equal Access, Fund and the Lilith Fund against seven of the Texas municipalities that passed abortion sanctuary ordinances.[lxxxii] The complaint alleges that the ordinances violate the First Amendment by “suppress[ing] lawful speech about abortion and other reproductive healthcare,” discriminating against pro-choice speech, and restricting association with people who perform and assist with abortions. They also argue that the ordinances are unconstitutionally vague, making it impossible for a person to know if their conduct violates the law. Further, the complaint alleges that by labelling the plaintiffs as “criminal organizations,” the ordinances “unconstitutionally punish them through the legislative process, without a trial.” [lxxxiii] The organizations claim they cannot “disseminate truthful information” without fear of criminal and civil liability and that the ordinances have a chilling effect by “creat[ing] the impression that residents of Defendant cities can no longer exercise their right to an abortion.”[lxxxiv]
In response to this lawsuit, the municipalities agreed to amend their ordinances by repealing those sections that labelled these organizations as criminal. The ACLU subsequently withdrew the complaint and as of now, the ordinances stand, as amended.[lxxxv] Nevertheless, litigation continues as the Lilith Fund filed a defamation lawsuit against Right to Life of East Texas and Dickson for allegedly repeatedly calling them criminal organizations.[lxxxvi] That litigation is currently pending.
Despite these lawsuits, at least an additional forty-two local governments in Texas alone are considering adopting ordinances that prohibit abortion. And while most of those jurisdictions do not have any providers offering abortion services, at least one, Lubbock, Texas, does.
Late last year, a group of residents in Lubbock, Texas, petitioned the city council to adopt an ordinance that prohibited abortions from being performed within city limits, except to save the mother’s life.[lxxxvii] These efforts began after Planned Parenthood announced it would open a clinic in Fall 2020. Despite strong pressure from city residents and hours of public comment at meetings, the city council voted against the ordinance, relying upon outside legal counsel’s advice that the ordinance conflicts with and is preempted by Texas state law and that the private cause of action is unconstitutional. [lxxxviii] Undeterred, supporters petitioned to have the measure placed on the ballot, and on May 1, 2021, the measure passed with more than 60% of voters supporting the measure.[lxxxix] Unlike other “sanctuary cities for the unborn,” Lubbock is the only municipality where a health care provider, in this instance, Planned Parenthood, is currently providing abortion services. It remains to be seen what the next legal steps will be and if local law enforcement officials will attempt to enforce this ordinance against Planned Parenthood and its employees. In the meantime, Planned Parenthood announced that it will remain open and the ACLU vowed that it will take any necessary legal steps to ensure that the rights of the residents of Lubbock are protected.
Despite the dubious legal validity of gun and anti-abortion sanctuaries, they are viewed by supporters as both symbolic and practical ways of advancing their causes and promoting values they perceive as threatened. Local governments are, perhaps, the most direct venue to express their concerns, given their officials’ susceptibility to strong pressure by local grassroots movements and the close personal relationships some members of the communities have with the elected officials. Proponents of sanctuary movements are essentially arguing that governments are not bound by federal and state laws they believe violate fundamental rights, and that those local governments have an obligation to defy or obstruct those laws.[xc]
That said, absent legal challenges to their existence, sanctuary ordinances are dependent on local officials to enforce or ignore them. The Lubbock sanctuary ordinance, however, might just present the test case that courts could use to determine the extent to which local governments have the authority to carve out exceptions to state and federal laws regarding established constitutional rights.
[v] “Semiautomatic” is defined as “any repeating rifle, shotgun or pistol, regardless of barrel or overall length, which utilizes a portion of the energy of a firing cartridge or shell to extract the fired cartridge case or spent shell and chamber the next round, and which requires a separate pull of the trigger to fire each cartridge or shell” and “Assault weapon” is defined as “a semiautomatic rifle that has an ability to accept a detachable magazine and has at least one of the following characteristics:
(i) a folding or telescoping stock;
(ii) a pistol grip that protrudes conspicuously beneath the action of the weapon;
(iii) a thumbhole stock;
(iv) a second handgrip or a protruding grip that can be held by the non-trigger hand;
(v) a bayonet mount;
(vi) a flash suppressor, muzzle break, muzzle compensator, or threaded barrel designed to accommodate a flash suppressor, muzzle break, or muzzle compensator;
(vii) a grenade launcher; or
(b) a semiautomatic shotgun that has at least one of the following characteristics:
(i) a folding or telescoping stock;
(ii) a thumbhole stock;
(iii) a second handgrip or a protruding grip that can be held by the non-trigger hand;
(iv) a fixed magazine capacity in excess of seven rounds;
(v) an ability to accept a detachable magazine; or
(c) a semiautomatic pistol that has an ability to accept a detachable magazine and has at least one of the following characteristics:
(i) a folding or telescoping stock;
(ii) a thumbhole stock;
(iii) a second handgrip or a protruding grip that can be held by the non-trigger hand;
(iv) capacity to accept an ammunition magazine that attaches to the pistol outside of the pistol grip;
(v) a threaded barrel capable of accepting a barrel extender, flash suppressor, forward handgrip, or silencer;
(vi) a shroud that is attached to, or partially or completely encircles, the barrel and that permits the shooter to hold the firearm with the non-trigger hand without being burned;
(vii) a manufactured weight of fifty ounces or more when the pistol is unloaded; or
(viii) a semiautomatic version of an automatic rifle, shotgun or firearm;
(d) a revolving cylinder shotgun;
See S.B. 2230; N.Y. Penal Law § 265.00(22) (McKinney 2020).
[lx] The Cities of Waskon, Naples, Joaquin, Tenaha, Gilmer, Rusk, Gary, Wells, Westbrook, Colorado City, Big Spring, Whiteface, East Mountain, New Home, Morton, Ackerly, Grapeland, Goldsmith, Carbon, Gorman, Murchison, and Latexo have all adopted ordinances. The Cities of Ellis, Gilmer, Omaha, and Lindale have all adopted resolutions.
[lxi] Utah County, Utah, and the Cities of Riverton, Highland, Enterprise, and Lehi, Utah.
[xc] James Madison, Virginia Resolutions, Founders Online (Dec. 21, 1798) https://founders.archives.gov/documents/Madison/01-17-02-0128 (“That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact to which the states are parties; as limited by the plain sense and intention of the instrument constituting that compact; as no farther valid than they are authorised by the grants enumerated in that compact, and that in case of a deliberate, palpable and dangerous exercise of other powers not granted by the said compact, the states who are parties there-to have the right, and are in duty bound, to interpose for arresting the pro⟨gress⟩ of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.”).
For 911 calls about someone in crisis, who should respond? Many cities have decided it should not solely be police. A national poll conducted in June found that 70% of likely voters support a non-police response for 911 calls about mental health crises, and 68% support the creation of non-police emergency response programs.1
In many jurisdictions, police are the first to respond (first responders) to 911 calls about people experiencing issues related to mental health, homelessness, and substance abuse. However, they often do not have adequate training to deal with these calls.2
Programs replacing police with social workers, mental health counselors, and medical staff have been in operation for at least a year in Austin, Texas; Eugene, Oregon; Olympia, Washington; and Edmonton, Canada. Eugene’s program has operated since 1989, and in 2019 responded to 20% (24,000) of all 911 calls, with a police backup request rate of 0.625% (160).3These programs are focused on providing more appropriate services and
reducing government spending. Other cities have recently begun or approved crisis response programs of their own.4
Potential benefits include budgetary savings, diverting individuals from a higher level of care, and reducing dependence on policing and the criminal justice system to deal with people experiencing crisis. There are also obstacles, as well as many questions about program design and implementation. Some considerations are universal, and some vary based on how each program is structured, as well as its size and scope.
Although the programs vary, takeaways for local governments attempting to implement a crisis response program are to (i) include stakeholders in the program design process,
(ii) aim to build trust within the police department and community, (iii) have a designated place within the 911 and emergency-response processes, (iv) have adequate funding with access to mid-year increases if necessary, (v) have a capable host organization/agency and be appropriately administratively housed, (vi) properly train employees, 911 call-takers, and other first responders, (vii) use past and current call data to inform operations, and (viii) have the ability to transfer or refer clients to other service providers.
Who Operates Crisis-Response Programs?
The organizations that operate crisis- response programs generally do so through a subcontract with the city or police department (with the exception of Edmonton’s program, which is run by a nonprofit).5
Eugene’s CAHOOTS is administered by White Bird Clinic,6an independent nonprofit which has provided community-based healthcare services (including mobile crisis response) since 1969, and is well known in the Eugene community.7Workers “are White Bird Clinic employees, contracting with the police department, and the county.”8
Austin’s EMCOT program is administered by the Travis County (which encompasses Austin) Local Behavioral Health Authority,9 called Integral Care, which is a community- based mental-health center that has been providing behavioral health services for over five decades.10In addition to mobile call- response staff, some mental-health counselors are stationed at Austin’s 911 call center.11Travis County EMS also oversees the Community Health Paramedics program, which targets frequent users of 911 and provides mobile case management, both medical and non-medical.12Workers are employed by the Travis County Healthcare District13through a contract with the city.14
Olympia’s Crisis Response Unit is administered by Recovery Innovations International, which is a mental health services provider from the neighboring county with “14 crisis programs in five states,” although it has no other alternative first response programs.15The Administrative Services Division of the Olympia Police Department handles the contract, because that division does not include sworn officers.16
Edmonton’s 24/7 Crisis Diversion program is administered by REACH, a “backbone” organization, or “community-based coordinating council” funded by the city.17 Program workers are employed by Boyle Street Community Services and Hope Mission (two local nonprofits that provide similar services in Edmonton), and the call- takers are employed by the Canadian Mental Health Association (211).18
What Kind of Services Do Alternative First Responders Provide?
They are voluntary, meaning people can refuse services and opt for a police or EMS response instead. Because they are mobile, they can engage clients directly without being dispatched, except for Austin’s EMCOT, which is dispatched by 911 or other first responders.19Currently, 911 calls about a person in crisis are generally responded to either by police officers trained in a forty hour “Crisis Intervention Team” program, or by police officers with no training beyond the police academy.20 Current mobile crisis response programs are run either at the county-level or by a nonprofit organization; workers are not
dispatched after 911 calls, but at the request of law enforcement on scene. The programs are generally underfunded.21People experiencing issues related to untreated mental illness are sixteen times more likely to die during encounters with police than other civilians.22
Also, programs can either preempt other first responders from responding to a call, or allow other first responders to leave a scene when it is unnecessary for them to stay.23 911 call-takers in Eugene use the same channel to dispatch CAHOOTS and the police department, both of whom use the same radios. If a CAHOOTS worker has a relationship with the person being called about, they can communicate with the officer to either replace them as a responder or co-respond. Additionally, other first responders can call CAHOOTS workers to the scene of a call, and “leave the scene” with CAHOOTS workers. This saves time for those first responders to respond to other calls.
All programs can attend to non-emergency medical issues, although in Austin those are generally dealt with by the Community Health Paramedics.24Workers in all of the programs also all have the ability to transfer or refer clients to appropriate services or agencies with the client’s consent.25
CAHOOTS and EMCOT workers also teach methods of crisis management and conflict resolution to law enforcement and community members.26
In Eugene, CAHOOTS workers respond to a variety of other non-emergency calls, and
provide services including, but not limited to:
conflict resolution and mediation;
dispute mediation and resolution between family members, roommates, or clients at group homes or agencies;
delivering death notifications;
grief and loss counseling;
substance use and abuse counseling;
providing water bottles, socks, and other basic supplies to people;
addressing housing crises;
first aid and non-emergency medical care;
resource connection and referrals;
providing direct funds for essential items;
transportation to services, and
situations in general that do not involve emergent medical or criminal issues.27
When other first responders notice someone in distress from a call (like someone who called about a home invasion), they can ask that person if they’d like CAHOOTS to come and help them process what they’re feeling.28At least once, a CAHOOTS worker has de-escalated a situation by standing between an officer and a civilian to prevent the officer from using mace, but it is unclear if that is a common or accepted practice.29CAHOOTS did not originally have the ability to do most of these things, but as it gained expertise and trust with the department and community, its functions expanded.30
Appendices B and C are tables of available response data for 24/7 and CAHOOTS.
Connecting Clients to Other Service Providers and Programs
Organizations that host crisis-response programs are mostly local organizations that did similar work in their communities before they began administering their respective programs.31This helps them to connect clients to multiple agencies to provide sustainable support, especially for clients with more complex needs.32Common partners include healthcare providers, hospitals, homeless shelters, homeless- outreach agencies, mental-health clinics, substance-abuse programs and clinics, and other emergency-services diversion programs. Austin’s EMCOT program works in tandem with Austin’s other nontraditional 911 program, the Community Health Paramedics.33Olympia’s CRU program was funded by a 2017 public-safety levy approved by voters.34That levy also paid for a program called Familiar Faces, which targets and assists frequent users of emergency services to better support them with long-term care.35
Point of Access
The CAHOOTS program coordinator said their “biggest struggle” is figuring out how clients can access their services, and said it is the “key thing” for communities implementing a crisis response program.36 The Eugene Chief of Police testified before the Oregon legislature that the most important aspect of the program was its ability to be dispatched by the 911 call center.37
All programs can be called by other social service agencies.38Only Edmonton’s 24/7 program is not able to be dispatched directly by 911 call centers.39CAHOOTS and EMCOT did not originally have that ability,40while Olympia’s Crisis Response Unit was integrated into the 911 process from its beginning.41Austin’s original crisis response program, MCOT, is available at a standalone phone number housed at Integral Care’s clinic, while EMCOT is available to 911 dispatchers, EMS, and law enforcement.42Austin 911 dispatchers are now trained to ask whether the caller needs police, fire, or mental health services.43In Olympia, some clients have asked for a standalone number because when they call 911 and ask for the CRU, police “intercept” their call.44In Edmonton, REACH attempts to direct as many 24/7 calls to 211 as possible in order to save 911 callers and dispatchers the time of answering, assessing, and transferring calls; 72% of the program’s 2018 calls were directly to 211 in 2018.45EMCOT also receives referrals and has staff at hospitals and the county corrections complex to connect individuals who may be unable to overcome barriers to services post- release.46
Call-takers are trained to screen for calls that their crisis-response programs are able to respond to, and assess whether there is a likelihood of violence or danger.47A copy of the “911 Dispatch Call-Taking Manual” for CAHOOTS response can be found in section VIII of this report.
Except for Edmonton, where 24/7 partners with 211, each city used its preexisting 911
call center to dispatch calls. In Eugene and Olympia, program workers also carry police radios with the ability to divert calls directly from police, initiate their own interactions, or respond to first responders at a scene to provide assistance.48In Austin, EMCOT workers are stationed at the 911 call center49with iPads, where they can take calls directly from dispatchers, or from first responders at scenes.50Appendix F is a diagram of the CAHOOTS’ dispatch process.
Diversion from Higher Level of Care/PoliceResponse
CAHOOTS called for police backup in 150 of their 24,000 responses last year, or a rate of 1 in every 160 responses (0.625%).51They respond to about 70% of their calls without any other first responders.52Last year, CAHOOTS responded to roughly 20% of all calls dispatched by 911 for Eugene and the neighboring city of Springfield.53Appendix C is a table of available response data for CAHOOTS.
98.7% of law enforcement referrals to EMCOT divert from arrest, and 75.1% of EMS referrals divert from emergency- department transfer and admission.54EMCOT relieves first responders within 10– 15 minutes after arriving at a scene 85–90% of the time.55Arrests of people with mental illnesses in Austin during the program’s first year reduced by 30 percent.56Since the program began in 2013, 7,214 clients have been served, with 3,182 dispatches in 2019.57
Travis County’s Community Health Paramedics “served 1,164 individuals in fiscal year 2019.”58The program is being
expanded, and the county EMS association noted that the city’s recent efforts to decriminalize homelessness have made the program more effective.59By 2019, the program had “contributed to a 60 percent reduction in emergency calls from its target population.”60
In the first two months of Olympia’s Crisis Response Unit, it responded to about 700 calls.61
Following the previous “MAP” program, after 4 years of Edmonton’s 24/7 program, it had responded to over 6,000 unique clients and 38,000 crisis events.62In 2019, 25% to 30% of calls were referred to more appropriate services.63Appendix B is a table of available response data for 24/7.
Each program operates with mobile two- person teams.64Programs use vans that are owned by the host organization or the city and filled with supplies.65
EMCOT workers are master’s level clinicians.66The Community Health Paramedics staff of 15 is divided by the populations they serve (i.e., chronically homeless, elderly, recently incarcerated), and have an average of 15 years of experience.67Olympia’s CRU is “made up of nurses and behavioral health specialists.”6824/7 workers must have at least two years of experience in delivering community-based services, experience working with partners and stakeholders, and
a knowledge and understanding of poverty- related issues.69It is preferred that workers have a degree in social services or a related
field, but candidates who have relevant and related experience are also considered.70
Each CAHOOTS team consists of one medic (a nurse, paramedic, or EMT, who must be state certified with at least an EMT-B certification) and a mental health crisis worker who has substantial training and experience in the mental health field, with a degree preferred but not required.71Some of the medical staff are current nursing students.72Many workers are trained to perform both roles.73Training for CAHOOTS workers lasts “6 months to a year.”74Due to their training, in 31 years of the program no staff member has ever been in a major traffic collision or suffered a major injury while responding to a call.75“A non-judgmental and client-centered approach to communication and service delivery is emphasized. Trainees begin as observers, watching trained team members handle a variety of calls. They also attend weekly debrief sessions to promote better client care as well as address issues of boundaries, rescuing, and worker self-care in order to avoid burnout. Workers must also pass an extensive background check.”76 On average, the training is 500 hours in the field and up to twenty hours in the classroom.77CAHOOTS workers rely on trauma-informed de-escalation and harm reduction techniques.78The administrative coordinator of the program said there are a “trifecta” of qualities they look for: technical knowledge in the area of medical and behavioral health; a belief in client-centered care; and personal experience in crisis situations.79The coordinator said those qualities are helpful so workers can “bring the level of empathy and compassion to the work that we expect of our workers, and
that that’s a really tricky mix to sometimes find.”80
All of CAHOOTS’ services are confidential, free, and voluntary.81CAHOOTS workers log details of their dispatches, including names and addresses of people they interacted with, their mental health diagnoses (if any), and behavioral patterns.82Teams utilize these logs when they are dispatched, allowing them to know what works for specific clients based on past interactions.8324/7 workers record their interactions with clients in an app created by REACH to store client information, so the information can be shared between teams in order to best match the needs of clients.84 The app also automatically generates reports and maps with the aggregate data.85Before creating the app, REACH conducted an impact assessment to determine potential client privacy issues.86
Most CAHOOTS clients are experiencing homelessness, and just under a third have a severe mental illness.87CAHOOTS also responds to calls from the University of Oregon Eugene Campus88and local schools.89Appendix E is a chart with the most common CAHOOTS call factors. 24/7 mostly assists people who are homeless, but some disorder calls for service are diverted from police dispatch to the teams.90The City of Edmonton is in the process of analyzing its 911 dispatch data to see how many calls related to mental health, addiction, and homelessness could be diverted to an expanded 24/7 program.91Of all the people served by EMCOT in 2019, 29% were experiencing homelessness.92
How Programs Got Started
White Bird Clinic, which runs Eugene’s CAHOOTS program, ran a mobile crisis- response program directly through their clinic for years before CAHOOTS began. CAHOOTS has increased from a budget of $288,000 and a staff of 15 in 201093to a $2.1 million budget94and a staff of over 40 in 2020.95
The pilot program for Austin’s EMCOT was known as MCOT, and began in 2006 “without engagement from APD or EMS.”96 The program grew in 2012 as a result of DSRIP funding.97DSRIP is a type of “Medicaid Redesign” which compensates service providers with Medicaid funds to provide services more efficiently.98In 2013, Integral Care created the EMCOT (Expanded MCOT) program to be available to on-scene first responders.99 Later, EMCOT began to take calls directly from 911 operators, and also has clinicians at the 911 Call Center to respond to calls.100 Unlike other cities’ pilot programs, MCOT still operates as a standalone service.101
Austin’s Community Health Paramedics program was created in 2009 and is a DSRIP program administered by the Travis County EMS.102The program is currently being expanded with city funding.103
Olympia’s CRU is in its second year and was integrated into the emergency response system from its beginning. For three months before responding to calls on their own, CRU workers co-responded to calls with officers to build trust with officers and the community, and also to make themselves known in the areas they were going to serve.104
MAP, the multiyear prototype for the 24/7 program, was created after a stakeholder assessment and community engagement session and operated without city funding.105 In 2015, the 24/7 program was created after input from 25 community stakeholders at two separate sessions, and 17 agencies were involved in the development of the new plan.106Edmonton also does 90-day pilots to test potential changes to the program.107In 2015, the Edmonton City Council asked REACH about options for expansion and REACH noted that “it would not be a simple linear expansion with identical resource requirements or results for” each neighborhood.108
CAHOOTS “costs on average $71 an hour.”109REACH estimates that for “every
$1 invested in the 24/7 Crisis Diversion initiative, there is a social return on investment (SROI) of $1.91 in the form of savings in health care, policing, and legal costs.110Costs were reduced for ambulance transport, police, and emergency room services.111For many clients that these programs serve, the cost of an emergency room visit would otherwise fall on the taxpayer, a cost estimated at $1,010 per visit in 2018 by the Federal Medical Expenditure Panel Survey.112CRU’s $497,000 annual budget covers supplies and salaries for six behavior health specialists, working in three two-person teams from 7 a.m. to 9 p.m. seven days a week.113
Travis County (the county encompassing Austin) contributed $1 million to expand MCOT into EMCOT.114CRU, with its first annual budget of $497,000, estimated $110,100 in startup costs.115The original plan for MAP, the predecessor to 24/7, estimated start-up costs of $892,000 for an annual budget of $2,037,530.116
Wages for the programs are: CAHOOTS:
$18 an hour,117EMCOT: $150,000 annually for clinicians,118CRU: $50,992.00 to
$63,745.50 annually,119and 24/7: $20.63 to 24.27 an hour (Canadian dollars).120
Appendix A is a table with each city’s police department and crisis response program budgets, response information for both, as well as estimated savings of the crisis response program.
All of the police departments viewed their crisis-response programs positively; they generally recognize that the workers are better suited to handle certain call types and that when they do it frees up police to work on other matters.121However, there is generally a period after programs first begin when officers are hesitant to fully defer to it, but do so after seeing the program operate effectively.122In Austin, where the program doesn’t operate 24/7, the EMCOT program manager says law enforcement frequently asks when they will have overnight
staffing.123EMCOT provides training to the police department in an attempt to form stronger bonds between crisis workers and officers.124
Lack of Adequate Funding
Every program (other than Olympia’s Crisis Response Unit, which is in its second year of operation) outgrew the program’s demand at least once.125Cities tend to expand programs when they are presented with data about cost savings and hear from community members about the effectiveness of the programs.
Considerations for an Albany Crisis-Response Program
Choosing a Host Organization/Agency
Except for Olympia, each crisis-response program built upon or expanded a preexisting initiative. The programs were administered by nonprofit organizations, either directly or through a subcontract.
Subcontracting may show that the program is “collaborative but separate” from law enforcement, as well as allow for funding streams in addition to those available to municipalities or counties. However, public officials will have less control over the program. When looking for the right organization to administer the program, local governments should look for organizations with (i) a longstanding presence in the community, (ii) a history of delivering similar services, (iii) an ability to track performance and measure success, and
the ability to store client data safely and follow other statutes and regulations.
CAHOOTS is administered by White Bird Clinic, a Federally Qualified Health Center.126Albany has one Federally Qualified Health Center, the Whitney M. Young Junior Health Center,127which currently operates “Whitney on Wheels,” a mobile van unit that provides preventative care such as physicals, chronic-disease management, health and nutritional education, lab tests and screenings, and vaccinations at various partner locations.128 However, for some of the locations, the client must be a member of the partner organization, and the services are only available to clients who are willing to establish Whitney Young Health as their primary care provider.129
EMCOT is administered as part of Texas’ DSRIP (Medicaid redesign) process by Integral Care, one of the members of an Austin DSRIP network.130In Albany, the Better Health for Northeast New York PPS (Better Health) is the local DSRIP network.131One of Better Health’s eleven initiatives includes funding crisis stabilization services.132Within the Better Health network, there are three mobile crisis response programs: the Albany County Department of Mental Health’s Mobile Crisis Team, the Capital District Psychiatric Center’s Crisis Unit, and the Parsons Center’s Capital Region Child and Adolescent Mobile Team.133
Point of Access, Dispatch, Integration withEmergency Response and Service Providers
Crisis-response workers can be dispatched:
(i) directly by 911, (ii) through a separate number, (iii) directly by first responders, or
(iv) some combination of the above. Based
on the experience of the other programs, having all of the above as points of access would help a program be more successful, with 911 access being the most crucial.134CAHOOTS workers have found it extremely beneficial to share radios with the police.135 It allows officers to call for crisis-response workers once they’ve assessed a situation, and workers can ‘preempt’ police response when appropriate.136
All the programs can refer or transport clients to other social-service providers, some after not being originally able to do so.137This allows for direct access to long- term and appropriate care. All programs have a process in place for frequent users of their program in order to provide them more comprehensive services, or to refer them to a different provider for a higher level of care.138
o what call types the crisis response program may respond to,
the frequency of those call types,
locations where calls most often originate from (by police beat, census tract, etc.), and
what times of day those calls are most common.
2. Decide on Program Operations, Structure, and Funding
Solicit feedback from community and stakeholders on design
Decide on metrics to monitor program and measure success
Pursue various funding streams
3. Reallocate Police Funding Towards Program
Here is a detailed Austin City Council hearing about the costs of the then-proposed EMCOT program. Appendix D is a table of police department spending and outcomes for Albany and other municipalities in New York.
4. Issue Request for Proposals (If Subcontracting)
The Request for Proposals should incorporate the takeaways from the first two steps. A copy of Olympia’s Request for Proposals can be found here, which includes requirements for workers. Job descriptions for the programs can be found at the following links: CAHOOTS Medics, and Crisis Intervention Workers; CRU; EMCOT,24/7.
5. Train 911 Call-Takers and First Responders on the Role and Functions of the Crisis- Response Program
All 911 call-takers should be trained to screen for calls that the program will be able to respond to. In Austin, 911 operators are trained to ask whether the caller needs police, fire, or mental health services.146A copy of the “911 Dispatch Call-Taking Manual” for CAHOOTS response can be found in section VIII of the report here.
Police have policies and procedures on how to interact, and in some cases defer to, the crisis response programs in their cities.147
6. Start Pilot, Scale Up, Make Changes
Because other programs have suffered due to lapses in funding, local governments should be ready to authorize mid-year funding increases. This also gives governments additional oversight of nonprofit subcontractors. The program should be collecting enough data on an ongoing basis to analyze, and if necessary, modify its operations.
Currently, local governments have a unique opportunity to reimagine public safety and health, and potentially realize significant savings in doing so. These savings can be reallocated to address root causes of crime and poverty, reducing the needs for services over time. As shown, there is not one way to administer a crisis-response program.148 However, constants among these programs examined can inform local governments in their own efforts to start similar initiatives.
Takeaways from these programs are to (i) include stakeholders in the program design process, (ii) aim to build trust within the police department and community, (iii) have a designated place within the 911 and emergency response processes, (iv) have adequate funding with access to mid-year
increases if necessary, (v) have a capable host organization/agency and be appropriately administratively housed, (vi) properly train employees, 911 call-takers, and other first responders, (vii) use past and current call data to inform operations, and
have the ability to transfer or refer clients to other service providers.
Appendix A: Comparison of Police and Crisis Response Budgets, and Estimated Savings
i. Provides input to the Department of Mental Health and its Director; helps to create the annual local services plan, outlining Albany mental health services.
Albany County Patient Services Coordinating Committee
i. Albany County Department of Mental Health and Department of Social Services coordinate services “for people identified as frequent users of expensive crisis services across different public agencies,”224with “196 individuals served since program inception (2005) with total cost savings of
* Matt DeLaus is in his second year of dual studies for the J.D./M.P.A. program at Albany Law School and SUNY Albany’s Rockefeller College of Public Policy. He is an Albany Law School Government Law Center Fellow and intern, a subeditor for the Albany Government Law Review, and a recipient of both an Albany
Law School President’s Scholarship and The Arthur F. Mathews ’62 Endowed Memorial Scholarship. He cannot fully express his gratitude to Ruchi Patel and Professor Ava Ayers for their support in this work.
414.full.pdf (“Studies generally support that CIT has beneficial officer-level outcomes, such as officer satisfaction and self-perception of a reduction in use of force. CIT also likely leads to prebooking [or post- arrest] diversion from jails to psychiatric facilities. There is little evidence in the peer-reviewed literature, however, that shows CIT’s benefits on objective measures of arrests, officer injury, citizen injury, or use of force.”).
50 “EMS will soon also employ a tool called Telehealth” and “hire two full-time and one part-time clinician who will be able to answer video calls from paramedics or crisis intervention officers.” https://www.kxan.com/news/local/
“I think one of the primary things is the medic and crisis worker combination is what has allowed us to make such significant impacts in our community. By recognizing that behavioral health has a role in physical health, and physical health has a role in behavioral health, you’re able to really kind of treat the whole patient. And there are a lot of folks out there where maybe they don’t have the upbringing or the background to be able to articulate when they’re not feeling well emotionally, but they will reach out to say, “My stomach hurts” – and so [you’re] having that medic become this way for folks to [really] open up about what they’re experiencing emotionally.”
88 See https://police.uoregon.edu/faq#cahoots (“The department works hand-in-hand with CAHOOTS on a regular basis, recognizing that police officers are not the appropriate resource to respond to every situation.”).
cahoots-replace-police-mental-health-trnd/index.html. CRU: The outreach services coordinator for the police department said for the program to build community trust, it had to prove it is “collaborative but separate” from law enforcement. https://www.themarshallproject.org/2020/07/24/crisisresponders. At the same time, the program has to build trust with the police department, with one CRU worker saying “I think they’re hesitant to let us just show up . . . They’re worried about our safety. But the cops are becoming more aware. We’ve been out here for over a year and none of us have been assaulted.” Id. Other workers say that police are deferring more calls to them and trusting them in a wider range of circumstances. See id.
125 CAHOOTS: From 1989 to 2011, the program consisted of one van that did not operate 24/7; the budget has subsequently been increased year over year because of demand for CAHOOTS’ services. See Jack Moran, “Second ‘Intervention’ Van Funded, THE REGISTER GUARD (Mar. 4, 2011) (on file with author). “Based on call volume, demand for CAHOOTS services has increased by over 58% from 2014-2017.” https://www.indybay.org/newsitems/
144 These arrangements are relatively new in the world of social-service financing, and aim to “invest” in programs that address root causes of social issues, thereby reducing long-term spending on social services. See generally https:/ /golab.bsg.ox.ac.uk/the-basics/impact-bonds/; https://youtu.be/nna8Mu-0o1E. The parties consist of (i) a service provider, (ii) one or more third-party financiers, and (iii) a government backer. The parties sign an agreement outlining specific metrics to determine the program’s success, and the service provider uses the financier’s funds. If the program meets the metrics, the government then pays back the financier, with interest. If the program does not meet the metrics, the government does not pay. This arrangement (a) allocates risk for innovative social programs to be placed with third parties, (b) allows government to distribute their payments to the third-party over time for a successful program, instead of the all-at-once funding associated with implementing the program itself, and (c) a properly constructed agreement will produce data for the length of the arrangement, which can then be used when reallocating funding for other programs.
148 The CAHOOTS administrator said that “CAHOOTS isn’t some cookie-cutter [program] that you can just pick up from Eugene and just kind of plunk down in Houston and expect it to work the same, just bigger.” https://www.
Parents who are at risk of deportation face difficult decisions regarding the care of their citizen minor children. If they choose to leave children here in the United States – even temporarily – they must decide how to provide a non-parent with the legal authority for caregiving.
New strategies for parents and children are needed because of the dire circumstances and widespread dragnet of persons at risk of deportations that are sweeping across the country. Federal enforcement agencies, Homeland Security or U. S. Citizenship and Immigration Service (USCIS), are at the center of media and advocate reports on the ramping up of searches, arrests, detentions, and deportations of undocumented residents.
In June of 2018, New York Governor Andrew Cuomo signed into law two new provisions aimed to improve strategies for non-parental care of children by amending New York’s standby guardianship (Chapter Law 79) and parental designation (Chapter 80) laws. This memo will outline the legal and political landscape that has made these laws imminently necessary, as well as two procedures for designating parental authority to non-parents.
Who Is Facing Detention and Deportation?
Statistics from national surveys, administrative data and other sources of information regarding the number of persons who may face detention and deportation vary, but estimates generally place the total population at about 11.1 million, or approximately 3 percent of the U.S. population.
Detention is the practice of incarcerating immigrants while they await a determination of their immigration status or potential deportation. Once detained by Immigration and Customs Enforcement (ICE) and its Enforcement and Removal Operations (ERO), bond is unlikely and deportation likely, because of a recent U. S. Supreme Court decision that permits indefinite detention. A detainee may now be held until either the application proceeding is completed or until removal proceedings have been completed, denying bond hearings to thousands of immigrant applicants and asylum seekers.
In 2016, the United States government detained nearly 360,000 people in a sprawling system of over 200 immigration jails across the country.
In addition to millions of undocumented immigrants, persons who are potentially subject to deportation also include Deferred Action for Childhood Arrivals Program (DACA) and persons with Temporary Protective Status (TPS).
DACA allows individuals who were brought to the United States as children to receive a renewable two-year period of deferred action from deportation and become eligible for a work permit in the U.S. A reported 793,026 people have received DACA initial approval, while 895,574 have received renewals. These figures include 292,070 applications accepted and 273,000 approved in New York State. Many DACA children are now adults who have children who were born in the United States. Plans to phase out DACA were initiated by the Trump Administration on September 5, 2017, allowing Congress six months to pass – a more permanent solution. 
The Trump administration has also said that it will terminate Temporary Protected Status for nearly 60,000 Haitians in July 2019, more than 262,000 Salvadorans in September 2019 and 57,000 Hondurans in January 2020.
Citizen Children Who Are Minors
Children who were born in the United States are citizens. They have birthright citizenship pursuant to the 14th Amendment of the U.S. Constitution:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside.
Among the millions facing deportation, there are many parents with children who are United States citizens because they were born here, but who have not reached adulthood. Almost six million citizen children under the age of 18 live with a parent or family member who is undocumented.Additionally, a recent report from the Center for Migration studies estimates that more than 273,000 U.S.-born children have a parent with TPS from these countries. The number of DACA dreamers with minor citizen children is not known.
Options for Care of Citizen Children
In New York, a variety of custodial arrangements can provide care for children. Most involve court proceedings: state care and custody (foster care) via Family Court Act Article Ten abuse and neglect proceedings, surrenders for adoption (N.Y. Soc. Serv. Law §383), voluntary placement agreements (N.Y. Soc. Serv. Law §384a), or destitute child status (N.Y. Fam Ct. Act 10-C). In addition to state care, there are also private court ordered arrangements: adoption (N.Y. Dom. Rel. Law. §112b, guardianship (N.Y. Surr. Ct. Proc. Act §1700) and N.Y. Fam. Ct. Act §661, legal custody (N.Y. Fam. Ct. Act §651). A few informal custody arrangements do not require court proceedings: parental designation (N.Y. Gen. Oblig. Law §5 1551ff; and “persons in parental relationship” (N.Y. Educ. Law §3212; N.Y. Pub. Health Law §§2504, 2164).
Court proceedings invariably will include scrutiny of the proposed non-parent caregiver and their household. Investigations may involve criminal record checks, home studies, orders of protections records, domestic violence, sex offender, and child abuse registry checks, and caregiver residential histories.
For persons who may become caregivers of children whose parents are facing deportation, there are fears that such investigations may bring the unwelcome attention of federal immigration authorities.
Risk of ICE Identifying Undocumented Residents Because Of Court Proceedings
This memo does not attempt to describe how ICE may identify person involved in family court proceedings who are subject to deportation. However, it is important to provide some relevant information that illustrates the issues.
It is not uncommon for immigration authorities to obtain family court information by requiring individuals who are applying for immigration benefits or relief from removal to produce their family court records. Individuals are frequently compelled to produce records regardless of the privacy protections afforded by the New York Family Court Act and other state regulations. In other cases, immigration authorities discover family court information automatically through data-sharing agreements between state, local and federal agencies.
Harmful immigration consequences can also be triggered when an Order of Protection is
issued by the Family Court and entered into the New York State Order of Protection Registry (“OP Registry”).
An NYS Office of Court Administration Advisory Council on Immigration Issues in Family Court Memo: “Adverse Consequences to Family Court Dispositions”, examines in detail when family court proceedings may result in federal authorities identifying immigrants who may be subject to detention or deportation. The memo lays out the limited circumstances when information may reach federal authorities. But despite the apparent limitations, families are understandably suspicious and fearful that court proceedings could lead to arrests and detentions.
Standby Guardian and General Obligations Laws Provide “Springing” Powers for Provision of Care
At the end of the 2018 legislative session, New York’s Legislature passed two amendments that Governor Cuomo signed into law at a signing ceremony on June 24th in the Bronx. The two chapter laws amend statutes that provide for the designation of parental powers that may “spring up” upon the arrest, detention or deportation of a parent. The standby guardian written designation is valid for sixty days whereupon the named standby must file a petition for appointment (NY CLS SCPA § 1726(2)(d)(iv)). The parental designation (NYS General Obligations Law §§ 51551-55) does not require court appointment and thus may be of special importance when families wish to avoid the risks of unwanted attention from federal immigration officials.
Standby Guardianship Chapter Law 79 of the Laws of 2018
The Surrogate’s Court Procedure Act (SCPA) provides that a standby guardian can be appointed (NY CLS SCPA § 1726(1)(a)). “Standby guardian” means (i) a person judicially appointed … as standby guardian of the person and/or property of an infant whose authority becomes effective upon the incapacity, administrative separation, or death of the infant’s parent, legal guardian, legal custodian or primary caretaker or upon the consent of the parent, legal guardian, legal custodian or primary caretaker; and (ii) a person designated … as standby guardian whose authority becomes effective upon the death, administrative separation, or incapacity of the infant’s parent, legal guardian, legal custodian or primary caretaker or upon the debilitation and consent of the parent, legal guardian, legal custodian or primary caretaker.
The Chapter Law amends the Surrogate’s Court Procedure Act to expand §1726, allowing designations for a “standby guardian” to include parents facing “administrative separation” i.e., detention or deportation, etc.
Administrative separation is defined as “A parent, legal guardian, legal custodian or primary caretaker’s (I) in connection with a federal immigration matter: arrest, detention, incarceration, removal and/or deportation; or (II) receipt of official communication by federal, state or local authorities regarding immigration enforcement which gives reasonable notice that care and supervision of the child by the parent, legal guardian, legal custodian, or primary caretaker will be interrupted or cannot be provided.”
Originally, this statute was enacted at the height of the AIDS crisis, to facilitate the immediate transfer of guardianship powers when a parent or a guardian can foresee their inability to care due to debilitating illness or death. In 2000, SCPA §1726 was amended to add a legal custodian or certain primary caretakers to designate or seek appoint of a standby guardians. Until June 27, 2018 the statute allowed a written designation of a standby guardian for their child in the event of their 1) incapacity, 2) debilitation and consent, or 3) death. Designated standby guardians’ powers are valid upon the occurrence of the springing event, but only for sixty days, wherein the standby should seek to petition for guardianship. With the 2018 amendment, parents facing deportation can now complete the statutory designation form and know that if they are detained, their designated standby guardians can immediately care for children and can petition for appointment as their guardian.
Parental Designations Chapter Law 80 of the Laws of New York
The Chapter Law amends NYS General Obligations Law §§ 51551 and 1552 to extend the time period from six months to twelve months that a parent or guardian is permitted to name a caregiver as a person in parental relation, who has limited authority to make most decisions about schooling and medical care for a minor child or an incapacitated person. Designation for periods beyond one month must be notarized and contain certain information. No court involvement is required for the designations, ensuring privacy for many parents who may be reluctant to bring attention to caregivers and their kin. By extending the designation period to twelve months, the requirement of notarization becomes less onerous, particularly for parents residing outside the United States. Importantly, the authority may spring up upon a designated event or date.
The state Office of Children and Family Services (OCFS) has published a sample designation form. The form is available at the NYS Kinship Navigator and at OCFS web sites. See OCFS Form 4940 (06/2018). The form’s section 4(d), pursuant to the statute, allows for the authority to spring up when a designated event happens.
The springing power is an especially useful tool for parents facing potential deportation or immigration detention because, just like the standby guardian springing power, it can be used to arrange care for children that springs up upon a stated condition, i.e. arrest, detention, etc.
In Chapter Law 79, the term “administrative separation” is defined as a suspension of care between parent and child caused by incarceration, removal and/or deportation, in connection with a federal immigration matter. In drafting designations for parents facing detention/deportation, the springing power can borrow the language of the standby guardian Chapter Law regarding “administrative separation.”
The following language (copied from the standby guardianship amendment) can be inserted in section 4(d) of the designation form to allow a person in parental relationship to be designated in the event of a parent’s administrative separation:
Any authority granted to the person in parental relationship pursuant to this form shall be valid (check appropriate box and initial):
___ d. commencing upon thedate I become subject to an administrative separation such that care and supervision of the child(ren) will be interrupted or cannot be providedand continuing untiladministrative separation has endedor until the date of revocation, whichever occurs first.
Notarization in Other Countries
The standby guardianship designation does not need to be notarized but the parental designation must be notarized by a parent and by the designee for periods greater than thirty days. For parents who have left the country and need to notarize abroad, federal law states that notarizing officers at any United States Embassy or Consulate abroad can provide a service similar to the function of a notary public in the U.S. For information relating to notarial services with respect to specific countries, including office locations, consult the U.S. Department of State’s website. While for periods greater than thirty days, the designee must also notarize, the designee notarization does not have to be concurrent with the parent’s (and designee notarizations could be performed in the United States).
The parent must personally appear at the embassy or consular office and bring the document with him. The office will establish their identity; establish that they understand the nature, language and consequences of the document to be notarized; and must be satisfied the act does not come within the purview of a regulatory basis for refusal. Then they will provide the notarization.
Most notarizing officers may also authenticate documents, which means that the consular seal is placed over the seal of a foreign authority whose seal and signature is on file with the American Embassy. The authentication merely attests to the seal and signature of the issuing foreign authority. Notary and authentication services may be performed for any person regardless of nationality so long as the document in connection with which the service is requested is required for use within the jurisdiction of the United States.
It is also possible to have a document notarized by a local foreign notary (instead of going to the embassy or consular office) and then have the document authenticated by the proper authority in the foreign country for use in the United States. In accordance with 22 CFR, Part 131, the Office of Authentications provides signed certificates of authenticity for a variety of documents to individuals, institutions, and government agencies. Examples of documents that may require authentication for use abroad include: company bylaws, powers of attorney, trademarks, diplomas, treaties, warrants, extraditions, agreements, certificates of good standing, and courier letters.
The U.S. Department of State only issues apostilles for federal documents to use in countries that are members of the 1961 Hague Convention. In countries that are a party, this is a simplified process. An Apostille certificate is attached by the foreign notary regulator, verifying that the notary certificate on the document is authenticated. This means the individual may have the document signed by a local notary, and then contact the country’s notary regulator office to have the Apostille certificate attached.
If a country is a party to the Hague Apostille Convention, the US automatically would accept the local foreign notary as long as an Apostille certificate is attached. Note that Haiti is not a party to the Hague Apostille Convention.
With so many parents facing deportation, immigration attorneys, as well as estate planners and other attorneys who are assisting families with future planning, now have new tools that can assist in keeping children who are citizen in the United States and in the care of persons chosen by their parents or caregivers. Unfortunate as it may be, parents who make the hard choice to leave children here, can do so without the risks of court appearances. It is hoped that circumstances will not always remain so dire but until then, New York’s statutory amendments provide improved strategies for care that should assist many families who are facing deportations of parents or caregivers.
 Gerard Wallace, Esq., is the Director of the New York State Kinship Navigator and a Public Service Professor at the University at Albany, School of Social Welfare.
 While this memo often refers only to parents, it is important to note that the standby guardian statute also permits guardians, legal custodians, and certain “primary caretakers” to petition or designate a standby, and the parental designation, in addition to parents, also permits guardians to designate.
 In Jennings v. Rodriguez, 138 S. Ct. 830, (Feb. 27, 2018), (Alito, J.) in a 5-3 decision, the US Supreme Court reversed and remanded a Ninth Circuit decision which concluded that detained aliens have the right to periodic bond hearings during the course of their detention. As a result, indefinite detention is allowed for applicants for admission and detainees.
 Numerous statutes codify procedures and standards regarding various custodial arrangements. Listed here are just a few of the most relevant.
 Under the Trump administration’s executive orders, access to family court information can bear special risks because undocumented immigrants who were not previously targeted for immigration enforcement are now priorities whenever they engage in conduct that “constitutes a criminal offense” or is deemed by any individual immigration officer to “pose a risk to public safety.” This wide discretion and broadly worded language suggests that any arrest or other conduct deemed “a risk” may prompt Immigration and Customs Enforcement (“ICE”) to apprehend a noncitizen, regardless of whether the conduct results in criminal prosecution and conviction.
 Information from orders of protection are immigration-related triggers for several reasons. A family court finding that an individual has violated an order of protection, even a temporary one, is grounds for deportation. Even if an order is not violated, the existence of a temporary or permanent protective order can be grounds for denying an individual an immigration benefit or relief from removal. An order of protection may also prompt questions about the underlying conduct, and additional requests for family court records.