By Anthony Bandiero, attorney and senior legal instructor for Blue to Gold Law Enforcement Training.
A question from an officer in California who responds to the same hospital daily. The patient has already been seen, does not want to leave, and wants to be readmitted. The hospital wants PD to remove him. The jail does not want him either.
Can a person be trespassed from a hospital in California?
Can a person be trespassed from a hospital in California? All right, it’s a good question. My name is Anthony Bandiero, attorney and senior legal instructor for Blue to Gold Law Enforcement Training, bringing you the roadside chat.
This question again comes from an officer in California. He says, well first of all, he said, I wanted to thank you for all you do for the LEO community, I’m an avid follower of your content and frequently show your videos at roll call. Man, that’s exactly what these videos were kind of meant to be, is showing them, having conversations, whether I’m right or wrong. You can disagree with me all you want, but just get that conversation going so you’re out there doing the right thing and you’re articulating what you’re doing and so forth.
My question relates to the seizure of an individual refusing to leave a hospital, right, maybe a detention. We respond to calls daily at our local hospital to meet with hospital security regarding a subject disturbance in the ER lobby. 99 out of 100 times the subject in question in the lobby has already been seen by medical staff and he does not want to leave. He’s refusing to leave, he wants more treatment, he wants more drugs, he wants more x-rays, he wants a different doctor and so forth. I get it. And he’s saying that you have not addressed my medical concerns.
The hospital staff is always eager to have PD respond to kick the patient out. However, the patient usually wants to be readmitted and get seen and evaluated again. We explain to the staff that we are not able to arrest, detain or kick out the subject who now wants to be seen again by medical staff.
This seems to be a revolving door issue where the subject is unhappy with the service, causes a disturbance leading to PD being dispatched, and is ultimately walking away after the subject readmits into the hospital. So it’s almost like the hospital has no choice but to readmit this person.
Would there ever be a point where the subject in question could legally be trespassed, even arrested from the property, if they have been discharged and are not willing to be reseen by medical staff, are refusing to leave the ER lobby?
Okay, he expresses his doubts about arresting this patient. I understand that. But, the jail staff would immediately push the big red button given we took them from the hospital, and would call paramedics who ultimately would take the subject right back to the same hospital. All right, he says, I know we can’t be the only agency dealing with this issue, any legal education?
What does California Penal Code 602 actually say?
All right, first of all, so there’s a few things here. So let’s look at Penal Code section 602. It’s California’s trespassing statute, and this is a very long and unfortunately slightly convoluted piece of work here. A lot of states have like four lines of sentences that just talk about, if you’re told to leave you better leave.
But subsection o says trespassing occurs when the person is refusing or failing to leave land, real property or structures belonging to or lawfully occupied by another and not open to the general public, upon being requested to leave by a peace officer at the request of the owner or the person in lawful possession, and upon being informed by the peace officer that she is acting at the request of the owner, the owner’s agent and so forth.
Is a hospital a public forum you cannot trespass someone from?
This applies to hospitals. It applies to private property, it applies to public property. A person has no inherent right to stay at the DMV because it’s cold outside. Buildings have a purpose.
Certainly there are places where you have to be careful because it could be a public forum. So the park has a purpose, for leisure and relaxation and sports and stuff, whatever it is, but if the person’s engaged in the First Amendment, that’s a public forum. But the DMV is not a public forum. It’s a place where you get your driver’s license and so forth and you get bad service and you hate your government. The corrections, the jails, are not public forums, so people can be trespassed from there. And hospitals are not public forums. They can be trespassed from a hospital.
But of course you want to be careful here, because the officer is very astute about the whole revolving door issue. If you end up arresting this person and you bring him to the jail and they are told, yeah, we just grabbed this guy from the hospital and he wants to be seen again, they’re going to call paramedics. And it sucks, it really, really sucks to be caught in this position.
But at the end of the day you can’t say that they can never be trespassed, because that would mean it’s a safe haven for people that don’t want to be sleeping outside but they don’t have a medical condition that’s going to be treated. They go to the hospital, they’re then released, and they say I want to be retreated, and they’re like, we’re not letting you in here, and they say okay, well I’ll be sleeping over in this corner because the police can’t touch me. That’s not reasonable either. So we have to have like a balance here.
Does the federal screening law change the answer?
So there is an issue though, that under California law, this is, there’s something called the Emergency Medical Treatment and Labor Act. Hospitals must provide medical screening to anyone requesting care. So the individual’s intent, they’re looking for care, will influence this decision and so forth.
I am not remotely at all educated on this EMTALA law, not even close, but I am smart enough to know that pretty much every state has a law on the books that hospitals must provide emergency care to those requesting it even if they cannot afford to pay. That I know is a federal law. So there’s no right to refuse people in medical distress and so forth.
However, I’m also smart enough to know that a hospital is not a free for all for people just to get all the care they want at taxpayer expense. If the person is not in a medical emergency and they just have something that they can’t diagnose, or something that the person needs to see a specialist for, and the emergency room is not the place to service them, then they don’t have a right to stay there. I do know that.
Who actually needs to be in the room to fix this?
So here’s my advice. We really need, with something like this, you really need to get the stakeholders involved. You really need to get legal counsel from the hospital, and somebody like a captain over at the jail, and somebody like a deputy chief or somebody at your department. You got to get these guys all together and you guys say, look, what are we going to do here?
Because the hospital’s pissed off that these people are not being taken away, the jail is concerned about their liability, the cops are stuck in the middle. We don’t know what the heck is going on here, because it seems like the person being at the hospital and taking them away is potentially causing a huge loss if they die. What do we do here?
Here’s my suggestion to get the conversation started. Get these people in the room, and here’s how I think it kind of looks. The hospital has to be willing to write a statement. Somebody in that hospital that is the appropriate person, whether it’s a doctor or a nurse, has to be willing to write a statement about this particular person, that they have been seen, that they are not suitable for care at this time, they don’t have an emergency, they need to see a specialist, whatever it is, something that complies with these laws. They know what the law is and they’re saying this person is not going to be admitted to the hospital, so he’s done with his services, and therefore because he’s done with the services he’s no longer allowed to be in this facility, we got to make room for other people.
Sign that, give it to the cop. Then hopefully de-escalate, persuade this person to leave. If they do not leave, they go to jail and they get evaluated by the nurse and we go from there. Hopefully the jail can come up with some kind of balance here. But the point is, something has to give.
Now the officer did say, I know we’re not the only agency. That is true. But I have not researched this issue. This is really one of the few times that’s come up in my world. But I certainly agree that this is something that likely occurs on a very regular basis. But this is probably above the patrol officer’s pay grade. It’s going to require stakeholders, especially at the hospital. What are they willing to do to help mitigate or eliminate police liability for taking a patient away from a hospital when these cops have no idea what they’re supposed to be doing with these medical issues?
The short version
- California Penal Code 602, subsection o, covers refusing to leave property not open to the general public after a peace officer requests it on the owner’s behalf.
- It applies to hospitals. It applies to private property and to public property.
- A hospital is not a public forum. Neither is the DMV, neither are the jails. People can be trespassed from them.
- A park can be a public forum if the person is engaged in the First Amendment.
- You can’t say a patient can never be trespassed, because that turns the ER lobby into a safe haven.
- The federal screening law cuts the other way. Hospitals must screen anyone requesting care. I am not remotely educated on that law, but I know it exists.
- A hospital is also not a free for all for all the care you want at taxpayer expense.
- The fix is stakeholders, not patrol. Hospital legal counsel, a captain from the jail, a deputy chief.
- What you want from the hospital is a signed statement from the right person saying this patient has been seen and has no emergency.
- Then de-escalate, persuade, and if they still refuse, they go to jail and get evaluated by the nurse.
I hope this helped to some degree. At least it’s a conversation. So if you like what we’re doing here, please like, subscribe, share with your friends.
Until next time, my friends, you stay safe.
Related from Blue to Gold
- Detention for Criminal Trespass
- Can Police Help EMS Force an Overly Intoxicated Person to the ER?
- Entering a Home to Seize a Person For a Mental Evaluation
This article is an edited transcript of Roadside Chat EP#745. It is legal training, not legal advice. Check your state law and your agency policy, because both can be more restrictive than the Fourth Amendment.
