When Maria’s brother, John, who lives with severe schizophrenia, is experiencing a particularly bad episode, she found some comfort knowing that local authorities in Boulder County would be able to get him to a treatment center to get him the care he needs.

If only for a little while. 

“What it does for me when I get him in (treatment) is it lets me get in his house and do some cleaning and get a break from him,” she said.

John lives on his own and hasn’t routinely taken medication for his schizophrenia in years. Maria and the rest of her family agree that what John really needs is permanent residential treatment. But finding him a bed has proven impossible, Maria said. 

That’s why she has relied on petitioning for court-ordered mental health evaluations, which she estimated she had done seven to eight times in the past five years.

As she explained it, she would send a judge a petition detailing all relevant information about John and his situation, the judge would approve the petition, it would go through the district attorney, and a court order would be issued to the Boulder County Sheriff’s Office to pick John up and bring him in to treatment.

But that final step in the process has changed recently, and it’s preventing John from receiving the treatment he so desperately needs, said Maria, who agreed to speak to Colorado Politics on condition of keeping her and brother’s identity anonymous.  

Late last spring, Maria went through the familiar process of filing a petition for a court order for John. She said she prefers not to be there when deputies pick her brother up, so she usually relied on a call from the Boulder County Sheriff’s Office to let her know he’s been brought in for treatment.

However, this time, she never received a call. 

“After a few days, I called the sheriff’s office to see if they got the order and had been to my brother’s house, and the gal on the phone said yes — they went by, but he did not agree, or something of that nature,” she said. “I was like — what do you mean he didn’t agree? I’m just at a loss for words. I was like — if he would agree to go, why am I even getting a court order?”

Maria said she then wrote a “pretty scathing” email to Boulder County Sheriff Curtis Johnson, who called her and explained what had changed.

Maria said Johnson told her about Senate Bill 20-217, an omnibus legislation dealing with law enforcement that went into effect in 2023.

Because of the provisions outlined in the bill, Johnson told Maria, deputies were only able to bring individuals in for mental health evaluations if they agreed to go with them. 

“(Johnson) said they weren’t really happy about it because they’d like to just do their job,” Maria said.

Law enforcement agencies have been critical of the 2020 law, which, among other provisions, limited qualified immunity for law enforcement, eliminating it entirely as a defense in civil lawsuits.

Departments across the state have taken measures to mitigate the risk of any potential legal liabilities, and Maria said she believes her brother’s case is one of them.

However, she said, she doesn’t understand what changed between the last time deputies brought John in for treatment and SB20-217 going into effect, because, as far as she’s aware, deputies never used force on John in the past.

So, she said, the claims about wanting to avoid using force don’t quite add up. 

Maria said she’s at her wit’s end when it comes to what to do about John. She tried to petition for legal guardianship of her brother, but she said even that wouldn’t allow her to bring him in for mental health treatment against his will. 

“There’s absolutely no way except to petition to get him to the hospital,” she said. “So, I have no tools left, and frankly, I’ve just decided I can’t stress about it anymore.”

Maria, who owns John’s home, said she’s going to have to evict him soon because he destroyed his furnace for the second time, requiring costly repairs. 

“I am thinking this is the end of the line,” Maria wrote in an email. “I have done everything I can and I can’t do this anymore.”

‘We can be helping these patients and we’re not’

Karen Rice, the vice president of Psychiatric Services and Operations for Clinica Family Health and Wellness, said situations like John and Maria’s are all too common.  

“This is a longstanding problem in the state,” she said, adding that each county has its own slightly different approach to handling court-ordered mental health evaluations, also known as certifications.  

Rice has practiced psychiatry in Boulder County for several years and noted that before SB 217 went into effect, law enforcement had no issues acting on court orders for mental health evaluations. She acknowledged that while force was occasionally used in these situations, it was “pretty rare.”

“I don’t want to speak for law enforcement, but I think sometimes they worry that what they think of as force is not what the court thinks is force, and the only one who’s really gonna decide what is force is when something bad happens and you’re in front of a jury,” she said. “So, it’s my understanding, based at being at a conference with the sheriffs, that even a court order is not enough for them to feel legally protected to go into the patient’s residence, for example.”

Rice added: “In the past, when we had qualified immunity, the police, at least in Boulder, used to do more, but now, unless the patient is willing to just open their door and voluntarily go with the police, (the mental health evaluation) just doesn’t happen.”

Rice said she and other mental health professionals are also at a loss when it comes to finding effective solutions. She noted that mental health professionals are often blamed and accused of not doing enough to help those with severe mental illness. She contended that this is simply untrue. 

“I think it’s common to say these are mental health patients, they’re in your lane as a mental health provider, you deal with it. It’s not in my scope to physically bring someone who does not want to go into a hospital. I’m not a court. I can’t legally mandate anything; the court has to do that,” Rice said. 

Rice said she believes the courts need to give clearer guidance to law enforcement when it comes to handling individuals with severe mental illness, because the way things are now, some citizens seem to think that mental health professionals are simply refusing to treat them. 

“The narrative becomes that you don’t want to treat these really ill patients, and that is so far from the truth,” she said. “The truth is we know if we take a certification and we know our police or our courts are not gonna cooperate with it, they’re not gonna partner with us to do that. And I’m not saying their reasons aren’t valid. But if I have a patient on a certification and they don’t show up, there’s nothing I can do. So, then the mental health agency looks like the bad guy.”

Rice has served on state mental health boards and been actively involved in legislative efforts in the area of mental health care, but she said many of those attempts were unsuccessful. She acknowledged that the best approach may be to focus on change at the local level. 

“We’ve got to find another way to try to help these people, and that has really been through community partnerships and really trying to build relationships with the courts and law enforcement. It’s kind of on each individual community to see if they can come up with a solution,” she said. 

For Rice, the most frustrating aspect of the whole situation is seeing people unable to access readily available and potentially life-changing treatment. 

“The problem is not that these patients can’t be helped,” she said. “These patients absolutely can be helped, and I want that come to through loud and clear. That’s why it’s just so frustrating — we can be helping these patients and we’re not.”

‘We will not use force’

When asked about its policies for mental health evaluations, Carrie Haverfield, a spokesperson for the Boulder County Sheriff’s Office, said that the department “discourages” deputies from using physical force on individuals with mental illnesses if they haven’t done anything illegal.

Maria said that’s completely understandable, but she said force was never used on John to begin with.

So, what changed?

“The resolution of each situation is evaluated on a case-by-case basis considering a variety of factors,” said Haverfield. 

Inquiries with nearby sheriff’s offices turned up similar responses.

“If the person refuses to comply with the order, we will not use force to execute the warrant,” said Cocha Heyden, a spokesperson with the Douglas County Sheriff’s Office “We do not want to escalate a situation. We like to utilize our CRT (critical response team) units because they can spend more time talking to the person about the situation and have been very successful in gaining compliance.” 

John and Maria happen to live in the district of Rep. Judy Amabile, D-Boulder, who has worked extensively on mental health legislation.

While she wasn’t in office when SB 217 passed, as a lawmaker, she had heard plenty of criticism about it from the law enforcement community, so she and her colleagues decided to do something about it — or at least try. 

During the 2022 legislative session, Amabile, Speaker of the House Rep. Julie McCluskie, D-Dillon, former Sen. Dominick Moreno, D-Commerce City, and Sen. Bob Gardner, R-Colorado Springs, sponsored House Bill 1256, which, among other things, authorized law enforcement officers to transfer individuals with severe mental illness to a medical facility for an evaluation.  

According to Amabile, she and the other sponsors tried to cut a deal with law enforcement so they would be more likely to comply with the provisions of SB 1256.

Those provisions, technically, are not a requirement, but an authorization — in Amabile’s words, it tells law enforcement that they “can and should” transport individuals to a facility if needed.

But those attempts to get law enforcement to act have so far been unsuccessful, sources said.  

“With this bill, we knew that there was some resistance to law enforcement taking people because of SB 217, so we offered a carve out for mental health holds and presented some language to law enforcement,” she said. “At the end of the day, they didn’t want us to do that. I don’t know whether that was because they didn’t think it was necessary, or because they didn’t want to have to do it, or what, but there is nothing that says they can’t do it. They just aren’t going to do it anymore.”

According to the new statute, law enforcement can place an individual on a mental health hold if the person poses a threat to themselves or others, or is “gravely disabled.”

“It basically means you cannot take care of yourself, and that not being able to take care of yourself puts you at risk of harm,” explained Amabile. 

While John lives on his own, Maria said he doesn’t shower or clean up after himself.

In Amabile’s eyes, John would most likely qualify as “gravely disabled.” 

“I would say that if she’s getting the court order, then the court believes that some of these conditions have been met and that he is either a danger to himself, a danger to others, or gravely disabled,” the legislator said. 

Amabile said she’s heard that law enforcement has been reluctant to act on SB 1256 because “they feel like there’s some potential liability that they take on.” She said she has been told that departments are more likely to act if an individual is presenting a harm to others than if they’re posing a threat to themselves, which she believes is most likely because harming others is a crime, but harming yourself is not.  

“It was definitely our intention in the rewrite of this statute that certified peace officers were involved in this work,” she said. “We need law enforcement to be involved in this service to people who are having a mental health crisis. We need to be able to get them into treatment and into care, and we need to partner with law enforcement on that.”

When asked about its policy on SB 1256, the Boulder County Sheriff’s Office said the latest legislation is silent on a crucial matter for law enforcement. 

“While HB 22-1256 provides legal authority for peace officers to take individuals into protective custody for transport to a medical or mental health facility, the bill is silent on whether peace officers may lawfully use physical force to effect these transports,” the office said. “Absent legislation directly authorizing peace officers to use reasonable physical force in these circumstances, and absent legislative direction on the interplay between the lawfulness of such a use of force and the limits on and liability for uses of force in Senate Bill 20-217, peace officers remain in the predicament of trying to negotiate competing legislative directives in an uncertain legal landscape.”