Abstract

Excerpted From: Sunita Patel, Embedded Healthcare Policing, 69 UCLA Law Review 808 (May, 2022) (314 Footnotes) (Full Document)

Dan Lincoln is a Black Vietnam-era U.S. Army veteran from the South. He experienced his first psychotic break while in service and was medically discharged in 1979 after months of inpatient psychiatric treatment peppered with violence and harm at the hands of staff. He has received veterans' healthcare treatment for substance use and schizophrenia, among other conditions, for many years. About fifteen years ago, in distress-- perhaps with thoughts of self-harm or auditory hallucinations--Mr. Lincoln went to a U.S. Department of Veterans Affairs (VA) hospital in Florida. Upon arrival and during his wait, he experienced additional distress caused by the bright lights, noise, and a crowded waiting area. Searching for a quiet place, he crawled under the desk in an unlocked dark office to calm himself. It was a hot Florida afternoon. He was sweating so he took off his shirt. When the staff member whose office he was in returned, they startled each other. The next thing he remembers is jail. He was charged with burglary of an empty structure and drug possession, among other offenses. Even though he went to the hospital for medical care, Mr. Lincoln served two years for the incident; upon release he was unhoused for nearly 15 years; and the VA placed a flag on his electronic medical records indicating a prior “disruptive” event.

Since the death of George Floyd, the United States has been reckoning with racialized violence in Black communities. Common proposed antidotes to counter bloated police operations often include governmental health care, mental healthcare, or social work. The opening example illustrates that such reforms do not necessarily account for the degree to which institutions whose primary function is to dispense care, instead serve as sites for (rather than sites free of) the regulatory, disciplinary, and violent dimensions of policing. To extend the opening example, Mr. Lincoln believes the flag on his electronic record affects how hospital workers treat him, and that the Florida VA signed an order requiring Mr. Lincoln to report to VA police before any medical appointments. Sometimes the police even follow him within medical facilities. He views these actions as restrictions on his access to essential medical care. The flag and order stay with his medical records, even though Mr. Lincoln has been substance-free for three years, moved to a different state, and now owns his own home.

Reformers and scholars alike must grapple with how difficult it will be to decouple healthcare and policing to reduce its role in society. Hospitals are a case in point. They are quintessential care institutions, but even they have become policed spaces. Since 2021, over half of the states authorize hospitals to create their own police forces, backed by state legislation granting them arrest authority in response to crime reports within hospitals, parking lots, and property surrounding medical facilities. In addition, care workers--such as nurses, doctors, and social workers--act as pseudopolice, entrenching carceral logics into the culture of care institutions through stringent federal and state safety training and reporting requirements that bring hospital employees into crime-control and surveillance frameworks.

A growing law literature foregrounds how policing embeds itself in the structures and practices of healthcare delivery systems. These scholars have focused on the limits of privacy in the Fourth Amendment, excessive force doctrine, the Health Insurance Portability and Accountability Act (HIPAA), and medical ethics. Much of the work to date has focused on emergency departments, paramedic responses, and the role of care workers in knowingly and unknowingly extending police investigatory and search authority. This scholarship also connects racial bias and histories of racism in medicine, such as eugenics, to the current relationship between police and hospitals. It draws attention to the violence poor and Black patients face at the intersection of law enforcement and healthcare. Yet still, more scholarly investigation is needed to understand precisely how carceral logics and care work--defined in this Article as medical, mental health, and social work-- mutually influence one another. Examining the nexus between these two is precisely the aim of this Article.

This Article contributes to the scholarly understanding of the co-constitutive relationship between policing and care work in a specific and unexamined context: the infrastructure of the largest embedded U.S. police force within the country's largest public healthcare system, the VA. This health system is designed to address the needs of persons with histories of complex trauma, substance use, and disabilities such as traumatic brain injuries. The VA police force (VAPF) budget supports approximately 5500 VA police officers and detectives operating in 1298 VA healthcare facilities and clinics that care for nine million patients and employ nearly 400,000 workers. For perspective, if the VAPF were an urban police department, it would be among the ten largest. Among federal administrative law enforcement departments, it is the eighth largest.

This federal law enforcement agency polices one of the most historically marginalized and vulnerable populations in the United States--veterans of the U.S. Armed Forces accessing medical care through the VA. The demographics of Veterans Healthcare Administration (VHA) clientele demonstrate how the “healthcare policing web” described here harms an already multiply-marginalized social group. Its patient population largely mirrors the communities most harmed by the police: survivors of trauma and sexual assault, people of color, people with disabilities, women, and low- income, uninsured, and/or transgender veterans. Thus, the subjects of VA policing interventions are often unhoused, Black or Latinx, in recovery, transgender, or veterans with disabilities. For this reason, this Article views veterans through their intersectional identities, such as race, age, disability, and gender, even when the available policing data does not provide that demographic information; because in reality, interactions with police are mediated through multiple identities, not solely veteran status.

I use the VAPF as a cautionary tale to assist reformers and scholars with the project of decoupling police from institutions. This Article presents the VA as a concrete example of how carceral actors, logics, and practices can shape the cultures of institutions, such as hospitals, that are often assumed to exist separately from the problems of policing, and are thus removed from this moment of societal reconfiguring. This Article argues that policing embeds itself in hospitals and healthcare settings and creates path dependency between police and healthcare institutions to enlarge systems of behavioral monitoring, surveillance, and workplace safety. Pre-existing and sometimes invisible forms of discipline and carceral logics, expanded through embedded policing, shape the design of institutions and the structural violence they reproduce. The VA is a particularly salient example. Almost all the troubling dimensions of policing that figure as political and movement battle cries in the current moment are playing out on the bodies of veterans in the context of VA hospitals. These problems include racial profiling; police violence; institutionalized surveillance; and the exploitation, mismanagement, and inattention to people with disabilities. Scholars, policymakers, and community organizers should recognize that how police officers structure access to veterans' healthcare is relevant to debates about police reform and therefore they should include the VA as a site of contestation over the future of policing.

This Article's analysis is based on official records, court documents, and interviews. I have reviewed the Congressional record including oversight hearing transcripts. I relied on the federal register, internal audits, and reports about VA security and police operations. I spoke to VA staff, veteran patients, legal service providers and veterans' organizations in a few different locations nationally. I relied upon the VA's limited data analysis for police interactions with patients and visitors. Based on this set of information and data, I developed this Article's analytic frame for understanding how and why police are embedded in healthcare facilities that serve race- and class- marginalized patients and communities.

Part I provides a primer on the VA and its patients. It then situates the history of how workplace safety concerns converged with order maintenance and disability management policing in the 1980s and 1990s. Police imbrication distorts the role of VA hospitals as centers of holistic care. Mass criminalization shapes access to essential VHA healthcare and services. Part II connects criminal regulation with the two primary features of policing within the VA's healthcare: red flags and orders of behavioral restriction. These internal governance systems intersect on multiple axes as a metaphorical web. I argue both police and medical staff engage in risk assessments, surveillance, and criminal enforcement to manage non-normative behavior of many veteran patients. The veterans subjected to this form of policing are deemed suspicious and at risk of perpetrating violence toward care staff (or themselves). Dubbed “perpetually threatening,” they remain caught in the web's digital and physical threads. Part III proposes solutions from an abolitionist ethic to decouple policing from care and reorient care as liberatory. It proposes shifting to trauma-informed institutions and anticarceral care, removing police from care decisions, and utilizing restorative justice to address interpersonal harm.

Before continuing, I want to address the important consideration of representativeness of the VHA. The VA is the largest public healthcare system with the largest embedded police department in the United States. The VA is considered a model for managing low-income patients with complex trauma. These realities make the VA worthy of its own consideration. The increasing securitization of health settings and the causes, especially in low-income urban areas, is coming to light in the media and becoming documented in medical journals. To the extent we can extrapolate from one institution, we can take the lessons to other government-run hospitals and regulatory systems in public institutions that serve race- and class-based marginalized groups, as well as sites where we worry about harm from and between clientele--such as emergency rooms or schools. Studying the VAPF systems allows other health institutions, and perhaps other institutions with embedded police, to recognize the natural instinct to turn to police as the only answer for security and safety issues, even when other professionals or mechanisms are available.

[. . .]

The solution of turning to systems of care as an alternative to society's overreliance on policing requires expansive mapping and understanding of policing within medical settings. As a primary provider of healthcare for marginalized and medically vulnerable patients, the VA provides multiple lessons for decoupling policing and healthcare, and for disentangling policing from other institutional contexts. I argue care providers have been coopted into policing work and police have become enmeshed in clinical decision making. Even with reasonable justifications for embedding police within medical centers, institutions must consider the attendant costs to patient privacy, autonomy over care decisions, stigma, medical bias, and police violence.

This Article analyzes two primary features of embedded healthcare policing. It broadens the lens of mass criminalization to include patient management, workplace violence prevention, and threat assessment policies. It offers a more comprehensive understanding of the ways these intersecting threads operate to mark veteran patients as deviant, threatening, and necessary to control. It complements the emerging work of criminal procedure scholars and scholars looking at the regulatory nature of health and welfare systems as comprehensive processes that enact violence upon Black people and forms the basis of an approach to assist scholars and activists in the understanding of the institutional dynamics and overlap between care, worker safety, and policing.

This Article's analysis of embedded healthcare policing within the VA has broader implications. The imbrication and path dependency of police and care complicate the solution of more funding for healthcare. The consequences of overusing police within health delivery settings provides a vivid account of the need to recalibrate the roles of police in our society. In addition, other institutions with embedded police (such as K-12 education, universities, or mass transit) can draw lessons and consider the ways reliance on police influences interpretations of law and internal policy. This Article provides another account of law enforcement and surveillance in the lives of a marginalized group: veterans of the U.S. military with disabilities.

Sunita Patel is an Assistant Professor of Law at UCLA School of Law and Faculty Director of the UCLA Veterans Legal Clinic.