NY Appellate Division: Lawyer with Record of Psychiatric Disability Properly Denied "Secure Pass"

In an opinion issued late last week, the First Department of the New York Supreme Court, Appellate Division issued an opinion in Munsiff v. Office of Court Administration. The administrators of the New York courts had denied Munsiff, an attorney, a "Secure Pass" that would allow him to enter courthouses without passing through the magnetometers. As the court explained the administrative scheme for granting Secure Passes, a lawyer is entitled to such a pass unless he or she has previously engaged in criminal activity that involves "violence or dishonesty." If a lawyer has engaged in such activity in the past, he or she "is deemed a security risk to the courthouse and the application is denied."

Munsiff applied for a Secure Pass, but his background check revealed that, 10 years back, he had committed a number of crimes involving violence and/or dishonesty. Munsiff explained that those crimes had been committed as a direct result of a then-undiagnosed psychiatric disability (paranoid schizophrenia), which has now been treated and in remission, with no symptoms, for a number of years. His doctors testified that he no longer presented any threat. Based on that testimony, Munsiff was admitted to the bar. The court administrator, however, refused to issue Munsiff a Secure Pass. Munsiff challenged that refusal in the New York Supreme Court, which ruled that the refusal violated Title II of the ADA.

The Appellate Division reversed and ruled that Munsiff was not entitled to a Secure Pass. The court noted that the ADA protects only "qualified individuals with a disability" -- i.e., individuals with disabilities who "meet the essential eligibility requirements" of the relevant state program or activity. And the court noted that one reason a person might fail to meet the essential eligibility requirements is by posing "a direct threat to the health and safety of others."

So far, so good. But then the court held that simply because of his 10-year-old history of criminal violations, Munsiff ipso facto posed a direct threat to the health and safety of others. The court reasoned:

Inasmuch as OCA has reasonably determined that since an applicant with a criminal history of violence and dishonesty is, by virtue of that single circumstance, deemed a security risk, the absence of such history is the sine qua non for the issuance of a Secure Pass. It is not for the courts to decide otherwise. With his lengthy criminal history of such offenses - albeit in the past - petitioner cannot satisfy this requirement. OCA is not required to compromise its essential eligibility criteria for the Secure Pass program (see Tennessee v Lane, 541 US 509, 531-532 [2004]).

Nor, in any event, contrary to Supreme Court's determination, can petitioner show that he "will not in the future" pose a threat to courthouse security. While his paranoid schizophrenia is in remission, with an excellent long-term prognosis as long as he remains compliant with his medication and therapy regimen, he still has the condition - undisputedly a chronic one - and there is always a possibility that his symptoms will recur. In that regard, no individualized assessment of a person's psychiatric condition can determine whether the person will stay on medication and continue treatment or, indeed, whether the medication regimen will continue its effectiveness. The psychiatric opinions relied upon by petitioner and, in turn, Supreme Court are based on the assumption that petitioner will stay on his medication and continue his treatment. Since petitioner is not under constant care and confinement, the risk that he will not continue taking his medication or continue in his treatment is, in the context of courthouse security, unacceptable and unreasonable.

Moreover, a court's exclusive reliance on these optimistic psychiatric assessments in reaching its judgment constitutes an abdication of judicial responsibility (see Matter of John A. v Bridget M., 16 AD3d 324, 332 [2005], lv denied 5 NY3d 710 [2005]). It would certainly be irresponsible for OCA to base its determination on such assessments. Nor should we require [*5]OCA to provide for continuing oversight by requiring ongoing assurances from a neutral psychiatrist that the Secure Pass holder is adhering to his regimen in taking medications, keeping medical appointments and not presenting an appreciable risk of recurrence of the disability in remission. This is too formidable a burden to be a realistic counterbalance to the risk involved.

Maybe the state should have accommodated Munsiff, maybe not. I don't know all of the relevant facts. But I can say that this opinion flies in the face of both the ADA's "direct threat" requirement and the statute's general requirement of "reasonable accommodation." Munsiff's claim was that the state's criteria for identifying a threat were discriminatory and swept in people like him who were not in fact a threat. As a matter of simple logic, one can't answer that claim by simply noting that according to the state's criteria he was a threat.