GRNC Objects to ATF’s Proposed Expansion of “Mental Health Institution” Definition

March 26, 2014

Mr. George M. Fodor
Room 6.N-S23, Enforcement Programs and Services
Bureau of Alcohol, Tobacco, Firearms, and Explosives
U.S. Department of Justice
99 New York Avenue, NE
Washington, DC, 20226

Re:             Docket No. ATF 51P

GRNC comment on proposed redefinition of “committed to a mental institution”

Dear Mr. Fodor:

Grass Roots North Carolina (GRNC) was created in 1994 as an independent, all-volunteer, 501(c)(4) not-for-profit organization dedicated to preserving constitutional freedoms. Many of the organization’s projects are devoted to defending the individual right to keep and bear arms. GRNC submits this comment on the ATF’s Notice of Proposed Rulemaking regarding the redefinition of the statutory phrase “committed to a mental institution” in the Gun Control Act of 1968[1] (GCA). GRNC opposes the proposal, and offers a more appropriate definition . . .

The ATF proposes to dramatically expand the interpretation of the statutory phrase “committed to a mental institution” from its common-sense meaning of inpatient commitment to a mental health facility, to also include – without limitation or differentiation of any kind – all forms of outpatient commitment to mental health services. This proposal relies on shockingly scant legal support: a single district court order issued in Iowa in 2006. That order’s reasoning relied on a glib and superficial analysis of the preposition used in the statutory text of the GCA: “The statute only requires commitment to a mental institution, not commitment in a mental institution.”[2] As this comment will show, not only is the choice of a preposition too weak a foundation on which to construct a massive infringement of a constitutional right now recognized as both individual and fundamental, but in fact neither preposition accurately describes many outpatient commitments, in which  individuals are not ordered bodily either to or in any particular facility.

Rather than the indiscriminate and overbroad sweep of making every subject of an outpatient commitment a prohibited person under the GCA, the statutory phrase “committed to a mental institution” should be interpreted to encompass individuals found to pose a danger to themselves or others, and upon whom some form of mental health treatment is judicially imposed – whether that treatment is delivered in the form of inpatient or outpatient services. The severe burden on second amendment rights of a § 922(g) firearms disability can only be justified by the government’s interest in public safety, and hence cannot withstand scrutiny when imposed on those who – while requiring compulsory mental health treatment due to anosognosia[3] – are not a danger to themselves or others.

Two years after the district court in Iowa found B.H. to be a prohibited person due to an outpatient commitment,  the Supreme Court declared that the second amendment protects an individual right to keep and bear firearms, unconnected with service in a militia.[4] The Court also declared that right is fundamental, and is incorporated under the Due Process clause of the fourteenth amendment to constrain state law.[5] In the wake of these landmark cases, federal courts of appeal have generally adopted a tiered approach, or “sliding scale,” to determining the level of scrutiny with which to assess laws burdening second amendment rights. As the seventh circuit summarized it:

First, a severe burden on the core Second Amendment right of armed self-defense will require an extremely strong public-interest justification and a close fit between the government’s means and its end. Second, laws restricting activity lying closer to the margins of the Second Amendment right, laws that merely regulate rather than restrict, and modest burdens on the right may be more easily justified.[6]

The ATF’s proposed definition, which indiscriminately includes all individuals committed to any program of outpatient mental health treatment, would impose the most severe burden possible on those individuals’ core second amendment right of armed self-defense: outright elimination of their ability to exercise that right. Accordingly, the definition must survive the highest judicial scrutiny; both an extremely strong public-interest justification and a close fit between the government’s means and its end are required.

There is no question that the government’s interest in public safety is an extremely strong one, which will justify restricting the second amendment rights of those found (through due process) to pose a danger to themselves or others. Indeed, the drastic step of completely disarming such individuals may satisfy the requirement of a close fit (i.e., a narrowly tailored remedy) to pursue that interest. However, a sweepingly broad firearms disability that ensnares individuals – even those under judicially compelled mental health treatment – that are not a danger to themselves or others cannot pass muster. Simply put, the government has no legitimate interest in disarming non-dangerous persons. Furthermore, sweepingly broad rules, which lump non-dangerous persons in with those found to pose a danger to themselves or others, are not narrowly tailored.

Forty-five states have some form of outpatient commitment,[7] referred to in the mental health profession as Assisted Outpatient Treatment (AOT). AOT services vary widely, and may include psychotherapy, medication management, crisis intervention, nursing, and substance abuse counseling as well as support for housing, benefits, education, and employment.[8] A patient’s physical presence at any particular facility – whether he is compelled to there or in there – often forms no part of an outpatient commitment order. Rather, a judicial order may simply require a patient to comply with a regimen of medication, receive in-home therapeutic counseling, or even just avoid contact with persons or places detrimental to the patient’s mental health. Hence, not only is the text of 18 U.S.C. § 922(g)(4) – to vs. in – not dispositive, it is not particularly helpful when applied to real-world AOT commitments.

In many cases, a definition of “committed to a mental institution” that is limited to individuals found to pose a danger to themselves or others, and who have been judicially ordered to receive mental health treatment (whether inpatient or outpatient), will, as a practical matter, be indistinguishable from the ATF’s proposed definition that simply includes all outpatient as well as inpatient commitments. For example, both California’s Laura’s Law[9] and New York’s Kendra’s Law[10] require, as a condition of commitment to their respective AOT programs, that the patient was either recently committed to an inpatient facility, or is a danger to himself or others.[11] However, this is not true in other states.

North Carolina’s mental health commitment law distinguishes inpatient and outpatient mental health commitments primarily by the issue of dangerousness. Commitment to inpatient mental health treatment requires that an individual be found (a) mentally ill; and (b) dangerous to self or others.[12] In stark contrast, commitment to outpatient mental health treatment requires that an individual be found:

• mentally ill;
• capable of surviving safely in the community with available supervision from family, friends, or others;
• in need of treatment “in order to prevent further disability or deterioration that would predictably result in dangerousness;” and
• the current mental illness limits or negates the individual’s ability to make an informed decision to seek voluntarily or comply with recommended treatment.[13]

Thus, by statutory definition, an individual committed to outpatient mental illness treatment in North Carolina is not currently dangerous to himself or others, as determined by a physician or eligible psychologist. If he is determined to be dangerous, outpatient commitment is not an option; inpatient commitment is required.

In North Carolina, and other jurisdictions that do not require a finding of dangerousness to qualify for AOT programs, a rule interpreting “committed to a mental institution” that blindly includes all outpatient commitments will necessarily impose a firearms disability – not only an infringement, but a total denial of fundamental constitutional rights – on individuals who are not a danger to themselves or others. Such a rule cannot pass muster under the heightened scrutiny required of laws burdening fundamental rights. The only legal justification offered in support of the ATF’s proposal – the reasoning of which was shaky to begin with – predates Heller and McDonald and can no longer be considered controlling legal authority. Fundamental constitutional rights cannot be cast aside on so flimsy a basis as the preposition actually appearing in statutory text, as opposed to a purely hypothetical one. The government’s interest in public safety cannot support disarming those who are not dangerous, and sweeping non-dangerous individuals into the statutory definition of “committed to a mental institution” is not a rule narrowly tailored to achieve public safety. On the other hand, both prongs of a heightened scrutiny standard – which Heller mandates – are likely met by considering dangerousness to oneself or others the touchstone of “commitment” for the purpose of interpreting and applying the GCA.

The interpretation offered here imposes no greater burden in administration than the ATF’s proposal. All judicial commitments to AOT programs include written orders that list judicial findings of an individual’s mental health condition, and the metes and bounds of the outpatient treatment imposed (and the sanctions for failing to adhere to it). As a statutory requirement in most jurisdictions, AOT orders already list whether or not the patient has been determined to be a danger to himself or others. Enforcement of a GCA firearms disability is thus simply a matter of reading the AOT commitment order.

The touchstone of dangerousness to oneself or others is not only a far more constitutionally sound approach, and as easy to administer as the ATF’s proposal, but it is one that will be more readily accepted by the American people. AOT programs are highly controversial; both Laura’s Law and Kindra’s Law met with stiff opposition from patient advocate groups and others concerned about the coercive aspects of such programs.[14] Attaching the threat of a total firearms disability to the commitment of individuals to AOT will predictably exacerbate a recognized problem with the very concept of compulsory AOT programs: It may make many individuals “wary of contact with the mental health system or frightened to disagree with their doctors or family members, because doctors and family members are empowered under the outpatient commitment laws in many states to secure forced treatment orders against them.”[15] Adding to this fear the threat of automatic complete annihilation of their right to keep and bear arms, even for individuals who are not a danger to themselves or others, will predictably drive many people – particularly US veterans – from seeking needed mental health diagnosis and care.

For the reasons stated herein, GRNC strongly opposes the ATF’s proposed rulemaking to indiscriminately sweep all outpatient commitments into the statutory definition of “committed to a mental institution,” and hence impose upon them an absolute firearms disability. Enforcement of the GCA is achieved just as effectively, is more constitutionally sound, and will better further the public goal of not alienating the mentally ill, by including in the statutory definition of “committed to a mental institution” only individuals who have been clinically and judicially determined to be a danger to themselves or others, and who have been ordered to comply with mental health treatment – whether the delivery of such treatment is in an inpatient or outpatient setting. In contrast, the ATF’s proposal cannot survive judicial review as applied to outpatient commitment patients who are not dangerous (including all such patients in North Carolina), and will needlessly drive people away from seeking mental health treatment due to fear of losing their right to hunt or otherwise enjoy the recreational use of firearms.

Respectfully submitted,

F. Paul Valone,
GRNC President

Edward H. Green, III, Esq.,
GRNC Director of Legal Affairs