Untitled

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

 

[1] 18 U.S.C. § 921,  et. seq.

[2] U.S. v. B.H. 466 F.Supp.2d 1139, 1147 (N.D. Iowa 2006) (emphasis in original).

[3] Anosognosia is “an impaired ability to recognize the presence or appreciate the severity of deficits in sensory, perceptual, motor, affective, or cognitive functioning.” In short, a common characteristic of psychiatric illness is an inability by the patient to realize he has a mental illness; he therefore may not seek help or comply with medication to treat a condition which he does not perceive himself to have.

[4] Heller v. D.C., 554 U.S. 570 (2008).

[5] McDonald v. Chicago, 561 U.S. 3025 (2010).

[6] Ezell v. Chicago, 651 F.3d 684, 708 (7th Cir 2011) (emphasis added).

[7] Jeffrey Swanson, Ph.D., et al., “The Cost of Assisted Outpatient Treatment: Can It Save States Money?” Am J Psychiatry Vol. 170, No. 12, 2013.

[8] Gary Tsai, M.D., “Assisted Outpatient Treatment: Preventive, Recovery-Based Care for the Most Seriously Mentally Ill,” The Residents’ Journal, a Publication of the American Psychiatric Association, June 2012, Vol. 7, Issue 6, p. 16.

[9] Cal. Welf. & Inst. Code § 5345, et. seq., named after Laura Wilcox, a mental health worker who was killed by a man who had refused psychiatric treatment.

[10] N.Y. Mental Hyg. Law § 9.60, et. seq., named after Kendra Webdale, who died after being pushed in front of a subway train by a mentally ill man.

[11] See “Laura’s Law, A Functional Outline,” available at the San Mateo County Office of the National Alliance on Mental Illness website, http://sanmateo.bigtomatotech.com/wp-content/uploads/2013/07/Lauras-Law-AB1421.pdf   (last visited 23 March 2014); and “An Explanation of Kendra’s Law,” available at the New York State Office of Mental Health website, http://www.omh.ny.gov/omhweb/Kendra_web/Ksummary.htm (last visited 23 March 2014).

[12] N.C. Gen. Stat. § 122C-263(d)(2) (definition of dangerous to self or others at N.C. Gen. Stat. § 122C-3(11)(a-b)).

[13] N.C. Gen. Stat. § 122C-263(d)(1) (emphasis added).

[14] Marvin Swartz, M.D., et al., “Assessment of Four Stakeholder Groups’ Preferences Concerning Outpatient Commitment for Persons With Schizophrenia,” Am J Psychiatry, Vol. 160, No. 6, 2003.

[15] Michael Allen, J.D., et al., “Opening Pandora’s Box: The Practical and Legal Dangers of Involuntary Outpatient Commitment,” Psychiatric Services, Vol. 52, No. 3, 2001.

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43 COMMENTS

  1. A woman is raped at 18, she is emotionally devastated, her parents think temporary, intensive therapy is warranted. She is checked into a recovery center (Mental hospital)
    She graduates from college years later and because of the earlier criminal assault, she wants the security of a hand gun.
    Oh oh.

  2. Ed Green just doesn’t get it. The principle purpose of the ATF these days is to prevent as many people as possible from exercising their right to keep and bear arms–and any excuse is good enough, as demonstrated by their recent history of prosecutions and raids. If the ATF is successful, anyone attending a clinic/out patient program for ANY addiction or ANY mental health issue, voluntarily or involuntarily, will be banned. Bulimia? Banned. Alcoholism? Banned. Drug detox? Banned. Voluntary psychotherapy for depression? Banned. His excellent letter is therefore slated for the round file.

    • The principle purpose of the ATF these days is to prevent as many people as possible from exercising their right to keep and bear arms

      Fixed.

      • The principal purpose of the ATF these days is to prevent as many people as possible from exercising their right to keep and bear arms

        Correctly fixed.

  3. Very well written, responsible, comprehensive document. To bad the ATF will ignore all anyway….

  4. I would love the phrase “danger to themselves or others” changed to “danger to others”. Why should a person’s personal views on life and potential propensity to suicide affect their ability to protect themselves or third loved ones? Or participate in sports such as hunting or 3-gun?

  5. So what your saying, is if a person goes to a shrink to talk about some problems he or she might have endured during military or police, or fire service, that they will be BLACK LISTED as a fruit cake and lose their 2nd A rights??? That’s a bunch of CRAP!! What if someone does not appose a threat to themselves or anyone else, just has some issues with what they have seen and done during their service. Now their going to pass some BS law making honest law abiding people not get the help they deserve, and need. CAN U SAY Welcome to the USSR FM!! Would the last American out please bring our FLAG!! Christ on a crutch!

    • If you’re police you may be a stark, raving lunatic and still posses and use firearms. If you retire from the police and remain a stark, raving lunatic you can posses and use firearms until the day you die.

  6. A case CAN be made for keeping SOME outpatients away from guns (though how they expect a law to stop someone from getting one if he wants one is still a mystery to me) at least temporarily. I’ve known people who voluntarily handed over their guns to a friend to hold while they were dealing with depression or the like. I’ve also had that hard conversation to determine a gun owning friend’s mental state after a personal tragedy. This regulatory proposal, though, scares me. Arbitrary denial of rights based on the standards they are suggesting is just going to keep people from seeking help. Most importantly, I don’t see anything in there about how one might get one’s rights BACK after being successfully treated for depression or some other temporary condition.

    • The problem is that the government and government agencies are, by nature, incapable of dealing with “SOME” of the cases. Regulations do not permit grey areas. They only deal in absolutes.

      • Agreed – a one size fits none rule if I ever saw one. This is an area where friends and family should get involved, not the government. The real pisser, though, and the reason we’re having this discussion is the failure of people like Lanza’s mother, or intimates of the Navy Yard shooter to act responsibly when they KNEW that their child/friend/husband (whatever) was in a dangerous state of mind.

        Maybe it’s because I was in the thick of the sixties, but I can usually distinguish the difference between dangerous lunacy and benign, even entertaining eccentricity. I’ve never been shy about confronting friends who seemed at risk of slipping over the edge, either.

        • I’m of the opinion that, unfortunately, such possibilities must be chocked up as one of the risks of Liberty. A few may actually end up in possession of a weapon (not just a firearm). Some of those few may actually commit a crime with that weapon. It’s not really something that can be adequately legislated without infringing upon Liberty to a greater degree than any possible incidents that may occur. In other words, it’s just one of the risks that a free people must accept as part of being free.

          • +100,000. There is no such thing as a “right to be safe”. Life is full of peril and danger. What kind of fool thinks it should be otherwise?

            A “world without danger” scares the living p*ss out of me.

      • I don’t find the question of “getting them back” dreamy. It is common it state legislation to have a provision for 1) challenging a commitment’s legitimacy and/or 2) requesting and receiving a court order to restore a person’s gun rights upon sufficient evidence that prior prohibition is no longer justified.

        The problem with all firearms regulations at the federal level is that the language is not only absolute as to the momentary application, but provides no achievable removal of prohibitions.

        I would note, though, that as it stands today a state court restoration of gun rights is recognized by the feds. The constitution clearly reserves to the states the police power, which includes such decisions. That doesn’t mean the federal government does not walk all over such reservations. It does mean that when the federal government attempts to place infringements on rights, especially by encroaching on a constitutional power reserved to the states, it is usually not aggressive about it. But see any firearms regulation that has been dragged under the umbrella of the Commerce Clause or national security powers.

        • The problem is that there is a way to get your rights back under the GCA. However, the FBI does not fund the processing of redress applications. Because the law doesn’t say they have to process the applications, just accept them.

    • Nope. Safe enough to be on the street (operating cars, buying fertilizer, voting, whatever) means safe enough to exercise fundamental civil rights.

  7. That’s because once their gone, you wont ever get them back, unless your fealty rich of course!~

  8. Got a difficult issue or two you need help to get through? BATFE: STAY TROUBLED.

    That way, we win if you seek help, and win if you don’t! HAHAHAHAHA!!!!

  10. The bottom line is that any restriction set by the government to keep firearms out of the hands of crazy people / criminals will not work. It’s way to easy to get them through other than legal means.

  11. The definition of “committed to a mental institution” will never be complete until Washington, D.C., is considered an lunatic asylum.

  12. The outpatient substance abuse commitment part. Would this apply to court mandated DUI/DWI substance abuse courses? That would knock out many gun owners I know, even my current county sheriff!

    • It gets worse. Since the federal Budget Reconciliation Act of 1989 social workers who have provided “mental health counseling” for a certain number of supervised (loosely) hours are considered psychotherapists under Medicare. It isn’t a stretch to assume that a low-level or ungraded misdemeanor DUI or “paraphernalia possession” conviction bringing court-ordered counseling with a county-approved social worker will bring such a minor offender within the BATFE definition, at least until the courts throw out the regulation due to its obvious defects.

  14. Is this somehow just specific to North Carolina or is this a nation wide change? Why is only GNRC publicly speaking out against this? Should this not be nation wide front page news?

    As a military veteran I would be greatly concerned about the effect this would have on those seeking help through the VA with PTSD (and many other issues) from current and past wars.

  15. Well, ever since I found out its possible for employers to have access to mental health records, I always figured if I had any issues, I’d have to work them out myself or with family and friends. Looks like everyone should take the same advice.

    • I understand, Bill. But many times friends and family are the very WORST people you could talk to….

      There are cases where a homeless person might be better, or a bartender. Bartenders are sometimes good people to talk to, but more often only if you’re a monster tipper.

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