The proposition that a person who is mentally ill and dangerous should not be permitted to possess a firearm seems incontrovertible. But putting that proposition into practice is controversial, as evidenced by the overwhelming opposition of mental health care providers and advocates for the mentally ill to New York State’s 2013 Secure Ammunition and Firearms Act (SAFE Act).
While the Supreme Court’s watershed decisions in District of Columbia v. HelIer (2008) and McDonald v. City of Chicago (2010) held that the Second Amendment guarantees the American people the right to keep and bear a handgun, at least in the home, the Court stated that its decisions did not undermine “the longstanding prohibitions on the possession of firearms by…the mentally ill.” However, the justices had no cause to consider what types of mental illness, and how severe, would justify abrogation of the Second Amendment right; nor whether a permanent or multi-year forfeiture would be constitutionally permissible. Nor did the Court say anything about what process an allegedly mentally ill and dangerous person is entitled to before or after being stripped of his or her rights. Presumably, the justices had in mind a reliable process for predicting future danger and an opportunity for the patient to challenge that conclusion before a neutral fact-finder.
New York’s SAFE Act, passed in response to the Sandy Hook Elementary School massacre, suspends an individual’s Second Amendment rights for five years if a single health care professional (not necessarily a psychiatrist or psychologist) concludes, based on as little as a single short emergency room interview, that a patient “is likely to engage in conduct that would result in serious harm to self or others.” There is no opportunity for a hearing and no procedure for restoration of Second Amendment rights. Indeed, the patient need not even be notified that his or her name has been added to a database of persons whose firearms license must be revoked and whose firearms must be surrendered; and who may not for the next five years be issued a firearms license. So far, this mandatory reporting requirement has been adding about two thousand New Yorkers to the database each month.
Mental health professionals and advocates for the mentally ill did not have an opportunity to read or comment on the SAFE Act before it was passed; shortly after the December 2012 slaughter in Newton Connecticut, it was introduced into the New York legislature at night under an emergency procedure and signed into law the next day. Since then, it has been strongly criticized by such organizations as the National Alliance on Mental Illness, New York City’s Veterans’ Mental Health Coalition, the U.S. Department of Veteran Affairs, the New York State Mental Health Association, the New York Catholic Conference, the New York Psychiatric Association, the Medical Society of the State of New York, the New York Conference of Local Mental Hygiene Directors and the New York Nurses’ Association. These organizations say that: i) by equating mental illness with violence, the SAFE Act stigmatizes mentally ill people; ii) it deters mentally ill people from seeking treatment and/or continuing treatment; iii) it undermines the therapeutic relationship by requiring the therapist to report her patient to law enforcement authorities; iv) it imposes on health care professionals a much broader reporting requirement than the existing requirement that they warn police and persons against whom a patient has made a credible threat; and v) it imposes significant administrative costs on county mental health departments.
In addition to these policy-based criticisms, the SAFE Act is vulnerable to civil liberty objections. In 2014, the Sixth Circuit struck down a Michigan statute that extinguished the Second Amendment rights of a person who had ever been involuntarily committed to a mental hospital, even if the individuals had been afforded a pre-commitment court hearing. The Court held unconstitutional a lifetime prohibition without a procedure for restoring gun rights. The First Circuit has similarly held that Second Amendment rights cannot be extinguished without a fair hearing. In United States v. Rehlander, a Maine resident who had been temporarily committed on account of “suicidal impulses,” was released after a court found that the state had not carried the burden of proving him mentally ill and dangerous.
Twenty months later, Rehlander was convicted for possessing a firearm without a license, under a Maine law providing that temporary commitment triggered automatic revocation of the patient’s firearms license. In striking down the law, the First Circuit held that Rehlander had been “permanently deprived of the right to bear arms based solely on procedures suitable for temporary hospitalization under emergency conditions.” Those procedures Provided no “advance adversarial proceeding to test whether the subject was mentally ill or dangerous [and] no effective post-hospitalization means to recover the right to bear arms if the subject had in fact never been mentally ill or dangerous.”
The first constitutional challenge to the SAFE Act’s mandatory reporting is currently pending in federal district court. If the court applies the First and Sixth Circuits’ analyses, it will likely find in favor of the petitioners. The SAFE Act provides no process for challenging the determination of mental illness or danger and, like Maine, provides no procedure for restoring gun rights.
There are circumstances where public safety warrants disarming potentially dangerous people, including those whose dangerousness is attributable to mental illness. But recognizing that forfeiture of a constitutional right is at stake, these circumstances need to be carefully specified and limited. We should keep in mind that approximately 15 percent of the population seeks treatment for psychological problems each year; very few engage in firearms violence. Numerous empirical studies have shown that people labelled “mentally ill” do not engage in violent behavior at a greater rate than those not so labelled. Prediction of future danger is notoriously inaccurate, even when based upon evidence-based indicators (such as prior felony convictions or substance abuse). By contrast, the SAFE Act authorizes a five-year suspension of Second Amendment rights based upon as little as a brief impressionistic emergency room interview. A person should only be disarmed if he has expressed a credible threat to harm himself or another, and there is an opportunity to challenge the belief that he is mentally ill and dangerous.
James B. Jacobs is the Warren E. Burger Professor of Criminal Law & Criminal Procedure at NYU School of Law and Director, of the Law School’s Center for Research in Crime & Justice. He is the author of Can Gun Control Work? (Oxford University Press 2002). Zoe Fuhr in a 2015 LLM graduate of NYU and a research fellow at the Center for Research in Crime & Justice. She and Professor Jacobs are working on a book about The SAFE Act. This editorial draws on an article to be published next year in a symposium issue of the Georgetown Journal of Law & Policy.