Saturday, September 29, 2007

Mental Illness Commitment & Firearms Disability

What seems to be a very careful scholarly examination of mental illness commitment law with respect to firearms disability is Joseph R. Simpson,"Bad Risk? An Overview of Laws Prohibiting Possession of Firearms by Individuals With a History of Treatment for Mental Illness," Journal of the American Academy of Psychiatry Law 35:3:330-338 (2007).

The abstract:

For nearly 40 years, federal law has barred certain individuals with a history of mental health treatment from purchasing, receiving, or possessing firearms. State laws are a patchwork of different regulations, some much more inclusive than the federal statute, others that parallel it closely. In some states, such laws are nonexistent. For the past 20 years, it has been possible to petition for relief from the federal prohibition; however, this is not the case with all state laws. The mechanisms for relief under state laws, when present, vary significantly, and not all require the input of a mental health professional or even of any physician. This article provides an overview of federal and state laws, a discussion of implications of these laws for mental health clinicians and forensic practitioners, and suggestions of directions for future research.
He makes the claim:
A front-page New York Times article in 2000 reported that of 75 so-called rampage killers (not all of whom had diagnosed or treated mental illnesses), 56 percent had made a fully legal purchase and another 16 percent had purchased the firearm by lying on their applications. Only 13 percent obtained the murder weapon by fully illegal means.2 However, beyond these anecdotal reports, there has been very little research in which the relationship between mental illness and risk of firearm-related violence, including suicide, was specifically examined.
Because he says "firearm-related violence" he is probably correct. There has been a bit of research, as I have previous mentioned, concerning the relationship between mental illness and violent crimes. But this research has not directly looked at firearm-related violence.

The article also discusses the case law related to firearms disability and mental illness commitment, pointing out what I have been saying regarding HR 2640--it takes a lote more (in New York State, just a bit more) than just a psychiatrist's say-so, or being given Ritalin as a child, to lose your right to own a gun under federal law:
A similar result was reached in the case of U.S. v. Giardina.17 The defendant was seen by a psychiatrist at a mental health clinic who signed a physician's emergency certificate allowing the police to take the defendant to a mental hospital, where he was hospitalized for two weeks. The defendant was later charged with making false statements on firearms applications. The Fifth Circuit Court of Appeals held that admission by emergency certificate did not constitute a commitment for the purposes of the Gun Control Act, stating that "[t]emporary, emergency detentions for treatment of mental disorders or difficulties, which do not lead to formal commitments under state law, do not constitute the commitment envisioned" (Ref. 17, p 1337).
It should be noted that the Hansel and Giardina decisions do not stand for the proposition that judicial authorization for an involuntary hospitalization is necessary for an individual to run afoul of the Gun Control Act. In U.S. v. Waters,18 a federal district court ruled that under New York law a two-physician certification procedure constitutes a formal commitment. Judicial review of the commitment was not a requirement.
More recent challenges to the classification of a hospitalization as a "commitment" have tracked the earlier cases discussed. In U.S. v. Chamberlain,19 the First Circuit Court of Appeals held that a five-day emergency detention, approved by a judge, sufficed. The court rejected the defendant's contention that a person should be deemed to have been committed only if subjected to a full commitment proceeding, including provision of counsel, an adversary hearing, and so on. In U.S. v. Dorsch,20 Dorsch claimed that being ordered to a mental facility for not more than 90 days should not constitute a commitment, on the grounds that the 90-day period was an "observation" period rather than a "treatment" period. The Eighth Circuit Court of Appeals rejected this argument.
I was a little surprised at how few persons have been prohibited from buying guns under the mental disability provision:
In the first 12 months during which background checks mandated by the Brady Act were performed (November 1998 to November 1999), more than 4,400,000 background checks were performed. Of these, 81,006 (1.8% of the total) resulted in denial of applications to purchase firearms. The majority of these denials (56,554, or 69.8 percent) were due to felony indictments or convictions, and a further 9.9 percent were due to misdemeanor domestic violence convictions. Only 70 individuals (0.1% of the denials) were denied because of a history of mental illness. In comparison, there were 3,072 (3.8%) denials for drug addiction.10
And the reason seems to be what HR 2640 is trying to fix--lots of states won't supply the information.

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