On December 14th, 2012, Adam Lanza committed the second most lethal mass shooting in American History. After killing his own mother and then twenty-six adults and children at the local elementary school, America was left with the burning question of not only why this happened, but how it could have been prevented(1). Lanza was clearly mentally ill, and it played a major role in him committing this atrocity. It did not take New York State’s Governor, Andrew Cuomo, and the State Senate and Assembly long to respond to this tragedy. On January 15th, 2013, the New York Secure Ammunition and Firearms Enforcement Act, or SAFE Act, was signed into law(2). The SAFE Act has many different components, but one section that has bothered both Second Amendment supporters and mental health professionals is that regarding mental hygiene. Specifically, section 9.46. This section requires that a mental health professional file a report to the local director of community services if he or she feels that the patient is, “’likely to engage in conduct that would result in serious harm to self or others(3).’” While this sounds reasonable and productive in preventing future tragedies like Newtown, this law is deeply flawed when it comes to mental health.
The New York SAFE Act does not consider the realities and complexities of mental health in relation to violence and firearms ownership. This law fails to address the underlying issues of mass shootings and further stigmatizes those that are afflicted by mental illness. Of course, any law regarding firearms and limiting access to them will upset Second Amendment supporters. However, the critical 2008 Supreme Court case that stated individuals do, in fact, have a Constitutional right to own firearms for personal protection, District of Columbia v. Heller, did note that this right can be limited by the, “’longstanding prohibitions of the possession of firearms by… the mentally ill(4).’” While this caveat was included by the court, they did not elaborate any further and therefore lacked any specificity to guide subsequent state legislators. On its face, the SAFE Act seems to fit within this accepted restriction. However, further investigation proves that there may be serious legal issues with the law. If a mental health professional files a report about a patient, that patient is then faced with an uphill legal battle to get his or her constitutional right back. Once a report is filed with the New York State Division of Criminal Justice Services (DCJS), it is determined whether the individual owns a firearm. If they do, local firearms licensing officials are informed. The county law enforcement officials can then choose to suspend any firearms licenses that the individual has been issued or even demand that all firearms be surrendered to law enforcement(5). Judges will often issue these reports without even looking at what the report states about the individual(6). The same seems to be true for the directors for community services who initially receive the reports. Roger Ambrose, the director for Jefferson County in New York, stated plainly that, “’I’m not going to second-guess the treating physician… that’s not my call(7).’” Finally, even with all of this stacked against a firearms owner seeking treatment, if a report is filed, he or she will not be notified and have no legal right under the law to challenge their classification as being mentally unfit to own a firearm(8).
Seeing as Heller does not give any guidance on the constitutionality of the SAFE Act, scholars have had to look elsewhere to see how courts have interpreted similar legislation. In 2014, in the case of Tyler v. Hillsdale County Sheriff’s Department, et al, the U.S. Court of Appeals for the Sixth Circuit ruled on a similar statute in the State of Michigan. Tyler, a young man who was involuntarily committed for less than a month, sought restoration of his Second Amendment rights after having his firearms confiscated under the Michigan law. The statute made it illegal for “any person… who has been adjudicated as a mental defective or who has been committed to a mental institution… to… possess… any firearm or ammunition(9).” The Sixth Circuit ultimately ruled that the state did not prove in fact that they had a compelling interest in seeking to remove firearms from those who had been institutionalized for mental health reasons(10). The standard that Michigan set in this case was a much higher bar than that of New York under the SAFE Act. Under the Michigan statute, an individual had to satisfy the requirement of being committed to a mental institution or had been “adjudicated as a mental defective.” In New York, an individual need only be deemed “’likely to engage in conduct that would result in serious harm to self or others(12).’” The Tyler case was very much like a previous case in Maine that the First Circuit ruled on. In that case, the court reached a very similar ruling regarding a young man who was also involuntarily committed. Yet again, it was ruled that just because an individual met the standard for involuntary commitment does not in any way mean that he or she can be “’deprived of the right to bear arms based solely on procedures suitable for temporary hospitalization(13).’” If the Michigan statute was found to be a violation of an individual’s Second Amendment rights with a much higher bar for mental hygiene disqualification, then New York’s SAFE Act’s ambiguously low bar would suggest a similar ruling needs to be had.
Legally speaking, New York’s SAFE Act seems heavily flawed. When reviewed under the light of current mental health knowledge and standards, the law’s effectiveness and strategies continue to fall short. Many different organizations concerned with mental health came forward after the SAFE Act was passed with a list of concerns. Among them were issues of equating mental illness with the likelihood of violence, stigmatizing those suffering from a mental illness, and deterrence of individuals from seeking treatment(14). These concerns are nothing new and are real issues that the state must contend with if they want to see this piece of legislation endure and have potential to be effective. Beginning with equating mental illness with violence, the SAFE Act is clearly concerned with preventing the mentally ill from acquiring firearms. Its passage so soon and so swiftly after the mass shooting at Newtown clearly indicates this intent. The inclusion of section 9.46 and its expansion of policing powers for mental health professionals reaffirms this focus. However, all of this is premised on the idea that the mentally ill are inherently more violent than the general populace. Statistically, ninety-six percent of violent crimes committed with firearms in the United States are committed by those who are not mentally ill(15). With that in mind, this law appears to be woefully misinformed about the real causes of violence with firearms and a knee-jerk reaction to a statistically rare tragedy.
These same sorts of sentiments can be found in the majority opinion the case of Williamson v. Liptzin. One of the major points cited by the court in rejecting Williamson’s argument of foreseeability of his violence by Liptzin was that, by assuming that simply because an individual owns a firearm and would, therefore, be violent would “implicate a large portion of the population” without any legitimate basis(16). The Williamson case set the precedent that mental health professionals cannot be expected to predict violence in individuals. However, section 9.46 of the SAFE Act asks mental health professionals to do exactly that. Furthermore, the New York law not only expects mental health professionals to try to predict violence, but it encourages it. The law provides legal protection for mental health professionals from any civil or criminal liability if their decision to report an individual “was made ‘reasonably and in good faith(17).’” Therefore, any mental health professional is encouraged to err on the side of caution and ultimately over report individuals. If they are wrong in their concerns, they will not face the same type of tortious claims that Dr. Liptzin did.
In less than a year, 38,718 people in New York were reported by their mental health professionals(18). While someone like Leah Barrett from New Yorkers Against Gun Violence may agree with this, the figures do not support her position(19). In 2013, New York State had about 1,637 suicides and 671 homicides(20). That is a total of 2,308 people killed intentionally with a firearm in one year. Going on the previously mentioned roughly four percent of firearm violence being committed by the mentally ill, that would mean less than a hundred of these deaths are due to someone with a mental illness. Ultimately, that means tens of thousands of people are statistically unlikely to be violent with a firearm and yet lose their constitutional right without any legal recourse based purely on the overly cautious assumption of one mental health professional.
This reality has not been lost on firearms owners and mental health professionals. With the high number of people being reported, anyone seeking mental health treatment at any level may become somewhat gun-shy. Many fear that, due to the low standard for reporting, those seeking help may avoid it out of fear of being labeled as potentially violent and losing their firearms(21). Dr. Mark J. Russ stated that “’the threshold for reporting is so low that it essentially advertises that psychiatrists are mandatory reporters for anybody who expresses any kind of dangerousness(22).’” While the law is intended to save lives by keeping firearms out of the potentially dangerous, it may have an unintended consequence of putting up yet another barrier to those hesitant to seek treatment. It is not unreasonable in a state with over sixteen-hundred suicides a year to say this law may be counterproductive and keep those who are only a threat themselves from seeking the help they need.
A specific segment of the population was noted as being especially affected by this stigmatism and deterrence. Both New York City’s Veterans’ Mental Health Coalition as well as the NYS Mental Health Association, are concerned about veterans. With many servicemen and women returning home from Iraq and Afghanistan battling with Post-Traumatic Stress Disorder, the VA has had a difficult time getting them to accept treatment. The Director of Public Policy at the NYS Mental Health Association noted that “’[t]here is a chilling effect on people getting care… we have a hard-enough time getting veterans in for PTSD. Veterans are a prime example of someone [sic] who would have a disincentive to’” get treatment(23). These issues are not going to be made better with the SAFE Act continuing to stigmatize mental illness.
Ultimately, the New York SAFE Act was flawed from its inception. It was a reactionary piece of legislation that not only fails to solve any issues relating to violence involving firearms in New York, but it represents a continuation of ignorance surrounding mental health. The entire premise of section 9.46 is an assumed predictability of violence among the mentally ill. Statistics have shown this to be totally untrue. Unfortunately, law-abiding citizens who are struggling with mental illness now face the unfortunate stigma of being a threat to themselves or others and risk losing their Second Amendment rights with little to no basis in fact for their classification. As has been the case with much of governmental legislation for treating mental illness, the SAFE Act shows how much there is left to learn to help those who cannot help themselves.
(Endnotes)1. Ray Sanchez, “Conn. police release final report on Newtown school shooting”, CNN, December 29, 2013, http://www.cnn.com/2013/12/27/justice/connecticut-newtown-shooting-report/index.html.2. Amy T. Campbell, et al, “Mental health and legal reflections on gun safety legislation”, American Psychology-Law Society, July, 2013, http://www.apadivisions.org/division-41/publications/newsletters/news/2013/07/gun-safety.aspx.3.“Guide to The New York State Safe Act for Members of the Division of State Police”, The Office of Division Counsel, September, 2013, http://www.brunswicksportsmansclub.org/wp-content/uploads/2014/03/Safe-Act-Field-Guide-revMarch2014.pdf.
4.James B. Jacobs and Zoe Fuhr, “New York Disarms the ‘Mentally Ill’”, The Marshall Project, December 2, 2015, https://www.themarshallproject.org/2015/12/02/new-york-disarms-the-mentally-ill#.rxHG5hFiA.5.“New York Secure Ammunition and Firearms Enforcement Act”, NYS Office of Mental Health, http://nics.ny.gov/docs/guidance.pdf, 1-2.6. James T. Mulder, “SAFE Act: State identifies 278 mentally unstable people to lose their guns”, Syracuse.com, December 2, 2014, http://www.syracuse.com/news/index.ssf/2014/12/guns_confiscated_from_about_20_people_in_cny_too_mentally_unstable_to_have_weapo.html7. Mulder.8. James Jacobs and Zoe Fuhr, Preventing Dangerous Mentally Ill Individuals from Obtaining and Retaining Guns: New York’s SAFE Act, (October 8, 2015), Georgetown Journal of Law & Public Policy, Forthcoming; NYU School of Law, Public Law Research Paper No. 15-42. https://ssrn.com/abstract=2671410, 3.9. Tyler v. Hillsdale County¸ 2014 NYS App.10. Jacobs and Fuhr, 9.11. Tyler v. Hillsdale County12. “Guide to The New York State Safe Act for Members of the Division of State Police”, The Office of Division Counsel, September, 2013, http://www.brunswicksportsmansclub.org/wp-content/uploads/2014/03/Safe-Act-Field-Guide-revMarch2014.pdf.13. Jacobs and Fuhr, 9.14. James B. Jacobs and Zoe Fuhr, “New York Disarms the ‘Mentally Ill’”, The Marshall Project, December 2, 2015, https://www.themarshallproject.org/2015/12/02/new-york-disarms-the-mentally-ill#.rxHG5hFiA.15. “Developments In Mental Health Law”, The Institute of Law, Psychiatry & Public Policy- The University of Virginia, July, 2013, vol. 32, no. 3, 2.16. Williamson v. Liptzin, 2000 N.C. App. LEXIS 1276, 1.17. “New York Secure Ammunition and Firearms Enforcement Act”, NYS Office of Mental Health, http://nics.ny.gov/docs/guidance.pdf, 1-2.18. Mulder.19. Mulder.20. Jacobs and Fuhr, 22.21. Anemona Hartocollis, “Mental Health Issues Put 34,500 on New York’s No-Guns List”, NY Times, October 19, 2014, https://www.nytimes.com/2014/10/19/nyregion/mental-reports-put-34500-on-new-yorks-no-guns-list.html?_r=1.22. Hartocollis, “Mental Health Issues Put 34,500 on New York’s No-Guns List”23. Jacobs and Fuhr, 16.
- Campbell, Amy T., et al. “Mental health and legal reflections on gun safety legislation.” American Psychology-Law Society. (July, 2013). http://www.apadivisions.org/division-41/publications/newsletters/news/2013/07/gun-safety.aspx.
- Clifford Charles Tyler v. Hillsdale County Sheriff’s Department, et al., 2014 NYS App.
- “Developments In Mental Health Law.” The Institute of Law, Psychiatry & Public Policy- The University of Virginia. (July, 2013). vol. 32, no. 3, 2.
- “Guide to The New York State Safe Act for Members of the Division of State Police.” The Office of Division Counsel. (September, 2013). http://www.brunswicksportsmansclub.org/wp-content/uploads/2014/03/Safe-Act-Field-Guide-revMarch2014.pdf.
- Hartocollis, Anemona. “Mental Health Issues Put 34,500 on New York’s No-Guns List.” NY Times. (October 19, 2014). https://www.nytimes.com/2014/10/19/nyregion/mental-reports-put-34500-on-new-yorks-no-guns-list.html?_r=1.
- Jacobs, James and Zoe Fuhr. “Preventing Dangerous Mentally Ill Individuals from Obtaining and Retaining Guns: New York’s SAFE Act.” Georgetown Journal of Law & Public Policy, Forthcoming; NYU School of Law, Public Law Research Paper (October 8, 2015). No. 15-42. https://ssrn.com/abstract=2671410.
- Jacobs, James B. and Zoe Fuhr. “New York Disarms the ‘Mentally Ill.” The Marshall Project. (December 2, 2015). https://www.themarshallproject.org/2015/12/02/new-york-disarms-the-mentally-ill#.rxHG5hFiA.
- Mulder, James T. “SAFE Act: State identifies 278 mentally unstable people to lose their guns.” Syracuse.com. (December 2, 2014). http://www.syracuse.com/news/index.ssf/2014/12/guns_confiscated_from_about_20_people_in_cny_too_mentally_unstable_to_have_weapo.html.
- “New York Secure Ammunition and Firearms Enforcement Act.” NYS Office of Mental Health, http://nics.ny.gov/docs/guidance.pdf.
- Sanchez, Ray. “Conn. police release final report on Newtown school shooting.” CNN. (December 29, 2013). http://www.cnn.com/2013/12/27/justice/connecticut-newtown-shooting-report/index.html.
- Williamson v. Liptzin, 2000 N.C. App. LEXIS 1276.