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The Right To Keep and Bear Arms and People Who Say They Feel Like Killing Others and Themselves:

From People v. Joel O. (Cal. Ct. App. Mar. 24, 2009):

Joel O. appeals from an order precluding him from possessing firearms based on a finding that he would not be likely to use them in a safe and lawful manner. (Welf. & Inst. Code, § 8103, subd. (f).) He contends the preponderance of the evidence standard used in section 8103, subdivision (f) to permit deprivation of the right to possess firearms is unconstitutional, and that the clear and convincing evidence standard should apply. We reject his argument and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On November 8, 2007, Joel's family arranged an intervention with Joel in the presence of several people, including his mother, father, and an addiction intervention worker. During the intervention, Joel (age 31) stated that he felt like raping and killing women who reject him and that he often thinks about killing himself or others. Joel owned several weapons. During the intervention, the police were summoned. The police took Joel into custody and confiscated his weapons, including several firearms.

KenB (mail):
I'm a strong advocate of 2nd Amendment rights, but this is a troubling case. I have not given sufficient thought to the standard that should be applied in such cases, but there needs to be a way to deny arms to someone who presents a danger to self or others. I recognize this can be a slippery slope--just like campaign finance regulation and the 1st Amendment.
3.30.2009 4:38pm
Anderson (mail):
It's an old problem.

Take this case as an example of what I mean: everyone would surely say that if a man takes weapons from a friend when the latter is of sound mind, and the friend demands them back when he is mad, one shouldn't give back such things, and the man who gave them back would not be just, and moreover, one should not be willing to tell someone in this state the whole truth.

-- Plato, Republic 331c (Bloom tr.)
3.30.2009 4:42pm
Mikeyes (mail):
I'd be interested to see how this plays out since I have to deal with this question on a professional basis frequently. It sounds like he was placed on a mental illness committment and was then let out of the hospital when he reached a safe state. He has a drug and alcohol problem, rage/impulse control problems and suicidal urges according the statement of facts and a month after the hospitalization he was asking for his guns back.

Apparently California state law does not allow the possession of firearms for at least five years by a person who has been committed but does allow a due process proceeding to challenge the assumption that they might be dangerous. Given that Joel O. seems to have lied about what he said and has no insight into either his drug and alcohol problem or his poor impulse control, it is not surprising that the court came to this conclusion. In fact it is probably typical assuming what I said above is true.

The question of whether or not this violates his Second Amendment rights will be interesting.

I might add that I am a life member of the NRA and still would not want this guy to have access to firearms.
3.30.2009 4:43pm
Jim at FSU (mail):
I agree with the outcome in this case, but I think their reasoning invites appeal. I don't see why it is such a burden for the state to satisfy the clear and convincing standard in proving that this (clearly disturbed) individual presents a danger to society. Horror stories like this only suggest lowering of the standards if the existing standards aren't high enough to reliably snare such people. But there's no suggestion that this is the case.

Not much explanation as to why deprivation of firearms rights are "not akin to" the other rights that get clear and convincing treatment. If it's a fundamental constitutional right, I think they at least owe us a thorough explanation of why it isn't due the same level of protection as the others.

Also, I think that their argument that the self defense right isn't really infringed because one could "install a security system or call the police" rings kind of hollow. Those alternatives were just as available to the residents of Washington DC, but the supreme court rejected such reasoning when presented by the DC government.
3.30.2009 4:49pm
Jim at FSU (mail):
er "when it was presented"
3.30.2009 4:50pm
Bruce Hayden (mail):
Also, I think that their argument that the self defense right isn't really infringed because one could "install a security system or call the police" rings kind of hollow.
Also, the police have no legal duty to protect you in normal circumstances. You call them, report a burglar, and a half an hour later they respond (in force). By then, of course, the perp is long gone. Any recourse against the police? Of course not. And with an alarm company, all they likely really have to show is that they contacted the police in a timely manner. And then, if the police don't respond in a timely manner, you are back to scenario #1.
3.30.2009 4:53pm
Bruce Hayden (mail):
Let me note that I actually witnessed the police responding in force a half an hour too late. It was in Denver, maybe 20 years ago. We were at a party and called in what appeared to be (and was) a burglary in progress in the neighborhood, then waited outside for the cops to arrive. And over a half an hour later, six cars showed up together.
3.30.2009 4:56pm
NickM (mail) (www):
Jim - this was an appeal. If they held that the trial court imposed the wrong standard, it would need to go back to the lower court to rehear the matter (unless they wanted to make their own factual findings that this was clear and convincing evidence).

From a practical standpoint, clear and convincing evidence is a preponderance of the evidence that the factfinder says is clear and convincing.

Nick
3.30.2009 4:59pm
ChrisIowa (mail):
Two picky little side issues:

The trial court found that the preponderance of the evidence showed that Joel would not likely use a firearm in a safe and lawful manner,

This is awkwardly stated. I think they mean to say that at some time he would use a firearm in an unsafe or unlawful manner. That does not exclude the possibility that he will use firearms in a safe and legal manner on other occasions.

Second, what happens to the firearms? Does Joel lose them and all value in them, or are they sold and the proceeds given to him, or something else?
3.30.2009 5:06pm
Dave hardy (mail) (www):
What is this guy doing on the street? Thinks violence is justified if anyone frustrates him, fantasizes about rape, murder and suicide.... How quickly can we get Clayton on the bench, so that Justice Cramer can do the right thing?
3.30.2009 5:10pm
soldier of fortune:
He should be allowed to own a firearm until he commits a crime--"feelings" is not a legitimate standard.
3.30.2009 5:10pm
PersonFromPorlock:
Lots of gun-free ways to kill people if you're of a mind to. Run them down with a car, use a knife, garotte or baseball bat, drop stones from a rooftop, wire doorknobs to the power grid... so if the evidence is enough to deny Joel guns, shouldn't it also be enough to deny him access to these 'tools' too?

There's either too much restriction here, or not enough. My feeling is that Joel may well need involuntary committment but that restricting one of his Rights while leaving him loose in society isn't very responsive to the problem he poses.

On the constitutional issue: Heller seems to me to require a very high standard: but the opinion's so hedged that I suspect it was never meant to apply to more than the case at hand.
3.30.2009 5:11pm
http://volokh.com/?exclude=davidb :

If it's a fundamental constitutional right, I think they at least owe us a thorough explanation of why it isn't due the same level of protection as the others.

I agree completely. The analogy to free speech rights isn't complete in every situation, but in general, it provides a good guide as to how the RKBA should be treated in the wake of Heller.
3.30.2009 5:13pm
john w. (mail):
As a partial aside: I'm always bothered by that phrase "...a danger to himself or others..."

I can see where being a danger to others might justify restricting somebody's basic rights, but being a danger to oneself seems a whole lot more iffy.
3.30.2009 5:21pm
Dilan Esper (mail) (www):
I agree completely. The analogy to free speech rights isn't complete in every situation, but in general, it provides a good guide as to how the RKBA should be treated in the wake of Heller.

I don't think this is true generally, but no matter, I REALLY don't think this is true about this particular type of restriction.

We don't prohibit mentally ill people from exercising free speech rights, because there isn't anything inherently dangerous about speaking.

However, firearms are inherently dangerous. So having a different standard for stripping the RKBA from the mentally ill seems to me to be not only perfectly constitutional, but entirely correct.

Bear in mind, this DOESN'T really go to the issue of level of scrutiny-- you could have strict scrutiny but nonetheless find that stripping the mentally ill of their right to keep and bear arms would be necessary to serve a compelling state interest. You could also find it passed muster under other tests proposed for interpreting the Second Amendment.

But my point is, this is almost the paradigmatic example of how Second Amendment rights, though profoundly important, are quite different from First Amendment rights. Reasoning "there is a free speech right in this situation and therefore there must also be a right to keep and bear arms in the same situation" is being willfully blind to the differences between the two rights.

(By the way, this cuts the other way too-- you don't have a free speech right to talk (or at least above a whisper) in a library, but you should have a right to carry a gun there for self-protection. Two different rights, that apply differently to different contexts.)
3.30.2009 5:26pm
pete (mail) (www):

There's either too much restriction here, or not enough. My feeling is that Joel may well need involuntary committment but that restricting one of his Rights while leaving him loose in society isn't very responsive to the problem he poses.


Unfortunately our governments have decided to punt on the issue of what to do with the mentally ill for the most part. Most likely this guy needs to be locked up, but that will probably not happen until he hurts someone and then it will probably be prison, not a mental institution.

I am a very strong RTKBA supporter and I have no problem in situations like this with people getting their guns taken away, but I also think that situations like this also should often result in involuntary confinement.
3.30.2009 5:26pm
Kent Scheidegger (mail) (www):
Strange that the panel did not certify this opinion for publication. Agree or disagree with the result, it is an issue worth publishing.
3.30.2009 5:27pm
pete (mail) (www):

(By the way, this cuts the other way too-- you don't have a free speech right to talk (or at least above a whisper) in a library, but you should have a right to carry a gun there for self-protection. Two different rights, that apply differently to different contexts.)


And an appropriate example, because a large chunk of the mentally ill spend their daylight hours in public libraries, often mumbling to themselves and causing various quality of life issues for libraries who have a hell of a time legally keeping people who cause problems out of the building.
3.30.2009 5:30pm
Mikeyes (mail):
There's either too much restriction here, or not enough. My feeling is that Joel may well need involuntary committment but that restricting one of his Rights while leaving him loose in society isn't very responsive to the problem he poses.

I suspect that he is still under a committment order but that he is so as an outpatient. This is not an unusual arrangement in most states. If he violates the terms of his committment, he may find himself in a state hospital - but not always and a due process hearing will take place if he returns to the hospital.
3.30.2009 5:39pm
Dan M.:
If this guy is truly considered to be that dangerous, he shouldn't be permitted to operate a vehicle. He also shouldn't be allowed to have knives or any other instruments that could be used to kill somebody. He should be committed.

The fact of the matter is that people shouldn't have their right to self defense restricted because they have disturbing thoughts. I think a lot of us have disturbing thoughts that we're simply smart enough not to say aloud.

We take this guy's guns away because he muses about killing himself and others, but no one is all that concerned about his rape fantasies?
3.30.2009 5:40pm
Dilan Esper (mail) (www):
Oh, and what Kent Scheidegger said. (I guess I have to agree with the guy once or twice a year!)
3.30.2009 5:40pm
Sergei Zhulik (mail) (www):
I find particularly interesting how this opinion seems to have read Heller to define Second Amendment rights as ipso facto inapplicable to the mentally ill. (I believe Eugene earlier mentioned "[beyond the] scope" as one possible exception to Second Amendment rights. Here, that idea is applied--the Court judging the Second Amendment "scope" exclusive of the mentally ill.)

While the Heller opinion certainly allows for such an interpretation--i.e., that for the period one is deemed "mentally ill" pursuant to sufficient due process, he has absolutely no recourse to the Second Amendment--that's only one of many possible reads of the case. Heller only briefly alluded to presumptively valid "longstanding prohibitions" on the mentally ill possessing firearms, and in such a vague way as to suggest several alternatives.

Perhaps, for example, the mentally ill could avail themselves of limited Second Amendment protections, varying with the degree of risk posed and the public need for deprivation. (Something like an intermediate scrutiny in cases a person so classified is deprived.) Or, perhaps the mentally ill are at least mimimally entitled to a right against wholly irrational deprivations. (Something like a rational-basis review.)
3.30.2009 5:40pm
Bama 1L:
"[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by . . . the mentally ill . . . ."

What is the alternative reading of Heller that would let Joel O. hold on to his guns?

And this does look like rationality review, doesn't it?
3.30.2009 6:02pm
Jim at FSU (mail):

Jim - this was an appeal. If they held that the trial court imposed the wrong standard, it would need to go back to the lower court to rehear the matter (unless they wanted to make their own factual findings that this was clear and convincing evidence).

From a practical standpoint, clear and convincing evidence is a preponderance of the evidence that the factfinder says is clear and convincing.

I know it's an appeal. And yeah, I'm saying they should have kicked it back to the lower court for a rehearing. If that amounts to a rephrasing of the original opinion, then so be it. But they shouldn't diminish a right just because the lower court got sloppy and used the wrong grounds to reach the right decision. That sort of behavior is the province of juries.

And I agree with the other posters that if this individual can't be trusted around deadly weapons, he shouldn't have been released in the first place. Dangerous tools and weapons are readily available to anyone who wants them, illegality notwithstanding. The very fact that this guy is asking permission to possess a firearm suggests to me that he is less of a threat than if he had just acquiesced to the restriction and clandestinely armed himself with a knife or a black market gun. Of course, that (infinitely more dangerous) mode of behavior wouldn't have resulted in an appeal.
3.30.2009 6:09pm
seadrive:
I think letting this guy have a guy would disorder your militia.

However, more on topic, I should think the thing to be avoided is reliance on the opinion of a single expert. It's like old stage comedies about one doctor being able to write a certificate that someone is "mad" and get him locked away.

There are already too many gun laws where the judgment of a single person, usually the Chief of Police, determines who has and who has not.
3.30.2009 6:09pm
Sergei Zhulik (mail) (www):
Bama 1L:

They never touched the issue of the reasonableness of the pertinent deprivation. A rational basis review would at least give lip service to that minimal requirement. Put differently, the implication that follows from the Court touching only due process is:

a) provided Joel is labelled fairly as "mentally ill" (due process),

b) he has no rights to exercise.
3.30.2009 6:13pm
Jim at FSU (mail):
Also, I can see a particular thread of idiocy emerging here- the notion that this decision is correct because the mentally insane don't have a right to keep and bear arms.

That is not what this case is about. This case is about the standard of proof required to establish that someone is insane. Preponderance of the evidence is clearly not the correct standard because finding that someone is mentally insane imposes exactly the sorts of lasting legal disabilities and societal stigmas that the court here so casually dismisses.
3.30.2009 6:19pm
Jim at FSU (mail):
Er disregard the previous post, I'm an idiot.
3.30.2009 6:21pm
http://volokh.com/?exclude=davidb :

I don't think this is true generally, but no matter, I REALLY don't think this is true about this particular type of restriction.

I just meant that if they are going to restrain the exercise of the right then, as with the 1st Amendment, we're owed a "thorough explanation" of why the guy doesn't get to exercise it.

I agree completely that in general 1st Amendment rights ought to be more broad than 2nd Amendment rights for crazy people, for all the reasons you state.
3.30.2009 6:21pm
ArthurKirkland:
I assume that those who strive to enforce a one-bite rule for the admittedly deranged are still seething from the outrage associated with observing their country attack Saddam Hussein before he so much as set foot in the United States.
3.30.2009 6:24pm
Sergei Zhulik (mail) (www):
Jim at FSU:

Good observation. Their due process analysis definitely leaves a lot to be desired. I've pointed to one possible defect in the ruling, and this is certainly another...
3.30.2009 6:26pm
Noah David Simon (mail) (www):
this is why strict constitutionalism is B.S.

OF COURSE YOU TAKE HIS GUNS AWAY!

moderation please

and yes I support the first and second amendment
3.30.2009 6:29pm
Kirk:
I think letting this guy have a guy would disorder your militia.
What an . . . interesting typo.
3.30.2009 7:04pm
Nick B (mail):
So, what's the line for "mentally ill" today?
How about tomorrow?


Nick
3.30.2009 7:26pm
1Ler:

OF COURSE YOU TAKE HIS GUNS AWAY!




What an extreme statement! Noah obviously doesn't deserve 1st Amendment rights. Let's have some moderation.
3.30.2009 8:06pm
ShelbyC:
Since we are talking about taking rights away from the mentally ill, does anybody have a solid, non-manipulateable, clear-cut definition of "mentally ill"?
3.30.2009 8:32pm
whit:

I can see where being a danger to others might justify restricting somebody's basic rights, but being a danger to oneself seems a whole lot more iffy.



it certainly justifies us (police or MHP's) taking somebody into protective custody, or do you disagree.

i do this probably once or twice a week, but then i live in the pacific NW. we grow crazy here like it's going out of style.

do you propose we SHOULDn'T restrict people's rights who are an IMMINENT danger to themselves?

i walk up to a guy sawing his wrist with a knife, i SHOULDN'T take the knife away? after all, by doing so i am restricting his rights!
3.30.2009 8:45pm
Anatid:
Not really, ShelbyC. A large majority of the disorders listed in the DSM-IV-TR have no relevance to guns - for example, you might wish to take away guns from a paranoid schizophrenic with a history of violence, but there'd be no danger from a contamination-based obsessive-compulsive. Disarming someone with post-traumatic stress might even make his disorder worse. Depends on the illness, depends on the individual.

The DSM-IV-TR itself is incomplete and major changes to the definition of mental illness itself are expected in the upcoming DSM-V (which will hopefully take a dimensional, not categorical, approach to mental illness). Simply meeting criteria for a mental illness doesn't necessarily mean anything about your tendency towards violence.

The one line that the mental healthcare profession draws is when a subject voices the desire to harm himself or others. It's entirely at the discretion of the professional interacting with the patient to decide whether or not the troubling thoughts are actually likely to lead to dangerous actions. According to SAMHSA, roughly a quarter of those who contemplate suicide actually make a suicide attempt. The other three-quarters, despite having these thoughts, do not appear to be a threat to themselves. I couldn't easily find the data on homicide or assault incidence.

So put yourself in that professional's position. You've talked to Joel. Despite the fact that you are supposed to remain culturally neutrally, you probably find him to be a rather repugnant person, which is going to influence your decision. It is on YOU to decide, after only knowing him a few hours or days, whether he is simply voicing his frustrations or if he's an actual threat. With the wrong guess, you stand to either violate his second-amendment rights, or to enable a preventable murder.

In the case, IIRC, Joel did not have a background of violent behavior. He has not been implicated in any racial- or gender-based hate crimes. He has not, to the best of our knowledge, ever committed physical or sexual assault. And if he were to commit any of these crimes, would he use a gun to do it? Like several posters already said, taking away his firearms does not magically neutralize a threat.
3.30.2009 9:02pm
pintler:

There are already too many gun laws where the judgment of a single person, usually the Chief of Police, determines who has and who has not.


My personal rule of thumb - if a Police Chief/The System/Whatever is telling 5% of the populace that they don't mix well with guns, that's probably reasonable. OTOH, if someone says 99% of the population can't be trusted with arms, that's unlikely to be reasonable.
3.30.2009 9:19pm
Dilan Esper (mail) (www):
i walk up to a guy sawing his wrist with a knife, i SHOULDN'T take the knife away? after all, by doing so i am restricting his rights!

A certain type of libertarian would say you shouldn't.

And indeed, though I generally support some restrictions on assisted suicide, I have to admit that the idea that the government shouldn't force you to live if you want to die is one that has quite a lot of support from the American public.
3.30.2009 9:29pm
RPT (mail):
Is the answer really that the guy's right to have and use guns to shoot others overrides anyone else's rights to life and safety? That appears to be the stock answer here; one free shooting as a matter of second amendment right. If I am exaggerating, please explain.
3.30.2009 9:55pm
EPluribusMoney (mail):
The simple bright line answer here is you should never be able to take away a person's guns. If they are this whacked out you lock THEM away. As previously commented, he could use a car or a knife to kill people.

As they wisely say, guns don't kill people, people kill people.
3.30.2009 10:07pm
ArthurKirkland:
Actually, from EPMoney's perspective, it's 'all the free shootings you can arrange without being imprisoned for life.'

If that "simple bright line answer" is appropriate, why don't we hand guns to convicts as they are released from prison? If gun ownership is a fundamental right and such a major part of being an American, should we not welcome convicts back to the enjoyment of a free man's citizenship with a shiny new pistol or two?

More aligned with Earth's orbit is the point that absolutists, if they are loud and persistent enough, will cause courts to find their way back to the "militia" language strangely disregarded by the Heller court and/or stretch the 'reasonable restrictions' element of Heller as far as it can go.
3.30.2009 10:27pm
whit:

A certain type of libertarian would say you shouldn't.


yes. i refer to those as "pure libertarians". i'm not one :)


And indeed, though I generally support some restrictions on assisted suicide, I have to admit that the idea that the government shouldn't force you to live if you want to die is one that has quite a lot of support from the American public.



however, that's an entirely different question. if i see a guy cutting his wrists, i don't know that this is a dispassionate decision made w/o the presence of drugs, alcohol, or acute mental illness.

it is one thing to say a person should be able to engage in assisted suicide, if witnessed, and reviewed, so we know it's not some guy having a "bad trip", reaction to medication, or temporary bout of depression.

we have a duty to protect, and i'm not omniscient. you see somebody cutting their wrists, you STOP them.

if you make the wrong assumption about his state of mind, etc. there is no 'do over' when it comes to suicide.
3.30.2009 10:35pm
Floridan:
"As previously commented, he could use a car or a knife to kill people."

He could also use a frozen turkey leg or weedeater, but I'd rather take my chances with a deranged person armed with a knife than with a firearm.
3.30.2009 10:41pm
ArthurKirkland:
The Constitution, however, requires, in some eyes, that we most enable that deranged person to wield an anti-tank gun and a long-range, metal-melting laser.

Some people draw the line at a small thermonuclear device. Others don't.
3.30.2009 10:51pm
Allan Walstad (mail):

On November 8, 2007, Joel's family arranged an intervention with Joel in the presence of several people, including his mother, father, and an addiction intervention worker...During the intervention, the police were summoned. The police took Joel into custody and confiscated his weapons, including several firearms.

I'm curious as to the exact nature and legal status of an "intervention." Did these people call up Joel and say "Do you mind if we come over and talk to you?" Did they accept the responsibility to leave if he told them to do so? At 31, did he actually have any history of criminal violence, much less assault with a deadly weapon? Or did he mostly just have a tendency to mouth off to family and acquaintances?
3.30.2009 11:12pm
TomHynes (mail):
What does the standard mean:

"preponderance of the evidence showed that Joel would not likely use a firearm in a safe and lawful manner"

Is that the same as "Joel would likely use it in an unsafe or unlawful manner"?

What is the probability threshold before you continue to deprive Joel of his guns? Mine is about 10% - if Joel has a 10% chance of shooting someone or using it to commit a rape, he doesn't get the gun back. I don't think many would give the gun back if they knew he had a 49% chance of shooting someone - but that is the standard as written.

An alternate interpretation: Responsible gun owners have an extremely low probability of unsafe or unalwful gun use - on the order of 1 in 1,000 per year.Has Joel shown by the preponderance of the evidence that he is a responsible gun owner?
3.30.2009 11:15pm
ArthurKirkland:
"Mouth off"? You mean the part about his desire to rape and kill women able to resist his obvious charms . . . or the part about frequently pondering murder even with respect to those who don't interfere with his sense of romance?
3.30.2009 11:24pm
Allan Walstad (mail):

"Mouth off"? You mean the part about his desire to rape and kill women able to resist his obvious charms . . . or the part about frequently pondering murder even with respect to those who don't interfere with his sense of romance?

I've probably expressed the desire to wring quite a few necks in the past, but no neck has actually suffered at my hands. So I'm wondering what this guy's objective behavior has been, as opposed to his apparently foolish propensity to give voice to emotions in the presence of people willing to use those statements against him. Some folks talk tough but do nothing, while others keep their mouths pretty much shut while committing serial murder. I'm still curious about the legal status of "intervention."
3.30.2009 11:42pm
Allan Walstad (mail):
I'm also late for bed. Will check back tomorrow to see if anyone had information about "intervention."
3.30.2009 11:45pm
Clayton E. Cramer (mail) (www):
There's a big problem here. Not with this particular case, but with the law, which treats lockups under W&I 5150, 5250, and 5300, as equivalent. They aren't. You can be hospitalized for 72 hours under 5150 on the say-so of a peace officer. For 5250, it requires mental hospital staff to make the determination, for another 14 days. The only section that involves a judge and due process is a commitment under 5300, and that's effectively what used to be called involuntary commitment, because it isn't temporary.

I am quite willing to allow a 5300 commitment to take a person's firearms rights for five years. Both 5150 and 5250 are too easily abused. I know someone who was hospitalized under 5150 because of a somewhat intemperate remark to a Santa Rosa Building Department clerk, who decided to take revenge by telling the police, "There's a man threatening suicide here." He was in and out of the mental hospital in two hours, after psychiatric evaluation revealed that there was nothing wrong with him. But now he was prohibited from owning a gun for five years. Yes, you can request a hearing, but the burden of proof is on you, and at least in the Bay Area, you would have a hard time finding a judge prepared to give you the right to own a gun back again.

By the way, 5300 commitments are absurdly difficult to make happen. The first time that my older brother was 5150ed, then 5250ed, my parents asked the staff at the mental hospital what would happen when he went to court for a 5300 hearing. "Anyone that still appears dangerous after 17 days of Thorazine has to be pretty dangerous." And repeatedly, over the years, as my brother went in and out of the mental health legal system in California and the even more outrageous Oregon system, that was the case: I don't believe that he was ever hospitalized under 5300, even the incidents that led to the 5150 involved violent attacks on complete strangers.
3.31.2009 12:58am
Clayton E. Cramer (mail) (www):
A bit more detail: when the Lanterman-Petris-Short Act (what became 5150, 5250, and 5300) was passed, one of the arguments in its favor was that it was actually easier to hospitalize someone for observation or short-term treatment than under the previous law, which generally involved a judicial proceeding. Throughout the U.S., observation holds were generally short (a few days to a couple of weeks) and then went to a hearing by a judge, a lunacy commission, or some similar quasijudicial entity, which could grant an involuntary commitment.

Involuntary commitment caused an enormous loss of rights: contract; driver's license; control over your own assets. Because it was so serious, most states were pretty good about making sure that due process was followed, although not to the very exacting standards of the ACLU.

I believe that the current California law in this area needs considerable reform, and not just with respect to firearms. (And Lanterman, one of the authors of the Lanterman-Petris-Short Act, was unhappy with where the courts had run with the law he wrote.)

Observation holds should not automatically cause a firearm disability. I believe that due process requirements, such as 5300 requires, should be obligatory for firearms disability. (I think it is also possible that a judge should have the option of not automatically applying a firearms disability in that case.)

I would argue that a 5250 hold (which is predicated on short term treatment, and thus assumes mental illness) should probably have a provision for a judge to hear evidence and apply a firearms disability based on the evidence. There should be a clear definition of what constitutes too dangerous to have a gun. But the bigger problem here is that too many people with serious mental illness problems are in and out of mental hospitals on 5150 and 5250--until they make a serious attempt at murder or suicide, and then finally the law will generally hold such a person.

I have a book on the subject that I am trying to find a publisher for. You can read the first few chapters here.
3.31.2009 1:24am
ReaderY:
The difficulty here is that mental health judgements are known to be fairly unreliable. Consulting a mental health professional leads to a better prediction of whether or not a person under commitment investigation will commit an act violence in the relatively near future than (say) tossing a coin toss. But it's actually not a whole lot better.

For this reason, it is simply not possible to have a genuine beyond-a-reasonable-doubt or clear-and-convincing-evidence standard in most mental-health cases. Evidence meeting such a standard does not exist. Psychology and psychiatry are not exact sciences. This in no implies any negative judgment; it's simply that in some areas people know enough to make very reliable predictions and in others they don't. These matters are ones where we simply don't know a enough for super-reliable predictions, and it would be best to be honest and admit it -- much better than pretending to use a higher standards when there isn't really evidence available to support it.

I believe courts ought to take into account the state of the profession and the degree of to which it is able to provide reliable evidence in setting standards. The fact of the matter is, higher-evidence standards simply aren't available to us, so our real available choices are preponderance of the evidence or nothing. Given that Heller held that laws restricting firearms from the mentally ills as traditionally understood are presumptively valid under the Second Amendment, that holding necessarily implies that the existing available standards for determining mental illness are presumptively valid.

Since a test or method reliably capable of predicting future violence beyond a reasonable doubt simply does not exist and all psychologists and psychologists have to offer us right now is a level of reliability that's merely somewhat better than flipping a coin, it necessarily follows that preponderance of the evidence must do if the validity presumption is to have any meaningful effect at all.

The state does all it must when it does all it can.
3.31.2009 3:03am
Visitor Again:
I have a problem with imposing any disability on someone merely because of the thoughts they've expressed. Why should a man be penalized for venting about someone he thinks has visited an injustice on him, even if that venting takes the crudest of forms. Things said in these circumstances--e.g., "I'd like to string X up by the short hairs and bring the pliers to bear on his privates"--are usually hyperbole.

There should be some harmful conduct--even if it is only in the form of threats communicated to the target--before one is dubbed mentally unfit to have weapons.

I particularly don't trust diagnoses based solely on a psychiatrist's or psychologist's interview with the subject. There is no science involved. The mental health professional is just guessing in the absence of the objective basis that the subject's conduct provides. Plus, I've found mental health professionals to be power-mad egomaniacs with few exceptions. Anyone remember the lobotomies that used to be all the rage?
3.31.2009 3:05am
http://volokh.com/?exclude=davidb :

The Constitution, however, requires, in some eyes, that we most enable that deranged person to wield an anti-tank gun and a long-range, metal-melting laser.

Wow. How many people do you know who hold these views?
3.31.2009 9:11am
Anon1111:

The Constitution, however, requires, in some eyes, that we most enable that deranged person to wield .... a long-range, metal-melting laser.


They can have the long-range, metal-melting laser, just so long as they don't attach it to a shark's head. That would clearly not be protected by the 2nd amendment under any standard of review.
3.31.2009 9:19am
Clayton E. Cramer (mail) (www):

I have a problem with imposing any disability on someone merely because of the thoughts they've expressed.
The standard under English law before the Revolution was that expressing ideas strictly in the area of opinion (such as religion or politics) did not provide a sufficient reason for commitment. Lucy Packard's commitment by her husband in the 1860s was because, “It appears to be established that she suffered from certain delusions…. She expressed the belief at one time that she was the third person in the Holy Trinity and the mother of Jesus Christ.” She also appears to have taught in her husband’s church that her husband was the red dragon of Revelations.

But tell me this: how regularly and seriously should a person be able to tell anyone and everyone that they plan to go out murdering people before this becomes a legitimate basis for hospitalization? I agree that people sometimes say silly things that, in a particular context, don't sound so dangerous as they when are reduced to the printed page. But when hallucinations are severe enough--even if the person hasn't acted on them--it is appropriate to hospitalize this person for their own good.

One example was Bernice Cabanne, who a court-appointed psychiatrist described as unable to provide for her own food, clothing, or shelter. “He testified that she told him that someone was trying to kill her on the way to the examination. He also testified that during the examination she was hallucinating by talking to voices and by stating that she saw a dragon fly by the window.” [Conservatorship of Cabanne, 223 Cal. App. 3d 199, 272 Cal. Rptr. 407, 1990 Cal. App. LEXIS 901 (1990).]

Another case before the California Court of Appeals, involved Margaret L., a college graduate with a history of more than twenty hospitalizations was found by a psychiatrist to be suffering from “a combination of schizophrenic-type symptoms and symptoms like mania and depression.” The psychiatrist described Margaret L.'s delusions:

She told various professionals, including myself, that her father and brother had been involved in the Watergate scandal. She also had the delusional belief that she was Peggy Sue and was being raped because of that. She claimed that John Fitzgerald Kennedy was her attorney. She said she had been involved in the Manson trial. She claimed that her family had forced her to be a child prostitute for the Kennedys. And again, she made additional charges of being molested and raped in a facility. ... Ms. L[.] repeatedly believes that she's being raped, that has continued through the years. In every facility that she's been at she's reported people coming into her room to [rape her] at night. [Conservatorship of Margaret L., 89 Cal. App. 4th 675, 107 Cal. Rptr. 2d 542, 2001 Cal. App. LEXIS 419, 2001 Cal. Daily Op. Service 4490, 2001 Daily Journal DAR 5460 (2001).]
3.31.2009 10:01am
resh (mail):
"But when hallucinations are severe enough--even if the person hasn't acted on them--it is appropriate to hospitalize this person for their own good. "

The problem with the " severe-enough" hallucinations test is its objective measure. For example, on any given Sunday in the US, or perhaps in the quiet of the night, reports of a tangible nexus to a deity-touching, sensing, and being one with him-circulate like so much gossip.

Those hallucinations, we witness, even rise to the odd and peculiar level whereby tears, cash and singing unfold like there's no tomorrow. Men and women, though perfect strangers, have been known to suddenly clasp hands together in reaction to some contrived spiritual machinations, all the while exhibiting, in ape-like mode, a common visage of bliss and temporal order.

And if more proof were needed of these hallucinations, some of the poor bastards culminate their dizzy affair by repeatedly settling on their knees in some distant repose, after reciting from a book that tells of whales being swallowed by someone named Jonah.

Or perhaps the passage reads that Jonah was swallowed by the whale, if it matters. The oddity of it all, is that these very men and women get to decide who is rational enough to carry guns.
3.31.2009 11:16am
pintler:

The problem with the " severe-enough" hallucinations test is its objective measure.


I think you are stuck with a reasonableness test. The only alternative is, as someone posted earlier, a 'one free murder' policy, and I don't think that is going to find much support from the courts or the public.

N.b. also that your example is off point - you can believe in the wackiest religion you like, or that Elvis is being held in Area 51, or whatever, with no problem. But if you are preaching that you are called to slay all the infidels, starting tomorrow, or if you go to Bob's Sporting Goods, say you want to buy a gun, and the helpful salesman wants to narrow down the choices and asks 'What do you plan to do with it?', and you reply 'my dog has commanded me to kill all the redheads', then I have some concerns.

Mere insanity isn't the test - it's too common :-) - but an expressed desire to harm others, whether you are sane or not, is a problem. There is a misunderstanding problem, if you say 'Do that and you're a dead man' in jest, and someone overreacts. I hear those kinds of things off and on, and I don't see a lot of overreaction, so I'm not sure overreaction is common. In any event, one can avoid even the slight chance of a misunderstanding by merely not making that kind of joke.
3.31.2009 11:38am
ArthurKirkland:
Is the point of the story that it is strange for people who believe in the supernatural to complain that others are not being "objective" and "rational" enough, or are not sufficiently reliant on "evidence," or are too susceptible to "unreliable" information, when attempting to disjoin the deranged and firearms?

Or was it, like so many others, just a good story?

Unlike that woven by those who think that discussing the rape and murder of women for rejecting advances is merely "venting about someone he thinks has visited an injustice on him," and strive to locate an excuse for such behavior that would prevent disarming.
3.31.2009 11:49am
resh (mail):
"and you reply 'my dog has commanded me to kill all the redheads', then I have some concerns. "

Ok. Thanks for the line of clarity. I was worried for a second. Let me get this right: It's not reasonable... to exclaim that one's dog wants one to shoot the redheads...but it is reasonable... when one exclaims how the mystical directed one to convert the heathens, redheaded or not.

That looks either like a loosey-goosey spin on teleological ethics, or irrationality is suddenly tethered by violence.
3.31.2009 12:30pm
resh (mail):
"Is the point of the story..."

The point of the story was to walk cautiously if and when employing the "severe-enough" hallucinations test, which is why I more than implied so from moment one.
3.31.2009 12:45pm
Harry Eagar (mail):
Yeah, because, as a practical matter, libraries are such dangerous places.

Too bad that 98-year-old woman in Carthage didn't have her .45 cocked and loaded in her lap. I mean, we give you people rights, and you don't take advantage . . .
3.31.2009 1:28pm
DennisN (mail):

Ok. Thanks for the line of clarity. I was worried for a second. Let me get this right: It's not reasonable... to exclaim that one's dog wants one to shoot the redheads...but it is reasonable... when one exclaims how the mystical directed one to convert the heathens, redheaded or not.


What about someone whose religion tells him

take not from among them friends until they fly (their homes) in Allah's way; but if they turn back, then seize them and kill them wherever you find them, and take not from among them a friend or a helper
Koran 4.89

My point is that you can never make such a test that is not subjective. The best we can hope for (and it's kind of a forlorn hope) is for probity in those that administer it, and the opportunity to confront those findings.
3.31.2009 2:01pm
whit:
i agree that psychology is a "soft science" if that. and i say that as somebody who went to grad school for counseling psychology. it has pretty weak predictive ability when assigned to individuals, and is frankly (all the big words aside in the DSM) pretty subjective.

regardless, in many cases the temporary hold is a pretty easy decision. somebody is sawing through their arm with a knife, that's a no brainer.

i've been to scores of attempted suicides, fwiw. statistically speaking, women are FAR FAR more likely to "attempt" suicide, but it's almost always by a means that will almost never result in death - using a butter knife to make little hesitation marks on the wrist, taking two flintstone chewables and a wine cool (oh noes i'm going to overdose and die) and other such stuff.

pills in general are pretty difficult to kill yourself with.

guys "attempt" far less often than women but WHEN they attempt, they are much more likely to be successful. that is mostly due to means, but the means evidence a REAL intent to kill oneself vs. a parasuicidal "cry for help".

regardless, even if one is using a silly method, it deserves a temporary hold, even if only a cry for help. cry, and the state answers.

in my experince, in the VAST majority of cases, temporary holds are just that. a matter of hours.
3.31.2009 2:32pm
zippypinhead:
For what it's worth, Justice Scalia had something to say on this topic:
Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill...
District of Columbia v. Heller, slip op. at 54; cf. 18 U.S.C. §922(g)(4) (prohibited person includes anyone "who has been adjudicated as a mental devective or who has been committed to a mental institution").

The bit problem is that determinations of mental illness (whatever that means) and the standards for involuntary civil commitment are uniquely creatures of state law, potentially subject only to relatively minimal due process protections. Many states have somewhat different standards for these findings, and worse, link such determinations to firearms possession rights to lesser or greater extents.

Leaving aside the extent to which Joel O. sounds like a few of my scarier in-laws [!], on this record one could probably conclude he has potentially even bigger problems than those that initially brought Seung-Hui Cho, the Virginia Tech shooter, into Virginia's mental health system. A system that, with 20/20 hindsight, appears to have been underinclusive, at least with regards to reporting mental illness and civil commitment adjudications to the NICS system. Does California's system tip the other direction? Maybe... but if one believes Justice Scalia's dista, it's hard to say California is obviously violating the Constitution here.
3.31.2009 2:33pm
mischief (mail):

when one exclaims how the mystical directed one to convert the heathens, redheaded or not.



That won't kill you
3.31.2009 2:35pm
zippypinhead:
oops... yes, I will stipulate I'm too much of a mentally defective pinhead to type without mistakes. obviously meant "the biG problem..." not "bit" problem. And disregard the other typos. Haste makes waste...
3.31.2009 2:36pm
Michael Ejercito (mail) (www):
People suffering from mental illness to the extent they pose a threat to themselves or others can be committed to mental hospitals or otherwise be required to undergo supervised treatment.

If Joel O. is too dangerous to possess a weapon, then the state should at the very least enforce supervised outpatient treatment, if not commitment into a mental institution. If the state is unwilling to do this, then he should be free.
3.31.2009 3:52pm
Michael Ejercito (mail) (www):

Since we are talking about taking rights away from the mentally ill, does anybody have a solid, non-manipulateable, clear-cut definition of "mentally ill"?

They are ill if they are unable to function in society.
3.31.2009 3:56pm
Laura(southernxyl) (mail) (www):
Years ago, in Mississippi, a deranged young man shot his grandmother with a shotgun and then embarked upon a multi-state killing spree. She wrote his name with her blood before she died, so the cops knew who to look for, but he did other damage before they found him. There was some reaction like "why didn't his family realize he was dangerous and do something", whereupon his mother expressed that she had been telling the sheriff and everyone she could think of that he was going to go off and start killing people, and they all said that until he did there was nothing to be done.

People speak hyperbolically all the time, of course. IMO you have to look at the context, at whether there are specific repeated threats, and whether the person has a tendency to do impulsive, unwise things.

If I or someone I love was shot by someone who gave the appearance of being a valid threat but who was given his guns back anyway I'd be mad as hell. It's a cliche but it's still true: the Constitution is not a suicide pact.
3.31.2009 4:55pm
Clayton E. Cramer (mail) (www):

Since we are talking about taking rights away from the mentally ill, does anybody have a solid, non-manipulateable, clear-cut definition of "mentally ill"?
LPS defines someone who is unable to provide for their own housing, clothing, and food, because of mental illness. The courts have stretched this definition to keep a lot of people out of commitment because they were able to beg for these things at least off and on.
3.31.2009 5:35pm
Clayton E. Cramer (mail) (www):

People speak hyperbolically all the time, of course. IMO you have to look at the context, at whether there are specific repeated threats, and whether the person has a tendency to do impulsive, unwise things.
And this requires some willingness to make judgments, sometimes not easy ones. One of the bad things that the ACLU brought to deinstitutionalization was an unwillingness to admit that there were no bright lines separating "ill enough to be hospitalized against their will" from "not ill enough"--and as a consequence, they went for a standard so demanding as to require the mentally ill person to make a serious attempt at murder or suicide (as is effectively the situation in California) before a person gets 5300ed. Yes, there are people who are only a danger to themselves who get a 5300 commitment in California, but not often enough to prevent some very serious suffering.
3.31.2009 5:42pm
Clayton E. Cramer (mail) (www):

Consulting a mental health professional leads to a better prediction of whether or not a person under commitment investigation will commit an act violence in the relatively near future than (say) tossing a coin toss. But it's actually not a whole lot better.
The change from mental illness commitment from a parens patriae concern to a public safety concern was very destructive for exactly this reason. The ACLU arged that psychiatrists weren't very good at figuring out who was a danger, and so few people get locked up until they have already become a serious public safety problem. When the standard was concern for an individual's well being, they locked up a lot of people who might have been a danger to others, and might not. But it was certainly safer for the general society--and safer for those mentally ill people who now die in the streets of hypothermia, violence, pneumonia, and overdoses.
3.31.2009 5:46pm
zippypinhead:
...does anybody have a solid, non-manipulateable, clear-cut definition of "mentally ill"?

LPS defines someone who is unable to provide for their own housing, clothing, and food, because of mental illness. The courts have stretched this definition to keep a lot of people out of commitment because they were able to beg for these things at least off and on.
But Clayton, this sort of definition, unfortunately, is wholly unenlightening on the question of when someone is a danger to themselves or others because of mental disease or defect. Seung-Hui Cho, the Virginia Tech shooter - a puppy who in hindsight was not only sick, but was [correctly] identified by the system as a threat long before he carried out his rampage - would get a free pass under this definition.
3.31.2009 7:27pm
Anatid:
Okay, two points of clarification.

First, in order for a set of symptoms to qualify as mental illness, they must have some kind of negative effect - they must impair your ability to function and/or cause distress to you (or, arguably, those around you). I know a perfectly happy, functioning man who truly believes that he has the soul of a dragon. He may have problems, but he's not mentally ill. In Joel's case, his behaviors seem to be causing some distress to those around him but not to himself, nor do they seem to impair his functioning (again, we don't know the details). It's quite possible that he has other symptoms that would indicate an antisocial disorder, but we just don't know.

Second, the point of religion. Socially sanctioned behaviors, even if they may resemble schizoid or psychotic symptoms, are not considered to qualify for mental illness. For an example, one case involved a Buddhist youth who heard voices when he meditated. He insisted that this was a normal part of the meditative experience for his culture. His therapist consulted with the youth's priest, and found that the young man's experience was far from normal. Turns out the kid had schizophrenia, and his spiritual community had been worried about him for quite some time. From the viewpoint an armchair offers, religion and psychosis might have something in common, but when you actually examine a patient and place him into his normative social context, severe mental illness will stand out.
3.31.2009 7:57pm
darrenm:

If that "simple bright line answer" is appropriate, why don't we hand guns to convicts as they are released from prison?

Somehow, I don't think released convicts have a problem getting a gun.
3.31.2009 8:24pm
ArthurKirkland:
The relevant gentlemen was not "blowing off steam" in the heat of the moment -- screaming "I'm going to tear him limb from limb" after observing that the neighbor permitted a dog to run free, which dog has bitten a child -- but instead was (1) discussing the rape and murder of women for an offense no greater than resisting his romantic charms, (2) doing so not in the heat of (sorry) passion but rather in circumstances detached from any provocation and (3) doing so in the context of an intervention prompted by his family's concern with respect to his behavior, with a counselor present.

A sane person does not envision raping and murdering women for no good reason, does not voice those thoughts in detached circumstances, does not discuss it with him family. Even if someone is nutty enough to think like this, he doesn't talk about it with a counselor.

I am finding it difficult to understand the striving to ensure that this fellow is armed.
3.31.2009 8:26pm
Clayton E. Cramer (mail) (www):

But Clayton, this sort of definition, unfortunately, is wholly unenlightening on the question of when someone is a danger to themselves or others because of mental disease or defect.
I wasn't arguing for it. I was pointing out that this is a definition written in California law. It is inadequate for the reasons that I discuss with respect to parens patriae vs. public safety.
3.31.2009 8:26pm
Clayton E. Cramer (mail) (www):

I am finding it difficult to understand the striving to ensure that this fellow is armed.
It isn't that anyone is striving to ensure that this fellow is armed. It is a desire to come up with a workable definition. The ACLU played a major part in creating the current situation where lots of people are wandering around loose in spite of long histories of bizarre and frightening behavior, including violence--and when the current five year firearms disability was written, the ACLU argued that it was discriminatory against the mentally ill.
3.31.2009 8:29pm
Clayton E. Cramer (mail) (www):

Somehow, I don't think released convicts have a problem getting a gun.
No, they don't, but laws designed to prevent them from getting them can be useful even if they only work at the margins, discouraging the least motivated felons from obtaining a gun, slowing down them getting a gun, or raising the costs. Such laws, if they do not seriously impair the ability of a law-abiding sane person obtaining a weapon, could be useful.

It is the case that laws aimed at disarming the mentally ill are more likely to be effective, simply because a person who might risk legal problems from a highly profitable sale to a convicted felon may be less prepared to take these risks selling to a person who is obviously mentally ill. (Not that all mentally ill people are obviously so, and some go in and out of obvious instability.)

An additional problem with deinstitutionalization is that where a person in a mental hospital may be an expense to society, when out on their own, they are still an expense to society--and we have far less control over how they spend the money that we give them. Part of how Patrick Purdy was able to amass his arsenal was that the federal government gave him a big chunk of money every month--which he used to buy the guns and ammo with which he committed mass murder in Stockton in 1989.
3.31.2009 8:36pm

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