Gun Violence Restraining Orders
July 16, 2014
By Robert B. Young, MD
Killers, especially mass murderers, often appear to have some mental illness. They may not have been treated, or were not successfully treated, or their need for treatment wasn’t recognized. Overall, people with mental illnesses are no more likely to commit violence than the general population and are far more likely to become victims. 1 However, there are a few major psychiatric problems (for example, paranoid delusions, hallucinations commanding aggression, and major depression with suicidality) that, when acutely symptomatic, do increase the risk of violent behavior. That risk is heightened when there is previous history of violence or concomitant drug or alcohol abuse. So it’s very important to try to identify potentially dangerous folks, mentally ill and otherwise, in order to intervene in time to prevent violence.
The best intervention for the mentally ill is good treatment, sometimes by commitment to inpatient care to resolve symptoms of risk or to outpatient care to prevent recurrence. There are also proposals to remove firearms from individuals at risk. The inability to accomplish either of these was deadly in the case of James Holmes, the Colorado movie theater killer, whose psychiatrist reported his apparent dangerousness to police but no meaningful action was taken. 2
In most jurisdictions, psychiatrists, other physicians or other mental health authorities can commit people for psychiatric evaluation. Police will remove firearms from suspects, or from potentially dangerous patients on the request of the treating clinician. In some states (Connecticut and Indiana) judicial intervention is well established, and other states (California and New Jersey) are considering expanding that. 3 There’s no simple route in most places for the return of those firearms. Sometimes this can be done on the recommendation of a psychiatrist, but many are reluctant to make these decisions.
In a recent Los Angeles Times op-ed, Renée Binder, MD argues that “California Needs a Gun Violence Restraining Order” (and other states, too). 4 Dr. Binder is Director of the Psychiatry and the Law program at the University of California at San Francisco and is president-elect of the American Psychiatric Association. The APA strongly advocates dealing with mentally ill people compassionately and respectfully, supports their full exercise of civil rights, and stresses the irrelevance of mental illness to the vast majority of violent acts. The mental health community also recognizes that certain mental illnesses can be a factor in some cases of violence. Unfortunately, proponents of seizing firearms aren’t often concerned about the rights of gun owners or the mentally ill, which may conflict with their goals.
There are a variety of approaches to firearm seizure. When police confiscate a suspect’s firearms in Connecticut, a court hearing takes place in 2 weeks to determine whether they should continue to be held for up to one year. Then a second hearing could be sought by the subject, to show why the confiscation order should end. If this isn’t sought, the property could continue being held. 3 California prohibits gun possession for 5 years following involuntary psychiatric hospitalization (even if released from no more than 72 hours observation), while a domestic violence restraining order is in effect, and for up to 10 years following conviction of a violent misdemeanor. 4,5
These issues raise serious concerns:
- What standards of evidence justify a seizure? Commitment for psychiatric treatment doesn’t necessarily imply danger with a firearm, let alone for 5 years. Most of those patients readily recover and many never again require that level of intervention. In domestic conflicts, there are sometimes false or exaggerated allegations. Convictions (not just charges) for violent misdemeanors may merit prohibition of gun possession for some time, but 10 years without recourse is longer than necessary or fair in many circumstances.
- What sort of evidence is required to reverse the seizure? There’s no way to guarantee that someone will behave safely. It’s not possible even for psychiatrists to predict the likelihood of violent behavior beyond a day or two.
- How does the initial seizure of property incorporate any due process, particularly since this contravenes a federal constitutional right? Yet emergencies do happen, and deaths might be prevented if weapons could be confiscated in time and with good judgment.
- Police officers deserve great respect but there are always a few who abuse their powers. How can this be safeguarded?
- What is reasonable about not permitting the subject to contest these decisions for a year or more?
So here are some thoughts:
- Clearly criteria must be defined that justify the seizure of individuals’ legally owned firearms, not just any diagnosis of mental illness. Actual violent threats or acts, preoccupation with violent acts of others or indications of planning such acts, and a history of violent behavior would be more meaningful than someone’s suspicion alone. Certain psychiatric and substance use problems are suggestive of poor control over dangerous impulses.
- The presumption of innocence is central to due process in our legal system. If firearms are seized, the burden of proof should be on the state to justify continuing to deprive owners, not on owners to show that they are no danger. When commitments of psychiatric patients in New York need to be extended due to similar risks, staff must show why at intervals of from 14 to 60 days. So such proceedings need to take place early and often, not a year later and only if the subject can initiate and pay for an appeal. Unless the subject is incarcerated or under psychiatric commitment , how about requiring the state to justify retaining the property every 60 days?
- When it is decided to return firearms to someone, this must happen promptly within a legally prescribed time period. It can take far too long to restore property held by law enforcement agencies. It took 3 years and a lawsuit to get New Orleans to begin returning guns confiscated during Hurricane Katrina, and then many were damaged, unidentifiable or lost. 6 Confiscated property has to be returned in the same condition in which it was taken. Those responsible for failing to properly care for these valuables, and to return them in a timely fashion, should be penalized. Owners should be indemnified in cases of lost or damaged property.
There are good reasons to be concerned about leaving weapons with agitated, threatening, intoxicated and/or certain mentally ill people. As always, the devil is in the details. Core issues about gun seizures are whether the civil rights of potentially risky (and possibly mentally ill) people will be respected and whether needed treatment can be ensured. Also, it’s past time for all states to contribute complete data about currently prohibited persons to the NICS system. Had it been up-to-date, Seung-Hui ho’s rampage at Virginia Tech might have been forestalled. 5
Of course, we’ve been discussing firearm risks only, while many more people are killed and injured by accidental poisoning, falls and motor vehicle accidents. 7 What shall we confiscate to prevent those?
— Robert B. Young, MD is a private psychiatrist in Pittsford, NY and a Distinguished Fellow of the American Psychiatric Association.
(and ref. there “Evidence Based Approach for Federal Policy” and “… for State Policy”)