Gun control and the SAFE Act – Part Two: Mental Health Providers and the Mentally Ill
by Len Geller –
This is the continuation of a special multi-part Owl exclusive by journalist Len Geller that explores and illuminates the SAFE Act. Part I: “Closing the private sales loophole” can be found in our July 14, 2017 print edition or online at OwlLightNews.com.
Most New Yorkers would agree that guns should be kept out of the hands of persons who are mentally ill and dangerous, especially in light of the mass shootings at Sandy Hook, Aurora, and Virginia Tech where the shooter was clearly mentally ill and delusional. The problem is developing a procedure for identifying such individuals, making sure this identification is based on strong behavioral evidence, and insuring that their constitutional rights are not violated.
Under federal law a person is barred from purchasing a gun if he or she has ever been legally declared mentally incompetent or committed to an institution because of mental illness. It is also a federal crime to transfer a firearm to a person whom the transferor knows to have been found mentally ill in either of these ways. Prior to the SAFE Act, New York State had similar laws on the books. But this leaves a large category of potentially dangerous mentally ill patients who fall outside these statutes, a population of mentally ill people too dangerous to possess firearms but not dangerous enough to be declared mentally incompetent or committed to a mental institution. The SAFE Act tries to close or at least reduce this loophole by adding provision 9.46 to the New York State Mental Hygiene Law requiring mental health professionals to report to the county director of community services (DCS) or the director’s designee any person under their care who in their estimation, “is likely to engage in conduct that would result in serious harm to self or others.” If the DCS agrees with the judgment, he or she is required to report the person’s name and other non-clinical information to the New York State Division of Criminal Justice Services (DCJS) where that person’s name and information is added to a DCJS database that automatically disqualifies that person from obtaining or retaining a gun license and possessing any firearms for a period of five years. If this person already has a gun license and owns one or more firearms, the license is revoked, and the person in question must surrender all firearms, including any rifles or shotguns not requiring a license.
As of December 2014, nearly two years after the passage of the SAFE Act, 38,718 patients had been reported as dangerous and had lost their gun rights for five years, but of these, only 278 or less than 1% were licensed gun owners. What this data does not tell us is how many of those reported as dangerous owned rifles or shotguns that were not surrendered either because they were not on the State Police’s radar or because the owner concealed them from authorities. Using the reporting rate of the first 23 months and extrapolating to the present (July 2017), it is possible that as many as fifty thousand more New Yorkers have been added to this database and lost their gun rights since December 2014.
What is unique about this provision of the SAFE Act is that it has come under fire mostly from critics outside the gun lobby, especially from mental health organizations and professionals and advocates for the mentally ill. According to these critics, this reporting requirement stigmatizes the mentally ill as violent and dangerous, discourages the mentally ill from seeking or continuing treatment for fear of being reported and/or losing their gun rights, and undermines the therapeutic relationship between therapist and patient because a patient will fear being fully honest with the therapist for the same reasons. Leaving the issue of stigmatization aside for the moment, what is odd about the last two criticisms is that they appear to be unverifiable in practice. If a mentally troubled person refuses to seek treatment out of fear of being reported, how would anyone in the mental health community know this? Moreover, if a mentally troubled person is withholding important information from the therapist or decides not to continue treatment out of fear of being reported, how would the therapist know this unless the patient told them? But why would the patient tell them if he or she is afraid of being reported? What this shows is that these criticisms of the SAFE Act, though well-meaning and commonsensical, are incapable of being scientifically tested and are speculative at best.
The same cannot be said of the charge that this provision of the SAFE Act stigmatizes the mentally ill as violent and dangerous. There is some merit to this criticism, but supporters of the SAFE Act argue that this is a small price to pay for keeping guns out of the hands of a class of individuals who, research shows, are much more likely than the general population to commit a mass shooting.
Unfortunately, the SAFE Act does stigmatize the mentally ill by singling them out as more likely than the general population and other sub-groups within that population to be more violent and dangerous and therefore in need of special scrutiny and control. But this assumption is incorrect. In fact, the mentally ill are responsible for only 3-5% of violent crime in the U.S. and are no more dangerous as a group than the general population and far less dangerous than other sub-groups such as drug and alcohol abusers, gang members, perpetrators of domestic violence, and persons convicted of violent misdemeanors or felonies before age 18.
Nevertheless, it is no accident that the SAFE Act was passed barely a month after the Sandy Hook massacre where the shooter, Adam Lanza, had a long history of mental trouble and dysfunction. Clearly, one of the reasons legislators supported the addition of section 9.46 to the Mental Hygiene Law is that they believed the mentally ill were more likely than the general population to commit mass shootings. And as it turns out, they were right; however, this fact alone, critics argue, does not support placing this population under state surveillance.
Although mass shootings are very rare (an intensive study of all mass shootings from 1982 to 2017 has identified 90 such events, 53 of which have occurred since 2006), both thirty-year and fifty-year studies of mass shooters have found that more than 50% either had histories of diagnosed mental illness such as schizophrenia, paranoia, or delusions or were mentally troubled and showed signs of mental health problems before committing the shooting. These statistics show that the category of mentally ill or disturbed persons targeted by the SAFE Act (those not declared mentally incompetent or committed to a mental institution) are far more likely than any other group in society to commit mass shootings. On the other hand, because mass shootings are so rare, the actual number of mentally ill or troubled patients who are likely to commit a mass shooting is extremely small.
Keeping this in mind, we need to weigh this very low risk against a number of disturbing facts about the process by which a mentally troubled person is identified as potentially dangerous and the legal procedures in place to challenge this identification. What many critics fear is that a large number of mentally ill persons will be misidentified as dangerous under the SAFE Act and have their gun rights suspended for five years. One of the most startling facts about the 9.46 section of the Mental Hygiene Law is that it provides no uniform standards or criteria to determine whether a person under professional care is a danger to self or others. This means that all mental health assessments will be subjective, because the criteria for making them will vary from therapist to therapist and patient to patient. One would expect that a law as important and consequential as 9.46 would not only provide standard assessment criteria but solid evidence-based criteria for making this diagnosis. By evidence-based criteria, I mean such obvious indicators as prior episodes of violence resulting in misdemeanor charges or convictions, domestic violence protection orders, any prior suicide attempt or current suicide ideation, specific threats against a particular person or persons, documented incidents of anger, rage or loss of control when intoxicated, and so on.
No less troubling, according to some critics, is that, whether misdiagnosed or not, a patient who is reported as dangerous under the SAFE Act has no opportunity to challenge the decision in an administrative or court hearing or to petition the courts for a reversal of that classification and restoration of their gun rights during the five year period. Under New York law, a licensee who has had his or her handgun license suspended or revoked has the right to challenge the ruling in a hearing before their county licensing officer, but even if that officer decides to overturn the decision, the licensee will still remain on the “mentally troubled and dangerous” database for five years. Even if successful, this avenue of appeal applies only to the very small percentage of those on the database who have a gun license. For the overwhelming majority, there is no opportunity for legal redress or appeal.
Regardless of the legal fate of this provision of the SAFE Act, what these considerations show is how difficult it is to legally identify those persons with serious mental health problems who are dangerous to themselves or others without violating their constitutional rights, and specifically their right to due process (Fifth and Fourteenth Amendments) and their right to bear arms (Second Amendment). If we do err, should it be on the side of public safety or on the side of liberty?
Len Geller is a free-lance writer and journalist who has a keen interest in New York politics. He lives in Seneca County.