A few weeks ago I noted a new California law, prompted by Elliot Rodger's murders in Isla Vista last May, that lets police officers and "immediate family members" (possibly including angry ex-girlfriends and estranged in-laws) seek court orders stripping people of their Second Amendment rights without any notice or adversarial process. New York's SAFE Act, which was hurriedly passed by the state legislature last year in response to the Sandy Hook massacre, in some ways goes even further. As a story in yesterday's New York Times confirms, the law effectively gives "mental health professionals" the power to disarm people, and they do not even need a judge's approval.
The SAFE Act requires physicians, psychologists, registered nurses, and licensed clinical social workers to report any patient they deem "likely to engage in conduct that will cause serious harm to self or others." The report goes to a county mental health official, who is supposed to review the clinician's determination and, if he agrees with it, pass the information on to the New York State Division of Criminal Justice Services, which checks to see if the subject has a gun permit. If he does, local officials are required to confiscate any firearms he owns. In practice, Times reporter Anemona Hartocollis found, the clinician's initial judgment is conclusive:
So many names are funneled to county health authorities through the system—about 500 per week statewide —that they have become, in effect, clerical workers, rubber-stamping the decisions, they said. From when the reporting requirement took effect on March 16, 2013 until Oct. 3, 41,427 reports have been made on people who have been flagged as potentially dangerous. Among these, 40,678—all but a few hundred cases—were passed to Albany by county officials, according to the data obtained by The Times….
Kenneth M. Glatt, commissioner of mental hygiene for Dutchess County, said that at first, he had carefully scrutinized every name sent to him through the Safe Act. But then he realized that he was just "a middleman," and that it was unlikely he would ever meet or examine any of the patients. So he began simply checking off the online boxes, sometimes without even reviewing the narrative about a patient.
"Every so often I read one just to be sure," Dr. Glatt, a psychologist, said. "I am not going to second guess. I don't see the patient. I don't know the patient." He said it would be more efficient—and more honest—for therapists to report names directly to the Division of Criminal Justice Services, which checks them against gun permit applications.
Presumably the people who wrote the bill did not take the more honest approach because they wanted to create an illusion of due process. But the truth is that the SAFE Act gives any licensed professional consulted by people with psychological problems the power to take away their right to arms. The Times reports that so far, after taking duplicative reports into account, there are about 34,500 New Yorkers in the state's database of people who are not allowed to own guns because they said the wrong thing to someone they turned to for help. Sometimes, as with the librarian who apparently lost his guns because of a Xanax prescription, you don't even have to say anything particularly disturbing. The state found that 278 of the people in the SAFE Act database had firearm permits, which are required for all gun purchases in New York City but only for handguns elsewhere in the state.
How many of those people are potential murderers? Given that psychiatrists have never been good at predicting violence, maybe none, especially since preventing self-harm counts as a legitimate reason to take away someone's guns. "The threshold for reporting is so low," a Queens psychiatrist told the Times, "that it essentially advertises that psychiatrists are mandatory reporters for anybody who expresses any kind of dangerousness." That might not be the best way of encouraging troubled people to seek help.
The SAFE Act seems designed to encourage overreporting, since mental health professionals are required to flag anyone who seems dangerous, and they face no civil or criminal liability for doing so as long as they act "reasonably and in good faith." For county officials, who supposedly are providing an additional layer of review, there is very little incentive to second-guess clinicians' judgments. If they happen to nix a report on someone who later commits a violent crime, that would look pretty bad. But if all they do is pass along a report that has the result of taking away a harmless person's constitutional rights, they are not likely to suffer any negative consequences, even if he is ultimately successful in challenging that deprivation in court.
Reason TV on "The Truth About Mental Illness and Guns":