Take Xanax, Lose Your Guns?

The SAFE Act, the gun control law hastily passed by the New York legislature in January, included a provision requiring 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, assuming he agrees with the clinician's assessment, passes it on to the New York State Division of Criminal Justice Services (DCJS), which determines whether the patient holds a firearms license. If he does have such a license, which is required to legally buy a handgun in New York, the DCJS must notify the local licensing official, who must suspend or revoke the patient's license and instruct him to surrender all of his firearms, including rifles and shotguns. If he fails to do so, police are authorized to seize them.

Which is how David Lewis, a 35-year-old Amherst librarian, was stripped of his guns and his Second Amendment rights. Except that state police now say it was all a big misunderstanding, and Lewis is expected to get his guns back. The precise cause of this mistake is hazy. Erie County Clerk Chris Jacobs, the local licensing official, says he got bad information from the state police. "Today we all look like fools," he told WIVB, the CBS affiliate in Buffalo. "They did not do their due diligence; they did not appropriately and fully investigate this to make sure it was the right person."

That makes it sound like a case of mistaken identity. But according to Jacobs, state police said Lewis could not be trusted with guns because he was taking anti-anxiety medication. Lewis' lawyer, Jim Tresmond, says his client did in fact receive a prescription for such a drug. Yesterday the state police issued a statement saying "no guns are being taken because an individual is on anti-anxiety medication" and declined to comment further on the case. But the state police should not have known anything about Lewis unless a doctor, nurse, psychologist, or social worker who was treating him reported him to a county mental health official, who agreed he was dangerous and passed the information on to the DCJS. Even then, neither the DCJS nor the state police should have known details such as the condition for which Lewis was being treated or the drug he was taking. The law says "information transmitted to the Division of Criminal Justice Services shall be limited to names and other non-clinical identifying information." But once the DCJS received a report on Lewis, the law left no room for discretion. Under the SAFE Act, suspension or revocation of Lewis' firearms license and surrender or seizure of his guns were mandatory. So if someone screwed up, it looks like it was the clinician whom Lewis made the mistake of trusting and the county mental health official who rubber-stamped the clinician's determination that Lewis was reportable.

According to the New York State Office of Mental Health, any patient who meets the legal standard for reporting under the SAFE Act also meets the legal standard for "emergency removal to a psychiatric hospital for an examination." That did not happen to Lewis, which suggests the law was misapplied (or that clinicians are not reading it the same way the Office of Mental Health does). But legislators are also to blame, because they created incentives to err on the side of taking away someone's guns. As Jacobs observes, Lewis' experience "stems from a flawed law that was passed so quickly without forethought on how something would be implemented."

The SAFE Act requires mental health professionals to report patients they think are likely to harm themselves or others; the only exception is when a clinician believes that reporting the patient will itself endanger the clinician or someone else. The law immunizes the clinician from civil or criminal liability as long as he reports the patient "reasonably and in good faith." In these circumstances, the fear of failing to report a patient who later shoots someone is apt to encourage overreporting. Likewise, the county health official has little incentive to second-guess the clinician's judgment; if his main concern is covering his ass, he will be inclined to pass all such reports on to the DCJS—just in case. Once DCJS gets a report, the loss of Second Amendment rights is automatic. So although the state police insist that "no guns are being taken because an individual is on anti-anxiety medication," that is exactly what seems to have happened in this case. What message does this send to troubled people, including those who might actually be prone to violence, about the merits of seeking help from a mental health professional? 

"If you try to read the legislation on the mental health provision and how this is supposed to work, it doesn't look like it's going to work on paper, and now we know it really doesn't work," Jacobs says. "And as a result, in this case, we had somebody who was, I think, probably embarrassed. Name was dragged out in public; they were deprived of their property and their rights here." Tresmond, who plans to file a civil rights lawsuit on Lewis' behalf once he figures out exactly what went wrong, adds: "Due process should come before the suspension. That's where due process comes in. Before your rights are taken, due process must occur. That's our constitutional right, not the reverse."

[Thanks to Laura Struble for the tip.]