The Volokh Conspiracy

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Expired Involuntary Commitment Order Can Be Reviewed Because of Collateral Effect on Gun Rights

Sounds right to me.


The case is In the Matter of D.K.; it was decided by the Wisconsin Supreme Court in 2020, but I hadn't noticed it then, and just learned about it because of a new decision that cited it. From Justice Annette Kingsland Ziegler's majority opinion:

[T]he County had to prove by clear and convincing evidence that D.K. was mentally ill, a proper subject for commitment, and dangerous. The circuit court concluded that Winnebago County met its burden of proof, ordered D.K.'s involuntary commitment for six months, and ordered involuntary medication and treatment. The court of appeals affirmed. It concluded that D.K.'s threats and plans to strangle police officers and kill other people established a "'reasonable fear … of serious physical harm' under § 51.20(1)(a)2.b.," and, therefore, "the circuit court's dangerousness determination… was supported by the evidence." …

The order had expired by the time it came up to the Wisconsin Supreme Court, so normally the mootness doctrine would keep the court from review the order. But the court held that "D.K.'s commitment is not a moot issue because it still subjects him to a firearms ban":

As a result of his civil commitment, D.K. is "prohibited from possessing any firearm." And the "[e]xpiration of the mental commitment proceeding [did] not terminate this restriction." Accordingly, though his commitment has expired, D.K. is still subject to the lasting collateral consequence of a firearms ban. Since D.K. would otherwise have a fundamental right to bear arms, this is no minor consequence. See U.S. Const. amend II; Wis. Const. art. I, § 25. On appeal, a decision in D.K.'s favor would void the firearms ban and therefore have a "practical effect." Thus, we conclude that D.K.'s commitment is not a moot issue because it still subjects him to the collateral consequence of a firearms ban.

The court went on to the merits, and concluded that "there was clear and convincing evidence at the final hearing that D.K. was dangerous as defined" by state law, and thus upheld the commitment order; some Justices dissented as to that substantive matter, but implicitly agreed to the mootness holding (since otherwise they wouldn't have opined on the substance at all).