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Should People Who Attempt Suicide Lose Second Amendment Rights, and, If So, for How Long?


An interesting decision Wednesday by N.Y. trial court judge Thomas Marcelle (Albany County), Hines v. Doe:

Doe lives in terrible discomfort caused by a host of ailments. In the last three years matters have gotten worse. As a result, Doe drinks every Sunday (but only on Sunday) to cope with his present dysphoria. One Sunday, Doe turned on a football game and consumed 60 proof blackberry brandy to deaden the pain. During the game, Doe's wife began screaming at the TV. The alcohol, the screaming and his afflictions overcame Doe, and he told his wife to shut up. Mrs. Doe stormed upstairs. Doe decided to leave the house, call an Uber and go visit a friend in northern New York. In short order Doe changed his mind. Tormented by his pain, Doe decided that death was better than life. To end his life, Doe walked into a cemetery, opened his jacket, laid down on the snowy ground waiting for hypothermia to take him.

After a few hours Mrs. Doe became gravely concerned about her husband, so she called the police. New York State Trooper Matthew Yankowski responded and conducted a search. Trooper Yankowski located Doe in the cemetery. There and then, under the auspices of MHL 9.41, the Trooper took Doe into custody and transported him to Albany Medical Center to be treated. At the hospital, Doe was visited and examined by a battery of psychiatrists. The next day Doe was released neither with a diagnosis of mental illness nor a prescription for medication.

Petitioner, under CPLR 6341, sought a temporary extreme risk protection order to retain possession of three shotguns and a long rifle that Doe had already surrendered to the State Police. The court granted the temporary order (CPLR 6342) and now must determine if petitioner has "prov[en], by clear and convincing evidence, that the respondent is likely to engage in conduct that would result in serious harm to himself." A likelihood of serious harm means "a substantial risk of physical harm to himself as manifested by threats of or attempts at suicide."

The case is complicated by the Second Amendment…. [Under Bruen], courts must search the historical record to determine if a categorical exception to the Second Amendment exists—without an exception, Doe's right to keep weapons may not be infringed.

One such exemption, justified by the historical record, is "the longstanding prohibition[] on the possession of firearms by the mentally ill." … There is no debate that Doe attempted suicide—he acknowledges that—but does that mean he is mentally ill. There is some force to the argument that when a person attempts suicide, which is the case here, he suffers from a mental illness. While some, if not most, suicides are borne of mental illness, the court lacks confidence that suicidal ideation equates perfectly to mental illness. Consequently, an expository journey is required to determine if Doe is mentally ill either as a matter of law or as a matter of fact.

To begin with, the Mental Health Law provides some clues to whether suicidal ideation is a mental illness per se, but not definitively. Under MHL 9.39, before the government can restrain a person's liberty by involuntary hospitalization, it must prove two elements: (1) the person has a mental illness and (2) the mentally ill person, among other behaviors, presents a "substantial risk of physical harm to himself as manifested by threats of or attempts at suicide." Thus, MHL 9.39 allows the involuntary hospitalization of that subset of mentally ill persons who are suicidal. However, MHL 9.39 neither contemplates nor addresses the issue of whether a person who threatens or attempts suicide is mentally ill.

Case law provides a somewhat clearer answer. New York law has recognized a critical distinction between those who end their life in a rational state of mind and those who do so as a result of a mental illness—"[s]uicide involves the deliberate termination of one's existence, while in the possession and enjoyment of his mental faculties. Self-slaughter by an insane man or a lunatic is not an act of suicide within the meaning of the law." The court concludes, therefore, that a suicidal ideation or attempt is not mental illness per se.

So, if suicidal ideation or attempt is not mental illness per se, then the inquiry becomes whether the evidence showed that Doe suffered from mental illness. There was indirect evidence offered at the hearing on Doe's mental health. After Trooper Yankowski took Doe to Albany Medical Center, Doe was examined by four psychiatrists. Doe testified that none of the doctors diagnosed him with a mental illness. To the contrary, they released Doe rather than involuntarily confining him under MHL 9.39. Moreover, Doe told the court that no medication was prescribed for him by the various mental health professionals who treated him. Since the doctors failed to find mental illness and because Doe's appearance and his testimony at the hearing seemed sane and rational, the court finds that Doe does not suffer from a mental illness. Therefore, since Doe is not mentally ill (either as a matter of law or as a matter of fact), the Second Amendment's "longstanding prohibition[] on the possession of firearms by the mentally ill" is inapplicable.

If the mental illness exception provides no basis to disarm Doe, can he be disarmed solely because he attempted suicide—the answer depends on history…. "… [F]or over 700 years, the Anglo—American common-law tradition has punished or otherwise disapproved of suicide." [Historical details omitted. -EV] Of course, the law is not static…. Certainly, New York has degraded the seriousness of suicide. Someday the Legislature may embrace suicide as a choice for people in pain. Indeed, Canada has already done so. But unless the Legislature so declares, the court will resolve doubts in favor of life. Thus, the court finds that "the rule of the common law[] declaring suicide to be malum in se[] has [not] been abrogated by the [Legislature]."

Since historically and currently New York considers rational suicide an evil, the next question becomes does the Second Amendment allow the State to disarm a citizen to prevent self-murder. History again must be the guide. To start with, an ancient common law principle involved a citizen's right and even the duty to detain a perpetrator of a crime. The common law extended this privileged use of force to many different areas. The extension included the prevention of suicide. "At common law, a private person's use of force to prevent suicide was privileged."

New York has codified this common law privilege. New York allows "[a] person acting under a reasonable belief that another person is about to commit suicide [to] use physical force upon that person to thwart the [suicide]."

Given this historical context, the court concludes that the State may seize the weapons of a person about to commit suicide without violating the Second Amendment. But how long should the disarmament continue; it cannot be once suicidal, always suicidal. "As [] history shows, the government may not ordinarily seize and hold on to weapons [without a continuing justification]."

The common law, as embodied in Penal Law § 35.10(4), speaks to the disarmament when a person is about to attempt suicide. In many ways, disarming the non-mentally ill suicidant, mimics the disarming of the intoxicated. At the nation's founding, laws allowed the seizure of guns from those in an intoxicated state. However, in the case of the intoxicated, "the [gun] restrictions imposed [i.e., confiscating the weapon] only applied while an individual was actively intoxicated or actively using intoxicants." This is a sensible limiting principle.

Thus, based upon historical analogues, when a rational person attempts suicide to escape the maladies of life, he should be disarmed as long as he may attempt suicide. In other words, the seizure of a person's guns and the length of retention of the guns devolves into a question of probability and imminence. This inquiry is fact intensive.

Before a close inspection of the facts, the court needs to explain the proper standard to determine if a person still presents a risk of suicide. The standard employed by CPLR 6343 presents a problem, at least where constitutional rights are implicated as is the case here. CPLR 6343 requires petitioner "to prove by clear and convincing evidence, that the respondent is likely to engage in conduct that would result in serious harm to himself." Thus, CPLR 6343 contains two different sets of probability—clear and convincing (i.e., highly probable) and likely.

These dual standards compound probability. CPLR 6343's compound probability would permit the government to retain weapons even when the evidence suggests that an attempted suicide is an unlikely event. Such a low threshold to disarm a citizen is probably not consistent with constitutional constraints. So, to avoid an unnecessary determination of whether CPLR 6343's standard for disarming a citizen meets Second Amendment constraints, the court must seek refuge elsewhere.

The court believes that the Legislature used the phrase clear and convincing evidence to elevate the burden placed upon petitioner to seize and retain a person's guns. Indeed, if CPLR 6343 had required petitioner to prove by clear and convincing evidence that the respondent will engage in conduct resulting in self-harm, the statute would be the substantial equivalent to the clear and present danger standard. That standard in this context would mean that a respondent must present a clear and present danger [that he will attempt suicide]. The court will apply this standard to the facts.

Turning to the facts, Doe testified with blunt honesty. The court fully credits his testimony. Doe is a tranquil man who has never transgressed the law or been provoked to violence. He wants his guns back not to murder himself but to dispatch with alacrity a pack of woodchucks who harass his dog. He prefers shooting the varmints rather than poisoning them so that their death is instantaneous rather than slow and tortious. He assured the court that he would never shoot himself because it would be too horrible for his wife to find him with his head blown away.

As nice and peaceful of a man as Doe is, there is an inescapable fact that haunts the court—Doe has contemplated his own demise (and in rather specific terms) and even acted on these dark thoughts. However, four things offer a counterbalance. First, the cooling down period provided by the temporary order (CPLR 6342) during the doldrums of a gray winter, did Doe a world of good by allowing for some self-reflection. Second, Doe told the court that he now wants to live. Third, he has appointments with a new doctor and a therapist. Moreover, he clearly has forecasted a future battle with the woodchucks to protect his dog. These events are forward looking and consistent with contemplating continued life. Lastly, and most compelling, Doe told the story of how his fiancée committed suicide and how that brought him unassuageable grief for several years. At the close of the hearing, the court reminded Doe that if he committed suicide, he would inflict that same inextinguishable pain upon his wife. At this point, the court saw a discernible alteration in Doe's countenance. He exhibited an expression that the court believes was a recognition that while suicide would allow him to escape his pain, it would be in exchange for imposing terrible and prolonged heartache upon his wife—such a bargain seems to the court inconsistent with respondent's personality.

The court possesses no supernatural prognostication abilities, but based upon the evidence before it, the court does not believe that Doe represents a clear and present danger to himself. Therefore, … it is … ordered that petitioner turnover to respondent his rifle and three shotguns no later than March 3, 2023.