The Volokh Conspiracy

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Free Speech

No Pseudonymity in Case Challenging Denial of Gun Rights Based on Alleged Mental Health Problems


From P.D. v. Sullivan, decided last month by Judge Nelson Román (S.D.N.Y.):

Plaintiff seeks to proceed anonymously because the action involves "matters of a highly sensitive and personal nature, to wit, medical and mental health records and information." … There is little question that the instant case involves matters that are highly sensitive and of a personal nature—medical and mental health information are undoubtedly so. Moreover, Plaintiff is suing the Commissioner of the New York State Office of Mental Health in her official capacity, and therefore sues the government rather than a private entity. Furthermore, there is little to no prejudice to Defendant as she has not opposed Plaintiff's request and Plaintiff indicated he would provide his name to Defendant. Finally, Plaintiff's name and identity have been kept confidential from the public to date.

[On the other hand, though] Plaintiff argues that his identification "poses a risk of retaliatory physical and mental harm to Plaintiff, and even more critically, to innocent non-parties including his family members" … this risk of harm is vague and speculative. Plaintiff points to the combined "stigma" of mental health and Second Amendment rights but fails to elaborate on or provide any evidence of this supposed stigma. Nor does Plaintiff specify the nature of these potential harms. Plaintiff claims this is particularly true "within New York State's hostile anti-Second Amendment environment," and the Court is not entirely sure what Plaintiff means….

"… [T]here is a general presumption that parties' identities are public information." As implied by Plaintiff, the Second Amendment has fostered continued debate and discussion among the public in recent years. Accordingly, there will likely be widespread interest in Plaintiff's suit that challenges provisions of the New York State Mental Hygiene Law ("NY MHL") as unconstitutional under the Second and Fourteenth Amendments.

Admittedly, the identities of individuals who sue only the government and raise an abstract question of law may be largely irrelevant to the public's concern with the nature of the process. However, while Plaintiff's claims contest the constitutionality of a statute—certainly an abstract question of law—Plaintiff also argues the statute's constitutionality with respect to his specific circumstances. Plaintiff alleges that NY MHL § 9.39 is unconstitutional "as applied to Plaintiff." Accordingly, although the action appears to involve purely legal questions, disputes of fact may arise as the litigation progresses.

Finally, there are alternative mechanisms available to Plaintiff. "A plaintiff's confidentiality can be protected in multiple ways, including redaction of the documents and sealing, seeking a protective order, or entering into a confidentiality agreement." Accordingly, with regards to Plaintiff's argument that anonymity will create more transparency, the Court is confident that the parties can find a middle ground where the public has access to all pertinent information without the need for Plaintiff to proceed anonymously…. "Redacted and sealed submissions are routinely used in cases involving sensitive medical information." … "The fact that a case involves a medical issue is not a sufficient reason for allowing the use of a fictitious name, even though many people are understandably secretive about their medical problems." …

Plaintiff's Amended Complaint claims that he was admitted to a hospital under N.Y. Mental Health Law 9.39 "for emergency observation and evaluation"; that law provides for brief commitment for "mental illness for which immediate observation, care, and treatment in a hospital is appropriate and which is likely to result in serious harm to himself or others." But plaintiff states that he "consistently denied any suicidal ideation during his admission," and that "[b]y discharging Plaintiff and not converting Plaintiff's admission to an involuntary commitment under Article 9, the mental health professionals at [the hospital] determined that Plaintiff was not a danger to himself or others." Likely to produce an interesting legal debate; at this point, the court concluded only that the case to be litigated going forward under plaintiff's name.