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A Bit on Section 302 of MHPA

I notice Larry Pratt keeps bringing up a Pennsylvania case where a man was committed involuntarily for observation under Section 302 of Pennsylvania’s Mental Health Procedures Act. This provision is described as follows:

Section 302 is the part of the Act relating to treatment without consent for observed behavior constituting a clear and present danger to the individual and/or others. The behavior must have occurred in the past 30 days. Under Section 302(a) any responsible party can petition for an involuntary evaluation by stating that an individual may be severely mentally disabled.

Now, it should be noted that for purposes of a federal firearms disability, this section is insufficient. The regulations specifically exempt persons held for observation.

Committed to a mental institution. A formal commitment of a person to a mental institution by a court, board, commission, or other lawful authority. The term includes a commitment to a mental institution involuntarily. The term includes commitment for mental defectiveness or mental illness. It also includes commitments for other reasons, such as for drug use. The term does not include a person in a mental institution for observation or a voluntary admission to a mental institution.

But that’s federal. The PA Uniform Firearms Act is also a controlling law:

A person who has been adjudicated as an incompetent or who has been involuntarily committed to a mental institution for inpatient care and treatment under section 302, 303 or 304 of the provisions of the act of July 9, 1976 (P.L.817, No.143), known as the Mental Health Procedures Act. This paragraph shall not apply to any proceeding under section 302 of the Mental Health Procedures Act unless the examining physician has issued a certification that inpatient care was necessary or that the person was committable.

So unless the person actually ends up being involuntarily committed to a mental health institution, there’s no prohibition under federal or state law that prevents him from owning a firearm in the future, unless he’s committed.  It should be noted that Pennsylvania already has a mechanism in place for restoration of rights for commitments and adjudications.  In the editorial I mentioned last, a PA district attorney was quoted as saying:

“I contacted the sheriff and had his license to carry a firearm revoked. And I asked police to commit him under Section 302 of the mental health procedures act and that was done. He is now ineligible to possess firearms [for life] because he was committed involuntarily,” the district attorney reported.

I think that particular DA needs to read the law, because he’s wrong.

10 Responses to “A Bit on Section 302 of MHPA”

  1. straightarrow says:

    That DA may be wrong, but he got his way, didn’t he? It won’t be any different at the federal level.

  2. Sebastian says:

    He said the guy is prohibited from gun ownership for life, which is not true. There’s a good chance he knows it’s not true, but was trying to show voters that he’s a tough on crime kind of DA.

  3. gattsuru says:

    So unless the person actually ends up being involuntarily committed to a mental health institution, there’s no prohibition under federal or state law that prevents him from owning a firearm in the future, unless he’s committed.

    THAT isn’t true, and you should well be aware.

    Your own link state that :

    The terms “includes” and “including” do not exclude other things not enumerated which are in the same general class or are otherwise within the scope thereof.

    In short, while the term “adjucated as a mental defective” includes specific involuntary stays and not others, that does not limit it to only those specific involuntary stays. The law specifically states that any lawful authority may make such a determination without a commitment, and some state laws require such a determination for even an observational stay (I’ll admit I’m unaware of the exacts of PN law here). Given that the portion of Section 302 specifically states that there must be a certification of “observed behavior constituting a clear and present danger “, though, which would match with the (unrelated to commitment to a mental institution) federal law regarding “A determination by a court,
    board, commission, or other lawful authority that a person, as a result
    of marked subnormal intelligence, or mental illness, incompetency,
    condition, or disease: (1) Is a danger to himself or to others
    “, unless individuals other than lawful authorities are allowed to hold a person against their will. The mental health records from more than 80,000 veterans (more than the annual number of actual involuntary commitments by the VA) with PTSD should demonstrate that it doesn’t take a “strapped-to-the-table” commitment to invoke this portion of the law.

    There’s enough misinformation out there, Mr. Sebastian; please don’t spread further ones.

  4. Sebastian says:

    I’m having difficulty following your argument here. Forgive me if I completely misconstrue it. You’re saying that

    a) Commitments aren’t the entire matter, because
    b) Lawful authorities can also make adjudications
    c) Some states require the adjudication before involuntary observation can occur.

    I get that, I think. But I’m not sure how that leads to

    d) PTSD can be used as a means for adjudication

    Certainly Bubba Clinton thought that, but that was his view of GCA 68, and there wasn’t much that could be done. That doesn’t have much to do with either HR2640 or this Pennsylvania case that Larry keeps talking about.

    HR2640 actually provides real standard for what mental health records may be reported to NICS, and provides for relief from disability for people who are still affected. That’s still an improvement over current law.

    Does that mean we’re done, and the rest is fine? Not by a long shot. But we can get this now, and I think it would be wise to take it.

  5. gattsuru says:

    Well, I either didn’t notice or couldn’t find a link to the given Pennsylvania case, but I’d assume that the individual event there would have been selected under the assumption that observation commitments required a lawful authority finding someone to be a danger to himself or others.

    PTSD values were given because they’re a well-known event, statistically unlikely to result in involuntary commitment, and still resulted in addition to the NICS.

    As to HR2640, which I didn’t even noted so far in this thread, I’ve already stated that it won’t do what the GOA are claiming. It’ll also (in text if not likely in practice) allow the removal of strikes against folk who are later found to no longer be, or for whom a diagnosis is made but without a finding that the person is likely to harm himself or other, or unable to manage his or her own affairs. I don’t quite get the latter part — the DSM symptoms list only really count when they’re to a high enough degree that most would interpret them as harmful or resulting in an inability to manage one’s own affairs — but it probably doesn’t hurt.

    On the other hand, it will provide significant incentive for each group to report as many records as possible to the FBI (not only for the funding, but also for liability purposes), while also providing no real assurances that unreasonable restrictions would be uplifted, only that they could be challenged. It’s bad enough that a large portion of people would have to prove themselves worthy of a right, but it’s even worse when individual agencies get to put together the grading team and scoring curve.

    I dunno if you can guess the average political alignment of a Veteran’s Affair’s shrink, or the chance of your average Veteran’s Affairs board of review being relatively pro-gun… but I wouldn’t bet my rights on it.

  6. Boyd says:

    I still don’t see how any of the proposals discussed here makes things worse than the status quo for gun owners, present or future. There is no new class of prohibited persons; more prohibited persons will be reported to NICS (but they’re prohibited, anyway, so they should be in NICS); and there will be a mechanism to remove names from NICS that doesn’t exist today.

    The fact that the Clinton Administration submitted names to NICS in contravention of existing law doesn’t matter one whit. It was wrong then and it would be wrong after the proposed changes. There’s no way to get the names of the list today, there’s at least a nominal procedure to get the names off the list after the proposed changes.

    I still don’t see the problem that some folks have with this stuff.

  7. gattsuru says:

    No, I don’t think you get it.

    Most of these folk won’t be prohibited persons under any reasonable interpretation of the law. Depression is a nasty thing, but if it can be dealt with after three meetings with a psychologist it’s probably not too risky to let the guy own a gun afterward. Some conditions like Asperger’s would be a good reason to advise someone to own a gun or some other form of self-defense, and no logical interpretation of the law would include higher-functioning folk.

    But this statute will add massive incentives to put them into NICS, favoring false positives over false negative by a very hefty degree.

    You’ll now be able to contest the matter directly with a program developed by each department that makes such a distinction, rather than trying to contest the actual NICS record. That’s great, and all, but I think I’d rather avoid having to prove that arming myself “would not be contrary to the public interest” to a program developed by a bunch of psychologists.

  8. Sebastian says:

    I’ll agree that even after this bill, this whole area of regulation is still a total mess, but a lot of that has to do with the fact that I don’t think there’s enough due process in a lot of state mental health procedures. My problem is with some of those laws, which can remove any number of freedoms by the people subjected to them.

    I suppose it’s possible that the states could get confused by the federal standard and report people into the system that don’t technically qualify, but that can happen, and has happened now, only now there’s no way to resolve the issue if it happens to you.

  9. gattsuru says:

    I agree with your viewpoint about getting rid of laws that allow folk to be considered a lawful authority with no real chance of appeal or reasonable trial, but it’s not just about those laws.

    The “states” don’t even have to get confused. They don’t even seem to be the ones sending data in. The Department of Veteran’s Affairs is. Any agency or department of the United States is. . HR 2460 specifically states agency- and department- based.

    It can happen already, that’s true. On the other hand, there aren’t any systemic incentives for such reports now. False positives today can result in accusations of HIPAA violations, at the least. Until the Attorney General asks, there was no reason to even send data in. With hr2640, however, all mental health disclosures can be argued as required by law (and thus not protected by HIPAA).

    There’s little way to resolve it now (the law says you can sue the agency that put the record in if you believe it’s false, but I’ve never heard of that succeeding), but HR 2460 doesn’t exactly provide a great chance, either. Once HR 2460 passes, you’ll be stuck trying to prove that removing the NICS block “would not be contrary to the public interest” (since proving a negative is so easy) to the very agency that put the block in place.

    That doesn’t sound like a good deal, to me.

  10. Sebastian says:

    I think we just disagree on whether the deal is good or bad, which is fine. I appreciate that you least bring up legitimate concerns and make good arguments. I just wish others were doing the same thing.

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