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Analysis of S.2002: “Mental Health and Safe Communities Act of 2015”

For the past few days, we’ve been waiting to see the text of Senator Cornyn’s bill. It has not appeared yet at Thomas, but I managed to find it in the Congressional Record. It is not a short bill, but quite a lot of it is really just related to mental health, and has nothing to do with gun laws. I find the NRA’s statements about the bill to be credible. S.2002 would give us, for the first time since the Gun Control Act passed, a very precise definition of what it means to be “adjudicated.” The meat of the bill is here:



SEC. 302. DEFINITIONS RELATING TO MENTAL HEALTH.

  (a) Title 18 Definitions.--Chapter 44 of title 18, United 
  States Code, is amended--
  (1) in section 921(a), by adding at the end the following:
``(36)(A) Subject to subparagraph (B), the term `has been 
  adjudicated mentally incompetent or has been committed to a 
  psychiatric hospital', with respect to a person--
``(i) means the person is the subject of an order or 
  finding by a judicial officer, court, board, commission, or 
  other adjudicative body--

``(I) that was issued after--

``(aa) a hearing--
``(AA) of which the person received actual notice; and
``(BB) at which the person had an opportunity to 
  participate with counsel; or
``(bb) the person knowingly and intelligently waived the 
  opportunity for a hearing--
``(AA) of which the person received actual notice; and
``(BB) at which the person would have had an opportunity to 
  participate with counsel; and

``(II) that found that the person, as a result of marked 
  subnormal intelligence, mental impairment, mental illness, 
  incompetency, condition, or disease--

``(aa) was a danger to himself or herself or to others;
``(bb) was guilty but mentally ill in a criminal case, in a 
  jurisdiction that provides for such a verdict;
``(cc) was not guilty in a criminal case by reason of 
  insanity or mental disease or defect;
``(dd) was incompetent to stand trial in a criminal case;
``(ee) was not guilty by reason of lack of mental 
  responsibility under section 850a of title 10 (article 50a of 
  the Uniform Code of Military Justice);
``(ff) required involuntary inpatient treatment by a 
  psychiatric hospital for any reason, including substance 
  abuse; or
``(gg) required involuntary outpatient treatment by a 
  psychiatric hospital based on a finding that the person is a 
  danger to himself or herself or to others; and
``(ii) does not include--

``(I) an admission to a psychiatric hospital for 
  observation; or
``(II) a voluntary admission to a psychiatric hospital.

``(B) In this paragraph, the term `order or finding' does 
  not include--
``(i) an order or finding that has expired or has been set 
  aside or expunged;
``(ii) an order or finding that is no longer applicable 
  because a judicial officer, court, board, commission, or 
  other adjudicative body has found that the person who is the 
  subject of the order or finding--

``(I) does not present a danger to himself or herself or to 
  others;
``(II) has been restored to sanity or cured of mental 
  disease or defect;
``(III) has been restored to competency; or
``(IV) no longer requires involuntary inpatient or 
  outpatient treatment by a psychiatric hospital; or

``(iii) an order or finding with respect to which the 
  person who is subject to the order or finding has been 
  granted relief from disabilities under section 925(c), under 
  a program described in section 101(c)(2)(A) or 105 of the 
  NICS Improvement Amendments Act of 2007 (18 U.S.C. 922 note), 
  or under any other State-authorized relief from disabilities 
  program of the State in which the original commitment or 
  adjudication occurred.
``(37) The term `psychiatric hospital' includes a mental 
  health facility, a mental hospital, a sanitarium, a 
  psychiatric facility, and any other facility that provides 
  diagnoses or treatment by licensed professionals of mental 
  retardation or mental illness, including a psychiatric ward 
  in a general hospital.''; and
  (2) in section 922--
  (A) in subsection (d)(4)--
  (i) by striking ``as a mental defective'' and inserting 
``mentally incompetent''; and
  (ii) by striking ``any mental institution'' and inserting 
``a psychiatric hospital''; and
  (B) in subsection (g)(4)--
  (i) by striking ``as a mental defective or who has'' and 
  inserting ``mentally incompetent or has''; and
  (ii) by striking ``mental institution'' and inserting 
``psychiatric hospital''.
  (b) Technical and Conforming Amendment.--The NICS 
  Improvement Amendments Act of 2007 (18 U.S.C. 922 note) is 
  amended--
  (1) by striking ``as a mental defective'' each place that 
  term appears and inserting ``mentally incompetent'';
  (2) by striking ``mental institution'' each place that term 
  appears and inserting ``psychiatric hospital'';
  (3) in section 101(c)--
  (A) in paragraph (1), in the matter preceding subparagraph 
  (A), by striking ``to the mental health of a person'' and 
  inserting ``to whether a person is mentally incompetent''; 
  and
  (B) in paragraph (2)--
  (i) in subparagraph (A)(i), by striking ``to the mental 
  health of a person'' and inserting ``to whether a person is 
  mentally incompetent''; and
  (ii) in subparagraph (B), by striking ``to the mental 
  health of a person'' and inserting ``to whether a person is 
  mentally incompetent''; and
  (4) in section 102(c)(3)--
  (A) in the paragraph heading, by striking ``as a mental 
  defective or committed to a mental institution'' and 
  inserting ``mentally incompetent or committed to a 
  psychiatric hospital''; and
  (B) by striking ``mental institutions'' and inserting 
``psychiatric hospitals''.

Someone had asked me earlier if this would fix the problem with observational commitments under Section 302 of Pennsylvania’s Mental Health Procedures Act. The answer is yes, for federal purposes. But 302 observational commitments are still disabling under Pennsylvania law. California has a similar observational commitment called a 5150, and again, this won’t count as a disability under federal law anymore, but California still bars people who have 5150 commitments from possessing firearms for 5 years. This is the same under Florida’s Baker Act as well.

But what about the veterans who have already been put into the system? Under the NICS Improvement Amendment Act of 2007, veterans could petition to have themselves removed from the system. The act requires that the Attorney General provide written notice to every person with a record in the system for mental health disabilities, and informing them of their right to petition to have themselves removed:

SEC. 304. PROTECTING THE SECOND AMENDMENT RIGHTS OF VETERANS.

  (a) In General.--Chapter 55 of title 38, United States 
  Code, is amended by adding at the end the following:

``Sec. 5511. Conditions for treatment of certain persons as 
  adjudicated mentally incompetent for certain purposes

``(a) Protecting Rights of Veterans With Existing 
  Records.--Not later than 90 days after the date of enactment 
  of the Mental Health and Safe Communities Act of 2015, the 
  Secretary shall provide written notice in accordance with 
  subsection (b) of the opportunity for administrative review 
  under subsection (c) to all persons who, on the date of 
  enactment of the Mental Health and Safe Communities Act of 
  2015, are considered to have been adjudicated mentally 
  incompetent or committed to a psychiatric hospital under 
  subsection (d)(4) or (g)(4) of section 922 of title 18 as a 
  result of having been found by the Department to be mentally 
  incompetent.
``(b) Notice.--The Secretary shall provide notice under 
  this section to a person described in subsection (a) that 
  notifies the person of--
``(1) the determination made by the Secretary;
``(2) a description of the implications of being considered 
  to have been adjudicated mentally incompetent or committed to 
  a psychiatric hospital under subsection (d)(4) or (g)(4) of 
  section 922 of title 18; and
``(3) the right of the person to request a review under 
  subsection (c)(1).
``(c) Administrative Review.--
``(1) Request.--Not later than 30 days after the date on 
  which a person described in subsection (a) receives notice in 
  accordance with subsection (b), such person may request a 
  review by the board designed or established under paragraph 
  (2) or by a court of competent jurisdiction to assess whether 
  the person is a danger to himself or herself or to others. In 
  such assessment, the board may consider the person's 
  honorable discharge or decorations.
``(2) Board.--Not later than 180 days after the date of 
  enactment of the Mental Health and Safe Communities Act of 
  2015, the Secretary shall designate or establish a board that 
  shall, upon request of a person under paragraph (1), assess 
  whether the person is a danger to himself or herself or to 
  others.
``(d) Judicial Review.--A person may file a petition with a 
  Federal court of competent jurisdiction for judicial review 
  of an assessment of the person under subsection (c) by the 
  board designated or established under subsection (c)(2).''.

Not quite as good as simple removing all the records the VA placed in their entirety, but I suspect there was some concern some of those people might legitimately belong in there, and separating the wheat from the chaff would be too tall an order.

Overall this bill would be an improvement over the current status quo, since it offers a good bit more precision. So far only NAGR has come out against the bill, which is not surprising. So far GOA has been silent on S.2002 as far as I’ve seen, even though they vociferously opposed NIAA in 2007, which was also a major easement of the mental health provisions of the Gun Control Act. Perhaps GOA is waiting to see language, or will just remain silent about the bill. This bill really is an improvement. There are always going to be folks out there who will be satisfied with nothing less than total repeal of the Gun Control Act, and I don’t blame them. But guns for crazy people isn’t a hill I’m looking to die on.

7 Responses to “Analysis of S.2002: “Mental Health and Safe Communities Act of 2015””

  1. Dave says:

    what I see sorely missing here is a method to punish bad actors involved in the adjudication process . Stuff like bureaucrats who go along to get along, knowing what they’re doing is wrong, anyone acting upon such an order – confiscators, short cut takers or any other ‘bad’ implementation of the old or this proposed law.

    Once there are actually stiff penalties not covered by any immunity, people might actually think twice about trying to abuse the system like we all know it’s being abused now.

    • Matthew Carberry says:

      With the new law involving required notification, formal hearing, appeal, etc it gets harder for any one bad actor to do anything more than begin the process. Though I agree it’d be nice to see a penalty for bad faith “in the eyes of a reasonable person” even beginning the process.

      In a way the formalization insulates agents of the state from doing so out of CYA, as no individual can be individually blamed for not forseeing the risk of a Lanza or Cho. Just refer him to the process and let the process work or not.

    • Sebastian says:

      There is already a remedy under federal law, namely suit under Section 1983 for deprivation of Civil Rights under color of law. There are also criminal penalties for the same, but criminal penalties are notoriously useless because they require the abusers to punish themselves, essentially.

      • Dave says:

        The burden is so high for a successful 1983 claim as to be essentially no protection at all. Why couldn’t the federal statute simply include language that clarifies any violations of the provisions waive immunity and constitute gross negligence for the purposes of any legal action in any court? An oversimplification for sure, but the point is that until we have this protection we remain vulnerable to being added to one of “the lists”. The object being to enable the states to bring criminal charges against the bad actors.

        • Sebastian says:

          That’s what the current law says, essentially. The reason the burden is high for 1983 actions is because the courts have made it that way. So you end up getting into rewriting the entirety of the federal civil rights regime, which I might agree with, but that’s a bigger egg to fry than fixing what’s being fixed here. It’s also not going to help much to enable the states to bring action, because most of these actions are going to happen in Washington D.C.

  2. HSR47 says:

    “Someone had asked me earlier if this would fix the problem with observational commitments under Section 302 of Pennsylvania’s Mental Health Procedures Act. The answer is yes, for federal purposes. But 302 observational commitments are still disabling under Pennsylvania law.”

    While that may technically be the case, I wonder how it would be handled in practice, especially if PA abandons the PICS system. Since it would then have to be reported to NICS to be enforced as a prohibiting factor, I wonder how NICS will handle it: Will they ignore it completely since it doesn’t trigger a federal prohibition, will they ignore it everywhere outside PA (or only outside PA if the individual with prior 302 takes up official residence outside PA), or will they treat it as a prohibiting factor regardless of residency and federal law?

    • Sebastian says:

      That’s a good question, and I don’t know the answer. I would imagine, since dealers have to comply with state laws as well, that NICS would need to know state prohibitions. But if someone were to buy outside of PA because they are no longer a resident, it should clear. But I don’t really know.

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