In this media environment, where insisting on due process to strip fundamental rights gets spun as, “You want crazy people have guns!,” it’s prudent to cover a bit of background.
Pennsylvania’s Mental Health Procedures Act has three types of commitments. The first is the typical involuntary commitment, under Section 303 and 304 of the MHPA. There is some due process involved to commit someone under Section 303 and more under 304. For 303, for instance, the medical professionals have to petition the Court of Common Pleas and make their case before a judge. There is a right to representation by counsel. Section 303 and 304 commitments are not challenged in this case.
But Pennsylvania also has an observational commitment as well, under Section 302. In the vernacular, you will hear this referred to as a “302 Commitment.” For Section 302 commitments there is no due process involved whatsoever. All you need to earn a 302 commitment is a ride from your girlfriend, wife, mom, or friendly local police officer to a the hospital, and for a physician to sign off. Often times people are not even aware they’ve been committed.
The parties here are both John Does. Both, other than their 302 history, are eligible to possess firearms under federal and state law.
John Doe I was bullied at school, lost his girlfriend, got depressed, and was taken to the hospital at 16 by his concerned mother, held for a few hours and quickly released. He did not know he was a prohibited person until later as an adult he tried to purchase a firearm and was denied. The hospital had held him under Section 302.
John Doe II was taken to the hospital by a friend because he was intoxicated and belligerent. He was kept under Section 302 involuntarily until he sobered up and was released. He has since gone through alcohol rehabilitation and now lives a clean life. John Doe IIÂ was also not aware he had actually been held under Section 302Â until he tried to purchase a firearm.
The plaintiffs are represented by Jonathan Goldstein of McNelly and Goldstein. Jonathan is an experienced attorney in firearms law.
As mentioned in the case, Pennsylvania law does not require that the examining physician have any specific mental health training, only that they are licensed to practice medicine in Pennsylvania. There is no due process whatsoever, as the suit notes:
An individual is not provided the most basic due process protections before being involuntarily committed under the Temporary Emergency Commitment Statute. He receives no pre-deprivation notice of the potential consequences of the hearing; he receives no right to review by a neutral arbiter he receives no opportunity to make an oral presentation; he receives no means of presenting evidence; he receives no opportunity to cross-examine witnesses and respond to evidence; he receives no right to counsel; and he receives no pre-commitment review by a court or a decision based upon a written record.
All it takes is a ride to the hospital and a doctor to sign off. That’s it.
Under the Fourteenth Amendment, government must provide adequate due process procedures before divesting citizens of fundamental rights. Logan v. Zimmerman Brush Co, 455 U.S. 422, 432-33 (1982); Vitek v. Jones, 445 U.S. 480, 495-96 (1980); Tillman v. Lebanon County Correctional Facility, 221 F.3d 410, 421 (3rd Cir. 2000).
Seems like it should be a solid case, but these are the federal courts we’re dealing with. The same federal courts have largely said that the Second Amendment is a second class right, not worthy of the same protections, often not even close to the same protections, as other rights. But I think there’s some hope here.
If we look at the last en-banc decision on guns out of the 3rd Circuit, the Binderup case, it was heard before Judges McKee (Clinton), Smith (G.W.), Ambro (Clinton), Fischer (G.W.), Chagares (G.W.), Jordan (G.W.), Hardiman (G.W.), Greenway (Obama), Vanaskie (Obama), and Schwartz (Obama), Fuentes (Clinton).
Fischer (G.W.) is up for replacement. But so are Julio Fuentes’ (Clinton) and Marjorie Rendell’s (Clinton) seats. Binderup did pretty well on a more heavily Dem appointed panel. If Trump can replace the three vacancies with solid judges we may have a decent chance with this case.
Just off the top of my head, it sounds like mental health commitments need something equivalent to a Miranda warning. The most tragic (though frequent) words I’ve encountered with lost gun rights stories have always been “I didn’t know. . .”
It seems that some formal warning of the nature “If you accept treatment, you should be aware that it could result in future loss of some legal and constitutional rights” is deserved.
That would be fine, but a Section 302 commitment is an INVOLUNTARY commitment. So, it doesn’t matter whether the individual in question accepts treatment or not, if the doctor determines there is an emergency need for mental health treatment, they can be committed for up to 120 hours, without due process, under Section 302.
If the doctor wants to hold then person longer, then they have to go to court either under Section 303 (up to 20 days) or Section 304 (up to 90 days).
True, but Sebastian used the examples “All you need to earn a 302 commitment is a ride from your girlfriend, wife, mom, or friendly local police officer to a the hospital. . .” Presumably with every one of those examples (except possibly the police officer, who I believe would need some reason for placing the patient in involuntary custody) it sounds like there would be some degree of voluntary cooperation by the patient all the way to triage at the ER.
I think the classic 302 case here in Pennsylvania was that of Russ Laing back in 1996. But, that being over 20 years ago, I’ve forgotten many of the details, except that a SWAT team came to his door and took him into custody for oversleeping and being late to work — and owning guns.
Russ eventually prevailed in court because his 302 commitment entailed unjust judgments and some degree of official oppression. But, aren’t those exactly the kinds of things we hope to prevent, even in cases that do not include the drama of a SWAT team?
I used to argue with Russ because he would maintain that “the system (as it was) had worked!” while I would remind him that, no it didn’t, because with most people’s 302 cases the “system” doesn’t include having their cases become a cause celebre for the state’s gun rights community, with a lot of exceptional quality legal support available.
You don’t necessarily have to be dragged kicking and screaming for it to be involuntary. Which is why it’s important to make clear you’re going voluntarily if you suspect you’re going anyway, whether you say that or not.
That comes back to my original comment about, “I didn’t know. . .”
Most of the “lost gun rights” stories I’ve encountered, usually involving someone discovering they’d lost their rights many years before, involved nice people sincerely advising someone to take a course of action that would result in them losing their rights. In one case I can recall, it was the person’s own attorney.
I don’t want to change the subject away from mental issues, but there was a flurry of such stories following the enactment of PA’s Act 17 of 1995, which made a handful of juvenile offenses ex post facto causes for disbarment from firearms ownership in adulthood.
Awesome to see this is challenged. I hope it succeeds, but like you said the courts often fail to do their job.
Since I’m not a PA resident, I don’t know how NICS is handled there.
Does it go through a state or other LE agency like VA does? ( I know VA goes through the State Police as Fort Eustis was my last posting before I retired).
In MO, my home state of record and where I retired back to, (no “302” type prohibitionary statute exists BTW) NICS is through the dealer.
Basically, would either of these men actually be ‘prohibited’ in NICS if they were residents of another state?
PA is a Point Of Contact state – the FFL contacts the PASP, who do the check. This is how they maintain their database of handgun ownership, IIRC (in the face of a law against, thanks to a court case).
Someone more familiar with the intricacies of PA law and custom may be able to give more detail, but that’s the impression I’ve gotten over the years.
As for “prohibited in NICS,” it depends on whether 302 commitments are filed with NICS.
Well, that’s 1/2 of the answer at least. Thanks,