If You Want to Keep Your Guns in New York, Avoid Mental Health Professionals

A few weeks ago I
noted a new California law, prompted by Elliot
Rodger’s murders in
Isla Vista last May, that lets police officers and “immediate
family members” (possibly including angry ex-girlfriends and
estranged in-laws) seek court orders stripping people of their
Second Amendment rights without any notice or adversarial process.
New York’s SAFE Act, which was
hurriedly passed by the state legislature last year in response
to the Sandy Hook massacre, in some ways goes even further. As a

story in yesterday’s New York
Times confirms, the law effectively gives “mental
health professionals” the power to disarm people, and they do not
even need a judge’s approval.

The SAFE Act
requires physicians, psychologists, registered nurses, and licensed
clinical social workers to report any patient they deem “likely to
engage in conduct that will cause serious harm to self or others.”
The report goes to a county mental health official, who is supposed
to review the clinician’s determination and, if he agrees with it,
pass the information on to the New York State Division of Criminal
Justice Services, which checks to see if the subject has a gun
license. If he does, local officials are required to confiscate any
firearms he owns. In practice, the Times reporter
Anemona Hartocollis found, the judgments of mental health
professionals are conclusive:

So many names are funneled to county health authorities through
the system—about 500 per week statewide —that they have become, in
effect, clerical workers, rubber-stamping the decisions, they said.
From when the reporting requirement took effect on March 16, 2013
until Oct. 3, 41,427 reports have been made on people who have been
flagged as potentially dangerous. Among these, 40,678—all but a few
hundred cases—were passed to Albany by county officials, according
to the data obtained by The Times….

Kenneth M. Glatt, commissioner of mental hygiene for Dutchess
County, said that at first, he had carefully scrutinized every name
sent to him through the Safe Act. But then he realized that he was
just “a middleman,” and that it was unlikely he would ever meet or
examine any of the patients. So he began simply checking off the
online boxes, sometimes without even reviewing the narrative about
a patient.

“Every so often I read one just to be sure,” Dr. Glatt, a
psychologist, said. “I am not going to second guess. I don’t see
the patient. I don’t know the patient.” He said it would be more
efficient—and more honest—for therapists to report names directly
to the Division of Criminal Justice Services, which checks them
against gun permit applications.

Presumably the people who wrote the bill did not take the more
honest approach because they wanted to create an illusion of due
process. But the truth is that the SAFE Act gives any licensed
professional consulted by people with psychological problems the
power to take away their right to arms. The
Times reports that so far, after taking duplicative
reports into account, there are about 34,500 New Yorkers in the
state’s database of people who are not allowed to own guns because
they said the wrong thing to someone they turned to for help.
Sometimes, as with the librarian who apparently lost
his guns because of a Xanax prescription, you don’t even have
to say anything particularly disturbing. The state found that 278
of the people in the SAFE Act database had firearm permits, which
are required for all gun purchases in New York City but only for
handguns elsewhere in the state.

How many of those people are potential murderers? Given that
psychiatrists have never been good at
predicting violence, maybe none, especially since preventing
self-harm counts as a legitimate reason to take away someone’s
guns. “The threshold for reporting is so low,” a Queens
psychiatrist told the Times, “that it essentially
advertises that psychiatrists are mandatory reporters for anybody
who expresses any kind of dangerousness.” That might not be the
best way of encouraging troubled people to seek help.

The SAFE Act seems designed to encourage overreporting, since
mental health professionals are required to flag anyone who seems
dangerous, and they face no civil or criminal liability for doing
so as long as they act “reasonably and in good faith.” For
county officials, who supposedly are providing an additional layer
of review, there is very little incentive to second-guess
clinicians’ judgments. If they happen to nix a report on someone
who later commits a violent crime, that would look pretty bad. But
if all they do is pass along a report that has the result of taking
away a harmless person’s constitutional rights, they are not likely
to suffer any negative consequences, even if he is ultimately
successful in challenging that deprivation in court.