Should People Who Attempt Suicide Lose Second Amendment Rights, and, If So, for How Long?
An interesting decision Wednesday by N.Y. trial court judge Thomas Marcelle (Albany County), Hines v. Doe:
Doe lives in terrible discomfort caused by a host of ailments. In the last three years matters have gotten worse. As a result, Doe drinks every Sunday (but only on Sunday) to cope with his present dysphoria. One Sunday, Doe turned on a football game and consumed 60 proof blackberry brandy to deaden the pain. During the game, Doe’s wife began screaming at the TV. The alcohol, the screaming and his afflictions overcame Doe, and he told his wife to shut up. Mrs. Doe stormed upstairs. Doe decided to leave the house, call an Uber and go visit a friend in northern New York. In short order Doe changed his mind. Tormented by his pain, Doe decided that death was better than life. To end his life, Doe walked into a cemetery, opened his jacket, laid down on the snowy ground waiting for hypothermia to take him.
After a few hours Mrs. Doe became gravely concerned about her husband, so she called the police. New York State Trooper Matthew Yankowski responded and conducted a search. Trooper Yankowski located Doe in the cemetery. There and then, under the auspices of MHL 9.41, the Trooper took Doe into custody and transported him to Albany Medical Center to be treated. At the hospital, Doe was visited and examined by a battery of psychiatrists. The next day Doe was released neither with a diagnosis of mental illness nor a prescription for medication.
Petitioner, under CPLR 6341, sought a temporary extreme risk protection order to retain possession of three shotguns and a long rifle that Doe had already surrendered to the State Police. The court granted the temporary order (CPLR 6342) and now must determine if petitioner has “prov[en], by clear and convincing evidence, that the respondent is likely to engage in conduct that would result in serious harm to himself.” A likelihood of serious harm means “a substantial risk of physical harm to himself as manifested by threats of or attempts at suicide.”
The case is complicated by the Second Amendment…. [Under Bruen], courts must search the historical record to determine if a categorical exception to the Second Amendment exists—without an exception, Doe’s right to keep weapons may not be infringed.
One such exemption, justified by the historical record, is “the longstanding prohibition on the possession of firearms by the mentally ill.” … There is no debate that Doe attempted suicide—he acknowledges that—but does that mean he is mentally ill. There is some force to the argument that when a person attempts suicide, which is the case here, he suffers from a mental illness. While some, if not most, suicides are borne of mental illness, the court lacks confidence that suicidal ideation equates perfectly to mental illness. Consequently, an expository journey is required to determine if Doe is mentally ill either as a matter of law or as a matter of fact.
To begin with, the Mental Health Law provides some clues to whether suicidal ideation is a mental illness per se, but not definitively. Under MHL 9.39, before the government can restrain a person’s liberty by involuntary hospitaliza
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