Behavioral Sciences and the Law Behav. Sci. Law 33: 334–345 (2015) Published online 24 February 2015 in Wiley Online Library (wileyonlinelibrary.com) DOI: 10.1002/bsl.2171

Restoration of Firearm Rights in New York Carl E. Fisher, M.D.†, Ziv E. Cohen, M.D.‡, Steven K. Hoge, M.D.† and Paul S. Appelbaum, M.D.* The National Instant Criminal Background Check System (NICS) Improvement Amendments Act of 2007 encouraged states to create processes by which individuals who have lost their rights to firearm possession for mental-illness-related reasons could receive relief from restrictions. Over 20 states have created relief processes for this sub-group, but there still exists considerable state-by-state heterogeneity. The spectrum ranges from states that require a physician’s opinion regarding appropriateness for restoration to those that rely solely on judicial proceedings without input from psychiatrists or other mental health professionals. This article reviews the restoration process in New York State, a model in which psychiatrists participate in the process of assessing whether an individual’s firearm rights can be restored. It discusses the legislative background of these regulations, the specific policies and procedures governing the restoration process, and clinical considerations for the forensic evaluation. Copyright # 2015 John Wiley & Sons, Ltd.

INTRODUCTION The National Instant Criminal Background Check System (NICS) Improvement Amendments Act of 2007 included provisions encouraging states to create processes by which individuals disqualified from firearm possession for mental-illness-related reasons could receive relief from restrictions (NICS Improvement Act, 2008). A variety of criteria may lead to restrictions on firearm access, depending on the specific venue and regulation. For example, prohibitive criteria under federal law include being convicted of a crime punishable by imprisonment for a term exceeding one year, being a fugitive from justice, being addicted to any controlled substance, being illegally or unlawfully in the United States, being dishonorably discharged from the Armed Forces, being subject to a court ordered restraining order, or being convicted of a misdemeanor crime of domestic violence. States can impose additional restrictions. This article addresses those disqualified for mental-illness-related reasons. Under federal law, judicially ordered involuntary hospitalization, formal determinations of incapacity, and findings of psychiatric impairment in criminal proceedings create indefinite restrictions on firearm possession. Some states have expanded those restrictions to include inter alia emergency commitment, outpatient commitment, and voluntary hospitalizations (McGinty, Webster, and Barry, 2014). To date, over *Correspondence to: Paul S. Appelbaum, M.D., Columbia University Medical Center. E-mail: [email protected] † Columbia University Medical Center. ‡ Weill Cornell Medical College.

Copyright # 2015 John Wiley & Sons, Ltd.

Restoration of firearm rights in New York

335

20 states have enacted policies to restore firearm rights to persons disqualified due to mental illness, but there exists considerable heterogeneity regarding the state-level procedures for restoring firearm rights (McGinty et al., 2014). Many states rely on a physician’s opinion regarding the individual’s appropriateness for firearm restoration, but others do not, instead restoring firearm rights through judicial proceedings without certification by a physician or mental health professional (McGinty et al., 2014). A journalist’s recent investigation of such cases of firearm restoration found that “the process for making that determination is governed in many places by vague standards and few specific requirements,” and, in particular, “judges made decisions without important information about an applicant’s mental health” (Luo, 2011). A consortium of researchers, mental health professionals, and gun violence prevention advocates recently issued a series of recommendations for improving firearm laws (Consortium, 2013a, 2013b). In particular, the group recommended that restoration of the ability to purchase or possess a firearm following a disqualification due to mental illness “should require a qualified clinician to provide evidence on the petitioner’s mental health status and to affirm that the petitioner is unlikely to relapse and present a danger to himself or others in the foreseeable future” (Consortium, 2013a, p. 3). Likewise, a resource document of the American Psychiatric Association, calling for a fair opportunity for restoring firearm purchasing rights for individuals who are prohibited from doing so due to a mental health adjudication, recommends psychiatric evaluation, “because psychiatrists can describe and interpret the individual’s mental health history and current mental health status, and the effects of treatment and other factors on improvement and exacerbation of the person’s condition” (APA, 2014, p. 3). The APA document would leave the ultimate decision-making about restoration of the right to administrative or judicial bodies that can weigh the right to bear arms against considerations of public safety (APA, 2014). This article reviews the restoration process in New York State for those with restrictions due to mental illness. In this model, psychiatrists participate in the process of assessing whether an individual’s firearm rights can be restored. This article discusses the legislative background of these regulations, the specific policies and procedures governing the restoration process, and clinical considerations for the forensic evaluation. The restoration process, delegated to the states by the NICS Amendments Improvement Act, provides relief from both state and federal restrictions on the basis of mental illness.

THE NEW YORK APPROACH Legislation In 2008, the New York State legislature amended mental hygiene and related laws to facilitate data collection in compliance with the NICS reporting requirements (Gun Safety Act, 2008). Prior to that time, New York did not provide data to the NICS and did not have the authority to collect mental health information from the approximately 130 private or county-operated facilities in the state that provided inpatient mental health treatment (New York State Register, 2009a). The 2008 state law authorized the Commissioner of the Office of Mental Health (OMH) and the Commissioner of the Office for People with Developmental Disabilities (OPWDD, formerly the Office Copyright # 2015 John Wiley & Sons, Ltd.

Behav. Sci. Law 33: 334–345 (2015) DOI: 10.1002/bsl

336

C. E. Fisher et al.

of Mental Retardation and Developmental Disabilities) to collect records and transmit them to the state Division of Criminal Justice or the FBI for the purpose of responding to NICS queries. In addition to state-operated facilities, the collection and transmission of records was extended to include facilities funded or licensed by the state. These transmitted records were to include only names and other non-clinical information regarding individuals who had been involuntarily committed in New York under one of several laws: involuntary commitment laws for treatment for those with mental illness, evaluation or restoration of competence to stand trial of adult defendants, detention of sexually violent offenders, detention of insanity acquittees, restoration of capacity (competence to stand trial) of juveniles in delinquency proceedings in family court, and dispositional commitments of juveniles in delinquency proceedings who were found to have a mental disorder and to be likely to pose a harm to self or others (Gun Safety Act, 2008). In addition, the Commissioner of OPWDD was authorized to transmit information regarding persons for whom a guardian had been appointed pursuant to state law, based on a determination that “as a result of marked subnormal intelligence, mental illness, incapacity, condition or disease, they lack the mental capacity to contract or manage their own affairs” (Gun Safety Act, 2008; New York State Register, 2009a, p. 18). The 2008 legislation also required the Commissioners of OMH and OPWDD to promulgate regulations to establish a relief-from-disabilities program for individuals who had been disqualified from firearm possession under federal law (18 USC 922(g)(4), p. 211) due to having been adjudicated as a “mental defective” or having been committed to a mental institution. The commissioners were directed to establish an administrative process within the respective agencies allowing those disqualified to petition for relief, echoing the criteria in the federal statute, “where such person’s record and reputation are such that such person will not be likely to act in a manner dangerous to public safety and where the granting of the relief would not be contrary to public safety.” The legislation required that the process include (1) an opportunity for a disqualified person to petition for relief in writing, (2) the authority for the agencies to require the petitioner to undergo a clinical evaluation and risk assessment, and (3) the requirement that the agencies issue a decision in writing explaining the reasons for a denial or grant of relief. The denial of a petition may be reviewed de novo in civil court.

Regulations In 2010, OMH and OPWDD adopted regulations regarding the issuance of a certificate of relief from disabilities related to firearm possession (NYCRR Part 543, Part 643). As described below, the processes differ somewhat for OMH and OPWDD. With regard to OMH, the relief process is available for a person “who has been or may be disqualified from attempting to purchase or otherwise possess a firearm” due to provisions of New York law described above and whose records were submitted to the NICS system by OMH. The request is to be made on forms developed by OMH, available on the OMH public website (NY OMH, n.d.). The regulations specify nine questions that must be answered by the applicant, detailing the statutory bases for restriction of firearm access. (1) Is the applicant under indictment for, or has he/she been convicted of, a crime punishable by imprisonment for more than one year? (2) Is the applicant a fugitive from justice? (3) Is the applicant an unlawful user of, or addicted to, any controlled substance? (4) Has the applicant been Copyright # 2015 John Wiley & Sons, Ltd.

Behav. Sci. Law 33: 334–345 (2015) DOI: 10.1002/bsl

Restoration of firearm rights in New York

337

adjudicated as having a mental disability or committed to a mental institution? (5) Is the applicant an illegal alien, or has he/she been admitted to the U.S. under a nonimmigrant status? (6) Was the applicant discharged from the U.S. Armed Forces under dishonorable conditions? (7) Has the applicant renounced U.S. citizenship? (8) Is the applicant subject to a court order restraining him or her from harassing, stalking, or threatening an intimate partner or child? (9) Has the applicant been convicted in any court of a misdemeanor crime of domestic violence? The applicant must provide additional information in support of relief. This must include the following: certified copies of medical records detailing the applicant’s psychiatric history, including records pertaining to commitment to a mental health facility or adjudication as having a mental disability; copies of medical records from all of the applicant’s current treatment providers, if the applicant is receiving treatment; a certified copy of all criminal history information maintained on file at the New York State Division of Criminal Justice Services and the FBI pertaining to the applicant, or a copy of responses from these agencies indicating that there is no criminal history on file; evidence of the applicant’s reputation, which may include notarized letters of reference from current and past employers, family members, or personal friends, affidavits from the applicant or other character evidence. In addition, OMH may request further information that the applicant must provide. The request for relief must include a valid authorization form permitting OMH to obtain health information from any health, mental health, or alcohol/substance abuse providers with respect to care provided prior to the date of application. Under OMH regulations, the applicant may provide a psychiatric evaluation performed no earlier than 90 days prior to the date of submission of the request for a certificate of relief. The evaluation must be conducted by a qualified psychiatrist, defined as a physician who is licensed to practice in New York, who is board certified or board eligible in psychiatry. The evaluation should include an opinion, and a basis for the opinion, as to whether the applicant’s record and reputation are such that the applicant “will or will not be likely to act in a manner dangerous to public safety and whether or not the granting of the relief would be contrary to the public interest” (New York State Register, 2009a, p. 19). Regardless of whether a psychiatric evaluation is submitted, the regulations allow OMH to request that the applicant undergo a clinical evaluation and risk assessment with an examiner selected by OMH. The commissioner or his/her designee(s) are then required to perform an administrative review of the request for relief, which includes a review of all information. The scope of the review “shall be to determine, from the materials submitted, whether the applicant will not be likely to act in a manner dangerous to public safety and granting the relief will not be contrary to the public interest” (New York State Register, 2009a, p. 19). In OMH, a committee of three individuals, including a senior forensic psychiatrist, an attorney from the Attorney General’s office, and a patient advocate, perform the review. Following the review, a written determination is prepared, which includes summaries of (1) the information utilized in reaching the decision, (2) the applicant’s criminal history, if any, (3) the psychiatric evaluation prepared to support the request for relief, if any, (4) the applicant’s mental health history, (5) the circumstances surrounding the firearms disability imposed under federal law, and in addition (6) a determination as to whether or not the relief is granted. A written copy is provided to the applicant. If Copyright # 2015 John Wiley & Sons, Ltd.

Behav. Sci. Law 33: 334–345 (2015) DOI: 10.1002/bsl

338

C. E. Fisher et al.

relief is granted, the applicant is provided with written notice that the New York State disability has been removed, but that this determination does not necessarily qualify the applicant to purchase or possess a firearm, e.g., if the applicant has disabilities arising from commitments in other states or from criminal convictions. The regulations do not provide for an appeals process within OMH; however, they do provide for review in accordance with state law. Applicants who are denied relief may apply again one year after the date of the written denial (New York State Register, 2009a). Those who are denied relief may also seek de novo review under Article 78 of the state civil practice law and rules (Gun Safety Act, 2008). The OMH and OPWDD regulations are identical in most respects. However, OPWDD requires that the applicant for relief must provide a psychiatric evaluation as part of the application process. In addition, the applicant for relief to OPWDD must provide an evaluation by a licensed psychologist that includes a current IQ and adaptive behavior assessment. Questioned about this difference in the rulemaking process, OMH responded While it is anticipated that OMH will request a psychiatric evaluation be performed in virtually all cases, there may be some instances in which it is clear that an evaluation is not needed. The cost to the applicant could be prohibitive and potentially unnecessary. In addition, there may be extenuating circumstances, as in the case of an applicant who is misidentified within the NICS system, and who, in an effort to purchase/own a firearm must petition for relief. It would be inappropriate to mandate a psychiatric evaluation be performed in that instance. In cases where the agency believes a psychiatric evaluation is necessary, OMH would rely on the clinical expertise of its own staff to conduct the evaluation (New York State Register, 2010).

Procedures The legislation authorizing the provision of records by NY State to the NICS system went into effect in November 2008. By June 2009, over 100,000 records had been transferred, including records dating back many years (New York State Register, 2009b). The majority of the records that have been transferred from New York have been from state hospitals operated by OMH. As of 2013, less than half of private, county, and municipal facilities had taken steps to prepare to comply with the state’s reporting requirements (Shah & Wood, 2013). Following the initiation of the disability relief program, OMH recruited forensic psychiatry fellowship training programs to provide clinical evaluations and risk assessments. These programs are funded by OMH, including the salary lines for the fellows and supervisors. Each year, the fellows are provided background and orientation to the disability relief process by OMH, and a small portion of their time is spent conducting such evaluations under faculty supervision.

THE FORENSIC EVALUATION Pre-Assessment: Data Gathering Once OMH determines that an applicant meets criteria for a petition for relief from firearm disability, and if a psychiatric evaluation is requested, the petitioner is informed Copyright # 2015 John Wiley & Sons, Ltd.

Behav. Sci. Law 33: 334–345 (2015) DOI: 10.1002/bsl

Restoration of firearm rights in New York

339

that a forensic psychiatric assessment is required to provide an opinion about the petitioner’s mental state and level of impairment or disability. The petitioner is asked to provide written informed consent for the forensic evaluation and to acknowledge the lack of confidentiality of the assessment, which may be shared with the courts, administrative bodies, or other agencies. OMH then gathers the data listed in Table 1 to inform the forensic psychiatric risk assessment, including records from psychiatric hospitalizations and outpatient psychiatric care related to the involuntary commitment or adjudication of mental disability. Other records from OMH facilities may be included and the petitioner may be asked to provide records from psychiatric hospitalizations at non-OMH facilities and from outpatient providers. However, OMH has no means to verify whether all psychiatric records, particularly from other states, have been provided by the petitioner. Although limited judgments about the completeness of the records can be made in individual cases, in general the forensic assessment may be constrained by an incomplete mental health history due to unwitting or perhaps selective omission of non-OMH records. Clearly, the forensic significance of potentially missing data will vary from case to case. Other records relevant to a risk assessment will be collected and may help to identify events of note that occurred out of state. For example, the New York State Record of Arrests and Prosecutions (RAP sheet) may also contain information about arrests and prosecutions in other states. If the petitioner resides outside of New York State, OMH may request the RAP sheet from the petitioner’s state of residence, and in all cases the Federal Bureau of Investigation (FBI) will be queried regarding criminal history. Furthermore, petitioners who are veterans may be asked to provide military records. Of particular value is the petitioner’s written explanation of the reason for the request for relief from disability, and why, in the petitioner’s opinion, it should be granted. Notarized letters of reference from persons who are familiar with the petitioner, which address the petitioner’s character and the letter writer’s opinion regarding the request for restoration of firearm rights, are also useful sources of information. Parents, spouses, family members, friends, and work colleagues may provide letters of support.

Assessment Mental Health, Legal, and Firearms History The forensic psychiatric assessment will usually be carried out by two forensic psychiatry fellows, i.e., physicians who have completed residency in general psychiatry and are specializing in the area of psychiatry and the law, and will be supervised by senior Table 1. Required information for application • Records detailing psychiatric history, including records pertaining to commitment or adjudication as having a mental disability • Records from all current treatment providers • All criminal history information from New York State and the FBI • Evidence of reputation (e.g., letters of reference) Possible (OMH may request additional information) • Information from any health, mental health, or alcohol/substance abuse providers with respect to care provided prior to the date of application

Copyright # 2015 John Wiley & Sons, Ltd.

Behav. Sci. Law 33: 334–345 (2015) DOI: 10.1002/bsl

340

C. E. Fisher et al.

forensic psychiatrists involved with training the forensic fellows, with experience in risk assessment. When forensic fellowship programs are unable to conduct the assessment, other evaluators may be selected by OMH. The examiners are asked to use their expertise and usual evaluation methods. OMH does not provide written guidelines for conducting the assessment, and data regarding the conduct of such assessments are not currently available. Given the lack of agreed upon standards in firearms mental health assessments, the methods used by different New York State forensic psychiatry programs likely vary. When OMH uses examiners outside New York State or from other disciplines there may be greater variation in assessment, although comparison data are not currently available. The methods described in this article reflect the practice at one forensic psychiatry program. Based on the authors’ experience, these methods are typical of academic forensic programs. Given the paucity of empirical data on forensic psychiatric assessments for firearms, the forensic psychiatric assessment is grounded in the fundamentals of forensic psychiatric practice: record review, psychiatric interview, and clinical judgment (supplemented with a structured clinical assessment tool), as described below. Prior to the forensic psychiatric interview, the examiner will review the psychiatric, medical, legal, and any other records. If there is one “instant hospitalization” that led to the firearm disability (i.e., through involuntary commitment or adjudication as having a mental disability), the psychiatric record review will likely begin with this hospitalization. Was the hospitalization related to violence, or threat of violence, to self or others? Was impulsivity part of the clinical presentation? How severe was the impairment in judgment that led to hospitalization? Of particular importance to the risk assessment is involvement of firearms in the instant hospitalization, and whether the firearms were linked to violent or self-harming behavior. A history of self-harm increases the risk for future self-harm (Fazel, Wolf, Palm, & Lichtenstein, 2014), and a history of violence increases the risk for future violence (Elbogen & Johnson, 2009). Thus, a person who attempted suicide using a firearm due to delusions of persecution is presumed to pose a greater risk for future firearm-related dangerousness to self than a person hospitalized because of psychosis and poor self-care with no suicidal ideation. In cases where the petitioner has a history of multiple involuntary hospitalizations, this analysis will be applicable to each hospitalization. Analysis of the records will include a review of the outpatient mental health record, if there is one, and the longitudinal course of the individual’s psychiatric disorder. Is there evidence in the record of impulsivity, impaired judgment, or behavior that was dangerous to self or others and did not result in hospitalization? Were firearms involved in this dangerous behavior? What has been the pattern of dangerous behavior over time? In considering the petitioner’s psychiatric history and past dangerous behavior, the examiner will consider what dynamic and static risk factors may have been related to dangerousness. Common examples of dynamic risk factors are intoxication and psychosis (Swanson, Holzer, Ganju, & Jono, 1990). A static risk factor, e.g., is a past history of violence (Pinard & Pagani, 2001). Dynamic and static risk factors may be related. For example, while schizophrenia and bipolar disorder are chronic disorders, persons with these disorders are at increased risk for violence when intoxicated or when non-adherent to medication (Witt, van Dorn, & Fazel, 2013; Steadman et al., 1998). Purely demographic factors associated with violence in both the general population and those with mental disorders, such as race and gender (Swanson et al., 2013), are Copyright # 2015 John Wiley & Sons, Ltd.

Behav. Sci. Law 33: 334–345 (2015) DOI: 10.1002/bsl

Restoration of firearm rights in New York

341

not explicitly considered in the risk assessment, which focuses on the psychiatric factors influencing risk. The examiner does not ask whether an applicant is a greater risk than others by virtue of being a young man; rather, the examiner asks whether the young male applicant is a greater risk for firearm violence than other young men by virtue of his mental illness. The examiner will investigate to what extent dynamic and static risk factors have been mitigated. If the petitioner has a substance use disorder, is it in remission? Is the disorder only recently stabilized, or has the individual shown many years of good functioning? Does the petitioner have adequate protective factors to minimize the risk of relapse? For example, evidence of ongoing engagement with treatment and acceptance of supervision from clinicians and family would mitigate future risk of dangerous behavior (Elbogen, van Dorn, Swanson, Swartz, & Monahan, 2006). The examiner will likewise review the petitioner’s general medical record. Disorders that affect cognition, perception, behavior, and judgment will be of particular interest. This category includes a wide range of disorders, such as neurological, hormonal, and infectious disorders. The examiner will need to consider whether these conditions have contributed to past dangerous behavior and if they are likely to contribute to future dangerous behavior. Review of the petitioner’s criminal record, if there is one, will likewise focus on past dangerous behavior and whether firearms were involved. This may or may not be related to a psychiatric disorder. For example, past armed robberies may have occurred in the setting of a substance use disorder, which has since remitted. Similarly, past assaults may have occurred exclusively during manic episodes. In such cases, the examiner will need to investigate further the linkage between symptoms and dangerous behavior using the records and the interview. Alternatively, the individual may have a history of antisocial behavior that appears to be independent of psychiatric symptoms. Military or other records (such as law enforcement records) can provide further background information on the petitioner’s firearm history and medical or psychiatric disorders that may affect the risk assessment. This information may not have been available to mental health clinicians who treated the petitioner at the time of the disqualifying hospitalization. Did the petitioner seek mental health treatment while in the military or while employed in law enforcement? Was access to firearms curtailed? If so, why? Was the petitioner discharged from the military or law enforcement due to psychiatric disability? This information will also round out a detailed gun history, which will be taken during the forensic psychiatric interview (see below). Ideally, the data gathering and analytic process outlined above will allow the forensic clinician to build a psychiatric profile of the petitioner, taking into account the petitioner’s history of dangerous behavior, risk factors, mitigation of risk factors, and firearm history. By developing this profile prior to the psychiatric interview, the clinician will be able use the interview to focus on areas of particular relevance and to fill in gaps in information. Depending on the level of risk suggested by the record review, the clinician might consider the use of a structured clinical assessment such as the HCR-20 (Douglas, Hart, Webster, & Belfrage, 2013).

Forensic Psychiatric Interview Once the data have been gathered and reviewed, the examiner will proceed to the forensic psychiatric interview. OMH will offer the petitioner an in-person interview in Copyright # 2015 John Wiley & Sons, Ltd.

Behav. Sci. Law 33: 334–345 (2015) DOI: 10.1002/bsl

342

C. E. Fisher et al.

New York State. If the petitioner has difficulty traveling to New York State, the interview may be conducted using video conferencing. The goals of the forensic psychiatric interview in the context of a petition for relief from firearm disability are to (1) obtain a general psychiatric history from the petitioner, (2) fill in gaps in the available psychiatric records, (3) solicit the petitioner’s subjective account of the relevant events that triggered reporting to the NICS and firearm restrictions, (4) obtain a personal and social history, (5) elicit a firearm history, (6) investigate the petitioner’s understanding of past dangerous behavior, including the risk factors that contributed to the behavior, (7) explore the petitioner’s understanding of interventions that would mitigate future risk and petitioner’s ability and willingness to comply with them, and (8) conduct a mental status examination and screen for current psychiatric symptoms. The psychiatric history provided by the petitioner will provide valuable insight into the psychiatric disorder. Psychiatric records are often terse, and may not go into great detail. Petitioners may be able to provide a good deal of information about their symptoms, treatment, and the course of the disorder, when the records do not fully elaborate on these details. Any discrepancies in the records may also be resolved. On the other hand, discrepancies between the applicant’s recollection and the records might also indicate problems with the applicant’s insight or perhaps even deliberate attempts to distort events. Petitioners’ personal and social history will help to contextualize their psychiatric disorders and past dangerous behavior within their overall functioning and psychosocial adaptation. They will also shed light on psychosocial factors that may affect the manifestations of psychiatric disorder and dangerous behavior, including precipitating and protective factors. A history of protective factors will include domains such as employment history, quality and stability of relationships (family, friends, and romantic relationships), and investment in other areas of life (religion, hobbies, and organizations). The purpose of the gun history is to obtain a deeper understanding of the petitioner’s relationship to firearms and motivation for seeking relief from disability. When was the petitioner first introduced to firearms? Was there a family tradition of firearm ownership? Does the petitioner view firearms mainly as a means of self-defense, recreation, status, part of a culture or way of life (e.g., hunting), a necessity of employment, or something else? How did the petitioner react when he or she learned about having been reported to the NICS database (typically, when being denied purchase of a firearm)? Why has the petitioner decided to seek relief at the present time? What training does the petitioner have in firearms and firearm safety? An assessment of the petitioner’s understanding of past dangerous behavior is crucial. If the petitioner shows understanding of the factors that contributed to the dangerous behavior (e.g., substance use, depression precipitated by a loss, or non-adherence to treatment recommendations), the examiner will assess whether the petitioner has altered his or her attitudes or taken concrete steps to mitigate these risk factors (e.g., participation in Alcoholics Anonymous, psychiatric treatment for depression, or improved adherence to treatment). If the petitioner has taken steps to identify and address past risk factors for dangerous behavior, then future risk is likely reduced. As in any psychiatric examination, the interviewer must assess the petitioner’s current mental status and possible ongoing symptoms. Of primary importance is a determination of whether the symptoms associated with past dangerous behavior are adequately controlled. This portion of the examination will also allow the examiner to assess Copyright # 2015 John Wiley & Sons, Ltd.

Behav. Sci. Law 33: 334–345 (2015) DOI: 10.1002/bsl

Restoration of firearm rights in New York

343

whether other changes in the petitioner’s functioning over time may mitigate (e.g., decrease in impulsivity) or predispose (e.g., early signs of dementia) to future risk.

Overall Risk Assessment After analyzing the available data and carrying out a psychiatric interview, the examiner will synthesize the information to come to a clinical judgment about the risk of dangerous behavior. The examiner will consider the risk factors associated with past dangerous behavior and the extent to which they have been mitigated. In addition, the examiner will describe any limitations that the available information places on her or his conclusions. As noted above, the examiner is asked to address whether the applicant’s record and reputation are such that the applicant will or will not be “likely to act in a manner dangerous to public safety” and whether “granting of the relief would be contrary to the public interest” (NYCRR, Part 543). The clinical risk assessment addressing this legal question will be provided in the form of a written report. The report will be reviewed by the OMH committee described above. The committee will take into account the clinical risk assessment but is not bound by it. Rather, the committee will use it as one component in their overall analysis of whether granting relief from firearm restrictions for the petitioner would be contrary to public safety or the public interest. Thus, the clinical risk assessment is an essential component of the petition review process, but the ultimate decision is made by the committee.

CONCLUSIONS The evaluation process described above suggests several clinical considerations. As indicated, the process of “discovery,” in which evaluators obtain prior records from state agencies or from the evaluees themselves may have certain gaps. Records from out of state may be difficult to acquire, and records that are obtained may be years old or incomplete. At the clinical level, as in usual practice, evaluators must assess whether the data at hand are sufficient to make a determination, even in the likely absence of perfectly complete information. Furthermore, while the public impetus for NICS and other firearm laws has developed largely in reaction to the perceived threat of violence toward others, only a very small proportion of violence in the United States is attributable to mental illness (approximately 4%) (Swanson et al., 1990). Indeed, mental illness is much more strongly linked with risk of suicide, and attempted suicides are much more likely to be fatal when firearms are involved (Miller, Lippmann, Azrael, & Hemenway, 2007). In many of the uncommon instances of mass murder carried out by a person with mental illness, the killer either kills himself or carries out the deed in a way that essentially provokes his own killing. In short, the conventional wisdom about the risks of firearm restoration is likely to overlook the greater danger of suicide. One advantage of requiring forensic evaluations by a psychiatrist or other mental health professional, rather than exclusively judicial proceedings without clinician involvement, may be a greater likelihood that restoration proceedings will pay appropriate attention to the sometimes significant risk of suicide. That said, while clinical input may be helpful, it is important to acknowledge the considerable difficulty inherent in predicting future behavior. Clinical violence risk Copyright # 2015 John Wiley & Sons, Ltd.

Behav. Sci. Law 33: 334–345 (2015) DOI: 10.1002/bsl

344

C. E. Fisher et al.

assessment is better than chance in some contexts, but is far from perfect (Lidz, Mulvey, & Gardner, 1993). Similarly, though structured tools may be incorporated in the assessment, they too are not infallible. However, there may also be drawbacks to involving clinicians in restoration proceedings. One potential worry for the clinicians themselves may be the potential liability in the event of bad outcomes. Even when state employees are indemnified from damages claims—as is the case in NY State—they are not immune from other harms, such as adverse publicity or negative career impact. In the absence of hard data, it is difficult to assess the outcomes of the different models for restoration of firearm rights. New York State data on the frequency and outcome of relief for disabilities requests are not publicly available. However, known variation across states suggests an opportunity for comparing the functioning of alternative models. For example, some states, such as Washington State, have adopted a hybrid model, in which specific criteria are defined for restoration in addition to a physician’s certification; Washington law enumerates requirements such as an individual no longer presenting “a substantial danger to himself or herself, or the public,” as well as other criteria describing the successful management of the condition related to the initial commitment (Washington State, 1994, RCW 9.41.047). Bearing in mind the significant obstacles (procedural, political, and otherwise) to firearm research, an important avenue for future research would be to explore the comparative effectiveness of these approaches, given considerable state-by-state differences in restoration procedures. Ultimately, those persons who are prohibited from purchasing or possessing a firearm due to a mental disorder should have the fair opportunity for restoration of that right. The evolution of procedures for restoration is still relatively young, and several years after the NICS Improvement Act these procedures vary considerably. Future research and policy-making should not neglect this important facet of firearm ownership.

REFERENCES American Psychiatric Association (APA). (2014). Resource document on access to firearms by people with mental disorders. Retrieved September 22, 2014, from http://www.psychiatry.org/learn/library--archives/ resource-documents/ Consortium for Risk-Based Firearm Policy. (2013a). Guns, public health, and mental illness: An evidencebased approach for federal policy. December 11, 2013. Retrieved January 31, 2015, from http://www. jhsph.edu/research/centers-and-institutes/johns-hopkins-center-for-gun-policy-and-research/publications/ Consortium for Risk-Based Firearm Policy. (2013b). Guns, public health, and mental illness: An evidencebased approach for state policy. December 11, 2013. Retrieved January 31, 2015, from: http://www. jhsph.edu/research/centers-and-institutes/johns-hopkins-center-for-gun-policy-and-research/publications/ Douglas, K. S., Hart, S. D., Webster, C. D., & Belfrage, H. (2013). HCR-20: Assessing risk for violence, Version 3. Burnaby, Canada: Mental Health, Law, and Policy Institute, Simon Fraser University. Elbogen, E. B., & Johnson, S. C. (2009). The intricate link between violence and mental disorder: Results from the National Epidemiologic Survey on Alcohol and Related Conditions. Archives of General Psychiatry, 66(2), 152–161. Elbogen, E. B., van Dorn, R. A., Swanson, J. W., Swartz, M. S., & Monahan, J. (2006). Treatment engagement and violence risk in mental disorders. British Journal of Psychiatry, 189, 354–360. Fazel, S., Wolf, A., Palm, C., & Lichtenstein, P. (2014). Violent crime, suicide, and premature mortality in patients with schizophrenia and related disorders: A 38-year total population study in Sweden. Lancet Psychiatry, 1(1), 44–54. Gun Safety Act. (2008). Laws of New York. Chapter 491. Passed 8/5/2008, effective 11/1/2008. Lidz, C., Mulvey, E., & Gardner, W. (1993). The accuracy of predictions of violence to others. Journal of the American Medical Association, 269, 1007–1011. Copyright # 2015 John Wiley & Sons, Ltd.

Behav. Sci. Law 33: 334–345 (2015) DOI: 10.1002/bsl

Restoration of firearm rights in New York

345

Luo, M. (2011). Some with histories of mental illness petition to get their gun rights back. New York Times, July 2, 2011. Retrieved January 31, 2015, from http://www.nytimes.com/2011/07/03/us/03guns.html? pagewanted=all&_r=0 McGinty, E. E., Webster, D. W., & Barry, C. L. (2014). Gun policy and serious mental illness: priorities for future research and policy. Psychiatric Services, 65(1), 50–58. DOI: 10.1176/appi.ps.201300141 Miller, M., Lippmann, S. J., Azrael, D., & Hemenway, D. (2007). Household firearm ownership and rates of suicide across the 50 United States. Journal of Trauma, 62(4), 1029–1034. National Instant Background Check System (NICS). (2008) Improvement Amendment Act of 2007, Pub. L. No. 110–180, 122 Stat. 2559. New York Codes, Rules and Regulations (NYCRR). (n.d). Part 543 of Title 14. New York Codes, Rules and Regulations (NYCRR). (n.d). Part 643 of Title 14. New York (NY) Office of Mental Health (OMH). (n.d). Application for certificate of relief from disabilities relating to firearms. Retrieved September 29, 2014, from http://www.omh.ny.gov/omhweb/nics/application.pdf New York State Register. (2009a). Certificate of relief from disabilities related to firearms possession. Volume XXXI, Issue 52, December 30, 2009. Notice of adoption. OMH-52-09-00005-EP. New York State Register. (2009b). Certificate of relief from disabilities related to firearms possession. Volume XXXI, Issue 27, July 8, 2009. Notice of adoption. OMH-27-09-00005-E. New York State Register. (2010). Certificate of relief from disabilities related to firearms possession. Volume XXXII, Issue 10, March 10, 2010. Notice of adoption. OMH-52-09-00005-A. Pinard, G. F., & Pagani, L. (2001) Clinical assessment of dangerousness. Cambridge: Cambridge University Press. Shah, N., & Wood, K. (2013). New York State Department of Health and New York State OMH memorandum, re: National Instant Criminal Background Check (NICS) reporting requirement. February 25, 2013. Steadman, H. J., Mulvey, E. P., Monahan, J., Robbins, P. C., Appelbaum, P. S., Grisso, T., … Silver, E. (1998). Violence by people discharged from acute psychiatric inpatient facilities and by others in the same neighborhoods. Archives of General Psychiatry, 55, 1–9. Swanson, J. W., Holzer, C. E. 3rd, Ganju, V. K., & Jono, R. T. (1990). Violence and psychiatric disorder in the community: evidence from the epidemiologic catchment area surveys. Hospital and Community Psychiatry, 41, 761–770. Swanson, J. W., Robertson, A. G., Frisman, L. K., Norko, M. A., Lin, H. -J., Swartz, M. S., & Cook, P. J. (2013). Preventing gun violence involving people with serious mental illness. In D. W. Webster and J. S. Vernick (Eds.), Reducing gun violence in America: Informing policy with evidence and analysis (pp. 33–51). Baltimore, MD: Johns Hopkins University Press. Washington State Revised Code. (1994). Restoration of possession rights. 9.41.047. Witt, K., van Dorn, R., & Fazel, S. (2013). Risk factors for violence in psychosis: Systematic review and meta-regression analysis of 110 studies. PLoS ONE, 8(2), e55942. DOI: 10.1371/journal.pone.0055942

Copyright # 2015 John Wiley & Sons, Ltd.

Behav. Sci. Law 33: 334–345 (2015) DOI: 10.1002/bsl

Restoration of Firearm Rights in New York.

The National Instant Criminal Background Check System (NICS) Improvement Amendments Act of 2007 encouraged states to create processes by which individ...
104KB Sizes 0 Downloads 8 Views