Monica A. Connell, Esq., William J. Taylor, Jr., Esq., Office of the New York State Attorney General 120 Broadway, New York, New York, 10271, For Andrew M. Cuomo, Ann Marie T. Sullivan, Michael C. Green and George P. Beach, II.
Rudolph M. Baptiste, Esq., Office of the Suffolk County Attorney, 100 Veterans Memorial Highway, P.O. Box 6100, Hauppauge, New York, 11788, For Suffolk County.
Catherine A. Brennan, Esq., James F. Farrell, Jr., Esq., Fumuso Kelly DeVerna Snyder Swart & Farrell, LLP, 110 Marcus Boulevard, Suite 500, Hauppauge, New York, 11788, For Eastern Long Island Hospital.
DECISION AND ORDER
CHARLES J. SIRAGUSA, United States District Judge
INTRODUCTION
New York Mental Hygiene Law ("MHL") § 9.46 requires mental-health treatment providers to report patients who appear to pose a threat of serious harm to themselves or others. Then, if the patient reported under MHL § 9.46 has a New York State firearms license, New York Penal Law ("PL") 400.00(11)(b) requires that the license be suspended or revoked, and that the patient's firearms be seized. Plaintiffs bring this action pursuant to, inter alia ,
BACKGROUND
New York's Secure Ammunition and Firearms Enforcement Act of 2013 (the "SAFE Act") was enacted in January 2013, following a series of mass shootings around the United States by mentally disturbed individuals. At least some of the shooters in these incidents were able to legally obtain firearms even though they were known to be dangerous by their mental health treatment providers.
§ 9.46 Reports of substantial risk or threat of harm by mental health professionals
(a) For purposes of this section, the term "mental health professional" shall include a physician, psychologist, registered nurse or licensed clinical social worker.
(b) Notwithstanding any other law to the contrary, when a mental health professional currently providing treatment services to a person determines, in the exercise of reasonable professional judgment, that such person is likely to engage in conduct that would result in serious harm to self or others, he or she shall be required to report, as soon as practicable, to the director of community services, or the director's designee, who shall report to the division of criminal justice services whenever he or she agrees that the person is likely to engage in such conduct. Information transmitted to the division of criminal justice services shall be limited to names and other non-clinical identifying information, which may only be used for determining whether a [firearms] license issuedpursuant to section 400.00 of the penal law should be suspended or revoked, or for determining whether a person is ineligible for a license issued pursuant to section 400.00 of the penal law, or is no longer permitted under state or federal law to possess a firearm.
(c) Nothing in this section shall be construed to require a mental health professional to take any action which, in the exercise of reasonable professional judgment, would endanger such mental health professional or increase the danger to a potential victim or victims.
(d) The decision of a mental health professional to disclose or not to disclose in accordance with this section, when made reasonably and in good faith, shall not be the basis for any civil or criminal liability of such mental health professional.
New York Mental Hygiene Law § 9.46 (West 2018) (emphasis added).
MHL § 9.46 works in tandem with New York Penal Law § 400.00(11)(b) (referenced above in MHL § 9.46(b), and also adopted as part of the SAFE Act) to remove guns from persons with pistol licenses who have been identified as being likely to engage in conduct that would result in serious harm to themselves or others. In particular, Penal Law § 400.00(11) states in pertinent part:
Whenever the director of community services or his or her designee makes a report pursuant to section 9.46 of the mental hygiene law, the division of criminal justice services shall convey such information, whenever it determines that the person named in the report possesses a [firearms] license issued pursuant to this section, to the appropriate licensing official, who shall issue an order suspending or revoking such license.
NY Penal Law § 400.00(11)(b) (emphasis added).
Accordingly, MHL § 9.46 requires "mental health professionals," including doctors, psychologists, registered nurses and licensed clinical social workers, to make a notification when they reasonably believe in their professional judgment that a patient under their treatment "is likely to engage in conduct that would result in serious harm to self or others," provided that they can do safely. In particular, such mental health professionals must notify the State of New York's Office of Mental Health ("OMH") "director of community services, or the director's designee." An OMH " 'director of community services' [ ("DCS") ] means a county's director of community services for the mentally disabled appointed pursuant to article forty-one of [the Mental Hygiene Law]."
To facilitate the making of notifications under MHL § 9.46, the State of New York created a computer system, called the Integrated SAFE Act Reporting System ("ISARS"), for transmitting patient information between mental health care providers and their local DCS. Such information includes the patient's name, address, date of birth, Social Security Number, sex, race, and diagnosis, along with an explanation for why the mental health professional believes the patient poses a specific threat.
If, after reviewing a report filed by a mental health professional, the DCS "agrees that the person [named in the report] is likely to engage in [seriously harmful] conduct," he or she must notify the New York State Division of Criminal Justice Services ("DCJS") of that fact. DCJS is an agency that provides a wide variety of services related to law enforcement, including "maintain[ing] criminal history records and fingerprint files and perform[ing] background checks for employment and licensure."
Upon such mandatory suspension or revocation of the patient's pistol license under MHL § 9.46 and PL 400.00(11)(b), "an appropriate law enforcement agency" must seize all of the patient's guns, including those for which no license is required. On this point, Penal Law § 400.00(11)(c) states:
In any instance in which a person's license is suspended or revoked under paragraph ... (b) of this subdivision, such person shall surrender such license to the appropriate licensing official and any and all firearms, rifles, or shotguns owned or possessed by such person shall be surrendered to an appropriate law enforcement agency as provided in subparagraph (f) of paragraph one of subdivision a of section 265.20 of this chapter. In the event such license, firearm, shotgun, or rifle is not surrendered, such items shall be removed and declared a nuisance and any police officer or peace officer acting pursuant to his or her special duties is authorized to remove any and all such weapons.
MHL 9.46 and PL 400.00(11)(b) affect persons who have firearms licenses. These provisions would have no immediate effect on gun owners who do not have pistol licenses. For example, if a DCS forwarded a § 9.46 report to DCJS concerning an individual who owned a shotgun but did not have a pistol license, DCJS would not find the person's name in the firearms license database. DCJS would therefore add the person's name to the database created by PL § 400.02 (where it would remain for five years), but would not notify the local licensing officer, and the report would not result in the seizure of the shotgun.
The aforementioned SAFE Act provisions were adopted in addition to existing provisions of New York Mental Hygiene Law Article 9, which provide for the hospitalization and treatment of mentally-ill individuals. For example, MHL §§ 9.13
On the other hand, other provisions of MHL Article 9 provide for involuntary admission of patients who are actively displaying dangerous behavior. MHL § 9.37 states that a hospital may involuntarily admit a patient who "has a mental illness
As used in these statutes and throughout MHL Article 9, a finding that a patient is "likely to result in serious harm to himself or others" must be supported by certain signs:
"likelihood to result in serious harm" or "likely to result in serious harm" means (a) a substantial risk of physical harm to the person as manifested by threats of or attempts at suicide or serious bodily harm or other conduct demonstrating that the person is dangerous to himself or herself, or (b) a substantial risk of physical harm to other persons as manifested by homicidal or other violent behavior by which others are placed in reasonable fear of serious physical harm.
This is the same standard to be applied under MHL § 9.46. Not only is the relevant language in § 9.46 essentially identical to the language in § 9.01, but OMH interprets the definitions consistently. In that regard, after passage of the SAFE Act, OMH issued various instructions to mental health professionals, explaining how to apply newly-enacted § 9.46, and, in particular, how to interpret § 9.46's reporting standard, "likely to engage in conduct that will cause serious harm to self or others." For example, OMH issued a "Guidance Document" explaining that such standard is consistent with, and should be interpreted the same as, the standards contained in MHL §§ 9.39 and 9.45, but is different than the standard under MHL § 9.27 :
With respect to initial reports made by mental health professionals, the reporting standard is 'likely to engage in conduct that will cause serious harm to self or others.' This standard is consistent with the 'likely to result in serious harm to self or others' standard that a [DCS] or designee uses to direct emergency 'removals' from the community to a psychiatric hospital for examination under MHL Section 9.45. This is also consistent with the standard for emergency admissions for observation, care and treatment pursuant to MHL Section 9.39.
As such, decision making with respect to a Section 9.46 report requires a clinical determination that a person's clinical state creates either: '(a) a substantial risk of physical harm to the person, as manifested by threats of or attempts at suicide or serious bodily harm or other conduct demonstrating that the person is dangerous to himself or herself, or (b) a substantial risk of physical harm to other persons as manifested by homicidal or other violent behavior which places others in reasonable fear of serious physical harm.'
The standard differs from the non-emergency, involuntary commitment standard pursuant to MHL Section 9.27 (i.e., the '2 PC' standard). The '2 PC' standard requires certification by two physicians that an individual has a mental illness for which care and treatment as a patient in a hospital is essential to the person's welfare. Furthermore, the person's judgment must be so impaired that s/he is unable to understand the need for care and treatment. The courts have interpreted the 2 PC standard as requiring both mental illness and finding that the person is dangerous to self or others, but such dangerousness may be found even without an active display of dangerous behavior, conduct, or threats if the person has a history of dangerous conduct associated with noncompliance with mental health treatment programs. Accordingly, a person could meet the '2 PC' standard, but still not pose a risk of harm that justifies action pursuant to either the emergency removal or admission standard, or the 9.46 standard.
Because the 9.46 standard is consistent with the standard that is used for emergency removals and admissions under MHL Article 9, a person who requires a Section 9.46 report could simultaneously require an emergency removal to a psychiatric hospital for an examination pursuant to MHL Section 9.41, 9.43, or 9.45. Depending on the results of the examination, such person could also thereafter be admitted and retained in a hospital pursuant to MHL Section 9.39.18
Additionally, OMH has made an instructional power point on the SAFE Act available, entitled "NY SAFE Act Introduction for Mental Health Providers."
Prior to the SAFE Act, and continuing to the present, a person who is involuntarily admitted to a hospital for mental treatment under MHL Article 9 becomes federally disqualified from having any type of firearm. In particular,
The relevant federal regulation explains that the term "committed to a mental institution" "includes a commitment to a mental institution involuntarily."
Prior to the SAFE Act, the fact that a person was involuntarily committed, and therefore disqualified by
As can be seen, a person who is involuntarily committed under MHL Article 9 must be reported to OMH and DCJS, and such report should necessarily result in the revocation of the involuntarily-committed person's firearms license (if any) and the seizure of such person's weapons.
As briefly noted earlier, pursuant to federal law, all persons attempting to purchase firearms must undergo an NICS Background Check. However, federal law does not compel states to report information to NICS that would disqualify someone from possessing a gun under
In response to the NICS Improvement Amendments Act of 2007, New York State law was amended to allow relevant mental health records to be made accessible to NICS.
MHL § 9.46 was enacted amidst an existing framework of federal and state laws designed to protect patients' privacy in their confidential medical information. Most notably, the federal Health Insurance Portability and Accountability Act of 1996 ("HIPAA") generally provides for the confidentiality of medical records.
A covered entity may use or disclose protected health information without the written authorization of the individual... or the opportunity for the individual to agree or object...in the situations covered by this section, subject to the applicable requirements of this section.
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(a) Standard: Uses and disclosures required by law.
(1) A covered entity may use or disclose protected health information to the extent that such use or disclosure is required by law and the use or disclosure complies with and is limited to the relevant requirements of such law.
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(j) Standard: Uses and disclosures to avert a serious threat to health or safety.
(1) Permitted disclosures. A covered entity may, consistent with applicable law and standards of ethical conduct, use or disclose protected health information, if the covered entity, in good faith, believes the use or disclosure:
(i)(A) Is necessary to prevent or lessen a serious and imminent threat to the health or safety of a person or the public; and
(B) Is to a person or persons reasonably able to prevent or lessen the threat, including the target of the threat[.]
Importantly, disclosure is permitted under
"law" is intended to be read broadly to include the full array of binding legal authority, such as constitutions, statutes, rules, regulations, common law, or other governmental actions having the effect of law. [Moreover,] for the purposes of § 164.512(a), law is not limited to state action; rather, it encompasses federal, state or local actions with legally bindingeffect, as well as those by territorial and tribal governments. 45
Notably, OMH's SAFE Act Guidance Document refers to MHL § 9.46 as a "mandatory reporting requirement."
On the other hand, disclosure is allowed under
Significantly, HIPAA permits disclosure (without the patient's authorization or notice) if either one of the aforementioned exceptions under § 164.512 applies; in other words, if disclosure is mandated by state law, then § 164.512(a) permits the disclosure, even if the situation is not "serious and imminent" as described in § 164.512(j).
In addition to HIPAA, the New York Mental Hygiene Law provides that clinical records involving mental health treatment shall not be released, except in particular limited circumstances. Of course, MHL § 9.46 authorizes disclosure to OMH where the patient appears likely to engage in conduct that would cause serious harm. Further, MHL § 33.13 permits the disclosure of information, without the patient's consent, "to an endangered individual and a law enforcement agency when a treating psychiatrist or psychologist has determined that a patient or client presents a serious and imminent danger to that individual," MHL § 33.13(c)(6), or, with OMH's consent, to other "appropriate persons and entities when necessary to prevent imminent serious harm to the patient or client or another person." MHL § 33.13(c)(9)(v).
On December 18, 2014, Plaintiffs commenced this action. At that time, Donald Montgomery ("Montgomery") was the lone plaintiff, though he purported to be suing on behalf of himself and "all other persons similarly situated."
Montgomery, a Navy veteran and retired police detective, contends that while he was residing in Cutchogue, New York, he voluntarily admitted himself to defendant Eastern Long Island Hospital ("the Hospital"), due to insomnia and anxiety. Montgomery indicates that after receiving medication, he slept soundly for two nights and was discharged. Montgomery admits that during such hospital stay, someone at the hospital left a document in his room, titled "Notice of Status and Rights/Emergency Admission (to be given to the patient at the time of admission to the hospital)/Section 9.39 Mental Hygiene Law."
After being discharged, Montgomery learned that the Hospital had notified OMH that he had been involuntarily admitted to the hospital for mental health treatment. As a result of such notification, Montgomery's name was presumably added to the federal NICS database. Further, NYSP notified
While Montgomery was in the process of disputing the suspension of his pistol license, he moved his residence to Monroe County, New York, after which Sheriff DeMarco's office informed him that it was terminating his pistol license because he had changed his residence without informing the Suffolk County licensing officer. On or about January 3, 2015, Montgomery commenced an Article 78 proceeding in New York State Supreme Court, Suffolk County.
Purportedly based upon these factual allegations, the Complaint [# 1] asserts four causes of action: 1) "violation of the right to privacy" concerning medical records; 2) "violation of the Equal Protection Clause," involving discrimination against persons who seek mental health treatment; 3) "violation of the Due Process Clauses [ (substantive and procedural) ] as to the taking of Second Amendment rights arbitrarily and without notice or an opportunity to be heard; and 4) violation of the Second Amendment right to keep and bear arms. The Complaint asserts that all four of these claims arise from MHL § 9.46 and Defendants' misuse of that statute.
Importantly, though, the Complaint contains no factual averment that Eastern Long Island Hospital filed a report against Montgomery under MHL § 9.46. That is, the pleading never alleges that hospital staff, or anyone else, reported Montgomery under § 9.46 as being "likely to engage in conduct that would result in serious harm to [him]self or others." Rather, as already noted, the pleading asserts that hospital staff reported that Montgomery had been "involuntarily admitted," thereby implicating
In reality, the NYS Police have taken the position of instructing local licensing officials to suspend and terminate pistol permits for all persons reported through MHL § 9.46 as having been involuntarily committed to a mental institution.
Complaint [# 1] at ¶ 87.
On January 23, 2015, Plaintiff's counsel wrote to the Court, in response to conversations and/or communications that she had with opposing counsel, who had not yet appeared in the case, concerning the lawsuit. Plaintiffs' counsel indicated, inter alia , that she wanted to clarify the nature of this action, since it seemed to her that opposing counsel were confused on that point:
It appears that [State Defendants'] Counsel has somewhat missed the point of the lawsuit.... This case is, I believe, a watershed question, that will map out the intersection of privacy rights and Second Amendment rights, particularly with respect to confidential medical information that does not qualify as an adjudication of a 'mental defect' or an 'involuntary commitment.'
* * *
We are... not seeking to challenge whether the pre-existing process of county licensing officer review of medical and mental health history and events is invalid, nor are we seeking to challenge the pre-existing structure of Mental Hygiene Law Article 9 as it offered pre-existing routes for involuntary and voluntary commitments. Any one of these other roads may contain challenges for another day.
We are focused in this instance on the abuse and overreach of MHL § 9.46 and its 'likelihood' standard, the false marketing of the statute by OMH to lure the medical profession to become agents of the State, and the excesses and pressures of DCJS and the NYSP to suppress the independent authority of the county licensing officers with regard to pistol permits and to firearms confiscation.
Letter of Paloma Capanna, dated January 23, 2015 (Docket No. [# 9] ). Plaintiffs' counsel stated, in other words, that this lawsuit is about MHL § 9.46.
On January 30, 2015, Montgomery filed a motion [# 3] for preliminary injunctive relief. Similar to the Complaint [# 1], the motion for injunctive relief is directed at MHL § 9.46. In particular, the application asserts that Plaintiff is likely to succeed in this action, because MHL "§ 9.46 and its implementation violate the Second, Fourth, Fifth and Fourteenth Amendments to the United States Constitution, as well as its privacy protections."
The preliminary injunction motion is supported by an affidavit from Mr. Montgomery, that essentially reiterates the allegations in the Complaint [# 1] concerning his hospitalization and the events that transpired afterward.
The preliminary injunction motion is also supported by approximately 850 pages of exhibits (Docket Nos. [# 3-2]-[# 3-13] ), including, inter alia , the following: 1) the legislative history of the SAFE Act;
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 [on the ISARS system], sometimes even without reviewing the narrative about [the] patient [that had been submitted by the treatment provider]. "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."79
From such anecdotal evidence, the injunction application suggests that wide-scale over-reporting is occurring pursuant to MHL § 9.46. Further, the application contends that the State of New York actually desires and encourages such over-reporting under MHL § 9.46, as part of an overall plan to disarm its citizens, and that hospitals "have effectively become agents of the state, labeling everyone who walks
At the same time, however, the preliminary injunction motion submits documents issued by OMH to mental-health providers, which explain that patients should not automatically be reported under MHL § 9.46 merely because they are involuntarily admitted for mental health treatment.
The application for preliminary injunctive relief also purports to show that MHL § 9.46 is unlawful because it is inconsistent with pre-existing state and federal laws, many of which the Court has already discussed above. First and foremost, the application contends that MHL § 9.46"disregards"
In immediate response to being served with Montgomery's Complaint [# 1] and Motion for Preliminary Injunctive Relief [# 3], Defendants argued, inter alia , that venue was not proper in this district,
On January 29, 2015, the Court held oral argument on the application for injunctive relief. During such appearance, the Court asked Plaintiffs' counsel to explain how venue was proper in this district. Without directly answering the Court's question, Plaintiffs' counsel indicated that she wished to file an amended pleading,
On February 2, 2015, Montgomery, along with newly-added plaintiffs Andrew Carter ("Carter"), Lois Reid ("Reid") and Karl Bechler ("Bechler"), filed an 82-page Amended Complaint [# 14], which purports to assert four causes of action: 1) that MHL § 9.46 violates the Plaintiffs' federal constitutional right to privacy in
Whereas Montgomery had lived in the Eastern District of New York when his firearms were seized, Carter, Bechler and Reid all reside in, and had their firearms licenses suspended or revoked in, the Western District of New York.
With minor exceptions,
Regarding Ms. Reid, the Amended Complaint [# 14] alleges that hospital staff unjustifiably filed a report against her after she voluntarily went to the emergency room for treatment of a neurological condition similar to muscular dystrophy. Reid indicates that she initially went to Buffalo General Hospital, and was transferred to Erie County Medical Center, where she voluntarily remained for several days. Reid maintains that she requested to be voluntarily admitted to ECMC under MHL section 9.13 and 9.23, and has paperwork documenting such request.
The 'Notice of Objection' received by Ms. Reid from Erie County Court used language of 'involuntarily hospitalized for mental health reasons' and 'involuntary admission' and also includes that 'On or about December 24, 2013, the above named LOIS JEAN REID was reportedly involved in an incident implicating MENTAL HEALTH PER SAFE ACT which obligates a mental health professional believing that such incident demonstrates that the person may be 'likely to engage in conduct that will cause serious harm to herself or others' to report such event.'104
According to the pleading, "[t]he language of this 'Notice' [sent to Ms. Reid] implicates both MHL § 9.41 and § 9.46, without referencing any section of law."
Regarding Mr. Bechler, the pleading alleges that Bechler's wife called "911" about him because he was ill and depressed, but was "not suicidal or otherwise threatening harm to himself or anyone else."
Similar to the original Complaint [# 1] and the application for preliminary injunctive relief [# 3], the Amended Complaint [# 14] does not explain how Plaintiffs' contentions, that they were incorrectly designated as having been "involuntarily committed," relate to MHL § 9.46. The closest the Amended Complaint [# 14] comes to doing so is the following curious statement:
134. It appears that the State Defendants in their political drive to confiscate firearms are failing to distinguish between the new MHL § 9.46 and the continuing MHL § 9.41, which is a pre-existing provision for involuntary commitment.
This paragraph seems to imply that the alleged mis-classification of Plaintiffs as having been involuntarily committed is somehow related to the enactment of MHL § 9.46. However, the pleading offers no factual support for the assertion that State Defendants are failing to distinguish between MHL § 9.46 and MHL § 9.41.
On February 27, 2015, Defendants filed motions to dismiss the Amended Complaint. Sheriff DeMarco and Eastern Long Island Hospital each filed their own motions, while New York State Defendants (Cuomo, Sullivan, Green and Beach) filed a joint motion.
Sheriff DeMarco filed a motion [# 22] to dismiss, for improper venue and failure to state a claim, or, in the alternative, to transfer venue. Preliminarily, DeMarco contends that since he is sued him in his official capacity as Sheriff of Suffolk County, the claim is really against Suffolk County, and is therefore a claim under Monell v. Dept. of Soc. Servs. of City of New York ,
Regarding venue, the County contends that venue is improper in the Western District, because Plaintiffs evidently chose venue based upon the fact that they reside in the Western District, which is not a valid basis to establish venue under
Alternatively, the County contends that the Amended Complaint fails to state an actionable claim against the County. In this regard, the only claims asserted against Suffolk County are by Montgomery. Further, the County maintains that only two of the claims in the Amended
On this point, the County contends that it did not act pursuant to its own policies, but rather, acted pursuant to New York State law and Federal law.
Eastern Long Island Hospital also filed a motion to dismiss [# 24] the Amended Complaint, for lack of standing, improper venue and failure to state a claim. With regard to standing, the only claims against the Hospital are those being asserted by Montgomery, who, the Hospital contends, lacks standing to bring this action because the Hospital never filed a report against him under MHL § 9.46. In this regard, the Hospital insists that dismissal is required under Rule 12(b)(1), since Montgomery's admission to the Hospital was not voluntary, as he maintains. In support of this contention, the Hospital submitted an affidavit from its Director of Behavioral Services, Helene de Reeder, RN, MSN ("de Reeder"), who asserts that she did not file a report concerning Montgomery under MHL § 9.46, but rather, that she filed a report under MHL § 7.09, as she was required to do after Montgomery was involuntarily admitted under MHL § 9.39. In that regard, de Reeder indicates that Montgomery was involuntarily admitted under MHL § 9.39"by a private attending physician" who is not an employee of the Hospital.
The Hospital alternatively contends that the Amended Complaint must be dismissed under Rule 12(b)(6), because the Hospital is a private entity, not a state actor, and therefore cannot be sued under
New York State Defendants (Cuomo, Sullivan, Green and Beach) also filed a motion to dismiss, for lack of standing, failure to state a claim and improper venue. State Defendants' motion is accompanied by 42 exhibits.
As for Bechler, State Defendants acknowledge that he was the subject of a § 9.46 report, but contend that such report caused Bechler no injury because he had already been involuntarily admitted to the hospital, and his pistol license had already been suspended, by the time the § 9.46 report was filed.
State Defendants further contend that venue is improper in the Western District, because none of them reside in the Western District, and because a substantial part of the events giving rise to the lawsuit did not occur in the Western District. With regard to residency, State Defendants contend that they all reside in the Northern District, while DeMarco and the Hospital reside in the Eastern District.
State Defendants also maintain that even if Plaintiffs have standing, the Amended Complaint fails to state actionable claims. In that regard, State Defendants contend that MHL § 9.46 violates neither the Second Amendment nor the Fourteenth Amendment. With regard to the Second Amendment, State Defendants maintain that MHL § 9.46 regulates conduct (possession of firearms by the mentally ill) that falls outside the scope of the Amendment, and that restrictions on the possession of guns by mentally ill persons are presumptively lawful. Indeed, State Defendants note that it has been a long-standing requirement of applicants for firearms licenses in New York to disclose their mental health records, and that MHL § 9.46 merely facilitates the conveyance of such information to local licensing officials. Further, State Defendants argue that even if MHL § 9.46 implicates Plaintiffs' Second Amendment rights, it does not substantially burden those rights since, as just mentioned, the statute merely adds to the existing requirement that firearms licensees disclose their mental health information. State Defendants also contend that even if MHL § 9.46 substantially burdens Plaintiffs' Second Amendment rights, the statute nevertheless passes constitutional muster under heightened (intermediate) scrutiny, since MHL § 9.46 is substantially related to important governmental objectives,
On March 13, 2015, Plaintiffs filed a combined response [# 28] to all of the Defendants' various motions to dismiss. Plaintiffs' response is organized into three sections: 1) legal sufficiency of the claims; 2) standing; and 3) venue.
Regarding standing, Plaintiffs generally argue that they have standing because their "civil liberties have been and continue to be violated."
Regarding State Defendant's contention that Bechler was not injured by MHL § 9.46 because he was already reported as having been involuntarily committed, Plaintiffs assert, incorrectly, that Defendants have not submitted any evidence to support that claim.
Regarding venue, Plaintiffs state that venue in this District is proper, in part, because "the State has physical offices
Plaintiffs arguments concerning the legal sufficiency of the pleadings, are, for the most part, not responsive to Defendants' specific objections. Nevertheless, the Court is able to discern the following major points. Plaintiffs argue that they have plausibly pleaded that they were discriminated against insofar as they were wrongly categorized as having been "involuntarily committed."
On March 30, 2015, Defendants filed their replies. Suffolk County's reply [# 30] again asserts that the Amended Complaint fails to state a Monell claim, since the County was not acting pursuant to its own policy when it suspended Montgomery's pistol license and seized his guns.
Eastern Long Island Hospital's reply [# 31] repeats that Montgomery was admitted under MHL § 9.39 by a private attending physician, and that no report was filed against him under MHL § 9.46. Further, the Hospital indicates that an MHL § 9.39 admission is an involuntary admission, which the Hospital was required to report to OMH. Regarding the sufficiency of the pleadings, the Hospital indicates, with regard to Plaintiffs' privacy claim, that reports of involuntary admissions are required by law ( MHL § 7.09(j) ), and therefore do not violate HIPAA. Regarding the Equal Protection, Due Process and Second Amendment claims, the Hospital reiterates that it cannot be sued under Section 1983 because it is not a state actor, and that Plaintiffs' response does not address this point. Further, as to the Second Amendment claim, the Hospital indicates that it merely reported Montgomery's commitment under MHL § 9.39 as required by law, and was not involved in the taking of his guns or firearms license. In sum, the Hospital emphasizes
State Defendants' reply [# 33] begins by noting that "Plaintiffs' puzzling opposition ... neither engages the State Defendants' arguments [concerning standing] nor addresses the governing caselaw [on that issue] cited in [State Defendants'] moving brief."
On September 17, 2015, counsel for the parties appeared before the undersigned for oral argument. During oral argument, the Court questioned Plaintiffs' counsel on issues including standing, joinder and Eastern Long Island Hospital's status as a state actor for purposes of § 1983. The Court also discussed a motion for temporary-sealing of documents that had been filed by Defendants, and Plaintiffs' response to that application. After oral argument, the Court invited additional briefing on the issue of joinder, and granted Plaintiffs permission to file their own motion to seal. On October 15, 2015, counsel for Plaintiffs and for Suffolk County submitted supplemental letter briefs, in which Plaintiffs argue that Eastern Long Island Hospital is a state actor under § 1983, while Suffolk County addresses issues of standing and joinder. Plaintiffs also filed a motion to seal (Docket No. [# 39] ), after which there was additional briefing on that application.
In connection with the Court's consideration of all of the pending applications, it requested additional information relating to the circumstances of Mr. Montgomery's admission to Eastern Long Island Hospital,
On May 10, 2016, the Court issued a letter Order [# 43] which, inter alia , observed that Montgomery had placed his medical/mental condition at issue, and directed the parties to immediately prepare a stipulated confidentiality order. The letter Order also directed Plaintiffs' counsel to provide opposing counsel with authorizations for "medical/mental health records." The letter Order further directed that Eastern Long Island Hospital submit a supplemental affidavit "clarifying the circumstances of Mr. Montgomery's admission, including the identity of the doctor who signed the OMH 474 form and his/her relationship to the hospital and to Mr. Montgomery," and indicating whether the Hospital had a policy of "classifying all psychiatrically-based emergency room admissions as involuntary commitments," as Montgomery alleged. The Court also directed Plaintiffs' counsel to submit an affidavit from Montgomery's doctor, who, the Hospital claimed, had recommended Montgomery for involuntary commitment.
Subsequently, the Court received a series of communications from counsel, regarding their unsuccessful attempts to draft a mutually-acceptable confidentiality order. The communications from Defendants indicated that Plaintiff's counsel was holding up the process. On August 9, 2016, the Court issued an Order to Show Cause [# 44] directing Plaintiffs to show cause why they should not be sanctioned for failing to comply with the Court's prior Order [# 43].
On September 1, 2016, Plaintiffs filed a response [# 45], addressing the Order to Show Cause, requesting a stay of the action to allow settlement negotiations, and submitting additional exhibits relating to the pending motions. The response includes an affidavit from Mr. Montgomery, dated June 4, 2016, indicating that he was admitted by doctors at the hospital, whose identity he does not know, and not by his own primary care physician. The response also includes an affirmation [# 45] from Plaintiffs' counsel which is interesting to the Court insofar as it expresses her belief that the instant lawsuit, which is ostensibly directed at MHL § 9.46, and which demands relief (including preliminary injunctive relief) relating only to MHL § 9.46, actually involves "two topics" or "two tracks," namely, an "involuntary commitment" track and an MHL § 9.46 track. With regard to this so-called "involuntary commitment" track, counsel seems to allege that this lawsuit is attempting to assert a claim that Defendants have failed to conduct an "independent analysis" as to "whether a medical report of 'involuntary
On September 9, 2016, State Defendants filed a response to Plaintiffs' submission [# 45], stating, in pertinent part, that
although Plaintiffs have repeatedly tried to confuse the issue, this case is about New York Mental Hygiene Law ("MHL") § 9.46[.]... That is the only statutory provision challenged in the operative Amended Complaint. It is likewise the only aspect of New York law that Plaintiffs see to "strike down," "render void ab initio ," and enjoin the State Defendants from "administering, operating and implementing." Plaintiffs have not mounted a challenge to other, separate provisions of state and federal law relating to gun possession and involuntary commitments.
Letter of William J. Taylor, Jr. dated September 9, 2016 (citations and internal quotation marks omitted).
On December 8, 2016, the Court issued a letter Order [# 46], declining to impose sanctions on Plaintiffs, but directing that the parties finalize a confidentiality order within seven days. The Court further directed that the parties address the matters discussed in the Court's prior Order [# 43] "expeditiously." That is, the Court directed the parties to expeditiously submit the additional information (concerning Montgomery's hospitalization) requested by the Court in its letter Order [# 43] issued on May 12, 2016, once the confidentiality order was finalized.
On February 6, 2017, having heard nothing further from the parties, the Court emailed counsel to inquire about the case, pointing out that the Court still had "not received the materials discussed [in] the Court's letter order issued on May, 12, 2016." The same day, counsel for the Hospital responded, indicating that Defendants had only just received releases from Mr. Montgomery on January 12, 2017.
On February 10, 2017, the Hospital filed a supplemental affirmation, with Mr. Montgomery's medical chart and affidavits from hospital staff attached as exhibits. The submission details that on May 23, 2014, Montgomery came to the Hospital emergency room with a letter from his treating nurse practitioner, indicating that Montgomery was "begging to be sedated" and required "hospitalization to stabilize
Upon the Court's receipt of the Hospital's supplemental response, no further briefing deadlines were extant. Nevertheless, on March 13, 2017, State Defendants submitted a supplemental letter brief,
Having received no further communications from the parties, on March 24, 2017, the Court issued a text order [# 49], stating:
One month later, on April 26, 2017, the Court received a letter from Plaintiffs' counsel, acknowledging the Court's text order [# 49], but asking the Court to consider some additional points. Counsel first expresses confusion regarding the Court's handling of the case,
In rendering its decision herein, the Court has considered all of the aforementioned submissions.
DISCUSSION
Defendants' motions contend that the Court should dismiss this action for lack of subject matter jurisdiction, pursuant to Fed.R.Civ.P. 12(b)(1), for improper venue, pursuant to Fed.R.Civ.P. 12(b)(3), and for failure to state a claim, pursuant to Fed.R.Civ.P. 12(b)(6). The Court will consider the issues in that order.
Motions to Dismiss for Lack of Subject Matter Jurisdiction
Eastern Long Island Hospital and State Defendants
The defect of standing is a defect in subject-matter jurisdiction. In order to establish constitutional standing, a plaintiff must demonstrate that a case or controversy exists by showing (1) that he has suffered an "injury in fact" that is "concrete and particularized" and "actual or imminent, not conjectural or hypothetical"; (2) that the injury is "fairly traceable" to the challenged action of the defendant; and (3) that it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.
Ass'n of Am. Physicians & Surgeons, Inc. v. Sebelius ,
Moreover, "[t]o establish standing to obtain prospective relief, a plaintiff must show a likelihood that he will be injured in the future." Carver v. City of New York ,
"The basic question when standing is at issue is whether the plaintiff has alleged "such a personal stake in the outcome of the controversy" as to warrant his or her invocation of federal-court jurisdiction, and to justify exercise of the court's remedial powers on his or her behalf. Baker v. Carr ,
When considering this issue, District Courts must be careful not to confuse standing with the merits of the plaintiff's claim.
The Second Circuit has emphasized that the fundamental aspect of standing is its focus on the plaintiff and not on the issues the plaintiff wishes to have adjudicated. United States v. Vazquez ,, 80 (2d Cir.1998). The aim of a court's investigation into a plaintiff's standing is to determine "whether the plaintiff has alleged such a personal stake in the outcome of the controversy as to warrant his invocation of federal-court jurisdiction and to justify exercise of the court's remedial powers on his 145 F.3d 74 behalf." Warth v. Seldin , , 498-99, 422 U.S. 490 , 95 S.Ct. 2197 (1975) (internal quotation omitted). The standing issue must therefore be resolved "irrespective of the merits of [the] substantive claims." 45 L.Ed.2d 343 168 Bordell v. Gen. Elec. Co. ,, 1060 (2d Cir.1991). 922 F.2d 1057
State Farm Mut. Auto. Ins. Co. v. Mallela , No. CV-00-4923 (CPS),
Challenges to standing can be either "facial" or "fact based," and the burden on the plaintiff varies depending upon which type of challenge is being made.
[A] challenge to subject-matter jurisdiction pursuant to Rule 12(b)(1) may be facial or fact-based. When a defendant raises a facial challenge to standing based solely on the complaint and the documents attached to it, the plaintiff has no evidentiary burden and a court must determine whether the plaintiff asserting standing alleges facts that affirmatively and plausibly suggest that the plaintiff has standing to sue. In making such a determination, a court must accept as true all allegations in the complaint and draw all inferences in the plaintiff's favor. Where a Rule 12(b)(1) motion is fact-based, a defendant proffers evidence outside the pleadings and a plaintiff must either come forward with controverting evidence or rest on the pleadings if the evidence offered by the defendant is immaterial. Where the evidence presented by defendants is both material and controverted, a court must make findings of fact in aid of its decision as to standing.
Fullwood v. Wolfgang's Steakhouse, Inc. , No. 13 CIV. 7174 (KPF),
A dismissal for lack of standing must be without prejudice. See, Katz v. Donna Karan Co., L.L.C. ,
The question of standing is claim-specific.
"[W]here, as here, the parties disagree whether the complaint was sufficient to put the defendant on notice of a particular claim, notice pleading standards require that the complaint be read liberally in favor of the plaintiff." Perry v. Am. Airlines, Inc. ,
Rule 8(a) of the Federal Rules of Civil Procedure requires only that a complaint give the defendant "fair notice" of the claims being asserted. See , Keiler v. Harlequin Enterprises Ltd. ,
Here, the Amended Complaint [# 14] fails to satisfy Rule 8(a) insofar as Plaintiffs claim to be asserting an "involuntary commitment" claim. To begin with, the Amended Complaint opens with a one-page statement purporting to explain the "NATURE OF THE ACTION," which is entirely focused on MHL § 9.46. This paragraph does not mention involuntary commitment. Rather, this paragraph gives the reader the clear and unmistakable impression that this lawsuit involves a challenge to the recently-enacted MHL § 9.46, which is not a commitment statute. If Plaintiffs were intending to assert a claim involving systematic mis-classification of persons as "involuntarily committed," as they now claim, this opening paragraph would have been a very opportune place for them to say so. They did not do so, and consequently the reader is led to believe that this action is about MHL § 9.46. Certainly, that was the Court's understanding from reading the paragraph.
The Amended Complaint [# 14] then continues with 292
In reality, NYS Police have taken the position of instructing local licensing officials to suspend and terminate pistol permits for all persons reported through MHL § 9.46 as having been involuntarily committed to a mental institution.
Amended Complaint [# 14] at ¶ 91. However, although this paragraph mentions involuntary commitment, it implies that Plaintiffs were "reported through MHL § 9.46," and does not indicate that Plaintiffs are attempting to assert a stand-alone claim involving improper involuntary commitments.
It is not until page thirty-eight of the Amended Complaint, at paragraphs 134-136, that the pleading says anything resembling what Plaintiffs now refer to as their "involuntary commitment" claim. Paragraph 134 asserts, without explanation, that "State Defendants in their political drive to confiscate firearms are failing to distinguish between the new MHL § 9.46 and the continuing MHL § 9.41, which is a pre-existing provision for involuntarily [sic] commitment." Paragraph 135 asserts that "it appears" that OMH and "emergency room providers" are classifying persons as "involuntarily committed"
It appears that the Office of Mental Health, Department of Criminal Justice Services, and NYS Police are failing to obtain critical data that would support an accurate characterization of a patient as having been 'involuntarily committed," meaning to have been formally adjudicated as a mental defective or involuntarily committed as these terms are defined at federal law and regulations cited herein.
Judging from Plaintiffs' later submissions, paragraph 136 of the Amended Complaint is apparently where Plaintiffs believe they have pleaded an "involuntary commitment" claim. Only with the benefit of such later submissions does it now appear that Plaintiffs were attempting to claim that state officials should not rely upon reports, provided to them by hospitals or doctors, indicating that someone has been involuntarily committed. Apparently, in that regard, Plaintiffs contend that state officials should not accept such reports at face value, and should not report involuntary commitments to NICS, until after a court has performed its own investigation into the circumstances of each alleged involuntary commitment.
However, regardless of what Plaintiffs intended, the Amended Complaint does not give Defendants fair notice of such a claim. Notably, after paragraphs 134-136, the pleading makes factual allegations concerning the individual plaintiffs, which, although they include allegations that Plaintiffs were wrongly labeled as involuntary commitments, seem to blame any mistake in that regard on the SAFE Act, and, particularly, MHL § 9.46.
This impression is reinforced at the end of the Amended Complaint, where Plaintiffs set forth their four causes of action. The first cause of action ("right to privacy"), third cause of action ("due process") and fourth cause of action ("right to keep and bear arms") refer only to MHL § 9.46, and do not mention involuntary commitment. The second cause of action repeatedly references MHL § 9.46, but then ends with two references to involuntary commitment. However, it is not obvious that those references to involuntary commitment are attempting to assert a separate claim, unrelated to the immediately-preceding statements about MHL § 9.46.
Similarly, the Amended Complaint's ad damnum clause seeks relief almost entirely related to MHL § 9.46, and does not mention involuntary commitment. "The prayer for relief is no part of the plaintiff's cause of action." City of Los Angeles v. Lyons ,
In sum, the Court finds that the Amended Complaint fails to give fair notice to Defendants that it is attempting to assert a stand-alone involuntary commitment claim. Rather, the pleading only gives fair notice that it is challenging MHL § 9.46. Accordingly, to the extent that Plaintiffs were attempting to assert an "involuntary commitment" claim in the Amended Complaint, it is dismissed under Rule 8(a), without prejudice.
Having found that the Amended Complaint asserts a challenge only to MHL § 9.46, it is clear that Montgomery, Carter and Reid have no standing in this action, since they were not affected by MHL § 9.46, and have not shown that they are in imminent danger of being affected by MHL § 9.46 in the future. That is, they have not shown an injury that is "fairly traceable" to the challenged action of the defendants in enacting and/or enforcing MHL § 9.46.
For example, there is not a single shred of evidence in the record that MHL § 9.46 had anything whatsoever to do with what happened to Mr. Montgomery. Rather, all of the evidence indicates that whatever happened to Montgomery resulted from him being admitted to the hospital pursuant to MHL § 9.39, rightly or wrongly.
There is similarly no evidence that a § 9.46 report was filed concerning Carter. At most, the Amended Complaint indicates that after Carter was taken to the hospital by police under circumstances clearly implicating MHL § 9.41, a police officer told him that his guns could not be returned to him, "due to the SAFE Act."
As for Reid, at most the Amended Complaint vaguely indicates that Reid received a notice which she interpreted as indicating that MHL § 9.46 might had something to do with the suspension of her pistol license.
In any event, to the extent that there is any bona fide factual issue on this point, the Court finds that Montgomery, Carter and Reid were never reported under MHL § 9.46, and that to the extent that they
Regarding Bechler, the issue remains whether he has standing to maintain claims involving MHL § 9.46 against State Defendants, where an MHL § 9.46 report was filed against him only after his pistol license had already been suspended due to an involuntary commitment.
For purposes of standing, the burden on a plaintiff to show that his injury is "fairly traceable" to the challenged conduct of the defendant is modest, and is less than the showing required to prove proximate causation:
The requirement that a complaint allege an injury that is fairly traceable to defendants' conduct for purposes of constitutional standing is a lesser burden than the requirement that it show proximate cause. Thus, the fact that there is an intervening cause of the plaintiff's injury may foreclose a finding of proximate cause but is not necessarily a basis for finding that the injury is not "fairly traceable" to the acts of the defendant.... [I]t is wrong to equate injury "fairly traceable" to the defendant with injury as to which the defendant's actions are the very last step in the chain of causation. Rather, at the pleading stage of the litigation, the plaintiffs' burden of alleging that their injury is "fairly traceable" to the challenged act is relatively modest.
Nevertheless, State Defendants contend that Bechler cannot meet this burden, since his firearms license was already suspended by the time the MHL § 9.46 report was filed, and he would have faced all of the same consequences (suspension of license, reporting to DCJS and NICS, seizure of weapons) about which he complains in this action even if no MHL § 9.46 report had been filed. On this point, State Defendants cite, inter alia , Exotic Animal Owners v. New York , No. 03-7327,
The Court agrees with State Defendants, and finds that Plaintiffs have failed to carry their burden of affirmatively showing that Bechler has standing to challenge MHL § 9.46. Specifically, Plaintiffs have not shown either that Bechler's alleged injury is "fairly traceable" to actions of State Defendants involving MHL § 9.46, or that it is likely such injury will be redressed by a favorable decision by this Court involving MHL § 9.46.
Bechler's injury is not fairly traceable to MHL § 9.46, because the filing of the MHL § 9.46 report was redundant, and put him in no worse position than he was already in after he was reported as involuntarily committed. See , Phelps v. Bosco , No. 113CV1510GTSCFH,
Similarly as to "redressability," Plaintiffs have not explained how a favorable ruling in this action concerning MHL § 9.46 would redress Bechler's alleged injury, since he suffered even more injuries due to having been classified as "involuntarily committed" than he would have suffered solely from an MHL § 9.46 report.
For all of the foregoing reasons, the applications to dismiss the Amended Complaint, for lack of standing pursuant to Rule 12(b)(1), by Eastern Long Island Hospital and State Defendants, are granted. Moreover, although Suffolk County did not move to dismiss for lack of standing, the Court finds, sua sponte , that Plaintiffs also lack standing to assert claims under MHL § 9.46 against the County, for the same reasons that they lack standing to assert MHL § 9.46 claims against the other defendants. See, In re Indu Craft, Inc. ,
Although the Court is satisfied that it lacks subject-matter jurisdiction over this action, due to Plaintiffs' lack of standing to challenge MHL § 9.46, it knows that on appeal, a reviewing Court might disagree. Moreover, the Court is keenly aware of the amount of time and energy that has been expended in researching, briefing and arguing the remaining aspects of the pending motions, concerning venue and the merits of Plaintiffs' claims. Therefore, despite the Court's ruling on jurisdiction, it would be the Court's preference to proceed and consider, in the alternative, the remaining aspects of the pending applications. However, the Second Circuit has indicated that such an alternative ruling by this Court would amount to an advisory opinion and a "nullity." For example, in Roistacher v. Bondi ,
[T]he portion of the judgment purporting to [alternatively] grant summary judgment to the defendants must be vacated as well. "Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause." Ex parte McCardle ,74 U.S. (7 Wall.) 506 , 514,(1868). See also Steel Co. v. Citizens for a Better Env't , 19 L.Ed. 264 , 101, 523 U.S. 83 , 118 S.Ct. 1003 (1998) ("[A] court... resolv[ing] contested questions of law when its jurisdiction is in doubt ... produces nothing more than a hypothetical judgment-which comes to the same thing as an advisory opinion, disapproved by this Court from the beginning."). Having determined that it lacked subject-matter jurisdiction, the district court's subsequent consideration of the merits of Roistacher's claims was thus a nullity. We therefore cannot simply affirm the judgment's dismissal, in the alternative, of the case on the merits. The only effective part of the judgment below was the dismissal for lack of subject-matter jurisdiction[.] 140 L.Ed.2d 210
Roistacher v. Bondi ,
Plaintiffs' Alternative Motion for Leave to Re-plead is Denied
Plaintiffs have alternatively requested leave to replead,
However, even the liberal amendment standard has its limits. See, Jin v. Metro. Life Ins. Co. ,
Leave to amend may also be denied where the plaintiff has already had sufficient opportunities to fix the complaint. As one Court has stated,
[w]hile pleading is not a game of skill in which one misstep may be decisive to the outcome, neither is it an interactive game in which plaintiffs file a complaint, and then bat it back and forth with the Court over a rhetorical net until a viable complaint emerges. It is the plaintiffs' responsibility to plead their case adequately, and a court may deny a plaintiff leave to replead when that party has-as here-been given ample prior opportunity to allege a claim.
In re Refco Capital Markets, Ltd. Brokerage Customer Sec. Litig. , No. 06 CIV. 643 (GEL),
Here, Plaintiffs have already filed two complaints that are not actionable for the reasons stated above. (Docket Nos. [# 1] & [# 14] ). Additionally, Plaintiffs have requested leave to file a "Second Amended Complaint" in the event that the Court is "inclined to grant the Defendants' motions to dismiss,"
A 'Second Amended Complaint' would bring together the additional information from the Defendants [referring to the exhibits filed by Defendants in support of their motions to dismiss] to, in essence, complete the story against '9.46' in the full context of its associated '9.41' reporting system.... This amendments would not relate to the Plaintiffs; the amendments finish the narrative about the actions being taken in an on-going manner against those tagged as 'mentally ill' and/or 'involuntarily committed,' reported through the PERDS form or the ISARS form, being fanned out across state and local offices and agencies and uploaded to the federal government.
Docket No. [# 28-2] at p. 49 (Memo p. 42).
As for the proposed Second Amended Complaint itself (Docket No. [# 28-3] ), the Court notes, as an initial matter, that the proposed pleading does not comply with Rule 15(b) of the Local Rules of Civil Procedure.
The proposed Second Amended Complaint [# 28-3], like the Amended Complaint, purports to set forth four causes of action.
an order requiring that any persons reported by the State to the FBI or otherwise uploaded to the federal government to be included in the NICS database shall be released from said disqualification unless the third party audit can establish that the patient was 'involuntarily committed' as such term means at statutory and regulatory federal law.
Docket No. [# 28-3] at pp. 85-86, ¶ ¶ VII & VIII. In other words, Plaintiffs want this Court to order that the names of any New York residents who have been reported to NICS due to involuntarily commitment, be expunged and removed from the State's records and from NICS, unless the State can independently prove that such persons were, in fact, involuntarily committed. In this regard, Plaintiffs are contending that it is unconstitutional for the State to rely solely upon reports, from hospitals and medical providers, indicating that patients have been involuntarily committed, when disqualifying persons from holding firearms licenses or from possessing guns.
Plaintiffs' request to replead is denied. To the extent that the proposed amended pleading re-asserts claims involving MHL § 9.46, leave to amend is denied as futile for the reasons already discussed herein. Leave to amend is also denied as futile insofar as the proposed pleading attempts to state claims regarding "involuntary commitment." The proposed pleading contends that medical providers are being confused by similarities between MHL § 9.46 and the involuntary commitment provisions under MHL Article 9, and implies that such confusion is resulting in reports being improperly filed against persons seeking mental health treatment. The proposed pleading further alleges that the State is intentionally encouraging medical providers to file false reports concerning involuntary commitments, which can be uploaded to NICS. According to the proposed pleading, the purpose of the State's alleged scheme is twofold: To disarm citizens, and to obtain money from the Federal Government.
However, the proposed pleading fails to allege facts to make any of these allegations plausible. For example, there are no factual allegations plausibly suggesting that medical providers are actually failing to distinguish between MHL § 9.46 and MHL § 9.41.
Furthermore, to the extent that Plaintiffs are maintaining that the State cannot permissibly rely upon the reports of doctors to disqualify persons from firearms ownership, or to report names to NICS, the argument fails as a matter of law.
Like Section 9.27, Section 9.39 [of the New York Mental Hygiene Law] creates a procedure to admit an individual into a hospital against her will when her mental illness presents a serious danger to herself or others. Individuals hospitalized under either provision, or their representatives, have a right to seek judicial review of that determination. See N.Y.M.H.L. § 9.31(a) (providing this right for Section 9.27 confinements); N.Y.M.H.L. § 9.39(a) (providing this right for Section 9.39 confinements). And, as in [ U.S. v. Waters ,(2d Cir. 1994), 23 F.3d 29 198 cert. denied ,, 513 U.S. 867 , 115 S.Ct. 185 (1994) ], [the Appellant's] 2005 admission was based on the recommendation of at least two physicians, at least one of whom was a psychiatrist, and included treatment during the course of his stay. That is exactly the sort of determination that a federal statute should include in its definition of "commitment" insofar as it is concerned with preventing firearms from getting into the hands of those whose mental illness might lead them to commit acts of violence. And it is the sort of process that ensures the determination is not arbitrary. 130 L.Ed.2d 119
Phelps v. Bosco ,
Plaintiffs have not requested further leave to amend, and the Court would not be inclined to grant such a request in any event. Plaintiffs have already made three attempts to plead actionable claims, and seem to be no closer to doing so than when they started. For example, although Defendants raised the issue of Plaintiffs' lack of standing to challenge MHL § 9.46 as soon as they appeared in the action, Plaintiffs have continued to press the same claims under that statute in all three iterations of the complaint. Further, Plaintiffs' pleadings have repeatedly insisted that MHL § 9.46 violates HIPAA, while overlooking the very provision (
In the Court's view, Plaintiffs' claims arise, if at all, from the fact that they were wrongly classified as having been involuntarily committed under provisions of MHL Article 9 other than MHL § 9.46.
For all of the foregoing reasons, any further request for leave to amend is denied. See, Levin v. Credit Suisse, Inc. ,
CONCLUSION
Defendants' applications to dismiss for lack of subject matter jurisdiction are
SO ORDERED.
Notes
"The Brady Handgun Violence Prevention Act (the "Brady Act"), Pub. L. No. 103-159,
See, generally , State Defendants Motion to Dismiss, Ex. 37, Shaundra K. Lewis, Firearm Laws Redux-Legislative Proposals for Disarming the Mentally Ill Post-Heller and Newtown , Mental Health Law & Policy Journal, Vol. 3, at pp. 328-334 (2014).
The SAFE Act amended New York's Criminal Procedure Law, Correction Law, the Family Court Act, Executive Law, the General Business Law, the Judiciary Law, the Mental Hygiene law, the Penal Law and the Surrogate's Court Procedure Act. See , 2013 Sess. Law News of N.Y. Ch. 1 (S. 2230) (McKINNEY'S).
See, e.g. , OMH ISARS User's Manual, Vertions 1.0.2.9 (Sept. 28, 2015) ("ISARS Users Manual"), nics.ny.gov/docs/user_guide.pdf According to the website maintained by the New York State Office of NICS Appeals & SAFE Act, "Mental health professionals should convey information necessary to allow the DCS to review the matter and determine if a report to the NYS Division of Criminal Justice Services (DCJS) is required (e.g., what clinical evidence, history, and risk factors have caused the mental health professional to conclude that the patient is likely to engage in conduct that would result in serious harm to self or others)." http://nics.ny.gov/sa-faq.html.
ISARS Users Manual at p. 7 ("1. SAFE Act Users can enter the application in one of two ways:
a. through the OMH home page at http://www.omh.ny.gov by clicking the "NY SAFE ACT" link, then clicking the "9.46 Reporting" link at http://www.omh.ny.gov/omhweb/safe_act/. (Additional SAFE ACT Reporting resources are available at this site). b. or by directly accessing the reporting portal by typing this URL in to their web browser: https://nysafe.omh.ny.gov.").
See , http://www.criminaljustice.ny.gov/crimnet/mail.htm ("The agency provides direct training to law enforcement and other criminal justice professionals; oversees a law enforcement accreditation program; ensures Breathalyzer and speed enforcement equipment used by local law enforcement operate correctly; manages criminal justice grant funds; analyzes statewide crime and program data; provides research support; oversees county probation departments and alternatives to incarceration programs; and coordinates juvenile justice policy. DCJS maintains criminal history records and fingerprint files and performs background checks for employment and licensure. The agency also administers the state's Sex Offender Registry; the Missing Persons Clearinghouse; the state's DNA Databank in cooperation with the New York State Police Forensic Investigation Center; and provides staff support to independently appointed commissions and councils, including the New York State Commission on Forensic Science, which monitors and accredits the state's forensic laboratories.").
Aff. of Donna Marie Call at ¶ 17 ("All information received by DCJS pursuant to the Mental Hygiene Law, including all information received pursuant to MHL § 9.46, is maintained as confidential. Such information is sent and received by DCJS via the Integrated Justice (IJ) portal. The IJ portal utilizes encryption that meets FBI Criminal Justice Information (CJIS) data encryption policy."). Apparently, then, ISARS is only used to send MHL § 9.46 reports from mental health providers to the DCS.
DCJS is permitted to retain such information for a period of five years, after which it is supposed to destroy the information. See New York Executive Law § 837(19) ("The division shall have the following functions, powers and duties:... 19. Receive names and other non-clinical identifying information pursuant to section 9.46 of the mental hygiene law ; provided, however, any such information shall be destroyed five years after such receipt, or pursuant to a proceeding brought under article seventy-eight of the civil practice law and rules determining that an individual is eligible for a license pursuant to section 400.00 of the penal law and otherwise permitted to possess a firearm.").
See , Penal Law § 400.02 ("Statewide license and record database").
"Licensing officer" means in the city of New York the police commissioner of that city; in the county of Nassau the commissioner of police of that county; in the county of Suffolk the sheriff of that county except in the towns of Babylon, Brookhaven, Huntington, Islip and Smithtown, the commissioner of police of that county; for the purposes of section 400.01 of this chapter the superintendent of state police; and elsewhere in the state a judge or justice of a court of record having his office in the county of issuance."
See, e.g. , Complaint [# 1] at ¶ ¶ 86-87. The NYSP actually maintains the state-wide database of firearms license holders. Pl. Prelim. Inj. Motion, Exhibit Group D, Ex. 5, OMH Guidance Document at p. 5; see also,
"[S]uch surrender shall be made to the superintendent of the division of state police or a member thereof designated by such superintendent, or to the sheriff of the county in which such person resides, or in the county of Nassau or in the towns of Babylon, Brookhaven, Huntington, Islip and Smithtown in the county of Suffolk to the commissioner of police or a member of the police department thereof designated by such commissioner, or if such person resides in a city, town other than one named in this subparagraph, or village to the police commissioner or head of the police force or department thereof or to a member of the force or department designated by such commissioner or head;"
As will be discussed further below, NYSP uses a particular form letter to make this notification. See , Pl. Prelim. Inj. Motion, Exhibit Group H, Ex. 37.
MHL § 9.13, entitled "Voluntary Admissions," subsection (a), states in pertinent part: "The director of any hospital may receive as a voluntary patient any suitable person in need of care and treatment, who voluntarily makes written application therefor."
MHL § 9.15, entitled "Informal Admissions," states: "The director of any hospital approved by the commissioner for such purpose may receive therein as an informal patient any suitable person in need of care and treatment requesting admission thereto. Such person may be admitted as a patient without making formal or written application therefor and any such patient shall be free to leave such hospital at any time after such admission."
Pl. Prelim. Inj. Motion, Exhibit Group D, Ex. 5, OMH Guidance Document.
OMH SAFE Act Guidance Document at p. 3 ("The courts have interpreted the 2 PC standard as requiring both mental illness and a finding that the person is dangerous to self or others, but such dangerousness may be found even without an active display of dangerous behavior, conduct, or threats if the person has a history of dangerous conduct associated with noncompliance with mental health treatment programs.").
OMH Guidance Document, State Defs. Mtn to Dismiss, Ex. 11 at pp. 2-3.
State Defs. Mtn. to Dismiss, Ex. 12.
State Defs. Mtn to Dismiss, Ex. 12 at p. 5.
However, while
This same regulation defines a "mental institution" as follows: "Mental institution. Includes mental health facilities, mental hospitals, sanitariums, psychiatric facilities, and other facilities that provide diagnoses by licensed professionals of mental retardation or mental illness, including a psychiatric ward in a general hospital."
See , 14 NYCRR 543.4(b) ("Committed to a mental institution means, as such term is defined in Federal regulations at 27 C.F.R. 478.11, a formal commitment of a person to a mental institution by a court, board, commission, or other lawful authority. Such term includes a commitment to a mental institution involuntarily[.]... For purposes of this Part, committed to a mental institution shall include persons who have been involuntarily committed or confined pursuant to article 9 or 10 of the Mental Hygiene Law."). See also , U.S. v. Waters ,
See , Aff. of Donna Marie Call, ¶ 9, n. 2 ("The SAFE Act amended Penal Law § 400.00 to amend the eligibility requirements for a firearms license in New York to conform with federal law, so that those persons who are federally prohibited from possessing guns, including those disqualified on mental health grounds under
See , Aff. of Donna Marie Call, ¶ 9, n. 2 ("[R]eports of involuntary commitments which have been made to NICS for years, are now also run against a database of State firearms licensees to identify those persons who are not permitted to legally possess a gun. See, MHL §§ 7.09(j), 33.13(c)(15) ; see also , Penal Law § 400.00(11)(a) and (c), § 400.00(4), and Penal Law § 400.02."); see also , State Defs. Motion to Dismiss, Exhibit 22, letter from NYSP to Suffolk County, advising that Mr. Montgomery was ineligible to possess firearms pursuant to
Penal Law § 400.00(1)(j) & 11(a) 7(c).
The SAFE Act apparently requires that MHL § 9.46 reports be filed even for persons who have been involuntarily admitted, even though such a report would seem to be redundant. That is, MHL § 9.46 does not contain any express exception concerning patients who have been or who are being involuntarily admitted.
Even if there is not sufficient agreement among doctors to have a person involuntarily committed, the report by a single treatment provider under MHL § 9.46, when it is agreed with by the DCS, will result in at least the suspension of the patient's firearms license and the seizure of his weapons.
See , NICS IMPROVEMENT AMENDMENTS ACT OF 2007, PL 110-180, January 8, 2008, 122 Stat 2559 (Setting forth Congressional findings concerning two high-profile incidents, including the massacre at Virginia Polytechnic Institute and State University, perpetrated by mentally ill persons who were able to purchase firearms due to the fact that NICS had incomplete information); see also , Tyler v. Hillsdale Cty. Sheriff's Dep't ,
See, generally , Franklin v. Lynch , No. 3:16-CV-36,
See ,
See , New York Bill Jacket, 2008 Senate Bill 8706, Ch. 491.
2008 Sess. Law News of N.Y. Ch. 49 (S. 8706) (McKinney's); see also , Aff. of John B. Allen, Jr. at ¶ 9. As part of the SAFE Act, MHL § 7.09(j) was further amended, to require OMH to forward such information to DCJS and/or the FBI, "for determining whether a [firearms] license issued pursuant to section 400.00 of the [New York Penal Law ] should be denied, suspended or revoked... or for determining whether a person is no longer permitted under federal or state law to possess a firearm." MHL § 7.09(j)(1) (West 2018).
Aff. of Donna Marie Call at ¶ 7. OMH is not the only state agency that provides information to DCJS for use in responding to NICS queries. The Office of Court Administration, the Office for People with Developmental Disabilities, the Department of Health, and the Office of Mental Health also provide information to DCJS for that purpose.
Aff. of John B. Allen, Jr. at ¶ ¶ 9, 15.
Aff. of John B. Allen, Jr. at ¶ 10.
Aff. of John B. Allen, Jr. at ¶ 10, n. 3. The fact that someone is involuntarily committed is a disqualifying event under
Aff. of Donna Marie Call at ¶ 9, n. 1 ("The identifier 'MHL § 9.41' is used by DCJS as shorthand to identify individuals who have been reported as having been adjudicated mentally defective or involuntarily committed to a mental institution under provisions of the Mentally Hygiene Law where such commitment constitutes an involuntary commitment for the purposes of
Aff. of Donna Marie Call at ¶ ¶ 9, n.1, 18-25.
See , Ross v. Westchester Cty. Jail , No. 10 CIV. 3937 DLC,
The New York State Psychiatric Association has argued that disclosure under MHL § 9.46 does not fall under HIPAA's "required by law" exception, since "it is not truly compulsory-it includes an exception to the duty to report with respect to any action which, in the exercise of reasonable professional judgment, would endanger the reporter or increase the danger to a potential victim or victims." See , http://www.nyspsych.org/index.php?option=com_content&view=article&id=53:safe-act-press-release&catid=20:site-content This view, however, is contrary to Plaintiffs' submissions, which repeatedly assert that disclosure under MHL § 9.46 is mandatory.
Significantly in this regard, HIPAA defers to the judgment of the state and federal legislators who drafted the law requiring disclosure. See , Standards for Privacy of Individually Identifiable Health Information, 65 FR 82462-01,
Standards for Privacy of Individually Identifiable Health Information, 65 FR 82462-01,
OMH Guidance Document, State Defs. Mtn to Dismiss, Ex. 11 at p. 3.
OMH Guidance Document, State Defs. Mtn to Dismiss, Ex. 11 at p. 4.
Standards for Privacy of Individually Identifiable Health Information, 65 FR 82462-01,
Standards for Privacy of Individually Identifiable Health Information, 65 FR 82462-01,
Standards for Privacy of Individually Identifiable Health Information, 65 FR 82462-01,
MHL § 33.13(12) permits the disclosure of records to the director of community services when, inter alia , required by MHL § 9.46. Further, MHL 33.13(13)-(15) permit the disclosure of patient health information to DCJS or the Federal Bureau of Investigation ("FBI"), in order to allow the FBI to perform its functions in connection with the National Instant Criminal Background Check System ("NICS"), or to allow DCJS to perform its duties under New York Penal Law §§ 400.00 and 400.02. On this point, State Defendants indicate: "[S]ince 2008, New York hospitals have been required to report to OMH mental health information federal disqualifiers, including any involuntary commitment pursuant to Article 9 of the Mental Hygiene Law. MHL §§ 31.11(5), 33.13(c) (13(ii). Upon receipt of such information, OMH sends the individual's 'name[ ] and other non-clinical identifying information' to [DCJS].
Plaintiff Lois Reid indicates that her firearms were not actually seized from her, but rather, that law enforcement allowed her husband to retain custody of the firearms at a separate location.
Complaint [# 1].
Complaint [# 1] at ¶ 140. The Complaint actually indicates that he notice referred to § "9.30" of the Mental Hygiene Law, but that was a typographical error. Docket No. [# 24-3] at p. 3.
As will be discussed further below, NYSP used a particular form letter to make this notification. Pl. Prelim. Inj. Motion, Exhibit Group G, Ex. 23.
It is unclear to the Court why the Sheriff suspended Montgomery's license, as opposed to revoking it, since as discussed earlier, the fact the Montgomery was classified as having been involuntarily committed should have resulted in the immediate revocation of the license. See , PL §§ 400.00(1)(j) & (11)(a) & (c) & 400.02 (Indicating that persons who have been involuntarily committed are not eligible for firearms licenses, and that if a person who holds a firearms license later becomes ineligible, his license is revoked).
State Defs. Mtn to Dismiss, Ex. 14.
Montgomery's Article 78 proceeding did not mention MHL § 9.46.
The Complaint acknowledges that MHL Article 9 contains provisions for "involuntary commitment" that existed "prior to the effective date of MHL § 9.46." Complaint [# 1] at ¶ 25.
This bare assertion is disproven by Plaintiffs' own submissions. In that regard, Plaintiffs have submitted a form letter from NYSP advising the local licensing authority that Montgomery's license should be revoked based upon involuntarily commitment/
Memorandum [# 4] at p. 1; see also ,
Docket No. [# 3-2].
The Court notes that in the transcript of the Assembly Debate, Exhibit Group B, Ex. 3, at p. 42, MHL § 9.46 is referred to as a "mandatory reporting" provision. OMH also refers to § 9.46 as a "mandatory reporting requirement." Pl. Prelim. Inj. Motion, Exhibit Group D, Ex. 5, OMH Guidance Document at p. 3.
Prelim. Inj. Motion, Exhibit Group D, Exs. 9A-9D. These documents pertain to persons who have been reported to NICS as having been involuntarily committed or adjudicated a mental defective, and who have therefore been disqualified from having firearms under
Karl Bechler is presently a plaintiff in this action, though he was not at the time that Montgomery filed the preliminary injunction motion.
See, generally , The Wall Street Journal, https://www.wsj.com/articles/no-headline-available-1396387892 ("It is one of the most powerful tools available to New York's governor: the so-called message of necessity, which allows immediate votes on complex legislation that otherwise could have had days of debate."). Plaintiffs' submissions indicate that Cuomo used this process to keep a veil of secrecy over the details of the proposed SAFE Act, which involved certain prohibitions involving "assault rifles," in part to avoid a spike in purchases of such rifles prior to enactment of the law.
See , Pl. Memo of Law [# 4] at p. 19 ("The Governor, the Assembly Speaker, and the Senate Majority Leader completed the Bill behind closed doors, even without input from their own conferences."). Plaintiffs do not, however, maintain that the procedures followed during passage of the act violated any laws. Plaintiffs also assert that Cuomo would not have had sufficient time between the Newtown School Shootings and January 2013 to draft a comprehensive piece of legislation like the SAFE Act, implying that Cuomo already had the SAFE Act legislation prepared, and merely exploited the Newtown murders as a justification for obtaining quick passage of the SAFE Act. State Defendants point out, however, that the Newtown murders were just the latest in a long line of mass murders by gun-wielding mentally ill persons who had exhibit clear signs of dangerousness before they killed, but who were nevertheless able to buy or obtain guns. See , Defs. Mtn to Dismiss, Ex. 37.
Pl. Memo of Law [# 4] at p. 22.
Pl. Memo of Law [# 4] at p. 19. But see , City of Greensboro v. Guilford Cty. Bd. of Elections ,
Pl. Memo of Law [# 4] at p. 20.
Pl. Memo of Law [# 4] at p. 21.
Pl. Memo of Law [# 4] at p. 24.
See , Gibbs v. Babbitt ,
Prelim. Inj. Motion, Exhibit Group C, Exhibit 4, Transcript of NYS Senate hearing on May 31, 2013.
Prelim. Inj. Motion, Exhibit Group C, Exhibit 4, Transcript of NYS Senate hearing on May 31, 2013 at p. 11. Although, as noted earlier, OMH indicates that persons who are involuntarily admitted on an emergency basis usually also meet the standard for filing a report under § 9.46.
Prelim. Inj. Motion, Exhibit Group C, Exhibit 4, Transcript of NYS Senate hearing on May 31, 2013 at p. 22; see also , id. at p. 40, testimony of Seth Stein ("[T]hey're reporting anybody.").
Prelim. Inj. Motion, Exhibit Group C, Exhibit 4, Transcript of NYS Senate hearing on May 31, 2013 at p. 11.
Prelim. Inj. Motion, Exhibit Group D, Ex. 11 at p. 3.
Prelim. Inj. Motion, Exhibit Group D, Exhibit 11 at p. 4.
Pl. Memo of Law [# 4] at p. 2. Such statement reflects a disconnect in Plaintiffs' papers between the MHL § 9.46 reporting standard and involuntary commitment.
Pl. Prelim. Inj. Motion, Exhibit Group D, Ex. 5, OMH Guidance Document at p. 2. By implication, therefore, OMH's guidance documents do not encourage or condone filing § 9.46 reports against "everyone who walks through the Emergency Room doors."
Pl. Prelim. Inj. Motion, Exhibit Group D, Ex. 5, OMH Guidance Document at p. 3 (emphasis added). In view of this, it is difficult to understand Plaintiff's suggestion of "false marketing of the statute by OMH." Docket No. [# 9] at p. 3.
Pl. Prelim. Inj. Motion, Exhibit Group D, Ex. 5, OMH Guidance Document at p. 2.
Pl. Memo of Law [# 4] at p. 3 (referring to New York State's "disregard of... HIPAA.").
Pl. Memo of Law [# 4] at p. 3 (The application contends that HIPAA provides "the gold standard" for disclosure of private health information, and that MHL § 9.46 falls short of that standard.)
Plaintiff's application admits that MHL § 9.46 is "mandatory" within the meaning of § 164.512(a), see , Pl. Memo of Law [# 4] at p. 5, referring to MHL § 9.46 as a "mandatory reporting system." See also, id. at p. 17, noting that OMH materials are "replete with references to 'mandatory' reporting).
See also , Docket No. [# 9], Capanna letter dated January 23, 2015 ("[We] are [not] seeking to challenge the pre-existing structure of Mental Hygiene Law Article 9.")
Defendants stated that a transfer under
Defendants indicated that Plaintiff became ineligible to have firearms not pursuant to MHL § 9.46, but pursuant to
Docket No. [# 9], Capanna letter dated Jan. 23, 2015 at p. 4 ("The letter from the hospital [indicating that Montgomery was reported as having been involuntarily committed, rather than having been reported under MHL § 9.46 ] is not dispositive of Mr. Montgomery's standing to challenge MHL § 9.46. Simply put, the letter does not make sense. The medical records do not support the tag of an 'involuntary commitment." State agencies are responsible for periodic data uploads into the NICS Index; not private medical providers. And the person [hospital employee] who spoke to Mr. Montgomery indicated every person going through the Emergency Room doors was tagged 'involuntary commitment,' which jives with Attorney Wolkenbreit's testimony that various hospitals were reporting every patient being admitted through the Emergency Department to OMH for ISARS purposes.").
Plaintiff's counsel stated that the purpose of such amendment would be to "implead" additional plaintiffs into the case, who resided in the Western District. In response to such statement, one of the defendant's attorneys opined that even if such an amendment occurred, Montgomery would lack standing to challenge Mental Hygiene Law § 9.46, since he was actually disqualified from possessing guns under a different section of law, Mental Hygiene Law § 9.39, based upon having been involuntarily committed.
Amended Complaint [# 14] at p. 77.
Amended Complaint [# 14] at p. 79.
Amended Complaint [# 14] at ¶ 345.
Amended Complaint [# 14] at ¶ 12.
See, e.g. , Amended Complaint [# 14] at ¶ ¶ 128-129, 134-140.
Amended Complaint [# 14] at ¶ 205.
State Defs. Motion to Dismiss, Ex. 25. As will be seen later, the Amended Complaint [# 14] appears to intentionally omit the reason why the police would have been concerned about firearms, over even have known that Carter had firearms. The reason is that Carter's wife told the 911 operator that Carter had a pistol under his pillow.
Amended Complaint [# 14] at ¶ 209.
Amended Complaint [# 14] at ¶ 221. This quote does not reference a particular section of the SAFE Act. As already noted, this could have been reference to MHL § 9.46 or to PL § 400.00(1)(j), or to some other provision of the SAFE Act.
Amended Complaint [# 14] at ¶ ¶ 224-225.
Docket No. [# 28-1], Exhibit Group I, Ex. 38.
Amended Complaint [# 14] at ¶ 254.
Amended Complaint [# 14] at ¶ 255.
Amended Complaint [# 14] at ¶ 255.
Amended Complaint [# 14] at ¶ 273.
State Defs. Motion to Dismiss, Ex. 31, NYSP arrest report.
Amended Complaint [# 14] at ¶ ¶ 279-280.
Amended Complaint [# 14] at ¶ ¶ 284-286.
Prelim. Inj. Motion, Exhibit Group H, Exhibit 37.
As will be discussed further below, in support of State Defendants' motion to dismiss, they submit an affidavit indicating that DCJS's records use the term "MHL § 9.41" to refer to all various types of emergency involuntary admissions under MHL Article 9. See, Aff. of Donna Marie Call at ¶ 9, n. 1. However, that affidavit does not indicate, nor is there any other evidence, that DCJS or OMH conflate MHL § 9.41 with MHL § 9.46. Moreover, paragraph 134 of the Amended Complaint, cited above, was clearly not based upon such affidavit, because the affidavit was not filed until after the Amended Complaint was drafted.
See , Docket No. [# 28] at ¶ 5.
At times, DeMarco's papers seem to conflate the concepts of improper venue and inconvenient venue.
DeMarco Memo of Law [# 22-4] at p. 12 ("[T]the Sheriff's Office acted lawfully in complying with and enforcing a presumptively valid and constitutional state statute, the SAFE Act, Penal Law §§ 400(1)(j) & 400(11)(b), in suspending Montgomery's pistol license, confiscating his firearms, and subsequently cancelling [his] pistol license when he relocated without applying for a transfer of the license under Penal Law § 400(5)(a).").
DeMarco Memo of Law [# 22-4] at p. 20.
DeMarco Memo of Law [# 22-4] at p. 21 (citing Spinelli v. City of New York ,
On January 5, 2015, Montgomery commenced an Article 78 proceeding against DeMarco's office in New York State Supreme Court, Suffolk County. The Article 78 petition requested, inter alia , an order vacating the revocation of Montgomery's pistol permit.
de Reeder Aff. [# 24-1] at ¶ 2.
Citing, inter alia , Thomas v. Beth Israel Hosp., Inc. ,
Memo of Law [# 24-3] at p. 14.
Exhibits 1-38 attached to the Notice of Motion; Exhibits A-C attached to the Declaration of Donna Marie Call; and Exhibit A attached to the Declaration of John B. Allen, Jr.
Aff. of John B. Allen, Jr. at ¶ ¶ 19-20; see also , Aff. of Donna Marie Call at ¶ ¶ 18-21, 23-24.
Aff. of John B. Allen, Jr. at ¶ 21 ("Therefore, the purported suspension of [Carter's] pistol permit was done by the local licensing official without any information provided pursuant to the MHL § 9.46 reporting system or any data provided to the federal NICS database by New York State."); see also , Aff. of Donna Marie Call at ¶ 22.
See , State Defs. Memo of Law in Support of Mtn to Dismiss at p. 19 ("[T]he suspension was ordered by the local licensing officer, Ontario County Judge Frederick Reed, before any § 9.46 report as to Bechler was ever submitted to DCJS. The suspension order itself makes plain that it was issued by Judge Reed based on his discretion as a licensing officer 'as provided by Section 400.00 of the Penal Law,' not MHL § 9.46. Thus, Bechler cannot meet his Article III burden of demonstrating the suspension was 'fairly traceable' to MHL § 9.46.") (citations omitted); see also , Aff. of John B. Allen, Jr. at ¶ ¶ 22-23 (Indicating that Bechler was reported to OMH as having been involuntarily committed on September 6, 2013, and was then reported under MHL § 9.46 on September 10, 2013, while he was still in the hospital).
Def. Mtn to Dismiss, Ex. 31 at p. 4.
Def. Mtn to Dismiss, Ex. 31 at p. 6.
Aff. of John B. Allen, Jr. at ¶ 22.
Aff. of John B. Allen, Jr. at ¶ 23; see also , Aff. of Donna Marie Call at ¶ 25 (describing the chronology of the reports that were filed against Mr. Bechler).
Docket No. [# 28-2] at p. 45.
Montgomery Aff. [# 3-2] at ¶ ¶ 10, 22, 27-29, 32, 33.
As already discussed, State Defendants have submitted affidavits stating that Bechler was reported as having been involuntarily committed days before a report was filed under MHL § 9.46. See, e.g., Aff. of Donna Marie Call at ¶ 25.
Pl. Memo of Law [# 28-2] at p. 48 ("Mr. Bechler's permit review was conducted under the auspices of the NYS Police '9.46' letter, which was provided by the Court to his Counsel.").
Def. Mtn to Dismiss, Ex. 31 at pp. 4, 6. NYSP notified Ontario County of the MHL § 9.46 report by letter dated September 17, 2013. Def. Mtn. to Dismiss, Ex. 34.
Pl. Memo of Law [# 28-2] at p. 46.
Capanna Aff. [# 28] at ¶ ¶ 35, 37-38.
Pls. Response [# 28] at ¶ 7.
Pl. Memo of Law [# 28-2] at p. 52.
Pl. Memo of Law [# 28-2] at p. 52.
Docket No. [# 28-2] at memo p. 52.
Pl. Memo of Law [# 28-2] at pp. 6-12.
Pl. Memo of Law [# 28-2] at p. 26-31. Plaintiffs also contend that there is no procedure available to challenge a report under MHL § 9.46. Id. at p. 26. ("[T]here is no pre- or post-termination process for the '9.46' and no meaningful process for the '9.41' classifications.").
Plaintiffs also assert that an Article 78 proceeding would be useless, because even if they prevailed in such a proceeding, the local licensing officer would conduct a sham hearing. Pl. Memo of Law [# 28-2] at p. 30. This argument is entirely inaccurate, and is based on a misunderstanding of Suffolk County's papers. In particular, the County indicated only that New York State law currently does not provide local licensing officials with discretion as to whether to suspend or revoke a firearms license once notification has been given under § 9.46 or a similar statute. The County stated, therefore, that if it attempted to conduct a pre-deprivation hearing, the proceeding would be a sham, since it would be contrary to the current statutory scheme. The County never indicated that it would refuse to comply with a court's direction following an Article 78 proceeding.
Pl. Memo of Law [# 28-2] at p. 20 ("The State is motivated to procure patient reports to secure federal funds and advance towards Executive-centric power."); see also , id. at p. 21 ("The financial incentives to states for reporting are enormous.").
Pl. Memo of Law [# 28-2] at pp. 21.
Pl. Memo of Law [# 28-2] at pp. 22-24. Regarding the relationship of MHL § 9.46 to a governmental objective of preventing gun violence by mentally ill persons, Plaintiffs submit a journal article concerning threat assessment, which concludes, in part, that "extremely rare events such as school homicide, workplace violence, or assassination do not lend themselves well to predictability with statistical equations. Additionally, the extent to which existing knowledge about criminal offenders and people with severe mental illness will generalize to other populations... has yet to be determined." Pl. Resp. [# 28-1], Exhibit Group I, Ex. 40. Plaintiffs also submit literature suggesting that violence by persons with serious mental illness is rare, and that laws linking mental illness to gun control may deter people from seeking treatment. Docket NO. [# 28-1], Exhibit Group I, Ex. 41.
Pl. Memo of Law [# 28-2] at pp. 38-42.
Pl. Memo of Law [# 28-2] at p. 42.
The County further observes that Plaintiffs have not challenged, or even mentioned, the County's explanation that Montgomery's pistol license was properly cancelled after he moved to a different county without first notifying Suffolk County.
State Defs. Reply [# 33] at p. 3.
The Court addresses the motion to seal in a separate Decision and Order.
Capanna Aff. [# 45] at ¶ 4.
Capanna Aff. [# 45] at ¶ ¶ 4-6. The assertion that Plaintiffs are challenging the involuntary commitment procedures under MHL Art. 9 as being inconsistent with
On September 12, 2016, Eastern Long Island Hospital also submitted a letter commenting on Plaintiffs' response to the Court's Order to Show Cause.
Email from Catherine Brennan dated February 6, 2017.
Brennan Supplemental Affirmation at ¶ 3. In particular, the noted from Nurse Practitioner Malcomson stated, in pertinent part: "He is so frantic about not sleeping and his ego functioning is so poor he is 'begging to be sedated.' He is in need of hospitalization to stabilize his anxiety, psychotic thought processes and to sleep. Dr. Klages has contacted Dr. Hubercamp [Hoverkamp] regarding this.").
Brennan Supplemental Affirmation at ¶ 5.
Brennan Supplemental Affirmation at ¶ ¶ 4, 7.
Brennan Supplemental Affirmation at ¶ 6.
Brennan Supplemental Affirmation, Ex. 1.
Brennnan Supplemental Affirmation, Ex. 1.
Brennan Supplemental Affirmation at ¶ 9.
Brennan Supplemental Affirmation at ¶ 13.
de Reeder Aff. dated February 19, 2015, at ¶ 6.
Letter of William J. Taylor, Jr. dated March 13, 2017.
Plaintiffs' counsel wrote that, "It is unclear why the Court has progressed the matter in the direction it took since May 2016, several months after what was thought to be the final written submissions on the Defendants' motions." The Court can only encourage Counsel to re-read the Court's Order [# 43], which explains exactly why the Court was seeking additional information.
Unlike the other defendants, the County does not allege that Montgomery lacks standing to challenge MHL § 9.46. Indeed, the County's motion includes at least two references to MHL § 9.46 which imply such statute played some unspecified role in DeMarco's suspension of Montgomery's license. See , DeMarco Memo of Law [# 22-4] at p. 1 (referencing Penal Law § 400.00(11)(b), which relates to MHL § 9.46 ) and p. 15 (referencing MHL § 9.46 ). However, the County's references to MHL § 9.46 and PL § 400.00(11)(b) appear to based upon a mistaken reading of the law by the County's counsel, since DeMarco claims that the only notice his office received concerning Montgomery was that Montgomery had been adjudicated a mental defective or involuntarily committed, and was therefore ineligible to have firearms pursuant to
See, e.g., Anderson v. Holder ,
Moreover, where the contested basis for standing is also an element of the plaintiff's claim, the district court should not dismiss for lack of subject-matter jurisdiction, but should find that jurisdiction exists and proceed to address the alleged deficiency under Rule 12(b)(6). Nowak v. Ironworkers Local 6 Pension Fund ,
Ford v. Strange ,
As noted above, the second showing required under the basic standing analysis is that "(2) that the injury is 'fairly traceable' to the challenged action of the defendant." This wording seems to assume that both the injury and the challenged action are known, and that what must be shown is a connection between the two. Such a causal connection cannot be shown without first establishing the specific nature of the challenged action.
Capanna Aff. [# 45] at ¶ 4.
The Court's statement on this point is not based upon anything set forth in the pleadings, but is primarily pieced together from stray remarks in Plaintiffs' briefs generally and a very generous reading of Plaintiffs' submission [# 45] filed on September 1, 2016.
This calculation does not include the paragraphs relating to plaintiff "M.M.," who is no longer a party to this action.
Amended Complaint [# 14] at ¶ ¶ 221, 234, 255, 288.
See, Amended Complaint [# 14] at p. 2 "NATURE OF THE ACTION."
Again, Plaintiff's counsel has explained that she concluded that Montgomery must have been reported under MHL § 9.46, because the Hospital's claim that Montgomery had been involuntarily committed did not "make sense" to her. Docket No. [# 9], Capanna letter dated Jan. 23, 2015 at p. 4.
Celli v. Cole ,
Amended Complaint [# 14] at ¶ 221.
Pl. Memo of Law [# 28-2] at p. 54, memo at p.47 ("Mr. Carter's chart contains a '9.41' within one page of medical notes.").
Amended Complaint [# 14] at ¶ 255.
Amended Complaint [# 14] at ¶ 255 (emphasis added).
To the extent that Bechler is challenging this chronology, the Court finds that Defendants have established that the MHL § 9.46 report was not filed until days after Bechler had already been involuntarily committed.
Decl. of William J. Taylor, Jr. dated Feb. 26, 2015, Exhibit 33, "Order Suspending Pistol Permit."
Aff. of Donna Marie Call dated Feb. 25, 2015, at ¶ 22.
See , Aff. of Donna Marie Call dated Feb. 15, 2015, at ¶ 25; Aff. of John B. Allen, Jr. dated Feb. 25, 2015, at ¶ ¶ 22-23.
For example, involuntary commitment results in an NICS report, whereas an MHL § 9.46 report does not.
Under the circumstances of this case, where two-of-three defendants moved to dismiss for lack of standing on grounds that are equally applicable to Suffolk County, Plaintiffs have had a full and fair opportunity to brief the standing issue, a cannot claim to be prejudiced by the Court's sua sponte dismissal on this ground of the claims against Suffolk County.
See also, Prof'l Traders Fund, LLC v. Prairie Oil & Gas, Inc. ,
Pl. Memo of Law [# 28-2] at p. 50, memo at p. 43 ("[I]f this Court is in any way inclined to otherwise dismiss the Plaintiffs' Amended Complaint... then the Plaintiffs respectfully request that the Court accept the filing of the Second Amended Complaint.").
Docket No. [# 28] at ¶ 1.
Docket No. [# 28-2] at pp. 49-50 (Memo of Law at pp. 42-43).
Such rule states in pertinent part that "the amendment(s) or supplement(s) to the original pleading shall be identified in the proposed pleading through the use of a word processing "redline" function or other similar markings that are visible in both electronic and paper format." Plaintiffs' proposed Second Amended Complaint [# 28-3] does not contain any identification of newly-added material or omitted material. Instead, Plaintiff's counsel has merely applied the "strikeout" feature to the words "Second Amended Complaint" and the date at the end of the pleading. This resulted in the Court having to compare the proposed amended pleading with the Amended Complaint [# 14], paragraph by paragraph.
Docket No. [# 28-3] at ¶ ¶ 153-154.
Docket No. [# 28-3] at ¶ 155.
Docket No. [# 28-3] at ¶ ¶ 331-365.
The fact that a medical provider filed an MHL § 9.46 report concerning a person who had been involuntarily committed would not be indicative of confusion, because the standard for involuntary commitment and for filing a § 9.46 report is essentially the same, and the two provisions are not mutually exclusive.
Plaintiffs maintain that part of what they are seeking in this action is to "remove the medical provider from the position to which the State has elevated it, namely, making the sole determination as a matter of state and federal law whether an individual is disqualified from all rights under the Second Amendment in a non-adjudicatory setting." Pl. Memo of Law] [# 28-2] at p. 53, memo at p. 46; see also , Capanna letter dated April 25, 2017 ("None of the medical records of the Defendants [sic] are relevant to the legal inquiry of whether any [of the Plaintiffs] were 'involuntarily committed' in accordance with
Plaintiffs have urged this Court not to rely upon Waters , because "[i]t was decided in 1994," and was wrongly decided. Pl. Memo of Law [# 28-2] at pp. 47-48, memo at pp. 40-41). The Second Circuit apparently does not share Plaintiffs' view of Waters ' precedential value.
See , Yefimova v. Bank Trustco , No. 117CV00403TJMTWD,
For example, instead of amending their pleadings to address legitimate problems identified by the Defendants' motions to dismiss, such as standing, Plaintiffs blithely argued that Defendants' motions somehow actually strengthened their case. See, e.g. , Pl. Memo in Opposition to Motions to Dismiss [# 28-2] at p. 1 ("Far from serving as a mechanism to defeat the Plaintiffs' case, the Defendants' Motions support and enhance the Plaintiffs' claims."). Plaintiffs also misstate or misinterpret the legal arguments being raised by Defendants, as shown by such incorrect and histrionic statements as this: "Defendants treat the term 'involuntary commitment' as a generic term, synonymous with 'mental illness,' 'likely to commit a crime with a gun,' and the functional equivalent of 'convicted criminal serving a life sentence without possibility of parole." (Pl. Memo of Law [# 28-2] at p.17, Memo at p. 10).
Pl. Memo of Law [# 28-2] at p. 49, memo at p. 42).
Again, MHL § 9.46 is not a commitment statute.
See , Memo of Law [# 4] at p. 10 ("All processes for involuntary (and even for voluntary) commitment [under MHL Art. 9] include notice, attorney, and judicial review provisions. All provisions under Art. 9 that is, except for MHL § 9.46."); see also , Docket No. [# 9], Capanna letter dated January 23, 2015 ("[We] are [not] seeking to challenge the pre-existing structure of Mental Hygiene Law Article 9.")
Subject, of course, to the applicable statute of limitations.
See, e.g. , Wagner v. Stout St. Fund I L.P. , No. 13-CV-4256 MKB,