The TEXTUAL constitution does not, decisional/common law does.
There is nothing in the Constitution about abortion, yet decisional law, Roe v. Wade addresses that.
There is nothing in the Constitution about interracial marriage, or any marriage for that matter, yet decisional law, Loving v. Virginia, prohibits a state from forbidding such.
See the legal drift?
If you are even suspected of being mentally ill, or if someone else says you are mentally ill, you lose your rights.
There are lots of cases where that is the case, especially with guns. For instance:
Thanks to the Lautenberg Amendment, someone convicted of any crime related to domestic violence loses their right to possess firearms. Sounds OK, right? Wrong. There are numerous cases where the woman gets pissed off, calls the cops, and then finds that she can’t retract the accusation. It is out of her hands. A plea constitutes a conviction, and a court battle with an uncertain outcome costs a lot of money. Just like that, banned for life. If military, discharged.
A person charged with a crime that carries a potential jail sentence of one year cannot purchase a firearm. That includes misdemeanors unrelated to guns like Driving Under the Influence of Alcohol or tax delinquencies. Note that conviction is not required, just the pending charges.
A person on probation for ANYTHING cannot possess a firearm. That is typically a condition of probation, as is abstention from consuming alcohol.
Have you ever perchance looked at the BATFE Form 4473? Note that answering any of those questions falsely constitutes perjury and that through the check they will find out the truth anyway. That said, rarely is the person charged for committing a Federal felony.
The point is that mental health is but one part of the check. There are numerous ways for the government to deny you, and they have zero qualms about doing it. They don’t know you from Adam and they don’t owe you anything.
My wife works for the public mental health care provider in our county. She is involved in many voluntary and involuntary psychiatric holds. She is better versed in this process than I, but I certainly have heard a lot.
If a person is an immediate threat to himself or others, the police can and do intervene. If nothing else, they arrest the person. Mental illness is not an issue in the immediate sense.
If the police suspect that a person has a mental illness, they are brought to my wife, or my wife goes to them (at the jail or hospital). She is not a doctor. She has a strict protocol that she follows. She examines the individual and asks specific questions. She asks those questions in specific ways, so as not to lead the individual. If the individual responds in certain ways, she will render an opinion that the individual is mentally ill and an immediate harm to himself or others.
Then, she takes her recommendation of involuntary commitment to a magistrate. This can be a county judge or a justice of the peace. She recommends involuntary commitment, but it is the magistrate who issues the order. It is on his responsibility if he is right or wrong. I don’t believe any magistrate has gone against her recommendation, though they do ask questions.
Once the order is given, my wife goes about finding a place for the individual to go. Usually, that is a public mental health facility in Austin. Sometimes (often), that is full and she has to turn to facilities farther away – sometimes hundreds of miles farther away. Once she finds a place that will take the individual, a police officer or county deputy will take the person (in handcuffs or chains) to the facility.
That is my understanding of the process in Texas. It is not some doctor deciding that you need to go, so off you go. The police can confine an individual who is a threat of harm. A judge sends you off for longer. The incarceration is rarely for longer than a few days. In Texas, there simply isn’t any money spent on holding them for longer.
It is also important to remember that it is not illegal to be crazy. It is not illegal to be odd or to do odd things. You can’t be locked up because you’re weird.
This is not true in any way. Not in Texas, anyway.
Of all the possible issues the mentally ill have with our society, from treatment to housing to jobs, this one, gun rights, is top most on your list? Can we talk about other rights issues for the mentally ill, or are guns the actual topic here?
There is no list. I don’t even regard gun rights for the mentally ill an issue. I was simply curious given the heavily defended second amendment and the reverence for the US Constitution sanctioning specific rights for all Americans how your society gets around that to legally and without objection deny gun rights to the mentally ill.
Feel free to take this thread to broader issues, or better yet, you might want to start your own. I’d be interested , because mental illness is in my family.
Back on topic, Its news to me regarding the English Common Law angle. Has it ever been used in a Supreme Court challenge ?
Nor in California. When my mother was suicidally depressed, we looked into the procedures to have her committed against her will, and found it wasn’t possible. There are too many protections in place. In general, this is a good thing, however, in her instance, not so good: she killed herself (pistol.) So, no: the rights of the mentally ill are still very, very well protected, even to the point of allowing them to be dangerous to themselves.
It’s a classic case of “too much” and “too little.” There is no single right answer, no “one size fits all” approach. If we put everyone in an institution who was dangerous to himself or herself, the asylum population would increase 20-fold or more. If we released everyone who declared, “I’m perfectly fine” the asylum population would decrease drastically. Scylla and Charybdis.
What have these two dopers got to do with your post ?
Bricker or one of our other scholars might know.
I am guessing that there would not typically be a conflict. The Constitution generally sets forth the powers and duties granted to various branches of government, then goes on to set limits on what the government can do. Common Law fills in the gaps for the innumerable nooks and crannies that are not explicitly laid out. If the Constitution explicitly conflicts with Common Law, the Constitution prevails. If the Constitution is silent on the matter, Common Law prevails by default, not by overriding the Constitution.
We are watching some of this being hashed out right now in regard to Gay Rights, particularly Same Sex Marriage. Common Law pretty much presumes that marriage is heterosexual. The presumption is so ingrained, that there is probably very little actually expressed on the topic. (In contrast, there are numerous express prohibitions against polygamy or bigamy.) So now the Supreme Court gets to wrestle with the conflict of the expression of Rights that are explicitly and implicitly guaranteed by the Constitution vs the presumption (that may not have actually been expressed) regarding heterosexual marriage in Common Law.
Law watching can be fun–or tedious.
Scylla and Charybdis… The wisest place to sail is between them!
Let me see if I can craft a non-kneejerk response.
There are people who are in a mental condition such that they can’t take care of themselves worth a damn.
There are other people who are in a mental and/or emotional condition such that they are inclined to do themselves deliberate harm.
Then there are people who are in a mental and/or emotional condition such that they may be dangerous to other people, either deliberately or through an inability to realize the dangerous outcome of things that they are doing.
Society has decided over a long stretch of time that we should intervene in these cases, in the first two instances out of concern for the people with the beforementioned mental conditions and in the latter instance out of concern for the rest of us.
Now switch focus to rights. This is actually a newer framework; historically it has not necessarily been the case that individuals could expect to be free of incarceration except after due process, after being charged with a specific crime, which in turn should be a violation of a law that is supposed to be written in such a way that the same rules apply to everyone, convicted by proof beyond a reasonable doubt that they actually did something in violation of that law, demonstrated to the satisfaction of (if they request it) a jury of their peers. These are enlightment notions, that we get to be free by default and that taking our freedom away is something the state only gets to do within narrowly constrained parameters.
The ideal of such rights protection has never been realized as a dependable actuality. We aspire to it (mostly) but the western countries that have ascribed to it in principle (including the US) have still held laws that applied to one category of people differently than another, and more to the point have engaged in actual practices that meant people did indeed get locked up without a trial or without any specific charges or without a jury that could be honesty said to be of one’s peers, and so on and so forth. All of which is true without pointing to mental hygiene practices, so here I am stipulating that rights are not honored and protected in a pristine fashion across the board to begin with.
But if I’m allowed to yearn for the ideal, and I think I am, then I’m being reasonable when I find it disturbing that we have this exception, one that is generally ignored:
You have the freedom to NOT be incarcerated unless you have actually done something which is in violation of a law, which you get charged with, tried in court, with an opportunity to defend yourself… UNLESS it is being done because it’s for your own good (you might do yourself harm or fail to take adequate care of yourself) or for the good of other people (that you might endanger) ??
I’m not questioning the reason we have that exception, but I assume you see why it’s problematic if it is very easy to say that a given apprehension and incarceration are for your own good or for the good of others any time that a disturbing person is “of concern” in some social context.
Now let’s consider mental hygiene statutes and laws to see how easy it is or isn’t and whether or not it created a dangerous exception to the “rights” perspective on freedom from incarceration. Apprehension and short-term (evaluative) incarceration takes place when a police officer believes sufficient cause exists to think a person is a danger to themselves or to other people. “Danger” means not only immediate violence but, at least w/regards to the “unto themselves” portion, also includes grave incapacity to take care of one’s self. This is all roughly parallel with getting arrested for a criminal violation, wherein a police officer can arrest you if they believe they have due cause to believe a crime has been committed and that you’ve committed it.
Were it an arrest, a formal charge would be placed so you would know what you were up against. To be fair, a person can be arrested and then not charged and simply released. This is something that does occur and it is someitimes used to briefly detain or inconvenience or remove unwanted / disturbing people who haven’t actually broken any laws, so there’s a non-ideal non-pristine criminal-system practice to take note of here. I bring this up because when it’s a detainment for mental health evaluation, no formal charges exist and a person who is unwanted or disturbing can be removed to a hospital and held for a few days and then released with a shrug. Not good, troubling to me as a civil libertarian, but once again roughly parallel to the criminal-system situation.
In most venues there is a finite period of time one can be held “for observation” before having the right to a psychiatric commitment hearing. The default appears to be 72 hours. So theoretically to hold you longer than that against your will would require a court hearing at which you get to present dissenting evidence and arguments. In practice, in some venues you can be held significantly longer than 72 hours if you were in fact brought in by the police as opposed to being held at the initial word of a psychiatrist (a “2-PC” commitment, wherein one psychiatrist orders a commitment and a second one, generally the one on duty at the admitting facility ward, concurs). And in practice, 72 hours is not the amount of time before they have to bring you into court to hold you longer, it’s the amount of time before the institution has to generate paperwork indicating their INTENT to seek involuntary commitment. There are some deplorable practices that exist at this stage of the game: intense pressure can be brought to bear on you as a patient to commit YOURSELF (voluntary commitment) and these pressures constitute threats and irresistible compulsion (in my opinion): you’ve got people locked up and isolated and you’re telling them certain privileges are only available if they commit themselves, telling them standard process for people who refuse to sign includes this or that frightening-sounding consequence, etc.
Back to the comparable criminal-system situation, despite the Constitutional guarantee of a “speedy trial”, people can be held in jail for a long time before a court hearing, and although there are bail hearings, the opportunity to get out of jail and return later for the court case is not an equal opportunity. But you get to have an attorney come in and see you and advise you and the police have to TELL you you have that right and the right to remain silent. In the psych institution no one is obliged to tell you that you have the right to consult a Mental Hygiene Legal Services representative, nor are you informed that you have a right to not talk to psychiatrists or other institutional personnel. You do not, in fact, have any such right. Silence on your part may well be viewed as a symptom.
At the court hearing stage, for criminal court you are presumed competent to answer the charges and required to do so (if only as far as entering a plea); you’re entitled to hear the evidence against you and to hear the specific charges read. You get to present counterevidence and to question witnesses testifying against you (or to have your attorney do so, which is how it happens more often). You are the beneficiary of an assumption of innocence and it is the burden of the prosecution to show beyond a reasonable doubt that what they alleges is in fact true.
For mental hygiene commitment, your court hearing may not be public but may instead take place on hospital grounds; you’ll appear in front of a judge who, in most venues, hears this type of case to the exclusion of other types of court cases, a mental hygiene judge. You are not entitled to hear any specific concrete evidence in support of the allegations about your mental condition. The specific ways in which you are alleged to be a danger to yourself or other people need NOT be spelled out. The judge may not permit you to speak AT ALL. The judge may not allow your mental hygiene legal services representative to present any evidence refuting any alleged facts. The burden of proof is NOT on the other party in any formal sense: the judge is supposed to make a decision based on the preponderance of the evidence. And in practice it’s considerably worse than that in many venues, an a priori assumption that the doctor would not be seeking to hold you unless you needed to be held (the equivalent of guilty until proven innocent), the assumption that the requested commitment is harmless to your interests (the complete lack of a recognized liberty interest on your part) and the belief on the part of many such judges that they themselves are not qualified to consider your dangerousness (since they are not doctors and it is considered to be part of the psychiatrist’s expertise to make such an evaluation). You do not get to be tried before a jury of your peers.
You do not get sentenced to a finite incarceration as you would in the criminal justice system; they hold you indefinitely. You are entitled to some periodic reevaluation by the court, though, and to be fair criminal justice system operations often sentence people to very long period which are then arbitrarily reduced adminstratively, which amounts to an indefinite sentence there as well.
On balance I think psych incarcerations do play fast and loose with civil rights to a more dangerous extent than the criminal justice system (although the latter isn’t perfect or pristine by any means), and as you can see the discrepancy gets worse the deeper you get in. Unless you have a very large faith that good people occupy the system and that only those who really need it would be held, this should disturb you. And if you have that kind of faith in the goodness of people in authority within a system, why not dispense with criminal justice protections? Would you argue that anyone in jail is in jail because they did a crime and deserve it? Should we dispense with the protections and just trust the police and simplify things? If not, why permit such an exception to be cut in your civil rights protections?
First, Im sorry about your mother. In regards to how her medical situation unfolded, I dont know the details of it, (such as was she taken to a hospital and turned away, or was she at home threatening suicide, etc.). The way the laws are set up, is that a person will be commited involuntarily under the section 5150 if he meets one or all of the following : he is a danger to himself, or he is a danger to others, or he is gravely disabled.
Usually doctors dont want to take a gamble on a patient commiting suicide, so if they have reason to believe that person may be a danger to themselves they often err on the side of caution, (which is a good thing, as we can see frm your mothers story). It sounds like what happened to your mom was somebody somehow dropped the ball, which is very regrettable, but fortunately that is not the norm in how these cases are handled
in upstate NY your spouse can call the police and report you as suicidal. no matter how calm rational or reasonable you are you get taken to the eR where he can slip the dr a couple hundred bucks to get you locked up for a week. at no time will you see anyone but orderlies. There’s a lovely big legal chart next to the nurses station that explains your “rights” to see other drs (or A doctor for that matter) lawyers, hospital admin, contact family members etc…none of which will happen.
whether this true for all of NY I don’t know, but I can very pointedly say that if have any form of “mental illness” (apparently my refusal to allow him to bring a 16 year old runaway into MY home for him to play bdsm games with was a mental illness on my part) you have about as many rights as a potentially rabid dog. Terrorists have more rights.
If this really happened to you as you describe, I suggest you drop everything and get yourself immediately to a good plaintiff’s lawyer because your claims should be worth a ton of money.
That is so far removed from anything I’ve seen my dozen years in the ER that I’m skeptical that it’s a air evaluation.
Actually, as presented, it would seem to be a wonderful case for a lucrative lawsuit. (Proving the “couple hundred bucks” aspect might be problematic, but the lack of records by the hospital staff of actual access to doctors should show up in their documentation–or lack of it.)
Yes. People are generally entitled to Due Process under the Fifth and Fourteenth Amendments. This includes due process to be afforded when the government is making a finding as to a status that would accordingly restrict some rights, such as when finding them guilty of a crime and ordering imprisonment or when adjudicating them not to be mentally competent and restricting their rights to gun ownership.
ETA: As a number of people already pointed out above.
Well sure, as presented, I’m just skeptical about the presentation.
The problem is where do you draw the line with mental illness.
Do you deny bipolar people guns?? Because that would mean a large part of the US population
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