Montgomery v. Cuomo

291 F.Supp.3d 303

Donald MONTGOMERY, Andrew Carter, Lois Reid and Karl Bechler, Plaintiffs,

v.Gov. Andrew M. CUOMO, Governor of the State of New York, Ann Marie T. Sullivan, Commissioner of the New York State Office of Mental Health, Michael C. Green, Executive Deputy Commissioner of the New York State Division of Criminal Justice Services, George P. Beach, II, Superintendent of the New York State Police, Vincent DeMarco, Suffolk County Sheriffs Department, Eastern Long Island Hospital, Defendants.

14–CV–6709 CJS

United States District Court, W.D. New York.

Signed March 5, 2018

Paloma A. Capanna, Esq., 633 Lake Road, Webster, New York, 14580, For Plaintiffs.

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 , 42 U.S.C. § 1983, alleging that these enactments violate the Federal statutory and constitutional rights of gun owners who seek mental health treatment. Plaintiffs further maintain that New York State is encouraging mental health treatment providers to file such reports against even non-dangerous patients, especially patients who are admitted to hospitals for any type of mental health treatment, because the State wishes to disarm its citizens and obtain financial incentives from the federal government in exchange for reporting such patients to the National Instant Criminal Background Check System ("NICS").¹ Now before the Court are Plaintiffs' application for preliminary injunctive relief (Docket No. [# 3] ) and Defendants' motions to dismiss (Docket Nos. [# 22][# 24][State Defendants' Motion] ). Defendants' motions to dismiss are granted, Plaintiff's motions for preliminary injunctive relief and for leave to amend are denied, and this action is dismissed.

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.² Adopted as part of the SAFE Act,³ MHL § 9.46 provides as follows:

§ 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 issued pursuant 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]." N.Y. Mental Hyg. Law § 9.01 (McKinney 2017). Article 41 of the Mental Hygiene Law requires each county (in order to be eligible for state aid) to maintain a Local Governmental Unit ("LGU") to oversee the delivery of mental health services within the county. See , MHL § 41.05(a). The DCS is the chief executive officer of the LGU, see , MHL §§ 41.05(c), 41.09, and is a county employee.

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.⁴

The ISARS system is used only to file reports under MHL § 9.46, and not to file reports that might be required under other sections of the Mental Hygiene Law. In that regard, mental health professionals access ISARS by going to the OMH website and clicking on links identified as either "NY SAFE Act" or "9.46 Reporting."⁵

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."⁶ To make such a notification, a DCS transmits information to DCJS using the Integrated Justice ("IJ") Portal.⁷ Such information is required to be limited to the patient's "name[ ] and other non-clinical identifying information." Mental Hygiene Law § 9.46(b).⁸ In other words, a DCS does not send DCJS information about a patient's diagnosis or the reasons why the patient is believed to be dangerous. When DCJS receives a § 9.46 report, it adds the patient's name to a state database created as part of the SAFE Act,⁹ and then checks to see whether the patient holds a New York firearms license or has applied for one. If so, DCJS notifies "the appropriate [firearms] licensing official" (usually a judge, sheriff or police commissioner).¹⁰ In particular, if DCJS finds that the patient reported under MHL § 9.46 has a firearms license, it notifies the New York State Police ("NYSP"), which double checks the firearms-license database and then provides notice to the licensing official.¹¹ Upon receiving such notice under MHL § 9.46, the "appropriate licensing official" must either suspend or revoke the patient's firearms license. Penal Law § 400.00(11)(b).

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

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