Amy Barnhorst MD

In Crisis

Court Restores Gun Rights to Violent, Delusional Man

A recent case in Oregon highlights a dangerous gap, and a law that fills it.

Posted Dec 07, 2018

J.P. had begun to believe that the mafia was monitoring him and that they had deployed operatives to follow him to Oregon when he moved from California. He thought a tracking chip had been implanted in his neck, that robotic birds were conducting surveillance on him, and that he was being watched through his cell phone, which he destroyed in a fit of rage. At one point, he was sleeping with a shotgun under his bed to defend himself, despite a prior arrest for carrying a handgun illegally. The day before he was psychiatrically hospitalized, he told his mother that he couldn’t take it anymore and was planning to kill the people who were after him. He also had a history of domestic violence, having broken his girlfriend’s nose in an argument a few years earlier. He also was a long-term user of alcohol, methamphetamine and marijuana. This month, the Oregon Court of Appeals restored J.P.’s right to own a firearm.

J.P. (the name given in court documents) was appealing a previous ruling in which a judge deemed that his mental illness caused him to be dangerous enough to be involuntarily committed to a psychiatric hospital for treatment. Federal law prohibits anyone “committed to a mental institution” from owning or purchasing a firearm, so as a result of the original ruling, he would have been barred from having a gun in the future.

But J.P. appealed and successfully argued that he was not, in fact, sufficiently dangerous to have his civil liberties so restricted, and his original psychiatric commitment was overturned. Because the firearm prohibition was tied to the original commitment, it was also was overturned. From the perspective of a psychiatrist who does violence risk assessments, the one good thing I can say about this is that the Oregon Court of Appeals has done an excellent job showing why the mental health system is not an effective way to prevent potentially violent people from having guns.

In the world of violence risk assessment, this man checks all the boxes. A history of prior violence is one of the best predictors of future violence, and incidents of domestic violence are common among perpetrators of not just individual violence, but public mass shootings. Alcohol decreases inhibitions and methamphetamine can exacerbate paranoia; both have been shown to increase a person’s risk of violence. So does access to a gun. And paranoid delusions that someone is trying to kill you can drive even the most mild-mannered of people to extreme lengths to protect themselves. J.P. is a man with anger problems, a predilection for judgment-dampening substances, and access to weapons, who truly believes that his life is in danger because of his delusions. It’s hard to imagine what could be added to this clinical picture to make him sound more dangerous.

So what on earth was the Oregon Court of Appeals thinking in allowing him to become a legal firearm owner? If he does go on to commit some horrible act of violence, lots of people will be asking this.

It’s important to remember that the question set to the court was not specifically whether J.P. could be a safe and responsible gun owner. It was whether or not he met the stringent standards for involuntary psychiatric commitment, which require that he have a mental illness that was making him dangerous. While he had many risk factors for violence, most were not related to his delusions. The court did not see his domestic violence, substance use and firearm violations as relevant to his psychiatric hospitalization. He hadn’t done anything violent yet because of his beliefs about the mafia, and they didn’t think he would be able to make good on his threats – specifically, that he was going to hang his unnamed stalkers, which they reasoned would be logistically difficult.

So with that, they chose to restore J.P.’s freedom: the freedom to not be locked in a psychiatric facility for up to six months of his life. His freedom to be a lawful gun owner was an incidental bonus attached to that ruling.

Despite the court’s opinion that he did not meet commitment criteria, few people who read J.P.’s story likely feel enthusiastic about his gun ownership. Fortunately, in Oregon, there is a way to restrict his access to lethal weapons without locking him in a hospital. In 2017, Oregon followed on the heels of Washington and California in passing an Extreme Risk Protection Order (ERPO) law. These types of orders close an important gap that opens up when the psychiatric system can’t hold someone who doesn’t meet the thresholds for involuntary treatment, and the criminal justice system can’t arrest them because they haven’t committed a crime yet.

ERPOs allow law-enforcement or families to petition the court to prevent someone at risk for violence (or suicide) from buying guns temporarily and to remove any guns they may already own. They don’t require that person to meet civil commitment standards, or even to be psychiatrically ill, just that there be evidence of immediate risk. In J.P.’s case, his history of domestic violence, brandishing a weapon, and substance use would all now be relevant to the court.

In the few years they have been in use, law enforcement officers have used these orders to thwart workplace shootings, domestic violence, suicides, terrorist attacks and mass shootings. While they do temporarily restrict someone’s liberty to own a gun, they also decrease a dangerous person’s means to act lethally on their violent or suicidal thoughts. In cases where that person is mentally ill and facing hospitalization, that risk reduction may ultimately allow them to be released and go home, though bar them from buying a gun temporarily. And in cases where mental illness is not contributing to the violence risk, these orders can provide law enforcement with a novel means to separate dangerous people from their guns before they act.

After a mass shooting is perpetrated by someone who had recent contact with the mental health system, it’s easy to point the finger and say that this should have been prevented, that they should have never been allowed to buy a gun. But in this case, we have an opportunity to see the process going forward instead of retrospectively, and it illustrates the difficulties with using psychiatric commitment as a way to get guns out of the hands of dangerous people. The question at hand for both the psychiatrists and the courts who preside over commitment hearings is whether or not the person is dangerous enough to need hospitalization due to their mental illness, not whether they should be allowed to own guns. Let us hope in this case, the price of J.P.’s liberty was worth the risk.