Supreme Court, Albany County, March 1, 2023

Letitia James, Attorney General (Meg Bailey of counsel), for petitioner.

John Doe, respondent pro se.

Petitioner New York State Investigator Hines (petitioner) commenced this proceeding under CPLR article 63-A seeking an order to keep respondent John Doe's (Doe) guns.^[FN1] The court held a hearing (CPLR 6343) and based upon the credible evidence and the fair inferences made therefrom the court now finds the facts as follows.^[FN2]

Doe lives in terrible discomfort caused by a host of ailments. In the last three years matters have gotten worse. As a result, Doe drinks every Sunday (but only on Sunday) to cope with his present dysphoria. One Sunday, Doe turned on a football game and consumed 60 proof [*2]blackberry brandy to deaden the pain. During the game, Doe's wife began screaming at the TV. The alcohol, the screaming and his afflictions overcame Doe, and he told his wife to shut up. Mrs. Doe stormed upstairs. Doe decided to leave the house, call an Uber and go visit a friend in northern New York. In short order Doe changed his mind. Tormented by his pain, Doe decided that death was better than life. To end his life, Doe walked into a cemetery, opened his jacket, and laid down on the snowy ground waiting for hypothermia to take him.^[FN3]

After a few hours Mrs. Doe became gravely concerned about her husband, so she called the police. New York State Trooper Matthew Yankowski responded and conducted a search. Trooper Yankowski located Doe in the cemetery. There and{**78 Misc 3d at 1094} then, under the auspices of Mental Hygiene Law § 9.41, the Trooper took Doe into custody and transported him to Albany Medical Center to be treated.^[FN4] At the hospital, Doe was visited and examined by a battery of psychiatrists. The next day Doe was released neither with a diagnosis of mental illness nor a prescription for medication.

Petitioner, under CPLR 6341, sought a temporary extreme risk protection order to retain possession of three shotguns and a long rifle that Doe had already surrendered to the State Police. The court granted the temporary order (CPLR 6342) and now must determine if petitioner has "prov[en], by clear and convincing evidence, that the respondent is likely to engage in conduct that would result in serious harm to himself." (CPLR 6343 [2].) A likelihood of serious harm means a "substantial risk of physical harm to himself as manifested by threats of or attempts at suicide." (Mental Hygiene Law § 9.39 [a] [1].)

The case is complicated by the Second Amendment. While the Second Amendment's boundaries may be evolving, depriving a person of their rifles in their home doubtlessly infringes upon a person's right to keep arms (District of Columbia v Heller, 554 US 570 [2008]). "When the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct" (New York State Rifle & Pistol Assn., Inc. v Bruen, 597 US —, —, 142 S Ct 2111, 2129-2130 [2022]). Therefore, since an injunction under CPLR 6343 (3) operates as a forfeiture of weapons in a home, it violates the Second Amendment—at least in the abstract.

Normally, at this point where a constitutional right has been presumptively violated, the court would make the government justify the deprivation. That is, the court would decide whether petitioner has a compelling state interest in preventing suicide and whether disarming respondent is the least restrictive means to serve that compelling interest (see United States v McGinnis, 956 F3d 747, 754 [5th Cir 2020]).

This of course is a familiar test and one which the court would apply, but it is now foreclosed from doing so. The Supreme Court has instructed courts not "to engage in means-end scrutiny because the very enumeration of the right takes out of the hands of government—even the Third Branch of {**78 Misc 3d at 1095}Government—the power to decide on a case-by-case basis whether the right [*3]is really worth insisting upon" (Bruen, 597 US at —, 142 S Ct at 2129 [internal quotation marks and citation omitted]). Instead, courts must search the historical record to determine if a categorical exception to the Second Amendment exists—without an exception, Doe's right to keep weapons may not be infringed.

One such exemption, justified by the historical record, is "the longstanding prohibition[ ] on the possession of firearms by . . . the mentally ill" (Heller, 554 US at 626). Therefore, if Doe is mentally ill, the Second Amendment plays no role in this case.^[FN5]

So, the initial inquiry is whether Doe is mentally ill. There is no debate that Doe attempted suicide—he acknowledges that—but does that mean he is mentally ill. There is some force to the argument that when a person attempts suicide, which is the case here, he suffers from a mental illness. While some, if not most, suicides are borne of mental illness, the court lacks confidence that suicidal ideation equates perfectly to mental illness. Consequently, an expository journey is required to determine if Doe is mentally ill either as a matter of law or as a matter of fact.

To begin with, the Mental Hygiene Law provides some clues to whether suicidal ideation is a mental illness per se, but not definitively. Under Mental Hygiene Law § 9.39, before the government can restrain a person's liberty by involuntary hospitalization, it must prove two elements: (1) the person has a mental illness and (2) the mentally ill person, among other behaviors, presents a "substantial risk of physical harm to himself as manifested by threats of or attempts at suicide" (Mental Hygiene Law § 9.39 [a] [1]; Matter of John P., 265 AD2d 559 [2d Dept 1999]). Thus, Mental Hygiene Law § 9.39 allows the involuntary hospitalization of that subset of mentally ill persons who are suicidal. However, Mental Hygiene Law § 9.39 neither contemplates nor addresses the issue of whether a person who threatens or attempts suicide is mentally ill.{**78 Misc 3d at 1096}

Case law provides a somewhat clearer answer. New York law has recognized a critical distinction between those who end their life in a rational state of mind and those who do so as a result of a mental illness—"[s]uicide involves the deliberate termination of one's existence, while in the possession and enjoyment of his mental faculties. Self-slaughter by an insane man or a lunatic is not an act of suicide within the meaning of the law" (Breasted v Farmers' Loan & Trust Co., 4 Hill 73, 75 [Sup Ct 1843]; see Myers v Schneiderman, 30 NY3d 1, 12 [2017] [implying that suicide, by definition, must bear the indicia of rationality: suicide has long been understood as "the act or an instance of taking one's own life voluntarily and intentionally" (internal quotation marks and citation omitted) (emphasis added)]; see also The Earliest Acts and Laws of the Colony of Rhode Island and Providence Plantations, 1647-1719 at 19 [J Cushing ed 1977] [noting that as early as 1647 Rhode Island made a distinction between rational suicide and suicide with mental illness: "(if a man) kills himself of a premeditated hatred against his own life: . . . his goods and chattels are the king's custom . . . ; but in case he be an infant, a lunatic, or mad, he forfeits nothing" (emphasis added)]).^[FN6] The court concludes, therefore, that a suicidal [*4]ideation or attempt is not mental illness per se.

So, if suicidal ideation or attempt is not mental illness per se, then the inquiry becomes whether the evidence showed that Doe suffered from mental illness. There was indirect evidence offered at the hearing on Doe's mental health. After Trooper Yankowski took Doe to Albany Medical Center, Doe was examined by four psychiatrists. Doe testified that none of the doctors diagnosed him with a mental illness. To the contrary, they released Doe rather than involuntarily confining him under Mental Hygiene Law § 9.39. Moreover, Doe told the {**78 Misc 3d at 1097}court that no medication was prescribed for him by the various mental health professionals who treated him. Since the doctors failed to find mental illness and because Doe's appearance and his testimony at the hearing seemed sane and rational, the court finds that Doe does not suffer from a mental illness. Therefore, since Doe is not mentally ill (either as a matter of law or as a matter of fact), the Second Amendment's "longstanding prohibition[ ] on the possession of firearms by . . . the mentally ill" is inapplicable (Heller, 554 US at 626).

If the mental illness exception provides no basis to disarm Doe, can he be disarmed solely because he attempted suicide—the answer depends on history. The history of suicide is ancient.^[FN7] "[O]pposition to and condemnation of suicide . . . are consistent and enduring themes of our philosophical, legal, and cultural heritages. . . . More specifically, for over 700 years, the Anglo-American common-law tradition has punished or otherwise disapproved of . . . suicide" (Washington v Glucksberg, 521 US 702, 711 [1997], citing Cruzan v Director, Mo. Dept. of Health, 497 US 261, 294-295 [1990, Scalia, J., concurring]).

To begin the historical review, since "[a] long, unbroken line of common-law precedent stretching from Bracton to Blackstone is far more likely to be part of our law," the court will examine both legal commentators' views on suicide and the common law (Bruen, 597 US at —, 142 S Ct at 2136). In the thirteenth century, Henry de Bracton observed that "[j]ust as a man may commit felony by slaying another so may he do so by slaying himself" (2 Bracton on Laws and Customs of England 423-424 [f150] [Woodbine ed, Thorne translation, 1968]). William Blackstone referred to suicide as "self-murder" and "ranked [suicide] among the highest crimes" (4 Blackstone, Commentaries on the Laws of England at 189 [George Sharswood ed 1893]). Indeed, "[b]y the common law of England, suicide was considered a crime against the laws of God and man, . . . [and] he [who committed suicide] was deemed a murderer of himself and a felon" (Commonwealth v Mink, 123 Mass 422, 425 [1877]). In America, "[a]lthough the States abolished the {**78 Misc 3d at 1098}penalties imposed by the common law (i.e., forfeiture . . . ), they did so to spare the innocent family and not to legitimize the act" (Cruzan, 497 US at 294[*5][Scalia, J., concurring]). So, history establishes this much: the early state legislatures considered "suicide . . . a grievous . . . wrong" (Washington v Glucksberg, 521 US 702, 714 [1997]).

Turning from history in general to New York's history, from its inception, the State of New York adopted the prevailing belief that suicide was an evil to be prevented. In 1777, the first New York Constitution declared that the common law continued to govern unless repealed or altered by statute (1777 NY Const, art XXXV [current version at NY Const, art I, § 14]). Moreover, the criminal common law was specifically recognized by statute in 1788 (L 1788, ch 37, § II, reprinted in Laws of St of NY, vol II, at 664, 665 [Weed Parsons & Company 1886]). Thus, New York adopted the common-law position that suicide was self-murder.

Of course, the law is not static. In New York, the Legislature's treatment of suicide has been undergoing a slow metamorphous. In 1881, an intentional attempt to commit suicide was a felony (Penal Code of 1881 §§ 174, 178, as enacted by L 1881, ch 676). In 1919, the criminal prohibition against attempted suicide was removed (L 1919, ch 414, § 1). Still, the Legislature declared suicide a "grave public wrong" (Penal Law of 1909 § 2301). However, in 1965, the Legislature deleted the declaration that suicide was a "grave public wrong" (see L 1965, ch 1030, enacting Penal Law § 35.10 [4]).

Certainly, New York has degraded the seriousness of suicide. Someday the Legislature may embrace suicide as a choice for people in pain. Indeed, Canada has already done so.^[FN8] But unless the Legislature so declares, the court will resolve doubts in favor of life. Thus, the court finds that "the rule of the common law . . . declaring suicide to be malum in se . . . has [not] been abrogated by the [Legislature]" (Shipman v Protected Home Circle, 174 NY 398, 406 [1903]).{**78 Misc 3d at 1099}

Since historically and currently New York considers rational suicide an evil, the next question becomes does the Second Amendment allow the State to disarm a citizen to prevent self-murder. History again must be the guide. To start with, an ancient common-law principle involved a citizen's right and even the duty to detain a perpetrator of a crime (see People v Page, 35 NY3d 199, 210 [2020, Fahey, J., dissenting] [reviewing the common-law history of citizen's arrest]). The common law extended this privileged use of force to many different areas (see Colby v Jackson, 12 NH 526, 530 [1842] [collecting examples]). The extension included the prevention of suicide. "At common law, . . . a private person's use of force to prevent suicide was privileged" (Cruzan, 497 US at 298 [Scalia, J., concurring]).

New York has codified this common-law privilege. New York allows "[a] person acting under a reasonable belief that another person is about to commit suicide . . . [to] use physical force upon [that] person . . . to thwart [the suicide]" (Penal Law § 35.10 [4]).

Given this historical context, the court concludes that the State may seize the weapons of [*6]a person about to commit suicide without violating the Second Amendment. But how long should the disarmament continue; it cannot be once suicidal, always suicidal. "As . . . history shows, the government may not ordinarily seize and hold on to weapons [without a continuing justification]" (Frein v Pennsylvania State Police, 47 F4th 247, 255-256 [3d Cir 2022]).

The common law, as embodied in Penal Law § 35.10 (4), speaks to the disarmament when a person is about to attempt suicide. In many ways, disarming the non-mentally ill suicidant mimics the disarming of the intoxicated. At the nation's founding, laws allowed the seizure of guns from those in an intoxicated state (see United States v Yancey, 621 F3d 681, 684 [7th Cir 2010] [collecting colonial era cases on the disarming of the drunk]). However, in the case of the intoxicated, "the [gun] restrictions imposed [i.e., confiscating the weapon] . . . only applied while an individual was actively intoxicated or actively using intoxicants" (United States v Harrison, — F Supp 3d —, —, 2023 WL 1771138, *7, 2023 US Dist LEXIS 18397, *13 [WD Okla, Feb. 3, 2023, Case No. CR-22-00328-PRW] [emphasis added]). This is a sensible limiting principle.

Thus, based upon historical analogues, when a rational person attempts suicide to escape the maladies of life, he{**78 Misc 3d at 1100} should be disarmed as long as he may attempt suicide. In other words, the seizure of a person's guns and the length of retention of the guns devolves into a question of probability and imminence. This inquiry is fact intensive.

Before a close inspection of the facts, the court needs to explain the proper standard to determine if a person still presents a risk of suicide. The standard employed by CPLR 6343 presents a problem, at least where constitutional rights are implicated as is the case here. CPLR 6343 (2) requires petitioner "[to] prov[e], by clear and convincing evidence, that the respondent is likely to engage in conduct that would result in serious harm to himself" (emphasis added). Thus, CPLR 6343 contains two different sets of probability—clear and convincing (i.e., highly probable) and likely (see generally E Sherwin, Clear and Convincing Evidence of Testamentary Intent: The Search for a Compromise Between Formality and Adjudicative Justice, 34 Conn L Rev 453, 462 [2002] [noting that "the clear and convincing evidence standard (refers to) . . . the . . . probability that the assertion is true: the party with the burden of proof must convince the trier of fact that it is highly probable that the facts he alleges are correct" (emphasis added)]; K Clermont, Procedure's Magical Number Three: Psychological Bases for Standards of Decision, 72 Cornell L Rev 1115, 1118-1120 [1987] [discussing standards of proof and probability]).

These dual standards compound probability. CPLR 6343's compound probability would permit the government to retain weapons even when the evidence suggests that an attempted suicide is an unlikely event.^[FN9] Such a low threshold to disarm a citizen is probably not consistent [*7]with constitutional constraints. So, to avoid an unnecessary determination of whether CPLR 6343's standard for disarming a citizen meets Second {**78 Misc 3d at 1101}Amendment constraints, the court must seek refuge elsewhere (National Federation of Independent Business v Sebelius, 567 US 519, 562 [2012]).

The court believes that the Legislature used the phrase clear and convincing evidence to elevate the burden placed upon petitioner to seize and retain a person's guns. Indeed, if CPLR 6343 had required petitioner to prove by clear and convincing evidence that the respondent will engage in conduct resulting in self-harm, the statute would be the substantial equivalent to the clear and present danger standard. That standard in this context would mean that a respondent must present a clear and present danger (that he will attempt suicide) (People v Dietze, 75 NY2d 47, 51 [1989]).^[FN10] The court will apply this standard to the facts.

Turning to the facts, Doe testified with blunt honesty. The court fully credits his testimony. Doe is a tranquil man who has never transgressed the law or been provoked to violence. He wants his guns back not to murder himself but to dispatch with alacrity a pack of woodchucks who harass his dog. He prefers shooting the varmints rather than poisoning them so that their death is instantaneous rather than slow and tortious. He assured the court that he would never shoot himself because it would be too horrible for his wife to find him with his head blown away.

As nice and peaceful of a man as Doe is, there is an inescapable fact that haunts the court—Doe has contemplated his own demise (and in rather specific terms) and even acted on these dark thoughts. However, four things offer a counterbalance. First, the cooling down period provided by the temporary order (CPLR 6342) during the doldrums of a gray winter did Doe a world of good by allowing for some self-reflection. Second, Doe told the court that he now wants to live. Third, he has appointments with a new doctor and a therapist. Moreover, he clearly has forecasted a future battle with the woodchucks to protect his dog. These events are forward-looking and consistent with contemplating continued life. Lastly, and most compelling,{**78 Misc 3d at 1102} Doe told the story of how his fiancée committed suicide and how that brought him unassuageable grief for several years. At the close of the hearing, the court reminded Doe that if he committed suicide, he would inflict that same inextinguishable pain upon his wife. At this point, the court saw a discernible alteration in Doe's countenance. He exhibited an expression that the court believes was a recognition that while suicide would allow him to escape his pain, it would be in exchange for imposing terrible and prolonged heartache upon his wife—such a bargain seems to the court inconsistent with respondent's personality.

The court possesses no supernatural prognostication abilities, but based upon the evidence before it, the court does not believe that Doe represents a clear and present danger to himself. Therefore, it is ordered that the petition is dismissed, and the temporary order of protection is dissolved; and it is further ordered that petitioner turn over to respondent his rifle and three shotguns no later than March 3, 2023.

"To be, or not to be, that is the question: Whether 'tis nobler in the mind to suffer the slings and arrows of outrageous fortune, or to take Arms against a Sea of troubles, And by opposing end them: to die, to sleep; no more; and by a sleep, to say we end The heart-ache, and the thousand natural shocks that Flesh is heir to? 'Tis a consummation Devoutly to be wished" (William Shakespeare, Hamlet act III, sc 1; see also Blue Oyster Cult, [Don't Fear] the Reaper, on Agents of Fortune [LP] [Columbia Records 1976] [expressing that suicide can "redefine happiness"]).