Montgomery v. Cuomo (291 F. Supp. 3d 303, 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"). 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. Adopted as part of the SAFE Act, 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.

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."

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." To make such a notification, a DCS transmits information to DCJS using the Integrated Justice ("IJ") Portal. Such information is required to be limited to the patient's "name[ ] and other non-clinical identifying information." Mental Hygiene Law § 9.46(b). 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, 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). 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. 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 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.

N.Y. Penal Law § 400.00(11)(b) & (c) (McKinney 2017). An "appropriate law enforcement agency," as mentioned above, is defined to include "the sheriff of the county in which such person [surrendering weapons] resides." Penal Law § 265.20(1)(f) (McKinney 2017).

In sum, whenever a mental health professional and DCS issue notifications under § 9.46 concerning a patient, DCJS determines whether the patient has a firearms license and, if so, NYSP notifies the local licensing official, who must at least suspend the license, thereby requiring the patient to immediately surrender all of his firearms to the police. In the event that the patient fails to surrender his guns, Penal Law § 400.00(11)(c) authorizes the police to take them.

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 and 9.15 allow persons to voluntarily admit themselves to a hospital for mental health treatment, without having to show that they pose a threat to themselves or to others. Also, MHL § 9.27 allows a person to be involuntarily admitted to a mental hospital, upon the "certification by two physicians that [the] individual has a mental illness for which care and treatment as a patient in a hospital is essential to the person's welfare," but does not require "an active display of dangerous behavior."

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 for which immediate inpatient care and treatment in a hospital is appropriate and which is likely to result in serious harm to himself or herself or others," while MHL § 9.39 provides for the involuntary admission, for up to fifteen days, of "any person alleged to have a mental illness for which immediate observation, care, and treatment in a hospital is appropriate and which is likely to result in serious harm to himself or others." MHL § 9.45 also gives a DCS the power to remove someone to a hospital upon a report that the person "has a mental illness for which immediate care and treatment in a hospital is appropriate and which is likely to result in serious harm to himself or herself or others." Further, MHL § 9.41 permits police officers to take into custody "any person who appears to be mentally ill and is conducting himself in a manner which is likely to result in serious harm to himself or others," and to transport such person to a hospital.

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.

N.Y. Mental Hyg. Law § 9.01 (McKinney 2018).

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.

Additionally, OMH has made an instructional power point on the SAFE Act available, entitled "NY SAFE Act Introduction for Mental Health Providers." This document indicates that MHL § 9.46's "likely to engage in conduct that will cause serious harm to self or others" standard is consistent with the "likely to result in serious harm" definition in MHL § 9.01, which "justifies the need for immediate action, such as an involuntary transport by police or an ambulance service to a psychiatric hospital for an examination." According to OMH, therefore, a person who must be reported under MHL § 9.46 should also be a candidate for emergency involuntary transport to hospital and/or involuntary admission.

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, 18 U.S.C. § 922(d)(4), states that "[i]t shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person ... has been adjudicated as a mental defective or has been committed to any mental institution," while 18 U.S.C. § 922(g)(4) states that "[i]t shall be unlawful for any person ...who has been adjudicated as a mental defective or who has been committed to a mental institution" to possess any firearm or ammunition.

The relevant federal regulation explains that the term "committed to a mental institution" "includes a commitment to a mental institution involuntarily."

27 C.F.R. § 478.11. Significantly, any involuntary commitment under MHL Article 9, including under MHL § 9.27, constitutes a disqualifying "commitment to a mental institution" for purposes of 18 U.S.C. § 922(g)(4). However, the term "committed to a mental institution" "does not include [the placement of] a person in a mental institution for observation or a voluntary admission to a mental institution." 27 C.F.R. § 478.11.

Prior to the SAFE Act, the fact that a person was involuntarily committed, and therefore disqualified by 18 U.S.C. § 922(g)(4) from possessing firearms, did not result in the suspension or revocation of that person's New York pistol license. As part of the SAFE Act, though, the firearms licenses of persons who have been involuntarily committed are revoked, and any firearms possessed by such persons are taken. See , PL §§ 400.00(1)(j) & (11)(a) & (c) (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 and his guns must be surrendered). In that regard, New York now checks reports of involuntary admissions against the state's firearms database. Such a revocation differs from the suspension/revocation that takes place under MHL § 9.46. Specifically, pursuant to Penal Law § 400.02, an "involuntary commitment" requires the licensing officer to revoke the firearms license, while MHL § 9.46 gives the licensing officer discretion to either suspend or revoke the firearms license.

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. Such ought to be the case regardless of whether a report concerning the person is also filed under MHL § 9.46, though it appears that the SAFE Act requires both types of reports to be filed. The primary benefit of MHL § 9.46, therefore, appears to be either as a means to alert OMH/DCJS of persons who, in the opinion of at least two mental health professionals (the treating mental health professional and the DCS) arguably meet the standard for involuntary commitment ( MHL § 9.01 ) even though they have not been involuntarily committed for whatever reason, or as a fail-safe in situations where a person has been involuntarily committed but not reported to OMH/DCJS/NICS as such.

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 18 U.S.C. § 922(g) (such as an involuntary commitment). Nevertheless, because Congress determined that a lack of such state reporting was resulting in failures by NICS to screen out mentally-ill persons who should have been prevented from buying guns, the NICS Improvement Amendments Act of 2007 now provides financial incentives for states which increase their reporting to NICS, and penalties for those which do not. To be eligible for such incentives, states are required to first provide the U.S. Attorney General with a "reasonable estimate" of the number of records that the state has concerning persons who have become disqualified under 18 U.S.C. § 922(g) & (n), and then make at least ninety percent of such records electronically accessible to NICS. The NICS Improvement Amendments Act does not reward states merely for increasing the number of reports of disqualifying events made available to NICS; rather, it rewards states for thoroughness and accuracy in reporting such events, regardless of the total number of such events.

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. For example, MHL § 7.09(j) gives OMH authorization to collect data, including the "names and other non-clinical identifying information of persons who [were] involuntarily committed to a hospital," and to make such information available to queries from NICS. In particular, OMH provides such information to DCJS, which then transfers the information to NICS. Further, MHL § 31.11(5) requires mental health service providers to notify OMH of patients "who may be disqualified from possessing a firearm pursuant to" 18 U.S.C. § 922. Mental health providers transmit such information to OMH using an electronic system that pre-dates, and is different than, ISARS. At all relevant times, the information that OMH maintains for reporting to NICS (via DCJS) has been kept by OMH in a database that is separate from the database that was later created as part of the SAFE Act and used in connection with MHL § 9.46. Reports of involuntary commitments are reported to NICS pursuant to MHL § 7.09(j), but reports under MHL § 9.46 which do not also involve an involuntary commitment are not reported to NICS.

As already discussed, DCJS receives reports concerning events such as involuntary commitments under the Mental Hygiene Law that entirely disqualify persons from having guns under federal law, and DCJS also receives reports under MHL § 9.46 that result in the suspension, if not the revocation, of firearms licenses issued under New York State law. DCJS has the ability to search its records to determine whether either type of report has been filed against a particular individual, and, if so, when and by whom. As previously indicated, persons may become involuntarily committed under various sections of the Mental Hygiene Law, including § 9.27, § 9.37 and § 9.39. However, regardless of the particular MHL section under which a person is involuntarily committed, DCJS uses the descriptor "9.41'' as shorthand in its database for all involuntary commitments. That is, DCJS refers to reports of involuntary commitments as "9.41'' reports. Accordingly, DCJS has the ability to search its records and determine whether a person was reported under MHL § 9.46 ("9.46 reports") or whether such person was reported as having been adjudicated a mental defective/ committed to mental institution ("9.41 reports"), but with regard to the latter type of report DCJS's search results do not indicate the actual section of the Mental Hygiene Law under which the individual was adjudicated mental defective/committed to a mental institution.

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. However, HIPAA provides various exceptions which permit health providers to disclose protected health information without the patient's authorization. In pertinent part, HIPAA permits such disclosures either where they are required by law, including state law, or where they are necessary to prevent or lessen a serious and imminent threat to the health or safety of the patient or a third party. Specifically, 45 C.F.R. § 164.512, entitled "Uses and disclosures for which an authorization or opportunity to agree or object is not required," states:

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[.]

45 C.F.R. § 164.512 (West 2018) (emphasis added).

Importantly, disclosure is permitted under 45 C.F.R. § 164.512(a) (the "required by law" exception) where the disclosure is mandatory (not merely permissible) under a particular federal or state law. In this regard,

"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 binding effect, as well as those by territorial and tribal governments.

Notably, OMH's SAFE Act Guidance Document refers to MHL § 9.46 as a "mandatory reporting requirement." Because of that, the Guidance Document states, mental health professionals need nor worry about violating HIPAA by filing § 9.46 reports, since HIPAA's "required by law" exception, 45 C.F.R. sec 164.512(a), applies.

On the other hand, disclosure is allowed under 45 C.F.R. § 164.512(j) only where a health provider believes that an emergency situation exists, and that disclosure is necessary to prevent or lessen a serious and imminent threat to the health or safety of the patient or a third party. As such, § 164.512(j)"is intended to apply in rare circumstances-circumstances that occur much less frequently than those described in other parts of [ § 164.512 ]."

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). These exceptions apply to all health information, including psychotherapy notes.

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).

With this background in mind, the Court now turns to the particular claims in this action, in which Plaintiffs maintain that after they sought mental health treatment, reports were improperly filed against them, which resulted in their New York pistol licenses being suspended and their firearms (pistols, rifles and shotguns) being seized by police.

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." Although Montgomery resided in the Western District of New York when he commenced the action, he resided in the Eastern District of New York when most of the events about which he complains occurred. The factual averments in the original Complaint [# 1] are as follows.

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." However, Montgomery indicates that he did not review the form, and was never asked to sign the form.

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 defendant Suffolk County Sheriff DeMarco that Montgomery had "been adjudicated as a mental defective or ha[d] been involuntarily committed to a mental institution," and was therefore "prohibited from possessing a firearm, rifle or shotgun pursuant to 18 U.S.C. § 922(g)(4)." As a consequence of such report, Sheriff Demarco suspended Montgomery's pistol license and seized his firearms. Montgomery attempted to convince the Hospital, as well as state and county officials, that he had voluntarily admitted himself for treatment, but the Hospital declined to change its position.

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. The Article 78 petition alleged that Montgomery had been erroneously classified as having been "adjudicated as a mental defective or involuntarily committed to a mental institution."

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 18 U.S.C. § 922(g). Indeed, the closest the Complaint [# 1] comes to connecting Montgomery's experience to MHL § 9.46 is the following cryptic statement:

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. (emphasis added). While this statement implies that Montgomery was reported under MHL § 9.46, it has no factual support in the pleading. Nevertheless, the pleading demands a declaratory judgment "striking down" Mental Hygiene Law § 9.46, an injunction enjoining the enforcement of § 9.46, an order directing the State of New York to disclose all information that has been collected pursuant to § 9.46, an order requiring the State of New York to notify all persons whose medical information has been collected and/or transmitted pursuant to § 9.46, an order directing the State of New York to purge all records collected pursuant to § 9.46, and an award of money damages and attorney fees.

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.'

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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 application first maintains that insofar as MHL § 9.46 requires the disclosure of patient health information without the patient's notice or consent, and the resulting suspension of firearms licenses and seizure of firearms, it violates procedural due process (and HIPAA). The application also contends that MHL § 9.46 violates equal protection, because it impermissibly "targets" persons seeking mental health treatment. Further, the application asserts that the classification of Montgomery as "involuntarily committed"

violates his Second Amendment rights, because he was not actually involuntarily committed within the meaning of 18 U.S.C. § 922. The injunctive relief requested includes the following: 1) an Order enjoining the enforcement of § 9.46 and the use of the ISARS system; 2) an Order appointing a Special Referee to gather all information transmitted and collected by Defendants in connection with § 9.46 and ISARS since the statute went into effect; and 3) an Order establishing a process for the identification and notification of persons whose personal information was disclosed pursuant to § 9.46.

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. Similar to the Complaint [# 1], this affidavit, while urging the Court to "suspend MHL § 9.46 and its associated reporting system," does not expressly contend that Montgomery was reported under MHL § 9.46. Rather, Montgomery's affidavit asserts that he was "wrongfully tagged as... 'involuntarily committed.") Montgomery Aff. [# 3-2] at ¶ 10; see also, id. at ¶ 22 ("Eastern Long Island Hospital labeled me an 'involuntary commitment.' "). Similarly, the supporting memorandum of law states, while discussing 18 U.S.C. § 922(g)(4), that Montgomery "was not involuntarily committed; he was mislabeled 'involuntarily committed' without any due process." Memo [# 4] at p. 9. It is axiomatic, however, that the filing of a report under MHL § 9.46 does not result in anyone being committed.

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; 2) a transcript of hearing in the New York State Senate involving the SAFE Act's impact on mental health treatment; 3) documents issued by the State of New York (OMH) to mental health providers explaining the SAFE Act and ISARS; 4) documentation concerning the process by which persons, who have been disqualified from possessing firearms under 18 U.S.C. § 922 due to having been involuntarily committed, may apply to OMH, under MHL § 7.09(j), for a Certificate of Relief from Disabilities; 5) newspaper articles and other publications concerning the SAFE Act; 6) copies of correspondence related to freedom of information law ("FOIL") requests for information concerning the SAFE Act; 7) copies of records and correspondence pertaining to Montgomery's admission to the hospital, the seizure of his firearms, and his attempts to recover the firearms; and 8) documentation related to the suspension and eventual reinstatement of a pistol license belong to an individual named Karl Bechler.

Much of the application for preliminary injunctive relief is devoted to arguing that the SAFE Act is an ill-advised piece of legislation. The application harshly criticizes Governor Cuomo and his use of the "message of necessity" legislative process to obtain passage of the SAFE Act, and asserts that the law was enacted without sufficient "legislative deliberation" or "input" from individual legislators. At the same time, the application characterizes statements by legislators, during the limited debate on the bill, as "confused and misguided." Further, the application asserts that "the leadership of prominent statewide mental health associations [were not consulted before the legislation was passed, and have offered] a non-stop litany of criticisms of MHL § 9.46" since its passage. Moreover, Plaintiffs insist that § 9.46 has not "provided any benefit to public safety." For example, Plaintiffs insist that making a report under § 9.46 using the ISARS system is slower and less-effective than simply telephoning 911 to report a dangerous patient. Additionally, Plaintiffs argue that § 9.46 could have the unintended consequence of discouraging people from seeking mental health treatment. Generally, these types of arguments are not probative of whether a court should enjoin the enforcement of a statute.

Of more relevance to the instant action, the application for injunctive relief also provides various anecdotal evidence purporting to show that MHL § 9.46/ISARS is being over-utilized by certain mental health providers, and improperly administered by certain county-level Directors of Community Services. In this regard, the application primarily relies upon testimony from various mental-health professionals at a hearing conducted by the New York State Senate shortly after passage of the SAFE Act. For example, Jed Wolkenbreit, Attorney for the Conference of Local Mental Health Hygiene Directors, testified that some medical providers were reporting patients under MHL § 9.46"simply by virtue of their admission," even though such reporting "was not even consistent with the State Office of Mental Health's published guidance" on the issue. Wolkenbreit opined that some medical providers were filing reports even though their patients did not meet the § 9.46 standard, out of fear that they might face liability for failing to make a report. Wolkenbreit also indicated that some hospital staffs were submitting reports using the "Electronic Health Records System," rather than the ISARS system, even though such use was "not appropriate under the statute." The injunction application also cites a New York Times newspaper article claiming that "mental health workers feel compelled to routinely report mentally ill patients brought to an emergency room by the police or ambulances." The same newspaper article quotes a County DCS as stating that he does not follow the requirements of MHL § 9.46, but instead, merely "rubber stamps" reports from medical providers sent to him via the ISARS system:

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."

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 through the Emergency Room doors as 'involuntarily committed."

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. In particular, and as mentioned earlier, the SAFE Act "Guidance Document" issued by OMH correctly sets forth the standard for making reports under MHL § 9.46, ("likely to result in serious harm to self or others"), and notes that involuntary commitment under MHL § 9.27 should not necessarily result in the filing of a report under MHL § 9.46 : "[A] person could meet the [ MHL § 9.27 ] '2 PC' standard [for involuntary admission], 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. " Further, the OMH SAFE Act "Guidance Document" clearly states that a DCS should not forward a § 9.46 report to DCJS unless he "agrees with the [reporting] mental health professional's determination."

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" HIPAA, because it sets a standard for the disclosure of private health information that is less-protective than HIPAA. In particular, the application asserts that "[t]he standard at MHL § 9.46 is a far lesser standard than the emergency reporting provisions within HIPAA at 45 CFR § 164.512(j)," which, as noted earlier, permit disclosure of private health information without a patient's consent where "necessary to prevent or lessen a serious and imminent threat to the health or safety of a person or the public." Significantly, though, the preliminary injunction application fails to mention HIPAA's other disclosure exception, 45 C.F.R. § 164.512(a), which, as already noted, allows such disclosure when "required by law," without any showing of a serious and imminent threat. The preliminary injunction application also compares MHL § 9.46 to other provisions of MHL Art. 9, especially §§ 9.27, 9.37, 9.39 and 9.40, and argues that such provisions provide adequate due process protections, while § 9.46 does not. 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.").

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, and that Montgomery lacked standing because MHL § 9.46"never applied to him." See , Docket No. [# 8]. Plaintiffs' counsel submitted a responding letter [# 9], in which, inter alia , she briefly laid out her theory as to why Montgomery has standing to challenge MHL § 9.46, even though his firearms disqualification resulted from having been labeled as "involuntarily committed." Essentially, Plaintiffs' counsel indicated 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.

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, and Defendants expressed the intention to file motions to dismiss. The Court adjourned the matter to allow Montgomery to file an amended pleading, with the understanding that Defendants intended to file motions to dismiss immediately thereafter.

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 personal health information and doctor-patient relationships; 2) that MHL § 9.46 violates the Equal Protection Clause of the Fourteenth Amendment, by treating persons seeking mental health treatment differently from "the general patient population"; 3) that MHL § 9.46 violates Plaintiffs' rights to substantive due process and procedural due process under the Fourteenth Amendment, because "the process through which [they] have been reported and disqualified from firearms ownership, possession, transfer, and use is arbitrary and capricious," and lacks a "meaningful process" by which to "request a redress of their grievances for the restoration of" their rights which have been affected by § 9.46 ; and 4) that MHL "§ 9.46 as enacted and implemented by the Defendants violates the Second Amendment rights of the Plaintiffs." The pleading indicates that all individually-named defendants are being sued in their official capacities.

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, the Amended Complaint [# 14] generally mirrors the original Complaint, except that it adds detailed allegations specific to Carter, Reid and Bechler. Concerning Carter, the pleading alleges that Carter's firearms were seized after his wife called "911" "because she suspected that he was showing signs and symptoms of a stroke or other serious neurological event." The pleading contends that police officers-members of the Tonawanda Police Department-came to Carter's home along with ambulance personnel, and seemed more concerned about his firearms than about his medical condition. Carter maintains that officers seized multiple firearms from his house. Carter contends that he was not a threat to anyone, but that the police officers nevertheless told him that he was going to the hospital for 72 hours, "even if they had to force him." Carter maintains that he went to hospital by ambulance voluntarily, and discharged himself (against his doctors' advice) four hours later. Carter further maintains that hospital records reflect that he was not a danger to himself or anyone else. Nevertheless, when Carter later attempted to retrieve his firearms from the police, a police officer denied his request, and stated that it was "all due to the SAFE Act." Carter later received a notification from Erie County advising him that his firearms license was suspended. Carter subsequently learned that someone at the hospital had indicated in his medical chart that he had been "involuntarily committed" pursuant to MHL § 9.41.

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. Reid indicates that she was not a threat to herself or others. While at the hospital, staff aggressively questioned Reid about her ownership of firearms. After being discharged, Reid received a notice that her pistol license was suspended. The pleading does not attach the actual document that Reid received, but describes it as follows:

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.'

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." Nevertheless, the 911 call resulted in NYSP officers coming to Bechler's home, arresting him, and seizing his extensive firearms collection. The pleading indicates that the NYSP officers approached Bechler's house "in a menacing manner, armed with long guns," but does not explain why. Although the pleading implies that Bechler was placed under arrest, it further maintains that Bechler went to Clifton Springs Hospital voluntarily, and spent four days there receiving treatment, primarily for diabetes. The Ontario County licensing officer subsequently suspended Bechler's New York State firearms license. Thereafter, a report was filed against Bechler under MHL § 9.46. Later, on September 17, 2013, NYSP sent a form letter to the licensing official (County Clerk's Office), indicating that a report had been filed against Bechler under MHL § 9.46. Bechler subsequently brought a successful court action to have his firearms license reinstated.

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 , 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) (" Monell "). Plaintiffs do not dispute DeMarco's contention on this point. Indeed, Plaintiffs have asked the Court to substitute Suffolk County as a defendant for Demarco. Accordingly, the Court will grant that request and will henceforth in this Decision and Order refer to Suffolk County ("the County") rather than to DeMarco.

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 28 U.S.C. § 1391(b)(1). The County further indicates that venue is not proper in this District under 28 U.S.C. § 1391(b)(2), since a substantial part of the events or omissions giving rise to Montgomery's claim did not occur in the Western District.

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 Complaint involve the County: The Third Cause of Action (14th Amendment substantive and procedural due process) and the Fourth Cause of Action (Second Amendment). Further, the County maintains that the Amended Complaint fails to plead any constitutional claim under Monell , since it does not plausibly allege facts showing that any alleged constitutional violation resulted from a municipal policy, custom or practice.

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. The County insists that it had no discretion to disobey such laws, as they were properly-enacted and did not obviously violate the Constitution. Along this same line, the County contends that the pleading fails to state a procedural due process claim, as neither "the SAFE Act [nor the] Penal Law" provide for a pre-deprivation hearing, and the County has no authority to create its own due process procedures. Further, the County maintains that the subject statutory scheme involves a public-safety situation requiring "quick action by the State," and that CPLR Article 78 therefore provides an adequate post-deprivation hearing remedy, of which Montgomery has already availed himself. The County also maintains that the Amended Complaint fails to state a claim for a substantive due process violation, since the County's actions were not conscience-shocking.

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 physicia