Mental health continues to rise as an important state and national political issue, as it’s now estimated that about 43.8 million adults in America – about 1 in 5 – experience a mental illness on an annual basis. The topic is receiving renewed and much needed attention in light of the recent shooting in a Tennessee Waffle House by a mentally ill man. In that instance, a mentally ill man used an assault rifle to kill four people in Antioch, Tennessee. The gunman had previously been arrested for trespassing near the White House and was known by law enforcement. His weapons were seized by the FBI and were later returned to his father. In turn, his father lets the mentally ill gunman have them back.
The Tennessee case raises important questions at the intersection of mental health, weapons seizure, involuntary commitment, and what families can do when they suspect a loved one may be dangerous to himself or others. Alabama reflects the national trend of moving away from institutionalized care for the mentally ill in favor of community-based or outpatient treatment. While this approach is noble and pragmatic in theory, many now question whether it serves the needs of the mentally ill and protects the community as a whole.
Mental Illness is defined under state law as “a psychiatric disorder of thought and/or mood which significantly impairs judgment, behavior, capacity to recognize reality, or ability to cope with the ordinary demands of life. Mental illness, as used herein, specifically excludes the primary diagnosis of epilepsy, mental retardation, substance abuse, including alcoholism, or a developmental disability.” Ala. Code 22-52-1.1. A mentally ill person may receive inpatient or outpatient treatment.
Under Alabama law, an involuntary commitment occurs after a judge orders a mentally ill person to be involuntarily placed in the custody of the Alabama Department of Mental Health and Mental Retardation for evaluation and treatment. In order to be involuntarily committed, the person must be mentally ill, pose a substantial risk of harm to himself or to others, be unable to make rational decisions regarding treatment, evidence of actual danger or threat through an overt act, treatment is necessary and the least restrictive means of stabilizing the ward.
Any person may attempt to have another person committed by filing a proper petition with the Probate Court in the county in which the mentally ill person is located. Ala. Code § 22-52-1.2. The Probate Judge then reviews the petition to ensure it is not “totally without merit.” Ala. Code § 22-52-2. Assuming the Judge finds merit, a hearing is set and the mentally ill person is required to receive notice. Ala. Code § 22-52-3. A guardian ad litem is appointed to protect the rights of the ward at the hearing. At the hearing, the Probate Judge may order the person committed to an inpatient or outpatient facility.
If the Probate Judge finds the person must be involuntarily committed, the Probate Judge must forward his or her final order to the Alabama Law Enforcement Agency, who enters it in the National Instant Criminal Background Check System (NICS). Previously, the Probate Judge was not required to forward the order to ALEA. This potential loophole was recently closed by the Alabama legislature. The NICS determines eligibility to purchase a firearm.
Federal law prohibits those who have been convicted of certain felonies, domestic violence, and those who have been involuntarily committed from owning a firearm. As such, the mentally ill person is prevented from purchasing a firearm. The mentally ill person may later petition the Court to reinstate their firearm rights. Ala. Code § 22-52-10.8.
While current state and federal law provide for notice to the NICS in order to prevent a mentally ill person from buying a firearm, some Alabamians believe the law does not go far enough in preventing gun violence by the mentally ill. Some states, such as Florida, have recently passed gun violence restraining order laws or ‘red flag laws’ that allow law enforcement or family members of a mentally ill person to petition the court to temporarily remove weapons from the mentally ill person. Six states have passed such a law and twenty-two other states are considering adopting one. Some states allow these orders to be made ex parte, or without the mentally ill person present.
Alabama is widely recognized for its 2nd Amendment protections and relatively innocuous gun laws. While gun laws remain polarizing as a whole, Alabama legislators may continue to find sensible mental health fixes, such as that of the 2015 law discussed above.