2018 Mass. App. Div. 63

December 1, 2017 - March 22, 2018

Appellate Division Northern District

Court Below: District Court, Cambridge Division

Present: Coven, P.J., Crane & Flynn, JJ.

Diane M. Geraghty Hall for the petitioner.

Devorah A. Borenstein for the respondent.

CRANE, J. The respondent appeals from an order of commitment pursuant to G.L. c. 123, §§ 7 and 8. The appeal is moot because the respondent has been discharged. We hold that the requirements for likelihood of serious harm announced in Matter of G.P., 473 Mass. 112 (2015), which involved a petition for commitment under c. 123, § 35, should also be applied in petitions for commitment under c. 123, §§ 7 and 8. We decline to exercise our discretion to further review this appeal because it does not present any other issue that is likely to be repeated.

The respondent was ordered committed for treatment following a hearing on May 11, 2017. He was originally hospitalized involuntarily pursuant to G.L. c. 123, § 12 on April 28, 2017 at the request of his treating psychiatrist because of behavior reported by his wife. He was discharged on June 5, 2017.

The only evidence before the hearing judge was that the respondent's treating psychiatrist testified that her diagnosis was that the respondent suffered from bipolar disorder, manic with psychotic features. This witness had treated the respondent at the same hospital during an admission between late August and early October, 2016. During that hospitalization, the respondent expressed interest in going to the police to seek a gun license to protect himself from his in-laws because they had not planned properly for their retirement. There was also other evidence of paranoid thinking during the respondent's previous admission. After administering medications to the respondent, he was safely discharged to his home and outpatient treatment.

The respondent's outpatient psychiatrist ordered the current involuntary admission because the respondent had not been taking medications for at least two weeks and other information provided by the respondent's wife. During the current admission, the respondent told the testifying psychiatrist that rather than taking prescribed medication, he was drinking as many as five beers and other alcohol to deal with what he characterized as high energy. He also reported that he was driving for Uber while doing this at speeds of ninety miles per hour or more. The respondent did not see any problem with this conduct.

The treating psychiatrist also testified that during the current hospitalization, the respondent was difficult to interrupt when he was talking and what he was talking about was disorganized. He was concerned about patients and staff on his unit that he described as riffraff and would not take medication from nurses because he did

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not believe that the medication being offered or administered to him was what was prescribed. He also exhibited high levels of activity while admitted and had little or no sleep. The testifying psychiatrist concluded that the respondent had "impaired judgment, characterized by reckless behavior that's consistent with mania, and that he manages his illness, as he identifies having that high energy, by drinking, which . . . further compounds his recklessness and risk to others." The psychiatrist described a plan to treat the respondent with the same medications that worked for him before and anticipated that he could be safely discharged to the community once those medications took effect.

The respondent urges that despite his discharge, his appeal is not moot because the order of commitment subjects him to direct and collateral consequences that continue. As direct consequences, he asserts that the order prevents him from applying for a firearm identification card ("FID card") or a license to carry a firearm and that his commitment was reported to the Criminal Justice Information System ("CJIS"). [Note 1] The respondent also argues that the order of commitment itself, together with being prevented from applying for an FID card and the report of commitment, stigmatizes him so significantly that his appeal is not moot. Alternatively, if the appeal is moot, the respondent argues we should exercise our discretion to decide his appeal because it presents the following issues: 1) whether the requirement that serious harm to self or others must be both serious and imminent, as announced in Matter of G.P., supra, involving a commitment under G.L. c. 123, § 35, also applies to the current proceedings under c. 123, § 7; and 2) what qualifies as sufficient evidence to prove a nexus between mental illness and any substantial risk of physical harm to the respondent or others or very substantial risk of physical impairment or injury to the respondent, beyond a reasonable doubt.

The respondent contends that either or both of these issues are likely to repeat and would escape review if we do not exercise our discretion to do so in this appeal. The petitioner contends that the appeal is moot and urges that we refrain from exercising our discretion because what remains is an appeal on the sufficiency of the evidence that would not be repeated.

The loss of an opportunity to apply for an FID card for five years does not prevent the appeal from being moot. Matter of K.M., 2017 Mass. App. Div. 93, 94. Other than a statement by the respondent reportedly made to a clinician that he would like to get a gun to protect himself from his in-laws because they did not plan well for retirement, there is no evidence in the record that the respondent ever considered applying for a license to carry or an FID card for any purpose. The clinician

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described this statement about getting a gun for this purpose as another symptom of the respondent's compromised mental health. The respondent is not prohibited permanently from applying for a license to carry a firearm as occurs following felony convictions. Chardin v. Police Comm'r of Boston, 465 Mass. 314 (2013). Instead, the respondent may apply after five years expires, and the respondent may file a petition for relief with the court that ordered the commitment requesting the court to restore the person's ability to possess a firearm. "The court may grant the relief . . . if the circumstances regarding the person's disqualifying condition and the person's record and reputation are determined to be such that: (i) the person is not likely to act in a manner that is dangerous to public safety; and (ii) the granting of relief would not be contrary to the public interest." G.L. c. 123, § 36C(b). Where the respondent has never held a license to carry or FID card or expressed an interest in the same when he has been asymptomatic, it is wholly speculative that the respondent has any interest in applying for either before the five years elapses as required by the policy adopted by the Legislature. Prohibitions upon the possession of firearms by felons and the mentally ill are presumptively lawful regulatory measures and do not violate the Second Amendment. District of Columbia v. Heller, 554 U.S. 570, 626-627 (2008); Chardin, supra at 323.

The respondent also urges that the order of commitment, along with reporting it to the CJIS, stigmatizes him and gives him a legally protected interest that prevents mootness. Appeals from expired abuse prevention orders and harassment prevention orders are not moot, Seney v. Morhy, 467 Mass. 58, 62 (2014); Gassman v. Reason, 90 Mass. App. Ct. 1, 6 (2016), because they remain public records that have not been concluded with a judicial determination that the orders were not lawfully issued accompanied by a direction to the local police to destroy all records of the order. By contrast, proceedings in the courts under G.L. c. 123, §§ 7 and 8 are confidential. G.L. c. 123, § 36A. There is no public access to the court's papers in those proceedings. The Legislature also directed transmission of specific information to the CJIS concerning persons ordered committed, such as the respondent. G.L. c. 123, § 36C(a). Access to the CJIS information is not public and is limited. Parties who do have access are required to comply with security standards to limit access to information to authorized users. [Note 2] The respondent's argument that someone could or is likely to hack into the CJIS does not create a legally protected interest for the respondent that overcomes mootness.

Contrary to the respondent's repeated assertions, the court did not make any finding that the respondent was dangerous. Finally, regardless of whether the current order of commitment would be admissible in any future proceeding involving the respondent's health, the history of his current and any past episodes of illness would likely be admissible and considered in any future proceeding concerning his mental health. None of this, taken individually or together, so exposes the respondent to public stigma after his discharge as to present a dispute for current adjudication. This appeal is moot. Matter of G.P., supra at 113; Guardianship of V.V., 470 Mass. 590, 591 (2015); Acting Supt. of Bournewood Hosp. v. Baker, 431 Mass. 101, 103 (2000).

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When a matter is moot, we may exercise our discretion to address issues raised that are of significant public importance, are capable of repetition, and will evade review on account of the frequently short duration of a commitment under G.L. c. 123, §§ 7 and 8. Acting Superintendent of Bournewood Hosp. v. Baker, supra. At a hearing on any petition for commitment, the petitioner must present sufficient evidence to prove beyond a reasonable doubt that the respondent has a mental illness and that there is a likelihood of serious harm if the respondent is not committed for treatment. Superintendent of Worcester State Hosp. v. Hagberg, 374 Mass. 271, 275-277 (1978).

Because the petition in Matter of G.P., supra, was under G.L. c. 123, § 35, and not §§ 7 and 8 as the current petition is, the respondent urges that we should exercise our discretion to review whether the same principles that apply in § 35 cases are to be applied in those under § 7, such as this one. We agree with the respondent that whether the explanation of "likelihood of serious harm" announced in Matter of G.P. should be applied in petitions under §§ 7 and 8, is of significant public importance, will evade review, and will be repeated. Therefore, we hold that all of the requirements for "likelihood of serious harm" announced in Matter of G.P. are applicable in any petition under §§ 7 and 8, such as this one. We do so because both this appeal and Matter of G.P. involve the definition and application of the identical phrase, "likelihood of serious harm," appearing in G.L. c. 123, § 1.

The only remaining issue is the sufficiency of the evidence, and we decline to exercise our discretion to review that. The issue of the sufficiency of the evidence is unique to this case, unlikely to arise in similar circumstances, and would have little or no precedential value. Matter of K.R., 2012 Mass. App. Div. 229. However, we note that the evidence of the respondent's mental illness was considerable as was the imminence of very serious risk of harm to self or others. There was evidence that the respondent's judgment was so impaired by mental illness that he was self-medicating with alcohol to relieve what he described as "high energy," not a health condition, while driving for hire at speeds exceeding ninety miles per hour just before his involuntary admission. The respondent had stopped availing himself of the resources for care in the community and was refusing medication even when admitted. His judgment was so impaired that he could not comprehend the likelihood of serious harm to himself or others from his admitted practice of drinking alcohol and driving at very high speeds. When mental illness causes abuse of alcohol that puts a respondent or others at risk of imminent and serious harm, as here, relief may be obtained under §§ 7 and 8. Whether § 35 might apply or not does not prevent relief under § 7, as respondent argues.

There is nothing in the record to indicate that the hearing judge did anything other than to apply the explanation of "likelihood of serious harm" announced in Matter of G.P., supra, and found by proof beyond a reasonable doubt that the respondent suffered from mental illness and that there was a likelihood of serious harm under both the second and third prongs of G.L. c. 123, § 1 because of the respondent's mental illness.

Where the trial judge applied the proper standard of proof and found that because of mental illness there was a likelihood of serious harm by proof beyond a reasonable doubt, the order of commitment was lawful, and the appeal is moot and must be dismissed.

Appeal dismissed.


[Note 1] "The CJIS offers law enforcement and criminal justice agencies within the state and across the nation secure access 24 hours per day 7 days a week to state and interstate criminal history record information, protective orders, missing and wanted person files, drivers' license and motor vehicle information, firearms licensing and gun sales transactions and other critical criminal justice information via the National Crime Information Center (NCIC) and the National Law Enforcement Telecommunications System (NLETS)." Executive Office of Public Safety and Security, Massachusetts Criminal Justice Information System (CJIS), http://www.mass.gov/eopss/law-enforce-and-cj/cjis/massachusetts-criminal-justice-information-system.html (last visited February 20, 2018).

[Note 2] Executive Office of Public Safety and Security, FBI Criminal Justice Information Services Security Policy, http://www.mass.gov/eopss/law-enforce-and-cj/cjis/fbi-cjis-security-policy.html (last visited February 20, 2018).