oliver for frederick phelps mr phelps is a gentleman who was a truck driver all his life he's recently retired retired he's in his early seventy's he grew up in the rural area of columbia county upstate new york and grew up as a hunter  for approximate the last twenty years he has not been able to purchase a firearm because of the brady act and his admission to  were a commitment neither one of them were a commitment to a mental institution the defendants on this appeal are relying heavily on the stigma that attaches to almost anybody who enters the doors of a mental of facility they're relying on this court's decision and waters though aren't they the no judge they're not because waters makes it clear that the admission in columbia hospital in two thousand and five under section nine thirty seven was not a commitment and they they don't deal with an analysis of the waters case and they don't deal with an analysis of the difference in the statutes between mental hygiene law and nine thirty seven and mental hygiene law nine twenty seven water says that nine twenty seven the admission is a commitment the yes you're on on is what you're saying that now i'm twenty seven and that provision is under which admission was here was made nine thirty one on materially different yes nine thirty seven yes judge to give a not thirty seven forgive me how are they what's the requires three physicians one to admit and two to certify and the and there is no expression under nine twenty seven which was determined to be constitutional in waters there's no observation period built into that statu in section nine thirty nine is completely different you know in the basic problem is that the defendant's throughout all sectors i mean new york is almost unique state because all states almost all the other states require it judicial determination or determination by a board or commission to commit somebody to a mental institution twenty seven at issue and waters does not and yet was held by this court to be a commitment somehow to saying it's unique in that it's almost unique that's all it's an exception and  under nine thirty nine that was different from walter from waters that he was a mid in columbia hospital first of all the structure of the statute provides for an observation period though purpose of this statute is not involuntary treatment as it was in nine twenty seven in waters but the purpose of this statute this statute is called in nine thirty nine is emergency admission for immediate observation care and treatment and congress has made it clear that and mission to a mental institution for observation only is not a commitment and that's clear in the regulation that was  agency of the treasury department and that regulation which congress approved after it was promulgated under the congressional review act that regulation requires specifically states that a commitment does not include a person in a mental institution for observation or a voluntary admission but but the text of going thirty nine isn't limited to observation it's conjunctive it's observation care and treatment of for a condition that quote is likely to result in serious harm to himself so if this was just observation i would understand the distinction but statute goes beyond that well this statute has steps the statute has a process  the the structure of the statute is that when a person is brought in there evaluated and they're brought in for observation and the statute provides that in order to be held for more than forty eight hours you need to have a medical doctor and a psychiatrist within forty eight hours and then the statute provides that if those two find that the person needs care treatment then he can be held for up to fifteen days for of servatius and then the statute provides that even if the patient demands a judicial hearing and there is a judicial hearing and the judge makes a finding that adjudication is not a finding of m mental illness but is only a finding that the person needs care or treatment and that decision has to be made within fifteen days so the structure of this statute is different and so there is in effect a fifteen day observation period there's built into the statute and that is made clear by this by the language in the statute at  as a voluntary patient that that's the language of the statute at the end of the fifteen days if he the patient agrees to say in the facility he remains a voluntary patient and the only time that he would be an involuntary patient is if two physicians certified him under section nine twenty seven which the court approved in waters and that comes in after fifteen days it may ask all why would it be why would you need a waters commitment if he's already committed when he walks into the facility your argument in seeking injunctive relief to get your client off of the nic ass list is one of constitutional avoidance right you're asking that the statute be construed to make your client situation other than a commitment so as to avoid what you contend would otherwise be a constitutional problem you might get that right yes you're ok you have not however argued in fact that non removal of him from the list would violate the constitution there isn't a constitutional claim as to the injunctive relief that you see here correct no your honor the second amendment provides that there is a right to bear arms in the supreme court has held that that applies to states and i understand that ns opens to two tional claim and this case you've made up purely a statutory construction argument drawing upon the second amendment but in the end if we concluded contra to the argument you've just made that under waters nine nine thirty nine travels with nine twenty seven and there isn't any ambiguity to which the use the tool of constitutional avoidance you haven't you have a second argument here that there is a constitutional violation the result i looked at your complaint i just don't see of course there's a constitutional violation because he has a right to purchase if he's if he wasn't committed he has a right to purchase a firearm and he can go to the gun shop in upstate new york you know they're all over the place and he can register and he'll be cleared and he can buy a firearm but because of the unconstitutional listing of him under nics he can't do that that's a violation of his right to bear arms of his right to have a rifle o his right to hunt and of his right to enjoyment of life and there's other reasons not only is it the statutory structure of nine thirty seven that's different from nine twenty seven but their position is necessarily must be that under any one of these statutes in the mental hygiene law a new york has a whole bunch of them  five or six of them and they all have different requirements their argument is that if somebody is brought into a facility for observation and they're in the facility for ten minutes they don't make any distinction and they're very powerful they argue this very powerfully that any admission to a mental facility is a commitment and that's directly and let me ask you the question that opposing counsel just ended with any admission as a commitment is that how the state law reads that's not true your honor the state reads an admission under nine point thirty nine to be a commitment but there are a number of statutes in article non as my adversary just spoke of to the extent that there is a distinction between admissions for treatment and admissions for observation i would direct this court's attention to mental h e law nine point forty one nine point forty three nine point fifty five these would be observations statutes these statutes do is authorize somebody to bring a patient to the hospital for an evaluation and the purpose of that evaluation is that determine whether or not that person needs inpatient treatment and presents a serious harm observation doesn't necessarily mature into a commitment that's correct your honor here mr phelps has been observed by intimating physician and he's been found that he needs in patient care and treatment and that with out inpatient it becomes a commitment that's when it becomes a commitment your honor frankly mr phelps could not have remained in this hospital for ten days without first then admitting physician and then the psychiatry is to finding that he needed in patient care and treatment and that without it he would pose a serious risk of physical harm to either himself or another person now nine point thirty nine as it relates to phelps phelps is the typical nine point thirty nine patient he's brought in in the grips of an acute psychiatric emergency and that's a huge distinction between nine point thirty nine and nine point twenty seven nine point thirty nine represents emergency situations he is put into the hospital to receive stabilizing care and treatment and over the course of the ten days he does receive that treatment the fact that he and when he is discharged it's not because he doesn't have a mental illness it's not that the mental illness went away it's because the danger subsides of the point that in inpatient setting is no longer necessary that's because he had treatment during those ten days you argue that's correct your honor that treatment and that therapeutic environment in which he received treatment stabilizes him to the point that the acute emergency in which he poses a danger has dissipated to the point that he can now go into the community of that when his discharge she's actually discharged with recommendations for follow up care in an outpatient setting so the continuum of treatment can it maintains in the community but the emergency has now dissipated now one of the aspects of waters is whether or not the commitment would be consistent with federal gun control policy the state's position is that it would be so consistent it's difficult to ignore the facts here mr phelps is committed after having make incredible threats against the lives of government officials he's brought into the institution with shackles after having to be tasered and when the physicians talk to him he's virtually incoherent but on the on the statutory issue here regardless of the facts as to him what's your position as to whether the differences between nine thirty nine and nine twenty seven make waters in apas it or opposite we would believe that waters is as we construe waters as having a two part test so when we were speaking about commitment an observation just before that is  one of the test whether the state recognizes it as a commitment and i was speaking about the substance of the statute that he's actually receiving treatment i'll note also however that in other contexts both state courts and this court have referred to nine point thirty nine hospitalization as commitments and in fact if you look at nine point thirty nine g the statute refers to itself as a commitment statute so and the reason we construe the second element of waters the test announced in waters as consistency with federal gun control policy and that's where these facts matter because as i said earlier it's our position that mr phelps typifies the nine point thirty nine patient in the emergency situations that that reflects and a person who has the kind of emergency that mr phelps suffered from a person who is committed under certain those types of facts those facts easily reflect the concerns that drove congress went in and acted nine twenty two for this so this case doesn't appear to raise the question of whether somebody who once was committed but claims now to have got better if that for want of a better word what the procedures would be it doesn't appear that there's been any effort made by mr phelps to remove his name from the n i c s registry in new york what routes if any would be available to him if his claim is now in his seventy's that he's safe and sound in the historical commitment should bar him any more somebody in mr phelps's position has three avenues for relief that would protect his rights the first two are an attack on the hospitalization itself so once once he is in the hospital he has a right from day one and during the hospital to demand a hearing and that hearing has to be held within five business days if he is unsuccessful there are whereas here he rescinded the request for a hearing post discharge mr phelps has another avenue under state law that's mental hygiene law thirty three point fourteen it's a proceeding to seal his records and one of the bases for sealing the records would be to attack the commitment as erroneous so for example if he was to enter the hospital apparently in the grips of an acute psychiatric emergency but it turned out to have a medical cause i understand that sometimes kidney problems and liver problems can produce psychiatric effects he might be able to  contest the basis of the hospitalization and get an order sealing that i'm advised by the office of mental health that when it receives a sealing order it then transmits that order to the national instant background check system the third option that then remove the original information about the commitment for the purposes as far as the state is concerned it does i would scare fal to say that we transmit it to the federal government for the federal government to do what it will because the federal government would actually have the final say over that but for purposes of state law if you get an order sealing your hospitalization according to thirty three point fourteen it is as though the hospitalization never occurred within very narrowly defined circumstances that wouldn't apply here option the third option is a certificate of relief from disability and in other cases that have taken up the issue of commitment certificates of relief from disability have come up frequently in waters that was one of the protections that was reflected that's actually the federal certificate of relief or disability which for administrative reasons has been rendered inoperable however in two thousand and seven when the nics improvement act came out congress encouraged each state that bought into the program to develop its own procedure and new york does have a procedure i'm advise d that it's a workable procedure of m h has informed me that since two thousand and eleven it has granted thirty five applications and denied twenty one applications so to the extent that mr phelps believes that  since two thousand and five he's he's now in a position where he could safely possess a firearm this is certainly an avenue that would be available to him note that under the facts of this case he was encouraged to pursue a certificate of relief old he did turn in papers for to forgive really if the office of mental health wrote him back saying that they wanted him to submit more information because it is a fairly thorough process is that route still available to him yes it is your honor the way that there's a typical of disability process works is that you have a right to apply each year so if you're denied you have to wait a calendar year before reapplying again another option if you didn't want to wait the calendar years that you could obtain judicial review of the denial of or certificate of relief but given given the length of judicial review my understanding is that most patients who pursue this process simply wait another year and also advise that many patients have even if denied the first time have been successful on their second or third occasion thank you thank you hear from the federal defen good morning right on behalf of the federal defendants i don't want to be repetitive of the arguments that have already been made but i'd be happy to start with the differences the immaterial differences in our view between nine twenty seven and nine thirty nine nine thirty nine requires that the initial admission be a staff position in the emergency room who determines that care is needed immediate care is needed and there's a substantial risk of harm to self or others that is confirmed by a psychiatrist within forty eight hours under nine twenty seven  as mr phelps points out there are two physicians required but that makes sense because the nine twenty seven the initial call in is could be from a relative a roommate a friend under nine thirty nine as was the case here it's a list of  here it was the director of community mental health services i think it can also be a peace officer and some others but it's more of a person with a more official position who makes some expertise in making these kinds of terminations who calls in a pick order so i think it's entirely consistent that whether mister phelps has applied for relief from disability he started to apply and then he decided that it was better to pursue the statutory relief provision in the brady act because neither because this admission for three days three days was not a commitment and one of the reasons why you decided is because the particular person who made the decision the so called nics officer of the office of mental health she is the person in charge of the committee that decides whether these certificates of disability will be granted and so he decided it was better to pursue the statutory remedy under the bravia he still has the right to have said he failed on the statutory a challenge well we hope that he doesn't and we hope that your honour's will take a look at in addition to well let me just say that the state's position that they argued before you that there was some differences in there was differences between the statutes their briefs and i just come back to judge pullers question is there some reason now why he would beyond able to persuade the decider that he is in fact eligible for relief from disability are those some facts about his present situation that would call into doubt his ability to get that relief on the merits no there isn't but he doesn't want to have to go through that process because he was never committed and congress  clear it's easier to appeal this to the second circuit than filling out the forms for the state it's less burdensome well you know i guess the truth is that fred is a born again christian and he believes very strongly in the law and following the law and god's law and the government's law on this maybe isn't in the record but you know he wants to enforce his right because he was not committed and he does not want to have the stigma of having been determined that he was committed and if you look at it it's also not true the regulation in the form for seventy four which requires not just the admitting physician to sign to serve cation but on page two requires a psychiatr certification and dr placa at columbia did not sign the certification so there is no certification by a psychiatrist and what the court below argued was that the commissioner didn't know what he was doing when he promulgated this form and the court basically substituted its expertise and its judgment for their judgment of the commissioner certificate an oversight or was why did news that's their problem that's their burden they're in come up with it's course it's not an oversight if you read his well what he did was he started to write a discharge summary on the second day that he was being observed and there was no i've never a treatment plan for mr phelps they didn't give him any treatment there was no treatment plan at charlie for the state said that that he did get treatment and that's why he was able to be discharged to snow treatment plan there's no evidence that he received any treatment what the court below said was that because he was in a different  environment and he you know he went to meals and he followed directions and he went to you know he did what he was told he went to meetings when they told him to go to meetings that that was treated but he never had a treatment plan to cure his so called problem the psychiatry has never found that he was mentally ill psychiatrists discharge summary said he was not mentally ill you know he had some problems and some diagnosis but it was not a diagnosis of mental illness  and about the incident that brought him into the hospital in the first place they had said and that brought him there in the first place wasn't that a mental breakdown issue  no i mean certainly there the person who requested that he be picked up and brought to the hospital you know obviously they thought there was something that needed to be looked at but that's not a compliance with the statute it's not a finding by a doctor it's not a finding by psychiatrists it's just some concern that and there and mr phelps did deny that he made any threats to any public official as as the state contends and there's no first hand evidence that he ever made any threats to any public official or just something on a piece of paper that says that didn't he have an opportunity to challenge just those facts while he was  in custody if that's while he was being held and didn't he initially try and then then then for forfeit or for go that opportunity well yes or rather he did soon as he was told the same day he was admitted or maybe it was it was i can't remember what was the day it was the the day he was admitted he got the notice about his right to erie in at eight or nine am the next morning the no the next day he filed a request for a judicial hearing and you know that what i pointed out before is that even if he had had this judicial hearing and they found that he should state the so that you know so you know yes he did invoked his right but it was cut off through no fault of his own he and obviously could have pursued and he chose not to because he was going to be getting out so that i don't i think i think the new york courts would hold that after he was released that such a hearing is moot i don't think he could have pursued that hearing after he was released he was released the next day thank you counsel services and