FILED 

MAR 3 1 2016 

4 K LINDEMAN 

CLE 

• i ° P i 

RT 

132 Nev., Advance Opinion 21 

IN THE SUPREME COURT OF THE STATE OF NEVADA 

PHONG T. VU, 

Petitioner, 

vs. 

THE SECOND JUDICIAL DISTRICT 

COURT OF THE STATE OF NEVADA, 

IN AND FOR THE COUNTY OF 

WASHOE; AND THE HONORABLE 

CHUCK WELLER, DISTRICT JUDGE, 

Respondents, 

and 

RICHARD A. GAMMICK, DISTRICT 

ATTORNEY, 

Real Party in Interest. 

No. 65498 

Original petition for a writ of mandamus challenging a district 

court order granting a petition to have petitioner involuntarily admitted to 

a mental health facility and directing transmission of the order to the 

Central Repository for Nevada Records of Criminal History. 

Petition denied. 

Jeremy T. Bosler, Public Defender, and John Reese Petty and Kathleen M. 

O'Leary, Chief Deputy Public Defenders, Washoe County, 

for Petitioner. 

Christopher J. Hicks, District Attorney, and Blaine E. Cartlidge, Deputy 

District Attorney, Washoe County, 

for Real Party in Interest. 

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BEFORE THE COURT EN BANC. 

OPINION 

By the Court, PARRAGUIRRE, C.J.: 

Under NRS 433A.310(1)(b), a district court may issue an order 

involuntarily admitting a person to a mental health facility if clear and 

convincing evidence demonstrates that the person "has a mental illness 

and, because of that illness, is likely to harm himself or herself or others if 

allowed his or her liberty." The district court's order "must be 

interlocutory and must not become final if, within 30 days after the 

involuntary admission, the person is unconditionally released." Id. "If the 

court issues an order involuntarily admitting a person. . . , the court 

shall . . . cause . . . a record of such order to be transmitted to the Central 

Repository for Nevada Records of Criminal History. . .." NRS 

433A.310(5). 

At issue in this original proceeding is whether NRS 

433A.310(5) requires a district court to transmit an admission order at the 

time it is entered or if, instead, the district court is prohibited from 

transmitting the order until it becomes final under NRS 433A.310(1)(b)— 

i.e., until 30 days have elapsed without the admitted person being 

unconditionally released. We conclude that NRS 433A.310(5)'s plain 

language requires a district court to transmit an admission order at the 

time it is entered. Thus, although the petitioner in the underlying 

proceedings was unconditionally released 12 days after the district court's 

involuntary admission order, the district court was required under NRS 

433A.310(5) to transmit the order to the Central Repository. And because 

the district court reasonably determined that clear and convincing 

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evidence justified petitioner's involuntary admission, we deny petitioner's 

request for extraordinary writ relief 

FACTS 

The Sparks Police Department responded to a call from 

petitioner Phong Vu's family in which the family requested assistance 

with Vu. According to the police report, Vu had threatened to murder his 

family, he was found with box cutters in his pocket, and he was muttering 

about murder while the police were present. The responding officers 

applied for the temporary emergency admission of Vu to a mental health 

facility, which was approved by a physician. Three days later, a 

psychiatrist filed a petition for court-ordered continued involuntary 

admission of Vu to a mental health facility. Based on her examination of 

Vu, the psychiatrist concluded that he had a mental illness and, as a 

result of that mental illness, there was an imminent risk that Vu was 

likely to harm himself or others if Vu were not involuntary admitted to a 

mental health facility. 

Vu was appointed a public defender, and a hearing on the 

petition was held before the district court. At the hearing, the Washoe 

County District Attorney's Office, representing the State, called as 

witnesses a court-appointed psychiatrist and a court-appointed 

psychologist, both of whom had interviewed Vu. The District Attorney 

elicited testimony from the psychiatrist that Vu's family had called the 

police due to their concerns that Vu posed a threat to their safety. The 

psychiatrist also testified regarding an incident in which Vu, after having 

been admitted to a facility on an emergency basis, had approached a 

doctor in a manner that the doctor perceived as threatening, thereby 

prompting the doctor to seek intervention from other employees. The 

psychiatrist further testified that Vu was refusing to take an antipsychotic 

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medication that had been prescribed to him. Summing up her opinion, the 

psychiatrist explained that although Vu had not committed any act in 

furtherance of a threat during the incidents with his family and the 

doctor, 

I believe that the perceptions that people have 

that he is threatening to them, as well as his 

inability to communicate in an organized fashion, 

put him at risk for his own safety and well-being 

that if somebody feels threatened by him, they 

may respond in a way that affects his well-being 

[because] they may feel as though they need to 

defend themselves against the threat, and they 

may not have a mental health tech or the Sparks 

Police Department [to intervene]. 

The District Attorney elicited similar testimony from the court-appointed 

psychologist, who summed up his opinion by stating, "I can't predict that 

anybody would assault [Vu], but I feel there's certainly a risk of that." 

At the end of the hearing, the district court made the following 

findings: 

[I] can glean that there exists a reasonable 

probability that a serious bodily injury will occur if 

he's discharged soon because of the fact that that's 

how people have reacted to him in recent days. 

There's nothing to suggest that his behavior has 

been modified. . . . I find that within the last 30 

days he's. . . had auditory hallucinations 

and ... some of those are paranoid. He's carried 

weapons. It may reasonably be inferred from 

these acts that without the care, supervision and 

continued assistance of others, that he will be 

unable to satisfy his personal needs for selfprotection and safety. . . unless admitted to a 

mental health facility and adequate treatment is 

provided. 

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Over defense counsel's objection, the district court directed the clerk of the 

court to forward a record of the involuntary admission order to the Central 

Repository for inclusion in the National Instant Criminal Background 

Check System (NICS)." 

Twelve days after thefl district court's admission order was 

entered, Vu was unconditionally released from the mental health facility 

based on the determination of a team of evaluators that Vu no longer 

presented a clear and present danger of harm to himself or others. See 

NRS 433A.390(2). Thereafter, Vu filed this petition for a writ of 

mandamus, asking that this court direct the district court to recall from 

the Central Repository the previously transmitted record of Vu's 

involuntary admission. As a basis for the requested relief, Vu contends 

that (1) NRS 433A.310(5) did not authorize transmission of the 

involuntary admission order unless and until that order became final 

under NRS 433A.310(1); and (2) regardless, the district court's underlying 

determination that Vu should have been involuntarily admitted was not 

supported by sufficient evidence. 

DISCUSSION 

"A writ of mandamus is available to compel the performance of 

an act that the law requires as a duty resulting from an office, trust, or 

'Records transmitted to the Central Repository are "included in each 

appropriate database of [NICS]." NRS 179A.163(1). NICS, in turn, is a 

"nationwide electronic database that licensed firearms dealers can check, 

before selling a firearm to a person, to make sure that that person is not 

prohibited under state or federal law from possessing a firearm." Hearing 

on A.B. 46 Before the Assembly Judiciary Comm., 75th Leg. (Nev., 

February 20, 2009) (statement of Kerry Benson, Deputy Attorney General, 

providing an overview of NICS and the legislation that is currently 

codified in NRS 433A.310(5)). 

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station or to control an arbitrary or capricious exercise of discretion." Ina 

Game Tech., Inc. v. Second Judicial Dist. Court, 124 Nev. 193, 197, 179 

P.3d 556, 558 (2008) (footnote omitted); see NRS 34.160. Whether to 

consider a writ petition is within this court's discretion, and writ relief is 

generally available only when "an adequate and speedy legal remedy" does 

not otherwise exist. Ina Game Tech., 124 Nev. at 197-98, 179 P.3d at 558- 

59; see NRS 34.170. 

Here, we agree with Vu that he does not have an adequate 

legal remedy other than to seek a writ of mandamus, as the district court's 

involuntary admission order never became final under NRS 

433A.310(1)(b), meaning that Vu has no right to appeal that order. See 

Taylor Constr. Co. v. Hilton Hotels Corp., 100 Nev. 207, 209, 678 P.2d 

1152, 1153 (1984) (recognizing that this court has jurisdiction to consider 

only those appeals that are authorized by a statute or court rule); see also 

NRAP 3A(b) (listing appealable orders). Additionally, the issue of whether 

NRS 433A.310(5) requires district courts to transmit involuntary 

admission orders to the Central Repository before those orders become 

final "presents an important issue of law that has relevance beyond the 

parties to the underlying litigation." Las Vegas Sands Corp. v. Eighth 

Judicial Dist. Court, 130 Nev., Adv. Op. 61, 331 P.3d 876, 878-79 (2014). 

Accordingly, we elect to entertain the petition. 

The district court was required under NRS 433A.310(5) to transmit the 

involuntary admission order to the Central Repository even though the 

order had not become final 

Vu first contends that the district court improperly directed a 

record of the involuntary admission order to be transmitted to the Central 

Repository under NRS 433A.310(5), which instructs that "Rif the court 

issues an order involuntarily admitting a person to a public or private 

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mental health facility. . . , the court shall. . . cause . . . a record of such 

order to be transmitted to the Central Repository." In support of his 

argument, Vu relies on NRS 433A.310(1)(b)'s statement that an 

involuntary admission "order of the court must be interlocutory and must 

not become final if, within 30 days after the involuntary admission, the 

person is unconditionally released pursuant to NRS 433A.390." According 

to Vu, because NRS 433A.310's subsection 1(b) numerically precedes 

subsection 5, subsection 1(b)'s distinction between an interlocutory and 

final order applies to NRS 433A.310's remaining subsections, meaning 

that subsection 5's reference to the "order" to be transmitted to the 

Central Repository is necessarily restricted to only final orders. 

We disagree with this proffered construction of the statute, as 

it goes beyond the statute's plain meaning. See In re Candidacy of 

Hansen, 118 Nev. 570, 572, 52 P.3d 938, 940 (2002) ("It is axiomatic that 

when words of a statute are plain and unambiguous, they will be given 

their plain meaning."). Subsection 5 plainly states that "Ulf the court 

issues an order. . . , the court shall. . . cause. . . a record of such order to 

be transmitted to the Central Repository." NRS 433A.310(5) (emphases 

added). Nothing in this language contemplates that a district court must 

wait 30 days to see whether its order becomes final under subsection 1(b) 

before a record of the order can be transmitted to the Central Repository, 

and we decline to read a requirement into subsection 5 that the 

Legislature itself has not imposed. 2 See Barrett v. Eighth Judicial Dist. 

2Our construction of subsection 5 is reinforced by the fact that the 

Legislature enacted subsection 5 long after it enacted the final sentence of 

subsection 1(b), see 2009 Nev. Stat., ch. 444, § 13, at 2491; 1989 Nev. Stat., 

ch. 748, § 19, at 1761, and did so without incorporating or otherwise 

continued on next page... 

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Court, 130 Nev., Adv. Op. 65, 331 P.3d 892, 895 (2014); Hansen, 118 Nev. 

at 573, 52 P.3d at 940; Cirac v. Lander Cty., 95 Nev. 723, 729, 602 P.2d 

1012, 1016 (1979). 

To the extent that Vu suggests that this construction produces 

an absurd result in light of his unconditional release after 12 days, we 

disagree. The fact that Vu was unconditionally released after 12 days did 

not imply that the district court's involuntary admission findings were 

erroneous when that order was entered; Vu's release simply demonstrated 

that he was "no longer considered to present a clear and present danger of 

harm to himself. . . or others." NRS 433A.390(2)(a) (emphasis added). 

More importantly, we are unwilling to consider a construction of 

subsection 5 that might undermine the Legislature's attempt to comply 

with federal law, as subsection 5 was enacted in response to congressional 

legislation that incentivized states to cooperate in making NICS operate 

more efficiently and comprehensively. See Hearing on A.B. 46 Before the 

Assembly Judiciary Comm., 75th Leg. (Nev., February 20, 2009) 

(statement of Kerry Benson, Deputy Attorney General, explaining that the 

language of NRS 433A.310(5) was proposed in response to Congress's 

NICS Improvement Amendments Act of 2007, which requires states to 

adopt procedures to ensure that certain records are transmitted to NICS 

as a requisite for states maintaining their eligibility for certain federal 

funds); cf. Holiday Retirement Corp. v. State, Div. of Indus. Relations, 128 

...continued 

referencing subsection l's language, see Nev. Att'y for Injured Workers v. 

Nev. Self-Insurers Ass'n, 126 Nev. 74, 84, 225 P.3d 1265, 1271 (2010) ("We 

presume that the Legislature enacted the statute with full knowledge of 

existing statutes relating to the same subject." (internal quotations 

omitted)). 

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Nev. 150, 154, 274 P.3d 759, 761 (2012) (noting that " [i] t is the prerogative 

of the Legislature, not this court, to change or rewrite a statute"). 

Therefore, we conclude that NRS 433A.310(5)'s plain language required 

the district court to transmit a record of Vu's involuntary admission order 

to the Central Repository contemporaneously with the order's entry. 

The district court reasonably determined that clear and convincing 

evidence showed that Vu was likely to harm himself 

Alternatively, Vu contends that the involuntary admission 

order should not have been transmitted to the Central Repository because 

the district court's determination that Vu should be involuntarily 

admitted was not supported by sufficient evidence. As explained, NRS 

433A.310(1)(b) permits a district court to order the involuntary admission 

of a person to a mental health facility if "there is clear and convincing 

evidence that the person with respect to whom the hearing was held has a 

mental illness and, because of that illness, is likely to harm himself or 

herself or others if allowed his or her liberty." Because an involuntary 

admission order constitutes a deprivation of the admitted person's 

constitutionally protected liberty interest, NRS 433A.310(1)(b)'s "clear and 

convincing" evidentiary standard is meant to ensure that the district court 

does not wrongfully deprive a person of that liberty interest. See 

Addington v. Texas, 441 U.S. 418, 425-26 (1979). When a district court's 

factual determinations must be supported by clear and convincing 

evidence, "we review the record and decision with a degree of deference, 

seeking only to determine whether the evidence adduced at the hearing 

was sufficient to have convinced the deciding body that [the issue to be 

determined] had been shown by clear and convincing evidence." Gilman v. 

Nev. State Bd. of Veterinary Med. Exam'rs, 120 Nev. 263, 274-75, 89 P.3d 

1000, 1008 (2004) (quotation omitted), disapproved on other grounds by 

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Nassiri v. Chiropractic Physicians' Bd. , 130 Nev., Adv. Op. 27, 327 P.3d 

487 (2014). In other words, despite the heightened evidentiary standard 

of proof that the district court in this case was required to employ, our 

review is limited to whether the district court reasonably could have 

determined that clear and convincing evidence showed that Vu was likely 

to harm himself. Gilman, 120 Nev. at 274-75, 89 P.3d at 1008; see In 

Interest of R.N., 513 N.W.2d 370, 371 (N.D. 1994) (observing that although 

the clear and convincing standard of proof in an involuntary commitment 

proceeding requires a "more probing" standard of appellate review, that 

review still entails a level of deference to the trial court's factual 

determinations); see also In re Michael H., 856 N.W.2d 603, 612, 616 (Wis. 

2014) (same); In re MH2009-002120, 237 P.3d 637, 642-44 (Ariz. Ct. App. 

2010) (same) 

Here, Vu and the District Attorney agree that Vu was 

correctly diagnosed with a mental illness. They also agree that NRS 

433A.310(1)(b)'s "likely to harm himself or herself or others" standard 

must be established by showing that Vu fell within one of four definitions 

set forth in NRS 433A.115(2) and (3). 3They further agree that the 

3The interplay between NRS 433A.310(1)(b) and NRS 433A.115 is 

not immediately apparent, particularly in light of NRS 433A.310(1)(b)'s 

"likely to harm" standard and NRS 433A.115's "clear and present danger" 

standard, discussed below. Nonetheless, it appears to have been the 

Legislature's intention that a person must fall within one of the four 

definitions set forth in NRS 433A.115(2) and (3) before that person may be 

involuntarily admitted by court order under NRS 433A.310(1)(b). See 

Hearing on S.B. 490 Before the Senate Comm. on Human Resources & 

Facilities, 65th Leg. (Nev., June 9, 1989) (statement of Holli Elder, 

Director of the Office of Protection and Advocacy, memorialized in exhibit 

C, explaining that what would become NRS 433A.115(2) and (3)'s 

definitions were "necessary to assure the consistent application and 

continued on next page... 

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definition that the district court found Vu to fall within was NRS 

433A.115(2)(a), which provides that 

[a] person presents a clear and present danger of 

harm to himself or herself if, [(1)] within the 

immediately preceding 30 days, the person has, as 

a result of a mental illness . . [akted in a manner 

from which it may reasonably be inferred that, 

without the care, supervision or continued 

assistance of others, the person will be unable to 

satisfy his or her need for nourishment, personal 

or medical care, shelter, self-protection or safety, 

and [(2)] if there exists a reasonable probability 

that the person's death, serious bodily injury or 

physical debilitation will occur within the next 

following 30 days unless he or she is admitted to a 

mental health facility. .. . . 

(Emphases added.) Vu and the District Attorney disagree, however, as to 

whether sufficient evidence supported the district court's conclusion that 

Vu fell within this definition. 

Having considered the record generated at the involuntary 

admission hearing, we agree with the District Attorney that the opinions 

elicited from the court-appointed psychiatrist and psychologist reasonably 

supported the district court's conclusion that Vu fell within MRS 

433A.115(2)(a)'s definition. In particular, the uncontroverted evidence 

demonstrated that in the 30 days preceding the hearing, Vu's family called 

the police based on their concerns that he posed a physical threat to them. 

Testimony was likewise elicited that Vu confronted a resident doctor at 

the mental health facility in a manner that the resident doctor perceived 

...continued 

interpretation of criteria that determine the potential dangerousness of a 

mentally ill person for the purpose of involuntary admission"). 

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as physically threatening. Both the psychiatrist and the psychologist 

opined that, if Vu were to act in such a manner toward a person 

unfamiliar with his mental illness, there would be a risk that the person 

would act violently in self-defense. From this evidence, the district court 

could "reasonably [have] inferred that, without the care, supervision or 

continued assistance of others, [Vu would] be unable to satisfy his . . . need 

for. . self-protection or safety." NRS 433A.115(2)(a). 

From this same evidence, combined with the testimony that 

Vu had refused to take his prescribed antipsychotic medication while 

admitted on an emergency basis prior to the district court hearing, the 

district court also could have reasonably concluded that "there exist[ed] a 

reasonable probability that [Vas . serious bodily injury. . . w[ould] 

occur within the next following 30 days unless he . . [was] admitted to a 

mental health facility." Id. While Vu argues that no evidence showed that 

he had actually committed acts in furtherance of his threats or that 

someone had actually assaulted him in self-defense or that such an assault 

would actually rise to the level of inflicting serious bodily injury, this 

argument stretches NRS 433A.115(2)(a)'s use of the phrases "reasonably 

be inferred" and "reasonable probability" too far. The statute does not 

require specific evidence "that [Vu would] be unable to satisfy his . . . need 

for. . self-protection or safety" and that "[Vu's] serious bodily injury 

[would] occur within the next following 30 days"; rather, it requires 

evidence to support the reasonable inference and reasonable probability of 

those concerns, which the District Attorney provided. Therefore, we 

concludeS that the district court reasonably determined that Vu fell within 

NRS 433A.115(2)(a)'s definition and that, in turn, involuntary admission 

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J. 

was appropriate under NRS 433A.310(1)(b)'s clear and convincing 

evidentiary standard. 

CONCLUSION 

NRS 433A.310(5) requires a district court to transmit an 

involuntary admission order to the Central Repository at the time the 

order is entered, meaning that the district court is not required to wait 30 

days for the order to become final under NRS 433A.310(1)(13). 

Additionally, the district court reasonably determined that clear and 

convincing evidence showed that Vu, at the time of the hearing, had a 

mental illness and that because of that illness, Vu was likely to harm 

himself. We therefore deny Vu's petition for extraordinary writ relief. 

Caiti a—Cr , C.J. 

Parraguirre 

We concur: 

AecA , J. 

Hardesty 

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PICKERING, J., with whom SAITTA, J., agrees, dissenting: 

The loss of liberty that occurs when an individual is 

involuntarily committed to a mental hospital is "massive." Humphrey v. 

Cady, 405 U.S. 504, 509 (1972). As a consequence, due process protections 

apply. Addington v. Texas, 441 U.S. 418, 425 (1979). Chief among those 

protections is a heightened burden of proof, meaning the State must prove 

its case for involuntary commitment by "greater than the preponderanceof-the-evidence standard applicable to other categories of civil cases." Id. 

at 432-33. The heightened standard of proof protects against an erroneous 

deprivation of liberty. It recognizes the fundamental truth that, "[alt one 

time or another every person exhibits some abnormal behavior which 

might be perceived by some as symptomatic of a mental or emotional 

disorder, but which is in fact within a range of conduct that is generally 

acceptable." Id. at 426-27. "Obviously, .. . a few isolated instances of 

unusual conduct" are not a basis 

for compelled treatment and surely none for 

confinement. . . . Loss of liberty calls for a showing 

that the individual suffers from something more 

serious than is demonstrated by idiosyncratic 

behavior. Increasing the burden of proof is one 

way to impress the factfinder with the importance 

of the decision and thereby perhaps to reduce the 

chances that inappropriate commitments will be 

ordered. 

Id. at 427. 

The State called two witnesses at Vu's involuntary 

commitment hearing, both doctors who had examined Vu and his mental 

health records. These doctors concluded that Vu did not pose a threat of 

harm to third parties, so his commitment could not be justified on that 

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statutory basis. See NRS 433A.310(1)(b) (providing for involuntary 

commitment if there is "clear and convincing evidence that the 

person. .. is likely to harm. . . others if allowed his or her liberty"). The 

State therefore proceeded on the theory that Vu presented a sufficient risk 

of harm to himself, such that his commitment was justified on that 

alternative statutory basis. See id. (providing for involuntary commitment 

if there is "clear and convincing evidence that the person. . . is likely to 

harm himself or herself. . . if allowed his or her liberty"). This alternative 

theory required the State to prove, by clear and convincing evidence, that 

Vu could not meet his basic safety and self-protection needs without the 

care, supervision, or continued assistance of others, and that there existed 

a reasonable probability that Vu would face death, serious bodily injury, or 

physical debilitation in the following 30 days unless he was 

institutionalized. NRS 433A.115(2)(A); see NRS 433A.310(1)(b). 

The uncontradicted evidence showed that Vu had a bank 

account with money in it, an apartment in which to stay, and the ability to 

feed and clothe himself. There was also no suggestion of suicidal ideation. 

From this it would seem to follow that Vu did not need to be committed to 

avoid death, serious bodily injury, or physical debilitation, but the State 

maintained otherwise. According to the State, Vu needed to be committed 

because, given his behavior and failure to take his medications, Vu might 

act threateningly toward third parties, provoking them to attack and 

injure him. Setting aside the tenuous nature of an opinion that members 

of the general public would likely assault Vu if he acted threateningly 

rather than seeking alternative help for themselves or Vu, In re Doe, 78 

P.3d 341, 367 (Haw. Ct. App. 2003) (recognizing that erratic and offensive 

behavior is not uncommon on the streets of many larger cities, and that it 

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may be just as likely the urban residents would respond with compassion 

rather than anger and violence), the State identified only two instances of 

Vu ever acting threateningly. One instance was the reason for his 

emergency hold, when his family felt threatened by his behavior, and the 

other was during Vu's emergency intake where Vu—who stands 5' 5" tall 

and weighs under 100 pounds—reportedly "broadened his shoulders" 

when facing a resident doctor. So there was actually no evidence that Vu 

would act threateningly to people other than his family, who had already 

shown the ability to call the police if his threatening behavior escalated, or 

toward those at the facility holding him against his will. Also of note, 

neither Vu's family nor the resident doctor testified at the hearing, and 

the doctors who did testify indicated that Vu isolated himself from others, 

not that he acted aggressively toward them. 

But more significantly, though the doctors generally opined 

that a stranger might harm Vu if Vu were released, the only testimony 

directed toward the seriousness of the harm Vu might face was Dr. Lewis's 

answer of "Yes" to the following question posed by the district attorney: 

You indicated that Mr. [Vu] meets criteria for 

basic needs, self-protection and safety. When you 

apply that basic need in your normal course every 

Wednesday and every time you testify, does that 

include the provision that there does exist a 

reasonable probability that his death, serious 

bodily injury or physical debilitation will occur 

within the next following 30 days unless he's 

admitted? 

The State asked this question of Dr. Lewis on redirect examination, and it 

prompted an objection from Vu's counsel as being outside the scope of Dr. 

Lewis's cross-examination, to which the district court responded: "It 

3 
certainly is but I'll allow the question." Shortly thereafter, during the 

State's closing argument, the district court interrupted and said that as to 

the reasonable probability of death, serious bodily injury, or physical 

debilitation prong: 

Apparently, you want me to glean that 

information, it only came out from you outside the 

scope of direct examination on your second doctor 

witness and I frankly don't understand why you 

don't ask that question. Why you don't look at the 

criteria and ask the questions. 

In Vu's closing argument, his attorney asked whether the court had heard 

from Dr. Lewis "a single description of how that death was going to occur, 

what the serious bodily injury was going to be, why he thought it was 

going to occur in the next 30 days or even what that physical debilitation 

would be?" and the district court acknowledged "No, I didn't and I just 

talked to the District Attorney that I don't think that criteria was 

examined other than briefly and oddly." 

Under NRS 433A.115(2)(a) and NRS 433A.310(1)(b), the State 

was required to prove, by clear and convincing evidence, that there existed 

a reasonable probability that Vu would face death, serious bodily injury, or 

physical debilitation in the following 30 days unless he was 

institutionalized That NRS 433A.115(2)(a) requires a showing of a 

reasonable probability that the person would face the types of serious 

harm listed means that undoubtedly there is room for prediction and less 

than certainty as to whether the person actually will experience serious 

harm or exactly what shape it may take. But testimony that consists 

solely of a "Yes" to a disjointed leading question on redirect examination 

as to whether that doctor generally included in his basic needs analysis 

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whether Vu would face serious harm, without any explanation as to why 

that doctor thought Vu would face such harm or any estimation of what 

such harm might entail, is insufficient evidence to convince a rational factfinder, by clear and convincing evidence, that a reasonable probability 

existed that Vu would face death, serious bodily injury, or physical 

debilitation if not confined See In re Discipline of Drakulich, 111 Nev. 

1556, 1566-67, 908 P.2d 709, 715 (1995) (clear and convincing evidence 

must be "so strong and cogent as to satisfy the mind and conscience of a 

common man. . . . It need not possess such a degree of force as to be 

irresistible, but there must be evidence of tangible facts from which a 

legitimate inference. . . may be drawn." (quoting Gruber v. Baker, 20 Nev. 

453, 477, 23 P. 858, 865 (189W)). 

Had the State proved its case, I would agree with the majority 

that Vu's involuntary commitment order was properly transmitted to 

Central Repository for Nevada Records of Criminal History under NRS 

433A.310(5). Indeed, this is one of the stigmatizing consequences that 

justifies the high burden of proof the State must shoulder to obtain an 

involuntary commitment order. See Addington, 441 U.S. at 425-26 ("it is 

indisputable that involuntary commitment to a mental hospital" 

stigmatizes the individual and engenders both a "significant deprivation of 

liberty" and a host of "adverse social consequences"). But given the State's 

sparse and speculative evidence in this case, including the exceedingly 

summary testimony on the risk of harm Vu faced if not institutionalized, I 

would hold that Vu should not have been detained beyond the initial 

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emergency hold. I thus would grant Vu a writ of mandamus directing the 

district court to vacate the admission order and to recall its report. 

Pickering 

I concur: 

Saitta 

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