Patient Calls NY Info-Sharing Unconstitutional

ROCHESTER, N.Y. (CN) - New York state is collecting confidential information on mental health patients to create a database of people it deems unfit to carry a firearm, according to a federal class action.

Lead plaintiff Donald Montgomery claims the state created a reporting system, as part of the New York Secure Ammunition and Firearms Enforcement Act (Safe Act), that forces health professionals to transmit mental health patients' confidential information to a database shared by various government agencies, including law enforcement. It was part of the state's response to the rash of mass shootings over the past several years, in particular, that in Newtown, Conn.

Montgomery estimates that medical providers have reported such information on more than 60,000 people.

Gov. Andrew Cuomo, the lead defendant, signed the Safe Act into law in January 2013. Montgomery calls him "the principal architect of the Act."

New York Mental Hygiene Law 9.46 compels health professionals to report patients' data to the state if they feel the patients' actions are "likely to result in serious harm to self or others," the complaint states.

"The personal health information amassed includes, but is not limited to, any mental health diagnosis of a patient. The personal health information is shared by numerous agencies, including, but not limited to law enforcement and non-state agencies and offices," the lawsuit states.

"The state does not use a subpoena to obtain this confidential personal health information. The state has made the affirmative misrepresentation to medical professionals and others that transmitting this data is lawful."

Neither the state nor the treatment providers notify patients about the information sharing, the lawsuit states. It adds: "The Office of Mental Health underplays and misrepresents the seriousness of the personal health information being transmitted. The state intends its operations around MHL 9.46 to be conducted in a secretive and over-reaching manner."

The law defines mental health professionals as physicians, psychologists, registered nurses and social workers, according to the lawsuit.

Montgomery, a Navy veteran and retired police officer, claims defendant Eastern Long Island Hospital incorrectly labeled him as an "involuntary admission," leading to the revocation of his pistol permit and his handguns being seized by the Suffolk County Sheriff's Department, on orders from the New York State Police.

"The New York State Police sent a letter to the Suffolk County Clerk's Office wrongfully stating that the plaintiff 'has been adjudicated as a mental defective or has been involuntarily committed to a mental institution' and that the plaintiff was prohibited from possessing a firearm, rifle, or shotgun," the complaint states.

"The NYS Police have taken the position of directing local law enforcement agencies and offices to conduct warrantless searches and seizures of the homes and personal properties of persons reported through MHL 9.46 to seize all firearms and licenses."

Montgomery, who says he has no mental health history and no pre-existing medical conditions, says he presented himself to Eastern Long Island Hospital for sleep deprivation, and was released less than 48-hours later.

Unbeknownst to Montgomery, the hospital labeled him an "involuntary admission," disqualifying him from owning or carrying a firearm under the new law.

He claims that when patients' information is sent to the state police, they check it against other databases, including a database of pistol permit holders.

Montgomery questions whether a person's mental health status is related to a propensity to commit violence. Neither federal law enforcement agencies nor the state has developed a profile of the "mass shooter," the complaint states.

It adds: "According to the American Psychological Association, there is no study that predicts future violence."

The lawsuit cites testimony from a New York State Senate Committee hearing after passage of the Act.

It claims that attorney Carla Rabinowitz, public policy chair of the New York Association of Psychiatric Rehabilitation Services, testified that people with mental health issues "are 12 times more likely to become a victim of a crime than to commit a crime, and are five times more likely than a member of the general public to become a murder victim."

Rabinowitz testified that "there is no study demonstrating a person facing mental health issues is any more likely than a member of the general public to commit a violent crime," the lawsuit states.

Montgomery claims the law could discourage people from seeking treatment.

He claims that New York State Psychological Association President Eric Neblung, Ph.D., testified that the "chilling effect upon patients" includes "fear of triggering a sudden and dramatic government intrusion into their private lives."

"To report every person who seeks medical or mental health support services through a government mandate or sponsored program is to fuel the fire of the stigma of a class of persons who are more likely to be victimized than to commit violent crimes with firearms, such as mass shootings," according to the lawsuit.

Neblung said more powerful predictors of violence are active substance abuse, the presence of environmental stressors and a history of violence.

Montgomery wants the law declared unconstitutional, and its enforcement enjoined.

Named as defendants are Gov. Cuomo; New York State Office of Mental Health Commissioner Ann Marie Sullivan; Executive Deputy Commissioner of the New York State Division of Criminal Justice Services Michael Greene; Superintendent of New York State Police Joseph D'Amico; Suffolk County Sheriff's Department Officer Vincent Demarco; and Eastern Long Island Hospital.

Montgomery is represented by Paloma Capanna, of Webster, N.Y.

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