Montgomery v. Cuomo et al

Filing 55

ORDER granting 24 Motion to Dismiss for lack of standing Rule 12(b)(1); finding as moot 3 Motion for Preliminary Injunction; granting 22 Motion to Dismiss for lack of standing Rule 12(b)(1). Signed by Hon. Charles J. Siragusa on 03/05/18. (MJK)<p>-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DONALD MONTGOMERY, ANDREW CARTER,
LOIS REID and KARL BECHLER,
-v-

Plaintiffs,

DECISION AND ORDER
14-CV-6709 CJS

GOV. ANDREW M. CUOMO, Governor of the
State of New York, ANN MARIE T. SULLIVAN,
Commissioner of the New York State Office of
Mental Health, MICHAEL C. GREEN, Executive
Deputy Commissioner of the New York State
Division of Criminal Justice Services, GEORGE
P. BEACH, II, Superintendent of the New York
State Police, VINCENT DeMARCO, Suffolk
County Sheriffs Department, EASTERN
LONG ISLAND HOSPITAL,
Defendants.

APPEARANCES
For Plaintiffs:

For Andrew M. Cuomo,
Ann Marie T. Sullivan,
Michael C. Green and
George P. Beach, II:

For Suffolk County:

For Eastern Long Island
Hospital:

Paloma A. Capanna, Esq.
633 Lake Road
Webster, New York 14580

Monica A. Connell, Esq.
William J. Taylor, Jr., Esq.
Office of the New York State Attorney General
120 Broadway
New York, New York 10271
Rudolph M. Baptiste, Esq.
Office of the Suffolk County Attorney
100 Veterans Memorial Highway
P.O. Box 6100
Hauppauge, New York 11788

Catherine A. Brennan, Esq.
James F. Farrell, Jr., Esq.
Fumuso Kelly DeVerna Snyder Swart & Farrell, LLP
110 Marcus Boulevard, Suite 500
Hauppauge, New York 11788

INTRODUCTION
New York Mental Hygiene Law (“MHL”) § 9.46 requires mental-health treatment
providers to report patients who appear to pose a threat of serious harm to themselves or
others. Then, if the patient reported under MHL § 9.46 has a New York State firearms
license, New York Penal Law (“PL”) 400.00(11)(b) requires that the license be suspended
or revoked, and that the patient’s firearms be seized. Plaintiffs bring this action pursuant
to, inter alia, 42 U.S.C. § 1983, alleging that these enactments violate the Federal statutory
and constitutional rights of gun owners who seek mental health treatment. Plaintiffs further
maintain that New York State is encouraging mental health treatment providers to file such
reports against even non-dangerous patients, especially patients who are admitted to
hospitals for any type of mental health treatment, because the State wishes to disarm its
citizens and obtain financial incentives from the federal government in exchange for
reporting such patients to the National Instant Criminal Background Check System
(“NICS”).1 Now before the Court are Plaintiffs’ application for preliminary injunctive relief
(Docket No. [#3]) and Defendants’ motions to dismiss (Docket Nos. [#22][#24][State
Defendants’ Motion]). Defendants’ motions to dismiss are granted, Plaintiff’s motions for
preliminary injunctive relief and for leave to amend are denied, and this action is dismissed.

1“The Brady Handgun Violence Prevention Act (the “Brady Act”), Pub. L. No. 103-159, 107 Stat. 1536
(1993) . . . created the National Instant Criminal Background Check System (“NICS Background Check”)
to prevent the transfer of firearms to individuals barred from firearm possession by federal or state law. 18
U.S.C. §§ 922(t),(g),(n). All persons attempting to purchase firearms must undergo an NICS Background
Check. See 18 U.S.C. §§ 922(t), 923(a). As part of that procedure, prospective customers must complete
a firearms transaction record known as the ATF Form 4473, which elicits personal information and
propounds questions to certify that the customer is qualified to possess a firearm under the enumerated
Brady Act factors. 27 C.F.R. § 478.124; 28 C.F.R. § 25.7(a); 18 U.S.C. § 922(g)(1)-(9),(n) (setting forth ten
conditions that render an individual ineligible to purchase a firearm). The Form 4473 information is then
compared against databases from multiple agencies, including the Federal Bureau of Investigation's
National Crime Information Center (“NCIC”). See 28 C.F.R. § 25.6(c)(1)(iii).” Robinson v. Sessions, No.
17-1427-CV, 2018 WL 456725, at *1 (2d Cir. Jan. 18, 2018).

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BACKGROUND
New York’s Secure Ammunition and Firearms Enforcement Act of 2013 (the “SAFE
Act”) was enacted in January 2013, following a series of mass shootings around the United
States by mentally disturbed individuals. At least some of the shooters in these incidents
were able to legally obtain firearms even though they were known to be dangerous by their
mental health treatment providers.2 Adopted as part of the SAFE Act,3 MHL § 9.46
provides as follows:
§ 9.46 Reports of substantial risk or threat of harm by mental health
professionals
(a) For purposes of this section, the term “mental health professional” shall
include a physician, psychologist, registered nurse or licensed clinical social
worker.
(b) Notwithstanding any other law to the contrary, when a mental health
professional currently providing treatment services to a person determines,
in the exercise of reasonable professional judgment, that such person is
likely to engage in conduct that would result in serious harm to self or others,
he or she shall be required to report, as soon as practicable, to the director
of community services, or the director's designee, who shall report to the
division of criminal justice services whenever he or she agrees that the
person is likely to engage in such conduct. Information transmitted to the
division of criminal justice services shall be limited to names and other
non-clinical identifying information, which may only be used for determining
whether a [firearms] license issued pursuant to section 400.00 of the penal
law should be suspended or revoked, or for determining whether a person
2See, generally, State Defendants Motion to Dismiss, Ex. 37, Shaundra K. Lewis, Firearm Laws ReduxLegislative Proposals for Disarming the Mentally Ill Post-Heller and Newtown, Mental Health Law & Policy
Journal, Vol. 3, at pp. 328-334 (2014).
3The SAFE Act amended New York’s Criminal Procedure Law, Correction Law, the Family Court Act,
Executive Law, the General Business Law, the Judiciary Law, the Mental Hygiene law, the Penal Law and
the Surrogate's Court Procedure Act. See, 2013 Sess. Law News of N.Y. Ch. 1 (S. 2230) (McKINNEY'S)

3

is ineligible for a license issued pursuant to section 400.00 of the penal law,
or is no longer permitted under state or federal law to possess a firearm.
(c) Nothing in this section shall be construed to require a mental health
professional to take any action which, in the exercise of reasonable
professional judgment, would endanger such mental health professional or
increase the danger to a potential victim or victims.
(d) The decision of a mental health professional to disclose or not to disclose
in accordance with this section, when made reasonably and in good faith,
shall not be the basis for any civil or criminal liability of such mental health
professional.
New York Mental Hygiene Law § 9.46 (West 2018) (emphasis added).
MHL § 9.46 works in tandem with New York Penal Law § 400.00(11)(b) (referenced
above in MHL § 9.46(b), and also adopted as part of the SAFE Act) to remove guns from
persons with pistol licenses who have been identified as being likely to engage in conduct
that would result in serious harm to themselves or others. In particular, Penal Law §
400.00(11) states in pertinent part:
Whenever the director of community services or his or her designee makes
a report pursuant to section 9.46 of the mental hygiene law, the division of
criminal justice services shall convey such information, whenever it
determines that the person named in the report possesses a [firearms]
license issued pursuant to this section, to the appropriate licensing official,
who shall issue an order suspending or revoking such license.
NY Penal Law § 400.00(11)(b) (emphasis added).
Accordingly, MHL § 9.46 requires “mental health professionals,” including doctors,
psychologists, registered nurses and licensed clinical social workers, to make a notification
when they reasonably believe in their professional judgment that a patient under their
treatment “is likely to engage in conduct that would result in serious harm to self or others,”
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provided that they can do safely. In particular, such mental health professionals must
notify the State of New York’s Office of Mental Health (“OMH”) “director of community
services, or the director’s designee.” An OMH “‘director of community services’ [(“DCS”)]
means a county’s director of community services for the mentally disabled appointed
pursuant to article forty-one of [the Mental Hygiene Law].” N.Y. Mental Hyg. Law § 9.01
(McKinney 2017). Article 41 of the Mental Hygiene Law requires each county (in order to
be eligible for state aid) to maintain a Local Governmental Unit (“LGU”) to oversee the
delivery of mental health services within the county. See, MHL § 41.05(a). The DCS is the
chief executive officer of the LGU, see, MHL § § 41.05(c), 41.09, and is a county
employee.
To facilitate the making of notifications under MHL § 9.46, the State of New York
created a computer system, called the Integrated SAFE Act Reporting System (“ISARS”),
for transmitting patient information between mental health care providers and their local
DCS. Such information includes the patient’s name, address, date of birth, Social Security
Number, sex, race, and diagnosis, along with an explanation for why the mental health
professional believes the patient poses a specific threat.4 The ISARS system is used only
to file reports under MHL § 9.46, and not to file reports that might be required under other
sections of the Mental Hygiene Law. In that regard, mental health professionals access
ISARS by going to the OMH website and clicking on links identified as either “NY SAFE

4See, e.g., OMH ISARS User’s Manual, Vertions 1.0.2.9 (Sep. 28, 2015) (“ISARS Users Manual”),
nics.ny.gov/docs/user_guide.pdf According to the website maintained by the New York State Office of
NICS Appeals & SAFE Act, “Mental health professionals should convey information necessary to allow the
DCS to review the matter and determine if a report to the NYS Division of Criminal Justice Services
(DCJS) is required (e.g., what clinical evidence, history, and risk factors have caused the mental health
professional to conclude that the patient is likely to engage in conduct that would result in serious harm to
self or others).” http://nics.ny.gov/sa-faq.html

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Act” or “9.46 Reporting.”5
If, after reviewing a report filed by a mental health professional, the DCS “agrees
that the person [named in the report] is likely to engage in [seriously harmful] conduct,” he
or she must notify the New York State Division of Criminal Justice Services (“DCJS”) of that
fact.

DCJS is an agency that provides a wide variety of services related to law

enforcement, including “maintain[ing] criminal history records and fingerprint files and
perform[ing] background checks for employment and licensure.”6

To make such a

notification, a DCS transmits information to DCJS using the Integrated Justice (“IJ”) Portal.7
Such information is required to be limited to the patient’s “name[ ] and other non-clinical

5ISARS Users Manual at p. 7 (“1. SAFE Act Users can enter the application in one of two ways:
a. through the OMH home page at http://www.omh.ny.gov by clicking the “NY SAFE ACT” link, then
clicking the “9.46 Reporting” link at http://www.omh.ny.gov/omhweb/safe_act/. (Additional SAFE ACT
Reporting resources are available at this site). b. or by directly accessing the reporting portal by typing this
URL in to their web browser: https://nysafe.omh.ny.gov.”).
6See, http://www.criminaljustice.ny.gov/crimnet/mail.htm (“The agency provides direct training to law
enforcement and other criminal justice professionals; oversees a law enforcement accreditation program;
ensures Breathalyzer and speed enforcement equipment used by local law enforcement operate correctly;
manages criminal justice grant funds; analyzes statewide crime and program data; provides research
support; oversees county probation departments and alternatives to incarceration programs; and
coordinates juvenile justice policy. DCJS maintains criminal history records and fingerprint files and
performs background checks for employment and licensure. The agency also administers the state’s Sex
Offender Registry; the Missing Persons Clearinghouse; the state's DNA Databank in cooperation with the
New York State Police Forensic Investigation Center; and provides staff support to independently
appointed commissions and councils, including the New York State Commission on Forensic Science,
which monitors and accredits the state’s forensic laboratories.”).
7Aff. of Donna Marie Call at ¶ 17 (“All information received by DCJS pursuant to the Mental Hygiene Law,
including all information received pursuant to MHL § 9.46, is maintained as confidential. Such information
is sent and received by DCJS via the Integrated Justice (IJ) portal. The IJ portal utilizes encryption that
meets FBI Criminal Justice Information (CJIS) data encryption policy.”). Apparently, then, ISARS is only
used to send MHL § 9.46 reports from mental health providers to the DCS.

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identifying information.” Mental Hygiene Law § 9.46(b).8 In other words, a DCS does not
send DCJS information about a patient’s diagnosis or the reasons why the patient is
believed to be dangerous. When DCJS receives a § 9.46 report, it adds the patient’s name
to a state database created as part of the SAFE Act,9 and then checks to see whether the
patient holds a New York firearms license or has applied for one. If so, DCJS notifies “the
appropriate [firearms] licensing official” (usually a judge, sheriff or police commissioner).10
In particular, if DCJS finds that the patient reported under MHL § 9.46 has a firearms
license, it notifies the New York State Police (“NYSP”), which double checks the firearmslicense database and then provides notice to the licensing official.11 Upon receiving such
notice under MHL § 9.46, the “appropriate licensing official” must either suspend or revoke
the patient’s firearms license. Penal Law § 400.00(11)(b).
Upon such mandatory suspension or revocation of the patient’s pistol license under

8DCJS is permitted to retain such information for a period of five years, after which it is supposed to
destroy the information. See New York Executive Law § 837(19) (“The division shall have the following
functions, powers and duties: . . . 19. Receive names and other non-clinical identifying information
pursuant to section 9.46 of the mental hygiene law; provided, however, any such information shall be
destroyed five years after such receipt, or pursuant to a proceeding brought under article seventy-eight of
the civil practice law and rules determining that an individual is eligible for a license pursuant to section
400.00 of the penal law and otherwise permitted to possess a firearm.”).
9See, Penal Law § 400.02 (“Statewide license and record database”).
10“Licensing officer” means in the city of New York the police commissioner of that city; in the county of
Nassau the commissioner of police of that county; in the county of Suffolk the sheriff of that county except
in the towns of Babylon, Brookhaven, Huntington, Islip and Smithtown, the commissioner of police of that
county; for the purposes of section 400.01 of this chapter the superintendent of state police; and
elsewhere in the state a judge or justice of a court of record having his office in the county of issuance.”
N.Y. Penal Law § 265.00(10) (McKinney 2017).
11See, e.g., Complaint [#1] at ¶ ¶ 86-87. The NYSP actually maintains the state-wide database of
firearms license holders. Pl. Prelim. Inj. Motion, Exhibit Group D, Ex. 5, OMH Guidance Document at p. 5;
see also, id., Exhibit Group D, Ex. 10 NYS Police SAFE Act Field Guide at p. 2; see also, id. at p. 13
(“DCJS will notify the State Police to confirm the existence of the license and the licensing authority will be
notified so they can make a determination as to whether to suspend or revoke the subject’s license.”); see
also, Affidavit of Donna Marie Call, ¶ 13.

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MHL § 9.46 and PL 400.00(11)(b), “an appropriate law enforcement agency” must seize
all of the patient’s guns, including those for which no license is required. On this point,
Penal Law § 400.00(11)(c) states:
In any instance in which a person's license is suspended or revoked under
paragraph . . . (b) of this subdivision, such person shall surrender such
license to the appropriate licensing official and any and all firearms, rifles, or
shotguns owned or possessed by such person shall be surrendered to an
appropriate law enforcement agency as provided in subparagraph (f) of
paragraph one of subdivision a of section 265.20 of this chapter. In the event
such license, firearm, shotgun, or rifle is not surrendered, such items shall
be removed and declared a nuisance and any police officer or peace officer
acting pursuant to his or her special duties is authorized to remove any and
all such weapons.
N.Y. Penal Law § 400.00(11)(b)&(c) (McKinney 2017). An “appropriate law enforcement
agency,” as mentioned above, is defined to include “the sheriff of the county in which such
person [surrendering weapons] resides.” Penal Law § 265.20(1)(f) (McKinney 2017).12
In sum, whenever a mental health professional and DCS issue notifications under
§ 9.46 concerning a patient, DCJS determines whether the patient has a firearms license
and, if so, NYSP notifies13 the local licensing official, who must at least suspend the
license, thereby requiring the patient to immediately surrender all of his firearms to the
police. In the event that the patient fails to surrender his guns, Penal Law § 400.00(11)(c)

12“[S]uch surrender shall be made to the superintendent of the division of state police or a member
thereof designated by such superintendent, or to the sheriff of the county in which such person resides, or
in the county of Nassau or in the towns of Babylon, Brookhaven, Huntington, Islip and Smithtown in the
county of Suffolk to the commissioner of police or a member of the police department thereof designated
by such commissioner, or if such person resides in a city, town other than one named in this
subparagraph, or village to the police commissioner or head of the police force or department thereof or to
a member of the force or department designated by such commissioner or head;” N.Y. Penal Law §
265.20(1)(f) (McKinney 2017) (emphasis added).
13As will be discussed further below, NYSP uses a particular form letter to make this notification. See, Pl.
Prelim. Inj. Motion, Exhibit Group H, Ex. 37.

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authorizes the police to take them.
MHL 9.46 and PL 400.00(11)(b) affect persons who have firearms licenses. These
provisions would have no immediate effect on gun owners who do not have pistol licenses.
For example, if a DCS forwarded a § 9.46 report to DCJS concerning an individual who
owned a shotgun but did not have a pistol license, DCJS would not find the person’s name
in the firearms license database. DCJS would therefore add the person’s name to the
database created by PL § 400.02 (where it would remain for five years), but would not
notify the local licensing officer, and the report would not result in the seizure of the
shotgun.
The aforementioned SAFE Act provisions were adopted in addition to existing
provisions of New York Mental Hygiene Law Article 9, which provide for the hospitalization
and treatment of mentally-ill individuals. For example, MHL § § 9.1314 and 9.1515 allow
persons to voluntarily admit themselves to a hospital for mental health treatment, without
having to show that they pose a threat to themselves or to others. Also, MHL § 9.27 allows
a person to be involuntarily admitted to a mental hospital, upon the “certification by two
physicians that [the] individual has a mental illness for which care and treatment as a
patient in a hospital is essential to the person’s welfare,”16 but does not require “an active

14MHL § 9.13, entitled “Voluntary Admissions,” subsection (a), states in pertinent part: “The director of
any hospital may receive as a voluntary patient any suitable person in need of care and treatment, who
voluntarily makes written application therefor.”
15MHL § 9.15, entitled “Informal Admissions,” states: “The director of any hospital approved by the
commissioner for such purpose may receive therein as an informal patient any suitable person in need of
care and treatment requesting admission thereto. Such person may be admitted as a patient without
making formal or written application therefor and any such patient shall be free to leave such hospital at
any time after such admission.”
16Pl. Prelim. Inj. Motion, Exhibit Group D, Ex. 5, OMH Guidance Document.

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display of dangerous behavior.”17
On the other hand, other provisions of MHL Article 9 provide for involuntary
admission of patients who are actively displaying dangerous behavior. MHL § 9.37 states
that a hospital may involuntarily admit a patient who “has a mental illness for which
immediate inpatient care and treatment in a hospital is appropriate and which is likely to
result in serious harm to himself or herself or others,” while MHL § 9.39 provides for the
involuntary admission, for up to fifteen days, of “any person alleged to have a mental
illness for which immediate observation, care, and treatment in a hospital is appropriate
and which is likely to result in serious harm to himself or others.” MHL § 9.45 also gives
a DCS the power to remove someone to a hospital upon a report that the person “has a
mental illness for which immediate care and treatment in a hospital is appropriate and
which is likely to result in serious harm to himself or herself or others.” Further, MHL § 9.41
permits police officers to take into custody “any person who appears to be mentally ill and
is conducting himself in a manner which is likely to result in serious harm to himself or
others,” and to transport such person to a hospital.
As used in these statutes and throughout MHL Article 9, a finding that a patient is
“likely to result in serious harm to himself or others” must be supported by certain signs:
“likelihood to result in serious harm” or “likely to result in serious harm”
means (a) a substantial risk of physical harm to the person as manifested by
threats of or attempts at suicide or serious bodily harm or other conduct
demonstrating that the person is dangerous to himself or herself, or (b) a
substantial risk of physical harm to other persons as manifested by homicidal
17OMH SAFE Act Guidance Document at p. 3 (“The courts have interpreted the 2 PC standard as
requiring both mental illness and a finding that the person is dangerous to self or others, but such
dangerousness may be found even without an active display of dangerous behavior, conduct, or threats if
the person has a history of dangerous conduct associated with noncompliance with mental health
treatment programs.”).

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or other violent behavior by which others are placed in reasonable fear of
serious physical harm.
N.Y. Mental Hyg. Law § 9.01 (McKinney 2018).
This is the same standard to be applied under MHL § 9.46. Not only is the relevant
language in § 9.46 essentially identical to the language in § 9.01, but OMH interprets the
definitions consistently. In that regard, after passage of the SAFE Act, OMH issued various
instructions to mental health professionals, explaining how to apply newly-enacted § 9.46,
and, in particular, how to interpret § 9.46's reporting standard, “likely to engage in conduct
that will cause serious harm to self or others.” For example, OMH issued a “Guidance
Document” explaining that such standard is consistent with, and should be interpreted the
same as, the standards contained in MHL § § 9.39 and 9.45, but is different than the
standard under MHL § 9.27:
With respect to initial reports made by mental health professionals, the
reporting standard is ‘likely to engage in conduct that will cause serious harm
to self or others.’ This standard is consistent with the ‘likely to result in
serious harm to self or others’ standard that a [DCS] or designee uses to
direct emergency ‘removals’ from the community to a psychiatric hospital for
examination under MHL Section 9.45. This is also consistent with the
standard for emergency admissions for observation, care and treatment
pursuant to MHL Section 9.39.
As such, decision making with respect to a Section 9.46 report requires a
clinical determination that a person’s clinical state creates either: ‘(a) a
substantial risk of physical harm to the person, as manifested by threats of
or attempts at suicide or serious bodily harm or other conduct demonstrating
that the person is dangerous to himself or herself, or (b) a substantial risk of
physical harm to other persons as manifested by homicidal or other violent
behavior which places others in reasonable fear of serious physical harm.’
The standard differs from the non-emergency, involuntary commitment
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standard pursuant to MHL Section 9.27 (i.e., the ‘2 PC’ standard). The ‘2
PC’ standard requires certification by two physicians that an individual has
a mental illness for which care and treatment as a patient in a hospital is
essential to the person’s welfare. Furthermore, the person’s judgment must
be so impaired that s/he is unable to understand the need for care and
treatment. The courts have interpreted the 2 PC standard as requiring both
mental illness and finding that the person is dangerous to self or others, but
such dangerousness may be found even without an active display of
dangerous behavior, conduct , or threats if the person has a history of
dangerous conduct associated with noncompliance with mental health
treatment programs. Accordingly, a person could meet the ‘2 PC’ standard,
but still not pose a risk of harm that justifies action pursuant to either the
emergency removal or admission standard, or the 9.46 standard.
Because the 9.46 standard is consistent with the standard that is used for
emergency removals and admissions under MHL Article 9, a person who
requires a Section 9.46 report could simultaneously require an emergency
removal to a psychiatric hospital for an examination pursuant to MHL Section
9.41, 9.43, or 9.45. Depending on the results of the examination, such
person could also thereafter be admitted and retained in a hospital pursuant
to MHL Section 9.39.18
Additionally, OMH has made an instructional power point on the SAFE Act available,
entitled “NY SAFE Act Introduction for Mental Health Providers.”19 This document indicates
that MHL § 9.46's “likely to engage in conduct that will cause serious harm to self or others”
standard is consistent with the “likely to result in serious harm” definition in MHL § 9.01,
which “justifies the need for immediate action, such as an involuntary transport by police
or an ambulance service to a psychiatric hospital for an examination.”20 According to OMH,
therefore, a person who must be reported under MHL § 9.46 should also be a candidate

18OMH Guidance Document, State Defs. Mtn to Dismiss, Ex. 11 at pp. 2-3.
19State Defs. Mtn. to Dismiss, Ex. 12.
20State Defs. Mtn to Dismiss, Ex. 12 at p. 5.

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for emergency involuntary transport to hospital and/or involuntary admission.
Prior to the SAFE Act, and continuing to the present, a person who is involuntarily
admitted to a hospital for mental treatment under MHL Article 9 becomes federally
disqualified from having any type of firearm. In particular, 18 U.S.C. § 922(d)(4) , states
that “[i]t shall be unlawful for any person to sell or otherwise dispose of any firearm or
ammunition to any person knowing or having reasonable cause to believe that such person
. . . has been adjudicated as a mental defective or has been committed to any mental
institution,” while 18 U.S.C. § 922(g)(4) states that “[i]t shall be unlawful for any person .
. . who has been adjudicated as a mental defective or who has been committed to a mental
institution” to possess any firearm or ammunition.21
The relevant federal regulation explains that the term “committed to a mental
institution” “includes a commitment to a mental institution involuntarily.” 27 C.F.R. §
478.11.22 Significantly, any involuntary commitment under MHL Article 9, including under
MHL § 9.27, constitutes a disqualifying “commitment to a mental institution” for purposes
of 18 U.S.C. § 922(g)(4). 23 However, the term “committed to a mental institution” “does
21However, while 18 U.S.C. § 922(g)(4) makes it illegal for persons who have been involuntarily
committed to possess firearms, it does not compel the seizure of any firearms that such persons may
already possess.
22This same regulation defines a “mental institution” as follows: “Mental institution. Includes mental health
facilities, mental hospitals, sanitariums, psychiatric facilities, and other facilities that provide diagnoses by
licensed professionals of mental retardation or mental illness, including a psychiatric ward in a general
hospital.” 27 C.F.R. § 478.11.
23See, 14 NYCRR 543.4(b) (“Committed to a mental institution means, as such term is defined in Federal
regulations at 27 C.F.R. 478.11, a formal commitment of a person to a mental institution by a court, board,
commission, or other lawful authority. Such term includes a commitment to a mental institution
involuntarily[.] . . . For purposes of this Part, committed to a mental institution shall include persons who
have been involuntarily committed or confined pursuant to article 9 or 10 of the Mental Hygiene Law.”).
See also, U.S. v. Waters, 23 F.3d 29 (2d Cir. 1994). Where an individual has been involuntarily
committed, the subsequent application of § 922(g)(4) to prevent him from owning or possessing firearms
does not violate the Second Amendment. See, Heller v. Bedford Cent. Sch. Dist., 665 F. App'x 49, 54 (2d
Cir. 2016) (“Restrictions on the purchase of guns by the mentally ill are presumptively lawful. Heller's

13

not include [the placement of] a person in a mental institution for observation or a voluntary
admission to a mental institution.” 27 C.F.R. § 478.11.
Prior to the SAFE Act, the fact that a person was involuntarily committed, and
therefore disqualified by 18 U.S.C. § 922(g)(4) from possessing firearms, did not result in
the suspension or revocation of that person’s New York pistol license.24 As part of the
SAFE Act, though, the firearms licenses of persons who have been involuntarily committed
are revoked, and any firearms possessed by such persons are taken. See, PL § §
400.00(1)(j) & (11)(a)&(c) (Indicating that persons who have been involuntarily committed
are not eligible for firearms licenses, and that if a person who holds a firearms license later
becomes ineligible, his license is revoked and his guns must be surrendered). In that
regard, New York now checks reports of involuntary admissions against the state’s firearms
database.25 Such a revocation differs from the suspension/revocation that takes place
under MHL § 9.46.

Specifically, pursuant to Penal Law § 400.02, an “involuntary

Second Amendment claim was properly dismissed because the restriction on gun purchases by
individuals committed to a mental institution is presumptively lawful, and because Heller has not stated a
plausible claim that he was improperly committed.”) (citations omitted).
24See, Aff. of Donna Marie Call, ¶ 9, n. 2 (“The SAFE Act amended Penal Law § 400.00 to amend the
eligibility requirements for a firearms license in New York to conform with federal law, so that those
persons who are federally prohibited from possessing guns, including those disqualified on mental health
grounds under 18 U.S.C. § 922(g)(4), are also expressly precluded from having a firearms license by
state law.”).
25See, Aff. of Donna Marie Call, ¶ 9, n. 2 (“[R]eports of involuntary commitments which have been made
to NICS for years, are now also run against a database of State firearms licensees to identify those
persons who are not permitted to legally possess a gun. See, MHL § § 7.09(j), 33.13(c)(15); see also,
Penal Law § 400.00(11)(a) and (c), § 400.00(4), and Penal Law § 400.02.”); see also, State Defs. Motion
to Dismiss, Exhibit 22, letter from NYSP to Suffolk County, advising that Mr. Montgomery was ineligible to
possess firearms pursuant to 18 U.S.C. § 922(g)(4), due to having been “adjudicated as a mental
defective or . . . involuntarily committed to a mental institution.”).

14

commitment” requires the licensing officer to revoke the firearms license,26 while MHL §
9.46 gives the licensing officer discretion to either suspend or revoke the firearms license.
As can be seen, a person who is involuntarily committed under MHL Article 9 must
be reported to OMH and DCJS, and such report should necessarily result in the revocation
of the involuntarily-committed person’s firearms license (if any) and the seizure of such
person’s weapons.27 Such ought to be the case regardless of whether a report concerning
the person is also filed under MHL § 9.46, though it appears that the SAFE Act requires
both types of reports to be filed.28 The primary benefit of MHL § 9.46, therefore, appears
to be either as a means to alert OMH/DCJS of persons who, in the opinion of at least two
mental health professionals (the treating mental health professional and the DCS)
arguably meet the standard for involuntary commitment (MHL § 9.01) even though they
have not been involuntarily committed for whatever reason,29 or as a fail-safe in situations
where a person has been involuntarily committed but not reported to OMH/DCJS/NICS as
such.

26 N.Y. Penal Law § 400.02 (McKinney) (“The division of criminal justice services, upon determining that
an individual is ineligible to possess a license . . . shall notify the applicable licensing official of such
determination and such licensing official shall not issue a license or revoke such license and any weapons
owned or possessed by such individual shall be removed consistent with the provisions of subdivision
eleven of section 400.00 of this article.”). It appears that the foregoing section intends to say, “or shall
revoke such license.”

27Penal Law § 400.00(1)(j) & 11(a)7(c).
28The SAFE Act apparently requires that MHL § 9.46 reports be filed even for persons who have been
involuntarily admitted, even though such a report would seem to be redundant. That is, MHL § 9.46 does
not contain any express exception concerning patients who have been or who are being involuntarily
admitted.
29Even if there is not sufficient agreement among doctors to have a person involuntarily committed, the
report by a single treatment provider under MHL § 9.46, when it is agreed with by the DCS, will result in at
least the suspension of the patient’s firearms license and the seizure of his weapons.

15

As briefly noted earlier, pursuant to federal law, all persons attempting to purchase
firearms must undergo an NICS Background Check. However, federal law does not
compel states to report information to NICS that would disqualify someone from
possessing a gun under 18 U.S.C. § 922(g) (such as an involuntary commitment).
Nevertheless, because Congress determined that a lack of such state reporting was
resulting in failures by NICS to screen out mentally-ill persons who should have been
prevented from buying guns,30 the NICS Improvement Amendments Act of 2007 now
provides financial incentives for states which increase their reporting to NICS, and
penalties for those which do not.31 To be eligible for such incentives, states are required
to first provide the U.S. Attorney General with a “reasonable estimate” of the number of
records that the state has concerning persons who have become disqualified under 18
U.S.C. § 922(g) & (n), and then make at least ninety percent of such records electronically
accessible to NICS.32 The NICS Improvement Amendments Act does not reward states

30See, NICS IMPROVEMENT AMENDMENTS ACT OF 2007, PL 110–180, January 8, 2008, 122 Stat
2559 (Setting forth Congressional findings concerning two high-profile incidents, including the massacre
at Virginia Polytechnic Institute and State University, perpetrated by mentally ill persons who were able to
purchase firearms due to the fact that NICS had incomplete information); see also, Tyler v. Hillsdale Cty.
Sheriff's Dep't, 837 F.3d 678, 682 (6th Cir. 2016) (“Seeking to remedy weaknesses in the national instant
criminal background check system (NICS), Congress authorized federal grants to encourage the states to
supply accurate and up-to-date information to federal firearm databases.”) (citation and footnote omitted).
31See, generally, Franklin v. Lynch, No. 3:16-CV-36, 2016 WL 6879265, at *3 (W.D. Pa. Nov. 21, 2016)
(“In the wake of the 2007 mass shooting at the Virginia Polytechnic Institute and State University,
Congress enacted the NICS Improvement Amendments Act (“NIAA”). NIAA sought to improve the
background-check system by facilitating access by the FBI of records relating to criminal history and
mental health. See NIAA § 2. Employing established principles of federalism, NIAA adopted a
two-pronged approach. First, NIAA imposed a requirement on federal departments and agencies to share
relevant records with the Attorney General. See NIAA § 101(a)-(b). Second, NIAA authorized the issuance
of federal grants to incentivize states to improve the quality of information they provide to NICS. See NIAA
§ 103. To be eligible for such a federal grant, a state must “certify, to the satisfaction of the Attorney
General, that the State has implemented a relief from disabilities program in accordance with section 105
[of NIAA].” NIAA § 103(c).”) (footnote omitted).
32See, 34 U.S.C. § 40912.

16

merely for increasing the number of reports of disqualifying events made available to
NICS; rather, it rewards states for thoroughness and accuracy in reporting such events,
regardless of the total number of such events.33
In response to the NICS Improvement Amendments Act of 2007, New York State
law was amended to allow relevant mental health records to be made accessible to NICS.34
For example, MHL § 7.09(j) gives OMH authorization to collect data, including the “names
and other non-clinical identifying information of persons who [were] involuntarily committed
to a hospital,” and to make such information available to queries from NICS.35 In particular,
OMH provides such information to DCJS, which then transfers the information to NICS.36
Further, MHL § 31.11(5) requires mental health service providers to notify OMH of patients
“who may be disqualified from possessing a firearm pursuant to” 18 U.S.C. § 922. Mental
health providers transmit such information to OMH using an electronic system that predates, and is different than, ISARS.37 At all relevant times, the information that OMH
maintains for reporting to NICS (via DCJS) has been kept by OMH in a database that is

33Id.; see also, 34 U.S.C. § 40913(b)(4) (“Grants awarded to States . . . under this section may only be
used to-- supply accurate and timely information to the Attorney General concerning the identity of
persons who are prohibited from obtaining a firearm under section 922(g)(4)[.]’).
34See, New York Bill Jacket, 2008 Senate Bill 8706, Ch. 491.
352008 Sess. Law News of N.Y. Ch. 49 (S. 8706) (McKinney’s); see also, Aff. of John B. Allen, Jr. at ¶ 9.
As part of the SAFE Act, MHL § 7.09(j) was further amended, to require OMH to forward such information
to DCJS and/or the FBI, “for determining whether a [firearms] license issued pursuant to section 400.00 of
the [New York Penal Law] should be denied, suspended or revoked . . . or for determining whether a
person is no longer permitted under federal or state law to possess a firearm.” MHL § 7.09(j)(1) (West
2018).
36Aff. of Donna Marie Call at ¶ 7. OMH is not the only state agency that provides information to DCJS for
use in responding to NICS queries. The Office of Court Administration, the Office for People with
Developmental Disabilities, the Department of Health, and the Office of Mental Health also provide
information to DCJS for that purpose. Id.
37Aff. of John B. Allen, Jr. at ¶ ¶ 9, 15.

17

separate from the database that was later created as part of the SAFE Act and used in
connection with MHL § 9.46.38 Reports of involuntary commitments are reported to NICS
pursuant to MHL § 7.09(j), but reports under MHL § 9.46 which do not also involve an
involuntary commitment are not reported to NICS.39
As already discussed, DCJS receives reports concerning events such as involuntary
commitments under the Mental Hygiene Law that entirely disqualify persons from having
guns under federal law, and DCJS also receives reports under MHL § 9.46 that result in
the suspension, if not the revocation, of firearms licenses issued under New York State
law. DCJS has the ability to search its records to determine whether either type of report
has been filed against a particular individual, and, if so, when and by whom. As previously
indicated, persons may become involuntarily committed under various sections of the
Mental Hygiene Law, including § 9.27, § 9.37 and § 9.39. However, regardless of the
particular MHL section under which a person is involuntarily committed, DCJS uses the
descriptor “9.41" as shorthand in its database for all involuntary commitments.40 That is,
DCJS refers to reports of involuntary commitments as “9.41 reports. Accordingly, DCJS
has the ability to search its records and determine whether a person was reported under
MHL § 9.46 (“9.46 reports”) or whether such person was reported as having been

38Aff. of John B. Allen, Jr. at ¶ 10.
39Aff. of John B. Allen, Jr. at ¶ 10, n. 3. The fact that someone is involuntarily committed is a disqualifying
event under 18 U.S.C. § 922(g)(4). The fact that a mental health provider reasonably believes that a
patient is “likely to engage in conduct that would result in serious harm to self or others” is not, by itself, a
disqualifying event under 18 U.S.C. § 922(g)(4).
40Aff. of Donna Marie Call at ¶ 9, n. 1 (“The identifier ‘MHL § 9.41' is used by DCJS as shorthand to
identify individuals who have been reported as having been adjudicated mentally defective or involuntarily
committed to a mental institution under provisions of the Mentaly Hygiene Law where such commitment
constitutes an involuntary commitment for the purposes of 18 U.S.C. § 922(g)(4).”).

18

adjudicated a mental defective/ committed to mental institution (“9.41 reports”), but with
regard to the latter type of report DCJS’s search results do not indicate the actual section
of the Mental Hygiene Law under which the individual was adjudicated mental
defective/committed to a mental institution.41
MHL § 9.46 was enacted amidst an existing framework of federal and state laws
designed to protect patients’ privacy in their confidential medical information. Most notably,
the federal Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) generally
provides for the confidentiality of medical records.42 However, HIPAA provides various
exceptions which permit health providers to disclose protected health information without
the patient’s authorization. In pertinent part, HIPAA permits such disclosures either where
they are required by law, including state law, or where they are necessary to prevent or
lessen a serious and imminent threat to the health or safety of the patient or a third party.
Specifically, 45 C.F.R. § 164.512, entitled “Uses and disclosures for which an authorization
or opportunity to agree or object is not required,” states:
A covered entity may use or disclose protected health information without the
written authorization of the individual . . . or the opportunity for the individual
to agree or object . . . in the situations covered by this section, subject to the

41Aff. of Donna Marie Call at ¶ ¶ 9, n.1, 18-25.
42See, Ross v. Westchester Cty. Jail, No. 10 CIV. 3937 DLC, 2012 WL 86467, at *9 (S.D.N.Y. Jan. 11,
2012) (“Although HIPAA generally provides for the confidentiality of medical records, 42 U.S.C. §§
1320d–1 to d–7, an individual cannot sue for its enforcement or for damages caused by disclosures. See
Acara v. Banks, 470 F.3d 569, 571 (5th Cir.2006); Warren Pearl Constr. Corp. v. Guardian Life Ins. Co. of
Am., 639 F.Supp.2d 371, 377 (S.D.N.Y.2009) (collecting cases). Only the Secretary of Health and Human
Services or other government authorities may bring a HIPAA enforcement action. See 42 U.S.C. §
300gg–22.”). There is no private right to sue for a HIPAA violation. See, Roberts v. Vermont Dep't of
Corr., No. 2:16-CV-135-CR-JMC, 2017 WL 2189707, at *3 (D. Vt. Apr. 4, 2017) (“Courts have
overwhelmingly concluded that there is no private right of action under HIPAA. Furthermore, an alleged
HIPAA violation cannot form the basis of a 42 U.S.C. § 1983 claim.”) (citations and internal quotation
marks omitted), report and recommendation adopted, No. 2:16-CV-135, 2017 WL 2198139 (D. Vt. May
17, 2017).

19

applicable requirements of this section.
***
(a) Standard: Uses and disclosures required by law.
(1) A covered entity may use or disclose protected health information to the
extent that such use or disclosure is required by law and the use or
disclosure complies with and is limited to the relevant requirements of such
law.
***
(j) Standard: Uses and disclosures to avert a serious threat to health or
safety.
(1) Permitted disclosures. A covered entity may, consistent with applicable
law and standards of ethical conduct, use or disclose protected health
information, if the covered entity, in good faith, believes the use or
disclosure:
(i)(A) Is necessary to prevent or lessen a serious and imminent threat to the
health or safety of a person or the public; and
(B) Is to a person or persons reasonably able to prevent or lessen the threat,
including the target of the threat[.]
45 C.F.R. § 164.512 (West 2018) (emphasis added).
Importantly, disclosure is permitted under 45 C.F.R. § 164.512(a) (the “required by
law” exception) where the disclosure is mandatory (not merely permissible)43 under a
particular federal or state law.44 In this regard,

43The New York State Psychiatric Association has argued that disclosure under MHL § 9.46 does not fall
under HIPAA’s “required by law” exception, since “it is not truly compulsory - it includes an exception to the
duty to report with respect to any action which, in the exercise of reasonable professional judgment, would
endanger the reporter or increase the danger to a potential victim or victims.” See,
http://www.nyspsych.org/index.php?option=com_content&view=article&id=53:safe-act-press-release&catid
=20:site-content This view, however, is contrary to Plaintiffs’ submissions, which repeatedly assert that
disclosure under MHL § 9.46 is mandatory.
44Significantly in this regard, HIPAA defers to the judgment of the state and federal legislators who
drafted the law requiring disclosure. See, Standards for Privacy of Individually Identifiable Health
Information, 65 FR 82462-01, 2000 WL 1875566 (Dec. 28, 2000) (“[W]e intend this provision [(sec
164.512(a)] to preserve access to information considered important enough by state or federal authorities
to require its disclosure by law. The importance of these required uses or disclosures is evidenced by the
legislative or other public process necessary for the government to create a legally binding obligation on a
covered entity. . . . It is not possible, or appropriate, for HHS to reassess the legitimacy of or the need for
each of these mandates in each of their specialized contexts. . . . [J]urisdictions have determined that

20

“law” is intended to be read broadly to include the full array of binding legal
authority, such as constitutions, statutes, rules, regulations, common law, or
other governmental actions having the effect of law. [Moreover,] for the
purposes of § 164.512(a), law is not limited to state action; rather, it
encompasses federal, state or local actions with legally binding effect, as
well as those by territorial and tribal governments.45
Notably, OMH’s SAFE Act Guidance Document refers to MHL § 9.46 as a “mandatory
reporting requirement.”46 Because of that, the Guidance Document states, mental health
professionals need nor worry about violating HIPAA by filing § 9.46 reports, since HIPAA’s
“required by law” exception, 45 C.F.R. sec 164.512(a), applies.47
On the other hand, disclosure is allowed under 45 C.F.R. § 164.512(j) only where
a health provider believes that an emergency situation exists, and that disclosure is
necessary to prevent or lessen a serious and imminent threat to the health or safety of the
patient or a third party. As such, § 164.512(j) “is intended to apply in rare circumstances
– circumstances that occur much less frequently than those described in other parts of [§
164.512].”48
Significantly, HIPAA permits disclosure (without the patient’s authorization or notice)

public policy purposes cannot be achieved absent the use of certain protected health information, and we
have chosen in general not to disturb their judgments.”).
45Standards for Privacy of Individually Identifiable Health Information, 65 FR 82462-01, 2000 WL
1875566 at *82668 (Dec. 28, 2000); see also, 45 C.F.R. § 164.103 (“Required by law means a mandate
contained in law that compels and entity to make a use or disclosure of protected health information that is
enforceable in a court of law. Required by law includes, but is not limited to . . . . statutes or regulations
that required the production of information[.]”).
46OMH Guidance Document, State Defs. Mtn to Dismiss, Ex. 11 at p. 3.
47OMH Guidance Document, State Defs. Mtn to Dismiss, Ex. 11 at p. 4.
48Standards for Privacy of Individually Identifiable Health Information, 65 FR 82462-01, 2000 WL
1875566 at *82703 (Dec. 28, 2000)

21

if either one of the aforementioned exceptions under § 164.512 applies; in other words, if
disclosure is mandated by state law, then § 164.512(a) permits the disclosure, even if the
situation is not “serious and imminent” as described in § 164.512(j).49 These exceptions
apply to all health information, including psychotherapy notes.50
In addition to HIPAA, the New York Mental Hygiene Law provides that clinical
records involving mental health treatment shall not be released, except in particular limited
circumstances. Of course, MHL § 9.46 authorizes disclosure to OMH where the patient
appears likely to engage in conduct that would cause serious harm. Further, MHL § 33.13
permits the disclosure of information, without the patient’s consent,“to an endangered
individual and a law enforcement agency when a treating psychiatrist or psychologist has
determined that a patient or client presents a serious and imminent danger to that
individual,” MHL § 33.13(c)(6), or, with OMH’s consent, to other “appropriate persons and
entities when necessary to prevent imminent serious harm to the patient or client or
another person.” MHL § 33.13(c)(9)(v).51

49Standards for Privacy of Individually Identifiable Health Information, 65 FR 82462-01, 2000 WL
1875566 (Dec. 28, 2000) (“We note that a covered entity may use or disclose protected health information
as permitted by and in accordance with one of the paragraphs of § 164.512, regardless of whether that
use or disclosure fails to meet the requirements for use or disclosure under a different paragraph in §
164.512 or elsewhere in the rule.”).
50Standards for Privacy of Individually Identifiable Health Information, 65 FR 82462-01, 2000 WL
1875566 at *82515 (Dec. 28, 2000).
51MHL § 33.13(12) permits the disclosure of records to the director of community services when, inter
alia, required by MHL § 9.46. Further, MHL 33.13(13)-(15) permit the disclosure of patient health
information to DCJS or the Federal Bureau of Investigation (“FBI”), in order to allow the FBI to perform its
functions in connection with the National Instant Criminal Background Check System (“NICS”), or to allow
DCJS to perform its duties under New York Penal Law § § 400.00 and 400.02. On this point, State
Defendants indicate: “[S]ince 2008, New York hospitals have been required to report to OMH mental
health information federal disqualifiers, including any involuntary commitment pursuant to Article 9 of the
Mental Hygiene Law. MHL § § 31.11(5), 33.13(c)(13(ii). Upon receipt of such information, OMH sends
the individual’s ‘name[ ] and other non-clinical identifying information’ to [DCJS]. Id. § 7.09(j). DCJS then
sends that same information to the FBI, in order to update NICS.” State Defs. Memo of Law in Support of

22

With this background in mind, the Court now turns to the particular claims in this
action, in which Plaintiffs maintain that after they sought mental health treatment, reports
were improperly filed against them, which resulted in their New York pistol licenses being
suspended and their firearms (pistols, rifles and shotguns) being seized by police.52
On December 18, 2014, Plaintiffs commenced this action. At that time, Donald
Montgomery (“Montgomery”) was the lone plaintiff, though he purported to be suing on
behalf of himself and “all other persons similarly situated.”53 Although Montgomery resided
in the Western District of New York when he commenced the action, he resided in the
Eastern District of New York when most of the events about which he complains occurred.
The factual averments in the original Complaint [#1] are as follows.
Montgomery, a Navy veteran and retired police detective, contends that while he
was residing in Cutchogue, New York, he voluntarily admitted himself to defendant Eastern
Long Island Hospital (“the Hospital”), due to insomnia and anxiety. Montgomery indicates
that after receiving medication, he slept soundly for two nights and was discharged.
Montgomery admits that during such hospital stay, someone at the hospital left a document
in his room, titled “Notice of Status and Rights/Emergency Admission (to be given to the
patient at the time of admission to the hospital)/Section 9.39 Mental Hygiene Law.”54
However, Montgomery indicates that he did not review the form, and was never asked to

Motion to Dismiss at p. 6 (some citations omitted).
52Plaintiff Lois Reid indicates that her firearms were not actually seized from her, but rather, that law
enforcement allowed her husband to retain custody of the firearms at a separate location.
53Complaint [#1].
54Complaint [#1] at ¶ 140. The Complaint actually indicates that he notice referred to § “9.30" of the
Mental Hygiene Law, but that was a typographical error. Docket No. [#24-3] at p. 3.

23

sign the form.
After being discharged, Montgomery learned that the Hospital had notified OMH that
he had been involuntarily admitted to the hospital for mental health treatment. As a result
of such notification, Montgomery’s name was presumably added to the federal NICS
database. Further, NYSP notified55 defendant Suffolk County Sheriff DeMarco that
Montgomery had “been adjudicated as a mental defective or ha[d] been involuntarilyl
committed to a mental institution,” and was therefore “prohibited from possessing a firearm,
rifle or shotgun pursuant to 18 U.S.C. § 922(g)(4).” As a consequence of such report,
Sheriff Demarco suspended Montgomery’s pistol license and seized his firearms.56
Montgomery attempted to convince the Hospital, as well as state and county officials, that
he had voluntarily admitted himself for treatment, but the Hospital declined to change its
position.
While Montgomery was in the process of disputing the suspension of his pistol
license, he moved his residence to Monroe County, New York, after which Sheriff
DeMarco’s office informed him that it was terminating his pistol license because he had
changed his residence without informing the Suffolk County licensing officer. On or about
January 3, 2015, Montgomery commenced an Article 78 proceeding in New York State

55As will be discussed further below, NYSP used a particular form letter to make this notification. Pl.
Prelim. Inj. Motion, Exhibit Group G, Ex. 23.
56It is unclear to the Court why the Sheriff suspended Montgomery’s license, as opposed to revoking it,
since as discussed earlier, the fact the Montgomery was classified as having been involuntarily committed
should have resulted in the immediate revocation of the license. See, PL § § 400.00(1)(j) & (11)(a)&(c) &
400.02 (Indicating that persons who have been involuntarily committed are not eligible for firearms
licenses, and that if a person who holds a firearms license later becomes ineligible, his license is
revoked).

24

Supreme Court, Suffolk County.57 The Article 78 petition alleged that Montgomery had
been erroneously classified as having been “adjudicated as a mental defective or
involuntarily committed to a mental institution.”
Purportedly based upon these factual allegations, the Complaint [#1] asserts four
causes of action: 1) “violation of the right to privacy” concerning medical records; 2)
“violation of the Equal Protection Clause,” involving discrimination against persons who
seek mental health treatment; 3) “violation of the Due Process Clauses [(substantive and
procedural)] as to the taking of Second Amendment rights arbitrarily and without notice or
an opportunity to be heard; and 4) violation of the Second Amendment right to keep and
bear arms. The Complaint asserts that all four of these claims arise from MHL § 9.46 and
Defendants’ misuse of that statute.58
Importantly, though, the Complaint contains no factual averment that Eastern Long
Island Hospital filed a report against Montgomery under MHL § 9.46. That is, the pleading
never alleges that hospital staff, or anyone else, reported Montgomery under § 9.46 as
being “likely to engage in conduct that would result in serious harm to [him]self or others.”
Rather, as already noted, the pleading asserts that hospital staff reported that Montgomery
had been “involuntarily admitted,” thereby implicating 18 U.S.C. § 922(g).59 Indeed, the
closest the Complaint [#1] comes to connecting Montgomery’s experience to MHL § 9.46
is the following cryptic statement:

57State Defs. Mtn to Dismiss, Ex. 14.
58Montgomery’s Article 78 proceeding did not mention MHL § 9.46.
59The Complaint acknowledges that MHL Article 9 contains provisions for “involuntary commitment” that
existed “prior to the effective date of MHL § 9.46.” Complaint [#1] at ¶ 25.

25

In reality, the NYS Police have taken the position of instructing local licensing
officials to suspend and terminate pistol permits for all persons reported
through MHL § 9.46 as having been involuntarily committed to a mental
institution.
Complaint [#1] at ¶ 87.60 (emphasis added). While this statement implies that Montgomery
was reported under MHL § 9.46, it has no factual support in the pleading. Nevertheless,
the pleading demands a declaratory judgment “striking down” Mental Hygiene Law § 9.46,
an injunction enjoining the enforcement of § 9.46, an order directing the State of New York
to disclose all information that has been collected pursuant to § 9.46, an order requiring
the State of New York to notify all persons whose medical information has been collected
and/or transmitted pursuant to § 9.46, an order directing the State of New York to purge
all records collected pursuant to § 9.46, and an award of money damages and attorney
fees.
On January 23, 2015, Plaintiff’s counsel wrote to the Court, in response to
conversations and/or communications that she had with opposing counsel, who had not
yet appeared in the case, concerning the lawsuit. Plaintiffs’ counsel indicated, inter alia,
that she wanted to clarify the nature of this action, since it seemed to her that opposing
counsel were confused on that point:
It appears that [State Defendants’] Counsel has somewhat missed the point
of the lawsuit. . . . This case is, I believe, a watershed question, that will
map out the intersection of privacy rights and Second Amendment rights,
particularly with respect to confidential medical information that does not

60This bare assertion is disproven by Plaintiffs’ own submissions. In that regard, Plaintiffs have submitted
a form letter from NYSP advising the local licensing authority that Montgomery’s license should be
revoked based upon involuntarily commitment/18 U.S.C. § 922(g), as well as a form letter from NYSP
advising the local licensing authority that Bechler’s license should be suspended or revoked pursuant to
MHL § 9.46.

26

qualify as an adjudication of a ‘mental defect’ or an ‘involuntary commitment.’
***
We are . . . not seeking to challenge whether the pre-existing process of
county licensing officer review of medical and mental health history and
events is invalid, nor are we seeking to challenge the pre-existing structure
of Mental Hygiene Law Article 9 as it offered pre-existing routes for
involuntary and voluntary commitments. Any one of these other roads may
contain challenges for another day.
We are focused in this instance on the abuse and overreach of MHL § 9.46
and its ‘likelihood’ standard, the false marketing of the statute by OMH to lure
the medical profession to become agents of the State, and the excesses and
pressures of DCJS and the NYSP to suppress the independent authority of
the county licensing officers with regard to pistol permits and to firearms
confiscation.
Letter of Paloma Capanna, dated January 23, 2015 (Docket No. [#9]). Plaintiffs’ counsel
stated, in other words, that this lawsuit is about MHL § 9.46.
On January 30, 2015, Montgomery filed a motion [#3] for preliminary injunctive
relief. Similar to the Complaint [#1], the motion for injunctive relief is directed at MHL §
9.46. In particular, the application asserts that Plaintiff is likely to succeed in this action,
because MHL Ҥ 9.46 and its implementation violate the Second, Fourth, Fifth and
Fourteenth Amendments to the United States Constitution, as well as its privacy
protections.”61 The application first maintains that insofar as MHL § 9.46 requires the
disclosure of patient health information without the patient’s notice or consent, and the
resulting suspension of firearms licenses and seizure of firearms, it violates procedural due
process (and HIPAA). The application also contends that MHL § 9.46 violates equal
61Memorandum [#4] at p. 1; see also, id. at p. 5 (“MHL § 9.46 has created a constitutional violation of
epic proportion[.]”); see also, Amended Notice of Motion for Prelim. Inj. [#3] at p. 4 (“MHL § 9.46 violates
the Plaintiff’s right to privacy, denies the Plaintiff the equal protection of the laws, denies the Plaintiff the
right of due process, and infringes the Plaintif’s rights under the Second Amendment[.]”).

27

protection, because it impermissibly “targets” persons seeking mental health treatment.
Further, the application asserts that the classification of Montgomery as “involuntarily
committed” violates his Second Amendment rights, because he was not actually
involuntarily committed within the meaning of 18 U.S.C. § 922. The injunctive relief
requested includes the following: 1) an Order enjoining the enforcement of § 9.46 and the
use of the ISARS system; 2) an Order appointing a Special Referee to gather all
information transmitted and collected by Defendants in connection with § 9.46 and ISARS
since the statute went into effect; and 3) an Order establishing a process for the
identification and notification of persons whose personal information was disclosed
pursuant to § 9.46.
The preliminary injunction motion is supported by an affidavit from Mr. Montgomery,
that essentially reiterates the allegations in the Complaint [#1] concerning his
hospitalization and the events that transpired afterward.62 Similar to the Complaint [#1],
this affidavit, while urging the Court to “suspend MHL § 9.46 and its associated reporting
system,” does not expressly contend that Montgomery was reported under MHL § 9.46.
Rather, Montgomery’s affidavit asserts that he was “wrongfully tagged as . . . ‘involuntarily
committed.”) Montgomery Aff. [#3-2] at ¶ 10; see also, id. at ¶ 22 (“Eastern Long Island
Hospital labeled me an ‘involuntary commitment.’”). Similarly, the supporting memorandum
of law states, while discussing 18 U.S.C. § 922(g)(4), that Montgomery “was not
involuntarily committed; he was mislabeled ‘involuntarily committed’ without any due
process.” Memo [#4] at p. 9. It is axiomatic, however, that the filing of a report under MHL
§ 9.46 does not result in anyone being committed.
62Docket No. [#3-2].

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The preliminary injunction motion is also supported by approximately 850 pages of
exhibits (Docket Nos. [#3-2] - [#3-13]), including, inter alia, the following: 1) the legislative
history of the SAFE Act;63 2) a transcript of hearing in the New York State Senate involving
the SAFE Act’s impact on mental health treatment; 3) documents issued by the State of
New York (OMH) to mental health providers explaining the SAFE Act and ISARS; 4)
documentation concerning the process by which persons, who have been disqualified from
possessing firearms under 18 U.S.C. § 922 due to having been involuntarily committed,
may apply to OMH, under MHL § 7.09(j), for a Certificate of Relief from Disabilities;64 5)
newspaper articles and other publications concerning the SAFE Act; 6) copies of
correspondence related to freedom of information law (“FOIL”) requests for information
concerning the SAFE Act; 7) copies of records and correspondence pertaining to
Montgomery’s admission to the hospital, the seizure of his firearms, and his attempts to
recover the firearms; and 8) documentation related to the suspension and eventual
reinstatement of a pistol license belong to an individual named Karl Bechler.65
Much of the application for preliminary injunctive relief is devoted to arguing that the
SAFE Act is an ill-advised piece of legislation. The application harshly criticizes Governor

63The Court notes that in the transcript of the Assembly Debate, Exhibit Group B, Ex. 3, at p. 42, MHL §
9.46 is referred to as a “mandatory reporting” provision. OMH also refers to § 9.46 as a “mandatory
reporting requirement.” Pl. Prelim. Inj. Motion, Exhibit Group D, Ex. 5, OMH Guidance Document at p. 3.
64Prelim. Inj. Motion, Exhibit Group D, Exs. 9A-9D. These documents pertain to persons who have been
reported to NICS as having been involuntarily committed or adjudicated a mental defective, and who have
therefore been disqualified from having firearms under 18 U.S.C. § 922. The documents do not mention
MHL § 9.46, or pertain to any procedure for correcting a false report filed under MHL § 9.46.
65Karl Bechler is presently a plaintiff in this action, though he was not at the time that Montgomery filed
the preliminary injunction motion.

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Cuomo and his use of the “message of necessity”66 legislative process to obtain passage
of the SAFE Act, and asserts that the law was enacted without sufficient “legislative
deliberation” or “input” from individual legislators.67 At the same time, the application
characterizes statements by legislators, during the limited debate on the bill, as “confused
and misguided.”68 Further, the application asserts that “the leadership of prominent
statewide mental health associations [were not consulted before the legislation was
passed, and have offered] a non-stop litany of criticisms of MHL § 9.46” since its
passage.69 Moreover, Plaintiffs insist that § 9.46 has not “provided any benefit to public
safety.”70 For example, Plaintiffs insist that making a report under § 9.46 using the ISARS
system is slower and less-effective than simply telephoning 911 to report a dangerous

66See, generally,The Wall Street Journal, https://www.wsj.com/articles/no-headline-available-1396387892
(“It is one of the most powerful tools available to New York's governor: the so-called message of
necessity, which allows immediate votes on complex legislation that otherwise could have had days of
debate.”). Plaintiffs’ submissions indicate that Cuomo used this process to keep a veil of secrecy over the
details of the proposed SAFE Act, which involved certain prohibitions involving “assault rifles,” in part to
avoid a spike in purchases of such rifles prior to enactment of the law.
67See, Pl. Memo of Law [#4] at p. 19 (“The Governor, the Assembly Speaker, and the Senate Majority
Leader completed the Bill behind closed doors, even without input from their own conferences.”). Plaintiffs
do not, however, maintain that the procedures followed during passage of the act violated any laws.
Plaintiffs also assert that Cuomo would not have had sufficient time between the Newtown School
Shootings and January 2013 to draft a comprehensive piece of legislation like the SAFE Act, implying that
Cuomo already had the SAFE Act legislation prepared, and merely exploited the Newtown murders as a
justification for obtaining quick passage of the SAFE Act. State Defendants point out, however, that the
Newtown murders were just the latest in a long line of mass murders by gun- wielding mentally ill persons
who had exhibit clear signs of dangerousness before they killed, but who were nevertheless able to buy or
obtain guns. See, Defs. Mtn to Dismiss, Ex. 37
68Pl. Memo of Law [#4] at p. 22.
69Pl. Memo of Law [#4] at p. 19. But see, City of Greensboro v. Guilford Cty. Bd. of Elections, 251 F.
Supp. 3d 935, 947, n. 102 (M.D.N.C. 2017) (“The Constitution does not require legislatures to pass only
those bills that have public support, and anecdotal evidence of public opinion is immaterial to constitutional
analysis.”).
70Pl. Memo of Law [#4] at p. 20.

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patient.71 Additionally, Plaintiffs argue that § 9.46 could have the unintended consequence
of discouraging people from seeking mental health treatment.72 Generally, these types of
arguments are not probative of whether a court should enjoin the enforcement of a
statute.73
Of more relevance to the instant action, the application for injunctive relief also
provides various anecdotal evidence purporting to show that MHL § 9.46/ISARS is being
over-utilized by certain mental health providers, and improperly administered by certain
county-level Directors of Community Services. In this regard, the application primarily
relies upon testimony from various mental-health professionals at a hearing conducted by
the New York State Senate shortly after passage of the SAFE Act.74 For example, Jed
Wolkenbreit, Attorney for the Conference of Local Mental Health Hygiene Directors,
testified that some medical providers were reporting patients under MHL § 9.46 “simply by
virtue of their admission,” even though such reporting “was not even consistent with the
State Office of Mental Health’s published guidance” on the issue.75 Wolkenbreit opined

71Pl. Memo of Law [#4] at p. 21.
72Pl. Memo of Law [#4] at p. 24.
73See, Gibbs v. Babbitt, 214 F.3d 483, 504 (4th Cir. 2000) (“[A] judge's view of the wisdom of enacted
policies affords no warrant for declaring them unconstitutional. In recognition of the fact that the wisdom
of legislation is different from its constitutionality, courts have always started with a presumption in favor of
an enactment's constitutionality.”) (citations omitted), cert. denied., 121 S.Ct. 1081 (2001); see also, State
of Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., 313 U.S. 508, 527, 61 S. Ct. 1050, 1060, 85 L. Ed.
1487 (1941) (Policy questions relating to the “wisdom, need and effectiveness” of legislation are
“questions for the [legislature] not the courts.”).

74Prelim. Inj. Motion, Exhibit Group C, Exhibit 4, Transcript of NYS Senate hearing on May 31, 2013.
75Prelim. Inj. Motion, Exhibit Group C, Exhibit 4, Transcript of NYS Senate hearing on May 31, 2013 at p.
11. Although, as noted earlier, OMH indicates that persons who are involuntarily admitted on an
emergency basis usually also meet the standard for filing a report under § 9.46.

31

that some medical providers were filing reports even though their patients did not meet the
§ 9.46 standard, out of fear that they might face liability for failing to make a report.76
Wolkenbreit also indicated that some hospital staffs were submitting reports using the
“Electronic Health Records System,” rather than the ISARS system, even though such use
was “not appropriate under the statute.”77 The injunction application also cites a New York
Times newspaper article claiming that “mental health workers feel compelled to routinely
report mentally ill patients brought to an emergency room by the police or ambulances.”78
The same newspaper article quotes a County DCS as stating that he does not follow the
requirements of MHL § 9.46, but instead, merely “rubber stamps” reports from medical
providers sent to him via the ISARS system:
Kenneth M. Glatt, commissioner of mental hygiene for Dutchess County,
said that at first, he had carefully scrutinized every name sent to him through
the SAFE Act. But then he realized that he was just “a middleman,” and that
it was unlikely he would ever meet or examine any of the patients. So he
began simply checking off the online boxes [on the ISARS system],
sometimes even without reviewing the narrative about [the] patient [that had
been submitted by the treatment provider]. “Every so often I read one just
to be sure,” Dr. Glatt, a psychologist, said. “I am not going to second guess.
I don’t see the patient. I don’t know the patient.”79
From such anecdotal evidence, the injunction application suggests that wide-scale overreporting is occurring pursuant to MHL § 9.46. Further, the application contends that the

76Prelim. Inj. Motion, Exhibit Group C, Exhibit 4, Transcript of NYS Senate hearing on May 31, 2013 at p.
22; see also, id. at p. 40, testimony of Seth Stein (“[T]hey’re reporting anybody.”).
77Prelim. Inj. Motion, Exhibit Group C, Exhibit 4, Transcript of NYS Senate hearing on May 31, 2013 at p.
11.
78Prelim. Inj. Motion, Exhibit Group D, Ex. 11 at p. 3.
79Prelim. Inj. Motion, Exhibit Group D, Exhibit 11 at p. 4.

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State of New York actually desires and encourages such over-reporting under MHL § 9.46,
as part of an overall plan to disarm its citizens, and that hospitals “have effectively become
agents of the state, labeling everyone who walks through the Emergency Room doors as
‘involuntarily committed.”80
At the same time, however, the preliminary injunction motion submits documents
issued by OMH to mental-health providers, which explain that patients should not
automatically be reported under MHL § 9.46 merely because they are involuntarily
admitted for mental health treatment.81 In particular, and as mentioned earlier, the SAFE
Act “Guidance Document” issued by OMH correctly sets forth the standard for making
reports under MHL § 9.46, (“likely to result in serious harm to self or others”), and notes
that involuntary commitment under MHL § 9.27 should not necessarily result in the filing
of a report under MHL § 9.46: “[A] person could meet the [MHL § 9.27] ‘2 PC’ standard [for
involuntary admission], but still not pose a risk of harm that justifies action pursuant to
either the emergency removal or admission standard, or the 9.46 standard.”82 Further, the
OMH SAFE Act “Guidance Document” clearly states that a DCS should not forward a §
9.46 report to DCJS unless he “agrees with the [reporting] mental health professional’s

80Pl. Memo of Law [#4] at p. 2. Such statement reflects a disconnect in Plaintiffs’ papers between the
MHL § 9.46 reporting standard and involuntary commitment.
81Pl. Prelim. Inj. Motion, Exhibit Group D, Ex. 5, OMH Guidance Document at p. 2. By implication,
therefore, OMH’s guidance documents do not encourage or condone filing § 9.46 reports against
“everyone who walks through the Emergency Room doors.”
82Pl. Prelim. Inj. Motion, Exhibit Group D, Ex. 5, OMH Guidance Document at p. 3 (emphasis added). In
view of this, it is difficult to understand Plaintiff’s suggestion of “false marketing of the statute by OMH.”
Docket No. [#9] at p. 3.

33

determination.”83
The application for preliminary injunctive relief also purports to show that MHL §
9.46 is unlawful because it is inconsistent with pre-existing state and federal laws, many
of which the Court has already discussed above. First and foremost, the application
contends that MHL § 9.46 “disregards”84 HIPAA, because it sets a standard for the
disclosure of private health information that is less-protective than HIPAA.85 In particular,
the application asserts that “[t]he standard at MHL § 9.46 is a far lesser standard than the
emergency reporting provisions within HIPAA at 45 CFR § 164.512(j),” which, as noted
earlier, permit disclosure of private health information without a patient’s consent where
“necessary to prevent or lessen a serious and imminent threat to the health or safety of a
person or the public.” Significantly, though, the preliminary injunction application fails to
mention HIPAA’s other disclosure exception, 45 C.F.R. § 164.512(a), which, as already
noted, allows such disclosure when “required by law,” without any showing of a serious and
imminent threat.86 The preliminary injunction application also compares MHL § 9.46 to
other provisions of MHL Art. 9, especially § § 9.27, 9.37, 9.39 and 9.40, and argues that
such provisions provide adequate due process protections, while § 9.46 does not. See,
Memo of Law [#4] at p. 10 (“All processes for involuntary (and even for voluntary)
commitment [under MHL Art. 9] include notice, attorney, and judicial review provisions. All

83Pl. Prelim. Inj. Motion, Exhibit Group D, Ex. 5, OMH Guidance Document at p. 2.
84Pl. Memo of Law [#4] at p. 3 (referring to New York State’s “disregard of . . . HIPAA.”).
85Pl. Memo of Law [#4] at p. 3 (The application contends that HIPAA provides “the gold standard” for
disclosure of private health information, and that MHL § 9.46 falls short of that standard.)
86Plaintiff’s application admits that MHL § 9.46 is “mandatory” within the meaning of § 164.512(a), see, Pl.
Memo of Law [#4] at p. 5, referring to MHL § 9.46 as a “mandatory reporting system.” See also, id. at p.
17, noting that OMH materials are “replete with references to ‘mandatory’ reporting).

34

provisions under Art. 9 that is, except for MHL § 9.46.”).87
In immediate response to being served with Montgomery’s Complaint [#1] and
Motion for Preliminary Injunctive Relief [#3], Defendants argued, inter alia, that venue was
not proper in this district,88 and that Montgomery lacked standing because MHL § 9.46
“never applied to him.”89 See, Docket No. [#8]. Plaintiffs’ counsel submitted a responding
letter [#9], in which, inter alia, she briefly laid out her theory as to why Montgomery has
standing to challenge MHL § 9.46, even though his firearms disqualification resulted from
having been labeled as “involuntarily committed.” Essentially, Plaintiffs’ counsel indicated
that Montgomery must have been reported under MHL § 9.46, because the Hospital’s
claim that Montgomery had been involuntarily committed did not “make sense” to her.90
On January 29, 2015, the Court held oral argument on the application for injunctive
relief. During such appearance, the Court asked Plaintiffs’ counsel to explain how venue
was proper in this district. Without directly answering the Court’s question, Plaintiffs’

87See also, Docket No. [#9], Capanna letter dated January 23, 2015 (“[We] are [not] seeking to challenge
the pre-existing structure of Mental Hygiene Law Article 9.”)
88Defendants stated that a transfer under 28 U.S.C. § 1406(a) might be appropriate to either the Northern
District or the Eastern District. (Docket No. [#8] at p. 3).
89Defendants indicated that Plaintiff became ineligible to have firearms not pursuant to MHL § 9.46, but
pursuant to 18 U.S.C. § 922, after he was reported as having been involuntarily committed.
90Docket No. [#9], Capanna letter dated Jan. 23, 2015 at p. 4 (“The letter from the hospital [indicating that
Montgomery was reported as having been involuntarily committed, rather than having been reported under
MHL § 9.46] is not dispositive of Mr. Montgomery’s standing to challenge MHL § 9.46. Simply put, the
letter does not make sense. The medical records do not support the tag of an ‘involuntary commitment.”
State agencies are responsible for periodic data uploads into the NICS Index; not private medical
providers. And the person [hospital employee] who spoke to Mr. Montgomery indicated every person
going through the Emergency Room doors was tagged ‘involuntary commitment,’ which jives with Attorney
Wolkenbreit’s testimony that various hospitals were reporting every patient being admitted through the
Emergency Department to OMH for ISARS purposes.”).

35

counsel indicated that she wished to file an amended pleading,91 and Defendants
expressed the intention to file motions to dismiss. The Court adjourned the matter to allow
Montgomery to file an amended pleading, with the understanding that Defendants intended
to file motions to dismiss immediately thereafter.
On February 2, 2015, Montgomery, along with newly-added plaintiffs Andrew Carter
(“Carter”), Lois Reid (“Reid”) and Karl Bechler (“Bechler”), filed an 82-page Amended
Complaint [#14], which purports to assert four causes of action: 1) that MHL § 9.46
violates the Plaintiffs’ federal constitutional right to privacy in personal health information
and doctor-patient relationships; 2) that MHL § 9.46 violates the Equal Protection Clause
of the Fourteenth Amendment, by treating persons seeking mental health treatment
differently from “the general patient population”;92 3) that MHL § 9.46 violates Plaintiffs’
rights to substantive due process and procedural due process under the Fourteenth
Amendment, because “the process through which [they] have been reported and
disqualified from firearms ownership, possession, transfer, and use is arbitrary and
capricious,” and lacks a “meaningful process” by which to “request a redress of their
grievances for the restoration of” their rights which have been affected by § 9.46;93 and 4)
that MHL Ҥ 9.46 as enacted and implemented by the Defendants violates the Second

91Plaintiff’s counsel stated that the purpose of such amendment would be to “implead” additional plaintiffs
into the case, who resided in the Western District. In response to such statement, one of the defendant’s
attorneys opined that even if such an amendment occurred, Montgomery would lack standing to challenge
Mental Hygiene Law § 9.46, since he was actually disqualified from possessing guns under a different
section of law, Mental Hygiene Law § 9.39, based upon having been involuntarily committed.
92Amended Complaint [#14] at p. 77.
93Amended Complaint [#14] at p. 79.

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Amendment rights of the Plaintiffs.”94 The pleading indicates that all individually-named
defendants are being sued in their official capacities.95
Whereas Montgomery had lived in the Eastern District of New York when his
firearms were seized, Carter, Bechler and Reid all reside in, and had their firearms licenses
suspended or revoked in, the Western District of New York.
With minor exceptions,96 the Amended Complaint [#14] generally mirrors the original
Complaint, except that it adds detailed allegations specific to Carter, Reid and Bechler.
Concerning Carter, the pleading alleges that Carter’s firearms were seized after his wife
called “911" “because she suspected that he was showing signs and symptoms of a stroke
or other serious neurological event.”97 The pleading contends that police officers -members of the Tonawanda Police Department -- came to Carter’s home along with
ambulance personnel, and seemed more concerned about his firearms than about his
medical condition.98 Carter maintains that officers seized multiple firearms from his house.
Carter contends that he

was not a threat to anyone, but that the police officers

nevertheless told him that he was going to the hospital for 72 hours, “even if they had to

94Amended Complaint [#14] at ¶ 345.
95Amended Complaint [#14] at ¶ 12.
96See, e.g., Amended Complaint [#14] at ¶ ¶ 128-129, 134-140.
97Amended Complaint [#14] at ¶ 205.
98State Defs. Motion to Dismiss, Ex. 25. As will be seen later, the Amended Complaint [#14] appears to
intentionally omit the reason why the police would have been concerned about firearms, over even have
known that Carter had firearms. The reason is that Carter’s wife told the 911 operator that Carter had a
pistol under his pillow.

37

force him.”99

Carter maintains that he went to hospital by ambulance voluntarily, and

discharged himself (against his doctors’ advice) four hours later. Carter further maintains
that hospital records reflect that he was not a danger to himself or anyone else.
Nevertheless, when Carter later attempted to retrieve his firearms from the police, a police
officer denied his request, and stated that it was “all due to the SAFE Act.”100 Carter later
received a notification from Erie County advising him that his firearms license was
suspended. Carter subsequently learned that someone at the hospital had indicated in his
medical chart that he had been “involuntarily committed” pursuant to MHL § 9.41.101
Regarding Ms. Reid, the Amended Complaint [#14] alleges that hospital staff
unjustifiably filed a report against her after she voluntarily went to the emergency room for
treatment of a neurological condition similar to muscular dystrophy. Reid indicates that she
initially went to Buffalo General Hospital, and was transferred to Erie County Medical
Center, where she voluntarily remained for several days.

Reid maintains that she

requested to be voluntarily admitted to ECMC under MHL section 9.13 and 9.23, and has
paperwork documenting such request.102 Reid indicates that she was not a threat to
herself or others. While at the hospital, staff aggressively questioned Reid about her
ownership of firearms. After being discharged, Reid received a notice that her pistol

99Amended Complaint [#14] at ¶ 209.
100Amended Complaint [#14] at ¶ 221. This quote does not reference a particular section of the SAFE
Act. As already noted, this could have been reference to MHL § 9.46 or to PL § 400.00(1)(j), or to some
other provision of the SAFE Act.
101Amended Complaint [#14] at ¶ ¶ 224-225.
102Docket No. [#28-1], Exhibit Group I, Ex. 38.

38

license was suspended.103 The pleading does not attach the actual document that Reid
received, but describes it as follows:
The ‘Notice of Objection’ received by Ms. Reid from Erie County Court used
language of ‘involuntarily hospitalized for mental health reasons’ and
‘involuntary admission’ and also includes that ‘On or about December 24,
2013, the above named LOIS JEAN REID was reportedly involved in an
incident implicating MENTAL HEALTH PER SAFE ACT which obligates a
mental health professional believing that such incident demonstrates that the
person may be ‘likely to engage in conduct that will cause serious harm to
herself or others’ to report such event.’104
According to the pleading, “[t]he language of this ‘Notice’ [sent to Ms. Reid] implicates both
MHL § 9.41 and § 9.46, without referencing any section of law.”105
Regarding Mr. Bechler, the pleading alleges that Bechler’s wife called “911” about
him because he was ill and depressed, but was “not suicidal or otherwise threatening harm
to himself or anyone else.”106 Nevertheless, the 911 call resulted in NYSP officers coming
to Bechler’s home, arresting him, and seizing his extensive firearms collection.107 The
pleading indicates that the NYSP officers approached Bechler’s house “in a menacing
manner, armed with long guns,” but does not explain why.108 Although the pleading
implies that Bechler was placed under arrest, it further maintains that Bechler went to
Clifton Springs Hospital voluntarily, and spent four days there receiving treatment, primarily
103Amended Complaint [#14] at ¶ 254.
104Amended Complaint [#14] at ¶ 255.
105Amended Complaint [#14] at ¶ 255.
106Amended Complaint [#14] at ¶ 273.
107State Defs. Motion to Dismiss, Ex. 31, NYSP arrest report.
108Amended Complaint [#14] at ¶ ¶ 279-280.

39

for diabetes. The Ontario County licensing officer subsequently suspended Bechler’s New
York State firearms license.109 Thereafter, a report was filed against Bechler under MHL
§ 9.46. Later, on September 17, 2013, NYSP sent a form letter to the licensing official
(County Clerk’s Office), indicating that a report had been filed against Bechler under MHL
§ 9.46.110 Bechler subsequently brought a successful court action to have his firearms
license reinstated.
Similar to the original Complaint [#1] and the application for preliminary injunctive
relief [#3], the Amended Complaint [#14] does not explain how Plaintiffs’ contentions, that
they were incorrectly designated as having been “involuntarily committed,” relate to MHL
§ 9.46. The closest the Amended Complaint [#14] comes to doing so is the following
curious statement:
134. It appears that the State Defendants in their political drive to confiscate
firearms are failing to distinguish between the new MHL § 9.46 and the
continuing MHL § 9.41, which is a pre-existing provision for involuntary
commitment.
This paragraph seems to imply that the alleged mis-classification of Plaintiffs as having
been involuntarily committed is somehow related to the enactment of MHL § 9.46.
However, the pleading offers no factual support for the assertion that State Defendants are
failing to distinguish between MHL § 9.46 and MHL § 9.41.111

109Amended Complaint [#14] at ¶ ¶ 284-286.
110Prelim. Inj. Motion, Exhibit Group H, Exhibit 37.
111As will be discussed further below, in support of State Defendants’ motion to dismiss, they submit an
affidavit indicating that DCJS’s records use the term “MHL § 9.41" to refer to all various types of
emergency involuntary admissions under MHL Article 9. See, Aff. of Donna Marie Call at ¶ 9, n. 1.
However, that affidavit does not indicate, nor is there any other evidence, that DCJS or OMH conflate
MHL § 9.41 with MHL § 9.46. Moreover, paragraph 134 of the Amended Complaint, cited above, was

40

On February 27, 2015, Defendants filed motions to dismiss the Amended
Complaint. Sheriff DeMarco and Eastern Long Island Hospital each filed their own
motions, while New York State Defendants (Cuomo, Sullivan, Green and Beach) filed a
joint motion.
Sheriff DeMarco filed a motion [#22] to dismiss, for improper venue and failure to
state a claim, or, in the alternative, to transfer venue. Preliminarily, DeMarco contends that
since he is sued him in his official capacity as Sheriff of Suffolk County, the claim is really
against Suffolk County, and is therefore a claim under Monell v. Dept. of Soc. Servs. of
City of New York, 436 U.S. 658, 98 S.Ct. 2018 (1978) (“Monell”). Plaintiffs do not dispute
DeMarco’s contention on this point. Indeed, Plaintiffs have asked the Court to substitute
Suffolk County as a defendant for Demarco.112 Accordingly, the Court will grant that
request and will henceforth in this Decision and Order refer to Suffolk County (“the
County”) rather than to DeMarco.
Regarding venue, the County contends that venue is improper in the Western
District, because Plaintiffs evidently chose venue based upon the fact that they reside in
the Western District, which is not a valid basis to establish venue under 28 U.S.C. §
1391(b)(1). The County further indicates that venue is not proper in this District under 28
U.S.C. § 1391(b)(2), since a substantial part of the events or omissions giving rise to
Montgomery’s claim did not occur in the Western District.113

clearly not based upon such affidavit, because the affidavit was not filed until after the Amended
Complaint was drafted.
112See, Docket No. [#28] at ¶ 5.
113At times, DeMarco’s papers seem to conflate the concepts of improper venue and inconvenient venue.

41

Alternatively, the County contends that the Amended Complaint fails to state an
actionable claim against the County. In this regard, the only claims asserted against
Suffolk County are by Montgomery. Further, the County maintains that only two of the
claims in the Amended Complaint involve the County: The Third Cause of Action (14th
Amendment substantive and procedural due process) and the Fourth Cause of Action
(Second Amendment). Further, the County maintains that the Amended Complaint fails
to plead any constitutional claim under Monell, since it does not plausibly allege facts
showing that any alleged constitutional violation resulted from a municipal policy, custom
or practice.
On this point, the County contends that it did not act pursuant to its own policies, but
rather, acted pursuant to New York State law and Federal law.114 The County insists that
it had no discretion to disobey such laws, as they were properly-enacted and did not
obviously violate the Constitution. Along this same line, the County contends that the
pleading fails to state a procedural due process claim, as neither “the SAFE Act [nor the]
Penal Law” provide for a pre-deprivation hearing,115 and the County has no authority to
create its own due process procedures. Further, the County maintains that the subject
statutory scheme involves a public-safety situation requiring “quick action by the State,”116
and that CPLR Article 78 therefore provides an adequate post-deprivation hearing remedy,

114DeMarco Memo of Law [#22-4] at p. 12 (“[T]the Sheriff’s Office acted lawfully in complying with and
enforcing a presumptively valid and constitutional state statute, the SAFE Act, Penal Law § § 400(1)(j) &
400(11)(b), in suspending Montgomery’s pistol license, confiscating his firearms, and subsequently
cancelling [his] pistol license when he relocated without applying for a transfer of the license under Penal
Law § 400(5)(a).”).
115DeMarco Memo of Law [#22-4] at p. 20.
116DeMarco Memo of Law [#22-4] at p. 21 (citing Spinelli v. City of New York, 579 F.3d 160, 170 (2d Cir.
2009)).

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of which Montgomery has already availed himself.117 The County also maintains that the
Amended Complaint fails to state a claim for a substantive due process violation, since the
County’s actions were not conscience-shocking.
Eastern Long Island Hospital also filed a motion to dismiss [#24] the Amended
Complaint, for lack of standing, improper venue and failure to state a claim. With regard
to standing, the only claims against the Hospital are those being asserted by Montgomery,
who, the Hospital contends, lacks standing to bring this action because the Hospital never
filed a report against him under MHL § 9.46. In this regard, the Hospital insists that
dismissal is required under Rule 12(b)(1), since Montgomery’s admission to the Hospital
was not voluntary, as he maintains. In support of this contention, the Hospital submitted
an affidavit from its Director of Behavioral Services, Helene de Reeder, RN, MSN (“de
Reeder”), who asserts that she did not file a report concerning Montgomery under MHL
§ 9.46, but rather, that she filed a report under MHL § 7.09, as she was required to do after
Montgomery was involuntarily admitted under MHL § 9.39. In that regard, de Reeder
indicates that Montgomery was involuntarily admitted under MHL § 9.39 “by a private
attending physician” who is not an employee of the Hospital.118 Nurse de Reeder further
indicates that she submitted the MHL § 7.09 report using “the New York State Department
of Health portal,” not ISARS. Nurse de Reeder also states that such report did not contain
any protected health information, such as Montgomery’s diagnosis. Nevertheless, the
Hospital indicates that even if the report contained such protected health information, the

117On January 5, 2015, Montgomery commenced an Article 78 proceeding against DeMarco’s office in
New York State Supreme Court, Suffolk County. The Article 78 petition requested, inter alia, an order
vacating the revocation of Montgomery’s pistol permit.
118de Reeder Aff. [#24-1] at ¶ 2.

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disclosure would have been permitted by HIPAA, 45 C.F.R. § 164.512(a) (disclosures
required by law, i.e., MHL § 7.09(j)).
The Hospital alternatively contends that the Amended Complaint must be dismissed
under Rule 12(b)(6), because the Hospital is a private entity, not a state actor, and
therefore cannot be sued under 42 U.S.C. § 1983.119 The hospital argues, further, that it
cannot be held responsible for the alleged deprivation of Montgomery’s Second
Amendment rights, since it “did not revoke [his] pistol permit and had no role in the
determination that it be revoked.” The Hospital maintains, though, that Montgomery’s
Second Amendment rights were not violated in any event, since he lost the right to possess
firearms pursuant to 18 U.S.C. § 922(g)(4) and PL § § 400.00(1)(j), 11(a)&(c) due to having
been involuntarily admitted.120 The Hospital also maintains that venue is improper in the
Western District, since none of the Defendants resides here and none of the events
involving Montgomery’s claim against the Hospital occurred here.
New York State Defendants (Cuomo, Sullivan, Green and Beach) also filed a motion
to dismiss, for lack of standing, failure to state a claim and improper venue. State
Defendants’ motion is accompanied by 42 exhibits.121 With regard to standing, State
Defendants contend that Montgomery, Carter and Reid were never the subject of a report
under MHL § 9.46, and therefore have no standing to challenge the statute. In this regard,
OMH records indicate that reports were filed against Montgomery and Reid indicating that

119Citing, inter alia, Thomas v. Beth Israel Hosp., Inc., 710 F.Supp. 935, 940 (S.D.N.Y. 1989).
120Memo of Law [#24-3] at p. 14.
121Exhibits 1-38 attached to the Notice of Motion; Exhibits A-C attached to the Declaration of Donna
Marie Call; and Exhibit A attached to the Declaration of John B. Allen, Jr.

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they were involuntarily committed (at Eastern Long Island Hospital and Erie County
Medical Center, respectively), but that no reports were filed against them under MHL §
9.46.122 OMH records further indicate that no record of any type has ever been filed
concerning Carter, and that the suspension of Carter’s pistol license was therefore the
result of the Tonawanda Police Department providing information directly to the local
licensing officer.123
As for Bechler, State Defendants acknowledge that he was the subject of a § 9.46
report, but contend that such report caused Bechler no injury because he had already been
involuntarily admitted to the hospital, and his pistol license had already been suspended,
by the time the § 9.46 report was filed.124 In particular, the record indicates that Bechler’s
firearms license was initially suspended after NYSP directly contacted the Ontario County
licensing officer, the Honorable Frederick Reed, County Court Judge, on the day of
Bechler’s arrest, and related the details of the arrest.125 That same day, Judge Reed

122Aff. of John B. Allen, Jr. at ¶ ¶ 19-20; see also, Aff. of Donna Marie Call at ¶ ¶ 18-21, 23-24.
123Aff. of John B. Allen, Jr. at ¶ 21 (“Therefore, the purported suspension of [Carter’s] pistol permit was
done by the local licensing official without any information provided pursuant to the MHL § 9.46 reporting
system or any data provided to the federal NICS database by New York State.”); see also, Aff. of Donna
Marie Call at ¶ 22.
124See, State Defs. Memo of Law in Support of Mtn to Dismiss at p. 19 (“[T]he suspension was ordered
by the local licensing officer, Ontario County Judge Frederick Reed, before any § 9.46 report as to Bechler
was ever submitted to DCJS. The suspension order itself makes plain that it was issued by Judge Reed
based on his discretion as a licensing officer ‘as provided by Section 400.00 of the Penal Law,’ not MHL §
9.46. Thus, Bechler cannot meet his Article III burden of demonstrating the suspension was ‘fairly
traceable’ to MHL § 9.46.”) (citations omitted); see also, Aff. of John B. Allen, Jr. at ¶ ¶ 22-23 (Indicating
that Bechler was reported to OMH as having been involuntarily committed on September 6, 2013, and was
then reported under MHL § 9.46 on September 10, 2013, while he was still in the hospital).
125Def. Mtn to Dismiss, Ex. 31 at p. 4.

45

suspended the firearms licenses of both Mr. Bechler and Mrs. Bechler.126 Also that day,
Clifton Springs Hospital notified OMH that Bechler had been involuntarily committed. OMH
sent such information to DCJS, “both to update NICS and to [allow DCJS to] determine
whether Mr. Bechler had a firearms license.”127 Thereafter, on or about September 10,
2013, a mental health professional at Clifton Springs Hospital also filed an MHL § 9.46
report against Bechler. The Ontario County DCS reviewed the § 9.46 report and agreed
that Bechler was likely to engage in conduct that would result in serious harm to himself
or others, and forwarded Bechler’s non-clinical identifying information to DCJS.128 State
Defendants therefore argue that Bechler was not injured by MHL § 9.46. Alternatively,
State Defendants contend that Bechler lacks standing because his injury has already been
addressed, insofar as a state-court judge has reinstated his pistol license.
State Defendants further contend that venue is improper in the Western District,
because none of them reside in the Western District, and because a substantial part of the
events giving rise to the lawsuit did not occur in the Western District. With regard to
residency, State Defendants contend that they all reside in the Northern District, while
DeMarco and the Hospital reside in the Eastern District.
State Defendants also maintain that even if Plaintiffs have standing, the Amended
Complaint fails to state actionable claims. In that regard, State Defendants contend that
MHL § 9.46 violates neither the Second Amendment nor the Fourteenth Amendment. With

126Def. Mtn to Dismiss, Ex. 31 at p. 6.
127Aff. of John B. Allen, Jr. at ¶ 22.
128Aff. of John B. Allen, Jr. at ¶ 23; see also, Aff. of Donna Marie Call at ¶ 25 (describing the chronology
of the reports that were filed against Mr. Bechler).

46

regard to the Second Amendment, State Defendants maintain that MHL § 9.46 regulates
conduct (possession of firearms by the mentally ill) that falls outside the scope of the
Amendment, and that restrictions on the possession of guns by mentally ill persons are
presumptively lawful. Indeed, State Defendants note that it has been a long-standing
requirement of applicants for firearms licenses in New York to disclose their mental health
records, and that MHL § 9.46 merely facilitates the conveyance of such information to local
licensing officials. Further, State Defendants argue that even if MHL § 9.46 implicates
Plaintiffs’ Second Amendment rights, it does not substantially burden those rights since,
as just mentioned, the statute merely adds to the existing requirement that firearms
licensees disclose their mental health information. State Defendants also contend that
even if MHL § 9.46 substantially burdens Plaintiffs’ Second Amendment rights, the statute
nevertheless passes constitutional muster under heightened (intermediate) scrutiny, since
MHL § 9.46 is substantially related to important governmental objectives, such as crime
prevention and suicide prevention. As for Plaintiffs’ Procedural Due Process claims, State
Defendants maintain that even assuming that Plaintiffs have a protected liberty interest,
they have sufficient process available to them, through an Article 78 proceeding. Finally,
State Defendants assert that Plaintiff’s Equal Protection and Substantive Due Process
claims are duplicative of their Second Amendment claim, and lack merit in any event. In
that regard, State Defendants maintain that MHL § 9.46 does not discriminate, and is
neither arbitrary nor a gross abuse of governmental authority.
On March 13, 2015, Plaintiffs filed a combined response [#28] to all of the
Defendants’ various motions to dismiss. Plaintiffs’ response is organized into three
sections: 1) legal sufficiency of the claims; 2) standing; and 3) venue.
47

Regarding standing, Plaintiffs generally argue that they have standing because their
“civil liberties have been and continue to be violated.”129 Plaintiffs’ response, however,
does not attempt to explain how Montgomery, Carter or Reid have standing specifically
under MHL § 9.46. Instead, Plaintiffs seem to argue that they have standing by virtue of
having been wrongly labeled as involuntarily committed. Plaintiffs have not submitted
affidavits concerning standing from any plaintiff except Montgomery, and, as already
mentioned, Montgomery’s affidavit indicates that he was improperly reported as
“involuntarily committed,”130 but does not explain how he was injured by MHL § 9.46. In
sum, Plaintiffs argue that they have standing because they were injured, regardless of the
specific mechanism by which they were injured, whether it be MHL § 9.46 or some other
provision of New York law, such as MHL § 9.41.
Regarding State Defendant’s contention that Bechler was not injured by MHL § 9.46
because he was already reported as having been involuntarily committed, Plaintiffs assert,
incorrectly, that Defendants have not submitted any evidence to support that claim.131
Alternatively, Plaintiffs vaguely argue that it was the MHL 9.46 report, and not the report
of the involuntary commitment, that caused Ontario County Court Judge Reed to suspend
Bechler’s pistol license.132

However, this argument ignores the fact that, as State

Defendants have shown, Judge Reed suspended Bechler’s license on the same day that
129Docket No. [#28-2] at p. 45.
130Montgomery Aff. [#3-2] at ¶ ¶ 10, 22, 27-29, 32, 33.
131As already discussed, State Defendants have submitted affidavits stating that Bechler was reported as
having been involuntarily committed days before a report was filed under MHL § 9.46. See, e.g., Aff. of
Donna Marie Call at ¶ 25.
132Pl. Memo of Law [#28-2] at p. 48 (“Mr. Bechler’s permit review was conducted under the auspices of
the NYS Police ‘9.46' letter, which was provided by the Court to his Counsel.”).

48

he was arrested, September 6, 2013, which was several days before the MHL § 9.46 report
was filed.133 As for State Defendants’ argument that Bechler lacks standing because his
injury has already been remedied, Plaintiffs argue that even though Bechler’s firearms
license has been restored, the State could “swoop in” and take his license again.134
Regarding venue, Plaintiffs state that venue in this District is proper, in part,
because “the State has physical offices throughout the state, including in Rochester,”
because NYSP also has offices in this District, and because OMH has a DCS in each
county within the Western District.135 Plaintiffs also maintain that the “Western District [is
the] place where several of the Plaintiffs . . . have suffered . . . injury . . . as a result of the
actions of the Defendants.”136 Otherwise, Plaintiffs discuss factors, such as “where a
substantial presence of parties and witnesses are found, the means of the Plaintiffs, [and]
the statewide reach of the State Defendants,” as well as the fact that all counsel are
admitted to practice in this district.137 Plaintiffs further contend that venue is proper in this
district because an “abnormally high” number of reports under MHL § 9.46 have
supposedly been filed in this district.138 Alternatively, Plaintiffs state that venue should
“remain in the Western District, if for no other reason than in the interests of justice. 28

133Def. Mtn to Dismiss, Ex. 31 at pp. 4, 6. NYSP notified Ontario County of the MHL § 9.46 report by
letter dated September 17, 2013. Def. Mtn. to Dismiss, Ex. 34.
134Pl. Memo of Law [#28-2] at p. 46.
135Capanna Aff. [#28] at ¶ ¶ 35, 37-38.
136Pls. Response [#28] at ¶ 7.
137Pl. Memo of Law [#28-2] at p. 52.
138Pl. Memo of Law [#28-2] at p. 52.

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U.S.C. § 1404(a).”139
Plaintiffs arguments concerning the legal sufficiency of the pleadings, are, for the
most part, not responsive to Defendants’ specific objections. Nevertheless, the Court is
able to discern the following major points. Plaintiffs argue that they have plausibly pleaded
that they were discriminated against insofar as they were wrongly categorized as having
been “involuntarily committed.”140 Plaintiffs’ argument on this point briefly references MHL
§ 9.46 a few times, but does not attempt to explain how their claims of having been wrongly
treated as “involuntarily committed,” even if true, are related to MHL § 9.46. Plaintiffs
further maintain that there are inadequate due-process procedures in place to assist
persons who have been incorrectly labeled as “involuntarily committed.” In this regard,
Plaintiffs argue that the procedure for correcting an erroneous report of “involuntary
commitment,” consisting of an Article 78 proceeding, is inadequate and not meaningful.141
Specifically, Plaintiffs argue that Article 78 proceedings are too costly and timeconsuming.142 Plaintiffs also assert that New York State has a “financial incentive” to

139Docket No. [#28-2] at memo p. 52.

140Pl. Memo of Law [#28-2] at pp. 6-12.
141Pl. Memo of Law [#28-2] at p. 26-31. Plaintiffs also contend that there is no procedure available to
challenge a report under MHL § 9.46. Id. at p. 26. (“[T]here is no pre- or post-termination process for the
‘9.46' and no meaningful process for the ‘9.41' classifications.”).
142Plaintiffs also assert that an Article 78 proceeding would be useless, because even if they prevailed in
such a proceeding, the local licensing officer would conduct a sham hearing. Pl. Memo of Law [#28-2] at
p. 30. This argument is entirely inaccurate, and is based on a misunderstanding of Suffolk County’s
papers. In particular, the County indicated only that New York State law currently does not provide local
licensing officials with discretion as to whether to suspend or revoke a firearms license once notification
has been given under § 9.46 or a similar statute. The County stated, therefore, that if it attempted to
conduct a pre-deprivation hearing, the proceeding would be a sham, since it would be contrary to the
current statutory scheme. The County never indicated that it would refuse to comply with a court’s
direction following an Article 78 proceeding.

50

encouraging hospitals to mis-categorize patients as “involuntarily committed,” so that State
can then report such information to NICS.143 Plaintiffs’ do not explain, however, how the
State of New York could actually benefit financially from such false reporting. Plaintiffs
also contend that the legislative history of the SAFE Act fails to demonstrate any
connection between the legislation and public safety.144 On this point, Plaintiffs argue that
there is no reliable evidence that mentally ill persons are more dangerous than anyone
else.145

Plaintiffs also insist that their privacy rights were violated, when they were

reported as having been involuntary committed, and that MHL § 9.46 violates HIPAA, and
in particular, 45 C.F.R. § 164.512(j). Plaintiffs also claim that their Second Amendment
rights were violated, insofar as they were deprived of their firearms after they were falsely
reported as having been involuntarily committed.146 Alternatively, Plaintiffs request leave
to file a Second Amended Complaint, if the current Amended Complaint [#14] is found to
be “inadequate.”147
On March 30, 2015, Defendants filed their replies. Suffolk County’s reply [#30]

143Pl. Memo of Law [#28-2] at p. 20 (“The State is motivated to procure patient reports to secure federal
funds and advance towards Executive-centric power.”); see also, id. at p. 21 (“The financial incentives to
states for reporting are enormous.”).
144Pl. Memo of Law [#28-2] at pp. 21145Pl. Memo of Law [#28-2] at pp. 22-24. Regarding the relationship of MHL § 9.46 to a governmental
objective of preventing gun violence by mentally ill persons, Plaintiffs submit a journal article concerning
threat assessment, which concludes, in part, that “extremely rare events such as school homicide,
workplace violence, or assassination do not lend themselves well to predictability with statistical equations.
Additionally, the extent to which existing knowledge about criminal offenders and people with severe
mental illness will generalize to other populations . . . has yet to be determined.” Pl. Resp. [#28-1], Exhibit
Group I, Ex. 40. Plaintiffs also submit literature suggesting that violence by persons with serious mental
illness is rare, and that laws linking mental illness to gun control may deter people from seeking treatment.
Docket NO. [#28-1], Exhibit Group I, Ex. 41.
146Pl. Memo of Law [#28-2] at pp. 38-42.
147Pl. Memo of Law [#28-2] at p. 42.

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again asserts that the Amended Complaint fails to state a Monell claim, since the County
was not acting pursuant to its own policy when it suspended Montgomery’s pistol license
and seized his guns.148 The County also contends that Plaintiffs’ alternative request to
amend would have no effect on the County’s motion, and would therefore be futile as to
the County, since the proposed amended pleading contains no new allegations or
arguments concerning the County.
Eastern Long Island Hospital’s reply [#31] repeats that Montgomery was admitted
under MHL § 9.39 by a private attending physician, and that no report was filed against him
under MHL § 9.46. Further, the Hospital indicates that an MHL § 9.39 admission is an
involuntary admission, which the Hospital was required to report to OMH. Regarding the
sufficiency of the pleadings, the Hospital indicates, with regard to Plaintiffs’ privacy claim,
that reports of involuntary admissions are required by law (MHL § 7.09(j)), and therefore
do not violate HIPAA.

Regarding the Equal Protection, Due Process and Second

Amendment claims, the Hospital reiterates that it cannot be sued under Section 1983
because it is not a state actor, and that Plaintiffs’ response does not address this point.
Further, as to the Second Amendment claim, the Hospital indicates that it merely reported
Montgomery’s commitment under MHL § 9.39 as required by law, and was not involved in
the taking of his guns or firearms license. In sum, the Hospital emphasizes that it did not
make the decision to admit Montgomery, and that the only action it took was to file the
report concerning Montgomery’s involuntary admission, as required by law, MHL § 7.09(j).
State Defendants’ reply [#33] begins by noting that “Plaintiffs’ puzzling opposition

148The County further observes that Plaintiffs have not challenged, or even mentioned, the County’s
explanation that Montgomery’s pistol license was properly cancelled after he moved to a different county
without first notifying Suffolk County.

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. . . neither engages the State Defendants’ arguments [concerning standing] nor addresses
the governing caselaw [on that issue] cited in [State Defendants’] moving brief.” 149 State
Defendants point out, in that regard, that Plaintiffs have not challenged the assertion that
MHL § 9.46 was never applied to Montgomery, Carter or Reid. As for Bechler, State
Defendants repeat that MHL § 9.46 caused him no injury to begin with, and that in any
event he has already regained his pistol license and his guns. The mere possibility of
future harm, State Defendants argue, is too speculative to give Bechler standing. State
Defendants also contend that Plaintiffs’ response fails to explain how venue is proper in
this District. Regarding the sufficiency of Plaintiffs’ claims, State Defendants’ begin by
reasserting that MHL § 9.46 does not violate the Second Amendment, even assuming that
a claim involving MHL § 9.46 was pleaded. In that regard, State Defendants specifically
argue, contrary to what Plaintiffs claim, that any such Second Amendment analysis would
not require strict scrutiny, and that MHL § 9.46 satisfies intermediate scrutiny. State
Defendants further maintain that Plaintiffs’ response fails to demonstrate a violation of
Plaintiffs’ privacy rights.

Regarding Plaintiffs’ procedural due process claims, State

Defendants argue that Plaintiffs incorrect in asserting that persons reported under MHL §
9.46 have no remedies available to them, since they can bring Article 78 proceedings, and
that pre-deprivation hearings in the context of MHL § 9.46 are not feasible for public safety
reasons. State Defendants also contend that Plaintiffs’ response fails to address their
equal protection arguments, and that the cause of action fails in any event since Plaintiffs
do not claim membership in a suspect class, and MHL § 9.46 does not treat similarlysituated persons differently or infringe fundamental rights. Finally, State Defendants argue
149State Defs. Reply [#33] at p. 3.

53

that Plaintiffs’ substantive due process claims should be deemed abandoned, since
Plaintiffs did not address them in their response.
On September 17, 2015, counsel for the parties appeared before the undersigned
for oral argument. During oral argument, the Court questioned Plaintiffs’ counsel on issues
including standing, joinder and Eastern Long Island Hospital’s status as a state actor for
purposes of § 1983.

The Court also discussed a motion for temporary-sealing of

documents that had been filed by Defendants, and Plaintiffs’ response to that application.
After oral argument, the Court invited additional briefing on the issue of joinder, and
granted Plaintiffs permission to file their own motion to seal. On October 15, 2015, counsel
for Plaintiffs and for Suffolk County submitted supplemental letter briefs, in which Plaintiffs
argue that Eastern Long Island Hospital is a state actor under § 1983, while Suffolk County
addresses issues of standing and joinder. Plaintiffs also filed a motion to seal (Docket No.
[#39]), after which there was additional briefing on that application.150
In connection with the Court’s consideration of all of the pending applications, it
requested additional information relating to the circumstances of Mr. Montgomery’s
admission to Eastern Long Island Hospital, because it was relevant to the issue of his
standing to challenge MHL § 9.46. In that regard, the Court observed, for example, that
although Nurse de Reeder’s affidavit indicated that Montgomery had been involuntarily
admitted, it neither identified the private attending physician who admitted Montgomery,
nor explained the circumstances warranting an involuntary admission. Also, based upon
its review of the Mental Hygiene Law, the Court determined that a Form OMH 474 must
have been completed by a physician at the time of Montgomery’s admission, though it was
150The Court addresses the motion to seal in a separate Decision and Order.

54

not part of the record. On April 26, 2016, the Court sent a request to all counsel,
requesting a copy of the Form OMH 474 that was allegedly used to involuntarily admit
Montgomery. Counsel for the Hospital responded that she had a copy of the form, but was
reluctant to provide it to the Court without Mr. Montgomery’s express permission, in light
of HIPAA. Plaintiffs’ counsel responded and provided a copy of the form to the Court, but
not to Defendants’ counsel. Thereafter, Defendants’ counsel requested copies of the form
that Plaintiffs’ counsel had provided to the Court.
On May 10, 2016, the Court issued a letter Order [#43] which, inter alia, observed
that Montgomery had placed his medical/mental condition at issue, and directed the parties
to immediately prepare a stipulated confidentiality order. The letter Order also directed
Plaintiffs’ counsel to provide opposing counsel with authorizations for “medical/mental
health records.” The letter Order further directed that Eastern Long Island Hospital submit
a supplemental affidavit “clarifying the circumstances of Mr. Montgomery’s admission,
including the identity of the doctor who signed the OMH 474 form and his/her relationship
to the hospital and to Mr. Montgomery,” and indicating whether the Hospital had a policy
of “classifying all psychiatrically-based emergency room admissions as involuntary
commitments,” as Montgomery alleged. The Court also directed Plaintiffs’ counsel to
submit an affidavit from Montgomery’s doctor, who, the Hospital claimed, had
recommended Montgomery for involuntary commitment.
Subsequently, the Court received a series of communications from counsel,
regarding their unsuccessful attempts to draft a mutually-acceptable confidentiality order.
The communications from Defendants indicated that Plaintiff’s counsel was holding up the
process. On August 9, 2016, the Court issued an Order to Show Cause [#44] directing
55

Plaintiffs to show cause why they should not be sanctioned for failing to comply with the
Court’s prior Order [#43].
On September 1, 2016, Plaintiffs filed a response [#45], addressing the Order to
Show Cause, requesting a stay of the action to allow settlement negotiations, and
submitting additional exhibits relating to the pending motions. The response includes an
affidavit from Mr. Montgomery, dated June 4, 2016, indicating that he was admitted by
doctors at the hospital, whose identity he does not know, and not by his own primary care
physician. The response also includes an affirmation [#45] from Plaintiffs’ counsel which
is interesting to the Court insofar as it expresses her belief that the instant lawsuit, which
is ostensibly directed at MHL § 9.46, and which demands relief (including preliminary
injunctive relief) relating only to MHL § 9.46, actually involves “two topics” or “two tracks,”
namely, an “involuntary commitment” track and an MHL § 9.46 track. With regard to this
so-called “involuntary commitment” track, counsel seems to allege that this lawsuit is
attempting to assert a claim that Defendants have failed to conduct an “independent
analysis” as to “whether a medical report of ‘involuntary commitment’ [from a hospital] rises
to the federal standards for disqualification encoded at 18 U.S.C. § 922(g)(4).”151 That is,
counsel seems to be now claiming that when OMH and/or DCJS receive a report from a
hospital that an individual has been involuntarily committed, they have a duty to perform
their own investigation into the matter before reporting the involuntary commitment to

151Capanna Aff. [#45] at ¶ 4.

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NICS.152
On September 9, 2016, State Defendants filed a response to Plaintiffs’ submission
[#45], stating, in pertinent part, that
although Plaintiffs have repeatedly tried to confuse the issue, this case is
about New York Mental Hygiene Law (“MHL”) § 9.46[.] . . . That is the only
statutory provision challenged in the operative Amended Complaint. It is
likewise the only aspect of New York law that Plaintiffs see to “strike down,”
“render void ab initio,” and enjoin the State Defendants from “administering,
operating and implementing.” Plaintiffs have not mounted a challenge to
other, separate provisions of state and federal law relating to gun possession
and involuntary commitments.
Letter of William J. Taylor, Jr. dated September 9, 2016 (citations and internal quotation
marks omitted).153
On December 8, 2016, the Court issued a letter Order [#46], declining to impose
sanctions on Plaintiffs, but directing that the parties finalize a confidentiality order within
seven days. The Court further directed that the parties address the matters discussed in
the Court’s prior Order [#43] “expeditiously.” That is, the Court directed the parties to
expeditiously submit the additional information (concerning Montgomery’s hospitalization)
requested by the Court in its letter Order [#43] issued on May 12, 2016, once the

152Capanna Aff. [#45] at ¶ ¶ 4-6. The assertion that Plaintiffs are challenging the involuntary
commitment procedures under MHL Art. 9 as being inconsistent with 18 U.S.C. § 922, is contrary to
arguments that Plaintiffs previously made in support of their motion for preliminary injunctive relief directed
at MHL § 9.46, wherein they stated: “The State involuntary commitment proceedings [procedures] already
specified in great detail at MHL Art. 9 prior to the enactment of MHL § 9.46 met the threshold requirement
of 18 U.S.C. § 922(g)(4).” Docket No. [#4] at p. 9. It is also contrary to the explanation of Plaintiff’s claims
previously provided by Plaintiff’s counsel, discussed earlier. See, Docket No. [#9] (“[N]or are we seeking to
challenge the pre-existing structure of Mental Hygiene Law Article 9 as it offered pre-existing routes for
involuntary and voluntary commitments.”).
153On September 12, 2016, Eastern Long Island Hospital also submitted a letter commenting on
Plaintiffs’ response to the Court’s Order to Show Cause.

57

confidentiality order was finalized.
On February 6, 2017, having heard nothing further from the parties, the Court
emailed counsel to inquire about the case, pointing out that the Court still had “not received
the materials discussed [in] the Court’s letter order issued on May, 12, 2016.” The same
day, counsel for the Hospital responded, indicating that Defendants had only just received
releases from Mr. Montgomery on January 12, 2017.154
On February 10, 2017, the Hospital filed a supplemental affirmation, with Mr.
Montgomery’s medical chart and affidavits from hospital staff attached as exhibits. The
submission details that on May 23, 2014, Montgomery came to the Hospital emergency
room with a letter from his treating nurse practitioner, indicating that Montgomery was
“begging to be sedated” and required “hospitalization to stabilize his anxiety [and] psychotic
thought processes[,] and to sleep.”155 The affirmation further indicates that Montgomery
was examined by an emergency room physician, Lawrence Schiff, M.D. (“Schiff”), who then
consulted with another physician, Daniel Klages, M.D. (“Klages”), and a psychiatrist,
Douglas Hoverkamp, M.D. (“Hoverkamp”), after which the decision was made to admit
Montgomery to the hospital psychiatric unit pursuant to MHL § 9.39.156 Dr. Schiff and Dr.
Hoverkamp both signed the OMH 474 form used to involuntarily admit Montgomery.
Neither Schiff nor Hoverkamp are employees of the Hospital, though they have admitting

154Email from Catherine Brennan dated February 6, 2017.
155Brennan Supplemental Affirmation at ¶ 3. In particular, the noted from Nurse Practitioner Malcomson
stated, in pertinent part: “He is so frantic about not sleeping and his ego functioning is so poor he
is’begging to be sedated.’ He is in need of hospitalization to stabilize his anxiety, psychotic thought
processes and to sleep. Dr. Klages has contacted Dr. Hubercamp [Hoverkamp] regarding this.”).
156Brennan Supplemental Affirmation at ¶ 5.

58

privileges at the Hospital.157 The relevant Form OMH 474 states that Montgomery was
complaining of insomnia and racing thoughts, and was sent to the Hospital by his
therapist’s office “for admission evaluation for personal safety.”158 The Form OMH 474
indicates that Montgomery did not “show a tendency to cause serious harm” to himself or
to others.159

In a progress noted dated May 25, 2014, Dr. Hoverkamp noted that

Montgomery had been “admitted under a 9.39 status,” due to “worsening depressed mood,
intractable insomnia and bordering on psychosis, in terms of worry and paranoia.”160 The
Hospital also submitted a supplemental affidavit from Nurse de Reeder, stating that the
Hospital “does not have a policy of classifying all psychiatrically based admissions from the
emergency room as involuntary commitments,” but rather, that “[t]he type of admission to
the psychiatric unit is determined by the on call psychiatrist directing the admission,” which
in Mr. Montgomery’s case was Dr. Hoverkamp.161 The Hospital further indicates that once
Montgomery was involuntarily admitted under MHL § 9.39, the Hospital was required by
MHL § § 7.09(j) & 31.11(5) to report such fact, through the New York State Department
of Health Portal.162 Nurse de Reeder further states that no one at the Hospital filed a report
concerning Montgomery under MHL § 9.46.163

157Brennan Supplemental Affirmation at ¶

¶ 4, 7.

158Brennan Supplemental Affirmation at ¶ 6.
159Brennan Supplemental Affirmation, Ex. 1.
160Brennnan Supplemental Affirmation, Ex. 1.
161Brennan Supplemental Affirmation at ¶ 9.
162Brennan Supplemental Affirmation at ¶ 13.
163de Reeder Aff. dated February 19, 2015, at ¶ 6.

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Upon the Court’s receipt of the Hospital’s supplemental response, no further
briefing deadlines were extant. Nevertheless, on March 13, 2017, State Defendants
submitted a supplemental letter brief,164 expressing the view that the Hospital’s
supplemental submission, along with the rest of the record, conclusively establishes that
Montgomery was never reported under MHL § 9.46, and therefore lacks standing in this
action.
Having received no further communications from the parties, on March 24, 2017,
the Court issued a text order [#49], stating: “Counsel have had a sufficient amount of time
to brief any applications currently pending before the Court. Accordingly, briefing on such
applications is closed. The Court will render a written decision at its earliest opportunity.”
One month later, on April 26, 2017, the Court received a letter from Plaintiffs’
counsel, acknowledging the Court’s text order [#49], but asking the Court to consider some
additional points. Counsel first expresses confusion regarding the Court’s handling of the
case,165 and questions whether the Court might be taking an incorrect view of the merits
of the case due to its “apparent [negative] opinion of [her].” Counsel further contends that
“none of the medical records” submitted by Defendants are “relevant to the legal inquiry
of whether any [Plaintiffs] were ‘involuntarily committed’ in accordance with 18 U.S.C. §
922(g)(4).” Next, Counsel asserts that the “judicial branch” and “executive branches” are
“conspiring” “to deprive the individual of Second Amendment, Privacy, Due Process,
Property, and other, valuable civil rights.” Additionally, Counsel again alludes to the idea
164Letter of William J. Taylor, Jr. dated March 13, 2017.
165Plaintiffs’ counsel wrote that, “It is unclear why the Court has progressed the matter in the direction it
took since May 2016, several months after what was thought to be the final written submissions on the
Defendants’ motions.” The Court can only encourage Counsel to re-read the Court’s Order [#43], which
explains exactly why the Court was seeking additional information.

60

that the State of New York is attempting to profit financially from improperly reporting
persons to NICS. (“In NY, individuals are only reported to the FBI for the NICS Index in the
two categories [of 18 U.S.C. § 922] for which the State is paid money: g(4) and g(8) (the
order of protection.”).
In rendering its decision herein, the Court has considered all of the aforementioned
submissions.
DISCUSSION
Defendants’ motions contend that the Court should dismiss this action for lack of
subject matter jurisdiction, pursuant to Fed.R.Civ.P. 12(b)(1), for improper venue, pursuant
to Fed.R.Civ.P. 12(b)(3), and for failure to state a claim, pursuant to Fed.R.Civ.P. 12(b)(6).
The Court will consider the issues in that order.
Motions to Dismiss for Lack of Subject Matter Jurisdiction
Eastern Long Island Hospital and State Defendants 166 contend that all Plaintiffs lack
standing to maintain this action, and the general legal principles concerning standing can
be succinctly stated as follows:
The defect of standing is a defect in subject-matter jurisdiction. In order to

166Unlike the other defendants, the County does not allege that Montgomery lacks standing to challenge
MHL § 9.46. Indeed, the County’s motion includes at least two references to MHL § 9.46 which imply
such statute played some unspecified role in DeMarco’s suspension of Montgomery’s license. See,
DeMarco Memo of Law [#22-4] at p. 1 (referencing Penal Law § 400.00(11)(b), which relates to MHL §
9.46) and p. 15 (referencing MHL § 9.46). However, the County’s references to MHL § 9.46 and PL §
400.00(11)(b) appear to based upon a mistaken reading of the law by the County’s counsel, since
DeMarco claims that the only notice his office received concerning Montgomery was that Montgomery had
been adjudicated a mental defective or involuntarily committed, and was therefore ineligible to have
firearms pursuant to 18 U.S.C. § 922(g). See, DeMarco Memo of Law [#22-4] at p. 1. Moreover, none of
the correspondence between NYSP and DeMarco’s office, or between DeMarco’s office and Montgomery,
reference MHL § 9.46. Rather, they only reference involuntary commitment and 18 U.S.C. § 922.
Accordingly, Montgomery was manifestly disqualified under Penal Law § § 400.00(1)(j) & (11)(a)&(c) §
400.02, not under MHL § 9.46 or PL § 400.00(11)(b). In any event, the County has focused its attack on
Plaintiffs’ alleged failure to plead Monell liability, rather than on standing.

61

establish constitutional standing, a plaintiff must demonstrate that a case or
controversy exists by showing (1) that he has suffered an “injury in fact” that
is “concrete and particularized” and “actual or imminent, not conjectural or
hypothetical”; (2) that the injury is “fairly traceable” to the challenged action
of the defendant; and (3) that it is likely, as opposed to merely speculative,
that the injury will be redressed by a favorable decision.
Ass'n of Am. Physicians & Surgeons, Inc. v. Sebelius, 901 F. Supp. 2d 19, 30 (D.D.C.
2012) (citations omitted), aff'd sub nom. Ass'n of Am. Physicians & Surgeons v. Sebelius,
746 F.3d 468 (D.C. Cir. 2014); accord, Nat'l Org. for Marriage, Inc. v. Walsh, 714 F.3d 682,
688 (2d Cir. 2013).
Moreover, “[t]o establish standing to obtain prospective relief, a plaintiff must show
a likelihood that he will be injured in the future.” Carver v. City of New York, 621 F.3d 221,
228 (2d Cir. 2010) (citation and internal quotation marks omitted). [W]ith respect to [such]
future injury . . . the prospect of such harm must be certainly impending, and real and
immediate.” Lee v. Bd. of Governors of the Fed. Reserve Sys., 118 F.3d 905, 912 (2d Cir.
1997) (citations and internal quotation marks omitted).
“The basic question when standing is at issue is whether the plaintiff has alleged
“such a personal stake in the outcome of the controversy” as to warrant his or her
invocation of federal-court jurisdiction, and to justify exercise of the court's remedial powers
on his or her behalf. Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663
(1962). A federal court's jurisdiction can be invoked, then, only when the plaintiff himself
or herself has suffered some threatened or actual injury resulting from the putatively illegal
action.” Morabito v. Blum, 528 F. Supp. 252, 260 (S.D.N.Y. 1981), superseded on other
grounds by regulation, see, Himes v. Shalala, 999 F.2d 684, 692 (2d Cir. 1993); see also,
Lee v. Bd. of Governors of the Fed. Reserve Sys., 118 F.3d at 912 (“[T]he ‘injury in fact’
62

test requires more than an injury to a cognizable interest. It requires that the party seeking
review be himself among the injured.”) (citation omitted).
When considering this issue, District Courts must be careful not to confuse standing
with the merits of the plaintiff’s claim.167
The Second Circuit has emphasized that the fundamental aspect of standing
is its focus on the plaintiff and not on the issues the plaintiff wishes to have
adjudicated. United States v. Vazquez, 145 F.3d 74, 80 (2d Cir.1998). The
aim of a court's investigation into a plaintiff's standing is to determine
“whether the plaintiff has alleged such a personal stake in the outcome of the
controversy as to warrant his invocation of federal-court jurisdiction and to
justify exercise of the court's remedial powers on his behalf.” Warth v. Seldin,
422 U.S. 490, 498–99, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) (internal
quotation omitted). The standing issue must therefore be resolved
“irrespective of the merits of [the] substantive claims.”168 Bordell v. Gen. Elec.
Co., 922 F.2d 1057, 1060 (2d Cir.1991).
State Farm Mut. Auto. Ins. Co. v. Mallela, No. CV-00-4923 (CPS), 2002 WL 31946762, at
*6 (E.D.N.Y. Nov. 21, 2002); see also, Morrison v. YTB Int'l, Inc., 649 F.3d 533, 536 (7th
Cir. 2011) (“That a plaintiff's claim under his preferred legal theory fails has nothing to do
with subject-matter jurisdiction, unless the claim is so feeble as to be ‘essentially fictitious.’
. . . To put this differently, subject-matter jurisdiction is a synonym for adjudicatory

167See, e.g., Anderson v. Holder, 691 F. Supp. 2d 57, 60–61 (D.D.C. 2010) (“The District of Columbia
defendants' Rule 12(b)(1) motion to dismiss argues that “plaintiff lacks standing because the District of
Columbia does not control his parole conditions and is therefore not a proper defendant.” The argument
conflates two materially different concepts. There is no question that plaintiff is subjected to the locally
enacted SORA; thus, he has legal standing to challenge the statute's enforcement against him. . . .
Whether the District is a proper defendant to redress plaintiff's claim, then, does not affect plaintiff's
standing to sue but rather is a question for consideration under Rule 12(b)(6). The District's motion to
dismiss under Rule 12(b)(1) therefore will be denied. (emphasis added, citations omitted), aff'd, 647 F.3d
1165 (D.C. Cir. 2011)
168Moreover, where the contested basis for standing is also an element of the plaintiff’s claim, the district
court should not dismiss for lack of subject-matter jurisdiction, but should find that jurisdiction exists and
proceed to address the alleged deficiency under Rule 12(b)(6). Nowak v. Ironworkers Local 6 Pension
Fund, 81 F.3d 1182, 1187,1189 (2d Cir. 1996).

63

competence. A federal court is the wrong forum when there is no case or controversy, or
when Congress has not authorized it to resolve a particular kind of dispute. Other
deficiencies in a plaintiff's claim concern the merits rather than subject-matter jurisdiction.”)
(citations omitted).
Challenges to standing can be either “facial” or “fact based,” and the burden on the
plaintiff varies depending upon which type of challenge is being made.
[A] challenge to subject-matter jurisdiction pursuant to Rule 12(b)(1) may be
facial or fact-based. When a defendant raises a facial challenge to standing
based solely on the complaint and the documents attached to it, the plaintiff
has no evidentiary burden and a court must determine whether the plaintiff
asserting standing alleges facts that affirmatively and plausibly suggest that
the plaintiff has standing to sue. In making such a determination, a court
must accept as true all allegations in the complaint and draw all inferences
in the plaintiff's favor. Where a Rule 12(b)(1) motion is fact-based, a
defendant proffers evidence outside the pleadings and a plaintiff must either
come forward with controverting evidence or rest on the pleadings if the
evidence offered by the defendant is immaterial. Where the evidence
presented by defendants is both material and controverted, a court must
make findings of fact in aid of its decision as to standing.
Fullwood v. Wolfgang's Steakhouse, Inc., No. 13 CIV. 7174 (KPF), 2017 WL 5157466, at
*3 (S.D.N.Y. Nov. 3, 2017) (citing Carter v. HealthPort Techs., LLC, 822 F.3d 47, 56 (2d
Cir. 2016), other citations and internal quotation marks omitted).
A dismissal for lack of standing must be without prejudice. See, Katz v. Donna
Karan Co., L.L.C., 872 F.3d 114, 121 (2d Cir. 2017) (“[W]here a case is dismissed for lack
of Article III standing, as here, that disposition cannot be entered with prejudice, and
instead must be dismissed without prejudice.”) (citations omitted).

64

The question of standing is claim-specific.169 In other words, before a court can
consider whether a plaintiff has standing to assert a claim, it first must identify the claim
that is being asserted.170 The instant case is unusual, because the parties disagree about
what claims Plaintiffs are asserting. Movants insist that Plaintiffs’ action involves only a
challenge to MHL § 9.46. Plaintiffs, however, contend that they are actually asserting two
different claims: First, a challenge to MHL § 9.46; and second, a claim (“the involuntary
commitment claim”) that Defendants are intentionally mis-categorizing patients as
“involuntarily committed” or that they have failed to conduct an “independent analysis” as
to “whether a medical report of ‘involuntary commitment’ rises to the federal standards for
disqualification encoded at 18 U.S.C. § 922(g)(4).”171 As part of this second “claim,”
Plaintiffs appear to maintain not only that Defendants are failing to verify that persons have
been involuntarily committed before reporting their names to NICS, but that they are doing
so intentionally, both to effectuate a general “anti-gun” agenda and to reap financial
rewards flowing from financial incentives associated with the

NICS Improvement

169Ford v. Strange, 580 F. App'x 701, 708 (11th Cir. 2014) (“The standing inquiry is both plaintiff-specific
and claim-specific. Thus, a reviewing court must determine whether each particular plaintiff is entitled to
have a federal court adjudicate each particular claim that he asserts.”) (citations omitted); see also, Ass'n
of Am. Physicians & Surgeons, Inc. v. Sebelius, 901 F. Supp. 2d at 31 (“Standing is a claim-specific
inquiry.”); McKay v. State of New York, No. 16-CV-6834-FPG, 2018 WL 1046792, at *3 (W.D.N.Y. Feb.
26, 2018) (“A plaintiff invoking federal jurisdiction “must demonstrate standing for each claim and form of
relief sought.” Cacchillo v. Insmed, Inc., 638 F.3d 401, 404 (2d Cir. 2011).”).
170As noted above, the second showing required under the basic standing analysis is that “(2) that the
injury is ‘fairly traceable’ to the challenged action of the defendant.” This wording seems to assume that
both the injury and the challenged action are known, and that what must be shown is a connection
between the two. Such a causal connection cannot be shown without first establishing the specific nature
of the challenged action.
171Capanna Aff. [#45] at ¶ 4.

65

Amendments Act.172
“[W]here, as here, the parties disagree whether the complaint was sufficient to put
the defendant on notice of a particular claim, notice pleading standards require that the
complaint be read liberally in favor of the plaintiff.” Perry v. Am. Airlines, Inc., 405 F. Supp.
2d 700, 705 (E.D. Va. 2005) (citations omitted); see also, Rodriguez-Rivera v. City of New
York, No. 05 CIV. 10897 LAP, 2007 WL 766195, at *1 (S.D.N.Y. Mar. 12, 2007) (“Plaintiff's
Amended Complaint is read liberally in accordance with the standard of notice pleading
under Rule 8(a).”).
Rule 8(a) of the Federal Rules of Civil Procedure requires only that a complaint give
the defendant “fair notice” of the claims being asserted. See, Keiler v. Harlequin
Enterprises Ltd., 751 F.3d 64, 70 (2d Cir. 2014) (“Federal Rule of Civil Procedure 8(a)(2)
requires only a short and plain statement of the claim showing that the pleader is entitled
to relief, in order to give the defendant fair notice of what the claim is and the grounds upon
which it rests.”). Indeed, “the principal function of pleadings under the Federal Rules is
to give the adverse party fair notice of the claim asserted so as to enable him to answer
and prepare for trial.” Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988). If a complaint
fails to provide the defendant with a fair understanding of the plaintiff’s claims, or otherwise
prejudices the defendant, it should be dismissed under Rule 8(a). See, Green v. City of
Mount Vernon, 96 F. Supp. 3d 263, 281 (S.D.N.Y. 2015) (“Fair notice is that which will
enable the adverse party to answer and prepare for trial, allow the application of res
judicata, and identify the nature of the case so it may be assigned the proper form of trial.

172The Court’s statement on this point is not based upon anything set forth in the pleadings, but is
primarily pieced together from stray remarks in Plaintiffs’ briefs generally and a very generous reading of
Plaintiffs’ submission [#45] filed on September 1, 2016.

66

. . . Thus, courts will not dismiss a complaint . . . unless the complaint's form or substance
prevents the defendant from forming a ‘fair understanding’ of the plaintiff's allegations or
otherwise prejudices the defendant in responding to the complaint.”) (citations omitted).
Here, the Amended Complaint [#14] fails to satisfy Rule 8(a) insofar as Plaintiffs
claim to be asserting an “involuntary commitment” claim. To begin with, the Amended
Complaint opens with a one-page statement purporting to explain the “NATURE OF THE
ACTION,” which is entirely focused on MHL § 9.46. This paragraph does not mention
involuntary commitment.

Rather, this paragraph gives the reader the clear and

unmistakable impression that this lawsuit involves a challenge to the recently-enacted MHL
§ 9.46, which is not a commitment statute. If Plaintiffs were intending to assert a claim
involving systematic mis-classification of persons as “involuntarily committed,” as they now
claim, this opening paragraph would have been a very opportune place for them to say so.
They did not do so, and consequently the reader is led to believe that this action is about
MHL § 9.46. Certainly, that was the Court’s understanding from reading the paragraph.
The Amended Complaint [#14] then continues with 292173 paragraphs of factual
allegations, almost all of which expressly relate to MHL § 9.46. “Involuntary commitment”
is not mentioned until the thirteenth page of the pleading, and even then it is only
mentioned in the context of differentiating MHL § 9.46 from the rest of Mental Hygiene Law
Article 9. The eighteenth and nineteenth pages of the pleading discuss the fact that a
person may become ineligible from possessing firearms under 18 U.S.C, § 922(g) after
being adjudicated mental defective or involuntarily committed, but without any explanation

173This calculation does not include the paragraphs relating to plaintiff “M.M.,” who is no longer a party to
this action.

67

for how such fact relates to MHL § 9.46, which had been the sole topic of discussion up
until that point. Page twenty-seven of the pleading again briefly mentions 18 U.S.C. §
922(g), but only in the context of discussing a publication issued by the NYSP concerning
the SAFE Act. At page twenty-nine, the pleading abruptly asserts that,
In reality, NYS Police have taken the position of instructing local licensing
officials to suspend and terminate pistol permits for all persons reported
through MHL § 9.46 as having been involuntarily committed to a mental
institution.
Amended Complaint [#14] at ¶ 91. However, although this paragraph mentions involuntary
commitment, it implies that Plaintiffs were “reported through MHL § 9.46,” and does not
indicate that Plaintiffs are attempting to assert a stand-alone claim involving improper
involuntary commitments.
It is not until page thirty-eight of the Amended Complaint, at paragraphs 134-136,
that the pleading says anything resembling what Plaintiffs now refer to as their “involuntary
commitment” claim. Paragraph 134 asserts, without explanation, that “State Defendants
in their political drive to confiscate firearms are failing to distinguish between the new MHL
§ 9.46 and the continuing MHL § 9.41, which is a pre-existing provision for involuntarily [sic]
commitment.” Paragraph 135 asserts that “it appears” that OMH and “emergency room
providers” are classifying persons as “involuntarily committed” who were not in fact
involuntarily committed, but provides no factual basis for that statement. And finally,
paragraph 136 states:
It appears that the Office of Mental Health, Department of Criminal Justice
Services, and NYS Police are failing to obtain critical data that would support
an accurate characterization of a patient as having been ‘involuntarily
committed,” meaning to have been formally adjudicated as a mental

68

defective or involuntarily committed as these terms are defined at federal law
and regulations cited herein.
Judging from Plaintiffs’ later submissions, paragraph 136 of the Amended Complaint is
apparently where Plaintiffs believe they have pleaded an “involuntary commitment” claim.
Only with the benefit of such later submissions does it now appear that Plaintiffs were
attempting to claim that state officials should not rely upon reports, provided to them by
hospitals or doctors, indicating that someone has been involuntarily committed.
Apparently, in that regard, Plaintiffs contend that state officials should not accept such
reports at face value, and should not report involuntary commitments to NICS, until after
a court has performed its own investigation into the circumstances of each alleged
involuntary commitment.
However, regardless of what Plaintiffs intended, the Amended Complaint does not
give Defendants fair notice of such a claim. Notably, after paragraphs 134-136, the
pleading makes factual allegations concerning the individual plaintiffs, which, although they
include allegations that Plaintiffs were wrongly labeled as involuntary commitments, seem
to blame any mistake in that regard on the SAFE Act, and, particularly, MHL § 9.46.174
Consequently, since the expressly-stated purpose175 of the Amended Complaint is to attack
a specific section of the SAFE Act -- MHL § 9.46 -- the reader is left with the impression
that Plaintiffs are somehow blaming the fact that they were improperly classified as
“involuntarily committed” on MHL § 9.46. Although such a claim makes no logical sense,

174Amended Complaint [#14] at ¶ ¶ 221, 234, 255, 288.
175See, Amended Complaint [#14] at p. 2 “NATURE OF THE ACTION.”

69

it nevertheless seems to be what the pleading is asserting.176
This impression is reinforced at the end of the Amended Complaint, where Plaintiffs
set forth their four causes of action. The first cause of action (“right to privacy”), third
cause of action (“due process”) and fourth cause of action (“right to keep and bear arms”)
refer only to MHL § 9.46, and do not mention involuntary commitment. The second cause
of action repeatedly references MHL § 9.46, but then ends with two references to
involuntary commitment. However, it is not obvious that those references to involuntary
commitment are attempting to assert a separate claim, unrelated to the immediatelypreceding statements about MHL § 9.46.
Similarly, the Amended Complaint’s ad damnum clause seeks relief almost entirely
related to MHL § 9.46, and does not mention involuntary commitment. “The prayer for
relief is no part of the plaintiff's cause of action.” City of Los Angeles v. Lyons, 461 U.S. 95,
130, 103 S. Ct. 1660, 1680, 75 L. Ed. 2d 675 (1983). However, a prayer for relief can, as
in this case, give the defendant the wrong idea about the type of claim that the complaint
is attempting to assert.
In sum, the Court finds that the Amended Complaint fails to give fair notice to
Defendants that it is attempting to assert a stand-alone involuntary commitment claim.
Rather, the pleading only gives fair notice that it is challenging MHL § 9.46.
Accordingly, to the extent that Plaintiffs were attempting to assert an “involuntary
commitment” claim in the Amended Complaint, it is dismissed under Rule 8(a), without

176Again, Plaintiff’s counsel has explained that she concluded that Montgomery must have been reported
under MHL § 9.46, because the Hospital’s claim that Montgomery had been involuntarily committed did
not “make sense” to her. Docket No. [#9], Capanna letter dated Jan. 23, 2015 at p. 4.

70

prejudice.177 Therefore, in connection with the challenge to Plaintiffs’ standing, the Court
will only consider whether Plaintiffs have standing to challenge MHL § 9.46.
Having found that the Amended Complaint asserts a challenge only to MHL § 9.46,
it is clear that Montgomery, Carter and Reid have no standing in this action, since they
were not affected by MHL § 9.46, and have not shown that they are in imminent danger
of being affected by MHL § 9.46 in the future. That is, they have not shown an injury that
is “fairly traceable” to the challenged action of the defendants in enacting and/or enforcing
MHL § 9.46.
For example, there is not a single shred of evidence in the record that MHL § 9.46
had anything whatsoever to do with what happened to Mr. Montgomery. Rather, all of the
evidence indicates that whatever happened to Montgomery resulted from him being
admitted to the hospital pursuant to MHL § 9.39, rightly or wrongly.
There is similarly no evidence that a § 9.46 report was filed concerning Carter. At
most, the Amended Complaint indicates that after Carter was taken to the hospital by
police under circumstances clearly implicating MHL § 9.41, a police officer told him that his
guns could not be returned to him, “due to the SAFE Act.”178 However, even if it could be
inferred that this vague statement refers to MHL § 9.46, as opposed to some other
provision of the SAFE Act, such as PL § 400.00(1)(j)&(11)(a)&(c), Defendants have
provided sworn evidence that no MHL § 9.46 report was filed concerning Carter.
Moreover, Plaintiffs admit that the relevant entry in Carter’s medical chart refers to MHL

177Celli v. Cole, 699 F. App'x 88, 89 (2d Cir. 2017) (“[A] Rule 8 dismissal generally should be without
prejudice[.]”)
178Amended Complaint [#14] at ¶ 221.

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§ 9.41.179
As for Reid, at most the Amended Complaint vaguely indicates that Reid received
a notice which she interpreted as indicating that MHL § 9.46 might had something to do
with the suspension of her pistol license.180 However, the pleading admits that the
“language [of the notice Reid received] implicates both MHL § 9.41 and § 9.46, without
referencing any section of law.”181 Further, Reid has not submitted the actual document
to which the pleading refers, nor has she otherwise refuted Defendants’ sworn evidence
that no MHL § 9.46 report was ever actually filed concerning her.
In any event, to the extent that there is any bona fide factual issue on this point, the
Court finds that Montgomery, Carter and Reid were never reported under MHL § 9.46, and
that to the extent that they suffered any injuries, they were not caused by MHL § 9.46.
Further, Montgomery, Carter and Reid have not shown that they are in imminent danger
of being reported under MHL § 9.46 in the future. Accordingly, the claims of Montgomery,
Carter and Reid in the Amended Complaint [#14] are dismissed in their entirety, pursuant
to Rule 12(b)(1), without prejudice. Moreover, since the only claims being asserted against
Suffolk County and Eastern Long Island Hospital are by Montgomery, the County and the
Hospital are dismissed from the action entirely, pursuant to Rule 12(b)(1), without
prejudice.
Regarding Bechler, the issue remains whether he has standing to maintain claims

179Pl. Memo of Law [#28-2] at p. 54, memo at p.47 (“Mr. Carter’s chart contains a ‘9.41' within one page
of medical notes.”).
180Amended Complaint [#14] at ¶ 255.
181Amended Complaint [#14] at ¶ 255 (emphasis added).

72

involving MHL § 9.46 against State Defendants, where an MHL § 9.46 report was filed
against him only after his pistol license had already been suspended due to an involuntary
commitment.182 In this regard, it appears clear to the Court that even without the MHL §
9.46 report, Bechler’s firearms license would have been suspended or revoked, his
firearms would have been seized, his name would have been reported to both NICS and
the New York State database, and he would have become ineligible to buy or possess
firearms pursuant to 18 U.S.C. § 922, all due to factors other than MHL § 9.46. In
particular, on September 6, 2013, Ontario County Court Judge Reed suspended Bechler’s
pistol license, due to the fact that Bechler had, that same day, been “arrested under the
Mental Health [sic] Law as a result of a suicide threat.”183 The same day, Clifton Springs
Hospital notified OMH that Bechler had been involuntarily committed, and OMH forwarded
that information to DCJS, to allow DCJS “to update NICS and to determiner whether Mr.
Bechler had a firearms license.”184 A report under MHL § 9.46 was not filed against
Bechler until several days later.185 Also, it is undisputed that Bechler’s firearms license was
subsequently reinstated, and that his guns have been returned to him.
For purposes of standing, the burden on a plaintiff to show that his injury is “fairly
traceable” to the challenged conduct of the defendant is modest, and is less than the
showing required to prove proximate causation:
182To the extent that Bechler is challenging this chronology, the Court finds that Defendants have
established that the MHL § 9.46 report was not filed until days after Bechler had already been involuntarily
committed.
183Decl. of William J. Taylor, Jr. dated Feb. 26, 2015, Exhibit 33, “Order Suspending Pistol Permit.”
184Aff. of Donna Marie Call dated Feb. 25, 2015, at ¶ 22.
185See, Aff. of Donna Marie Call dated Feb. 15, 2015, at ¶ 25; Aff. of John B. Allen, Jr. dated Feb. 25,
2015, at ¶ ¶ 22-23;

73

The requirement that a complaint allege an injury that is fairly traceable to
defendants' conduct for purposes of constitutional standing is a lesser
burden than the requirement that it show proximate cause. Thus, the fact
that there is an intervening cause of the plaintiff's injury may foreclose a
finding of proximate cause but is not necessarily a basis for finding that the
injury is not “fairly traceable” to the acts of the defendant. . . . [I]t is wrong to
equate injury “fairly traceable” to the defendant with injury as to which the
defendant's actions are the very last step in the chain of causation. Rather,
at the pleading stage of the litigation, the plaintiffs' burden of alleging that
their injury is “fairly traceable” to the challenged act is relatively modest.
Rothstein v. UBS AG, 708 F.3d 82, 92 (2d Cir. 2013) (citations and internal quotation
marks omitted).
Nevertheless, State Defendants contend that Bechler cannot meet this burden,
since his firearms license was already suspended by the time the MHL § 9.46 report was
filed, and he would have faced all of the same consequences (suspension of license,
reporting to DCJS and NICS, seizure of weapons) about which he complains in this action
even if no MHL § 9.46 report had been filed. On this point, State Defendants cite, inter
alia, Exotic Animal Owners v. New York, No. 03-7327, 98 F.App’x 905 (2d Cir. Jun. 4,
2004) (Second Circuit found that monkey owner living in New York City, who was
challenging a provision of the New York Gen. Mun. Law requiring owners of wild pets to
notify the state, lacked standing because he was independently prohibited from owning the
monkey pursuant to the New York City Health Code: “He thus has no standing in this case,
because we can only speculate whether the remedy he seeks would redress his purported
injuries.”) (citation and internal quotation marks omitted).
The Court agrees with State Defendants, and finds that Plaintiffs have failed to carry
their burden of affirmatively showing that Bechler has standing to challenge MHL § 9.46.

74

Specifically, Plaintiffs have not shown either that Bechler’s alleged injury is “fairly traceable”
to actions of State Defendants involving MHL § 9.46, or that it is likely such injury will be
redressed by a favorable decision by this Court involving MHL § 9.46.
Bechler’s injury is not fairly traceable to MHL § 9.46, because the filing of the MHL
§ 9.46 report was redundant, and put him in no worse position than he was already in after
he

was

reported

as

involuntarily

committed.

See,

Phelps

v.

Bosco,

No.

113CV1510GTSCFH, 2017 WL 437407, at *29 (N.D.N.Y. Feb. 1, 2017) (Plaintiff, who
claimed that the State of New York had wrongly reported that his admission to a mental
hospital in 1996 pursuant to MHL § 9.37 was an “involuntary commitment” under 18 U.S.C.
§ 922(g)(4), lacked standing, because he also had a different involuntary commitment
which he was not challenging: “The Court finds that Plaintiff's 2005 commitment to
Columbia Memorial Hospital provides an independent disqualifying event under 18 U.S.C.
§ 922(g)(4).”), aff'd, No. 17-627, 2018 WL 858703 (2d Cir. Feb. 14, 2018).
Similarly as to “redressability,” Plaintiffs have not explained how a favorable ruling
in this action concerning MHL § 9.46 would redress Bechler’s alleged injury, since he
suffered even more injuries due to having been classified as “involuntarily committed” than
he would have suffered solely from an MHL § 9.46 report.186 Nor has Bechler shown that
he is in imminent danger of being reported under MHL § 9.46 in the future. Accordingly,
Bechler lacks standing to challenge MHL § 9.46.
For all of the foregoing reasons, the applications to dismiss the Amended
Complaint, for lack of standing pursuant to Rule 12(b)(1), by Eastern Long Island Hospital

186For example, involuntary commitment results in an NICS report, whereas an MHL § 9.46 report does
not.

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and State Defendants, are granted. Moreover, although Suffolk County did not move to
dismiss for lack of standing, the Court finds, sua sponte, that Plaintiffs also lack standing
to assert claims under MHL § 9.46 against the County, for the same reasons that they lack
standing to assert MHL § 9.46 claims against the other defendants. See, In re Indu Craft,
Inc., 630 F. App'x 27, 28 (2d Cir. Nov. 10, 2015) (“It is well-established that a district court
may raise the issue of standing sua sponte[.]”).187 The Amended Complaint is dismissed
in its entirety, without prejudice.
Although the Court is satisfied that it lacks subject-matter jurisdiction over this
action, due to Plaintiffs’ lack of standing to challenge MHL § 9.46, it knows that on appeal,
a reviewing Court might disagree. Moreover, the Court is keenly aware of the amount of
time and energy that has been expended in researching, briefing and arguing the
remaining aspects of the pending motions, concerning venue and the merits of Plaintiffs’
claims. Therefore, despite the Court’s ruling on jurisdiction, it would be the Court’s
preference to proceed and consider, in the alternative, the remaining aspects of the
pending applications. However, the Second Circuit has indicated that such an alternative
ruling by this Court would amount to an advisory opinion and a “nullity.” For example, in
Roistacher v. Bondi, 624 F. App'x 20 (2d Cir. 2015), the Second Circuit had before it a
case in which the District Court found that it lacked subject-matter jurisdiction, but
proceeded, in the alternative, to consider the merits and grant summary judgment to the
defendants. Significantly, on appeal the Second Circuit found that the District Court’s

187Under the circumstances of this case, where two-of-three defendants moved to dismiss for lack of
standing on grounds that are equally applicable to Suffolk County, Plaintiffs have had a full and fair
opportunity to brief the standing issue, a cannot claim to be prejudiced by the Court’s sua sponte dismissal
on this ground of the claims against Suffolk County.

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ruling on subject-matter jurisdiction had been “wrong,” and one might expect that the
Circuit Court would have then proceeded to consider whether the District Court’s
alternative ruling on summary judgment was correct. Instead, however, the Second Circuit
declined to review the District Court’s alternative ruling, stating:
[T]he portion of the judgment purporting to [alternatively] grant summary
judgment to the defendants must be vacated as well. “Without jurisdiction the
court cannot proceed at all in any cause. Jurisdiction is power to declare the
law, and when it ceases to exist, the only function remaining to the court is
that of announcing the fact and dismissing the cause.” Ex parte McCardle,
74 U.S. (7 Wall.) 506, 514, 19 L.Ed. 264 (1868). See also Steel Co. v.
Citizens for a Better Env't, 523 U.S. 83, 101, 118 S.Ct. 1003, 140 L.Ed.2d
210 (1998) (“[A] court ... resolv[ing] contested questions of law when its
jurisdiction is in doubt ... produces nothing more than a hypothetical
judgment—which comes to the same thing as an advisory opinion,
disapproved by this Court from the beginning.”). Having determined that it
lacked subject-matter jurisdiction, the district court's subsequent
consideration of the merits of Roistacher's claims was thus a nullity. We
therefore cannot simply affirm the judgment's dismissal, in the alternative, of
the case on the merits. The only effective part of the judgment below was the
dismissal for lack of subject-matter jurisdiction[.]
Roistacher v. Bondi, 624 F. App'x 20, 22–23 (2d Cir. 2015)(emphasis added). In other
words, the District Court’s finding that it lacked jurisdiction rendered its alternative
discussion of the merits a nullity, even though it turned out that the District Court actually
had jurisdiction. Id.; see also, Crawley v. United States, 417 F. App'x 94 (2d Cir. 2011)
(“There may be no more unambiguous limitation on the power of the federal courts than

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that proscribing the entry of advisory opinions.”).188 Accordingly, this Court must dismiss
the action, without considering Defendants’ remaining arguments concerning venue and
the merits of Plaintiffs’ claims.
Plaintiffs’ Alternative Motion for Leave to Re-plead is Denied
Plaintiffs have alternatively requested leave to replead,189 and although the Court
lacks subject matter jurisdiction over Plaintiffs’ MHL § 9.46 claims, it may nevertheless
allow Plaintiffs an opportunity to file an amended complaint. See, Oliver Sch., Inc. v. Foley,
930 F.2d 248, 252 (2d Cir. 1991) (“[T]he principle that permission to amend to state a claim
should be freely granted is likewise applicable to dismissals for failure to plead an
adequate basis for federal jurisdiction.”) (citation omitted).
However, even the liberal amendment standard has its limits. See, Jin v. Metro. Life
Ins. Co., 310 F.3d 84, 101 (2d Cir. 2002) (“Leave to amend should be freely granted, but
the district court has the discretion to deny leave if there is a good reason for it, such as
futility, bad faith, undue delay, or undue prejudice to the opposing party.”). A request to
re-plead may be denied as futile where the problems with the complaint are substantive,
and would not be cured by better pleading. See, Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d
Cir.2000) (“The problem with Cuoco's causes of action is substantive; better pleading will

188See also, Prof'l Traders Fund, LLC v. Prairie Oil & Gas, Inc., 521 F. Supp. 2d 313, 315 (S.D.N.Y.
2007) (Observing that, “On the one hand, the policy of avoiding advisory opinions, which is grounded in
Article III of the Constitution, argues in favor of deciding the matter solely on the jurisdictional ground . . .
and proceeding no farther. On the other hand, taking that course would risk the possibility that the
jurisdictional dismissal will be appealed and overturned, thus perhaps requiring a remand and further
proceedings that might be avoided by ruling in the alternative on the merits,” but concluding that such an
alternative ruling would run afoul of Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 118 S.Ct.
1003 (1998) and Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 119 S.Ct. 1563 (1999)).
189Pl. Memo of Law [#28-2] at p. 50, memo at p. 43 (“[I]f this Court is in any way inclined to otherwise
dismiss the Plaintiffs’ Amended Complaint . . . then the Plaintiffs respectfully request that the Court
accept the filing of the Second Amended Complaint.”).

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not cure it. Repleading would thus be futile. Such a futile request to replead should be
denied.”).
Leave to amend may also be denied where the plaintiff has already had sufficient
opportunities to fix the complaint. As one Court has stated,
[w]hile pleading is not a game of skill in which one misstep may be decisive
to the outcome, neither is it an interactive game in which plaintiffs file a
complaint, and then bat it back and forth with the Court over a rhetorical net
until a viable complaint emerges. It is the plaintiffs' responsibility to plead
their case adequately, and a court may deny a plaintiff leave to replead when
that party has—as here—been given ample prior opportunity to allege a
claim.
In re Refco Capital Markets, Ltd. Brokerage Customer Sec. Litig., No. 06 CIV. 643 (GEL),
2008 WL 4962985, at *2 (S.D.N.Y. Nov. 20, 2008) (citations and internal quotation marks
omitted), aff'd sub nom. Capital Mgmt. Select Fund Ltd. v. Bennett, 680 F.3d 214 (2d Cir.
2012).
Here, Plaintiffs have already filed two complaints that are not actionable for the
reasons stated above. (Docket Nos. [#1] & [#14]). Additionally, Plaintiffs have requested
leave to file a “Second Amended Complaint” in the event that the Court is “inclined to grant
the Defendants’ motions to dismiss,”190 which it is. In support of this alternative request to
amend, Plaintiffs’ make a one-page argument,191 which states in pertinent part:
A ‘Second Amended Complaint’ would bring together the additional
information from the Defendants [referring to the exhibits filed by
Defendants in support of their motions to dismiss] to, in essence, complete
the story against ‘9.46' in the full context of its associated ‘9.41' reporting

190Docket No. [#28] at ¶ 1.
191Docket No. [#28-2] at pp. 49-50 (Memo of Law at pp. 42-43).

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system. . . . This amendments would not relate to the Plaintiffs; the
amendments finish the narrative about the actions being taken in an ongoing manner against those tagged as ‘mentally ill’ and/or ‘involuntarily
committed,’ reported through the PERDS form or the ISARS form, being
fanned out across state and local offices and agencies and uploaded to the
federal government.
Docket No. [#28-2] at p. 49 (Memo p. 42).
As for the proposed Second Amended Complaint itself (Docket No. [#28-3]), the
Court notes, as an initial matter, that the proposed pleading does not comply with Rule
15(b) of the Local Rules of Civil Procedure.192 As for the actual allegations, the proposed
pleading, like the first two complaints, is focused almost entirely on MHL § 9.46. Indeed,
the vast majority of the proposed pleading appears to be identical to the Amended
Complaint [#14]. From the Court’s visual comparison of the two documents, the changes
in the proposed pleading seem to be in paragraphs 134, 141-156, 340-346, 357, 361-362,
364, and the ad damnum clause, paragraphs VI-IX. The bulk of these changes, appearing
at paragraphs 141-156, are factual allegations summarizing the procedures under New
York State law for reporting persons, who have been involuntarily committed under the
Mental Hygiene Law, to OMH/DCJS/NICS, as discussed by the Court above. The
proposed pleading then asserts that such provisions are confusingly similar to the
provisions under MHL § 9.46, which has “created confusion, including among licensing
officers, court personnel, and other government employees charged with license

192Such rule states in pertinent part that “the amendment(s) or supplement(s) to the original pleading
shall be identified in the proposed pleading through the use of a word processing “redline” function or
other similar markings that are visible in both electronic and paper format.” Plaintiffs’ proposed Second
Amended Complaint [#28-3] does not contain any identification of newly-added material or omitted
material. Instead, Plaintiff’s counsel has merely applied the “strikeout” feature to the words “Second
Amended Complaint” and the date at the end of the pleading. This resulted in the Court having to
compare the proposed amended pleading with the Amended Complaint [#14], paragraph by paragraph.

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interface.”193 The proposed pleading further alleges that the State of New York “actively
recruits medical providers, especially hospitals,” to report information to the federal
government, to help the State get “grant moneys and further its goals of termination of
firearms licenses and firearms ownership.”194 Although the proposed pleading does not
expressly say so, the Court understands, from Plaintiffs’ other submissions, that Plaintiffs’
theory in this regard is that the State of New York encourages medical providers to file
false reports of involuntary commitments, so that the State can reap financial rewards
related to the NICS Improvement Amendments Act of 2007.
The proposed Second Amended Complaint [#28-3], like the Amended Complaint,
purports to set forth four causes of action.195 These causes of action are basically identical
to those in the Amended Complaint, except that instead of referring just to MHL § 9.46,
they now refer to “[MHL] 9.41 and/or 9.46" or “‘9.46' and ‘9.41.’” As for relief, the proposed
amended pleading demands, in addition to previously-demanded relief relating to MHL §
9.46, that the Court order an audit of all of the State of New York’s records concerning
reports of involuntary commitments under the Mental Hygiene Law, and that the Court
issue
an order requiring that any persons reported by the State to the FBI or
otherwise uploaded to the federal government to be included in the NICS
database shall be released from said disqualification unless the third party
audit can establish that the patient was ‘involuntarily committed’ as such term
means at statutory and regulatory federal law.

193Docket No. [#28-3] at ¶ ¶ 153-154.
194Docket No. [#28-3] at ¶ 155.
195Docket No. [#28-3] at ¶ ¶ 331-365.

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Docket No. [#28-3] at pp. 85-86, ¶ ¶ VII & VIII. In other words, Plaintiffs want this Court to
order that the names of any New York residents who have been reported to NICS due to
involuntarily commitment, be expunged and removed from the State’s records and from
NICS, unless the State can independently prove that such persons were, in fact,
involuntarily committed. In this regard, Plaintiffs are contending that it is unconstitutional
for the State to rely solely upon reports, from hospitals and medical providers, indicating
that patients have been involuntarily committed, when disqualifying persons from holding
firearms licenses or from possessing guns.
Plaintiffs’ request to replead is denied. To the extent that the proposed amended
pleading re-asserts claims involving MHL § 9.46, leave to amend is denied as futile for the
reasons already discussed herein. Leave to amend is also denied as futile insofar as the
proposed pleading attempts to state claims regarding “involuntary commitment.” The
proposed pleading contends that medical providers are being confused by similarities
between MHL § 9.46 and the involuntary commitment provisions under MHL Article 9, and
implies that such confusion is resulting in reports being improperly filed against persons
seeking mental health treatment. The proposed pleading further alleges that the State is
intentionally encouraging medical providers to file false reports concerning involuntary
commitments, which can be uploaded to NICS. According to the proposed pleading, the
purpose of the State’s alleged scheme is twofold: To disarm citizens, and to obtain money
from the Federal Government.
However, the proposed pleading fails to allege facts to make any of these
allegations plausible. For example, there are no factual allegations plausibly suggesting
that medical providers are actually failing to distinguish between MHL § 9.46 and MHL §
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9.41.196 Nor are there any factual allegations to support Plaintiffs’ contention that the State
is encouraging medical providers to file false reports of involuntary commitments.
Additionally, there are no factual allegations to plausibly suggest that the State would
benefit financially from padding the number of names reported to NICS. To the contrary,
the Court has already discussed how the financial incentives under the NICS Improvement
Amendments Act of 2007 are based upon the accuracy of reporting, not upon the number
of names reported.
Furthermore, to the extent that Plaintiffs are maintaining that the State cannot
permissibly rely upon the reports of doctors to disqualify persons from firearms ownership,
or to report names to NICS, the argument fails as a matter of law.197 Specifically, the
Second Circuit recently stated that such reports from doctors are “exactly the sort of”
evidence that should be used to establish an “involuntary commitment” under 18 U.S.C.
§ 922 :
Like Section 9.27, Section 9.39 [of the New York Mental Hygiene Law]
creates a procedure to admit an individual into a hospital against her will
when her mental illness presents a serious danger to herself or others.
Individuals hospitalized under either provision, or their representatives, have
a right to seek judicial review of that determination. See N.Y.M.H.L. § 9.31(a)
(providing this right for Section 9.27 confinements); N.Y.M.H.L. § 9.39(a)
196The fact that a medical provider filed an MHL § 9.46 report concerning a person who had been
involuntarily committed would not be indicative of confusion, because the standard for involuntary
commitment and for filing a § 9.46 report is essentially the same, and the two provisions are not mutually
exclusive.
197Plaintiffs maintain that part of what they are seeking in this action is to “remove the medical provider
from the position to which the State has elevated it, namely, making the sole determination as a matter of
state and federal law whether an individual is disqualified from all rights under the Second Amendment in
a non-adjudicatory setting.” Pl. Memo of Law ][#28-2] at p. 53, memo at p. 46; see also, Capanna letter
dated April 25, 2017 (“None of the medical records of the Defendants [sic] are relevant to the legal inquiry
of whether any [of the Plaintiffs] were ‘involuntarily committed’ in accordance with 18 U.S.C. § 922(g)(4).”)
(emphasis added). In other words, Plaintiffs contend that Courts, and not psychiatrists, should be
determining whether patients are too mentally ill to have firearms.

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(providing this right for Section 9.39 confinements). And, as in [U.S. v.
Waters, 23 F.3d 29 (2d Cir. 1994),198 cert. denied, 513 U.S. 867, 115 S.Ct.
185 (1994)], [the Appellant’s] 2005 admission was based on the
recommendation of at least two physicians, at least one of whom was a
psychiatrist, and included treatment during the course of his stay. That is
exactly the sort of determination that a federal statute should include in its
definition of “commitment” insofar as it is concerned with preventing firearms
from getting into the hands of those whose mental illness might lead them
to commit acts of violence. And it is the sort of process that ensures the
determination is not arbitrary.
Phelps v. Bosco, No. 17-627, --- Fed. Appx. --- , 2018 WL 858703 at *2 (2d Cir. Feb. 14,
2018) (citations omitted). Consequently, Plaintiffs’ request to file the proposed Second
Amended Complaint is denied.
Plaintiffs have not requested further leave to amend, and the Court would not be
inclined to grant such a request in any event. Plaintiffs have already made three attempts
to plead actionable claims, and seem to be no closer to doing so than when they started.
For example, although Defendants raised the issue of Plaintiffs’ lack of standing to
challenge MHL § 9.46 as soon as they appeared in the action, Plaintiffs have continued
to press the same claims under that statute in all three iterations of the complaint. Further,
Plaintiffs’ pleadings have repeatedly insisted that MHL § 9.46 violates HIPAA, while
overlooking the very provision (45 C.F.R. § 164.512(a)(1)) which is most relevant to
whether MHL § 9.46 actually violates HIPAA. Moreover, Plaintiffs’ theory of a conspiracy
between the State of New York and medical providers to obtain federal funds seems

198Plaintiffs have urged this Court not to rely upon Waters, because “[i]t was decided in 1994,” and was
wrongly decided. Pl. Memo of Law [#28-2] at pp. 47-48, memo at pp. 40-41). The Second Circuit
apparently does not share Plaintiffs’ view of Waters’ precedential value.

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fanciful, or, at the very least, entirely speculative and implausible.199
Additionally, the Court believes, from its experience to date with this action, that if
Plaintiffs are given a further opportunity to amend, they will continue to press the very
same claims and theories, rather than admit that they have been barking up the wrong tree
all along by focusing on MHL § 9.46.200 For example, Plaintiffs’s papers indicate that if they
were given a further opportunity to amend, they would use it to take information from
Defendants’ submissions, and “bring together the additional information from the
Defendants to, in essence, complete the story against ‘9.46' in the full context of its
associated ‘9.41' reporting system.”201

The Court has fully reviewed Defendants’

submissions, and fails to see how they help Plaintiffs’ case.
In the Court’s view, Plaintiffs’ claims arise, if at all, from the fact that they were
wrongly classified as having been involuntarily committed under provisions of MHL Article
9 other than MHL § 9.46.202 To the extent that Plaintiffs were incorrectly classified in that
regard, such fact would be the result of error in medical judgment, as opposed to any

199See, Yefimova v. Bank Trustco, No. 117CV00403TJMTWD, 2017 WL 2123153, at *4 (N.D.N.Y. May
1, 2017) (Denying leave to amend as futile, where complaint was “based on a factually fanciful scenario.”),
report and recommendation adopted, No. 117CV00403TJMTWD, 2017 WL 2116508 (N.D.N.Y. May 15,
2017), reconsideration denied, No. 117CV403TMJTWD, 2017 WL 4570789 (N.D.N.Y. Oct. 12, 2017), and
reconsideration denied, No. 117CV403TMJTWD, 2017 WL 4694038 (N.D.N.Y. Oct. 17, 2017).
200For example, instead of amending their pleadings to address legitimate problems identified by the
Defendants’ motions to dismiss, such as standing, Plaintiffs blithely argued that Defendants’ motions
somehow actually strengthened their case. See, e.g., Pl. Memo in Opposition to Motions to Dismiss [#282] at p. 1 (“Far from serving as a mechanism to defeat the Plaintiffs’ case, the Defendants’ Motions
support and enhance the Plaintiffs’ claims.”). Plaintiffs also misstate or misinterpret the legal arguments
being raised by Defendants, as shown by such incorrect and histrionic statements as this: “Defendants
treat the term ‘involuntary commitment’ as a generic term, synonymous with ‘mental illness,’ ‘likely to
commit a crime with a gun,’ and the functional equivalent of ‘convicted criminal serving a life sentence
without possibility of parole.” (Pl. Memo of Law [#28-2] at p.17, Memo at p. 10).
201Pl. Memo of Law [#28-2] at p. 49, memo at p. 42).
202Again, MHL § 9.46 is not a commitment statute.

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defect in the provisions of MHL Article 9. Moreover, Plaintiffs have already argued to this
Court that such provisions have adequate due-process procedures built into them.203
Accordingly, it seems that what Plaintiffs really need to do is to utilize those procedures to
correct the record as to the nature of their admissions. Indeed, it appears that all or most
of the Plaintiffs have already done so through Article 78 proceedings or similar
proceedings. To the extent that Plaintiffs now claim that MHL Article 9's commitment
provisions are unconstitutional, they may wish to bring an action to that effect, preferably
in the Northern District where venue would unquestionably be proper as to State
Defendants.204
For all of the foregoing reasons, any further request for leave to amend is denied.
See, Levin v. Credit Suisse, Inc., No. 14-397-cv, 577 Fed.Appx. 85 (2d Cir. Sep. 5, 2014)
(District Court did not abuse its discretion when it denied further leave to amend, after
Plaintiff had three chances to plead actionable claims, and continued to assert the same
deficient claims after being advised of their deficiencies).
CONCLUSION
Defendants’ applications to dismiss for lack of subject matter jurisdiction are
granted, and this action is dismissed without prejudice. Plaintiffs’ cross-motion to amend
is denied, and further leave to amend is also denied. Plaintiffs’ application for preliminary

203See, Memo of Law [#4] at p. 10 (“All processes for involuntary (and even for voluntary) commitment
[under MHL Art. 9] include notice, attorney, and judicial review provisions. All provisions under Art. 9 that
is, except for MHL § 9.46.”); see also, Docket No. [#9], Capanna letter dated January 23, 2015 (“[We] are
[not] seeking to challenge the pre-existing structure of Mental Hygiene Law Article 9.”)
204Subject, of course, to the applicable statute of limitations.

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injunctive relief is denied as moot.205 The Clerk of the Court is directed to close this action.
SO ORDERED.
Dated:

March 5, 2018
Rochester, New York
/s/ Charle J. Siragusa
CHARLES J. SIRAGUSA
United States District Judge

205See, e.g., Wagner v. Stout St. Fund I L.P., No. 13-CV-4256 MKB, 2013 WL 4679623, at *1 (E.D.N.Y.
Aug. 30, 2013) (“As there is no basis for subject matter jurisdiction, the Court cannot consider Plaintiff's
request for a preliminary injunction.”); see also, Glatzer v. Barone, 614 F. Supp. 2d 450, 456 (S.D.N.Y.
2009) (“[A]bsent authority to adjudicate, the Court lacks a legal basis to grant any relief[.]”), aff'd, 394 F.
App'x 763 (2d Cir. 2010).

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