Preventing Suicide through Civil Process

This post is based on a paper that was presented at the 2024 Firearms Law Works-In-Progress Conference. The Conference is held each year on a home-and-away basis with the University of Wyoming Firearms Research Center. This post also appears on the FRC’s Forum.

Suicide by gun constitutes over half of gun deaths in America. Unlike gun homicides, for which we have seen some initial declines in the first half of the year, rates of gun suicide are at a record high level with steady increases since 1999. Decentered groups such as black teens are seeing dramatic increases in suicides by gun; in 2022, for the first time, the gun suicide rate by black teens surpassed the rate for white teens. Preventing suicides is an essential element of gun violence prevention efforts; a reduction in the number of deaths by suicide by gun will meaningfully reduce the number of Americans lost to gun violence.

In an effort to prevent gun suicides, states are increasingly adopting extreme risk protection order (“ERPO”) laws, which establish a process for civil courts to order firearms to be removed from individuals at risk of physically harming themselves or others. Challengers to ERPO laws often claim they do not provide sufficient due process before the civil court issues a firearms removal order. Similar concerns are lobbed at laws prohibiting individuals from possessing firearms who are subject to domestic violence restraining orders, which also disarm individuals through civil process.  Criticisms of using the civil court system to disarm those who are a danger to themselves or others were highlighted in the recent Supreme Court decision U.S. v. Rahimi, which upheld the federal law prohibiting individuals who are subject to certain domestic violence protective orders from possessing firearms. 

In the Fifth Circuit’s Rahimi opinion, Judge Ho concurred separately to emphasize his concerns about disarming individuals through civil process. He argued that domestic violence protective orders issued by civil courts are subject to abuse and bias, and asserted that they lack sufficient due process protections – though courts have routinely upheld these laws in due process challenges. Judge Ho also asserted that simply disarming abusers is insufficient to protect victims, because “[t]hose who commit violence, including domestic violence, shouldn’t just be disarmed – they should be detained, prosecuted, convicted, and incarcerated.” 

Justice Thomas highlighted similar points in his dissent in Rahimi, in which he exclusively called the domestic violence protective order that triggers prohibition the “civil restraining order”. He noted that each individual subject to domestic violence protective orders had "fewer constitutional protections” than those convicted of a crime, “including the rights to confront witnesses and have assistance of counsel”. He emphasized the differing standards of proof between civil and criminal courts, noting that civil proceedings “do not require proof beyond a reasonable doubt, and some States even set aside the rules of evidence, allowing parties to rely on hearsay.” He concluded that the differences between civil and criminal processes were “numerous and consequential”, and ultimately he would have held that the challenged statute was unconstitutional, if he had sufficient votes.

Rahimi’s majority holding demonstrates that the Second Amendment allows governments to disarm individuals through civil process, though the majority was careful to limit its holding to when a court finds an individual to be a credible threat to the physical safety of others. The majority opinion does not mention any of Justice Thomas’s concerns about disarmament through civil process; perhaps in part because Rahimi did not assert a due process violation. Despite the holding in Rahimi, this will not be the last time we see a challenger argue that disarmament through civil process is unconstitutional. This argument has come up repeatedly in briefing on Second Amendment issues in the lower courts, and also in the amicus briefs for Rahimi. Andrew Willinger has penned two posts about the civil/criminal distinction in cases challenging ERPO laws post Bruen.

The Supreme Court’s modern Second Amendment jurisprudence contains several examples beyond Rahimi where the Court has blessed disarmament through civil process. Heller expressly stated that the Court’s decision should not “be taken to cast doubt on longstanding prohibitions on the possession of firearms by … the mentally ill.” Laws that prohibit the mentally ill from possessing firearms are quintessential examples of disarmament arising from a civil proceeding, including the federal laws that prohibit an individual from possessing firearms after having been involuntarily committed or adjudicated to be a mental defective by a civil court. Bruen’s support of shall issue permitting laws also endorsed disarmament in public without a criminal conviction – including state laws which allow permit denials when a civil administrator, not even a court, finds the applicant to be a danger to self or others. 

History also supports civil disarmament. In Rahimi, the Supreme Court relied on historical surety laws that were enforced by civil justices of the peace in holding that our nation has a historical tradition of disarming individuals who pose a clear threat of violence. These analogues also highlight the nation’s historical tradition of laws that seek to prevent violence from occurring, rather than restricting the government to merely prosecuting, convicting and punishing those who have committed crimes. Quoting Blackstone, the majority in Rahimi noted that “[s]urety laws were a form of ‘preventive justice.’” Bruen had previously highlighted that surety laws were “intended merely for prevention” and “were not meant as any degree of punishment.”

The law the Supreme Court upheld in Rahimi seeks to prevent interpersonal violence by those deemed to be a danger to others, but the arguments Justice Thomas and Judge Ho make against disarmament through civil process seem to apply equally to ERPO laws. To name a few, ERPO laws typically use a lower standard of proof than criminal courts: “preponderance of the evidence” or “clear and convincing evidence”, instead of the heightened criminal standard “beyond a reasonable doubt.” Respondents to an ERPO petition have a right to legal representation, but, in most states, no right to an attorney provided by the state. Opponents argue that ERPOs allow firearms removal based on mere accusations that could be made in bad faith. A common objection to ERPO laws – that those who pose a danger will not be deterred by firearm removal, because they will find other ways to harm themselves or others – parallels Judge Ho’s concern that civil domestic violence protective orders are insufficient to prevent future harm. In practice, these arguments routinely arise in challenges to bills that would establish an ERPO law. I know this because I have heard similar testimony in legislative committee hearings. In fact, a challenger to the bill that ultimately became Minnesota’s ERPO law invoked Judge Ho’s Rahimi concurrence expressly in his testimony, arguing that any disarmament must be “consistent with the fundamental protections that our Constitution affords to those accused of a crime.” 

Contrary to these concerns, civil adjudication may be the more appropriate forum for responding to individuals at risk of suicide than the criminal legal system. Judge Ho wrote in his Rahimi concurrence that the purpose of the criminal legal system is “to punish criminals.” A system whose central purpose is punishment has little connection to preventing suicide. As Eric Ruben described in a recent Minnesota Law Review article, while suicide was a felony in the Thirteenth Century, and even attempting suicide was a crime punishable by the death penalty, we have abandoned that conception of suicide. In the 1700s, American Colonies began removing common-law penalties associated with suicide, such as criminal forfeiture of the decedent’s estate. Suicide attempts today are not seen as a criminal act, but instead a cry for help. Laws seeking to separate a person with suicidal ideation from firearms exist not to punish those in crisis, but to allow those individuals to survive their moment of crisis. Civil courts are the more appropriate vehicle for disarmament in these situations, as the civil system is not built to be a mechanism for punishment.

Disarmament through civil process also provides the best chance of preventing suicides in practice. Firearms are the most lethal means of suicide, resulting in death in 85% of attempts. That is compared to the next-most-widely-used method, drug overdose, which results in death 3% of the time. By preventing or limiting access to the most lethal means of attempting suicide, even if an individual is able to access another means to attempt suicide, they are more likely to survive their attempt. In short, separating a person in crisis from a firearm will save lives. Notably, seventy percent of individuals who survive a suicide attempt do not attempt suicide again, and ninety percent of individuals who survive a suicide attempt do not ultimately die by suicide. Those statistics cannot meaningfully help individuals who attempt suicide with a firearm because the lethality rate is so high. 

Timeliness is also central to suicide prevention. Most individuals who attempt suicide are acting on impulse; one study found that one in four people who attempted suicide contemplated the attempt for no more than five minutes before acting, and only 13% of people who attempted suicide contemplated the act for one day or more. Suicide prevention efforts must seek to reach those considering suicide before the short period of crisis in which they are contemplating an attempt. Civil process, including timely disarmament through ex parte process when necessary, may be the only way to reach these individuals at the time when intervention is needed. 

The draft article I presented at the 2024 Firearms Law Works in Progress Conference, co-hosted by the Duke Center for Firearms Law and the University of Wyoming College of Law’s Firearms Research Center, emphasizes the importance of centering civil process disarmament in prevention rather than punishment. The goal of gun violence prevention is not to increase incarceration through the criminal legal system, but to prevent the violence from happening in the first place. Use of non-criminal tools, including improving surrender and seizures of weapons after a person is prohibited from possessing firearms, supports the ultimate goal of prevention. As the Supreme Court noted decades earlier in U.S. v. Salerno, the Constitution does not prevent government from enacting laws that seek to prevent violence by those who are dangerous, even when those laws affect an individual’s exercise of rights. Indeed, despite Justice Thomas’s outlier position, even ardent supporters of strong gun rights argue that civil disarmament is appropriate so long as due process concerns are addressed. Disarmament through civil process is an important element of an overall gun violence prevention effort, and one that the Second Amendment does not forbid.