Posts Tagged ‘due process’

Facebook Posts Get Former Marine Held for Month in Psych Ward

Thursday, August 23rd, 2012

A former Marine, Brandon Raub, was recently detained because of posts made on his Facebook account referencing a coming “civil war,” saying he was “done waiting,” and quoting a rap lyric, “Sharpen up my axe, I’m here to sever heads.”

Raub was taken into custody in this week in Virginia after being questioned by FBI and Secret Service agents. The latest is that after a hearing, Raub had been ordered held for an additional 30 days in a psychiatric ward.

For background, you can read the news story on HuffPo and find the essential facts and Mike Masnick’s commentary on TechDirt.

I actually have some experience with the legal procedures involved in detaining persons for psychiatric reasons. One summer in law school, I had a short externship with the Mental Hygiene Legal Service in the basement of the Manhattan Psychiatric Center on Wards Island in New York. (And let me say that it was an incredible experience, and I found that the attorneys down there providing legal services to patients were some of the quickest, smartest, and most impressive attorneys I have every worked with.)

So let me offer something from a mental-health-law perspective.

The Raub case has people concerned that online posts espousing conspiracy theories and radical leanings can cause a person to be locked up. And, in a sense, that’s what happened here. But once a person gets into the mental health system, it generally becomes a matter for physicians. Physicians aren’t legally able to deprive someone of their freedom, at least not beyond emergency circumstances on a short-term basis. Persons suspected of being mentally incompetent and dangerous are entitled to due process.

The due process that patients get is usually get that in the form of a hearing in which a judge listens to testimony of one or more physicians opining as to the psychiatric state of the patient. You might be surprised how smoothly this goes for the state. This is not like a trial. There is no jury, and the evidentiary standards are very relaxed. The state can use hearsay evidence to commit someone involuntarily, since they get it in as the basis for the psychiatrist’s expert opinion.

The whole field of mental health commitment is a fascinating one legally, and it raise a host of due process concerns that should make just about everyone uncomfortable. That’s not to say that the system is bad – like so much under our system of law, it reflects a balance between the need to uphold rights and freedoms and the need to prevent violence. It’s just to say that, like much else in law, it ought to make one uncomfortable.

So, with that background, I’m guessing that the Raub case is more about physicians deciding Raub needs to be held rather than it is about the government taking action against anti-government speech. Now, I should note that the story of physicians have tremendous power, mediated through court process, to deprive people of their freedom is not a new story – but it is a compelling one.

Yet because it brings mental-health law to bear on blogging, the Raub case remains one worth watching. There is no doubt that there is power here that could be abused. Maybe Raub is a radical whose speech is being shut down in violation of principles of free expression. Maybe he needs medical treatment. Of course, it’s very possible both are true at the same time.