In the Matter of R. C. S., a Person Alleged to have a Mental Illness. STATE of Oregon, Respondent, v. R. C. S., Appellant.

Court of Appeals of Oregon2018-04-25No. A165507

415 P.3d 1164291 Or. App. 489

Summary · law.co

Holding. The court reversed both the commitment order and the firearm restriction order due to the trial court's plain error in failing to advise the appellant of her right to subpoena witnesses.

The appellant challenged her involuntary commitment to the Oregon Health Authority for up to 180 days and an accompanying firearm restriction order. She argued that the trial court committed plain error by failing to inform her of her right to subpoena witnesses before the commitment hearing, a procedural safeguard required under Oregon law. The state acknowledged that the trial court had indeed failed to provide this notice and that such failure constitutes plain error requiring reversal.

The court agreed with both the appellant and the state's concession, finding that the omission of witness subpoena notification was a reversible error. Because the commitment order was invalid, the firearm restriction order—which depends on a valid mental illness finding—could not stand. The opinion noted that Oregon's legislature has since created an alternative remedy through extreme risk protection orders, allowing law enforcement and family members to seek firearm restrictions based on demonstrated future dangerousness without requiring involuntary commitment.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Failure to inform respondent of right to subpoena witnesses in mental commitment proceeding
Validity of firearm restriction order dependent on valid commitment order
Availability of alternative extreme risk protection order remedy

Procedural posture

The appellant appealed from a trial court order committing her to the Oregon Health Authority and prohibiting firearm possession.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

PER CURIAM

Appellant seeks reversal of an order committing her to the Oregon Health Authority for a period not to exceed 180 days pursuant to ORS 426.130 and an order prohibiting her from purchasing or possessing firearms pursuant to ORS 426.130(1)(a)(D). Appellant argues that the trial court plainly erred by failing to advise her of the right to subpoena witnesses under ORS 426.100(1)(d). See State v. Z. A. B. , 264 Or. App. 779, 780, 334 P.3d 480, adhd to as modified on recons. , 266 Or. App. 708, 338 P.3d 802 (2014) (failure to inform a person of the right to subpoena witnesses constitutes plain error warranting reversal). The state concedes that, under our case law, the trial court plainly erred in that regard and that the error requires reversal. We agree, accept the states concession, and, for the reasons referenced in Z. A. B ., 264 Or. App. at 780, 334 P.3d 480, exercise our discretion to correct the error.

In doing so, we reverse both the order of commitment and the order prohibiting appellant from purchasing and possessing firearms. See Z. A. B. , 266 Or. App. at 709, 338 P.3d 802 ( Finding that an individual is a person with mental illness is a condition precedent to the issuance of an order prohibiting the purchase or possession of a firearm, ORS 426.130(1)(a)(D). (Quoting State v. W. B. , 264 Or. App. 777, 778, 333 P.3d 1099 (2014).) ). As we recently noted in State v. S. F. , 291 Or. App. 261, 267 n. 1, --- P.3d ---- (2018), there now exists a statutory mechanism, other than mental commitment, for law enforcement officers (or a family or household member of a person) to seek to restrict the purchase or possession of a firearm by a person who presents a risk of injury to self or others:

After the hearing committing appellant to the Oregon Health Authority, the legislature enacted into law (becoming effective on January 1, 2018) a process that allows a law enforcement officer or a family or household member to file a petition requesting that the court issue an extreme risk protection order (ERPO) against a person who the court finds by clear and convincing evidence presents a risk in the near future, including an imminent risk, of suicide or of causing physical injury to another person. [ ORS 166.527(1), (6) ] An ERPO enjoins the person found to present a future risk of causing physical injury to another person or of suicide from having in the persons custody or control, owning, purchasing, possessing or receiving, or attempting to purchase or receive, a deadly weapon. [ ORS 166.527(1) ].

And, as in S. F. , [w]e mention this to note the availability of a remedy to address threats of dangerousness other than the process of involuntary commitment and do not, here, decide whether the facts of this case are sufficient to meet the clear and convincing standard that a person presents a risk of future dangerousness. Id.

Reversed.