In re Gaskins

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 20-FM-0028
IN RE RASHAWN GASKINS, APPELLANT,
Appeal from the Superior Court of the
District of Columbia
(MHE1538-19)
(Hon. Peter A. Krauthamer, Motion Judge)
(Argued June 30, 2021 Decided December 30, 2021)
Christine Pembroke for appellant.
Holly M. Johnson., Senior Assistant Attorney General, with whom Karl A.
Racine, Attorney General for the District of Columbia, Loren L. AliKhan, Solicitor
General, Caroline S. Van Zile, Principal Deputy Solicitor General, and Carl J.
Schifferle, Deputy Solicitor General, were on the brief, for appellee.
Before BLACKBURNE-RIGSBY, Chief Judge, THOMPSON, * Associate Judge,
and FISHER, Senior Judge.
*
Judge Thompson was an Associate Judge of the court at the time of
argument. Although her term expired on September 4, 2021, she will continue to
serve as an Associate Judge until her successor is confirmed. See D.C. Code § 11-
1502 (2012 Repl.). She was qualified and appointed on October 4, 2021, to perform
judicial duties as a Senior Judge and will begin her service as a Senior Judge on a
date to be determined after her successor is appointed and qualifies.
2
BLACKBURNE-RIGSBY, Chief Judge: This appeal comes to us from D.C.
Superior Court’s Family Court, Mental Health and Habilitation Branch. Appellant
Rashawn Gaskins appeals the trial court’s order of outpatient commitment, claiming
evidentiary insufficiency. He argues that the evidence presented at trial did not, by
clear and convincing means, demonstrate a likelihood that he would injure himself
or others due to his mental illness. We disagree and affirm the outpatient
commitment order.
I.
In the summer of 2019, appellant was involuntarily committed to the
Department of Behavioral Health’s Comprehensive Psychiatric Emergency Program
(“CPEP”) on emergency applications on two occasions. On June 11, 2019, appellant
made statements to White House Secret Service Officers about killing persons in
order to defend himself. Then, on August 18, 2019, appellant made statements to a
United States Capitol Police Officer about returning to the Capitol armed while
Congress was in session.
One day after the second incident, the District of Columbia Office of Attorney
General (the “District”) filed in the Superior Court an emergency petition to continue
3
the involuntary detention of appellant under the Ervin Act. D.C. Code § 21-541, et
seq. (2012 Repl.). The trial court ordered that appellant remain detained. Shortly
after, an evidentiary hearing was held on August 22, 2019, where the trial court
determined there was probable cause to remand appellant to the Department of
Behavioral Health for emergency observation and diagnosis.
On August 25, 2019, the District filed a petition for commitment, asserting
that while detained at the Department of Behavioral Health, appellant was examined
by a psychiatrist, who provided the certified opinion that appellant was “mentally
ill, and because of the illness, is likely to injure [him]self or others if not committed.”
The District of Columbia Commission on Mental Health (the “Mental Health
Commission”) held a hearing regarding the petition on September 12, 2019, and
recommended outpatient commitment for one year, which, with the assistance of
counsel, appellant initially accepted.1
A hearing before an associate judge of the Superior Court was then scheduled
for September 25, 2019, to consider the Mental Health Commission’s
1
The Mental Health Commission recommended one year of outpatient
treatment, which included that appellant would meet with a core service agency three
to five times per week, would reside with a relative, and continue to take his
medication.
4
recommendation. At the hearing, appellant through his counsel withdrew his
acceptance of the recommendation, and the matter was set for a bench trial on
December 17 and 18, 2019. At the bench trial the following evidence was presented
by the parties.
On June 11, 2019, appellant quickly approached a White House vehicle
entrance located on the corner of 15th Street and E Street, NW, where United States
Secret Service Officers (“SSO”) Zackry Everett and Timothy McCarthy were
posted. Appellant testified, explaining that he approached the SSOs because he was
assaulted by United States Marshals at the Superior Court earlier that day and wanted
to complain or file charges against the Marshals with a federal agency. 2
When appellant reached the White House perimeter, he began asking SSO
McCarthy questions, initially asking whether the President actually lived at the
2
Appellant recounted that at the Superior Court, he entered a courtroom to
observe proceedings while wearing a hat. Upon entering, appellant was asked by
the presiding judge to remove his hat. Appellant did not do so until a Marshal
approached him and directed him to remove the hat. Appellant then observed
another individual in the courtroom with something on their head and put his hat
back on. The Marshal returned to appellant and “snatched” appellant’s hat from his
head and walked away. Appellant followed the Marshal, then the Marshal threw the
hat to the ground, pulled out his taser, and began to push appellant. More
individuals, a mix of Marshals and court security, became involved to remove
appellant from the courthouse.
5
White House, then whether the area was secure. SSO McCarthy pressed appellant
as to why he asked about security, and appellant responded he wanted to start killing
people. Appellant testified, admitting that while speaking to the SSO at the White
House he said, “if people are willing to threaten my life, then I have to defend my
life.” Both SSOs, McCarthy and Everett, testified that appellant was then detained
and handcuffed without resistance. After being detained, appellant informed the
SSOs that he was assaulted by United States Marshals and government officials and
that he was being followed. Appellant was transported to the D.C. Department of
Behavioral Health’s CPEP without issue, and later released.
Two months later on August 18, 2019, appellant went to the United States
Capitol and had an interaction with two United States Capitol Police Officers
(“CPOs”). CPO Wayne Trautman was posted outside of the United States Capitol
when appellant, approaching at a quickened pace, asked from approximately thirty
feet away if there was a shift- or post-change.3 CPO Trautman testified that
appellant approached and proceeded to talk for approximately fifteen to twenty
minutes, expressing his unhappiness with the state of the world. CPO Trautman
asked appellant how he would go about fixing the world, and appellant responded in
3
Appellant had been to the U.S. Capitol earlier that day and spoke to a
different CPO, CPO Gimble.
6
a verbal and non-verbal manner. Appellant made a nonverbal shrugging motion,
lifted his hands and said, “I don’t know, maybe I return armed, . . . when Congress
is in session,” while motioning as if drawing a concealed handgun from his right
hip. 4 Taking the statement about returning armed as a threat to Congress, CPO
Trautman placed appellant in handcuffs without any issue.5 CPO Frederick Hopkins
arrived to observe, noting appellant was agitated, did not want to be handcuffed, and
asked not to be detained and for the CPO not to “FD12” him. 6 Appellant was then
transported and temporarily held for psychiatric examination by CPEP. 7
Prior to trial, CPO Trautman also testified at appellant’s August 22, 2019,
probable cause hearing, in which the trial court determined there was cause to
4
At trial, appellant disputed CPO Trautman’s testimony that he stated he
would return to the Capitol armed, stating he merely talked about how old traditions
are the problem and that younger children should be influenced by a different
philosophy.
5
After the detention, appellant expressed concerns that his phone was being
“tapped.”
6
“FD12” refers to Form FD-12, an “Application for Emergency
Hospitalization by a Physician or Psychologist of the Person, Officer or Agent of
D.C. Department of Behavioral Health or an Officer Authorized to Make Arrests.”
7
At trial, appellant for the most part confirmed the event and statements made
at the White House in June of 2019 and the United States Capitol in August of 2019,
except as explicitly distinguished.
7
remand appellant to the Department of Behavioral Health for emergency observation
and diagnosis. At trial, CPO Trautman testified that as appellant exited the
courtroom following the probable cause hearing, he looked at CPO Trautman and
said something to the effect of “I don’t know how much money you make . . . but I
am coming for you.” CPO Trautman did not know if appellant was making a
physical threat or a threat to take legal action. When asked about his statement to
CPO Trautman, appellant stated he intended to seek civil remedies because CPO
Trautman committed perjury and violated his “oath.” Then, in October of 2019, CPO
Trautman received a call from former co-workers that appellant had returned to the
United States Capitol. 8
In addition to the testimony of the SSOs and CPOs, the trial court heard
testimony from Dr. Constantine Shustikoff, an attending psychiatrist with the
Psychiatric Institute of Washington (PIW), who observed and diagnosed appellant.
Dr. Shustikoff met with appellant approximately five times per week over the course
of six weeks (while appellant testified that Dr. Shustikoff only met with him once).
Dr. Shustikoff diagnosed appellant with “bipolar one disorder, severe with psychotic
8
CPO Hopkins also testified at trial that appellant returned to the United
States Capitol approximately one month earlier, November 2019. It is unclear
whether this is the same October 2019 visit, when CPO Trautman was notified, or if
it is an additional visit.
8
features,” his most recent episode being “manic.” According to Dr. Shustikoff,
appellant showed symptoms of “distinct, abnormal, expansive mood that was pretty
persistent; grandiosity; the rapid speech and being very, very talkative; also the flight
of ideas.” Dr. Shustikoff indicated that appellant did not talk about hurting anyone
when they met and specifically denied the allegations against him.
With regard to appellant’s behavior at PIW, Dr. Shustikoff informed the court
that appellant repeatedly refused to take medication, only voluntarily taking the
prescribed medication once. She also informed the court that after being discharged
from PIW, appellant did not follow through with voluntarily taking medication. Dr.
Shustikoff recalled one incident, in September of 2019, where an emergency code
was called for appellant because he was frustrated with being at PIW and became
agitated and aggressive.
Dr. Shustikoff testified that two-thirds of bipolar patients will have another
episode of mania or depression with similar symptoms. Dr. Shustikoff testified if
appellant’s mental illness were to become unstable, symptoms would include
“abnormal mood, usually expansive or irritable, increase in energy, impulsivity,
grandiosity,” and he would likely engage in similar behavior — approaching law
enforcement and making threats. Dr. Shustikoff expressed concern for appellant’s
9
safety and the safety of others because appellant was not following medical
recommendations and because of “the severity of the behaviors and threats that
happened during his last admission.”
The trial court concluded there was clear and convincing evidence that
appellant suffered from “bipolar [one] disorder and manic episodes”. Appellant’s
refusal to engage in any treatment for his mental illness, coupled with his “obsessive
behavior to go to federal law enforcement agencies and personnel and continually
engage in conversations with them and say very, very odd things,” rose to a level of
likelihood of injury to himself or others. The court highlighted that appellant talked
about killing people or returning armed when Congress was in session to fix the
world, commending the federal officers who defused the situation in a professional
manner, suggesting other officers may not have exhibited such control. The court
also noted that appellant was locked into the idea of doing harm to others as a means
to save the world. As the least restrictive alternative to inpatient commitment, the
trial court ordered one year of outpatient commitment. This appeal followed.
10
II.
On appeal, appellant does not challenge his diagnosis or that his behavior is
caused by his mental illness; rather, he argues evidentiary insufficiency to support
the likelihood that he would injure himself or others. “In examining a claim of
insufficiency, the applicable standard of review is ‘whether there is any substantial
evidence which will support the conclusion reached by the trier of fact below.’” In
re Artis, 615 A.2d 1148, 1152 (D.C. 1992) (quoting Boynton v. Lopez, 473 A.2d 375,
376 (D.C. 1984)). This court “must view the evidence in the light most favorable to
the government and give full weight to the factfinder’s ability to weigh the evidence,
determine the credibility of witnesses, and draw justifiable inferences.” In re
Perruso, 896 A.2d 255, 259 (D.C. 2006) (quotation omitted). “When a case is heard
by a judge sitting without a jury . . . the judgment will not be overturned ‘unless it
appears that the judgment is plainly wrong or without evidence to support it.’”
Perruso, 896 A.2d at 259 (quoting D.C. Code § 17-305(a) (2012 Repl.)).
Civil commitment is governed by the Ervin Act, and in order to involuntarily
commit an individual the record must demonstrate by clear and convincing evidence
that “the person is mentally ill and, because of that mental illness, is likely to injure
himself or others if not committed.” D.C. Code § 21-545(b)(2) (2012 Repl.);
11
Addington v. Texas, 441 U.S. 418, 425-26, 431-32 (1979) (holding that due to the
liberty interests at stake, there must be clear and convincing evidence to order an
involuntary civil commitment, which is a standard higher than the preponderance
standard); Colorado v. New Mexico, 467 U.S. 310, 316 (1984) (defining clear and
convincing as the truth of factual contentions to be “highly probable” or substantially
more likely to be true than untrue); see In re Nelson, 408 A.2d 1233, 1238 (D.C.
1979) (replacing the District of Columbia’s proof beyond a reasonable doubt
standard applicable to involuntary civil commitments with the clear and convincing
standard announced in Addington); see also Tilley v. United States, 238 A.3d 961,
973-74 (D.C. 2020). “[I]t is necessary for the government to prove that the
individual suffers from a mental illness and that the danger-productive behavior of
the individual results from the mental illness.” In re Stokes, 546 A.2d 356, 363 (D.C.
1988) (citation omitted).
Here, the trial court’s conclusion — that appellant was mentally ill and
because of his illness and refusal to be treated, he was likely to injure himself or
others — was neither plainly wrong nor without substantial evidentiary support. On
appeal, appellant argues that the record lacks clear and convincing evidence he was
likely to injure himself or others by acting on his statements because (1) his behavior
did not result in actual injury to himself or others; and (2) he has no history of
12
conduct resulting in injury. Appellant’s argument is premised on the likelihood of
physical injury. However, this court has “deliberately declined to over define the
term ‘injure;’” where “‘injure’ connotes an element of danger, the danger need not
necessarily be physical nor involve violence.” In re Gahan, 531 A.2d 661, 664 (D.C.
1987); In re Mendoza, 433 A.2d 1069, 1071-72 (D.C. 1981) (while in hospital the
patient made various threats and experienced episodes of violence); In re Bumper,
441 A.2d 975, 978 (D.C. 1982) (holding that “injury” includes unintentional injury
and injury resulting from nonviolent acts); In re Snowden, 423 A.2d 188, 191-92
(D.C. 1980) (declining to adopt the “recent overt act” test, which would help indicate
future dangerousness; instead concluding that appellant’s being threatening was
enough to find a likelihood to injure self or others). All that is required is that the
subject be found likely, by reason of mental illness, to “inadvertently place himself
in a position of danger or . . . to suffer harm.” Snowden, 423 A.2d at 191.
The recommendation for outpatient commitment was supported by substantial
evidence that appellant would place himself or others in a position of danger as
demonstrated by his continued refusal to engage in treatment for his mental illness
and his patterned behavior of approaching law enforcement and making threats.
While at PIW appellant voluntarily took his prescribed medication on one occasion
and after discharge did not follow through with medication. Dr. Shustikoff testified
13
that two-thirds of persons diagnosed with appellant’s mental illness, bipolar
disorder, would experience a future episode; and there was a high risk appellant
would engage in similar behavior — approaching law enforcement and making
threats — during another episode. See Mendoza, 433 A.2d at 1072 (concluding
involuntary “commitment is partly based on a prediction of future conduct”). Dr.
Shustikoff also expressed concern for appellant’s safety and the safety of others
because appellant was not open to or willing to abide by medical recommendations,
and due to “the severity of the behaviors and threats that happened during his last
admission.”
Appellant’s past behavior strongly validates an inference that he will continue
to engage with law enforcement and make threatening statements. Within two
months appellant engaged with two federal law enforcement entities, Secret Service
and Capitol Police, both resulting in appellant’s detention for making threats to
physically harm others. Furthermore, even after being detained and committed for
mental health treatment, appellant returned to the Capitol, at which time, CPOs
notified CPO Trautman that appellant had returned. We can surmise that CPO
Trautman was notified because appellant threatened to “come after” him at the
probable cause commitment hearing. We conclude that there was sufficient
evidence to support the determination that appellant’s mental illness, for which he
14
failed to abide by prescribed treatment, and the conduct which led to his detentions
established the clear and convincing evidence that appellant was likely to injure
himself or others.
Appellant also asserts that he was able to bring his concerning behavior into
control without civil commitment in the months before trial; therefore, civil
commitment is not necessary. However, there is no limitation placed on the medical
history the trial court may consider in assessing appellant’s mental health and
potential to injure. Gahan, 531 A.2d at 666 (stating “[w]e are unwilling to establish
a per se rule limiting the extent of an individual’s medical history which a trial court
may consider”). This court has also repeatedly rejected the suggestion that there
must be a recent overt act indicating future dangerousness to order commitment.
Perruso, 896 A.2d at 260; Gahan, 531 A.2d at 666; Snowden, 423 A.2d at 191-92. 9
9
On appeal appellant also asserts that his mental illness is so apparent and
recognizable to law enforcement and ordinary people that special accommodations
would be made for him to prevent injury. However, this argument is not persuasive,
where the evidence demonstrated that appellant’s illness was not immediately
apparent to some officers.
15
III.
We affirm the trial court’s decision to order one year of outpatient
commitment, as appellant was mentally ill with bipolar disorder and because of his
mental illness was likely to injure himself or others.
So ordered.