In re Gaskins

• Court: District of Columbia Court of Appeals
• Decided: December 30, 2021
• Docket: 20-FM-28
• Status: Published

Opinion

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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.