UNITED STATES DEPARTMENT OF THE TREASURY, BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, APPELLANT V. ANTHONY J. GALIOTO No. 84-1904 In the Supreme Court of the United States October Term, 1985 On Appeal from the United States District Court for the District of New Jersey Reply Brief for the Appellant Appellee and the amici that support him devote most of their attention to an attack on the wisdom of the statutory scheme, arguing that a history of mental illness does not strongly correlate with future violence and that, in any event, Congress could have drawn more precise lines in establishing firearms disabilities under Title IV of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. 921 et seq. Given the debatable nature of appellee's empirical assertions and the uncertainties inherent in psychiatric diagnosis, however, contentions of this sort should be directed to -- and must be resolved by -- Congress. 1.a. At the outset, the suggestion by appellee (Br. 12-21) and his supporting amici (American Sychological Association (APA) Br. 12; Coalition for the Fundamental Rights and Equality of Ex-Patients (CFREE) Br. 9) that the mentally ill constitute a "quasi-suspect" class entirely fails to come to grips with the central aspect of equal protection analysis: whether "individuals in the group affected by a law have distinguishing characteristics relevant to interests the state has the authority to implement." City of Cleburne v. Cleburne Living Center, Inc., No. 84-468 (July 1, 1985), slip op. 8. After this Court's decision in City of Cleburne that the mentally retarded have characteristics of that sort and therefore are not a quasi-suspect class, it is difficult to believe that appellee's argument is seriously advanced. See id. at 12. But it is clear, in any event, that a history of mental illness may legitimately be taken into account by Congress. Appellee (Br. 29-30) and his amici (APA Br. 13-17) suggest obliquely that commitment is irrelevant to the statutory goal of keeping guns from potentially dangerous persons because commitment decisions are flawed and many committees are not dangerous. At the same time, however, appellee and the amici implicitly recognize the limited force of this empirical argument, for they shrink from following their reasoning to its logical conclusion -- that, because commitment cannot serve as a proxy for dangerousness, it is irrational for Congress to bar even individuals currently under commitment orders from obtaining firearms. To the contrary, the APA acknowledges (Br. 18) that a majority of the states withhold firearms from persons with mental disabilities and that all 50 states deny such persons certain rights; the APA compares Title IV unfavorably to these statutes only because Title IV also reaches persons with a history of commitment (Br. 20-22). /1/ This implicit concession that mental disorder is relevant to the achievement of legitimate legislative goals is well-taken, for it seems self-evident that guns may be kept from persons who have been found incapable of functioning in society. /2/ Once the relevance of mental disorder is acknowledged, it follows that Congress also may take a history of mental illness into account in legislation bearing on public safety. As the Chief Justice has noted, rates of cure for mental illness are relatively low (see O'Connor v. Donaldson, 422 U.S. 563, 584 (1975) (Burger, C.J., concurring)); appellee's amici themselves recognize (New Jersey Department of the Public Advocate and American Civil Liberties Union of New Jersey (NJDPA) Br. 19-20) that a significant number of those afflicted with mental disorders do not recover fully. And while we certainly do not contend that all forms of mental illness are incurable, we explained in our opening brief (at 26 & n.22) that the fallibility and uncertainty of psychiatric diagnosis -- a fallibility repeatedly recognized by this Court /3/ -- makes it impossible to predict with certainty that a given individual with a history of mental disorder will never manifest symptoms of that illness in the future. Against this background, heightened scrutiny of legislation classifying on the basis of a commitment history is inappropriate, because such legislation cannot be presumed to reflect prejudice rather than "the real and undeniable differences" between persons with such a history and others. City of Cleburne, slip op. 10. b. It bears repeating that the other criteria relevant to the Court's use of "intermediate scrutiny" also are absent in this case. /4/ While there is no denying the stigmatization and past mistreatment of the mentally ill (Appellee Br. 13; APA Br. 5-10; CFREE Br. 10-12), this Court has noted that "what is truly 'stigmatizing' is the symptomatology of a mental or emotional illness" rather than commitment itself. Parham v. J.R., 442 U.S. 584, 601 (1979). Although appellee asserts that persons affected by mental illness are politically powerless, his amici acknowledge (APA Br. 20-21 & n.52) that formerly institutionalized persons may participate in the political process and that, in a number of states, even those currently suffering from a mental disorder are not denied the right to vote. And appellee himself recognizes the breadth of the class affected by Title IV (Br. 15), a factor that militates against the application of heightened scrutiny here. See Gov't Br. 27-28. /5/ 2. In next arguing that Title IV is wholly irrational, appellee (Br. 29-30) and his amici (APA Br. 22-27; CFREE Br. 16-21) rely principally on empirical data suggesting that persons with a history of commitment are no more likely than are members of the general public to commit violent crimes. But the validity of Congress's action hardly stands or falls on the empirical conclusions drawn by appellee's chosen set of psychiatrists. In fact, appellee's own data -- presented in its most complete form by the APA -- is far from conclusive; there are admitted gaps in the empirical base (see APA Br. 23 n.55, 25 n.61) and the cited studies fail to address such central questions as the severity of the crimes that are committed by persons with a history of mental illness. Indeed, the APA acknowledges (Br. 25) that, at least since 1965, /6/ the arrest rate for persons released from mental institutions has exceeded that of the general population; while the APA attributes this circumstance to demographic factors that are unrelated to mental illness (Br. 25-27), the studies on which it relies for this proposition draw only tentative conclusions and recognize that even those conclusions are disputed. /7/ Perhaps more telling, it seems well-settled that the suicide rate of persons with a history of mental illness is strikingly and disproportionately high. /8/ Some researchers, moreover, reject the APA's reasoning altogether, concluding that a history of commitment does correlate with higher rates of future violent criminal activity. /9/ This sort of disagreement, of course, is far from unusual in the "baffling field of psychiatry." O'Connor, 422 U.S. at 578 n.2 (Burger, C.J., concurring). See, e.g., Barefoot v. Estelle, 463 U.S. 880, 899-900 (1983). As we explained in our opening brief (at 21-22), it is Congress's role to resolve this debate. In attempting to prove that Congress erred as a factual matter in concluding that persons with a history of commitment pose a greater than usual risk of misusing firearms, appellee accordingly "cannot prevail so long as 'it is evident from all the considerations presented to (the legislature), and those of which (the Court) may take judicial notice, that the question is at least debatable.'" Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 464 (1981), quoting United States v. Carolene Products Co., 304 U.S. 144, 154 (1938). See Exxon Corp. v. Eagerton, 462 U.S. 176, 196 (1983). Given "the divergence of medical opinion in this vexing area" (O'Connor, 422 U.S. at 579 (Burger, C.J., concurring)) outlined above, the congressional action at issue here easily meets that test. 3. Appellee's related argument (Br. 23) that Title IV is unconstitutional because it makes relief available to a subcategory of felons but not to persons with a history of commitment demonstrates a similar misunderstanding of Congress's role. Felons on the one hand, and persons with a history of mental illness on the other, obviously present entirely distinct sets of characteristics, and there is no reason to believe that Congress was obligated to -- or should have -- treated the two identically. Law enforcement officers, for example, have considerable experience in making predictions of future dangerousness in the criminal justice context, and are able to recognize the characteristics that indicate a propensity for future criminality by those who have violated the law. /10/ See, e.g., Barefoot, 463 U.S. at 897; Estelle v. Smith, 451 U.S. 454, 473 (1981). /11/ In contrast, those officers plainly are not in a position to make complex psychiatric judgments about persons who have been released from mental institutions. In any event, as we explained in our opening brief (at 14-18), the relief provision in 18 U.S.C. 925(c) is a narrow exception to the otherwise blanket disability imposed on all categories of presumptively risky people; /12/ it originally was enacted to remedy a particular problem affecting firearms manufacturers, and subsequently was expanded to benefit what is still a narrowly circumscribed group of felons. See note 10, supra. If this sort of decision to act "one step at a time" (Williamson v. Lee Optical Co., 348 U.S. 483, 489 (1955)) is open to constitutional challenge, Congress will lose its ability to legislate altogether. Legislation necessarily involves the drawing of fine and often debatable lines. Here, for example, Congress could have imposed firearms disabilities on other presumptively dangerous groups (such as, perhaps, persons who have been arrested), which may well pose more of a risk than many of the categories listed in Titles IV and VII. But Congress's failure to do so -- like its failure to provide relief to most of the categories of persons that are listed -- does not invalidate the eminently reasonable restrictions that it did enact: "It is no requirement of equal protection that all evils of the same genus be eradicated or none at all." Railway Express Agency, Inc. v. New York, 336 US.. 106, 110 (1949). See Gov't Br. 17. /13/ 4. The remaining challenges to the rationality of Title IV offered by appellee and its amici -- principally, that commitment decisions are too unreliable to be credited absent the availability of an individualized relief mechanism (NJDPA Br. 27-41) and that the disability created by Title IV is irrational as applied to appellee because he is not dangerous (Appellee Br. 30-33) -- are premised on a misunderstanding of the congressional purpose. Congress did not base Title IV on the assumption that all formerly institutionalized persons are dangerous, as the NJDPA asserts (Br. 18). To the contrary, Congress plainly understood that many such persons would not misuse firearms were they able to obtain them, just as it surely recognized that not all felons found guilty of firearms offenses will commit violent crimes in the future. But Congress concluded that those characteristics are associated with increased rates of violent crime, /14/ and therefore used them as "a convenient, although somewhat inexact, way of identifying 'especially risky people.'" Dickerson v. New Banner Institute, Inc., 460 U.S. 103, 120 (1983), quoting United States v. Bass, 404 U.S. 336, 345 (1971). Once the relevance of a history of mental illness is recognized, the necessity for the use of sweeping and absolute prophylactic rules is evident. Congress's failure to create a relief provision for formerly institutionalized persons was not motivated by consideration of expense or administrative convenience, as the APA supposes (Br. 28-29); instead, Congress plainly believed that the fallibility of psychiatric diagnosis makes it impossible to predict with certainty that a person with a history of mental disorder will not manifest symptoms of mental illness in the future. /15/ While statisticians may be able to state with confidence that, as an empirical matter, a substantial number of formerly institutionalized persons will not suffer from recurrent mental disorders, this Court has recognized that the uncertainties of psychiatry "often make() it very difficult for the expert physician to offer any definite conclusions about any particular patient." Addington v. Texas, 441 U.S. 418, 430 (1979). See id. at 429; Gov't Br. 19-20. In these circumstances, where any mistake about a particular patient would have catastrophic consequences, congressional use of a "sweeping prophylaxis" (Lewis v. United States, 445 U.S. 55, 63 (1980)) was plainly justified. This conclusion also points up the flaw in appellee's suggestion that Title IV is unconstitutional as applied to him. Congress reasonably determined that, at least where a matter as crucial as gun ownership is involved, the state of psychiatric knowledge does not allow for adequate assurances that a person with a history of mental illness never will have a recurrence. Appellee's suggestion that this finding should not apply to him (or to others in his circumstances) because he was not in fact, or no longer is, dangerous -- even if accurate /16/ -- would render Congress's prophylactic rule nugatory. 5. Finally, appellee's related contention (Br. 28) that Title IV creates an unconstitutional irrebuttable presumption may be given short shrift. Appellee and his amici (APA Br. 17; NJDPA Br. 57) assert that it is irrational to rely on psychiatric judgments when imposing a disability, while declining to lift the disability in response to favorable psychiatric testimony. /17/ As we explained in our opening brief (at 20), however, a commitment decision is made in immediate response to evidence that the individual is dangerous and unable to function in society. In contrast, the evidence upon which appellee would rely involves a far more tenuous and unreliable prediction of long-term dangerousness. See Gov't Br. 19-20 n.16 Cf. Barefoot, 463 U.S. at 936 n.14 (Blackmun, J., dissenting); O'Connor, 422 U.S. at 589 (Burger, C.J., concurring). Where the right involved is not a fundamental one, and where any error puts the safety of the public directly at risk, Congress cannot be faulted for acting cautiously in choosing which psychiatric judgments to credit. For the foregoing reasons and the reasons stated in our opening brief, the judgment of the district court should be reversed. Respectfully submitted. CHARLES FRIED Solicitor General MARCH 1986 /1/ Appellee's other amici apparently recognize that guns may be withheld from persons who currently are institutionalized (see CFREE Br. 30; New Jersey Department of the Public Advocate and American Civil Liberties Union of New Jersey Br. 16, 21). /2/ The APA (Br. 14 & n.27) takes issue with our suggestion that a finding of dangerousness to oneself or to others is a prerequisite to commitment. This Court, however, recently characterized its decision in O'Connor v. Donaldson, 422 U.S. 563 (1975) as holding "that a nondangerous civil committee could not be held in confinement against his will." Barefoot v. Estelle, 463 U.S. 880, 898 (1983). See Addington v. Texas, 441 U.S. 418, 429 (1979); O'Connor, 422 U.S. at 575 (there is "no constitutional basis for confining (mentally ill) persons involuntarily if they are dangerous to no one and can live safely in freedom"). In any event, however the relevant standard is articulated, it hardly seems unreasonable to withhold firearms from persons who are, in the APA's words, "gravely disabled" (Br. 14) "because they are unable to provide for their basic needs as a result of mental illness or disorder" (Br. 1a). /3/ See Barefoot v. Estelle, 463 U.S. 880, 932 (1983) (Blackmun, J., dissenting); Estelle v. Smith, 451 U.S. 454, 472 (1981); Parham v. J.R., 442 U.S. 584, 609 (1979); id. at 629 (opinion of Brennan, J.); Addington v. Texas, 441 U.S. 418, 430 (1979); O'Connor v. Donaldson, 422 U.S. 563, 584, 589 (1975) (Burger, C.J., concurring). /4/ Amicus CFREE's suggestion (Br. 32-50) that the right to acquire firearms must be considered fundamental for purposes of equal protection analysis is entirely without merit. In the context of a Fifth Amendment challenge to Title VII of the Gun Control Act of 1968, 18 U.S.C. App. 1201 et seq., the Court has flatly held that "(t)hese legislative restrictions on the use of firearms * * * (do not) trench upon any constitutionally protected liberties." Lewis v. United States, 445 U.S. 55, 65 n.8 (1980). See id. at 65-66 n.8 (characterizing United States v. Miller, 307 U.S. 174, 178 (1939) as holding that "the Second Amendment guarantees no right to keep and bear a firearm that does not have 'some reasonable relationship to the preservation or efficiency of a well regulated militia'"). /5/ Appellee (Br. 17) and his amici (APA Br. 8) acknowledge the body of federal law intended to benefit the mentally ill, while maintaining (Appellee Br. 18-21) that the existence of this legislation does not bear on the level of equal protection scrutiny applicable here. In City of Cleburne, however, the Court stated that an affirmative legislative response to the problems of a given group, while not determinative, makes the call for intrusive judicial oversight less compelling. Slip op. 9. /6/ The APA asserts (Br. 24-25) that, prior to 1965, persons released from mental institutions had lower arrest rates for violent crime than did the general public. The causes (such as conservative release policies) -- and even the existence -- of this phenomenon are subjects of dispute, however. See, e.g., J. MacDonald, Psychiatry and the Criminal 93 (2d ed. 1969); Rappeport & Lassen, Dangerousness -- Arrest Rate Comparisons of Discharged Patients and the General Population, 121 Am.J. Psychiatry 776 (1965). /7/ See, e.g., Rossi, Jacobs, Monteleone, Olsen, Surber, Winkler & Wommack, Violent and Fear-Inducing Behavior Associated With Hospital Admissions, 36 Hosp. & Community Psychiatry 643, 643-644, 647 (1985) (cited at APA Br. 26 n.63; acknowledges that a number of recent studies present "sobering evidence about the potential for violence in psychiatric patients" by showing former mental patients to be more dangerous than previously believed, and urges caution in the use of empirical data to draw conclusions about the behavior of the mentally ill); Teplin, The Ciminality of the Mentally Ill: A Dangerous Misconception, 142 Am. J. Psychiatry 593, 593-594, 597 (1985) (cited at APA Br. 23 n.55, 24 n.59, 26 n.63; describes the dangerousness of former mental patients as a "longstanding controversy," acknowledges the existence of conflicting data, and recognizes that study finding demographic factors determinative is "rendered problematic by several methodological limitations"); Teplin, Criminalizing Mental Disorder: The Comparative Arrest Rate of the Mentall Ill, 39 Am. Psychologist 794, 795, 797 (1984) (cited at APA Br. 26 n.63; acknowledges that some studies show former mental patients to have higher arrest rates than the general population, and that obtaining data in the area calls for highly subjective judgments); Ribner & Steadman, Recidivism Among Offenders and Ex-Mental Patients: A Comparative Analysis, 19 Criminology 411, 412 (1981) (cited at APA Br. 22 n.55; acknowledges the existence of studies showing that released mental patients have much higher arrest rates than does the general population); Steadman, Cocozza & Melick, Explaining the Increased Arrest Rate Among Mental Patients: The Changing Clientele of State Hospitals, 135 Am. J. Psychiatry 816, 816-817 (1978) (cited at APA Br. 23 n.55, 26 n.63; acknowledges that arrest rates for ex-patients are three times that of the general population, that such arrests are most often for assault, robbery and rape, and that conclusions on the subject are based on "unwieldy data that are most difficult to obtain"). Cf. Durbin, Pasewark & Albers, Criminality and Mental Illness: A Study of Arrest Rates in a Rural State, 134 Am. J. Psychiatry 80, 83 (1977) (noting "discrepant findings reported in the literature" and cautioning that "(d)efinite conclusions are difficult and generalizations are risky"); Sosowsky, Crime and Violence Among Mental Patients Reconsidered in View of the New Legal Relationship Between the State and the Mentally Ill, 135 Am. J. Psychiatry 33, 42 (1978) (noting tentativeness of empirical conclusions); Giovannoni & Gurel, Socially Disruptive Behavior of Ex-Mental Patients, 17 Archives Gen. Psychiatry 146, 151-152 (1967) (noting discrepancies in the literature and explaining that conclusions vary depending upon the statistical sample used). Even taking the APA's empirical observations at face value, past commitment to a mental institution -- which concededly correlates with higher rates of violent crime -- remains an accurate proxy for future violence. Requiring Congress to legislate more precisely by insisting that it impose disabilities only on persons committed to institutions who have prior arrest records, as suggested by the APA (Br. 22), would impose upon Congress an obligation to draft its statutes with precision that repeatedly has been eschewed by this Court. See, e.g., United States Railroad Retirement Board v. Fritz, 449 U.S. 166, 179 (1980). /8/ See, e.g., Eastwood, Stiasny, Meier & Woogh, Mental Illness and Mortality, 23 Comprehensive Psychiatry 377, 383 (1982); Suicide: How to Reduce the Rate, 224 Nature 12, 13 (1969). /9/ See, e.g., Sosowsky, Crime and Violence Among Mental Patients Reconsidered in View of the New Legal Relationship Between the State and the Mentally Ill, 135 Am. J. Psychiatry 33, 40 (1978); J. MacDonald, Psychiatry and the Criminal 93 (2d ed. 1969). Cf. Rappeport & Lassen, Dangerousness -- Arrest Rate Comparisons of Discharges Patients and the General Population, 121 Am. J. Psychiatry 776, 779-780 (1965); Messich, Evanczuuk, Mathias & Coffman, Symptoms and Hospitalization Decisions, 141 Am. J. Psychiatry 764, 767 (1984) (violent behavior is one symptom showing highest correlation with decision to admit patient to a psychiatric hospital). /10/ Appellee (Br. 24) and his amici (NJDPA Br. 48, 53) misstate the reach of 18 U.S.C. 925(c) is asserting that it excludes only felons who have committed firearms offenses. In fact, the provision entirely withholds relief from any felon who has committed any crime involving the use of a weapon. This excluded category approximates the group of violent felons who, appellee's amici recognize, are the persons most likely to commit future crimes of violence (see APA Br. 22-23 n.55). /11/ See generally S. Rep. 98-225, 98th Cong., 1st Sess. 9 (1983) (footnote omitted) (addressing the Comprehensive Crime Control Act of 1983, Congress observed that "the presence of certain combinations of offense and offender characteristics, such as the nature and seriousness of the offense charged, the extent of prior arrests and convictions, and a history of drug addiction, have been shown in studies to have a strong positive relationship to predicting the probability that a defendant will commit a new offense while on release"). /12/ Appellee contends (Br. 22-23) that disabilities were imposed on several of the listed categories of persons as punishment, rather than because persons in those categories were considered potentially dangerous. In fact, however, Congress made it clear in its legislative findings that it believed the listed groups to present an unusual risk of violent activity. See Pub. L. No. 90-351, Section 901, 82 Stat. 225; 18 U.S.C. App. 1201. /13/ The APA contends (Br. 18-22) that Title IV is suspect because, by imposing disabilities upon persons with a history of commitment, it makes use of an unusually broad prophylactic rule. Congress's choice of such a rule, however, simply reflects its conclusion -- enunciated both in formal findings and in the legislative history of Title IV -- that the abuse of firearms poses extraordinary dangers to the public. See Pub. L. No. 90-351, Section 901(a)(2), 82 Stat. 225 (availability of firearms to presumptively dangerous groups "is a significant factor in the prevalence of lawlessness and violent crime in the United States"); 18 U.S.C. App. 1201 (availability of firearms to presumptively dangerous groups is a threat to the exercise of constitutional rights and to the effective operation of the government); H.R. Rep. 1577, 90th Cong., 2d Sess. 7 (1968); S. Rep. 1097, 90th Cong., 2d Sess. 76-78 (1968); S. Rep. 1501, 90th Cong., 2d Sess. 22-23 (1968). /14/ That is true even of commitments ordered prior to 1975 that did not make use of the substantive and procedural protections mandated by O'Connor v. Donaldson, supra, and Addington v. Texas, 441 U.S. 418 (1979). At least for purposes of creating firearms disabilities, Congress was entitled to rely on procedurally flawed commitments, recognizing that even individuals committed by judicial officers in such circumstances most likely do suffer from mental disorders. Cf. Lewis v. United States, 445 U.S. 55, 66 (1980). And Congress certainly was justified in keeping weapons out of the hands of persons who had been found unable to function in society, whether or not they specifically had been labeled dangerous; indeed, studies prior to this Court's decisions in O'Connor and Addington found that former mental patients had higher arrest rates for violent crime than did the general population. See, e.g., J. MacDonald, Psychiatry and the Criminal 93 (2d ed. 1969); Rappeport & Lassen, Dangerousness -- Arrest Rate Comparisons of Discharged Patients and the General Population, 121 Am. J. Psychiatry 776, 779-780 (1965). See note 2, supra. In any event, it should be added that the statute pursuant to which appellee was committed required a finding -- both by his attending physician and by the medical staff of the institution that he had entered voluntarily -- that appellee "if discharged, (would) probably imperil life, person or property." N.J. Stat. Ann. Section 30:4-48 (West 1981). Commitment could then be ordered upon a judicial finding that appellee suffered from "mental disease to such an extent that (he) * * * require(d) care and treatment for his own welfare, or the welfare of others, or of the community" (N.J. Stat. Ann. Section 30:4-23 (West 1981); see N.J. Stat. Ann. Section 30:4-27 (West 1981)) -- language evidently understood to mean that he was "'dangerous to self or to society.'" State v. Krol, 68 N.J. 236, 252, 344 A.2d 289, 298 (1975) (citation omitted). The arguments by appellee and his amici about the validity of disabilities imposed upon persons who were committed under statutes that lack such a requirement accordingly are wholly hypothetical. /15/ Appellee (Br. 24-26) and his amici (NJDPA Br. 45 & n.30) assert that Congress never articulated its rationale for imposing permanent firearms disabilities on persons with a history of mental illness. This Court, however, has found the congressional motivation plain from the face of the statute: "Congress obviously felt that such a person, though unfortunate, was too much of a risk to be allowed firearms privileges." New Banner Institute, 460 U.S. at 116. The legislative history confirms that Congress was concerned about the special risks posed by "persons with records of mental instability." 114 Cong. Rec. 22270 (1968) (remarks of Rep. Fino). And even had Congress failed to explain its rationale, "(w)here, as here, there are plausible reasons for Congress' action, (the court's) inquiry is at an end. It is, of course, 'constitutionally irrelevant whether this reasoning in fact underlay the legislative decision,' Flemming v. Nestor, 363 U.S. (603), 612 (1960), because this Court has never insisted that a legislative body articulate its reasons for enacting a statute." United States Railroad Retirement Board v. Fritz, 449 U.S. 166, 179 (1980). See McDonald v. Board of Election, 394 U.S. 802, 809 (1969). /16/ In fact, as noted above (note 14, supra), appellee was found dangerous by his attending physician and by the medical staff of his institution. Moreover, while appellee (Br. 26) and the NJDPA (Br. 28 n.17, 33 n.20) suggest that appellee was found to present a danger only to property, his physician indicated that he was "assaultive" (J.A. 5, 6, 8) prior to his commitment and "became extremely violent" after his voluntary admission to an institution (J.A. 8). Although the record does not reflect any recurrence of such behavior following his release from the institution, appellee was given antipsychotic drugs (J.A. 11) and apparently has remained under a physician's care since that time (J.A. 12). /17/ In fact, the two judgments are not equivalent. While psychiatric testimony certainly has a significant effect on commitment judgments, the ultimate decision that an individual should be institutionalized generally is made -- as it was in this case (see J.A. 7) -- by a judicial officer. The prediction of future dangerousness upon which appellee relies, in contrast, involves the unreviewed judgment of a psychiatrist (see J.A. 12, 13).