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Old April 20, 2013, 07:00 PM   #1
sluser
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rape/mental heath/gun control?

4 years ago my sister was a victim of a brutal rape. she had a very hard time dealing with the shame and pain of it and took a attempt on her life. when she was taken to the hosiptol she refused treatment and she was orderd confinded into a mental facilty by the court(which was needed). now four years later she is moving on with her life and seams to have recoverd as much as anyone could expect. she told me she wanted to buy a firearm and i took her down to apply for a concled weapons permit and it was denied because of her commitment.
we have had her states rights to own a firearm restored but are told there is no way possible at this point to have her rights restored at a FEDREAL LEVEL.
so even though the state has restored her rights she is being advised by her lawyer that she will still be commiting a felony if she ever has a weapon on her possesion on the federal level.
is her lawyer missing something or is this truley a lifetime ban on firearms for her? any advice will be followed up on. thank you very much
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Old April 20, 2013, 11:51 PM   #2
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First, welcome to TFL and I am sincerely sorry for the trauma that your sister has been forced to endure. I personally do not know the answer to your question, but maybe someone else can assist. In the mean time you might check out the NICS WEB Site and see if it offers any information.

http://www.fbi.gov/about-us/cjis/nics/nics
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Old April 21, 2013, 12:19 AM   #3
JimDandy
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Generally speaking, you're not going to get a specific answer to your question when phrased the way it was. You'll get a response suggesting you find a local lawyer who specializes in firearms law. This is to protect you, and I assume the lawyers who dispense free answers to questions on the generic principles and points of law.

If you were to ask- in general terms- what the process, and remedies are- when someone has been adjudicated mentally deficient by an involuntary commitment- you might get an answer that may or may not offer alternate avenues that may or may not apply to your specific situation that you could then use to educate yourself prior to another trip to your specific lawyer that provides you with client confidentiality among other services rendered for their fee.
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Old April 21, 2013, 09:33 AM   #4
Vanya
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From the FAQ on the ATF website:
Q: How can a person apply for relief from Federal firearms disabilities?

Under the provisions of the Gun Control Act of 1968 (GCA), convicted felons and certain other persons are prohibited from possessing or receiving firearms. The GCA provides the Attorney General with the authority to grant relief from this disability where the Attorney General determines that the person is not likely to act in a manner dangerous to the public safety and granting relief would not be contrary to the public interest. The Attorney General delegated this authority to ATF.

Since October 1992, however, ATF’s annual appropriation has prohibited the expending of any funds to investigate or act upon applications for relief from Federal firearms disabilities submitted by individuals. As long as this provision is included in current ATF appropriations, the Bureau cannot act upon applications for relief from Federal firearms disabilities submitted by individuals.
[18 U.S.C. 922(g), 922(n) and 925(c)]
So until there is funding for the ATF to act on applications for relief, there's no way to fix this: in principle, one can have one's rights restored at the Federal level -- but as things stand now, the prohibition is effectively permanent.

Sorry to be the bearer of bad tidings, but for all practical purposes, your sister's attorney is correct.
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Old April 21, 2013, 10:40 AM   #5
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This gets me curious about something as a general inquiry Vanya. If the states are the ones that install the firearms disability- especially through the felony/Serious misdemeanor conviction methodology, when they restore the firearms right, the individual doesn't have to have the federal government sign off on this. It just happens (though likely only after opening an appeals file folder the FBI NICS gets to keep open at the request of the individual). If the state is the entity that established the disability in the above case, and has restored the right as mentioned, why does the individual still need to get federal approval?
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Old April 21, 2013, 10:43 AM   #6
cvc944
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Vanya,

Thank you for posting that. I just want to mention that I find it odd that they used the word 'disability'. A better word would have been 'disablement'. That is to say the OP's sister can't have a firearm because she has a disability, she can't do so because she has been disabled to do so by law. Perhaps they used the word they did because the other word sounded a bit too harsh. Just my thought.
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Old April 21, 2013, 10:49 AM   #7
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They almost always use "firearm disability". I'm pretty sure that's the technical legal term- like adjudicated mentally deficient. I think at least part if not most is they don't want to use "franshise" which describes voting, or "right" which describes other things they, being the people who dislike guns enough to make the draconian laws against them, don't want to lump with guns to make it easier to defend the rights to guns.

To put that in another, shorter way- the gun control advocates don't want to do anything, nomenclature wise, that would suggest or encourage the supreme court to put the RTKBA on the same pedestal as speech, religion, assembly, etc. as they haven't done so on their own yet.
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Old April 21, 2013, 10:55 AM   #8
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Quote:
So until there is funding for the ATF to act on applications for relief, there's no way to fix this: in principle, one can have one's rights restored at the Federal level -- but as things stand now, the prohibition is effectively permanent.
I could be mistaken, but I thought the NICS improvement act changed this in the case of people prohibited for mental health reasons. It now counts as a denial if the ATF doesn't act on an application for relief within 365 days. That means a person should be able to apply for relief with the ATF (who cannot act on the application) and then 365 days later they will be able to appeal the denial in Federal court.

Edit: Just to add again, I could very well be mistaken.
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Old April 21, 2013, 01:15 PM   #9
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From JD:
"If the state is the entity that established the disability in the above case, and has restored the right as mentioned, why does the individual still need to get federal approval?"

Most likely because the two databases aren't automatically linked to do that, which may be another subject for revision. Until then, if one's disability is removed at the state level, the ATF needs to be specifically notified and I'm sure they are going to run some kind of investigation before removing someone from the NICS list. And without the funds to run those investigations, people are going to be SOL.
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Old April 21, 2013, 01:46 PM   #10
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The State establishes the disability. And Reports to NICS. NICS is FBI run. The FBI investigates the records for validity.

If, and anecdotal evidence supports this does happen- so I'm open to contradiction by someone who knows this stuff first hand over hearsay- They remove people from the database for expunged criminal records, or other state based actions that restore firearms rights, it appears to me discriminating against mental health reasons would be very thin ice to tread on.
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Old April 21, 2013, 02:04 PM   #11
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I've had many customers who've been denied a firearm purchase due to being a prohibited person of which two petitioned to have their rights restored through the Office of Executive Clemency here in Florida and indeed had their rights restored.

They were both then able to purchase firearms after passing the Florida required Florida FPP (firearm purchase program) and the Federal NICS (national insta check system).

So somewhere on the Federal level the state's determination was accepted.

Neither of these purchasers had been adjudicated mentally defective though.

Hope this may help.
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Old April 21, 2013, 10:16 PM   #12
Bartholomew Roberts
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The NICS Improvement Act of 2007 provided states funds for adding those adjudicated mentally ill to the NICS database; however one of the conditions of receiving those funds was that the states establish a process where those who were no longer a threat to themselves or others due to mental illness could have their rights restored. Not knowing what state you are in, I do not know if your state participates; but it is an angle you may want to ask an attorney in your state about.
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Old April 22, 2013, 08:28 AM   #13
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These laws, as they were written at the Federal level, have two things in common. 1) If you have never lost your right(s), then it can be said that the right(s) cannot have been restored. 2) They were all written before the right to keep arms was considered a fundamental right.

OK, you say, but now that right has been found to be a fundamental right. So why don't they (the feds) acknowledge this?

Because of prior case law, the rights that must have been denied, were the right to vote; the right to hold elective office; or the right to sit on a jury. See Enos, et al v. Holder, et al. That thread is here. Case filings and briefs are here.

As has been said, the other prong is whether or not the OP's sister lives in a State that has opted in to the method of removing a mental disability, pursuant to the NICS Improvement Act of 2007. Even this may be defeated, if the OP's sister had never lost the rights listed above.
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Old April 22, 2013, 08:53 AM   #14
JimDandy
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Al, I realize what we're discussing is hypothetical and generalities so we don't actually need someone to be a test case to get a judgement proving out theories. With that said, if someone is involuntarily committed, they likely would not be allowed to vote or sit on a jury. The fact that no election or jury summons may or may not have been held or issued shouldn't alter that. Much like the same principle involved in the Negative Commerce Clause doctrine- which is basically the Federal Govt telling the states that just because they weren't playing with it, it was still Uncle Sam's ball, and he's taking it away.

So to apply the same principle- because a judge would not let someone adjudicated sit on a jury, they lost the right to be on a jury, not?
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Old April 22, 2013, 10:09 AM   #15
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JimDandy, what do cases like this do to your argument about NICS checks not unduly interfering with individual rights?
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Old April 22, 2013, 10:25 AM   #16
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That depends on the final resolution. Assuming everything is accurate, INCLUDING my understanding of the incident related- She was adjudicated mentally deficient, through an event that included Due Process.

She was a danger to herself, and a judge signed off on it. I'm ok with it there.
Quote:
took a attempt on her life. when she was taken to the hosiptol she refused treatment and she was orderd confinded into a mental facilty by the court(which was needed)
After the temporary mental issue was healed, her state removed her firearms disability- I'm fine there.

Quote:
we have had her states rights to own a firearm restored
IF it's a matter of the State not reporting this "restoration" as we'd call it, there's This appeas process as well as more direct redress of grievances available through the court system on possible discrimination grounds.

I am not particularly happy this is happening to this woman. But there are avenues to redress the wrong being done. I see no functional difference between this, and getting a wrongful conviction overturned/repealed/whatever the technical term is. Both are travesties of justice. Both take time and action. Both usually end up costing the government a pile of money, and the person being screwed a pile of time and energy.
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Old April 22, 2013, 10:38 AM   #17
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Yes, but this is not an isolated incident. Restoration of rights at NICS has not been funded for over a decade.

You can have all the due process you want, but if the system does not do what it is intended to do, that due process may only achieve Pyrrhic victory.

Meanwhile, there are costs and time involved in "due process" that may not be justifiable. A right we have to jump hurdles to exercise is no right at all.
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Old April 22, 2013, 10:56 AM   #18
JimDandy
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Yes, but this is not an isolated incident. Restoration of rights at NICS has not been funded for over a decade.
That's not quite accurate. You're conflating two processes. Removal of records in NICS is funded. Removing the records restores the right. When a state removes the "firearms disability" this is supposed to be reported to NICS the same as the entry for the application of the "disability".

States are free to apply and remove this through their due process.

For FEDERAL crimes/adjudications the process to remove the disability is not funded. The ATF, not the FBI, handles this process, and the "office" that does so has no funding. This is something I wholeheartedly disagree with, and vehemently so.
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Old April 22, 2013, 11:24 AM   #19
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I will concede that I am conflating the two processes, because that bears on the overall issue.

After all, what if the citizen had been a vet, with an initial VA diagnosis of PTSD? Years later, all might be fine, but there would be NO WAY to fix his issues.

All this goes back to the system being potentially abused, rather easily, by the anti crowd. All they have to do is choose to remove funding from the restoration process. This has been done at the federal level, and could be done at the state level.

Of interest was a recent development in Maine. Ostensibly, the states are supposed to fund restoration rights in return for federal funds to use and update the system. However, according to an article I read, a judge in Maine made the papers when she ordered her clerks to send records to the NICS system despite the fact that the feds had not paid for it. Apparently, Maine courts had not been sending updates to NICS due to lack of funding for that process.

There are any number of ideas that seem good in concept, but in execution they almost always turn into a mess. Functionaries with agendas will find a way to twist the requirements. It's what they do; it's what they have always done.
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Old April 22, 2013, 11:29 AM   #20
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If we can apply pressure to our lawmakers to not vote in something bad, we can apply that same pressure, especially with the added threat of judicial action to not abuse things.

Everything can be abused by the government if the people accede to it. Its up to the people to be vigilant to prevent that- whatever the issue.
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Old April 22, 2013, 11:39 AM   #21
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I do not know what the law states in the state that the OP (or should I say the rape victim) lives in,,,but in WA RCW 9.41.047(3)(e) states:

(e) When a person's right to possess a firearm has been restored under this subsection, the court shall forward, within three judicial days after entry of the restoration order, notification that the person's right to possess a firearm has been restored to the department of licensing, the department of social and health services, and the national instant criminal background check system index, denied persons file.

As the state has removed the restriction, as if the problem had never occurred, and has so notified the NICS...there should be no problem anymore. I do know this IS the way it works in WA, and do not know why it should be any different elsewhere.
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Old April 22, 2013, 12:05 PM   #22
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If we do not allow it in the first place, then we do not need to monitor for abuses.

Nobody has convinced me that NICS has done anything effective. Based on prosecution rates for violations, the system has disproportionate impact on the law abiding.
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Old April 22, 2013, 12:25 PM   #23
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According to a 2012 study by the General Accounting Office, there were "only 16 states that had legislation as of May 2012 that allows individuals to seek relief from their federal firearms prohibition."

As MLeake noted above, this is largely because Congress has failed to fund the NIAA (or the NICS as a whole) at anything like the levels approved in the bill itself: from 2009-2011, Congress appropriated 5.3% of the amount authorized for the NICS; because of this lack of funding, the incentive program for states to implement the reversal procedures outlined in the NIAA has never been put into place.

So with a few exceptions, of which Washington appears to be one, the reversal process called for by the NIAA simply doesn't exist, either because individual states never established a system for it, or, if they did, the promised federal funding to maintain such systems never materialized.
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Old April 23, 2013, 06:18 PM   #24
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Take it for what it is worth, but if the state she resides in has cleared her, than if she never plans to leave that state with a firearm or transfer that firearm out of state or does not purchase the firearm from out of state, than I don't see a problem.

Another way to look at this is that in a state that has cleared you, which also is a shall issue state. If you pass the states background check (which may include the NICS check) and pass the course, you are given the ccwp. Of which in many states you can purchase a gun using your permit without having to take a background check.

In such a situation nothing illegal is done, so long as you remain in the state and do not commute out of the state with that gun.

The feds have a lot more to worry about these days, like going door to door smashing in doors for peoples safety in the police state than to go after someone who has an arguable right to keep and bear arms.

Anyways a right that can be taken away is not a right.... it is a privelage. This is a solid fact and until gunowners in general realize that they are conditioned into believing that a right is just another word for privelage they can expect to one day be totally disarmed for one thing or another.

A lot of this also depends on the state the individual leaves in as well.
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Old April 23, 2013, 07:14 PM   #25
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Take it for what it is worth,
Not much. She may not be violating a state law(or she might be if they tie their law to include not breaking federal laws) she'd still be breaking a federal law via possession of a firearm without clearing up the NICS.

If she really has had her state rights restored, she SHOULD be able to appeal and denial, provide the records to the NICS as part of her appeal, and have her name removed. Assuming she has a record of the proceedings from the State. She may be able to circumvent the automatic reporting, but still get it in her file.

But any attempt to possess a firearm without both the state and fed approving will be breaking the law to my understanding. I'm sure that's not what you meant to do, but the staff around here are REALLY twitchy about that, for good reason.
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