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Old February 12, 2014, 11:20 PM   #1
KyJim
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Do some restrictions on purchasing firearms violate ADA?

The American Bar Association Journal (online) has a story where the Civil Rights Division of the Department of Justice is going after the Louisiana Supreme Court for its treatment of those with mental illnesses in their application to practice law, saying it violates the American with Disabilities Act:
Quote:
In a lengthy Feb. 5 letter (PDF) to the Louisiana Supreme Court, its committee on bar admissions and the state attorney disciplinary board that is likely to reverberate throughout the country, the division says some, but not all, of the questions asked in a standard National Conference of Bar Examiners questionnaire are unduly broad and violate the ADA. The DOJ also found that the state violates the ADA in evaluating bar applications from individuals with a history of mental health issues and admitting them to practice conditionally.
http://www.abajournal.com/news/artic...uch_about_the/

Here's is the Summary of Findings, extracted from the DOJ letter:
Quote:
We conclude that the Court’s processes for evaluating applicants to the Louisiana bar, and its practice of admitting certain persons with mental health disabilities under a conditional licensing system, discriminate against individuals on the basis of disability, in violation of the ADA. In particular, we find that Louisiana’s attorney licensure system discriminates against bar applicants with disabilities by: (1) making discriminatory inquiries regarding bar applicants’ mental health diagnoses and treatment; (2) subjecting bar applicants to burdensome supplemental investigations triggered by their mental health status or treatment as revealed during the character and fitness screening process; (3) making discriminatory admissions recommendations based on stereotypes of persons with disabilities; (4) imposing additional financial burdens on people with disabilities; (5) failing to provide adequate confidentiality protections during the
admissions process; and (6) implementing burdensome, intrusive, and unnecessary conditions on admission that are improperly based on individuals’ mental health diagnoses or treatment.
http://www.bazelon.org/LinkClick.asp...M%3d&tabid=698 (footnotes omitted).

I skimmed through the letter (45 pages single spaced) and it appears the DOJ is saying any different treatment based on mental illness must be conduct based and not based on the fact a bar applicant has a mental illness (even schizophrenia). Even asking for too much detailed information and requiring doctors' statements goes too far according to the DOJ.

I realize the the federal restriction on selling to those adjudicated mentally incompetent would not be affected, but what about the treatment we have heard about where veterans are discriminated against based upon PTSD? What about states which restrict sales to those with mental illnesses which are not "conduct based?" Frankly, I don't know what restrictions the various states have but I would have to believe there are a few out there that restrict sales to persons with a mental illness who have not actually demonstrated violence by their conduct. Anybody know for sure? Does anybody think the ADA might be used against these restrictions?
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Old February 13, 2014, 12:12 AM   #2
Frank Ettin
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Interesting concept.

I think the first hurdle will be that the ADA (42 USC Chapt. 126) only prohibits discrimination on the basis of disability with respect to certain things: employment; public services; and public accommodations and services operated by private entities. So where would the purchase or possession of guns fit in?

It wouldn't be an employment issue. As for public services, 42 USC 12132 defines prohibited discrimination as follows:
Quote:
Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.
With regard to public accommodations, the general rule is stated at 42 USC 12182(a):
Quote:
(a) General rule. No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation...
This is expanded and clarified at 42 USC 12182(b)(2)(A):
Quote:
(A) Discrimination. For purposes of subsection (a) of this section, discrimination includes

(i) the imposition or application of eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any goods, services, facilities, privileges, advantages, or accommodations, unless such criteria can be shown to be necessary for the provision of the goods, services, facilities, privileges, advantages, or accommodations being offered;
It looks at first blush like quite a reach. But I suspect that there is a good deal of case law on these issue by now. Maybe some serious research would be warranted.
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Old February 13, 2014, 09:01 AM   #3
Aguila Blanca
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I believe there is at least one lawsuit against one of the state AWBs (Connecticut, perhaps, or maybe New York) on the basis that the law doesn't allow AR-pattern rifles with pistol grips and that a pistol grip is a necessary accommodation for some people with mobility impairment in the hands and wrists.

I don't believe the case has been tried yet, and I can't remember the name.
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Old February 13, 2014, 09:46 AM   #4
JimDandy
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Why couldn't it be an employment issue? I assume it's not an ideal test case, but couldn't someone who would fail a mental illness part of the 4473 form apply to be an armed bank/truck guard and then have standing when denied employment based on their mental health prohibition to firearms?

Though, as you said it's probably quite a reach.
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Old February 13, 2014, 09:53 AM   #5
Jay24bal
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Quote:
Why couldn't it be an employment issue? I assume it's not an ideal test case, but couldn't someone who would fail a mental illness part of the 4473 form apply to be an armed bank/truck guard and then have standing when denied employment based on their mental health prohibition to firearms?
***I am not a licensed attorney (although I did go to law school), but from what I recall, here is why I think this would not work. I am sure someone more qualified will be along to confirm or deny my understanding.***

The ADA allows for "reasonable accommodations" to be made for someone in order to perform their job (a special keyboard or chair in order to work at a desk). It means that if the accommodation is NOT an essential part of the job and the accommodation will NOT compromise performance, then the employer generally needs to comply.

In this case, being armed is a necessary requirement for the position, so they would not have to make an accommodation. It is not discriminatory to a mental health issue as someone with a felony conviction or any of the other excluding factors would also not able to perform this job since they can not own a gun and carrying a gun is a necessary requirement to perform the job.
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Old February 13, 2014, 09:54 AM   #6
steve4102
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Quote:
Why couldn't it be an employment issue? I assume it's not an ideal test case, but couldn't someone who would fail a mental illness part of the 4473 form apply to be an armed bank/truck guard and then have standing when denied employment based on their mental health prohibition to firearms?

.
PA State Trooper suffered from Depression and the court ruled he can carry a gun while on the job, but not off the job.

http://www.pennlive.com/midstate/ind...ve_gun_wh.html
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Old February 13, 2014, 03:15 PM   #7
KyJim
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Quote:
Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.
Would not a CCL be a benefit of a service of a public entity? Ditto for those places requiring a permit to own or buy a firearm or ammunition. Now, I'm a realist and know the DOJ is never going after a state for this but I know that the ADA also includes a private enforcement provision. The problem would be finding the right plaintiff and sympathetic facts. That's why I mentioned veterans with issues of PTSD but who have not actually injured or threatened anyone.
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