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Old March 7, 2018, 06:20 PM   #1
riffraff
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Something that really bugs me with the talk of strengthening background checks

There's lots of talk lately about making agencies accountable for reporting mental health, military, and criminal records such that they make it into NICS.

There's also lots of talk about enforcing fraudulent statements from "try and buy" NICS denials, ie pressing charges, and retrieving guns if they were the result of a default proceed later turned into a deny.

What failed somewhere along the line in 2017 though was a bill (or some sort of proposal anyway, not sure I cannot seem to find where it's published now - please post link if you know what I'm talking about) that simply made it so the FBI was held accountable to answer for NICS denials, ie made it so they had to send a letter describing the reason, forced appeals to be completed within a reasonable period of time, and allowed such appeals to be brought to a judge at any federal court (ie one close to you).. Other than that the FBI obviously would rather not be held more accountable for mistakes, seemed like a very "common sense" idea versus the terrible NICS appeal process in place today where the FBI has no accountability.

Probably as often as the background check system fails and allows "bad guys" to get guns, someone else is denied based on mistaken identity or incorrectly evaluated (ie minor, not prohibiting) criminal records. Imagine what happens when you then start adding mental health information to the system - how many additional points of confusion could result.
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Old March 7, 2018, 07:01 PM   #2
Bartholomew Roberts
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Out of 1,923 unlawful possession cases investigated by ATF in 2010, about 26.5% were dropped because they weren’t actually prohibited people. Out of 4,184 cases declined by ATF, 11.5% of those were declined because they weren’t prohibited people (Source: https://www.ncjrs.gov/pdffiles1/bjs/grants/239272.pdf)

If we are seeing those kinds of error rates that late in the process, I’d say you have a valid concern about erroneous denials.
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Old March 7, 2018, 08:04 PM   #3
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I’m worried voluntary mental hospital admissions could count at some point.
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Old March 7, 2018, 08:55 PM   #4
Don P
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Quote:
’m worried voluntary mental hospital admissions could count at some point
It does count. If you admit yourself then get released and do not admit it on the 4473 you just lied and broke the law.
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Old March 7, 2018, 09:18 PM   #5
riffraff
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Oh it happens - the appeals process is usually backed up for 6 months or more, I cannot imagine very many people who are legitimately barred from firearms ownership are willing to bring attention to the fact they lied and tried to by a gun by filing an appeal and sending in their fingerprints . Most of those appeals are probably errors. Scary.

I wish I could find a link to the bill from last year and/or articles about it. Maybe someone else will.. There definitely was something in the works. Actually with of all the government crap that goes on that one didn't seem inflammatory to any party, was simply enforcing a reasonable appeals process.

Only makes sense to attach that sort of thing to existing bills aimed to fix NICS - make the system work to enforce existing laws and policies OK great, but then while it's being revamped fix the damn appeals process too.

There are people out there spending tens of thousands of dollars on legal fees to bring the FBI to court and they win, but it really shouldn't come to that; not to mention probably takes years.
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Old March 7, 2018, 10:10 PM   #6
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There are gaps that do need closed. I.e., the church shooter with military conviction for domestic should not of been able to buy a gun in the manner he did.

Mental health is a trickier subject. I am only going to say that serious trauma to the head should be reviewed by professionals. I had a neighbor once, nice older guy, then a major motorcycle crash, severe head truama, long time in a coma. Memory loss led to paranoia which has led to anger issues.
I've moved since, thankfully. Sitting with your back to a window that looks out on a gun toting angry man with mental misfires ain't relaxing.

But the bottom line, if you plan on mass murder, there are many options to skip the bgc.
Gun laws only effect the law abiding.
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Old March 7, 2018, 10:27 PM   #7
Evan Thomas
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Quote:
Originally Posted by Don P
Quote:
I’m worried voluntary mental hospital admissions could count at some point
It does count. If you admit yourself then get released and do not admit it on the 4473 you just lied and broke the law.
Actually, no, voluntary admissions don't count. The instructions for the relevant question (11.f) on the Form 4473 specifically exclude voluntary commitments:
Question 11.f.
...
Committed to a Mental Institution:
A formal commitment of a person to a mental institution by a court, board, commission, or other lawful authority. The term
includes a commitment to a mental institution involuntarily. The term includes commitment for mental defectiveness or mental illness. It also includes commitments for other reasons, such as for drug use. The term does not include a person in a mental institution for observation or a voluntary admission to a mental institution.
(my emphasis)
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Old March 7, 2018, 11:20 PM   #8
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Do have to wonder why forum asks if you use illegal drugs. If onesalready using an illicit substance I doubt they’d be honest enough to admit it anymore than walking into police station and telling the police they just did a speed ball.
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Old March 8, 2018, 12:42 AM   #9
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I wonder if they could charge you if you lied.. I mean seems like it would violate your 5a right to not self incriminate.

Or is that just work if you say nothing at all?

I think they put the questions there as traps as pretty much all of them at the bottom will get you denied there is no point processing it if the answer is YES.
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Old March 8, 2018, 06:53 AM   #10
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Originally Posted by Evan T
Actually, no, voluntary admissions don't count.
^^^^^ THIS ^^^^^
RTP (Read The Problem) as physicists are wont to say
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Old March 8, 2018, 07:54 AM   #11
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I'm worried about the vague discussion of "mental health" First off what exactly constitutes mental health? Is there some court system with an appeals process for these mental health decisions or is it some bureaucrat? Is my duty to show mental health a positive duty where I have to "prove" I am mentally healthy or a negative duty where dis-qualification is the duty of someone else and who? Secondly reporting likely violates HIPAA laws. To make it not just a legal issue reporting likely violates professional standards of confidentiality. IF you were to get it all sorted out, or even seem like it may be sorted out, you would discourage people from seeking professional help due to stigmatization.

This mental health rallying cry sounds good. Its not simple.
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Old March 8, 2018, 08:04 AM   #12
mehavey
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To make it not just a legal issue reporting likely violates professional standards of confidentiality. IF you were to get it all sorted out, or even seem like it may be sorted out, you would discourage people from seeking professional help due to stigmatization.
One of the reasons for the voluntary exemptions is just that... to not stigmatize those who wish to responsibly seek care.

-- But --

The legal duty to warn when "...patients may pose a danger to themselves or others...." is written into the law, and should be part of the NICS system
See here: http://www.ncsl.org/research/health/...y-to-warn.aspx
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Old March 8, 2018, 08:15 AM   #13
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Mehavey its been awhile since my classes on the matter (I went into industrial psychology) but from what I recall that duty to warn required a very credible and specific threat. It did not cover vague threats or statements "I sometimes feel like killing someone" that may be indicative of a general mental disorder or a general threat.
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Old March 8, 2018, 10:03 AM   #14
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Both sides want scapegoats. music, movies, games ect. Mental health is one too. Truth is most people with mental illness are more likely to be victims of gun violence than commit it. Certain conditions warranting uncontrolled psychosis I can understand but those are the rare extremes. Depression and anxiety you’re still in control of your actions and if you harm others that’s your own moral compass. The same people who claim they want to protect minorities and the ones targeted most in society also want to disarm them, ironic.
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Old March 8, 2018, 10:11 AM   #15
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The emphasis on mental health is from some gun organizations who want to shift the blame from the guns per se. There was a small push to blame the autism spectrum after one incident.

Antigun folks want to declare as many people as they can to be unfit to have guns.

Really crappy political agendas from both sides.
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Old March 8, 2018, 10:20 AM   #16
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Many with autism and aspergers are just socially awkward and not violent. It depends on the individual case. I expected better from manufacturers and “supporters” of second amendment. Really want people to care more about truth and what’s right than sucking up to collective ideologies that ironically make their ideology look worse.
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Old March 8, 2018, 10:26 AM   #17
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Quote:
CoffeeShooter I’m worried voluntary mental hospital admissions could count at some point.
It would require a change in Federal law.



Quote:
Don P It does count. If you admit yourself then get released and do not admit it on the 4473 you just lied and broke the law.
Never actually read those questions on the Form 4473 have ya?


Quote:
Bluecthomas Gun laws only effect the law abiding.
This.



Quote:
CoffeeShooter Do have to wonder why forum asks if you use illegal drugs. If onesalready using an illicit substance I doubt they’d be honest enough to admit it anymore than walking into police station and telling the police they just did a speed ball.
All those questions on the Form 4473 are the prohibitions from possessing a firearm. While it may seem silly or obvious, the reason for those questions is it allows a criminal charge for lying. If you are a felon, a user of illegal drugs, etc and you lie on the 4473, ATF can charge you with a violation of Federal law.


Quote:
JoeSixpack I wonder if they could charge you if you lied.. I mean seems like it would violate your 5a right to not self incriminate.
They can and do. See US vs Abramski. He lied on Question 11 "Are you the actual buyer/transferee".

The 5th Amendment does not prohibit voluntary self incrimination. No one forces a prohibited person to buy from a licensed dealer and fill out the form 4473.
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Old March 8, 2018, 10:29 AM   #18
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The problem with changing mental health standards is that we already have one. Non-voluntary commitments SHOULD result in a court record - as others have noted its the court process that is being questions on the current form 4473. Court records should be public record and available for a "background check"

What if we institute a tougher standard? You move one step down the road where, on order to purchase a firearm, you have a positive duty to show you are mentally healthy or at least do not exhibit mental health conditions.

"No" doctor is signing off on "Patient X is mentally healthy and does not represent an increased danger to others through firearm ownership" You might get some who will sign off "Patient X does not, at time of examination, exhibit symptoms of the following mental health conditions (enumerated list)" I say "no" doctor. Being passingly familiar with the medical requirements of the MI medical marijuana laws through a friend who worked in that industry doctor shopping was not unheard of. Some doctors were setting up "offices" in hotel rooms with 15 minute appointments to sign off on medical issues for the card. When the first "mental health" hurdles fail to stop violence expect more to be imposed until the limitations become onerous for near everyone.

As Glenn noted this rush to claim "mental health" issues and offer them up as a way to limit rights weakens our argument overall. What mental health issues are severe enough that, outside of the court system, we should be limiting rights? If I proposed a mental health questionnaire for voting it would fail with precedent and prejudice.

Further I maintain such regulation would either become so onerous that it severely limited the rights of everyone beyond the "targeted" group or so ineffective as to present nothing but an inconvenience.
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Old March 8, 2018, 10:54 AM   #19
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I agree the mental health part - a scary slippery slope.

If you look at a hardcore gun grabbing state like MA for instance, one of the things they did purposefully to remove gun rights from as many people as possible is they setup their whole criminal system such that many minor crimes that might even be a violation in other states carry a 2.5 year maximum jail sentence. A first time DWI, soliciting a prostitute, many others. Does anybody ever even do jail time for those crimes? Oh god no, some of such crimes have never resulted in more than a $1000 fine in the history of the state, but they are "felonies" on paper just the same when run through NICS.

*not* trying to start an argument over criminal acts being OK, but I tend to think first time DWI or getting a hooker does not make someone any more likely to misuse a gun and certainly shouldn't carry a 2.5 year jail sentence (especially if jail time is never even imposed)... versus armed robbery or violent crime of which I think certainly does pose a higher risk which is why such laws are there.

That sort of stuff sounds a lot like what they would do to non whites in certain places, to keep them from voting for instance - at any opportunity make them criminals and strip certain rights as a result.

What happens when MA becomes savvy to removing guns from people via "mental health" considerations? They could very easily get all sorts of records from all sorts of mental health facilities and misuse/misinterpret/overstate them in a variety of ways to cut people off from firearms ownership. And I think they very well may do it some day given the opportunity. At that point the appeals process would be even more important than it is now.
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Old March 8, 2018, 11:00 AM   #20
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Very much agree riffraff. I tend to be very left leaning myself but have friends who lean left and right. Fellow left wingers claim to support small guy and working class but then look at me weird when I say any attempt at disarming us is classist and removes marginalized groups ability to fend off attackers. Don’t want a political argument of left vs right but would be nice to be better equipped to explain why gun rights are necessary for a free society no matter where you lean. Hard to convince certain types they’ve been misled about guns
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Old March 8, 2018, 01:43 PM   #21
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Quote:
Originally Posted by dogtown tom View Post
All those questions on the Form 4473 are the prohibitions from possessing a firearm. While it may seem silly or obvious, the reason for those questions is it allows a criminal charge for lying. If you are a felon, a user of illegal drugs, etc and you lie on the 4473, ATF can charge you with a violation of Federal law.
Are they prohibitions from possessing or buying? Let's say a person was not using an illegal drug at the time he filled out the Form 4473, and then started using a drug a year later. Did he lie on the Form 4473? I believe there has to be a conviction or positive drug test in the year prior to purchase to assume he was a user at the time of purchase, but no such requirements after purchase.

Same scenario, if the person started using drugs a year after the purchase, is he now a prohibited person? If so, does that mean he cannot posses and must either dispose of his gun or stop using the drug, or just cannot purchase another gun since to do so would require lying on the Form 4473?
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Old March 8, 2018, 03:18 PM   #22
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I highly doubt anyone has ever been prosecuted for lying on the form for drug use. Denied rarely, but even those with dangerous & serious criminal records typically escape actual prosecution...

My belief as to why so few are prosecuted after a denial (and why they are never prosecuted federally like they could/should and it's only states that ever even follow up) is because the denials are so often wrong it would constantly send authorities on wild goose chases and would only serve to prove what a bad job the FBI does with this.

Anyway back to the point - what they use to determine drug use are criminal convictions (ie convictions that are < 2 year max sentence so are not alone prohibiting) and they count back a certain number of years, more years if there is more of a pattern, is my understanding. Specifically 5 years clear of any criminal evidence of drug use and they are not supposed to consider it but I think dealing with NICS can be a crap shoot when it comes to this sort of thing.. Another point is you might not be lying on the form at all but they could deny you for drug use based on what I just stated.

The federal government has a hair across it's ass on any drug use, seems like the ideas in reefer madness continue to live on within some branches. I do not smoke weed but could really care less if a truck driver, captain of a boat, airline pilot, etc.. smoked some weed last friday night when they were not working. To me it's as impertinent as to whether they had 3 glasses of wine but to the federal government it's a big no no and in many professions to have a license they force you into their drug test pool. Actually even for "able seamen" they force drug tests - who really cares if the mate scrubbing decks on a charter boat smokes weed anyway, well the feds do. Dumb.
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Old March 8, 2018, 03:23 PM   #23
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From what I've read, the NICS itself checks the buyer for violations of questions 11b-11i, 12b, 12c and a few others. So the questions on the 4473 are redundant at best, and entrapment at the worst. Some of the questions are written in legalese and even require clarification... nearly 3 pages of them (also containing legalese) on pages 4-6.

Regarding the issue of illegal substances... To avoid opening a can of worms I won't question any issues related to the legal ones.

Last edited by BBarn; March 9, 2018 at 06:17 AM. Reason: spelling errors
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Old March 8, 2018, 05:36 PM   #24
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ref: "domestic violence" making a person an outlaw for life.

Just remember in some localities thumping the table with a fist during a verbal argument can get a person convicted of DV.

It ain't just about black eyes.
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Old March 8, 2018, 07:01 PM   #25
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Quote:
TomNJVA Are they prohibitions from possessing or buying?
Both. See https://www.atf.gov/firearms/identif...ibited-persons



Quote:
Let's say a person was not using an illegal drug at the time he filled out the Form 4473, and then started using a drug a year later. Did he lie on the Form 4473?
Seriously?




Quote:
I believe there has to be a conviction or positive drug test in the year prior to purchase to assume he was a user at the time of purchase, but no such requirements after purchase.
Not at all correct. Simply being a USER of an illegal drug is a prohibiting factor and says so right on the Form 4473.



Quote:
Same scenario, if the person started using drugs a year after the purchase, is he now a prohibited person?
Yes.



Quote:
If so, does that mean he cannot posses and must either dispose of his gun or stop using the drug, or just cannot purchase another gun since to do so would require lying on the Form 4473?
He cannot be in possession of a firearm period.



Quote:
riffraff I highly doubt anyone has ever been prosecuted for lying on the form for drug use.
It doesn't change the fact that it is a Federal crime.


Quote:
Denied rarely, but even those with dangerous & serious criminal records typically escape actual prosecution...
Can you cite a source for this? I think it pretty rare for "dangerous & serious" criminals with a record to even attempt to acquire a firearm through a licensed dealer....because they sure as heck would be prosecuted.


Quote:
My belief as to why so few are prosecuted after a denial (and why they are never prosecuted federally like they could/should and it's only states that ever even follow up) is because the denials are so often wrong it would constantly send authorities on wild goose chases and would only serve to prove what a bad job the FBI does with this.
You make the faulty assumption that a denial means the person is prohibited. That's not necessarily true. I've had around a dozen denied transactions in the last nine and a half years.....all but one were overturned on appeal.

ATF/FBI know which persons they want to prosecute and they do.



Quote:
Anyway back to the point - what they use to determine drug use are criminal convictions (ie convictions that are < 2 year max sentence so are not alone prohibiting) and they count back a certain number of years, more years if there is more of a pattern, is my understanding. Specifically 5 years clear of any criminal evidence of drug use and they are not supposed to consider it but I think dealing with NICS can be a crap shoot when it comes to this sort of thing.. Another point is you might not be lying on the form at all but they could deny you for drug use based on what I just stated.
Wrong.
Felonies or any other crime where the judge could imprison you for more than one year.



Quote:
The federal government has a hair across it's ass on any drug use, seems like the ideas in reefer madness continue to live on within some branches. I do not smoke weed but could really care less if a truck driver, captain of a boat, airline pilot, etc.. smoked some weed last friday night when they were not working. To me it's as impertinent as to whether they had 3 glasses of wine but to the federal government it's a big no no and in many professions to have a license they force you into their drug test pool. Actually even for "able seamen" they force drug tests - who really cares if the mate scrubbing decks on a charter boat smokes weed anyway, well the feds do. Dumb.
Don't like the law? Then change it.




Quote:
BBarn From what I've read, the NICS itself checks the buyer for violations of questions 11b-11i, 12b, 12c and a few others.
NICS checks the buyers name, etc vs a list of prohibited PERSONS, not crimes.




Quote:
So the questions on the 4473 are redundant at best, and entrapment at the worst.
No, as I wrote above, it requires a buyer to answer truthfully, correct and complete. If there was no penalty for lying on a Federal form, gun stores would be inundated with buyers wanting to test the system to see if they could get a gun.

It's not anywhere close to entrapment. "Entrapment" occurs when a law enforcement officer induces a person to commit a criminal offense that the person would have otherwise been unlikely or unwilling to commit. Gun dealers aren't law enforcement officers.



Quote:
Some of the questions are written in legalize and even require clarification... nearly 3 pages of them (also containing legalize) on pages 4-6.
Horsehockey.
Anyone who can't understand the questions on a Form 4473 needs to repeat middle school.
The problem with understanding the questions is the fact that 99% of buyers don't bother reading the questions, much less the instructions to those questions. Not a day goes by that I don't have to hand the form back to a buyer and ask them to give me an answer on 10a "Ethnicity.....DESPITE the explicit instructions that say both 10a and 10b must be answered.
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