The Giant NICS Improvement Act Thread Myth v. Reality

Bartholomew Roberts asks

On a final note, you seem very selective about the points of mine you address. Shall I take silence on those points as agreement?

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The answer is no -- you may take my silence to mean that there are only so many hours in the day and a few of them must be devote to something other than this.

When you say:

However, since the law also says that a state MUST have that process if it wants to receive funds from Congress, how would Congress defund the process without also ending the extra funding for data to NICS (which is the only thing that this bill changes from current law besides the appeal)?

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there are at least two problems you are ignoring. First, Congress can write the appropriation bill (required for funding) in such a way that funds for adding names to NICS will be on a different line item than funds for appeals and it probably will write it that way. Then, Congress can set the appeals line item budget to $0. if it desires. Of course the states could spend their money on appeals, but that wouldn't solve the second problem.

The second problem is that money must be allocated to the FBI for managing NICS and that allocation could just be given a Congressional direction in the appropriation that no money will be spent for the purpose of removing people from the list as a result of state mental health appeals (a la what they did for the BATFE appeals process). In that case the state appeal may find in favor of removing a person from NICS, but the FBI couldn't act to do so.

As to repeating myself, I will excuse that on the chance that the many misunderstanding of some of my comments result from my poor writing and that some clarity will come from repetition.

When you say concerning a standard for appeals:

As a result, whatever standard a state sets will be the standard used. Since the bill is not yet law and no state has yet established a relief from disability board under that law, it should be little surprise that there is no standard mentioned beyond "the person's record and reputation, are such that the person will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest."

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we're led to a glass empty/full impasse. I look at the words and wonder what type of elected/appointed state functionary would be inclined to go on the record saying that a person committed for mental illness and dangerousness should be granted relief because the relief wasn't contrary to the public interest. It is beyond my imagining what evidence would be required to convince a bureaucrat of the "public interest".

When you say:

Phil, we are just talking past each other now. Your position appears to be that it is better to have nothing at all than to have H.R. 2640 as currently written. My position is that while many of the things you mention would be nice to have, I would not say no to H.R. 2640 simply because it doesn't have them. A penny on the ground may not be much; but it still puts more money in your pockets than you had before.

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Thank you for explaining my position and thereby show we are still talking past each other. Your response is to my pointing out the asymmetry of the cases raised by you as a being inconsistent in my position on expungement state power. You don't even bother to grant that I'm not inconsistent, but change the topic to advance a "red herring" as my position that you can use to change the subject.

Actually, my position has been consistently that the promised appeal process is a mirage (I hope you know what that is) and gunnies are imagined by bill supporters to be in the desert dying of thirst so they will stampede in the direction of this image of water. But, there is no water. When you bend down to pick-up the penny, not only will you not have a new penny for your pocket, someone will kick you in the ass.

Then, Congress can set the appeals line item budget to $0. if it desires.

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Yes; but if states aren't going to be paid to do it, they are likely to suspend the appeals process entirely - meaning that we are back to where we are right now. Which is also the second issue, any state at any time can opt not to participate in the process. So as written, most of the power lies with the individual states to participate, administer relief, etc.

Actually, my position has been consistently that the promised appeal process is a mirage

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Well, then we disagree again for all the numerous reasons already elaborated.

Rules pertaining to mental health commitments in Maryland

It appears that Maryland does not commit individuals for mental health reasons without some form of a hearing.

The material below begins with Maryland's Public Health Article web page:
http://mlis.state.md.us/cgi-win/web_statutes.exe?ghg&10-601
and runs though the page at:
http://mlis.state.md.us/cgi-win/web_statutes.exe?ghg&10-633

Commitment rules are in Section 10-632.

Article - Health - General

§ 10-601.

(a) In this subtitle the following words have the meanings indicated.

(b) "Clinical social worker" means an individual who is licensed under Title 19 of the Health Occupations Article to practice clinical social work.

(c) "Licensed clinical professional counselor" means an individual who is licensed under Title 17, Subtitle 3A of the Health Occupations Article to practice clinical professional counseling.

(d) "Physician" means an individual who is licensed under Title 14 of the Health Occupations Article to practice medicine in this State.

(e) "Psychologist" means an individual who is:

(1) Licensed under Title 18 of the Health Occupations Article; and

(2) Listed in the National Register of Health Service Providers in Psychology.

§ 10-602.

A facility or a Veterans' Administration hospital may admit an individual, as provided in this subtitle.

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§ 10-616.

(a) (1) A certificate for involuntary admission of an individual under Part III of this subtitle shall:

(i) Be based on the personal examination of the physician or psychologist who signs the certificate; and

(ii) Be in the form that the Secretary adopts, by rule or regulation.

(2) The rules and regulations shall require the form to include:

(i) A diagnosis of a mental disorder of the individual;

(ii) An opinion that the individual needs inpatient care or treatment; and

(iii) An opinion that admission to a facility or Veterans' Administration hospital is needed for the protection of the individual or another.

(b) A certificate may not be used for admission if the examination on which the certificate is made was done:

(1) More than 1 week before the certificate is signed; or

(2) More than 30 days before the facility or the Veterans' Administration hospital receives the application for admission.

(c) A certificate may not be used for an admission if the physician or psychologist who signed the certificate:

(1) Has a financial interest, through ownership or compensation, in a proprietary facility and admission to that proprietary facility is sought for the individual whose status is being certified; or

(2) Is related, by blood or marriage, to the individual or to the applicant.

§ 10-617.

(a) A facility or Veterans' Administration hospital may not admit the individual under Part III of this subtitle unless:

(1) The individual has a mental disorder;

(2) The individual needs inpatient care or treatment;

(3) The individual presents a danger to the life or safety of the individual or of others;

(4) The individual is unable or unwilling to be admitted voluntarily; and

(5) There is no available, less restrictive form of intervention that is consistent with the welfare and safety of the individual.

(b) (1) In addition to the limitations in subsection (a) of this section, a State facility may not admit an individual who is 65 years old or older unless a geriatric evaluation team determines that there is no available, less restrictive form of care or treatment that is adequate for the needs of the individual.

(2) If admission is denied because of the determination of the geriatric evaluation team, the team shall:

(i) Inform the applicant; and

(ii) Help the applicant obtain the less restrictive form of care or treatment that the team finds would be adequate for the needs of the individual.

§ 10-618.

(a) A person who applies for involuntary admission of an individual shall have the immunity from liability described under § 5-623(b) of the Courts and Judicial Proceedings Article.

(b) A facility or Veterans' Administration hospital that acts in compliance with the provisions of Part III of this subtitle shall have the immunity from liability described under § 5-623(c) of the Courts and Judicial Proceedings Article.

(c) An agent or employee of a facility or Veterans' Administration hospital who acts in compliance with the provisions of Part III of this subtitle shall have the immunity from liability described under § 5-623(d) of the Courts and Judicial Proceedings Article.

§ 10-619.

Within 12 hours of notification by a physician or licensed psychologist who has certified an individual under Part III of this subtitle, a facility operated by the Department of Health and Mental Hygiene shall receive and evaluate the individual certified for involuntary admission if:

(1) The individual's involuntary admission is not limited by § 10-617 of this subtitle;

(2) An application for admission has been completed;

(3) A certifying physician or psychologist is unable to place the individual in a facility not operated by the Department; and

(4) The Department is unable to provide for the placement of the person other than in a facility operated by the Department.

§ 10-620.

(a) In Part IV of this subtitle the following words have the meanings indicated.

(b) "Court" means a district or circuit court of this State.

(c) "Emergency evaluee" means an individual for whom an emergency evaluation is sought or made under Part IV of this subtitle.

(d) (1) "Emergency facility" means a facility that the Department designates, in writing, as an emergency facility.

(2) "Emergency facility" includes a licensed general hospital that has an emergency room, unless the Department, after consultation with the health officer, exempts the hospital.

(e) (1) "Mental disorder" means the behavioral or other symptoms that indicate:

(i) To a lay petitioner who is submitting an emergency petition, a clear disturbance in the mental functioning of another individual; and

(ii) To the following health professionals doing an examination, at least one mental disorder that is described in the version of the American Psychiatric Association's "Diagnostic and Statistical Manual - Mental Disorders" that is current at the time of the examination:

1. Physician;

2. Psychologist;

3. Clinical social worker;

4. Licensed clinical professional counselor;

5. Clinical nurse specialist in psychiatric and mental health nursing (APRN/PMH); or

6. Psychiatric nurse practitioner (CRNP-PMH).

(2) "Mental disorder" does not include mental retardation.

(f) "Peace officer" means a sheriff, a deputy sheriff, a State police officer, a county police officer, a municipal or other local police officer, or a Secret Service agent who is a sworn special agent of the United States Secret Service or Department of Homeland Security authorized to exercise powers delegated under 18 U.S.C. § 3056.

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§ 10-622.

(a) A petition for emergency evaluation of an individual may be made under this section only if the petitioner has reason to believe that the individual:

(1) Has a mental disorder; and

(2) The individual presents a danger to the life or safety of the individual or of others.

(b) (1) The petition for emergency evaluation of an individual may be made by:

(i) A physician, a psychologist, a clinical social worker, a licensed clinical professional counselor, clinical nurse specialist in psychiatric and mental health nursing, psychiatric nurse practitioner, or a health officer or designee of a health officer who has examined the individual;

(ii) A peace officer who personally has observed the individual or the individual's behavior; or

(iii) Any other interested person.

(2) An individual who makes a petition for emergency evaluation under paragraph (1)(i) or (ii) of this subsection may base the petition on:

(i) The examination or observation; or

(ii) Other information obtained that is pertinent to the factors giving rise to the petition.

(c) (1) A petition under this section shall:

(i) Be signed and verified by the petitioner;

(ii) State the petitioner's:

1. Name;

2. Address; and

3. Home and work telephone numbers;

(iii) State the emergency evaluee's:

1. Name; and

2. Description;

(iv) State the following information, if available:

1. The address of the emergency evaluee; and

2. The name and address of the spouse or a child, parent, or other relative of the emergency evaluee or any other individual who is interested in the emergency evaluee;

(v) If the individual who makes the petition for emergency evaluation is an individual authorized to do so under subsection (b)(1)(i) of this section, contain the license number of the individual;

(vi) Contain a description of the behavior and statements of the emergency evaluee or any other information that led the petitioner to believe that the emergency evaluee has a mental disorder and that the individual presents a danger to the life or safety of the individual or of others; and

(vii) Contain any other facts that support the need for an emergency evaluation.

(2) The petition form shall contain a notice that the petitioner:

(i) May be required to appear before a court; and

(ii) Makes the statements under penalties of perjury.

(d) (1) A petitioner who is a physician, psychologist, clinical social worker, licensed clinical professional counselor, clinical nurse specialist in psychiatric and mental health nursing, psychiatric nurse practitioner, health officer, or designee of a health officer shall give the petition to a peace officer.

(2) The peace officer shall explain to the petitioner:

(i) The serious nature of the petition; and

(ii) The meaning and content of the petition.

§ 10-623.

(a) If the petitioner under Part IV of this subtitle is not a physician, a psychologist, a clinical social worker, a licensed clinical professional counselor, clinical nurse specialist in psychiatric and mental health nursing, psychiatric nurse practitioner, a health officer or designee of a health officer, or a peace officer, the petitioner shall present the petition to the court for immediate review.

(b) After review of the petition, the court shall endorse the petition if the court finds probable cause to believe that the emergency evaluee has shown the symptoms of a mental disorder and that the individual presents a danger to the life or safety of the individual or of others.

(c) If the court does not find probable cause, the court shall indicate that fact on the petition, and no further action may be taken under the petition.

§ 10-624.

(a) (1) A peace officer shall take an emergency evaluee to the nearest emergency facility if the peace officer has a petition under Part IV of this subtitle that:

(i) Has been endorsed by a court within the last 5 days; or

(ii) Is signed and submitted by a physician, a psychologist, a clinical social worker, a licensed clinical professional counselor, clinical nurse specialist in psychiatric and mental health nursing, psychiatric nurse practitioner, a health officer or designee of a health officer, or a peace officer.

(2) After a peace officer takes the emergency evaluee to an emergency facility, the peace officer need not stay unless, because the emergency evaluee is violent, a physician asks the supervisor of the peace officer to have the peace officer stay.

(3) A peace officer shall stay until the supervisor responds to the request for assistance. If the emergency evaluee is violent, the supervisor shall allow the peace officer to stay.

(4) If a physician asks that a peace officer stay, a physician shall examine the emergency evaluee as promptly as possible.

(b) (1) If the petition is executed properly, the emergency facility shall accept the emergency evaluee.

(2) Within 6 hours after an emergency evaluee is brought to an emergency facility, a physician shall examine the emergency evaluee, to determine whether the emergency evaluee meets the requirements for involuntary admission.

(3) Promptly after the examination, the emergency evaluee shall be released unless the emergency evaluee:

(i) Asks for voluntary admission; or

(ii) Meets the requirements for involuntary admission.

(4) An emergency evaluee may not be kept at an emergency facility for more than 30 hours.

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§ 10-631.

(a) The Administration shall prepare and provide each facility with standard forms that provide, in clear and simple words, at least the following information:

(1) Notice of the admission of the individual;

(2) The right of the individual to consult with a lawyer that the individual chooses;

(3) The availability of the services of the legal aid bureaus, lawyer referral services, and other agencies that exist for the referral of individuals who need legal counsel;

(4) The right of the individual to call or write a lawyer or a referral agency or to have someone do so on behalf of the individual; and

(5) In substance:

(i) Those provisions of this subtitle under which the individual is admitted;

(ii) The provisions of this section; and

(iii) The provisions of Subtitle 7 of this title.

(b) (1) Within 12 hours after initial confinement of an individual to any facility or a Veterans' Administration hospital, the form provided for in this section shall be read and given to the individual.

(2) If the individual does not understand the notice required by this section and its legal effect, the notice also shall be given to:

(i) The parent, guardian, or next of kin of the individual;

(ii) The applicant for an involuntary admission of the individual; and

(iii) Any other individual who has a significant interest in the status of the individual.

(3) In any event, if possible, notice of the admission shall be given to the parent, guardian, or next of kin of the individual. Notice of the admission of a minor shall be given as promptly as possible.

(c) The form shall be read in English or, if the individual does not understand English, in the language or manner best calculated to inform the individual of the applicable provisions of the law.

(d) The facility shall keep in the individual's records a copy of the form and a certification of the administrative head of the facility as to the compliance with this section.

(e) Notice under this section shall be given again to an individual when:

(1) A new application is made under this subtitle for a voluntary admission; and

(2) New certificates are made under this subtitle for an involuntary admission.

§ 10-632.

(a) Any individual proposed for involuntary admission under Part III of this subtitle shall be afforded a hearing to determine whether the individual is to be admitted to a facility or a Veterans'

Administration hospital as an involuntary patient or released without being admitted.

(b) The hearing shall be conducted within 10 days of the date of the initial confinement of the individual.

(c) (1) The hearing may be postponed for good cause for no more than 7 days, and the reasons for the postponement shall be on the record.

(2) A decision shall be made within the time period provided in paragraph (1) of this subsection.

(d) The Secretary shall:

(1) Adopt rules and regulations on hearing procedures; and

(2) Designate an impartial hearing officer to conduct the hearings.

(e) The hearing officer shall:

(1) Consider all the evidence and testimony of record; and

(2) Order the release of the individual from the facility unless the record demonstrates by clear and convincing evidence that at the time of the hearing each of the following elements exist as to the individual whose involuntary admission is sought:

(i) The individual has a mental disorder;

(ii) The individual needs in-patient care or treatment;

(iii) The individual presents a danger to the life or safety of the individual or of others;

(iv) The individual is unable or unwilling to be voluntarily admitted to the facility;

(v) There is no available less restrictive form of intervention that is consistent with the welfare and safety of the individual; and

(vi) If the individual is 65 years old or older and is to be admitted to a State facility, the individual has been evaluated by a geriatric evaluation team and no less restrictive form of care or treatment was determined by the team to be appropriate.

(f) The parent, guardian, or next of kin of an individual involuntarily admitted under this subtitle:

(1) Shall be given notice of the hearing on the admission; and

(2) May testify at the hearing.

§ 10-633.

(a) The Board of Review does not have jurisdiction to review the determination of a hearing officer on an involuntary admission under this subtitle.

(b) The determination of the hearing officer is a final decision of the Department for the purpose of judicial review of a final decision under the Administrative Procedure Act.

From the Judge David L. Bazelon Center for Mental Health Law about Civil Commitments:

http://www.bazelon.org/issues/commitment/positionstatement.html
Position Statement on Involuntary Commitment
Inpatient Commitment

The United States Supreme Court has termed involuntary civil commitment to a psychiatric hospital "a massive curtailment of liberty."1 The court has also emphasized that "involuntary commitment to a mental hospital, like involuntary confinement of an individual for any reason, is a deprivation of liberty which the State cannot accomplish without due process of law."2 Moreover, the court has found "no Constitutional basis for confining such persons involuntarily if they are dangerous to no one and can live safely in freedom."3 "[T]he mere presence of mental illness," the court held, "does not disqualify a person from preferring his home to the comforts of an institution."4

The Bazelon Center opposes involuntary inpatient civil commitment except in response to an emergency, and then only when based on a standard of imminent danger of significant physical harm to self or others and when there is no less restrictive alternative. Civil commitment requires a meaningful judicial process to protect the individual's rights.

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Outpatient Commitment

The Bazelon Center also opposes all involuntary outpatient commitment5 as an infringement of an individual's constitutional rights. Outpatient commitment is especially problematic when based on:

* a prediction that an individual may become violent at an indefinite time in the future;
* supposed "lack of insight" on the part of the individual, which is often no more than disagreement with the treating professional;
* the potential for deterioration in the individual's condition or mental status without treatment;
* an assessment that the individual is "gravely disabled."

The above criteria are not meaningful. They cannot be accurately assessed on an individual basis, and are improperly rooted in speculation. Neither do they constitute imminent, significant physical harm to self or others— the only standard found constitutional by the Supreme Court. As a consequence, these are not legally permissible measures of the need for involuntary civil commitment—whether inpatient or outpatient—of any individual.

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"The United States Supreme Court has termed involuntary civil commitment to a psychiatric hospital "a massive curtailment of liberty."

Which is why it's so blooming difficult to get someone involuntarily commited. Very, very, very difficult in most of the places I know of. Getting a 48-hour or 72-hour temporary detention order for evaluation isn't an insurmountable task, but getting the commitment is rare. Almonst anyone can avoid an involuntary order by agreeing to a voluntary commitment.

John

To JohnBT,
Suggest you re-read postings I made on the Chamberlain decision.

Which is why it's so blooming difficult to get someone involuntarily commited. Very, very, very difficult in most of the places I know of. Getting a 48-hour or 72-hour temporary detention order for evaluation isn't an insurmountable task, but getting the commitment is rare. Almonst anyone can avoid an involuntary order by agreeing to a voluntary commitment.

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John, that is been my experience, too. I spent 14 years in the mental health field and 3 of those were as an on-call crisis worker. There were only 2 instances where the person was involuntarily admitted.

We don't have to just depend on anecdotal observation to get some idea of the numbers involved in civil commitments, since the American Bar Association Commission on Mental and Physical Disability Law surveyed state jurisdictions in 2004 to compile a count.

This survey suggests 133,000+ involuntary civil commitments annually (not including forensic involuntary commitments for persons involved in the criminal justice system).

The Utah "Report to Health and Human Services Interim Committee On Susan Gall Involuntary Commitment Act," (General Session 2003 S.B. 27), by State of Utah Department of Human Services reports 562 individuals were committed under the definitions of mental illness and substantial danger for the period July 1, 2003 – June 30, 2004. This number is the same as appearing in the column for "# of People Committed Civilly (Annual)" in the ABA report confirming that report at least for Utah.

My experience with the appeal process... first hand knowledge of what is involved in a straight forward appeal of an obvious clerical error even when the reporting agencies agree that it is an error... leaves me with confident knowledge that once on this list for mental health reasons, it will be difficult, expensive, and take a very long time (1 year +) to get off of it.

You can talk all you want to about an appeals process that even approaches "justice", and you may even believe it, but I'm not buying it.

John, that is been my experience, too. I spent 14 years in the mental health field and 3 of those were as an on-call crisis worker. There were only 2 instances where the person was involuntarily admitted.

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Anecdotal. Statistically insignificant.

Anecdotal. Statistically insignificant.

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I never claimed otherwise, nor was my experience meant to be representative of the entire civil commitment system. My personal experience was that the majority of seriously mentally ill people never experience an involuntary admission and that the process was difficult. Given the number and variety of probate judges in my state, I am sure that there are some that are more likely to force someone into treatment.

The movement away from confining people to mental hospitals has been going on for decades. Because of some high profile incidents in my state, it seems to be moving back. I don't see this as a good thing, but there are many mentally ill people out there that need something more than once a week outpatient therapy. Additionally, people that suffer from a dual diagnosis, do have a higher chance of being violent than someone that is not mentally ill. The question then becomes how do we help these people and protect others? When does the system intervene? What do you do with a non-compliant person.

Personally, I don't think there should be an automatic deprivation of 2nd amendment rights. If there has to be, then it should be based on a specific finding that the person is very likely to injure themselves or someone else and that person should be afforded full due process. Additionally, it will be set to expire after a specific amount of time (say 6 months). If the court wants to renew it, then they need to start from the beginning.

"Anecdotal. Statistically insignificant."

Then read the report you linked. It backs up my statement based on over 30 years of observation, experience, etc.

John
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"Discussion

No matter how one analyzes the overall data, there has been a substantial decrease in the number of individuals who are involuntarily confined to mental facilities now, as compared to the 1950s, when it was reported that well over a half a million people were confined to public mental institutions."

- from page 4

Back in 1990 'Aviation watch lists' were compiled to keep terrorists and "air pirates" off airplanes and track drug smugglers and other fugitives. This system can be compared to the current NICS check. After 9/11 the lists were expanded significantly, as will happen with the NICS register if H.R. 2640 passes. There is no evidence that the expanded No Fly list has caught even one terrorist, as the terrorist (much like the domestic criminal who knows he will be flagged by NICS and therefore procures his firearm by private sale or theft) knows to bypass this net. If any terrorist has been stopped or caught with this system, the evidence is being withheld by the Dept of Homeland Security and other agencies. In fact during the years just after 9/11, terrorists were found to be concentrating their focus on private fields as well as barely secured Cargo Jet hubs instead of National Guard-fortressed International Airports.

In fact, many innocent Americans have been falsely flagged by the post 9/11 No Fly list. These include 4 year-olds, Congressmen, Veterans, etc. Some regular business travelers have had to resort to legally changing their name which matched or resembled a known terrorist or terrorist supporter, as years of filing for redress ultimately failed. Don't get me wrong, I am not advocating doing away with the No Fly list or current NICS system (although many rightly point out the NICS is back door registration) I will point out that those who think throwing hundreds of millions of tax dollars into expanding a federal register will somehow magically restore gun rights to those folks who legally qualify are extremely naive as to the ways of our land. Those of wealth and privilege maybe, but for the average Joe, forget about it.

Don't believe me ? Try obtaining a CLEO sign-off. Most all of us would legally qualify to purchase NFA items even after the exhaustive background check. Yet try getting your local CLEO to sign-off for it. The vast majority will refuse. Many collectors and Full-Auto aficionados have resorted to self-incorporating or forming a legal trust to get around this unjust right of refusal by CLEOS.

Some here have correctly cited how incredibly hard it is to obtain an involuntary commitment. For the person who asked me above, yes I to had a downstairs neighbor from hell for several years who suffered from Turrets syndrome plus Paranoid Schizophrenia verbally assaulting and threatening me on a daily basis. The police and mental health professionals could do nothing. If she was known to possess a gun on the other hand, I think she would have been committed as it was deemed to have been a close call even without weapons involved. In fact I would like to see a breakdown of those involuntarily committed by category of gun owners vs. non-gun owners. It may be telling.

In a perfect world of efficient incorruptible government agencies, H.R. 2640 makes sense in adding local updated info to a federal register with mandated relief hearings for those who presently don't have that. It has been my experience however that the end result of infusing tax dollars into an already bloated, inefficient agency will more closely mirror the airlines' No Fly list, with the number of citizens unjustly denied firearms increasing ten fold over the number of veterans lucky enough to win back their firearm rights.

However "blooming difficult" it may be to get a commitment, more than 133,000 are committed each year. In some states, just a couple of doctors can do a committment. In some states, illustrated by the Chamberlain case, an emergency order can be translated into a civil commitment if the person volunteers to treatment as an attempt to avoid a full commitment. In many states, people can be "committed" to outpatient treatment, but the commitment still counts as disabling of their right to arms.

I'd like to think of selfless and honest mental health professionals working for the betterment of poor disturbed individuals being committed only for their betterment and society's safety.

Unfortunately, that isn't always the case.

Some states insist that a hearing before a jury and judge be held for a civil commitment.

I've asked a dozen times why that couldn't be made a part of HR2640 as a standard for the purpose of taking a persons right to arms? Proponents of HR2640 haven't given an answer to that question.

Since being ill isn't a crime, not even for mental illness, and since it is possible to imagine mentally ill people recovering, why does the HR2640 bill not articulate a standard for recovering rights in its appeals process? Why don't we see a standard for how (process) appeals are to be held and what ground are there for successful appeals? Proponents of HR2640 are silent about this point too.

Since we have the example of Congress not providing money to fund appeals process at the BATFE, why do the proponents of HR2640 not agree that we need to place the appeals in the courts system in such a way that appeals cases will have to be heard by courts if the administrative process is defunded?

At best, proponents of HR2640 are hopelessly naive about the people they are working with (the gun-control snakes that are sponsors) and naive about how bureaucracies works.

Phil Lee said:

To JohnBT,
Suggest you re-read postings I made on the Chamberlain decision.

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Chamberlain was not an involuntary commitment as the Supreme Court defines it. That was the type of 72-hour emergency detention that JohnBT was referring to when he said "Getting a 48-hour or 72-hour temporary detention order for evaluation isn't an insurmountable task"

In some states, illustrated by the Chamberlain case, an emergency order can be translated into a civil commitment if the person volunteers to treatment as an attempt to avoid a full commitment.

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That wasn't what happened in Chamberlain. The court didn't say "because you voluntarily accepted treatment, we are going to treat it like you were involuntarily committed."

Instead the court used the logic that since an involuntary commitment required an adversarial hearing, Congress must have also meant to include temporary detentions not requiring an adversarial hearing by including the language "or adjudicated mentally ill" in the 1968 Gun Control Act. They then determined that the intent of Congress was supreme over the intent of the states that the process only be a temporary order that does not deprive people of rights.

I've asked a dozen times why that couldn't be made a part of HR2640 as a standard for the purpose of taking a persons right to arms?

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Because H.R. 2640 doesn't take anybody's right to bear arms. That has already been done by the 1968 Gun Control Act. H.R. 2640 doesn't change any of that - not the least because with Democrats in control of the House and Senate, repealing portions of the 1968 GCA is probably not a realistic goal (then again, I am apparently naive about how legislation and bureaucracies work, so take that with a grain of salt).

But hey, if H.R. 2640 gets defeated this year, I'm sure our post-2008 prospects will ibe better.

Why don't we see a standard for how (process) appeals are to be held and what ground are there for successful appeals?

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We do see a standard for process - "pursuant to state law"

In many states, people can be "committed" to outpatient treatment, but the commitment still counts as disabling of their right to arms.

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This is because the standard is involuntary commitment; not whether the commitment is inpatient or outpatient.

In many states, people can be "committed" to outpatient treatment, but the commitment still counts as disabling of their right to arms.

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Many of those states have the same criteria for involuntary outpatient as they do for involuntary inpatient.

Summary of State Statutes on Involuntary Outpatient Commitment

Bartholomew Roberts, I've failed again to be understood by you

The quibble that

Chamberlain was not an involuntary commitment

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is beyond belief. The essential point being lost in this quibble is that Chamberlain lost a court case effectively on whether he retained his rights to arms because he didn't have a hearing before a judge. That is, Chamberlain was held for mental health treatments for an emergency evaluation and volunteered for more treatments and this combination of events cost him his rights as effectively as a civil commitment would have.

The NRA and other proponents, (Bartholomew Roberts included) have stated that adjudications require such hearings. They don't today, and they won't if HR2640 passes.

To imply the contrary would be to lie.

The NRA has publicly stated that a couple of doctors can't commit a person -- that is wrong as I've shown for several states, Maine, NY, and Delaware are examples to the contrary. While some proponents may not have known about such commitments, it is hard for me to believe the NRA organization would be so ignorant. HR2640 doesn't make that any better.

When saying

We do see a standard for process - "pursuant to state law"

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Bartholomew Roberts isn't being naive, he's being deliberately obtuse.

It appears that Bartholomew Roberts may be counted among the people that isn't concerned about liberty issues for civil commitments and is willing to tolerate an attitude that "anything the states want is ok for taking liberty of accused people" and we'll get the feds to more effectively deny these people their liberty.

I know, I know . . . we'll only get the real crazy people like Cho and never get relatively innocent people. We can trust the judgment of MDs and other state mental health functionaries to do their best for us.

Sure we can!

And I remember Bartholomew Roberts' claim that HR2640 won't make things worse because these people are already banned. His claim is silly - right now people have protection under state privacy legislation against having their records released for the purpose of being placed on a NICS list. This bill will break those privacy protections for millions of people, many of whom were committed years ago and have not showing any violent tendencies.

His claim is silly, also, for what it does not include. There is no claim that HR2640 will do anything to reduce violent crime or suicides. Even if there were such a claim, it would be laughable given what we know about the ineffectiveness of gun control laws.

I love proponents of laws who say "we want to pass this useless law to put people on lists so that we can hassle some of them from time to time." That is what proponents of HR2640 are saying.

The sole real benefit to gun owners of HR2640 that proponents claim, that of an appeals process, is similarly laughable for reasons I've given earlier and not refuted.

My bad -- also there is the claim

. . . if H.R. 2640 gets defeated this year, I'm sure our post-2008 prospects will ibe better

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-- let's be sure to consider this with due reverence. This claim is that if we give the grabbers mad dogs some raw meat today, they will remember tomorrow and not try to rip additional chunks from our hide.

That isn't just naive -- that is something that I can't describe in polite company.

And yet, if anyone reading U.S. v. Chamberlain believes everything in it, the U.S.C. already bans persons who have been adjudicated a mental defective. Two separate classes are, and have been, covered by federal law: adjudicated and committed.

"18 U.S.C. ? 922(g)(4) separately bans persons who have been "adjudicated a mental defective" from owning firearms, in addition to those who have been "committed to a mental institution." In denying firearms to those "committed to a mental institution," Congress appears to have cast a wider net -- to "maximize the possibility of keeping firearms out of the hands of [,among others, persons suffering from mental illness]." See 114 Cong. Rec. 21784 (1968) (remarks of Congressman Celler). Requiring an adversary hearing and a judicial finding of mental illness would conflate two of the categories Congress singled out for the firearms prohibition."

Phil Lee said:

Bartholomew Roberts, I've failed again to be understood by you.

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No, I understood you just fine. What you said was not correct. I wanted to clarify that; because as you stated it, it sounds as if the Chamberlain court involuntarily committed someone in direct violation of Supreme Court rulings requiring an adversarial hearing and that is not what happened in Chamberlain. That sounds like a fine distinction and it is; but it is an important one to understand when discussing the issues created by the mentally ill prohibition of the 1968 Gun Control Act.

The essential point being lost in this quibble is that Chamberlain lost a court case effectively on whether he retained his rights to arms because he didn't have a hearing before a judge.

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Chamberlain did not have an adversarial hearing before a judge. Whether or not he would not have lost his rights if he had is another question entirely; but I am skeptical that someone who openly admits he pointed a firearm at his wife and threatened to kill himself is not going to be found a danger to himself or others at an adversarial hearing. I know we don't like to discuss the uncomfortable facts of Chamberlain when discussing the poor rulemaking behind it; but getting caught at the airport with your .270 rifle after telling your brother you are suicidal isn't a great way to start your case either.

That is, Chamberlain was held for mental health treatments for an emergency evaluation and volunteered for more treatments and this combination of events cost him his rights as effectively as a civil commitment would have.

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If we believe the court's reasoning, the fact that Chamberlain volunteered for more treatment had absolutely zero effect on their reasoning. That was the point I was trying to clarify. They emphasized the temporary detention and the language of the statute in their decision.

The NRA and other proponents, (Bartholomew Roberts included) have stated that adjudications require such hearings. They don't today, and they won't if HR2640 passes. To imply the contrary would be to lie.

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I have stated that in the past before I was aware of the Chamberlain facts. However, I would point out that so far only the First Circuit has actually removed somebody's rights under the 1968 Gun Control Act without an adversarial hearing. The Sixth Circuit approved of the reasoning used by the First Circuit; but the person in that case got an adversarial hearing and three psych evals. Meanwhile, in the Fifth and Eighth Circuits, that is not the case.

The NRA has publicly stated that a couple of doctors can't commit a person -- that is wrong as I've shown for several states, Maine, NY, and Delaware are examples to the contrary.

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This is where the distinction I was making earlier becomes important. A couple of doctors cannot involuntarily commit someone without an adversarial hearing in Maine, NY, and Delaware. They can however, issue a temporary detention order. In Maine, that temporary detention order will have the effect of depriving them of their Second Amendment rights if they are found to be a danger to themselves or others. In New York, that same rule applies at the district court level; but has not been ruled on by the Circuit Court of Appeals. In Delaware, the Attorney General of DE thinks the same rule would apply; but neither a district court or circuit court in that jurisdiction has agreed with him yet.

While some proponents may not have known about such commitments, it is hard for me to believe the NRA organization would be so ignorant. HR2640 doesn't make that any better.

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HR2640 doesn't change that at all - and nobody, including the NRA, has claimed that it does. All HR2640 does is set up an appeals process for those who determined to be "adjudicated mentally ill" or "involuntarily committed" and provide more money to the states to update their NICS records.

It appears that Bartholomew Roberts may be counted among the people that isn't concerned about liberty issues for civil commitments and is willing to tolerate an attitude that "anything the states want is ok for taking liberty of accused people"

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Well of course. You have to pass a test to become a THR mod to assure you will support tyranny over liberty at every turn. I absolutely flew by the kitten-stomping test! Despite my black heart, I promise to make every effort to try and understand your arguments and assume that we have a common interest in RKBA despite a different approach to it. I find this yields more informative discussion than just assuming that by your unreasonable disagreement with me, you are actually an agent of evil working towards some nefarious scheme.

His claim is silly - right now people have protection under state privacy legislation against having their records released for the purpose of being placed on a NICS list.

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Those people are breaking the law according to 18 USC 922(g)(4). The fact (which I will assume to be true, despite the lack of evidence offered to support it) that they may not have those records included into NICS (yet) doesn't change that. As Chamberlain and similar cases show, the fact that they don't appear on NICS also won't stop them from being prosecuted. Remember Vertz? He had been involuntarily committed in 1988 and had purchased several firearms since then. He wasn't caught by NICS - he was turned in by an informant in 2000 (twelve years later).

This bill will break those privacy protections for millions of people, many of whom were committed years ago and have not showing any violent tendencies.

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Which makes it all the more disappointing that their ownership of firearms will remain illegal whether those protections remain or not, since there is no way they can ever remove themselves from the list under current law.

His claim is silly, also, for what it does not include. There is no claim that HR2640 will do anything to reduce violent crime or suicides.

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I would suggest that silly is proposing an argument that nobody here ever made and then challenging that argument.

This claim is that if we give the grabbers mad dogs some raw meat today, they will remember tomorrow and not try to rip additional chunks from our hide.

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On the contrary, I am pointing out the fact that they will be back again in 2008 with the same bill if they don't pass it this year - just as they have come back every year since 2002. I am not promising that passing this bill will stop them from trying to amend or change it. At best, I would expect a two-year respite before they try to amend or change this deal and probably another two years before they actually get some traction behind it where we have to be concerned again.

However, the fact remains that unless next year's elections go much better than they look now, gun owners are in the strongest bargaining position they are likely to see for at least two years and probably four. If we aren't going to make this deal now and get that breathing room, we had better make sure we maintain control of Congress over the next four years or we are likely to get a worse deal in the future.

The Dopeler Effect

The Dopeler Effect is the tendency of really stupid ideas to APPEAR smarter if they come at you fast.

This law is another REALLY bad idea. It's just another battle in the war on the gun culture in the US.

We're losing- this law, the California microstamping and Condor habitat law, Ebay, the war on Reds in Idaho.....it's slipping away. The bureaucrats and antis are winning every little battle and scirmish.

New Hampshire's legal code dealing with mental health and involuntary admissions appears to be as good as it gets for protecting the rights of those accused of being mentally ill and a danger.

This code can be found (in part) at the link
http://www.gencourt.state.nh.us/rsa/html/x/135-c/135-c-mrg.htm

Even in NH, a person can be involuntarily admitted on an emergency basis by a single psychiatrist acting on a petition for admission. An involuntary emergency admission triggers a hearing by a state court. If the court decides no probable cause exists for the admission,

. . . all court documents pertaining to the petition, including the physician's or A.R.N.P's certificate, and the complaint shall be sealed and the involuntary emergency admission shall be annulled.
II. Upon entry of an order of annulment:
(a) The person whose record is annulled shall be treated in all respects as if the person had never been the subject of an involuntary emergency admission.
(b) In any application for employment, license or other civil right or privilege, or in any appearance as a witness in any proceeding or hearing, a person may be questioned about a previous involuntary emergency admission only in terms such as ""Have you ever been the subject of an involuntary emergency admission that has not been annulled by a court?''

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The abbreviation "A.R.N.P" is defined by

"Advanced registered nurse practitioner'' or ""A.R.N.P.''means an advanced registered nurse practitioner licensed by the board of nursing who is a psychiatric mental health specialist and who has at least 2 years' experience as an advanced registered nurse practitioner working with individuals who have mental illness, as defined in paragraph X of this section, and who meets any other criteria specified in rules adopted by the department.

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Involuntary emergency admission may be ordered by such a nurse practitioner.

Texas mental health law protects liberty

Texas seems to have mental health law designed to protect liberty rights. Definitions used in their mental health code are given in HEALTH & SAFETY CODE SUBTITLE C. TEXAS MENTAL HEALTH CODE CHAPTER 571. GENERAL PROVISIONS

An emergency detention is one of the six allowed mental health actions. The others are:
Voluntary admission, and the 4 court-ordered services:
Court-ordered temporary mental health services,
Court-ordered extended mental health services,
Order for protective custody,
Order for temporary detention.

The law governing Texas law for the emergency detention and the other mental health actions, except for voluntary admissions, all allow for involuntary admissions, but contain many basic liberty protecting provisions. So, for example, court-ordered temporary mental health services require a hearing, prior to admission, before a judge and with a right to a jury "unless the person is detained under an appropriate provision of this subtitle." That seems to mean that the judge must be convinced prior to the admission hearing that the patient "presents a substantial risk of serious harm to himself or others if not immediately restrained pending the hearing." If a patient is detained under a court-ordered temporary mental health service provision, a probable cause hearing is required within 72 hours to determine whether such detention is necessary. This probable cause hearing isn't the admissions hearing.

Texas has a clear statement of rights of people caught up in the mental health machinery in HEALTH & SAFETY CODE CHAPTER 576. RIGHTS OF PATIENTS SUBCHAPTER A. GENERAL RIGHTS. Under this provision in Texas law,

(a) The provision of court-ordered, emergency, or voluntary mental health services to a person is not a determination or adjudication of mental incompetency and does not limit the person's rights as a citizen, or the person's property rights or legal capacity.
(b) There is a rebuttable presumption that a person is mentally competent unless a judicial finding to the contrary is made under the Texas Probate Code.

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Wording similar to these general rights should be added to HR2640 so that Congress protects against states and federal courts having interpretations to the contrary. Especially, wording to require immediate probable cause hearings and hearings with a right to jury are needed in HR2640 to clarify "adjudications."

You can lose your right to arms from actions by one or more doctors in some states

As I've pointed out earlier (post to this thread by me on October 7th, 2007, 08:49 pm) , the Chamberlain case in the first Circuit Appeals Court, seems to allow disqualification of right to arms without requiring a hearing and with nothing more than evaluation by one or more doctors during an emergency mental health detention. This decision is binding for the first Circuit states of Maine, Massachusetts, New Hampshire and Rhode Island and the territory of Puerto Rico. That leaves your protection in those states to the states themselves.

I also pointed out (post to this thread by me on October 7th, 2007, 10:50 PM) Delaware's Attorney General has posted an opinion citing the Chamberlain case and binding that state's police to report as disqualified any one held longer than 24 hours for mental illness, even though Delaware is in the Third Circuit and not bound to the First Circuit's Chamberlain precedence.

That is, a person may undergo an emergency detention and observation in Delaware, but must be released within 24 hours or committed. A "provisional" commitment may be from a certificate by one psychiatrist in this 24 hour period. No hearing is required as made clear by the Attorney General's opinion

Since it is those persons prohibited by federal or state law from possessing firearms whose identities are intended to be reported to SBI, such a report should be made for any person concerning whom a §5003 psychiatrist's certificate has been executed, even if that person is discharged or voluntarily admitted prior to any judicial hearing.

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Effectively, people in Delaware can lose their right to arms at the hands of a single psychiatrist and without an adversarial hearing.

NY allows two MDs to involuntarily commit a person for up to 60 days without an adversarial hearing. Additionally, NYC has committed person for mental illness and dangerousness in a case where the only danger established was that the ill person might be attacked by others because of her behavior). Such a criteria, that a person isn't dangerous because they are likely to be aggressive, but because they are likely to provoke attacks, seems quite unfair to use to deny a right to arms.

Unless state law explicitly protects against admission for mental health reasons without a hearing as does Maryland (see my post to this thread on October 12th, 2007, 12:32 PM), e.g.,

Any individual proposed for involuntary admission under Part III of this subtitle shall be afforded a hearing to determine whether the individual is to be admitted to a facility or a Veterans'

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the right to arms can be toast from arbitrary actions by government. That seems to be true for NY.

I’ve had only a little time to review the law of the states in the first circuit, but it does appear to me that NH has the desired protections in state laws and the specific NH provision is quoted in my posting to this thread on October 15th, 2007, 10:11 PM (see also the NH code) .

Obviously, Maine didn't have sufficient protections for Chamberlain to insure he had a hearing before commitment (or more precisely for those who like to quibble, "to insure he had a hearing to protect against loss of right to arms").

Massachusetts doesn't seem to protect with a hearing against arbitrary loss of right to arms through mental health actions, but I found their laws hard to understand in the limited time I could spend so I suggest you examine for yourself:
GENERAL LAWS OF MASSACHUSETTS CHAPTER 123. MENTAL HEALTH.

An index of Rhode Island laws for TITLE 40.1 Mental health, retardation, and hospitals was reviewed. Some rights and protections for Rhode Island patients are describe by TITLE 40.1. I didn’t see any wording to protect against a Chamberlain like holding for patients held under a Rhode Island emergency certification which doesn’t require a hearing.

So, it appears three of the four First Circuit states do not have laws guarantying a person's right to hearing under mental health law prior to losing his right to arms. Only New Hampshire has suitable protection. Additionally, NY and Delaware do not have suitable protections.

In summery states appearing to have lack civil rights protection under their mental health law in that it is possible to lose a right to arms without having a hearing required are:
Maine
Massachusetts
Rhode Island
New York
Delaware

States appearing to have hearing protection under their mental health law are:
New Hampshire
Maryland (see my post to this thread on October 12th, 2007, 12:32 PM)
Texas (see my post to this thread on October 16th, 2007, 10:57 AM)

Obviously, this isn't a complete list -- I haven't had time to check all the states and I won't have time to check them all unless this continues to be an issue.

It seems to me that people who would claim you can lose your right to arms by the action of one or two doctors are more nearly correct than those claiming that “adjudication” requires a hearing.

It seems to me that people who would claim you can lose your right to arms by the action of one or two doctors are more nearly correct than those claiming that “adjudication” requires a hearing.

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Probably because your analysis is lacking in several factors. To point out a couple of ones that jumped out at me:

1. You included every state in the First Circuit on the "bad" list if the state did not also have a specific state law guaranteeing a hearing. However, on the "good" list, you listed only three states where you had looked up the state statutes, even though every state in the Fifth and Eighth Circuits has more extensive protections from disqualification by emergency detention due the Giardina and Hansel cases mentioned earlier.

2. You omitted the Sixth Circuit entirely from the "bad" list - although they approve of the reasoning of the First Circuit and any states that have hearing processes similar to Maine's might reach the same result there. This would have actually supported your point if you found more examples.

3. Outside of those four circuits, you have discussed only the state law of Delaware, New York and Maryland.

Now certainly that is a lot of work and I wouldn't expect you to do it; but that IS the type of work you WOULD need to do before you could say what I quoted above with any type of straight face. Randomly selecting your data points isn't a good way to make comparisons. At the very least, you should add the states of the Fifth and Eighth Circuits to the "good" list since we know they have that protection and it can be determined with minimal effort.

My lists are constructed from my personal observation from reliable sources. If your complaint is that I didn't accept information from you

. . . even though every state in the Fifth and Eighth Circuits has more extensive protections from disqualification by emergency detention due the Giardina and Hansel cases mentioned earlier.

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then you should be aware of my policy that I only speak about things that I know or conclude based on study. I don't invent things. When I do take information from others, I quote them as sources and I only use sources that I've become confident are responsible -- that make an effort to be correct.

Also, I quote my sources of information so that others can check that I've got it right -- that I don't misquote source information.

Being careful and looking for reliable sources takes time. There really is so much misinformation used by some and with no sourcing.

Now, if you think my quoted conclusion wrong, as suggested by your statement

. . . but that IS the type of work you WOULD need to do before you could say what I quoted above with any type of straight face

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you are invited to complete the list of states and to document my error. I've documented 5 states where it is certainly possible for gunnies to lose their right to arms with no hearing.

You've not really examined the state law in the other circuits to see whether something like NY or Delaware can happen even though the circuit has a different opinion than the first. So, you can't know what happens in these other states and you certainly haven't documented sources of information to allow other to check what you say about the other states and circuits.

Until you do some real work on the question, it looks to me like you are talking out of the wrong orifice.