Executive order on background checks

[Frank Ettin]

Okay, I see it now. Thank you.

Links to the pre-publication copies of the filing. For discussion of what the proposed regulation say, those are documents folks should be citing.

 

[RetiredUSNChief]

Of course we really need to see the proposed regulations. Given the subject matter I'd expect various professional medical/psychiatric organizations to weigh in. Those groups were very involved formulation of the HIPAA rules and are usually quite protective of the interests of persons with mental or emotional issues. They are also quite influential.

To say that they're "quite influential" would be putting it mildly.

Doctor/patient confidentiality is something that both parties hold onto quite rabidly, and rightfully so. A violation of that trust means a breakdown in the ability of professionals to provide their health services to patients...indeed, it means fewer people who really NEED help will seek the professionals who can give it because of a lack of trust.

Yes, there will be quite involvement of the medical/psychiatric organizations over this one.

 

[bsctov]

What are you looking at? The OP didn't post a proposed regulation. He posted a news story.

If you are going to try to discuss the proposed regulations, you need to be reading the actual proposed regulations -- not some reporter's guess about what they say.

The proposed rules want to expand "Committed to a mental institution" to include "Outpatient" commitments as well. It's really simple, and this has the potential to be the most significant setback for the RTKBA that we have ever seen.

I think a meaningful discussion about this would be more productive than splitting hairs over what the OP's post contains. He posted a link which describes what they are intending to do, and a quick Google search provides hundreds of results saying the same thing, unless those are all total, and complete fabrications, I think were safe to at-least preliminary discuss the merits of this proposed change, and it's undoubtedly potentially devastating consequences.

 

[Frank Ettin]

What are you looking at? The OP didn't post a proposed regulation. He posted a news story.

If you are going to try to discuss the proposed regulations, you need to be reading the actual proposed regulations -- not some reporter's guess about what they say.

The proposed rules want to expand "Committed to a mental institution" to include "Outpatient" commitments as well. It's really simple, and this has the potential to be the most significant setback for the RTKBA that we have ever seen.

I think a meaningful discussion about this would be more productive than splitting hairs over what the OP's post contains. He posted a link which describes what they are intending to do, and a quick Google search provides hundreds of results saying the same thing, unless those are all total, and complete fabrications,...

What those links lead you to are news stories. Don't you understand the difference between a news story and a proposed regulation.

A regulation if/when adopted will be codified in the official federal Code of Federal Regulations. It will have the force of law. But its effect will be determined by its exact language -- not by what some reported said it was intended to do.

So if you want to discuss the regulations, you will need to work from the material which MErl linked to.

...I think were safe to at-least preliminary discuss the merits of this proposed change, and it's undoubtedly potentially devastating consequences.

But you're wrong. What a regulation will do, and its merits or lack thereof, is determinable only from its exact language. What some reporter might say it means or does is meaningless.

 

[HKGuns]

This will be abused, you can count on it. Start writing letters and burning up the phone lines now. Can't get your way through the legislative process, you go around it by issuing executive orders.

He's not the only that has done this but this needs to stop now. In fact the whole idea of an "Executive" order needs to be examined in context of the Constitution and separation of powers.

This goes for both parties who each have a habit of abuse.

 

[bsctov]

https://s3.amazonaws.com/public-inspection.federalregister.gov/2014-00039.pdf

 

[Frank Ettin]

...Can't get your way through the legislative process, you go around it by issuing executive orders....

These are not Executive Orders. These are regulations proposed by regulatory agencies (DOJ and DHHS). Regulations are proposed and adopted pursuant to authority set out in statutes enacted by Congress.

...In fact the whole idea of an "Executive" order needs to be examined in context of the Constitution and separation of powers...

Executive Orders, and regulations, are horse that long ago left the barn. they are part of our world, and we need to understand them and deal with them. They are not going away.

 

[JSH1]

You are fighting a losing battle Frank but I give you credit for trying. Some people don't want to know how our government works; they simply want to rant about the President and repeat what they heard on conservative talk radio.

 

[Glocktogo]

The .pdf document that bsctov just posted is THE exact language that will be posted in the Federal Register next week as a "Notice of Proposed Rulemaking". The NPRM is a pre-determination comment period for enacting regulatory requirements under which regulated parties must comply.

The operative language in question is detailed on page 9:

Although the term “committed to a
mental institution” is not defined in 18 U.
S.C. 922, the plain language of the statute
incorporates both inpatient and outpatient
commitments as the statute requires
commitment
to
a mental institution, not commitment
in
a mental institution.
See United
States v. B.H.,
466 F. Supp. 2d 1139, 1147 (N.D. Iowa 2006). Mental institutions include
mental health facilities and
the auxiliary mental health
services provided through those
facilities.

In other words, any institution certified to provide mental health treatment, whether inpatient or outpatient is covered. Keep in mind that "institution" is not strictly a 100% mental health facility or "nuthouse". So, any court ordered treatment that would be legally considered to fall under "mental health" MAY be included under that umbrella. That could include drug or alcohol treatment, anger management, depression, etc. These court orders MAY include drug courts, family courts, etc.

I doubt any of the other proposals in the document would cause any reasonable person to take issue. Everything after the middle of page 10 is administrative in nature and no proposals are enumerated thereafter.

I deliberately use the word MAY, because the federal administration or department responsible for regulatory compliance with the NPRM (should it be enacted unamended) will have the option to include or exclude certain facilities, courts and court ordered treatments, via a clarification letter from the Administrator of said federal administration or department.

The law is the "what", the regulation is the "how". Federal regulations may apply to local, state and federal entities, to include courts, boards, commissions or any other legal lawful authorities. They may also include any segment of the public that would be covered under the rules. In this case, the regulated entities would be courts, boards, commissions or any other legal lawful authorities. They would be required to report to NICS any additional adjudications that would fall under the rules clarification(s). This has always been the case, but considerable confusion exists over what exactly a covered adjudication currently is.

The "expansionism" concern here is how the feds would view court (or other lawful authority) ordered outpatient treatment that is currently excluded from NICS reporting. It could be used to "widen the net" as happened with domestic abuse under the Lautenberg Amendment. It could significantly expand the classification of prohibited persons in the "adjudicated as a mental defective or committed to a mental institution" to include persons who heretofore have not been prohibited.


On background, I am a regulatory compliance inspector for the federal government. My job is to investigate allegations of non-compliance with federal regulations and prepare cases that may be heard before an administrative law judge. The concerns bsctov posted are not without merit. Hopefully there will be constitutional law scholars (who side with the 2nd Amendment) posting comments to the Federal Register on this one.

 

[bsctov]

The .pdf document that bsctov just posted is THE exact language that will be posted in the Federal Register next week as a "Notice of Proposed Rulemaking". The NPRM is a pre-determination comment period for enacting regulatory requirements under which regulated parties must comply.

The operative language in question is detailed on page 9:



In other words, any institution certified to provide mental health treatment, whether inpatient or outpatient is covered. Keep in mind that "institution" is not strictly a 100% mental health facility or "nuthouse". So, any court ordered treatment that would be legally considered to fall under "mental health" MAY be included under that umbrella. That could include drug or alcohol treatment, anger management, depression, etc. These court orders MAY include drug courts, family courts, etc.

I doubt any of the other proposals in the document would cause any reasonable person to take issue. Everything after the middle of page 10 is administrative in nature and no proposals are enumerated thereafter.

I deliberately use the word MAY, because the federal administration or department responsible for regulatory compliance with the NPRM (should it be enacted unamended) will have the option to include or exclude certain facilities, courts and court ordered treatments, via a clarification letter from the Administrator of said federal administration or department.

The law is the "what", the regulation is the "how". Federal regulations may apply to local, state and federal entities, to include courts, boards, commissions or any other legal lawful authorities. They may also include any segment of the public that would be covered under the rules. In this case, the regulated entities would be courts, boards, commissions or any other legal lawful authorities. They would be required to report to NICS any additional adjudications that would fall under the rules clarification(s). This has always been the case, but considerable confusion exists over what exactly a covered adjudication currently is.

The "expansionism" concern here is how the feds would view court (or other lawful authority) ordered outpatient treatment that is currently excluded from NICS reporting. It could be used to "widen the net" as happened with domestic abuse under the Lautenberg Amendment. It could significantly expand the classification of prohibited persons in the "adjudicated as a mental defective or committed to a mental institution" to include persons who heretofore have not been prohibited.


On background, I am a regulatory compliance inspector for the federal government. My job is to investigate allegations of non-compliance with federal regulations and prepare cases that may be heard before an administrative law judge. The concerns bsctov posted are not without merit. Hopefully there will be constitutional law scholars (who side with the 2nd Amendment) posting comments to the Federal Register on this one.

On second thought, since federal law mostly defers to the individual state in question to determine what is or isn't a "commitment" for the purposes of a federal firearms disability, it may not be as bad as I previously thought.

Like in my home state of Ohio for example, to be "Committed to a mental institution" requires a specific legal proceeding that is laid out in the Ohio Revised Code.


Would them adding the bit about "Outpatient treatment" change that triggering criteria? I don't see how it would, but then again, with the government, you never really know how they will interpret something.

 

[gc70]

The "expansionism" concern here is how the feds would view court (or other lawful authority) ordered outpatient treatment that is currently excluded from NICS reporting. It could be used to "widen the net" as happened with domestic abuse under the Lautenberg Amendment. It could significantly expand the classification of prohibited persons in the "adjudicated as a mental defective or committed to a mental institution" to include persons who heretofore have not been prohibited.

The proposed rule appears to address the previously cited fear of being a 'prohibited person' on the basis of something similar to having once been required to take an anger management class.

Congress amended the GCA in 2008 to provide that federal departments or agencies may not provide records of individuals “adjudicated as a mental defective” or “committed to a mental institution” to the Attorney General for inclusion in the National Instant Criminal Background Check System (NICS) if:
(a) The adjudication or commitment was set aside or expunged, or the person was fully released or discharged from all mandatory treatment, supervision, or monitoring;

 

[Glocktogo]

Originally Posted by bsctov
On second thought, since federal law mostly defers to the individual state in question to determine what is or isn't a "commitment" for the purposes of a federal firearms disability, it may not be as bad as I previously thought.

Like in my home state of Ohio for example, to be "Committed to a mental institution" requires a specific legal proceeding that is laid out in the Ohio Revised Code.


Would them adding the bit about "Outpatient treatment" change that triggering criteria? I don't see how it would, but then again, with the government, you never really know how they will interpret something.

That's the real issue right there. Only the staff attorneys "advising" the Administrators can answer that one, at least until a definitive court ruling is issued.

Quote:
Originally Posted by Glocktogo
The "expansionism" concern here is how the feds would view court (or other lawful authority) ordered outpatient treatment that is currently excluded from NICS reporting. It could be used to "widen the net" as happened with domestic abuse under the Lautenberg Amendment. It could significantly expand the classification of prohibited persons in the "adjudicated as a mental defective or committed to a mental institution" to include persons who heretofore have not been prohibited.
The proposed rule appears to address the previously cited fear of being a 'prohibited person' on the basis of something similar to having once been required to take an anger management class.

Quote:
Congress amended the GCA in 2008 to provide that federal departments or agencies may not provide records of individuals “adjudicated as a mental defective” or “committed to a mental institution” to the Attorney General for inclusion in the National Instant Criminal Background Check System (NICS) if:
(a) The adjudication or commitment was set aside or expunged, or the person was fully released or discharged from all mandatory treatment, supervision, or monitoring;

Notice that only applies to federal agencies. Notice that nowhere in the proposal is there any mention of a removal or dispute process for a person entered into the prohibited person database. These are still unresolved issues that need to be addressed first.

 

[bsctov]

The proposed rule appears to address the previously cited fear of being a 'prohibited person' on the basis of something similar to having once been required to take an anger management class.

Only problem is that section only applies to adjudications or commitments that were made by a federal department or agency (i.e.. V.A and SSA etc..), not by a state/local court.

 

[Frank Ettin]

The .pdf document that bsctov just posted is THE exact language that will be posted in the Federal Register next week as a "Notice of Proposed Rulemaking"....

Yes, as is the material linked to in post 22. However, post 22 included links to both DOJ and DHHS NPRMs.

...The operative language in question is detailed on page 9:...

But that's not really the operative language. That is part of the discussion of the background for the regulation. While it might influence a court in applying the regulation, it will not, as currently set out, be part of the regulation as codified in the CFR.

The actual proposed text of the ATF regulation which, if adopted as proposed, will find its way into 27 CFR 478.11 is found beginning on page 16 of the DOJ NPRM:

§ 478.11 Meaning of terms.

* * * * *

Adjudicated as a mental defective.

(a) A determination, order, or similar finding by a court, board, commission, or other lawful authority that a person, as a result of marked subnormal intelligence, or mental illness, incompetency, condition, or disease:

(1) Is a danger to self or others; or

(2) Lacks the mental capacity to contract or manage his or her own affairs.​

(b) The term shall include—

(1) Those persons found not guilty by reason of insanity, mental disease or defect, or lack of mental responsibility by a court in a criminal case;

(2) Those persons found guilty but mentally ill by a court in a criminal case in a jurisdiction that provides for such a finding; and

(3) Those persons found incompetent to stand trial by a court in a criminal case.
​

(c) The term shall not include —

(1) Any person adjudicated by a department or agency of the Federal Government, if any of the conditions of section 101(c)(1) of the NICS Improvement Amendments Act of 2007 apply; or

(2) Any person who has been adjudicated and subsequently received relief from disabilities under 18 U.S.C. 925(c) or under a program authorized by section 101(c)(2) or section 105(a) of the NICS Improvement Amendments Act of 2007.​

* * * * *

Committed to a mental institution.

(a) A formal commitment of a person to a mental institution by a court, board, commission, or other lawful authority. The term includes an involuntary commitment to a mental institution for inpatient or outpatient treatment. The term includes an involuntary commitment for mental defectiveness, i.e., mental illness, to a mental institution. It also includes a commitment to a mental institution for other reasons, such as for drug use.

(b) The term does not include a person in a mental institution solely for observation or evaluation, a voluntary admission to a mental institution, or voluntary outpatient treatment.​

The term shall not include any person so committed by a department or agency of the Federal Government, if any of the conditions of section 101(c)(1) of the NICS Improvement Amendments Act of 2007 apply, or any person who has received relief from disabilities under a program authorized by section 101(c)(2) or section 105(a) of that Act or under 18 U.S.C. 925(c).

* * * * *

And just to be comprehensive, let's look at the proposed revised HIPAA rule (45 CFR 164.512) set out beginning on page 48 of the DHHS NPRM:

§ 164.512 Uses and disclosures for which an authorization or opportunity to agree or object is not required.

* * * * *

(k) * * *

(7) National Instant Criminal Background Check System. A covered entity may use or disclose protected health information for purposes of reporting to the National Instant Criminal Background Check System the identity of an individual who is prohibited from possessing a firearm under 18 U.S.C. 922(g)(4), provided the covered entity:

(i) Is a State agency or other entity that is, or contains an entity that is:

(A) An entity designated by the State to report, or which collects information for purposes of reporting, on behalf of the State, to the National Instant Criminal Background Check System; or

(B) A court, board, commission, or other lawful authority that makes the commitment or adjudication that causes an individual to become subject to 18 U.S.C. 922(g)(4).​

(ii) Discloses the information to:

(A) The National Instant Criminal Background Check System; or

(B) An entity designated by the State to report, or which collects information for purposes of reporting, on behalf of the State, to the National Instant Criminal Background Check System; and​

(iii)

(A) Discloses only the limited demographic and certain other information needed for purposes of reporting to the National Instant Criminal Background Check System; and

(B) Does not disclose diagnostic or clinical information for such purposes.​

* * * * *

 

[TennJed]

You are fighting a losing battle Frank but I give you credit for trying. Some people don't want to know how our government works; they simply want to rant about the President and repeat what they heard on conservative talk radio.

well said

 

[Glocktogo]

And that was all well and good, right up to the part where they state:

Committed to a mental institution.

(a) A formal commitment of a person to a mental institution by a court, board, commission, or other lawful authority. The term includes an involuntary commitment to a mental institution for inpatient or outpatient treatment. The term includes an involuntary commitment for mental defectiveness, i.e., mental illness, to a mental institution. It also includes a commitment to a mental institution for other reasons, such as for drug use.

Why would everything be so specific, and then suddenly in one sentence buried in that wall of text, go so vague as to say "for other reasons"? The example of "such as for drug use" is a red herring. It draws the uninformed to assume that this means illegal drug use (which is already covered elsewhere), when what it really means is that the inclusions are not entirely enumerated.

Remove that one sentence and it completely changes the scope and specificity of the NPRM.

 

[bsctov]

And that was all well and good, right up to the part where they state:



Why would everything be so specific, and then suddenly in one sentence buried in that wall of text, go so vague as to say "for other reasons"? The example of "such as for drug use" is a red herring. It draws the uninformed to assume that this means illegal drug use (which is already covered elsewhere), when what it really means is that the inclusions are not entirely enumerated.

Remove that one sentence and it completely changes the scope and specificity of the NPRM.

Perhaps they were comfortable with that vagueness because they intended "Adjudications" and "Commitments" to follow the respective state's laws regarding such procedure and it was an intended mechanic of the law.

For example, A judge telling you to get treatment for drug addiction is a far cry from being "Committed to a mental institution." if the law is read properly and as intended..

Now if you were subject to a commitment hearing under the mental health law in your state and the judge issued an order saying you had to attend inpatient/outpatient treatment for drug use, and it was an adversarial type hearing where you had an opportunity to respond and a right to counsel, that would be disqualifying under the new proposed language.


It's really all about due process.

If they require a commitment hearing under the mental health section of your respective state's law to trigger the firearms disability, outpatient or otherwise, then this is an appropriate exercise of power.

If they arbitrarily declare that all people who were required by a lawful authority such as a court to receive treatment for mental illness or "other reasons" are to be considered "Committed to a Mental Institution" that would be the very apex of insanity, and almost certainly unconstitutional. This reading would probably add 10-20 million to the "Prohibited" category.

 

[Glocktogo]

Perhaps they were comfortable with that vagueness because they intended "Adjudications" and "Commitments" to follow the respective state's laws regarding such procedure and it was an intended mechanic of the law.

For example, A judge telling you to get treatment for drug addiction is a far cry from being "Committed to a mental institution." if the law is read properly and as intended..

Now if you were subject to a commitment hearing under the mental health law in your state and the judge issued an order saying you had to attend inpatient/outpatient treatment for drug use, and it was an adversarial type hearing where you had an opportunity to respond and a right to counsel, that would be disqualifying under the new proposed language.

That was already a disqualifier as I stated above:

These prohibitions apply to any person who:
4
(1)
Has been convicted in any court of
a crime punishable by imprisonment for a
term exceeding one year;
(2)
Is a fugitive from justice;
(3)
Is an unlawful user of or addict
ed to any controlled substance;

 

[bsctov]

That was already a disqualifier as I stated above:

Yeah you're right, but the point I'm trying to make is about those "Other reasons". Drug use wasn't the best example, maybe if the judge required someone to get treatment for sex addiction or something that wouldn't make them prohibited otherwise like illegal drug use. In my opinion, even with the proposed regulation expanding this to outpatient treatment, it should still require a mental health style commitment hearing as prescribed by state law where applicable.

Also, the substance does not necessarily have to be a controlled substance, like if a person was addicted to chugging OTC cough syrup, and was committed for outpatient drug abuse treatment, the proposed regulation would include them as prohibited under "Committed to a Mental Institution" without triggering that unlawful user prohibition.

 

[Glocktogo]

Agreed. I can't see an effective case where a judge ordering treatment for sex addiction would merit the regulatory agency requiring reporting to NICS. The problem comes when you get closer to the fringes. Sizzurp or "purple drank" would be a fringe element. As always, there will be gray areas. The .gov gets to decide yea or nay until a court decides otherwise.

I will say this. The Lautenberg Amendment is a cautionary tale. There were plenty of folks who plead out to a lesser misdemeanor charge of domestic violence for MANY years, in order to avoid a long, costly court battle and possible felony incarceration so they could stay out of jail and retain their rights. Then along comes the Lautenberg Amendment and POOF! Overnight they became prohibited persons. People in law enforcement and the military lost their jobs and careers without Due Process. How many of them would've fought that battle if they knew that years later it would cost them dearly?

It bears keeping in mind when dealing with any medical treatment that could eventually be construed in a negative way under color of law.

 

[JohnBT]

"And those who need help may not seek it due to this type of BS. "

You can always pay cash and be treated under an assumed name. People have been avoiding the mental health system for years. Some with good reason based on experience and some for not so good reasons.

I think the president means well, he's just misguided. Or maybe rudderless.

 

[Arizona_Mike]

I'm wondering how an executive order can compel a state to do anything? Executive orders apply only to the executive branch, not to states, not to Congress, not to the Supreme Court, and not even to the Office of the Vice President.

Mike

 

[Frank Ettin]

I'm wondering how an executive order can compel a state to do anything. Executive orders apply only to the executive branch, not to states, not to Congress, not to the Supreme Court,...

If you have been following this thread it should be clear that we are not discussing Executive Orders.

The subject is two Notices of Proposed Rule Making (NPRM) relating to reporting of certain mental health information for NICS use and the definition of the sorts of mental health incidents which can disqualify one from possession of a gun under the GCA68. These NPRM are the first step in the adoption of regulations by DOJ and DHHS and involve proposed amendments to existing regulations under the GCA68 and HIPAA.

Links to those NPRMs are in posts 22 and 39.

We are discussing those NPRMs and the proposed regulations -- what they say, what they mean, how they might apply, what might be acceptable about them and what might be wrong with them.

We are NOT discussing general politics, liberal vs. conservative, why we like or don't like the current administration, why the system is or is not corrupt, or otherwise bellowing about the tyranny of it all.

Part of formal rule making is the inviting of public comment on the proposed regulations. Each of you may comment directly to the proposing agency on the proposed rules, and each NPRM tells you exactly how to go about it.

If any one of you finds something in one of the proposed rules to be objectionable, I urge you to comment. You will need to comply with the formal process described in the NPRMs. And a focused, disciplined discussion here might help you frame your comments.

 

[Derry 1946]

It would be preferable to have clearer language than "includes commitment to a mental institution for other reasons, such as for drug use." (Forgive me if the quote is imprecise: working from memory here.) Under normal rules of construction, "such as" indicates that drug use is not the only reason, but also that the other included reasons should be similar in kind. "Commitment" conceivably suggests "involuntary," but other sections explicitly say so, and this one does not. A court could potentially cognize a self-commitment to a drug program as falling within this section. What about prescription opioid dependence treatment as a condition of avoiding penalties on a DUI? This is a very common real-world phenomenon that could affect a lot of people. The various sections of the regs are not perfectly harmonized. There are increasingly a lot of adults on Adderall and/or Vyvanse for ADHD as a holdover from childhood diagnoses (made before they reached an age of consent to treatment). Are they going to become prohibited persons? It's a very big can of worms.

 

[Master Blaster]

it's really all about due process

Actually it's really all about expanding what can be reported to nics or LE and used to deny a sale or continued ownership.