Mental Defectives and Firearms Ownership?

[WardenWolf]

It sounds to me like he had his right to due process of law violated, much like the person here who discovered, years later, that police had filed a restraining order against him for his now-wife that she had never requested. He should get his medical records, a lawyer, and appear before a judge to plead his case.

 

[bsctov]

The biggest and scariest part about it is this disability is permanent and unless he were to sue in federal court and claim his due process rights were violated and WIN....he's out of luck. It's cruel, abhorrently unconstitutional, and just down right wrong....BUT... its the law.

I would have him file a Voluntary appeal file and claim that his due process was violated, the BATFE takes this seriously believe it or not, and may overturn the denial after doing a bit of research. Otherwise he may have to sue.

 

[rainbowbob]

coloradokevin: You have received a lot of misinformation and/or information that is not relevant to Colorado.

You even received a post doubting your ability to execute your duties(?!)...Which you answered admirably and with remarkable restraint.

The statutes you quote have to do with commitment - but nothing to do with the effect on firearm possession in your state.

As I pointed out, I have found the statutes as they apply in my state.

Their may be many differences.

Please do your friend a favor and look up the firearm statutes in Colorado and specifically the section on how mental status effects the right of possession.

I hope you will let us know what you find.

 

[coloradokevin]

coloradokevin: You have received a lot of misinformation and/or information that is not relevant to Colorado.

The statutes you quote have to do with commitment - but nothing to do with the effect on firearm possession in your state.

As I pointed out, I have found the statutes as they apply in my state.

Their may be many differences.

Please do your friend a favor and look up the firearm statutes in Colorado and specifically the section on how mental status effects the right of possession.

I hope you will let us know what you find.

While I understand that the statutes vary greatly from state to state on many issues, am I mistaken in assuming that this is an issue of federal law when we are speaking of NICS purchase denials? Maybe there is a state statute that I haven't yet found on this subject, but I thought mental health issues related to firearms ownership were governed primarily by federal law.

And, I promise I'll report back with anything I do find on this subject

 

[Wile E Coyote]

^^^There are states that have agreed to the POC's for the NICS system, which means the contact for the FFL when calling in the 4473 is provided by that state. For those states that have not agreed to be POC's, then the FFL would call the feds in WV. If your state was a POC and maintained it's own parallel database, then decisions could be made independent of the federal NICS system. I honestly don't know how often this occurs in actual practice, however.
Edit: It seems I've just restated something mentioned in the very first reply to your opening post.

 

[Bartholomew Roberts]

As part of the NICS Improvement Act (H.R. 2640 in the 110th Congress), states must agree to set up a review process for those adjudicated mentally ill in order to continue receiving federal funds for NICS.

SEC. 105. RELIEF FROM DISABILITIES PROGRAM REQUIRED AS CONDITION FOR PARTICIPATION IN GRANT PROGRAMS.

(a) Program Described- A relief from disabilities program is implemented by a State in accordance with this section if the program--

(1) permits a person who, pursuant to State law, has been adjudicated as described in subsection (g)(4) of section 922 of title 18, United States Code, or has been committed to a mental institution, to apply to the State for relief from the disabilities imposed by subsections (d)(4) and (g)(4) of such section by reason of the adjudication or commitment;

(2) provides that a State court, board, commission, or other lawful authority shall grant the relief, pursuant to State law and in accordance with the principles of due process, if the circumstances regarding the disabilities referred to in paragraph (1), and 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; and

(3) permits a person whose application for the relief is denied to file a petition with the State court of appropriate jurisdiction for a de novo judicial review of the denial.

(b) Authority To Provide Relief From Certain Disabilities With Respect to Firearms- If, under a State relief from disabilities program implemented in accordance with this section, an application for relief referred to in subsection (a)(1) of this section is granted with respect to an adjudication or a commitment to a mental institution or based upon a removal of a record under section 102(c)(1)(B), the adjudication or commitment, as the case may be, is deemed not to have occurred for purposes of subsections (d)(4) and (g)(4) of section 922 of title 18, United States Code.

This is a relatively recent change to the law (2007). Prior to this, Congress had defunded any relief from disabilities for prohibited persons and once you were on the list, it was basically forever. So you'll need to check Colorado law to determine what process Colorado has set up. As it stands now, your friend appears to be a prohibited person and may not possess or purchase firearms or ammunition.

 

[rainbowbob]

...am I mistaken in assuming that this is an issue of federal law when we are speaking of NICS purchase denials?

W.E. Colyote beat me to it and provided a more succinct answer than I could have.

States may vary as to how and whether they report. The law in WA says they must report a person for an involuntary commitment of 14 days or longer.

 

[rainbowbob]

I found this:

Firearms Frequently Asked Questions

Question: Are there certain persons who cannot legally possess firearms?
Answer: Yes, any person who:

•Has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year.
•Is a fugitive from justice.
•Is a unlawful user of or addicted to any controlled substance.
•Has been adjudicated as a mental defective or has been committed to a mental institution.
•Is an alien illegally or unlawfully in the U.S. or an alien admitted to U.S. under a nonimmigrant visa.
•Has been discharged from the Armed Forces under dishonorable conditions.
•Having renounced their citizenship to the U.S.
•Is subject to a court order that restrains the person from harassing , stalking, or threatening an intimate partner; or
•Has been convicted of a misdemeanor crime of domestic violence.
[18 U.S.C. 922(g)]
•Was adjudicated as a juvenile for an act that would have constituted a felony if committed by an adult.

From what you have written, it isn't clear if your friend was "adjudicated as a mental defective". He may have been committed to a "mental institution" however briefly.

That statute is vague and entirely too broad. Persons suffering with mental illness don't have a very good lobby when it comes to firearm rights.

 

[rainbowbob]

I searched Colorado statutes and was frustrated (as perhaps you were) that I couldn't find anything specifically about probited persons.

 

[bsctov]

@ Bartholomew Roberts

The NICS improvement act doesn't explicitly require that states have a relief from disabilities program, it just says they won't get any grant money if they don't (Almost none have done so as of yet, Ohio being one of those that have not.)