Possible prohibited person?

[cleardiddion]

So, there's a friend of mine who wants to go to the range and all that jazz.
Normally, no problem...normally.

However back a good number of months ago she went to the hospital and said 'I'm suicidal with pain'. And they Baker Act'd her, big surprise. Basically she had become addicted to oxicodine (sp?) because of some chronic knee pain and her old man lost his job and thus the health insurance.

Like I said, that's a bit back and now she's saying she wants to go to the range and possibly get something for herself. I dunno, maybe it's all fine but at the very least letting her go to the range with me and shoot my guns seems like an intrusion into very grey territory, just the BA deal seems to be a big disqualifier.

What do you folks think?

 

[Bartholomew Roberts]

Here is a legal opinion from the Flordia Attorney General saying that if a Sheriff confiscates firearms pursuant to a Baker Act arrest, they may not continue to keep those firearms without a felony charge being filed:

http://www.myfloridalegal.com/ago.nsf/Opinions/C12EDF88F39CBC968525754B00721BB3

However, the above opinion only looks at state law and not federal law. There are generally two processes involving being involuntarily detained - a temporary/emergency detention and actually being involuntarily committed to a mental institution. Under previous Supreme Court rulings, you must have an adversarial hearing for the latter. The former does not require an adversarial hearing but must be a limited (temporary) detention.

When looking at the issue of whether you are disqualified under 18 USC 922(g), courts have taken two different approaches. The First Circuit has said that because Congress also included the words "adjudicated mentally ill" they clearly intended to reach a broader group than just those who were committed via adversarial hearing. They further determined that it didn't matter that the state didn't intend to deprive someone of their firearms rights, it was what Congress said that mattered. This view is shared by ONE New York District Court, the Attorney General of Delaware and has been cited approvingly by the Sixth Circuit (even though the case in question was a temporary detention with adversarial hearing).

The Fifth and Eighth Circuit on the other hand take this approach: “[t]here is nothing in 18 U.S.C. § 922(h) [now § 922(g) ] which indicates an intent to prohibit the possession of firearms by persons who had been hospitalized for observation and examination, where they were found not to be mentally ill. The statute makes it clear that a commitment is required.” United States v. Hansel, 474 F.2d 1120, 1123 (8th Cir.1973)."

Under this approach, someone must be committed under a state statute intending to effect an involuntary commitment. If the state did not intend to reach that level, then the statute is not effective to deprive you of your Second Amendment rights.

I do not know how Florida (11th Circuit) views this particular matter; but if they share the view of the First Circuit, then it is possible a temporary detention under the Baker Act could make her a prohibited person. If she was ever involuntarily committed (beyond a temporary detention), then she is a prohibited person.

 

[NavyLCDR]

http://ecfr.gpoaccess.gov/cgi/t/tex...iv8&view=text&node=27:3.0.1.2.3.2.1.1&idno=27

27 CFR 478.11:

Committed to a mental institution. A formal commitment of a person to a mental institution by a court, board, commission, or other lawful authority. The term includes a commitment to a mental institution involuntarily. The term includes commitment for mental defectiveness or mental illness. It also includes commitments for other reasons, such as for drug use. The term does not include a person in a mental institution for observation or a voluntary admission to a mental institution.

A person can be involuntarily committed to a mental institution for observation and still be allowed possession of a firearm. It is only when they have an actual written order for involuntary commitment for an indefinite period of time that causes them to be prohibited.

 

[Bartholomew Roberts]

A person can be involuntarily committed to a mental institution for observation and still be allowed possession of a firearm. It is only when they have an actual written order for involuntary commitment for an indefinite period of time that causes them to be prohibited.

But see U. S. vs. Chamberlain, 159 F.3d 656 (1st Cir. 1998).

The CFR you quoted defines "committed to a mental institution"; but it does not define "adjudicated as a mental defective"; however, 922(g)(4) prohibits anyone "who has been adjudicated as a mental defective or who has been committed to a mental institution;"

As seen in the Chamberlain case, some circuit courts take the position that an involuntary mental commitment for observation suffices to fufill the "adjudicated as mentally defective" portion of 922(g)(4) - even though in Chamberlain's case, he did not receive an adversarial hearing before a judge (not that it would have made much difference given the facts in that case). The First Circuit has upheld this view of the law and the Sixth Circuit has indicated in dicta that they agree with it.

 

[Sebastian the Ibis]

Bartholomew and Navy LT,

Wow. I just wanted to point out that your discussion here is perfect example of why I like the High Road so much. If you are ever in Miami PM me and I've got the first round.

 

[NavyLCDR]

Well, since the Baker Act contains the same wording as the Maine statute to wit:

The Baker Act allows for involuntary examination (what some call emergency or involuntary commitment). It can be initiated by judges, law enforcement officials, physicians or mental health professionals. There must be evidence that the person

* has a mental illness (as defined in the Baker Act) and
* is a harm to self, harm to others, or self neglectful (as defined in the Baker Act).

I would concede that she appears to be a prohibited person.

I am glad that Washington State law provides a way out:

RCW 71.05.150
Detention of persons with mental disorders for evaluation and treatment — Procedure.


(1) When a designated mental health professional receives information alleging that a person, as a result of a mental disorder: (i) Presents a likelihood of serious harm; or (ii) is gravely disabled; the designated mental health professional may, after investigation and evaluation of the specific facts alleged and of the reliability and credibility of any person providing information to initiate detention, if satisfied that the allegations are true and that the person will not voluntarily seek appropriate treatment, file a petition for initial detention. Before filing the petition, the designated mental health professional must personally interview the person, unless the person refuses an interview, and determine whether the person will voluntarily receive appropriate evaluation and treatment at an evaluation and treatment facility or in a crisis stabilization unit.

Also many states allow for involuntary commitment without an initial finding of mental illness, which clearly would not prohibit the person, according to 27 CFR 478.11.

Just another example of gun control laws only disarming law abiding citizens and doing nothing to protect them.....

 

[cleardiddion]

After reading through all this, as much I'd hate to do it, I might just avoid the grey areas and avoid taking her to the range.
It's really a million to one (at least in my mind) that something could happen but I don't need one thing becoming the straw that breaks the camel's back.

 

[Bartholomew Roberts]

I would concede that she appears to be a prohibited person.

If she were in Maine, she would be a prohibited person. If she were in Texas, she would not; because the precdent in the First Circuit is Chamberlain but precedent in the Fifth Circuit is Hansel.

I haven't been able to find what view the 11th Circuit (Florida) takes on this particular circuit split. Looking at the Florida Attorney General memo would suggest that it is possible they take the same view as the 5th Circuit; but since the memo only covers Florida state law and not federal law, it is difficult to say.

If you are ever in Miami PM me and I've got the first round.

Spend time in Miami and free booze? That's a tempting offer!