Law – Page 3 – Shall Not Be Questioned

Analysis of S.2002: “Mental Health and Safe Communities Act of 2015”

For the past few days, we’ve been waiting to see the text of Senator Cornyn’s bill. It has not appeared yet at Thomas, but I managed to find it in the Congressional Record. It is not a short bill, but quite a lot of it is really just related to mental health, and has nothing to do with gun laws. I find the NRA’s statements about the bill to be credible. S.2002 would give us, for the first time since the Gun Control Act passed, a very precise definition of what it means to be “adjudicated.” The meat of the bill is here:



SEC. 302. DEFINITIONS RELATING TO MENTAL HEALTH.

  (a) Title 18 Definitions.--Chapter 44 of title 18, United 
  States Code, is amended--
  (1) in section 921(a), by adding at the end the following:
``(36)(A) Subject to subparagraph (B), the term `has been 
  adjudicated mentally incompetent or has been committed to a 
  psychiatric hospital', with respect to a person--
``(i) means the person is the subject of an order or 
  finding by a judicial officer, court, board, commission, or 
  other adjudicative body--

``(I) that was issued after--

``(aa) a hearing--
``(AA) of which the person received actual notice; and
``(BB) at which the person had an opportunity to 
  participate with counsel; or
``(bb) the person knowingly and intelligently waived the 
  opportunity for a hearing--
``(AA) of which the person received actual notice; and
``(BB) at which the person would have had an opportunity to 
  participate with counsel; and

``(II) that found that the person, as a result of marked 
  subnormal intelligence, mental impairment, mental illness, 
  incompetency, condition, or disease--

``(aa) was a danger to himself or herself or to others;
``(bb) was guilty but mentally ill in a criminal case, in a 
  jurisdiction that provides for such a verdict;
``(cc) was not guilty in a criminal case by reason of 
  insanity or mental disease or defect;
``(dd) was incompetent to stand trial in a criminal case;
``(ee) was not guilty by reason of lack of mental 
  responsibility under section 850a of title 10 (article 50a of 
  the Uniform Code of Military Justice);
``(ff) required involuntary inpatient treatment by a 
  psychiatric hospital for any reason, including substance 
  abuse; or
``(gg) required involuntary outpatient treatment by a 
  psychiatric hospital based on a finding that the person is a 
  danger to himself or herself or to others; and
``(ii) does not include--

``(I) an admission to a psychiatric hospital for 
  observation; or
``(II) a voluntary admission to a psychiatric hospital.

``(B) In this paragraph, the term `order or finding' does 
  not include--
``(i) an order or finding that has expired or has been set 
  aside or expunged;
``(ii) an order or finding that is no longer applicable 
  because a judicial officer, court, board, commission, or 
  other adjudicative body has found that the person who is the 
  subject of the order or finding--

``(I) does not present a danger to himself or herself or to 
  others;
``(II) has been restored to sanity or cured of mental 
  disease or defect;
``(III) has been restored to competency; or
``(IV) no longer requires involuntary inpatient or 
  outpatient treatment by a psychiatric hospital; or

``(iii) an order or finding with respect to which the 
  person who is subject to the order or finding has been 
  granted relief from disabilities under section 925(c), under 
  a program described in section 101(c)(2)(A) or 105 of the 
  NICS Improvement Amendments Act of 2007 (18 U.S.C. 922 note), 
  or under any other State-authorized relief from disabilities 
  program of the State in which the original commitment or 
  adjudication occurred.
``(37) The term `psychiatric hospital' includes a mental 
  health facility, a mental hospital, a sanitarium, a 
  psychiatric facility, and any other facility that provides 
  diagnoses or treatment by licensed professionals of mental 
  retardation or mental illness, including a psychiatric ward 
  in a general hospital.''; and
  (2) in section 922--
  (A) in subsection (d)(4)--
  (i) by striking ``as a mental defective'' and inserting 
``mentally incompetent''; and
  (ii) by striking ``any mental institution'' and inserting 
``a psychiatric hospital''; and
  (B) in subsection (g)(4)--
  (i) by striking ``as a mental defective or who has'' and 
  inserting ``mentally incompetent or has''; and
  (ii) by striking ``mental institution'' and inserting 
``psychiatric hospital''.
  (b) Technical and Conforming Amendment.--The NICS 
  Improvement Amendments Act of 2007 (18 U.S.C. 922 note) is 
  amended--
  (1) by striking ``as a mental defective'' each place that 
  term appears and inserting ``mentally incompetent'';
  (2) by striking ``mental institution'' each place that term 
  appears and inserting ``psychiatric hospital'';
  (3) in section 101(c)--
  (A) in paragraph (1), in the matter preceding subparagraph 
  (A), by striking ``to the mental health of a person'' and 
  inserting ``to whether a person is mentally incompetent''; 
  and
  (B) in paragraph (2)--
  (i) in subparagraph (A)(i), by striking ``to the mental 
  health of a person'' and inserting ``to whether a person is 
  mentally incompetent''; and
  (ii) in subparagraph (B), by striking ``to the mental 
  health of a person'' and inserting ``to whether a person is 
  mentally incompetent''; and
  (4) in section 102(c)(3)--
  (A) in the paragraph heading, by striking ``as a mental 
  defective or committed to a mental institution'' and 
  inserting ``mentally incompetent or committed to a 
  psychiatric hospital''; and
  (B) by striking ``mental institutions'' and inserting 
``psychiatric hospitals''.

Someone had asked me earlier if this would fix the problem with observational commitments under Section 302 of Pennsylvania’s Mental Health Procedures Act. The answer is yes, for federal purposes. But 302 observational commitments are still disabling under Pennsylvania law. California has a similar observational commitment called a 5150, and again, this won’t count as a disability under federal law anymore, but California still bars people who have 5150 commitments from possessing firearms for 5 years. This is the same under Florida’s Baker Act as well.

But what about the veterans who have already been put into the system? Under the NICS Improvement Amendment Act of 2007, veterans could petition to have themselves removed from the system. The act requires that the Attorney General provide written notice to every person with a record in the system for mental health disabilities, and informing them of their right to petition to have themselves removed:

SEC. 304. PROTECTING THE SECOND AMENDMENT RIGHTS OF VETERANS.

  (a) In General.--Chapter 55 of title 38, United States 
  Code, is amended by adding at the end the following:

``Sec. 5511. Conditions for treatment of certain persons as 
  adjudicated mentally incompetent for certain purposes

``(a) Protecting Rights of Veterans With Existing 
  Records.--Not later than 90 days after the date of enactment 
  of the Mental Health and Safe Communities Act of 2015, the 
  Secretary shall provide written notice in accordance with 
  subsection (b) of the opportunity for administrative review 
  under subsection (c) to all persons who, on the date of 
  enactment of the Mental Health and Safe Communities Act of 
  2015, are considered to have been adjudicated mentally 
  incompetent or committed to a psychiatric hospital under 
  subsection (d)(4) or (g)(4) of section 922 of title 18 as a 
  result of having been found by the Department to be mentally 
  incompetent.
``(b) Notice.--The Secretary shall provide notice under 
  this section to a person described in subsection (a) that 
  notifies the person of--
``(1) the determination made by the Secretary;
``(2) a description of the implications of being considered 
  to have been adjudicated mentally incompetent or committed to 
  a psychiatric hospital under subsection (d)(4) or (g)(4) of 
  section 922 of title 18; and
``(3) the right of the person to request a review under 
  subsection (c)(1).
``(c) Administrative Review.--
``(1) Request.--Not later than 30 days after the date on 
  which a person described in subsection (a) receives notice in 
  accordance with subsection (b), such person may request a 
  review by the board designed or established under paragraph 
  (2) or by a court of competent jurisdiction to assess whether 
  the person is a danger to himself or herself or to others. In 
  such assessment, the board may consider the person's 
  honorable discharge or decorations.
``(2) Board.--Not later than 180 days after the date of 
  enactment of the Mental Health and Safe Communities Act of 
  2015, the Secretary shall designate or establish a board that 
  shall, upon request of a person under paragraph (1), assess 
  whether the person is a danger to himself or herself or to 
  others.
``(d) Judicial Review.--A person may file a petition with a 
  Federal court of competent jurisdiction for judicial review 
  of an assessment of the person under subsection (c) by the 
  board designated or established under subsection (c)(2).''.

Not quite as good as simple removing all the records the VA placed in their entirety, but I suspect there was some concern some of those people might legitimately belong in there, and separating the wheat from the chaff would be too tall an order.

Overall this bill would be an improvement over the current status quo, since it offers a good bit more precision. So far only NAGR has come out against the bill, which is not surprising. So far GOA has been silent on S.2002 as far as I’ve seen, even though they vociferously opposed NIAA in 2007, which was also a major easement of the mental health provisions of the Gun Control Act. Perhaps GOA is waiting to see language, or will just remain silent about the bill. This bill really is an improvement. There are always going to be folks out there who will be satisfied with nothing less than total repeal of the Gun Control Act, and I don’t blame them. But guns for crazy people isn’t a hill I’m looking to die on.

Celebrating Independence Day

FireworksLaws

Here’s a handy guide to the Fireworks laws of the 50 states. Â Pennsylvania’s fireworks laws are strange because we don’t regulate possession or use, only sale. You can sell fireworks if you have a license to do so, but you can’t sell fireworks, other than the kid’s stuff, to a resident of Pennsylvania. There are a lot of fireworks stores on the Pennsylvania side of the river that specialize in selling fireworks to New Jersey residents, who, of course, ignore their state’s draconian fireworks ban. Buy too much in New Jersey, and it’s possession with intent to sell, and it’s a felony. People have been busted for it. Otherwise possession or useÂ isÂ a petty offense, basically just a fine. New Jersey authorities don’t like you celebrating freedom, comrade.

As Glenn Reynolds noted, fireworks bans “were the entering wedge of nannyism.” Of course, since our federal overlords banned the really fun stuff, I’m not sure how much of this matters anymore.

The courts have taken us this far, and no farther

It’s become obvious in the past few years that the federal appellate judiciary is generally hostile to expanding firearms rights, and that SCOTUS is unwilling to push the matter. It’s been a question in my mind as to why that might be, and I am examining some of my preconceptions about which Justices voted to grant cert. and why.

I’ve assumed, as did most people, that the majorities in both cases included the justices who granted cert. But, what if that’s not the case? In particular, what if Justice Roberts did not vote to grant cert, and what if instead one or more of the dissenters voted to grant cert. in Heller to take the opportunity to stop, once and for all, the individual rights interpretation, and then in McDonald to prevent the application of Heller to the states?

I infer from the most recent two decisions (King v. Burwell andÂ Obergefell v. Hodges), as well as previous statements and decisions, that Justice RobertsÂ really does not want to change the status quo when he thinks that the legislature should act instead. So, he votes against cert. so the courts don’t have to get involved in what he sees as a political decision, but when the question comes up anyway, he votes pro-rights in a fit of constitutional conscience.Â Meanwhile, the anti-gun justices went 0 for 2Â in convincing their fellows of the rightness of their position, so they’re no longer interested in taking the third pitch, leaving Justices Thomas, Scalia, and Alito alone to vote to grant cert.

This isn’t myÂ only theory of Justice Roberts and the missing cert. vote, it could be that he saw Heller as necessary and McDonald as sufficient to put the question back to the states (or that as of late the states are making strides on their own and SCOTUS should not intervene).

At any rate, we need to stop relying on the courts and continue to move in the legislatures. At the state level, this is already happening. We’ve suffered some reverses (WA and OR), mostly due to Bloomberg, but there’s a limit to how effective money can be. The important thing is, not to go too far, too fast. The NRA is throwing its political weight behind national reciprocity, which has come tantalizingly close to passing in previous congresses that were less obviously pro-rights. Will it be enough to override a veto? Maybe not, but it sets a marker. If a lawmaker votes Yea on this and this president vetos it, that lawmaker has to explain why he changed his mind in a subsequent vote. Once national reciprocity happens, then we can start working on the real prize; forcing shall-issue and “self-defense is good cause.”. FOPA proves that the federal government can force shall-issue, after all, they forced it for retired LEOs. They ought to be similarly able to force states to match NCIS’s timelines for completing background checks andÂ force the states to consider self-defense as a “good cause” or “in the interests of public safety.” All of that theoretically leaves the management of purchase and carry at the state level, while requiring them to treat the RKBA as an actual right. Congress has the enforcement clause of the 14th amendment to justify this, too, no need to muck around with Commerce Clause.

This won’t happen soon, and it won’t happen with a hostile administration in the White House. So, just remember, elections have consequences (as our Chief Justice just reminded us).

Brady Loses Another “Bad Apple” Dealer Suit

This was the case in Alaska, where a guy came into Rayco Sales gun shop and stole a gun when the dealer had his back turned. Remember that the Brady Campaign are preying on grieving families by backing their filing of these meritless suits:

â€œThe family is crushed,â€ Mark Choate, co-counsel for the Kims, told the Empire. â€œ… There was so much evidence that showed there was something being hidden about (Coxeâ€™s) behavior.â€

I feel sorry for those people, but the odds were very much stacked against success from the beginning. Their grief was exploited by a gun control organization that is struggling to find relevance in a movement increasingly centered around Mike Bloomberg and his fat wallet.

Choate said even though the jury found Coxe did not sell the weapon to Coday, it doesnâ€™t mean Coxe wasnâ€™t negligent. But a federal gun law â€” called Protection of Lawful Commerce in Arms Act, or PLCAA for short â€” shields guns dealers and manufacturers from claims of gross negligence, he said.

At first I thought he was wrong about PLCAA covering gross negligence, but it only exempts negligent entrustment andÂ negligence per se. That means they had to prove that Coxe violated a statute or regulation, and couldn’t just argue that overall, he was a sloppy dealer. They jury did not find Brady’s argument credible. Negligence and gross negligence is a more subjective standards, which is probably why they were not exempted. Find the right jury, and they might be willing to side with a plaintiff on those claims even if they are meritless.

This was the Brady Center’s best case, and best hope for a victory, and it’s now gone down in flames. PLCAA is not quite a brick wall for the Brady Center, but it’s certainly harding up very quickly.

DC Concealed Carry Dealt a Blow

It looks like the May 18 decision that ended Washington DC’s “good reason” provision to approving concealed carry licenses is now on hold.

The U.S. Court of Appeals on Friday evening stayed a ruling that had overturned a key provision of the District’s concealed carry law, giving city officials a legal reprieve and opportunity to prepare an appeal arguing that the law is constitutional.

That means anyone rushing out to apply will now have to fit the criteria in place as of early May.

In NJ, it is the law to delay

One of the pieces of conventional wisdom you hear in New Jersey gun ownership circles is that the NJ Judiciary gutted the 30 day requirement for issuance of a pistol purchase permit or a Firearms Purchasers ID Card, but you never get a reference to the case in question, or the details. So, spent a few minutes googling, and after running my search, I found this case.

We read the statutory scheme as requiring a chief of police to withhold action on an application for a firearms purchaser identification card until receipt of the requisite SBI and FBI fingerprint reports.

We thus conclude that the inability of the chief of police to obtain the requisite SBI and FBI reports within the thirty day period constitutes “good cause” for a denial, but does not require the chief of police to deny the application on that account. He must withhold rendering a decision on the application until the fingerprint reports are obtained from the SBI and the FBI.

If the reports so obtained do not disclose a criminal conviction or any other disqualifying disability, the “good cause” for the denial of the permit evaporates, and an identification card must be granted immediately. Conversely, if the SBI or FBI report yields information disclosing good cause for the denial of a permit, the applicant should be notified in timely fashion.

So, the Berlin Township’s Chief of Police saying that they hadn’t received the fingerprint results means he was required to not issue under this decision. So, all the armchair lawyers who are suggesting 1983 suits, please don’t. It’ll be an expensive waste of time. Instead, push the NJ legislature to go to NICS.

Victory for Henderson in Henderson v. United States

The unanimous opinion written by Justice Kagan can be found here. In this case, Tony Henderson was convicted of drug offenses and became a prohibited person under 18 U.S.C. Â§Â 922(g). He petitioned the FBI to turn his firearms over to a third party of his choosing. The FBI refused, arguing that he would remain in constructive possession. The FBI took the position that the guns could only be transferred to a Federal Firearms Licensee that would then sell them on the open market. Fortunately for Henderson, the Supreme Court was not persuaded by the government’s arguments. The Court holds:

Accordingly, a court may approve the transfer of a felonâ€™s guns con- sistently with Â§922(g) if, but only if, the recipient will not grant the felon control over those weapons. One way to ensure that result is to order that the guns be turned over to a firearms dealer, himself inde- pendent of the felonâ€™s control, for subsequent sale on the open mar- ket. But that is not the only option; a court, with proper assurances from the recipient, may also grant a felonâ€™s request to transfer his guns to a person who expects to maintain custody of them. Either way, once a court is satisfied that the transferee will not allow the felon to exert any influence over the firearms, the court has equitable power to accommodate the felonâ€™s transfer request. Pp. 3â€“8.

So provided the third party assures the court that he will not allow the prohibited person to exercise possession or control over the firearms, a prohibited person may delegate a third party.

Even in NJ, we can win some

Evan Nappen gets a judge to rule that the law means what it says.

In a published decision binding upon all New Jersey municipalities, the New Jersey Appellate Division has confirmed that New Jersey municipalities mayÂ NOT require added forms for firearm permit applications beyond the state forms.

It’s a little thing, but little things add up. Also note, “funded in part by the NRA Civil Rights Defense Fund.”

Peruta Goes En Banc

According to legal sources, it seems the Ninth Circuit has issued an order for an en banc hearing in Peruta. It might be the bit of pessimist in me, but I doubt this is good news for gun owners in the Ninth Circuit.

National Firearms Law Seminar

If you’re an attorney or just interested in firearms laws, then you shouldn’t miss the National Firearms Law Seminar at the NRA annual meeting.

I have to say that this year’s program really stands out for the combination of nationally known speakers, as well as the practical topics covered a bit more in-depth by some of the lawyers working on Second Amendment issues you may not have heard about yet.

For one, the lunch speaker is Glenn Reynolds of Instapundit fame. Having heard him speak before, I can say that he always delivers a really good presentation that informative as well as entertaining. The program notes that his lunch speech will look at “the transformation of the Second Amendment from an ’embarrassing’ outlier to the Bill of Rights, to a provision that, like other parts of the Bill of Rights, protects identifiable individual rights in court.” Massad Ayoob will be giving a presentation on armed self-defense, highlighting mistakes “by the shooter at the scene, and by defense counsel in court.” That should be quite interesting, even for the non-attorney.

In my opinion one of the most interesting topics looks like it could end up being the session on the Brady Campaign’s recent litigation strategy against individual FFLs. The description of this talk by Cord Byrd notes that they have been “utilizing state laws including negligent entrustment, negligence per se and public nuisance to circumvent the protections afforded by the Protection of Lawful Commerce in Arms Act.” Then you have the always wonderful Sarah Gervase who packs so much practical information for attorneys into her topics each year talking about civil rights actions in firearms cases for this year’s Nashville seminar.

Registration is online, and there are discounts for various folks – law students, those who only want to attend the lunch speech by Glenn Reynolds, just a half day, and even for non-attorneys. There’s pretty much no way that you won’t walk out of the sessions learning something new if you choose to attend.

Even as someone who isn’t a practicing attorney and who doesn’t do the legal analysis for the blog, there’s usually something I pick up that gives me so much more context and understanding about the cases we hear about during the next year. More importantly, as I’ve met many people who maybe had a little minor offense, often nothing related to firearms at all, when they were 18 who are still paying a penalty with their firearms rights when they are 68 over the years, I’ve realized how invaluable it is that defense attorneys should know at least something about this area of law and how it impacts their clients.