Annapolis Murders -- Huge Disappointment

A 72 hour psych evaluation then release wont qualify for NICS reporting. The release says you're competent and not a danger to self or others and fully released from care. Most 5150's, Baker Acts etc that don't included clear and convincing evidence that the potental patient is danger to others or self usuall become voluntarily commitments at the hospital. Where 5150's aren't voluntary initially (first 24-72 hours) they happen prior to a court hearing and are considered "mental health observations" that don't tiger NICS reporting. After evaluation if the patient displays clear and convincing evidence of danger to self or others the process to commit and treat involuntarily starts, and upon adjudication of incompetency NICS is informed. Most folks know they need help and agree to voluntary commitment when faced with the options.

The process involved in compelling treatment or institutionalization involuntarily is necessarily strict and detailed. It requires several hearings and in all intents is a trial with the same rules of evidence and procedure. A proposed patient has the right to appear at the hearing to testify. The proposed patient is appointed councel at the states expense. The attorney for the State and the proposed patient shall have the right to subpoena, present, and cross-examine witnesses, and present oral arguments. In short its expensive and time consuming. Hospitals with psych units as well as mental institutions have limited budgets and do their absolute best to talk the patient into voluntary treatment.

My point here, not until a judicial hearing approved and initiated by a the Attorney General or States Attorney finds the patient incompetent or involuntarily commits the patient is the right to own a gun permanently denied.

Voluntary commitment for treatment doesn't trip the reporting requirements under Section 103 the Brady Handgun Violence Prevention Act of 1993, in accordance with 18 U.S.C. § 922(g)(4):

https://codes.findlaw.com/us/title-18-crimes-and-criminal-procedure/18-usc-sect-922.html

d) It shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person--

(4)  has been adjudicated as a mental defective or has been committed to any mental institution;​

The ATF has provided guidance on the definitions of the above in:

DEPARTMENT OF JUSTICE
Bureau of Alcohol, Tobacco, Firearms, and Explosives
27 CFR Part 478
Amended Definition of ‘‘Adjudicated as a Mental Defective’’ and ‘‘Committed to a Mental Institution’’

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;
(b) The person was found by a court, board, commission, or other lawful authority to no longer suffer from the mental health condition that served as the basis of the initial adjudication or commitment, or was found to be rehabilitated; or
(c) The adjudication or commitment was based solely on a medical finding of disability, without any opportunity for a hearing by a court, board, commission, or other lawful authority, and the person has not otherwise been adjudicated as a mental defective under 18 U.S.C. 922(g)(4).

ATF gives further guidance here:

FEDERAL FIREARMS PROHIBITION UNDER 18 U.S.C. § 922(g)(4)
PERSONS ADJUDICATED AS A MENTAL DEFECTIVE OR COMMITTED TO A MENTAL INSTITUTION

https://www.atf.gov/file/97771/download

A person is “adjudicated as a mental defective” if a court, board, commission, or other lawful authority has made a determination that a person, as a result of marked subnormal intelligence, mental illness, incompetency, condition, or disease:

• Is a danger to himself or to others;
• Lacks the mental capacity to contract or manage his own affairs;
• Is found insane by a court in a criminal case; or
• Is found incompetent to stand trial, or not guilty by reason of lack of mental responsibility, pursuant to articles 50a and 72b of the Uniform Code of Military Justice, 10 U.S.C. §§ 850a, 876b.

A person is “committed to a mental institution” if that person has been formally committed to a mental institution by a court, board, commission, or other lawful authority.
The term includes a commitment:

• To a mental institution involuntarily;
• For mental defectiveness or mental illness; or
• For other reasons, such as for drug use.

The term does not include a person in a mental institution for observation or by voluntary admission.

The term “lawful authority” means an entity having legal authority to make adjudications or commitments.

The term “mental institution” includes mental health facilities, mental hospitals, sanitariums, psychiatric facilities,
and other facilities that provide diagnoses by licensed professionals of mental retardation or mental illness, including
a psychiatric ward in a general hospital.

AFFIRMATIVE DEFENSES
A person is not prohibited under 18 U.S.C. § 922(g)(4) if:
​

The person received relief from Federal firearms disabilities under 18 U.S.C. § 922(g)(4) by:

• The Bureau of Alcohol, Tobacco, Firearms and Explosives under 18 U.S.C. § 925(c); or
• A proper Federal or State authority under a relief from disabilities program that meets the requirements of the NICS Improvement Amendments Act of 2007, Public Law 110-180.

The mental health adjudication or commitment was imposed by a Federal department or a State, and the:

• Adjudication or commitment was set aside or expunged;
• Person was fully released from mandatory treatment, supervision, or monitoring;
• Person was found to no longer suffer from the disabling mental health condition;
• Person has otherwise been found to be rehabilitated; or
• Adjudication or commitment was based solely on a medical finding without opportunity for hearing.

It takes more than a pHD in psychology or a doctor to find a citizen incompetent or involuntarily commit them to a mental institution.

 

And there is the problem. Regardless of the reason for commitment, they can get a firearm when they get out. Any problem with waiting 5 years plus a psych eval?

 

Gun Loader Don Rides Another Day.

 

Sorry for the rehash.

Only those who voluntarily agree to treatment or commitment in a mental facility are excluded from being reported to NICS. Those that display a danger to others or themselves, while evidencing a disconnect with reality, are not eligible for voluntarily commitment and are required to be reported to NICS.

The only folks that are granted statutory relief from long term firearms ownership restrictions and seizures, as well as other penalties concerning licenses, are those that voluntarily agree to treatment or strengthen up within the 72 hour observation hold. Those that become involved with law enforcement as it relates to Extreme Risk Protection Orders, and perhaps continuing aberrant behavior that rises to a level that a law enforcement agent, a close witness or relative and a physician seek involuntarily protective custody through laws like 5105's and Baker Acts. Voluntary patients must exibit a minimal degree of composure and have a tenuous hold on reality. To be admitted they still need to meet the criteria for treatment and possibly commitment. They have to show obvious signs of mental illness.

The Baker Act (Florida) encourages the voluntary admission of persons for psychiatric care, but only when they are able to understand the decision and its consequences and are able to fully exercise their rights for themselves. When this is not possible due to the severity of the person’s condition, the law requires that the person be extended the due process rights assured for those under involuntary status.

Several definitions are important to understanding the criteria for voluntary admissions and consent to treatment.

Mental illness means an impairment of the mental or emotional processes that exercise conscious control of one’s actions or of the ability to perceive or understand reality, which impairment substantially interferes with a person’s ability to meet the ordinary demands of living, regardless of etiology.​

I think the law does a good job of protecting people just having a few bad days, weeks, or months from a record that can permanently effect and limit their lives. We've all had our low moments.

The death of a loved one, the loss of a job, divorce or a cancer diagnosis can cause depression and suicidal ideation severe enough for some to quit, go a little catatonic and need a stay in the Crisis Stabilization Unit. Folks diagnosed with mild Bipolar II or occasional, periods of hypomaniac symptoms, might just need some close observation to adjust medications.

Maybe your mother just died and your 65yr old dad took to drinking a little too much for a full month, three handles of single malt Scotch a week. Drunk and depressed he argues with the neighbor and falls down in the road. Cops come, dad's energy is depleted and he's yelling, still drunk. Cop INCAPS dad, runs him to the hospital and does the protective custody paperwork. Doc thinks Dad is way too intoxicated to release, he's disoriented and pinching nurses, so to detox dad goes. It's involuntarily treatment. Should the justice department be given a record of your father's involuntarily commitment to the psych ward? Should dad face the loss of his gun collection? Should dad lose his pilots license (medical certificate), it's what he lives for now?

The adjudication as a 'mental defective' or for 'involuntarily commitment' involves an incompetency hearing, this removes the right to own fire armes and the patient's name must be reported to NICS. If the initiating cause was threats of or a demonstrated significant risk of causing self or others serious bodily injury, while acting unstable and erratically, the involuntarily commitment process will begin immediately. If a criminal charge for threats, assualt, harassment, stalking or domestic abuse, or if a domestic abuse prevention order was placed, while displaying irrational thoughts and odd behavior, the commitment process will start and the patient's name will be reported to the NICS. If drug abuses is involved and the proposed patient is incapacitated and needs to be treated as an inpatient, even for observation, the patient's name must be reported to NICS. Thsee folks aren't stable enough to get their 2a rights back and won't.

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.

Adjudicated as a mental defective.
a.A determination 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 himself or to others; or
2. Lacks the mental capacity to contract or manage his own affairs.
3. Adjudicated as a mental defective.

b.The term shall include—

1. A finding of insanity by a court in a criminal case; and
2. Those persons found incompetent to stand trial or found not guilty by reason of lack of mental responsibility pursuant to articles 50a and 72b of the Uniform Code of Military Justice, 10 U.S.C. 850a, 876b.

Any person who has been “adjudicated as a mental defective” or “committed to a mental institution” (involuntarily) is prohibited under Federal law from shipping, transporting, receiving, or possessing any firearm or ammunition. Violation of this Federal offense is punishable by a fine of $250,000 and/or imprisonment of up to ten years. See 18 U.S.C. §§ 922(g)(4) and 924(a)(2). The terms enumerated below are located in 27 C.F.R. § 478.11.

 

I wouldn’t say just be ordered to get a mental health examination warrants a loss of gun rights, but perhaps, yes, depending on the results.

 

Will you give it a rest with the fake outrage; you’re not helping .

 

Gun Free Zones = Killing Zones

Allow the people to arm themselves and there will be no more mass shootings like the one in Annapolis.

 

Gun control schemes can only disarm the victims of criminal violence. Criminals can always obtain every kind of weapon with ease,

 

Brings into question if the pen really is mightier than the sword.

 

Ask Charlie Hebdo.