Tag Archives: “mental health”

President Trump and Vice President Pence to Lose Second Amendment Rights

Yesterday, President Trump stated that “[i]t takes so long to go to court to get the due process procedures, I like taking the guns early. Take the guns first, go through due process second” seemingly without consideration for what he was proposing or the impact on his and Vice President Pence’s Second Amendment rights.

What am I talking about?

Well, someone needs to be living under a rock to have missed all the unsubstantiated allegations regarding the President’s mental health during his candidacy and presidency. In fact, there is even a book by Brandy X Lee – The Dangerous Case of Donald Trump: 27 Psychiatrists and Mental Health Experts Assess a President – in which these putative experts contend that President Trump suffers from varying and differing mental health conditions. More recently, Joy Behar claimed that Vice President Pence was mentally ill, because of his religious convictions in speaking with Jesus.

But what does this have to do with the President’s comment?

Well, he seemingly ignores the fact that absent due process, both his and Vice President Pence’s Second Amendment rights could be stripped, absent even their knowledge or opportunity to be heard, because of someone’s – potentially vindictive and even baseless – views or beliefs. See, that is what due process protects against – or at least is suppose to protect against. While we can argue about the level of due process and whether the courts place appropriate consideration on the evidence before depriving someone of a constitutional right, the right to be heard against allegations is a fundamental tenet of our Founding Constitutional Agreement.

As our viewers know, I recently litigated a case in the United States District Court, Western District of Pennsylvania, where Judge Kim Gibson found that a Section 302 evaluation under the Pennsylvania Mental Health and Procedures Act was not sufficient to trigger a federal prohibition, pursuant to 18 U.S.C. 922(g)(4), due to the lack of due process provided the individual. There, like what is seemingly being proposed by the President, the Government contended that an individual was stripped of his right to Keep and Bear Arms – an inalienable right that is acknowledged by the Constitution – as a result of a doctor merely signing a form, in the absence of the individual being provided any of the tenets of due process, including having an opportunity to confront those speaking against him/her. More specifically, the individual is not (1) provided an opportunity to cross-examine witnesses nor have a witness testify on his/her behalf; (2) provided an opportunity to challenge evidence nor submit evidence in support of his/her position; (3) provided counsel; or (4) provided a neutral arbiter, since the doctor is paid by the hospital and there are, unfortunately, financial incentives for a hospital to keep an individual for further evaluation.

Could you imagine the outrage if there was a proposal that would permit someone, even the President, to be stripped of his/her First Amendment rights, in the absence of due process, because someone believed that the person suffered from a mental illness, regardless of how baselessness of the claim? Speaking of which, why do we permit a person who has been involuntarily committed to be a reporter? And with all the talk about raising the age to 21 to purchase any firearm, why aren’t we talking about equal application of the law to all constitutional provisions? If its okay to restrict an individual’s constitutional right to Keep and Bear Arms, why aren’t we also restricting his/her First, Fourth, Fifth, and Sixth Amendment rights, until the person is 21? That’s right, such would be unconstitutional and as Justice Thomas recently stated in his dissent to the denial of certiorari in Jeff Silvester, et al. v. Xavier Becerra, Attorney General of California

it seems, rights that have no basis in the Constitution receive greater protection than the Second Amendment, which is enumerated in the text. Our continued refusal to hear Second Amendment cases only enables this kind of defiance.

Because I still believe that the Second Amendment cannot be “singled out for special—and specially unfavorable—treatment,” I respectfully dissent from the denial of certiorari. (citations omitted)

Given the constitutional issues involved and the likelihood for abuse, Mr. President, I respectfully implore you to reconsider your remarks and thereafter, come out in support of all of our constitutionally acknowledged rights, including opposing any proposal, which would permit any constitutional right to be stripped from an individual in the absence of due process.

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Major Pennsylvania Firearm Law Cases from 2017

As the year is coming to a close, I thought it important to document some of the monumental court decisions and issues that Firearms Industry Consulting Group® (FICG®), a division of Civil Rights Defense Firm, P.C., was involved in or obtained in 2017.

  1. Franklin v. Sessions, et al. – in a monumental federal case of first impression, Judge Kim Gibson of the Western District of Pennsylvania ruled that an involuntary commitment under Section 302 of Pennsylvania’s Mental Health and Procedures Act (“MHPA”) is insufficient to trigger a federal firearms and ammunition disability under 18 U.S.C. § 922(g)(4).
  2. Keyes v. Sessions, et al., – in another federal case of monumental importance, Judge John Jones of the Middle District of Pennsylvania held that it was unconstitutional, under a Second Amendment as-applied challenge, to strip Mr. Keyes of his right to keep and bear arms in perpetuity as a result of a single, isolated involuntary commitment. Additionally, in the beginning of 2017, Mr. Keyes’ co-plaintiff, Mr. Yox, learned that the new Administration declined to appeal his grant of relief and withdrew the protective appeal that had been filed in relation to Judge Jones’ grant of his Second Amendment as-applied challenge.
  3. Commonwealth v. Goslin – in another case of significant importance, the Superior Court, en banc, held that an individual may claim the defense of “other lawful purpose” when possessing a weapon on school property. As a result, Attorney Prince did an extensive article on the impact of this decision.
  4. Commonwealth v. Hicks – Attorney Prince filed an Amici Curiae brief before the Pennsylvania Supreme Court on behalf of members of the General Assembly, Firearms Owners Against Crime, Firearms Policy Coalition and Firearms Policy Foundation in relation to whether the mere open or concealed carrying of a firearm constitutes reasonable suspicion of criminal activity.
  5. Firearms Owners Against Crime, et al. v. Lower Merion Township – after a December 2016 ruling by the Commonwealth Court that Lower Merion Township was precluded from regulating possession and discharge of firearms in their parks, the Pennsylvania Supreme Court declined Lower Merion Township’s request for review of the decision.  We also found out that the taxpayer in Lower Merion have paid more than $30,000 in relation to this litigation.
  6. While not a case in and of itself (although related to the settlement of the class action of John Doe, et al. v. City of Philadelphia, et al.), we found out that the City of Philadelphia was generally making decisions on licenses to carry firearms in under 30 days!
  7. We also saw Lancaster County District Attorney Craig Stedman issue a letter regarding firearm and ammunition preemption to all law enforcement agencies in Lancaster County.
  8. We also saw ATF (again) change its position on firearm braces and begin the process of entering into rulemaking regarding bumpstocks.

So what can we expect for next year?

  1. A decision by the Pennsylvania Supreme Court in Commonwealth v. Hicks.
  2. ATF to enter into rulemaking regarding bumpstocks.
  3. Hopefully, the enactment of H.R. 38 -Concealed Carry Reciprocity Act of 2017.

If you or someone you know has had their right to keep and bear arms infringed, contact Firearms Industry Consulting Group today to discuss YOUR rights and legal options.

 


Firearms Industry Consulting Group® (FICG®) is a registered trademark and division of Civil Rights Defense Firm, P.C., with rights and permissions granted to Prince Law Offices, P.C. to use in this article.

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MONUMENTAL DECISION – Federal Court Rules a Pennsylvania 302 Mental Health Commitment Insufficient to Trigger a Disability under Section 922(g)(4)

We are extremely proud to announce that today Attorney Joshua Prince was successful in having Federal District Court Judge Kim Gibson of the Western District of Pennsylvania rule that an involuntary commitment under Section 302 of Pennsylvania’s Mental Health and Procedures Act (“MHPA”) is insufficient to trigger a federal firearms and ammunition disability under 18 U.S.C. § 922(g)(4).

For those unaware, 18 U.S.C. § 922(g)(4) provides

It shall be unlawful for any person–

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

to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

Section 302 of the MHPA permits a physician to involuntarily commit an individual in the absence of any form of due process (i.e. the individual is not provided an attorney, the ability to confront or present witnesses, the ability to challenge or submit evidence, or provided any other requisites of due process).

As a result of a single, isolated 302 commitment, the Bureau of Alcohol, Tobacco, Firearms and Explosives took the position that Mr. Franklin was federally prohibited from possessing and purchasing firearms and ammunition. As a result, he brought a challenge in federal court challenging, inter alia, whether a 302 commitment was sufficient to trigger a prohibition under Section 922(g)(4) and if so, argued that it would be unconstitutional to deny him in perpetuity his Second Amendment rights, as applied to him. As our viewers are aware, Attorney Prince has won two previous Second Amendment as-applied challenges to mental health commitments.

Judge Gibson in reviewing whether Mr. Franklin was “adjudicated as a mental defective” found that the

procedures provided for by Section 302 of the MHPA and that were applied to Mr. Franklin scarcely constitute an ‘adjudication’. The plain meaning of “adjudicated” connotes the involvement of a judicial decision-maker, the resolution of a dispute after consideration of argument by the parties involved, and a deliberative proceeding with some form of due process….Notably, courts, boards, and commissions all function in a neutral judicial or quasi-judicial role, therein greatly differing from the ex parte, non-judicial procedures and non-judicial actors provided for by Section 302 of the MHPA.

The court continued on

Thus, because Mr. Franklin was not “adjudicated as a mental defective” by a court, board, or commission, Section 922(g)( 4) does not provide for a restriction of Mr. Franklin’s ability to own a firearm based on a determination by one of these three “adjudicators.”…Interpreting Section 922(g)( 4) such that individual physicians and other non-neutral actors have lawful authority to wholly strip a person of their ability to a possess a firearm in perpetuity based on a non-adversarial, ex parte decision would raise serious constitutional concerns with the statute, which
the canon of constitutional avoidance requires the Court to avoid if possible

Judge Gibson then turned to whether Mr. Franklin was “committed to a mental institution” and in finding that he was not committed to a mental institution, held that a prohibition under Section 922(g)(4) “presupposes a formal commitment decision by a ‘court, board, commission, or other lawful authority’.” Most importantly,  Judge Gibson declared

By its own terms and effect, Section 302 of the MHPA does not provide for a commitment to a mental institution as defined by 27 C.F.R. § 478.11, nor did Mr. Franklin undergo a commitment to a mental institution for the purposes of Section 922(g)(4).

In deferring to decide Mr. Franklin’s Second and Fifth Amendment claims on the basis of the constitutional avoidance doctrine and resolution of the issue absent review of the constitutional implications, Judge Gibson declared that

the Court cannot deny the serious constitutional doubts raised by the parties’ arguments in the instant matter-both in regard to due process rights of the Fifth Amendment and the right to bear arms under the Second Amendment. The arguments raised in the parties’ briefs, a “fractured vote” by the Third Circuit on a related issue, and recent, disparate decisions by other district courts within the Third Circuit amply demonstrate the seriousness of these constitutional concerns and the appropriateness of constitutional avoidance when a reasonable interpretation of Section 922(g)( 4) avoids consideration of those weighty constitutional issues.

In concluding the decision, Judge Gibson holds

Although the provisions of Section 302 of the MHPA may be sufficient to justify an involuntary emergency examination and treatment, the Court is not persuaded that these non-adversarial, ex parte procedures without notice, a hearing, the opportunity to present evidence, or a judicial or quasi-judicial actor constitute an “adjudication” for the purposes of Section 902(g)(4), nor that a 120-hour-maximum “involuntary emergency examination and treatment” constitutes a “commitment to a mental institution.”

Please join us in congratulating Attorney Prince for this monumental victory!

If you or someone you know has been involuntarily committed and is now prohibited from purchasing and possessing firearms and ammunition, contact Firearms Industry Consulting Group today to discuss YOUR rights and legal options.

 


Firearms Industry Consulting Group® (FICG®) is a registered trademark and division of Civil Rights Defense Firm, P.C., with rights and permissions granted to Prince Law Offices, P.C. to use in this article.

 

 

 

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PRESS RELEASE: Monumental Mental Health Second Amendment As-Applied Challenge Success

We are extremely proud to announce that Attorney Joshua Prince was successful in a second Second Amendment as-applied challenge in relation to a prior mental health commitment.

As our viewers are likely aware from Attorney Prince’s blog article Monumental Decision from the Middle District Court of Pennsylvania Regarding Mental Health Commitments and the Second Amendment, over a year and three months ago, Attorney Prince was successful in obtaining relief for Mr. Yox, who had previously been involuntarily committed as a juvenile but later went on to honorably serve in our Armed Forces and later as a state correctional officer. Under federal law, Mr. Yox was permitted to possess a firearm and ammunition in his official capacity as a law enforcement officer, but was precluded from possessing a firearm and ammunition in his private capacity. In fact, in providing relief to Mr. Yox, the court declared:

Indeed, Mr. Yox provides the perfect test case to challenge § 922(g)(4), as the illogical contradiction of being able to possess firearms in his professional capacities but not being able to possess a firearm for protection in his own home puts in relief a factual scenario where an as-applied Second Amendment challenge to this statute may succeed.

Indeed, if Mr. Yox were not to succeed on his as-applied challenge, we cannot imagine that there exists any person who could.

Unfortunately, the court had previously dismissed his co-plaintiff’s (Mr. Keyes’) identical arguments on the basis that the Pennsylvania Superior Court had already considered his Second Amendment challenge and found against him in In re Keyes. After rendering its decision on Plaintiff Yox’s claims, Mr. Keyes filed a request for the court to reconsider its prior ruling and arguing that it would be a manifest injustice if the court were deny him relief based on the faulty decision of the Pennsylvania Superior Court.

On October 4, 2016, Judge John E. Jones, III. overturned his prior holding finding that Mr. Keyes’ Second Amendment as-applied claim was barred and declared that Mr. Keyes “is in a materially identical situation” to Mr. Yox and that denying Keyes, while granting relief to Mr. Yox, would seem to constitute an “inequitable administration of the law” and “manifest injustice.”Judge Jones specifically declared in finding that the Pennsylvania Superior Court incorrectly analyzed his prior Second Amendment challenge:

The result is that Keyes is left behind while his co-Plaintiff receives full relief simply because Keyes pursued his Second Amendment claims in what turned out to be the wrong court. He is left with no recourse to receive vindication of his constitutional right to bear arms, even though this Court has, for all material purposes, made clear that his claim has full merit. This is a grossly unfair and inequitable result.

Judge Jones went on to state that “[w]e would be hard pressed to think of a better example of an inequitable administration of the laws, and it is a circumstance that cries out to be rectified.”

Thereafter, extensive discovery ensued and the Government and Mr. Keyes filed cross-motions for summary judgment. Yesterday, in an initially sealed memorandum (which was unsealed today with the consent of Mr. Keyes), Judge Jones, after providing a substantial and substantive analysis of the law and evidence of record, declared:

We have been presented with no evidence to indicate that disarming those who went through a period of mental illness and suicide attempts over a decade ago and who have regularly carried firearms in their professional capacity since that time reasonably fits within the governmental interest to promote safety. As such, 18 U.S.C. § 924(g)(4) cannot withstand intermediate scrutiny in the face of Keyes’ as-applied challenge. Enforcement of the statute against Keyes therefore violates his right to keep and bear arms – a right guaranteed to him by the Second Amendment to the United States Constitution.

More importantly, telling of Judge Jones’ character and being an ardent defender of constitutional rights, he further declared:

We freely acknowledge our mindfulness of the fact that this decision is rendered in a time when our country appears awash in gun violence. Given the tenor of the times, it would be easy and indeed alluring to conclude that Plaintiff lacks any recourse. But to do so would be an abdication of this Court’s responsibility to carefully apply precedent, even when, as here, it is less than clear. Our jurisprudence and the unique facts presented guide us to the inescapable conclusion that if the Second Amendment is to mean anything, and it is beyond peradventure that it does, Plaintiff is entitled to relief.

Please join us in congratulating Attorney Prince for this monumental victory, as well as, Judge Jones for ensuring that for every wrong committed, the court has the power to correct it.

If you or someone you know has been involuntarily committed and is now prohibited from purchasing and possessing firearms and ammunition, contact us today to discuss your options.

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Devastating Decision Regarding Mental Health Commitment Challenges and Firearms Rights

Late last week, the Pennsylvania Supreme Court issued its decision in In re: Nancy White Vencil, 90 MAP 2015, which overturned the Pennsylvania Superior Court’s learned decision finding that a challenge, pursuant to 18 Pa.C.S. § 6111(g)(2), to the sufficiency of an involuntary commitment was to be de novo, supported by clear and convincing evidence, where the burden was, in essence, to rest with the Commonwealth.

Unfortunately, the PA Supreme Court vacated the decision as it concluded that the Superior Court erred since, in its opinion

the plain language of section 6111.1(g)(2) requires a court of common pleas to review only the sufficiency of the evidence to support the 302 commitment, limited to the information available to the physician at the time he or she made the decision to commit the individual, viewed in the light most favorable to the physician as the original decision-maker to determine whether his or her findings are supported by a preponderance of the evidence.

Although the Court acknowledged that “By legislative design, there is no judicial involvement in the decision to effectuate a 302 commitment and no right to appeal the physician’s decision” and therefore affords no due process (an issue which Mrs. Vencil apparently failed to raise (pdf pg. 18 (declaring “Vencil has not challenged the due process protections provided by Section 302 of the MHPA. Nor has she raised a due process argument in connection with her right to keep and bear arms under the United States and/or Pennsylvania Constitutions)), the Court declared that a trial court is only

to review the physician’s findings, made at the time of the commitment, to determine whether the evidence known by the physician at the time, as contained in the contemporaneously-created records, supports the conclusion that the individual required commitment under one (or more) of the specific, statutorily-defined circumstances.

Interestingly, the Court did not address the sufficiency/review of the requisite records for an involuntary commitment, pursuant to 50 P.S. § 7302 and the implementing regulations. This is likely due to this issue not having been raised and therefore was not considered by the Court.

The Court went on to declare that

The Legislature could have broadly created an appeals process under the MHPA for 302 commitments, but it did not; it could have required a de novo hearing but it did not. Instead, it narrowly provided that under 6111(g)(2) of the Uniform Firearms Act, a petitioner is entitled only to have a trial court review the sufficiency of the evidence upon which the commitment was based.

It is also important to note that the Court recognized in fn. 4 (pdf pg. 7) that the Pennsylvania State Police waived any consideration of the statute of limitations. The Court’s acknowledgment of is somewhat concerning as a specific of statute of limitations has not been enacted by the General Assembly and the Court did not specify what the appropriate statute of limitation is for sufficiency challenges to civil mental health commitments.

It is for these reasons, including the lack of requisite due process, that it is imperative that the General Assembly enact a new law regarding mental health commitment appeals, in compliance with all dictates of due process.

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U.S. Government to Withdraw Appeal in Second Amendment As-Applied Challenge Relating to a Mental Health Commitment

As our viewers are aware, I was previously successful in establishing a right to relief in a Second Amendment as-applied challenge involving a mental health commitment – Monumental Decision from the Middle District of Pennsylvania Regarding Mental Health Commitments and the Second Amendment. Thereafter, the U.S. Government filed an appeal to the Third Circuit Court, where the case is currently pending briefing.

Today, the U.S. Government filed a notice with the Third Circuit that the Acting Solicitor General has elected not to sustain the appeal and the Government will be seeking to withdraw the matter in 30 days, as the Government must provide the U.S. Congress with 30 days notice, for the U.S. Congress to intervene if it sees fit. A copy of the letter sent to Speaker Paul Ryan can be downloaded here.

Accordingly, it appears that in 30 days, the appeal will be withdrawn and the only remaining issue will be the attorney fees and costs to be assessed against the Government.

If you have been denied your inalienable right to Keep and Bear Arms as the result of a mental health commitment or non-violent misdemeanor offense, contact us today to discuss your options. Together, we can vindicate YOUR rights!

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Social Security Administration Publishes Final Rule Relating to NICS Improvement Amendments Act of 2007

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It has been well reported that the Social Security Administration (“SSA”) had been passing along information of individuals that it deemed unable to handle their financial affairs to NICS for the purposes of preventing them from purchasing a firearm due to being “adjudicated as a mental defective.”

In May of this year, the SSA published a Notice of Proposed Rulemaking. It received over 91,000 comments relating to the proposed rule. Of those, 86,860 were identical letters submitted by various individuals of a single advocacy group, opposing the proposed rule.

On December 19, 2016, the SSA published a Final Rule on the Federal Register pertaining to its regulations. While the regulations take effect on January 18, 2017 compliance is not required until December 19, 2017.

Public Comments

There were a number of comments on various issues, which I will recap a few points quickly below before moving on to explain the final rule and its impact.

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Second Amendment and Equal Protection

A number of individuals commented that “these rules would violate the affected individuals’ rights under the Second Amendment to the Constitution, and would also violate their equal protection rights under the Constitution. Most of these comments were provided in largely identical letters, and they asserted that our rules would take firearms away from elderly recipients of Social Security retirement benefits.”

SSA responds stating that “[t]he criteria we will use under these rules do not focus on one age group, such as the elderly or recipients of Social Security retirement benefits, nor do they categorize and treat individuals who are similarly situated differently.” Further, “[w]e do not intend under these rules to report to the NICS any individual for whom we appoint a representative payee based solely on the individual’s application for and receipt of Social Security retirement benefits.”

With regard to the Second Amendment claim, the SSA cites to District of Columbia v. Heller, 554 U.S. 570 (2008) for the proposition that “[l]ike most rights, the right secured by the Second Amendment is not unlimited,” and that “nothing in [the Court’s] opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill.” Heller at 626.

Unfortunately, the Heller decision gives no guidance as to what constitutes mentally ill. Is an individual who was diagnosed with OCD “mentally ill”? Where does one draw the line exactly?

Due Process

Individuals commented that the due process rights of the beneficiaries would be violated because the beneficiaries would not be able to appeal the decision prior to the inclusion of their information being reported to NICS, raised concerns about adequate notice being given to the beneficiary who might be reported and argued the costs of pursuing relief should an individual be reported to NICS would be onerous.

SSA responded stating that “[a]ffected individuals will have the opportunity to apply for relief from the Federal firearms prohibitions imposed by 18 U.S.C. 922(g)(4) at any time after our adjudication has become final…we will provide individuals with advance notice at the commencement of the adjudication that we may report their information to NICS if we find they meet the criteria for reporting when the adjudication is final.”

SSA goes on to state that they “will provide oral and written notice to the beneficiary at the commencement of the adjudication, which we define as after we have determined that he or she meets the medical requirements for disability based on a finding that his or her impairment(s) meets or medically equals the requirements of the mental disorders listings, but before we find that he or she requires a representative payee.”

Notice is extremely important and a lot of times never given to individuals. SSA incorporating both oral and written notice to an individual is pleasantly surprising, given a the litany of issues I see where an individual is never told that a finding may result in their Second Amendment rights being taken from them.

Lastly, regarding the cost of pursuing relief, SSA dismissed the concerns by stating they will not impose a fee in connection with a request for relief and that it believes the cost to obtain the evidence it would require for such a request for relief as “reasonable”.

Part of the criteria of the new rule is that the individual appealing the decision will provide the SSA medical evidence in the form of a statement of the individual’s current mental health status as well as their mental health during the preceding five years from the applicant’s primary mental health provider. Such evaluations are typically performed by a psychologist and cost anywhere between $1,500 to $2,000 on average.

Final Rule

In order for an individual to be reported to NICS, they have to meet the five (5) criteria spelled out in Section 421.110.

Adjudicated as a mental defective, in accordance with 18 U.S.C. 922(g)(4), as amended, means 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: Is a danger to himself or others; or lacks the mental capacity to contract or manage his own affairs.

An individual will have been “adjudicated as a mental defective” if during SSA’s claim development and adjudication process, or when SSA takes certain post-entitlement or post-eligibility actions, SSA will identify any individual who:

  1. Has filed a claim based on disability;
  2. Has been determined to be disabled based on a finding that the individual’s impairment(s) meets or medically equals the requirements of one of the Mental Disorders Listing of Impairments (section 12.00 of appendix 1 to subpart P of part 404 of this chapter) under the rules in part 404, subpart P, of this chapter, or under the rules in part 416, subpart I, of this chapter;
  3. Has a primary diagnosis code in our records based on a mental impairment;

    Primary diagnosis code means the code we use to identify an individual’s primary medical diagnosis in our records. The primary diagnosis refers to the basic condition that renders an individual disabled under the rules in part 404, subpart P, of this chapter, or under the rules in part 416, subpart I, of this chapter.

  4. Has attained age 18, but has not attained full retirement age; and
  5. Requires that his or her benefit payments be made through a representative payee because we have determined, under the rules in part 404, subpart U, of this chapter, or the rules in part 416, subpart F, of this chapter, that he or she is mentally incapable of managing benefit payments.

These criteria will be applied to capability findings that are made in connection with initial claims on or after December 19, 2017 and capability findings that are made in connection with continuing disability reviews (including age-18 disability redeterminations under § 416.987) on or after December 19, 2017. The latter provision will only apply in instances with respect to capability findings in which SSA appoints a representative payee for an individual in connection with a continuing disability review.

If the individual does not meet all five of the aforementioned requirements, then they will not be reported to NICS.

The regulations provide that if SSA determines the person is “mental defective” they will provide both oral and written notice to the affected individual that:

(a) A finding that he or she meets the criteria in § 421.110(b)(1) through (5), when final, will prohibit the individual from purchasing, possessing, receiving, shipping, or transporting firearms and ammunition, pursuant to 18 U.S.C. 922(d)(4) and (g)(4);

(b) Any person who knowingly violates the prohibitions in 18 U.S.C. 922(d)(4) or (g)(4) may be imprisoned for up to 10 years or fined up to $250,000, or both, pursuant to 18 U.S.C. 924(a)(2); and

(c) Relief from the Federal firearms prohibitions imposed by 18 U.S.C. 922(d)(4) and (g)(4) by virtue of our adjudication is available under the NIAA.

If an individual is reported, they may request relief from SSA as to the determination. Per Section 421.150 an application for relief must be in writing and include the information required by § 421.151. It may also include any other supporting data that the SSA or the applicant deems appropriate. When an individual requests relief under this section, SSA will also obtain a criminal history report on the individual before deciding whether to grant the request for relief.

Section 421.151 requires the applicant provide:

  1. A current statement from the applicant’s primary mental health provider assessing the applicant’s current mental health status and mental health status for the 5 years preceding the date of the request for relief; and

    The statement must specifically address:
    (i) Whether the applicant has ever been a danger to himself or herself or others; and
    (ii) Whether the applicant would pose a danger to himself or herself or others if we granted the applicant’s request for relief and the applicant purchased and possessed a firearm or ammunition.

  2. Written statements and any other evidence regarding the applicant’s reputation.

    The statements must specifically:
    (i) Identify the person supplying the information;
    (ii) Provide the person’s current address and telephone number;
    (iii) Describe the person’s relationship with and frequency of contact with the applicant;
    (iv) Indicate whether the applicant has a reputation for violence in the community; and
    (v) Indicate whether the applicant would pose a danger to himself or herself or others if we granted the applicant’s request for relief and the applicant purchased and possessed a firearm or ammunition.

The applicant may obtain written statements from anyone who knows the applicant, including but not limited to clergy, law enforcement officials, employers, friends, and family members, as long as the person providing the statement has known the applicant for a sufficient period, has had recent and frequent contact with the beneficiary, and can attest to the beneficiary’s good reputation. At least one statement must be from an individual who is not related to the applicant by blood or marriage.

The burden is on the applicant to show that he/she is not likely to act in a manner dangerous to public safety and that granting relief from the prohibitions imposed by 18 U.S.C. 922(d)(4) and (g)(4) will not be contrary to the public interest. Assuming those criteria are met, the SSA may grant relief. Unfortunately, the regulation does not state that they shall grant relief.

SSA’s regulations provide that a decision maker who was not involved in making the finding that the applicant’s benefit payments be made through a representative payee will review the evidence and act on the request for relief. If the request is denied, the applicant will have 60 days to file a petition for review in a Federal District Court. If the application for relief is approved, SSA will provide the applicant with written notice as to the reason for their decision, inform them that they are no longer prohibited under 18 U.S.C. 922(g)(4) from purchasing, possessing, receiving, shipping, or transporting firearms or ammunition based on the prohibition that we granted the applicant relief from, and inform the Attorney General of the decision in order to remove the applicant from the NICS database.

SSA has 365 days to act upon an application pursuant to NICS Improvement Amendments Act.

 

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