Firearm Restoration after Involuntary Commitment Hearing: Practical Considerations (Part 5)

In order to have one’s firearm rights restored after an involuntary civil commitment, a restoration hearing must occur. The judge must consider:
(1) the petitioner’s mental health and criminal history records,
(2) the petitioner’s reputation, developed at a minimum through character witness statements, testimony, or other character evidence, and
(3) any changes in the petitioner’s condition or circumstances since the original determination or finding.

Practical Issue #1: The Need for a Cooperative Mental Health Professional

If the Involuntary Commitment occurred in a different state or city, the motion to restore firearm rights will occur in that location. I have encountered a refusal on the part of treating psychiatrists to travel to another state to testify.

Practical Issue #2: Expensive fees for record review, report preparation, travel time and testimony

The treating psychiatrist must agree to review all previous psychological and hospital records as well as their own in order to properly opine as to any changes in the petitioner’s condition since the involuntary commitment. The moving party must pay for all the expert’s time in reviewing records, traveling to court and testifying. This fee can be extremely expensive.

Practical Problem #3: Petitioner’s continuing need for psychotropic medication, treatment and therapy

In cases where firearm rights have been successfully restored, the facts typically portray the involuntary commitment as an aberration in the life of a person who otherwise has no mental health issues. Other courts have refused to consider the effect of the passage of time or the effect of rehabilitation on the issue of restoration of gun rights.
If the petitioner continues to seek mental health treatment and takes psychotropic medication, the prosecutor can argue that the petitioner’s mental stability is precarious and uncertain.

The law of the state at issue will dictate whether a motion can be brought and whether the petitioner’s post-commitment mental state can be considered or whether rehabilitation is relevant.

These issues must be considered before a petition to restore firearm rights can be brought.

RESTORATION OF FIREARM RIGHTS AFTER INVOLUNTARY COMMITMENT: THE STATE COURT HEARING (Part 4)

In order to actually get your firearm rights restored, the involuntary commitment must have occurred in a state which has a law outlining the path to restoration. And that state law must conform to federal requirements.1

In a state restoration hearing, the judge must consider the following factors:
(1) the circumstances regarding the involuntary commitment,
(2) the petitioner’s record and
(3) the petitioner’s reputation in the community of residence.

The court must find that the petitioner “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,” in order to restore firearm rights.

The law in North Carolina requires that the court consider:
(1) the petitioner’s mental health and criminal history records,
(2) the petitioner’s reputation, developed at a minimum through character witness statements, testimony, or other character evidence, and
(3) any changes in the petitioner’s condition or circumstances since the original determination or finding relevant to the relief sought i.e. the involuntary commitment.

If the state where the involuntary commitment occurred does not have a law which includes the federally mandated factors, that court’s findings will be subject to a federal bar. Additionally, since the NICS Improvements Amendment Act (NIAA) was passed in 2008, if your state’s restoration statute predates 2008, it may be inadequate. If the federally required factors and findings are not part of the state’s restoration statute, it would be fruitless to make this motion until the state’s law is changed.

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1. 18 U.S.C. § 925(c)

RESTORATION OF FIREARM RIGHTS AFTER INVOLUNTARY COMMITMENT PART 3: THE FEDERAL PROHIBITION

A. Relevant Laws:
-Under The Gun Control Act of 1968, 18 U.S.C. 922(g)(4), persons who were adjudicated as a “mental defective” or committed involuntarily to a mental institution were prohibited from receiving or possessing a firearm.
-Under the Brady Handgun Violence Prevention Act of 1993, federal firearms licensees were required to conduct a criminal background check or NICS (National Instant Criminal Background Check System) before transferring a firearm to a non-licensee. Part of this check was the required representation that the transfer to the non-licensee would not violate federal, state or local law. A written statement issued by the chief law enforcement officer had to confirm that the transferee had not been adjudicated as a mental defective or been committed to a mental institution. Consequently, any person who had been adjudicated a mental defective or been committed to a mental institution (FN1) was prohibited for life from possessing a firearm.
-In 2008, the NICS Improvement Amendments Act of 2007 (NIAA) was signed into law thereby providing a mechanism wherein a person who had been involuntarily committed could have firearm rights restored.

B.Restoration of Firearm Rights per NIAA
There are two paths to restoration of firearm rights:
1) Federal: 18 U.S.C. 925 (c) wherein the application is made to the United States Attorney General. The petitioner must show that the circumstances regarding the mental disability, and the applicant’s record and reputation, are such that the applicant 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. This path to relief is currently illusory as it has not been funded and consequently no applications are being reviewed. (Jeffries v. Sessions at p. 17 (E.D. Pa. 2017)
2) State: North Carolina General Statute § 14-409.42 meets the criteria specified in NIAA (FN2) and courts can restore firearm purchasing rights to a person who had them previously removed because of a mental health adjudication or involuntary commitment. However, North Carolina’s statutory scheme has not been certified by the ATF. (see State Progress in Record Reporting for Firearm-Related Background Checks: by Becki Goggins, SEARCH and Anne Gallegos, National Center for State Courts February 2016 fn.8)

C. Conclusion
In the states who have enacted restoration relief laws, restoration of rights under state law will remove the bar to firearm possession. North Carolina currently has a legally sufficient program so a restoration of rights in state courts (FN3) will apply in both the state and federal jurisdictions. When firearm restoration relief is granted under a federal or state program which meets the requirements of the NIAA, or when certain automatic relief conditions are met, the mental health disability is “deemed not to have occurred” for purposes of the federal firearm prohibition.
Persons in states with no statutorily sufficient laws will not have their firearm restoration rights restored unless their legislature or courts (FN3) provide a remedy.
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FOOTNOTES
(1)“Adjudicated as a mental defective” 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 to others and lacks the mental capacity to contract or manage his own affairs. This term shall include a finding of insanity by a court in a criminal case or 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.
“Committed to a mental institution” refers to the 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 and a 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.
(2) In order to establish a relief from disabilities program, a state must comply with the NIAA requirements, as follows: 1. Pass state law or administrative order 2. Complete an application 3. Indicate the lawful authority that will consider the petition 4. Abide by due process 5. Create a proper record of the proceeding 6. Create proper findings 7. Allow for de novo judicial review of denial 8. Update state and federal records once made aware that the disqualifier no longer applies 9. Establish a written procedure to address updating requirements (recommended)
(3) There is currently a split in opinion between the sympathetic 6th Circuit and the hostile 3rd Circuit.